Please see attachment
Write a two page paper on Law and Ethics in Abnormal Psychology. Be sure to include at least one paragraph about the role technology plays in counseling and ethics surrounding its use. (issues with Telehealth, use of internet resources, etc.). Cite at least four references.
Textbook :
Sue, D., Sue, D. W., Sue, D., & Sue, S. (2014). Essentials of understanding abnormal behavior (2nd ed.). Belmont, CA: Wadsworth Cengage Learning.
Chapter 16
A basic premise of criminal law is that all of us are responsible beings who exercise free will and are capable of choices. If we do something wrong, we are responsible for our actions and should suffer the consequences.
Criminal commitment
is the incarceration of an individual for having committed a crime. Although the field of psychology accepts different perspectives on free will, criminal law does not. Criminal law does recognize, however, that some people lack the ability to assist in their own defense or to discern the ramifications of their actions because they are mentally disturbed.
Although they may be technically guilty of a crime, their mental state at the time of the offense might exempt them from legal responsibility. Additionally, they might be mentally incapable of participating in criminal proceedings against them. Let us explore the landmark cases that have influenced how criminal law is applied to individuals who are seriously mentally ill. Standards arising from these cases and some other important guidelines are summarized in
Figure 16.1
.
Figure 16.1Legal Standards That Address the Mental State of the Defendant
© Cengage Learning®
Case Study
On June 5, 2002, Brian David Mitchell kidnapped 14-year-old Elizabeth Smart at knifepoint from her Salt Lake City, Utah, home. The incident set off a massive search effort and evoked intense media coverage. Smart was rescued 9 months later after enduring a horrendous experience that included a forced polygamous “marriage,” frequent rapes, and constant threats to her life. Mitchell, a former street preacher, was arrested for the crime, but claimed that God had commanded him to abduct Smart, to enter into a celestial marriage, and to form a religious society of younger females.
Despite his capture and arrest, Mitchell’s trial did not begin until November 2010—almost 9 years later. The delays occurred because in three separate court hearings, Mitchell was judged “mentally incapable of assisting in his own defense.” In the courtroom he sang hymns and screamed at the judge to “forsake those robes and kneel in the dust.” His behavior was so bizarre that he was banished from the courtroom several times.
As a result, the judge ordered that Mitchell be hospitalized until he was capable of understanding the proceedings. Mitchell refused to participate in psychiatric treatment or to take antipsychotic medication. Finally, following a series of hearings and review of conflicting opinions from various experts who evaluated Mitchell, a federal judge ruled that Mitchell was competent to stand trial. At the trial, the jury rejected his insanity defense and found him guilty. On May 25, 2011, Mitchell was sentenced to life imprisonment without the possibility of parole.
Most court-appointed psychiatrists and psychologists who examined Mitchell declared him not competent to stand trial, although a few believed he was manipulating the system and feigning psychosis. The term
competency to stand trial
refers to a defendant’s mental state at the time of psychiatric examination after arrest and before trial. It has nothing to do with the issue of criminal responsibility, which refers to an individual’s mental state at the time of the offense. Federal law states that an accused person cannot stand trial unless three criteria are satisfied (Fitch, 2007):
· The defendant must have a factual understanding of the proceedings.
· The defendant must have a rational understanding of the proceedings.
· The defendant must be able to rationally consult with counsel in presenting his or her own defense.
These criteria suggest that a defendant who is severely psychotic, for example, could not stand trial because a serious impairment exists. Determination of competency to stand trial is meant to ensure that a person understands the nature of the legal proceedings and is able to help in his or her own defense. The goal is to protect and preserve the civil rights of people who are mentally disturbed. But being judged incompetent to stand trial may have unfair negative consequences as well. A person may be held in custody for an extended period of time, denied the chance to post bail, and isolated from friends and family, all without having been found guilty of a crime.
Such a miscarriage of justice was the focus of a U.S. Supreme Court ruling in the 1972 case of Jackson v. Indiana. In that case, a man with mental retardation and brain damage, deaf and unable to speak, was charged with robbery. However, he was found incompetent to stand trial and was incarcerated indefinitely—which in his case probably meant for life, because of the severity and unchanging nature of his disabilities. In other words, it was unlikely that he would ever be judged competent to stand trial on the robbery charges, and thus faced the prospect of being incarcerated for life. His lawyers filed a petition to have him released on the basis of deprivation of
due process
—the legal checks and balances that are guaranteed to everyone, such as the right to receive a fair trial, the right to face one’s accusers, the right to present evidence, and the right to have counsel.
