Whitbourne7e IM Ch15

CHAPTER 15
ETHICAL AND LEGAL ISSUES
CHAPTER AT A GLANCE
Ethical and Legal Issues
Roles and Responsibilities of Clinicians

Therapist Competence
Commitment
Informed Consent
Right to Treatment
Confidentiality
Refusal of Treatment
Relationships with Client
The Business of Psychotherapy
Special Roles for Clinicians
Forensic Issues
Insanity Defense
Competency to Stand Trial
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Teaching Objectives
1.0 Ethical Issues
1.1 Identify the roles and responsibilities of mental health clinicians and the notion of therapist
competence.
1.2 Describe the concept of informed consent and discuss its relevance to psychological treatment.
1.3 Explain the importance of confidentiality and the related concept of privileged communication, and
discuss the exceptions to these principles, such as the duty to warn.
1.4 Discuss the nature of a clinician’s relationships with clients, students and research collaborators.
1.5 Outline the major concerns of keeping health care records and protecting clients while doing so.
1.6 Distinguish the special roles clinicians may play, including that of an expert legal witness, a guardian
ad litem, evaluator in child protection cases, and conducting evaluations of being with symptoms of
cognitive decline.
2.0 Ethical and Legal Issues in Providing Services

2.1 Discuss the process of involuntary commitment as a means of protecting the client and others from
the expression of dangerous behaviors, including the principle of parens patriae.
2.2 Indicate the importance of the client’s right to treatment and a humane environment, liberty, and
safety.
2.3 Describe the client’s right to refuse treatment and to live in the least restrictive alternative to an
institution.
3.0 Forensic Issues in Psychological Treatment

3.1 Explain the insanity defense and the role of the forensic psychologist in its use.
3.2 Discuss the history of the insanity defense, from its beginnings in Great Britain to the enactment of
the Insanity Defense Reform Act of 1984.
3.3 Compare and contrast the relevance and outcomes of the insanity defenses in the cases of John
Hinckley, Jeffrey Dahmer, Erik and Lyle Menendez, Lorena Bobbitt, and Theodore Kaczynski.
3.4 Describe how and why competency to stand trial becomes an issue in criminal proceedings and
discuss the role of forensic psychologists in its use.
3.5 Discuss the case of Louis Panetti and how understanding the purpose of punishment is important
when convicting a mentally ill person.
3.6 Discuss the concluding perspectives on forensic issues.
4.0 Chapter Boxes

4.1 Discuss how the changes in DSM-5 are perceived as having potentially disastrous consequences due
to addition of some diagnoses and removal of others.
4.2 Discuss how the APA Ethics Code explicitly prohibits most multiple relationships of clients and their
therapists.
4.3 Discuss the case of Susanna Kaysen’s involuntary commitment.
Lecture Discussion Topics and Controversies