The U.S. Supreme Court ruled that a defendant cannot be confined indefinitely solely on the grounds of incompetency. After a reasonable time, a determination must be made as to whether the person is likely or unlikely to regain competency in the foreseeable future. If experts conclude that competency is unlikely, the institution must either release the individual or initiate civil commitment procedures. This is a significant ruling because many people are committed to prison hospitals because of incompetency determinations. It is estimated, for example, that approximately 40,000 people in the United States are evaluated each year for competency to stand trial, and as many as 75 percent are determined to be incompetent (Zapf & Roesch, 2006). The Jackson v. Indiana decision prompted federal competency hearings in the case of Brian David Mitchell because he could not be held indefinitely without a trial; additionally, prosecutors pushed for another hearing because they did not want the statute of limitations on the charges to expire.
The
insanity defense
is a legal argument used by defendants who admit they have committed a crime but plead not guilty because they were mentally disturbed at the time of the crime. The insanity plea recognizes that under specific circumstances, people may not be held accountable for their behavior. As we saw in the case of James Holmes and Brian David Mitchell, defense strategies sometimes involve such a contention—that the defendants are not guilty because they were insane (not of sound mind) at the time of the crime.
In the United States, a number of different standards have been used as legal tests of insanity. One of the earliest is the M’Naghten rule. In 1843, Daniel M’Naghten, a mentally disturbed woodcutter from Glasgow, Scotland, claimed that he was commanded by God to kill the British Prime Minister, Sir Robert Peel. He killed a lesser minister by mistake and was placed on trial, where it became obvious that M’Naghten was quite delusional. Out of this incident emerged the M’Naghten rule, popularly known as the “right–wrong” test, which holds that people can be acquitted of a crime if, at the time of the act, they (a) had such defective reasoning that they did not know what they were doing, or (b) were unable to comprehend that the act was wrong. The M’Naghten rule has been criticized for being a cognitive test (knowledge of right or wrong) that does not consider motivation or other factors. Further, it is often difficult to evaluate or determine a defendant’s awareness or comprehension at the time of the crime.
Did You Know?
Hawaii requires several independent forensic evaluations when the insanity defense is used. Clinicians who evaluate the same defendant for insanity often reach different conclusions. It is not surprising that juries reached a unanimous decision regarding insanity in only 55 percent of cases, according to a review of 165 defendants and 483 evaluations in Hawaii.
Source: Gowensmith, Murrie, & Boccaccini, 2013
The second major precedent associated with the insanity defense is the
irresistible impulse test
. In essence, this doctrine says that defendants are not criminally responsible if they lacked the willpower to control their behaviors. Combined with the M’Naghten rule, this test broadened the criteria for using the insanity defense. In other words, a not guilty by reason of insanity verdict could be obtained if a jury determined that the defendant did not understand that his or her actions were wrong or if the actions resulted from an irresistible impulse to commit the acts (Finnane, 2012).
Criticisms of the irresistible impulse defense revolve around what constitutes an irresistible impulse. When, for example, is a person unable to exert control (irresistible impulse) rather than choosing not to exert control (unresisted impulse)? Is a man who rapes a woman unable to resist his impulses, or is he choosing not to exert control? Neither the mental health profession nor the legal profession has answered this question satisfactorily.
Legal understandings of the insanity plea were further expanded in the case of Durham v. United States (1954), when a U.S. Court of Appeals for the District of Columbia Circuit broadened the M’Naghten rule with the so-called “product test,” or
Durham standard
. This standard maintains that an accused person should not be considered criminally responsible if his or her unlawful act was the product of a mental disease or defect. The intent of the ruling was to (a) give the greatest possible weight to expert evaluation and testimony and (b) allow mental health professionals to define mental illness.
The Durham standard also has its drawbacks. The term product is vague and difficult to define. Additionally, if the task of defining mental illness is left to mental health professionals, it becomes necessary to consider definitions of mental illness on a case-by-case basis. In many situations, relying on psychiatric testimony serves only to confuse the issues, because both the prosecution and defense bring in psychiatric experts, who often present conflicting opinions (Koocher & Keith-Spiegel, 2008). What we know from cases such as those of James Holmes and Brian David Mitchell is that expert testimony can vary significantly.
In 1962, the American Law Institute Model Penal Code provided guidelines to help jurors determine the validity of the insanity defense. The guidelines combine features from the previous standards (Sec. 401, p. 66):
1. A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law.
2. As used in the Article, the terms “mental disease or defect” do not include an abnormality manifested by repeated criminal or otherwise antisocial conduct.
This second point was included to eliminate the insanity defense option for the many criminals diagnosed with an antisocial personality disorder who make a clear decision to violate the law.
In some jurisdictions, the concept of
diminished capacity
has also been incorporated into the American Law Institute standard. Diminished capacity is the absence of a specific intent to commit the offense as a result of mental impairment. For example, a person under the influence of drugs or alcohol may commit a crime without premeditation or intent; a person who is grieving over the death of a loved one may harm the person responsible for the death. Although diminished capacity is primarily used to guide the sentencing and disposition of defendants, it is sometimes introduced in the trial phase with the hope that the defendant will be convicted of a lesser charge.
Public Outrage over Acquittal Based on Insanity
John Hinckley, Jr. (center), was charged with the attempted murder of President Ronald Reagan. His acquittal by reason of insanity created a furor among the U.S. public over use of the insanity defense. The outrage led Congress to pass the
Act.
Bettmann/Corbis
Insanity Defense Reform
Perhaps no trial has challenged the use of the insanity plea more than the case of John W. Hinckley, Jr., who attempted to assassinate President Ronald Reagan. The jury’s verdict that he was not guilty by reason of insanity outraged the public, as well as some legal and mental health professionals. Many were concerned that the criteria for the insanity defense were too broadly interpreted and calls for reforms were rampant. Hinckley’s recent request to move in full-time with his mother outside of the mental hospital has reignited this controversy (Milfeld, 2015).
As a result of the public outcry, Congress passed the Insanity Defense Reform Act of 1984, which based the definition of insanity totally on the individual’s ability to understand what he or she did. In the wake of the Hinckley verdict, some states adopted alternative pleas, such as “culpable and mentally disabled,” “mentally disabled, but neither culpable nor innocent,” and “guilty, but mentally ill.” These pleas are attempts to separate mental illness from insanity and to hold people responsible for their acts. Such pleas allow jurors to hold defendants responsible for their crimes while also ensuring that they receive treatment for their mental illnesses.
Did You Know?
A frequent misconception is that people with a mental illness are dangerous. The majority of people with mental disorders, including those with psychosis, are neither violent nor dangerous. Substance abuse and a history of violence increase the risk, however.
Source: Elbogen & Johnson, 2009
Despite attempts at reform, however, states and municipalities continue to use different tests of insanity, with varying outcomes. Under Colorado law, for example, prosecutors in the Aurora theater shooting were required to prove beyond a reasonable doubt not only that Holmes had “a culpable state of mind,” but also that he was “not insane” at the time of the shooting. In other words, the prosecution needed to convince jurors that Holmes understood right from wrong and that he acted with intent, deliberately taking actions that he knew would kill people. Only then could jurors find him guilty of murder and subject to life imprisonment or execution (Gurman, 2015).
16-1cContemporary Views on the Insanity Defense
The concept of “not guilty by reason of insanity” continues to provoke controversy among legal scholars, mental health practitioners, and the general public. Most defendants who use this defense have a long history of severe mental illness. James Holmes is an exception to this pattern. Another well-known exception is Andrea Yates, who, on June 30, 2001, waited for her husband to leave for work, filled the bathtub to the very top, and proceeded to drown her five children (ages 7 months to 7 years).
After killing her children, she carried them to a bedroom, laid them out next to one another, and covered them with a sheet. She then contacted 911. Afterward, she called her husband and stated, “You need to come home. . . . It’s time. I did it.” When asked what she meant, Yates responded, “It’s the children . . . all of them.” When the police arrived, Yates calmly explained how she had killed her five young children.
The case of Andrea Yates shocked the nation. How could a mother possibly commit such an unthinkable act? Her actions were especially heinous because she murdered her five children in such a methodical manner. During Yates’s trial, the prosecution asked for the death penalty, but the defense contended that because Yates committed the murders while experiencing severe postpartum depression and postpartum psychosis, she was legally insane and should not be held accountable for her actions. The jury, however, found her guilty. An appeals court subsequently overturned the verdict. During the second trial, another Texas jury found her not guilty by reason of insanity; she has since been confined to a mental hospital. In Yates’s case, she had experienced only one previous psychotic breakdown, following the birth of her fourth child.
Determination of guilt when someone who has an ongoing mental illness commits a serious crime can be especially complicated, as you will see in the following case.
Case Study
On February 12, 2008, 39-year-old David Tarloff used a meat cleaver to savagely attack and murder Kathryn Faughey, Ph.D., during an attempted robbery. The intended target of the theft was her colleague, Kent Shinbach, M.D., a 70-year-old psychiatrist. Seventeen years earlier, Dr. Shinbach had evaluated and recommended involuntary hospitalization for Tarloff—the first of Tarloff’s many hospitalizations. Tarloff had not seen Shinbach for years, but he tracked down Shinbach’s office address after concluding that he “must be rich.” Tarloff’s plan was to demand $40,000 from Dr. Shinbach so that he could “rescue” his mother from a nursing home and move her to Hawaii where he could take care of her in a villa that he would rent with the stolen money.