1. If you had been in Mark’s position, how would you have felt to have been forced into treatment?
How must his wife have felt when she signed the forms giving permission for the ECT treatments?
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2. What factors best predict violent behavior in individuals with psychological disturbances? How might
this data perpetuate the myth that all individuals with psychological disorders are violent?
3. On June 20, 2001, Andrea Yates drowned her five children in a bathtub. Andrea Yates had a long
history of mental illness and suffered from postpartum depression. Yates was on trial for capital
murder and faced the death sentence. Her defense attorney depicts his client as a victim herself.
Andrea Yates was sentenced in March 2002 to a life sentence; she must serve forty years before being
eligible for parole.
4. The Constitution guarantees that each individual has certain civil rights. One of those rights is the
right to liberty. Individuals that are involuntarily committed to institutions are deprived of liberty.
Mental health professionals have always rationalized this deprivation as necessary to provide the
most effective treatment. In the 1960s and 70s it became apparent that for many institutionalized
individuals adequate treatment was not being provided. In 1957, Kenneth Donaldson was committed
by his father to the state mental hospital in Florida because his father considered him dangerous. In
1971, Donaldson sued the hospital superintendent to gain his release. It was demonstrated during the
court proceedings that there was no evidence, even prior to commitment, that Donaldson was
dangerous. There was also evidence that Donaldson had only received custodial care at the hospital.
In 1975, the Supreme Court ruled that “A State cannot constitutionally confine a nondangerous
individual who is capable of surviving safely in freedom by himself or with the help of willing and
responsible family members or friends.”
O’Connor v. Donaldson, 95 S. Ct. 2486 (1975).
5. Many states now have laws that call for some convicted sex offenders to be hospitalized for the rest
of their lives after they have served their prison sentences. They are rarely, if ever, provided treatment
in prisons, or in the hospital setting. Yet, the courts consider them mentally ill and dangerous so that
they can be confined for life after they have served their sentence. What are the ethical and
therapeutic issues raised by this policy? Are not people who have served their time entitled to
treatment and entitled to not be confined unless it is proven that they are presently a danger to others?
6. A North Carolina man suffering from schizophrenia killed several people when he was not
on his medication. Found not guilty by reason of insanity, in 1999 he successfully sued his
therapist for not warning him of the dangers of not taking his medication (that he might
become violent). This is an ironic twist on the Tarasoff case. Do you think that a mental
health professional should be required to warn patients about their behaviors if they do not
take their medications? How would the professional know what a patient would do if off
medication? After all, very few mentally ill people are violent.
7. Separate from the issue of competency to stand trial is the question of whether a mentally ill person
who is convicted of a capital offense is able to understand the nature and purpose of their sentence to
death. The case of Scott Louis Panetti, which was heard by the U.S. Supreme Court in 2007,
highlights some of the complexities of this question. In 1992, Panetti shot to death his mother-in-law
and father-in-law with a sawed-off shotgun while keeping hostage his estranged wife and 3-year-old
daughter. Even though Panetti had a lengthy history of mental illness and psychiatric hospitalizations,
he was sentenced to death by a Texas court. In 2003, Panetti petitioned the Texas state appeals court
to determine his competency for execution. Panetti asserted his belief that satanic forces have sought
his execution to prevent him from preaching the Gospel. His defense lawyers claimed that since
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Panetti could not understand why he was being sentenced to death, the death penalty would constitute
cruel and unusual punishment and therefore violate the Eighth Amendment of the Constitution. The
Texas Department of Criminal Justice objected to this argument, contending that capital punishment
in such cases should not rest on whether or not a convict has rational understanding of the reasons for
execution, but rather on the convict’s moral culpability at the time the crime was committed. In 2007,
the U.S. Supreme Court blocked Panetti’s execution and returned the case to the U.S. District Court
in Austin, Texas. This decision was based in part on arguments put forth by the American
Psychological Association, the American Psychiatric Association, and the National Alliance on
Mental Illness which joined together in submitting a brief stating that individuals with psychotic
conditions, such as that of Panetti, may experience delusions and a disrupted understanding of reality.
Also, these individuals may be unable to connect events or understand cause and effect, namely, the
connection between the murder and the punishment (American Psychological Association, American
Psychiatric Association, and National Alliance on Mental Illness, 2007).
American Psychological Association, American Psychiatric Association, and National Alliance on Mental Illness (2007).
Brief for amici curiae, American Psychological Association, American Psychiatric Association, and National Alliance on
Mental Illness, in support of petitioner, Scott Louis Panetti v. National Quarterman, U.S. Supreme Court, No. 06-6407.
8. Mental health practitioners must be ethical, responsible, and competent professionals. They are
guided by standards or codes of ethics to be sure that they have the intellect and competence
to treat clients. However, clinicians must know their own limitations and must use appropriate
referrals when necessary. Discuss the need for self-assessment and sometimes the need to refer a
client to a clinician with a particular area of expertise. This is a great segue into the new guidelines
for being proficient in treating clients and the need to be sensitive to ethnicity and culture.
Demonstrations and Classroom Exercises