When Tarloff entered the office suite, he unexpectedly encountered Dr. Faughey and brutally attacked and killed her. When Dr. Shinbach heard Faughey’s screams and attempted to come to her aid, he was also viciously assaulted. Ignoring Dr. Shinbach’s serious injuries, Tarloff demanded money. Dr. Shinbach testified in court that Tarloff abruptly left when the doctor asked him, “Haven’t you done enough harm this evening? Why don’t you just leave?” After the attack, Tarloff reportedly threw his bloody clothes away and bought a change of clothing. A few days later, after his arrest, he said he was sorry for killing “that woman” but did not express concern about the serious injuries sustained by Dr. Shinbach; instead, he told detectives that the doctor was “a liar.”
During various court appearances, Mr. Tarloff rocked back and forth and appeared to be disoriented. According to his attorneys, Tarloff claimed that he had seen God’s eye in tables and floors and that God had approved of his plan to demand money from the psychiatrist. The lawyers explained that Tarloff had been a “normal,” well-liked high school student but that he had changed drastically after his first semester of college at Syracuse University. Soon afterward, he was diagnosed with schizophrenia. On numerous occasions over the next 20 years, he was involuntarily hospitalized due to the severity of his mental illness (McKinley, 2014).
Tarloff’s attorneys argued that the jury should find him “not guilty by reason of mental disease or defect.” His defense attorney called the case “an insane plan by an insane man who was legally insane when it happened.” Jury members needed to decide if Tarloff knew right from wrong during his attack. Did his delusions diminish his capacity to understand that his behavior was unlawful?
Not Guilty by Reason of Mental Disease or Defect?
David Tarloff, who has a long-standing history of schizophrenia, savagely murdered a psychologist and brutally attacked a 70-year-old psychiatrist. Although his defense attorney argued that he was insane at the time of the murders, on March 28, 2014, a jury found Tarloff guilty on all charges, including murder.
James Keivom/New York Daily News Archive/Getty Images
It took three separate trials before a jury was able to reach a verdict. The first trial, which began in the fall of 2008, was delayed when Tarloff adamantly refused to leave his cell during jury selection. This behavior raised questions about Tarloff’s competency to stand trial and led the judge to request that Tarloff receive a mental health evaluation. Based on assessment by two psychiatrists, the judge concluded that Tarloff was not competent to stand trial and ordered him to remain in a secure psychiatric facility until competency was established. Almost 2 years later, it was determined that Tarloff’s mental condition had sufficiently stabilized to allow him to understand the proceedings and to assist in his own defense. During the second trial, after 10 days of heated deliberation, the judge conceded that the jury was hopelessly deadlocked; some of the jurors were unable to agree to a guilty verdict, explaining that Tarloff’s mental illness clouded his ability to determine right from wrong.
A verdict was finally reached during the third trial. On March 28, 2014, after deliberating for 7 hours, the jurors found Tarloff guilty on all counts, including murder. Some jurors explained that although they recognize that Tarloff has a severe mental illness, they believe that he knew that what he did was wrong. One juror explained: “I believe he’s sick to a certain degree but not sick enough to not know right from wrong.” Another stated that she had no choice but to find him guilty because of the narrow criteria associated with the insanity defense and voiced her opinion that another choice should have been available to allow him to receive the mental health treatment he needs, “a box for an obviously mentally ill person who knows right from wrong” (McKinley, 2014).
Myth vs Reality
Myth
The insanity defense is often used because defendants who are found not guilty by reason of insanity spend less time in custody (jail, mental health institution, or prison) than those who are convicted.
Reality
As a rule, defendants found not guilty by reason of insanity spend as much if not more time in custody than those who are convicted. They often face a lifetime of judicial oversight even after their release. Further, the plea is infrequently used and seldom successful.
Less than 1 percent of defendants use an insanity defense and, even then, in only a small percentage of cases is the defense successful (Kois, Pearson, Chauhan, Goni, & Saraydarian, 2013). For example, on February 24, 2015, a Texas jury rejected the insanity defense and convicted Eddie Ray Routh of murder in the shooting deaths of former Marine Chad Littlefield and Chris Kyle, former Navy SEAL and author of “American Sniper.” The jurors concluded that, despite his severe mental illness, Routh failed to meet the legal threshold for insanity: inability to distinguish right from wrong because of a mental disease or defect (Keneally, 2015). Routh will serve life in prison without the possibility of parole.
Many of the cases discussed in this chapter are the exceptions to the rule; however, they are presented to help illustrate the ways in which psychopathology and the law intersect. These cases also received significant media attention and helped construct popular opinion about the insanity defense. In the limited cases where the insanity defense is successfully employed, the defendants usually have past hospitalizations; delusions or paranoia; a previous diagnosis of a serious mental illness such as bipolar disorder or schizophrenia; and few victims were involved (Conner, 2006).
Checkpoint Review
1. What is the difference between insanity and a mental disorder?
2. Compare and contrast the criteria used for the insanity defense.
3. What does being incompetent to stand trial mean? Does it differ from insanity?
Civil Commitment
Case Study
She was known only as BL (“Bag Lady”) in the area of downtown Oakland, California. By night, she slept on any number of park benches and in storefronts. By day, she could be seen pushing a shopping cart full of boxes, extra clothing, and garbage, which she collected from numerous trash containers. According to her sister, the woman had lived this way for nearly 10 years, without complaint from local merchants.
Over the previous 6 months, however, BL’s behavior had become progressively more intolerable. She had always talked to herself, but recently she had begun shouting and screaming at anyone who approached her. Her use of profanity was graphic, and it was rumored that she urinated in front of local stores. Although she never physically assaulted anyone, her menacing behavior frightened many pedestrians, customers, and shopkeepers. Local law enforcement officials occasionally detained her for short periods, but she always returned to her familiar haunts. Finally, her sister and several merchants requested that the city take action to commit her to a mental institution.
Action is required when people who are severely disturbed behave in a manner that poses a threat to themselves or others. The government has parens patriae (“father of the country” or “power of the state”) authority, which is the power to commit disturbed individuals for their own best interest.
Civil commitment
is the name of this action; it is the involuntary confinement of individuals judged to be a danger to themselves or others, even though they have not committed a crime. Thus, the commitment of a person in acute distress is purportedly a form of protective confinement and demonstration of concern for the psychological and physical well-being of that person or others. Civil commitment often involves situations such as potential suicide, threatened violence, destruction of property, or a loss of impulse control. Factors relevant to civil commitment are outlined in
Figure 16.2
.
Figure 16.2Factors in the Civil Commitment of a Nonconsenting Person
© Cengage Learning®
Did You Know?
Each state has its own statute that defines civil incompetency or incapacity. Thus, practicing mental health professionals must know how the states in which they practice define these concepts.
Source: Demakis, 2013
It is best when civil commitment can be avoided because it has many potentially negative consequences. It may cause major interruption in the person’s life, loss of self-esteem, and dependency on others. A possible loss or restriction of civil liberties is another consequence—a point that becomes even more glaring if the person has actually committed no crime. In the case study, for example, BL had committed no criminal offense, although she had violated many social norms. But under what circumstances should someone be confined to a mental hospital?
States vary in the criteria used to commit a person, but there are certain general standards. It is not enough that a person is mentally ill; one or more of these additional conditions must exist before involuntary hospitalization is considered (Corey, Callanan, & Corey, 2010).
·
Individuals present a clear and imminent danger to themselves or others. An example is someone who is displaying suicidal or unsafe behavior (such as walking out on a busy freeway) that places the individual in immediate danger. Threats to harm someone else or behavior viewed as assaultive or destructive are also grounds for commitment.
· Individuals are unable to care for themselves or do not have the social network to provide for such care. Most civil commitments are based primarily on this criterion. The details vary, but states generally specify an inability to provide sufficient food (the person is malnourished, food is unavailable, and the person has no feasible plan to obtain it), clothing (attire is not appropriate for the climate, and the person has no plans for obtaining other attire), or shelter (the person has no permanent residence, insufficient protection from climatic conditions, and no logical plans for obtaining adequate housing).
· Individuals are unable to make responsible decisions about appropriate treatments and hospitalization. This involves an inability to follow through with needed treatment. As a result, the person’s well-being is jeopardized and there is a strong chance of further deterioration in functioning.
· Individuals are in an unmanageable state of fright or panic. Such people may behave impulsively or feel that they are on the brink of losing control of their behavior.
When to Intervene?
Aaron Alexis, seen here in a surveillance photo, experienced deteriorating mental health in the months preceding the tragic Navy Yard shootings. On one occasion, he called police to report that three people were following him and talking to him through the walls, ceiling, and floors of his hotel room. However, the police did not intervene because there was no evidence that Alexis was a danger to himself or others.