1. Students must understand the need for confidentiality in a therapeutic relationship. Clients must feel
that their trust will not be violated. However, this issue of trust can be breached in some situations.
Therapists are mandated reporters, therefore, by law, they must report if a client intends to harm
another person, or is aware of elder abuse, child abuse, or neglect. Divide students into two groups
and have them debate the legal, ethical, and therapeutic aspects.
2. Have one of the admitting psychiatrists from the local psychiatric center come in and talk about the
institution’s protocol for admission, including the procedure for informing the client of his or her
rights and the methods for obtaining informed consent.
3. Many correctional facilities are now equipped to manage inmates with mental illness. Check out the
resources of your local county jail or local correctional facility and set up a tour. Have the forensic
mental health coordinator review the specialized procedures and services that these inmates may
experience.
4. The Andrea Yates capital murder case was highly publicized. Give students the basic facts of the
case. Divide the class into two groups and have them debate whether Andrea Yates was mentally
insane at the time of the crime and if she was competent to stand trial. They may also want to discuss
whether others are partly responsible for this tragedy (mental health practitioners, her husband,
mental health clinic, etc.).
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5. Have students find their state’s laws on criminal responsibility in the mentally ill. Does their state
have a not guilty by reason of insanity verdict or a guilty but insane verdict? Explain how the legal
standards vary.
6. Assign students to interview either a court clerk, judge, or attorney to obtain their locality’s
procedures for involuntary commitment of a person to a mental hospital. Have them obtain copies of
the law, and write a memorandum containing a “how-to” for family members who may need to
commit a loved one for the purposes of mental health treatment.
7. Contact the local bar association and ask if they can provide an attorney to speak to your class about
the differences in legal roles and responsibilities of an attorney and a guardian ad litem.
8. Obtain the name of a mental health professional in your community who conducts child custody
evaluations and testifies about them as an expert witness in court. The court clerk may have this
information, or you can contact your local mental health agency. See if the mental health professional
would come and speak to your class about the types of assessments used to make a recommendation
about custody and the court procedures for testimony both in contested custody cases between parents
and in social service cases where children are removed from the homes of abusive or neglectful
parents.
9. Informed consent must be obtained from potential research subjects as well as clients in the therapy
setting. If you are in a university setting, obtain your institution’s research review board’s policies
regarding informed consent and have students compare the content to the information on p. 484 and
485.
10. Have students obtain from the Internet (or print media) cases of people who have attempted the
insanity defense. Bring in and compare the facts that led to the differing verdicts―of guilty or not
guilty by reason of insanity. Ask students whether they agree with the results. This can lead to a lively
debate.
11. Have students find information on cases where women have been found not guilty because of the
“battered spouse” defense available in some states, that is largely the result of the efforts of
psychologist Lorraine Walker. Yet being a “battered spouse” is not a mental disorder that meets the
criteria of the insanity defense and men aren’t likely to be able to use it, even if they are abused. How
do these women get off? Under current legal guidelines, should they?
12. Richard Lawrence was an unemployed house painter in his 30s who fired two pistols at U.S.
President Andrew Jackson as Jackson walked through the Capitol Rotunda during a funeral
procession. Both pistols misfired, and Lawrence was quickly apprehended. He was the first person
charged with the attempted assassination of a U.S. president. Lawrence apparently suffered from
delusions of persecution, believing that he was heir to the British throne and that Jackson had
thwarted him by conspiring to keep him from receiving a fortune with which he could return to
England and claim his seat. He also believed that Jackson had killed his father. At his one-day trial,
Lawrence repeatedly interrupted the proceedings, loudly proclaiming that he was the kind of England
and Rome. The jury acquitted him by reason of insanity after only five minutes of deliberation, and
he spent the rest of his life - 26 years - in an asylum. Have students research cases in which the
insanity defense has been upheld.
http://www.pbs.org/wgbh/pages/frontline/shows/crime/trial/other.html
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Videos and Films
The Right Future: Beyond Institutionalization profiles a model program that integrates people with
developmental disabilities into the community through cooperation with hospitals, social workers, and
family members. (Films for the Humanities and Sciences, CFX 8795. Call 800-257-5136).
Mistreating the Mentally Ill focuses on how different cultures treat the mentally ill, concluding that no
society has devised a totally humane system of care, in spite of legal and ethical guidelines. (Films for the
Humanities and Sciences, CBK 5069. Call 800-247-5136).
Diverting the Mentally Ill from Jail examines the problems caused by jailing inmates with mental illness
and suggests how to break the cycle of jail arrest for the nonviolent offender of nonserious crimes, many
of whom are in jail because they are homeless. (Films for the Humanities and Sciences, CBK 6444. Call
800-257-5126).
Bitter Potion: Psychological Profiling considers how law enforcement specialists create psychological
profiles that help identify suspects of violent crimes. (Films for the Humanities and Sciences, CBK 7455.
Call 800-257-5126).
Primal Fear (1996), starring Richard Gere and Edward Norton, is a psychological thriller in which a
young man is on trial for a murder in which he may have committed while suffering from Multiple
Personality Disorder.
Some films that would be appropriate for this unit, cited by Wedding and Boyd (1999) are:
1. Anatomy of a Murder (1959); a film starring Jimmy Stewart who plays a prosecuting attorney; the
film contains an interesting interpretation of the “irresistible impulse” test.
2. Nuts (1987); Barbara Streisand is a murder suspect, who is resisting the insanity defense being used
in her case.
Literature Guide and Suggested Readings