AP Images
/FBI
In the past, commitments could be obtained solely on the basis of mental illness and a person’s need for treatment, which was often determined arbitrarily. Increasingly, the courts have narrowed the focus of civil commitment procedures and now concentrate primarily on whether people present a danger to themselves or others. How is this potential danger determined? Many people would not consider BL a danger to herself or others. Some, however, might believe that she could become assaultive to others or injurious to herself. Are trained mental health professionals able to accurately make such predictions? Let’s turn to that question.
Assessing Dangerousness
Mental health professionals have difficulty predicting whether someone, even a person they know well such as a client, will commit dangerous acts. The fact that civil commitments are often based on a determination of
dangerousness
—the person’s potential for doing harm to the self or others—makes use of this criterion problematic, particularly when the evaluation is based on a single interview by a mental health professional. The difficulty in predicting potential dangerousness involves four key factors:
1. The rarer something is, the more difficult it is to predict. As a group, people with mental illness are not dangerous. Although some evidence suggests that individuals with severe psychotic disorders may have slightly higher rates of violent behavior, the risk is not considered a major concern (Elbogen & Johnson, 2009).
2. Violence is as much a function of the context in which it occurs as of the person’s characteristics. Although it is theoretically possible for a psychologist to accurately assess an individual’s personality, we have little idea about the situations in which people find themselves. A meek and mild person, for example, may display uncontrollable rage when confronted with the tragic death of a loved one.
3. The best predictor of dangerousness is often past criminal conduct or a history of violence or aggression. Such a record, however, may be ruled irrelevant or inadmissible by mental health commissions and the courts.
4.
The definition of dangerousness is itself unclear. Most of us would agree that murder, rape, torture, and physical assaults are dangerous. But are we confining our definition to physical harm only? What about psychological abuse or destruction of property?
Critical Thinking
Predicting Dangerousness and Profiling Serial Killers and Mass Murderers
Seung-Hui Cho (the Virginia Tech shooter), Jeffrey Dahmer (killer of 17 men and boys), and Eric Harris and Dylan Klebold (the Columbine High School killers) were all either serial killers or mass murderers. Were there signs that these individuals were potentially dangerous? Jeffrey Dahmer tortured animals as a small boy and was arrested in 1988 for molesting a child. There is evidence to suggest that Cho was a deeply disturbed young man who harbored great resentment and anger. Harris and Klebold created a Web site that seemed to foretell their proclivity toward violence. In all three situations, potentially dangerous thoughts and behaviors appeared to be ignored.
Lest we be too harsh on psychologists and law enforcement officials, it is important to realize that few serial killers or mass murderers willingly share their deviant sexual or violent fantasies. Furthermore, it is difficult to predict and intervene due to:
1. the lack of one-to-one correspondence between danger signs and possible violence,
2. an increasing awareness that violent behavior often results from many variables, and
3. the recognition that incarceration—either criminal or civil—cannot occur on the basis of potential danger alone.
Nevertheless, tragic experiences with mass murderers and serial killers have led mental health practitioners and law enforcement officials to create profiles to help predict dangerous acts. Let’s consider the profile developed to help identify serial killers.
Profile of Serial Killers
Although there is much conjecture in the public regarding serial killers, much of it is inaccurate. The Behavioral Analysis Unit of the FBI published a document about serial killers and shared the following conclusions (FBI, 2008):
· Most serial killers are not social misfits or noticeably strange. Robert Yates, who killed 17 women in the Spokane, Washington, area, was married with five children and was a decorated National Guard helicopter pilot. Dennis Rader, who killed 10 people around Wichita, Kansas, was married with two children, a Boy Scout leader, a public official, and president of his church.
· Although it is popularly believed that serial killers are primarily white men, their racial distribution corresponds to that found in the U.S. population.
· Motivation for killings may include sexual fantasies, anger, thrill, financial gain, or attention.
· Serial killers are rarely insane, although they often have personality disorders, including antisocial personality disorder. Their intelligence ranges from below to above average.
· There is no single factor that causes someone to become a serial killer; it appears that biological, social, and psychological factors combine in unique ways to produce homicidal behaviors.
· Neglect and abuse in childhood, substance abuse, eroticizing violence, and personality disorders are common in serial killers.
The American Psychological Association also supports the conclusion that it is difficult to profile serial killers or mass murderers. With respect to perpetrators of mass shootings, it concludes: “In making predictions about the risk for mass shootings, there is no consistent psychological profile or set of warning signs that can be used reliably to identify such individuals in the general population.” (Cornell & Guerra, 2013).
1. Why are profiles of mass murders or serial killers often inaccurate?
2. How can we learn more about these individuals?
3. Is there a risk that inaccurate profiles may harm criminal investigations?
16-2bProcedures in Civil Commitment
Once someone believes that a person is a threat to himself or herself or to others, civil commitment procedures may be initiated. The rationale for requests for civil commitment is that involuntary confinement will (a) prevent harm to the person or to others, (b) provide appropriate treatment and care, and (c) ensure due process of law (that is, a legal hearing). In many cases, people deemed in need of protective confinement agree to voluntary commitment to a period of hospitalization. This process is fairly straightforward, and many believe that it is the preferred avenue for ensuring a positive treatment outcome. Involuntary commitment proceedings occur only when the person does not consent to hospitalization.
A Tragic Case of Failure to Predict Dangerousness
Convicted serial killer Jeffrey Dahmer killed at least 17 men and boys over a period of many years. Besides torturing many of his victims, Dahmer admitted to dismembering and devouring their bodies. Although previously convicted of sexual molestation, no one predicted that he was capable of murder. Unsuccessful in his attempt to use the insanity plea, Dahmer was found guilty in 1994 and imprisoned. Another inmate subsequently killed him.
Reuters/Corbis
Involuntary commitment can be a temporary emergency action or may involve a longer period of detention that is determined at a formal hearing. Although states vary in their processes and standards, all recognize that cases arise in which a person is so severely disturbed that immediate detention is required (Demakis, 2013).
Formal civil commitment usually follows a similar process, regardless of the state in which it occurs. First, a concerned person, such as a family member, therapist, or family physician, petitions the court for an examination of the person. If the judge believes there is reasonable cause for this action, he or she orders a mental health evaluation. Second, the judge appoints two professionals with no connection to each other to examine the person. In most cases, the examiners are physicians or mental health professionals. Third, a formal hearing is held in which the examiners testify to the person’s mental state and any potential dangers. Others, such as family members, friends, or therapists, may also testify. The person is allowed to speak on his or her own behalf and is represented by counsel. Fourth, if it is determined that the person must enter treatment, a finite period may be specified; periods of 6 months to 1 year are common. Some states, however, allow indefinite commitment subject to periodic review and assessment.
Protection against Involuntary Commitment
Due process procedures are important to ensure that involuntary commitment does not violate a person’s civil rights. Some have even argued that criminals are accorded more rights than people who are mentally ill. For example, people accused of a crime are considered innocent until proven guilty in a court of law. Usually, they have the opportunity to post bail and are incarcerated only after a jury trial, and only if a crime has been committed (not if there is only a possibility or even high probability of criminal actions). Yet people who are mentally ill may be confined without a jury trial and without having committed a crime; commitment can occur based on a judgment that they might do harm to themselves or others.
In other words, the criminal justice system will not incarcerate people because they might harm someone (they must already have done it), but civil commitment is based on possible future harm. It can be argued that in the former case, confinement is punishment, whereas in the latter case it is treatment (for the individual’s benefit). Some professionals claim that people who are mentally ill are incapable of determining their own treatment needs, and that, once treated, they will be grateful for the treatment they received. If people resist hospitalization, they are purportedly irrational, which is deemed a symptom of their mental disorder.
Did You Know?
On April 16, 2007, Seung-Hui Cho used two semiautomatic handguns to kill 27 Virginia Tech students and 5 faculty members before committing suicide with a shot to his head. There was evidence that Cho was potentially dangerous: (a) he was involved in three stalking incidents on the campus; (b) professors said he was menacing and his writings were often intimidating, obscene, and violent; and (c) a mental health professional believed he was a danger to others. However, Cho was not committed and was legally able to obtain the semiautomatic pistols he used in the massacre.
Critics do not accept this reasoning. They point out that civil commitment is for the benefit of those initiating commitment procedures (society) and not for the individual. These concerns have prompted and heightened sensitivity toward patient welfare and rights, resulting in a trend toward restricting the powers of the state over the individual.
Checkpoint Review
1. Explain the difference between criminal commitment and civil commitment.
2. What criteria and procedures are used by the court to commit a person?
3. Why is it so difficult to assess dangerousness?
16-3Rights of Mental Patients
Many people in the United States are concerned about the balance of power between the state, our mental institutions, and our citizens. The U.S. Constitution guarantees certain rights such as trial by jury, legal representation, and protection against self-incrimination. The mental health profession has great power, which may be used wittingly or unwittingly to abridge individual freedom. In recent decades, some courts have ruled that commitment for any purpose constitutes a major deprivation of liberty that requires due process protection.
Did You Know?
The legal system uses three different standards of proof: Beyond a reasonable doubt (highest level of certainty) for criminal trials; clear and convincing evidence (evidence is more likely to be true than untrue) for civil commitments; and preponderance of the evidence (likelihood that the proof is true is over 50 percent) for civil actions. For mental health purposes, the standard of the burden of proof falls in between the two extremes.