Abbott, A. (2001). Into the mind of a killer, Nature, 410, 296-298.
Applebaum, P. A. (1994). Almost a revolution: Mental health law and the limits of change. New York:
Oxford University Press.
Applebaum, P. A. (1993). Legal liability and managed care. American Psychologist, 48, 251-257.
Bersoff, D. N. (1995). Ethical conflicts in psychology. Washington, DC: American Psychological

Association.
Bureau of Justice Statistics, "Mental Health Treatment in State Prisons, 2000," July 2001.
Criminal Justice/Mental Health Consensus Project (PDF),

http://consensusproject.org/downloads/Entire_report.pdf
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Fenster, A., Markus, K. A., Weidemann, C. F., (2001). Selecting tomorrow’s forensic psychologists: A
fresh look at some familiar predictors. Educational and Psychological Measurement, 61, 336-348.
Fisher, M. A. (2008). Protecting confidentiality rights: The need for an ethical practice model. American
Psychologist, 63, 1-13.
Guidelines for psychological practice with girls and women, American Psychological Association,
(February 2007). http://www.apa.org/about/division/girlsandwomen.pdf
Milne, D. (2005) Outpatient commitment garners broad support. Psychiatric News, 40, 14.
Myers, J. E. B. (1992). Legal issues in child abuse and neglect. Newbury Park, CA: Sage. This book
focuses on the roles of mental health and social work professionals who interact with the legal system in
child abuse and neglect cases. It has excellent chapters on mental health evaluations and mental health
expert witnesses.
Neumann, C. S., Hare, R. D. (2008). Psychopathic traits in a large community sample: Links to violence,
alcohol use, and intelligence, Journal of Consulting & Clinical Psychology, 76 (5), 893-899.
Reznek. L. (1997). Evil or ill? Justifying the insanity defence. Routledge. London.
Salekin, R.T., Rosenbaum, J., Lee, Z. (2008). Child and adolescent psychopathy: Stability and change.
Psychiatry, Psychology and the Law
Schmitt, R. B. (1996, February 29). Insanity pleas fail a lot of defendants as fear of crime rises. Wall
Street Journal, A1, A8.
Steadman, H. J., McGreevy, M. A., Morrisey, J. P. M., Callahan, L. A., Robbins, R. C., Cirincione, C.
(1993). Before and after Hinckley: Evaluating insanity defense reform. New York: Guilford Press.
Steinman, S. O., Richardson, N. F., McEnroe, T. (1998). The ethical decision-making manual for helping
professionals. Pacific Grove, CA: Brooks/Cole.
Swenson, L. C. (1997) (2e). Psychology and Law for the Helping Professions. Pacific Grove, CA:
Brooks/Cole.
Teplin, L. A., Abram, K. M., McClelland, G. M. (1994). Does psychiatric disorder predict violent crime
among released jail detainees? A six-year longitudinal study. American Psychologist, 49, 335-342.
Torrey, E. F. (1997, June 13) The release of the mentally ill from institutions: A well-intentioned disaster.
The Chronicle of Higher Education, pp. B1, B5.
Werth, J.L., (2005). Assessing for impaired judgment as a means of meeting the “duty to protect” when a
client is a potential harm-to-self: Implications for clients making end-of-life-decisions. Mortality, 10, 7-
21.
Wilansky, Daniel P. (2006). Recent developments in health law constitutional law, Journal of Law,
Medicine & Ethics, 34 (4), 831-832.
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Wrightsman, L. S., Nietzel, M. T., Fortune, W. H. (1998). Psychology and the legal system. Pacific
Grove, CA: Brooks Cole.
Paper Topics
1. The Neumann and Hare (2008) article would be good starting points for a closer examination of the
issue of predicting violent behavior.
2. In many instances, the exact procedures required for involuntary commitment vary from state to state.
Have students research your state’s procedures.
3. Students could write a history of the insanity defense, its changes since the Hinckley case, and its
continuing disfavor, beginning with the Steadman and colleagues’ book (see above) as a starting
point. Students should critically examine the necessity of the insanity defense from a legal and
therapeutic position.
4. Students could research the changes in mental health services beginning with the demise of insurance
coverage for it in the 1990s and continuing with the challenges of managed care. They should include
examination of laws that both allow disparity in coverage for physical and mental illness, as well as
looking at laws that are striving to create parity in such care.
5. Students could get in contact with their state’s licensing and ethical boards and obtain information
about the nature of the cases that come before such boards. They could research on a broader basis the
most common types of ethical complaints against mental health professionals and the actions taken
against those professionals who are found to have breached ethical violations.
6. Students could research the Tarasoff case and its progeny, including a 1999 North Carolina case
where a man with schizophrenia killed people and was found not guilty by reason of insanity
successfully sued his therapist for not warning him about the danger of not being on his medication.
7. Students may want to review a copy of a psychiatric hospital’s patient’s bill of rights. Have them
argue their points of interest.
8. Students may want to research Kendra’s Law, a newly amended mental hygiene law that permits state
courts to order “assisted outpatient treatment.” They may find it interesting to discuss the controversy
that surrounds this law.
9. Students could research the recent rash of violence in school and workplace settings. Students may
want to identify the possible social aspects, psychological, or biological etiology.
10. Since 1999, the Department of Justice has released two reports dealing with the issue of mentally ill
inmates. It found that fully 16 percent of the people in the nation's corrections systems were mentally
ill, but that only 60 percent of those reported receiving any mental health treatment. Students may
want to research these statistics.
Bureau of Justice Statistics, "Mental Health Treatment in State Prisons, 2000," July 2001.
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CHAPTER 15

ETHICAL AND LEGAL ISSUES

Ethical and Legal Issues

Roles and Responsibilities of Clinicians

2.0 Ethical and Legal Issues in Providing Services

3.0 Forensic Issues in Psychological Treatment

4.0 Chapter Boxes

Lecture Discussion Topics and Controversies

Demonstrations and Classroom Exercises

Literature Guide and Suggested Readings

Bersoff, D. N. (1995). Ethical conflicts in psychology. Washington, DC: American Psychological

Criminal Justice/Mental Health Consensus Project (PDF),

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