Until 1979, the level of proof required for civil commitments varied from state to state. In a case that set a legal precedent, a Texas man claimed that he was denied due process because the jury that committed him was instructed to use a lower standard than “beyond a reasonable doubt” (a high degree of certainty). The appellate court agreed with the man, but when the case finally reached the Supreme Court in April 1979 (Addington v. Texas), the Court ruled that the state must provide only “clear and convincing evidence” (a medium degree of certainty) that a person is mentally ill and potentially dangerous before that person can be committed.
In 1975 a U.S. district court issued a landmark decision in the case of Dixon v. Weinberger. The ruling established the right of individuals to be treated in the
least restrictive environment
possible. This means that people have a right to the least restrictive alternative to freedom that is appropriate to their condition. Only individuals who cannot adequately care for themselves are committed to hospitals. Those who can function acceptably should be given alternative choices, such as halfway houses and other shelters.
One of the primary justifications for commitment is that treatment improves a person’s mental condition and increases the likelihood that he or she will be able to return to the community. Is it not deprivation of due process if we confine a person involuntarily and do not provide therapy—the means for release from the institutional setting? Several cases have raised this problem as a constitutional issue. Together, they have determined that mental patients who have been involuntarily committed have a
right to treatment
—a right to receive therapy that would improve their condition.
In 1966, in a lawsuit brought against St. Elizabeth’s Hospital in Washington, DC (Rouse v. Cameron), the DC Circuit Court held that (a) the right to treatment is a constitutional right, and (b) failure to provide treatment cannot be justified by lack of resources. In the Alabama federal case of Wyatt v. Stickney (1972), Judge Frank Johnson specified standards of adequate treatment, such as staff–patient ratios, therapeutic environmental conditions, and professional consensus about appropriate treatment.
The court also made it clear that mental patients cannot be forced to work or to engage in work-related activities aimed at maintaining the institution in which they lived. Thus the previously common practice of having patients scrub floors, wash laundry, and cook or serve food was declared unconstitutional. Moreover, patients who volunteer to perform tasks must be paid at least the minimum wage instead of merely receiving token allowances or special privileges. This landmark decision ensured treatment beyond custodial care and protection against neglect and abuse.
Controversy
Basic to a therapeutic relationship is the belief that whatever a client discloses is kept private. However, confidentiality and privilege is not absolute. Exemptions are defined by law and include abuse or neglect of minors or “vulnerable” adults (Fisher, 2009). The Tarasoff ruling also makes it clear that when clients disclose a potential to harm identifiable third parties, therapists have a legal obligation to take actions to ward off the danger. The duty-to-warn principle applies to future threats of harm. But what are the legal obligations of therapists who hear from clients that they have committed a past crime? What if clients disclose they have assaulted, raped, or even killed someone?
These questions deal with not only legal issues, but moral and ethical concerns as well. Unfortunately, the law is not clear on this matter. The prevailing consensus is that mental health professionals are not legally required to breach confidentiality when clients inform them that they have committed past crimes (Handelsman et al., 2001).
But how often do therapists hear confessions from their clients about past criminal conduct? The answer is that such confessions do occur. In one survey, many therapists reported occasions when clients mentioned that they had committed violent crimes and were never caught (Walfish, Barnett, Marlyere, & Zielke, 2010). Out of a sample of 162 doctoral-level psychologists, the percentage of therapists who had heard about various past crimes included the following:
· Murder: 13 percent
· Sexual assaults/rape: 33 percent
· Physical assaults: 69 percent
In therapy, clients are likely to reveal very intimate secrets about their past feelings, thoughts, and actions. Thus, therapists need to be prepared to respond in an appropriate manner, carefully weighing any legal, moral, and therapeutic issues associated with the situation.
For Further Consideration
1. Do you believe that therapists should be required to report a past crime such as murder?
2. Can the Tarasoff ruling be interpreted to allow therapists latitude in reporting past crimes? How?
3. If you were the therapist and heard a murder confession, how do you think it would affect you and the therapeutic relationship?
Another important case (tried in a U.S. District Court in Florida and affirmed by the U.S. Supreme Court that same year), O’Connor v. Donaldson (1975), also had a major impact on the right to treatment issue. It involved Kenneth Donaldson, who at age 49 was committed for a period of 20 years to the Florida State Hospital in Chattahoochee on petition by his father. He was found to be mentally ill, unable to care for himself, easily manipulated, and dangerous. Throughout his confinement, Donaldson petitioned for release, but Dr. O’Connor, the hospital superintendent, determined that Donaldson was “too mentally ill.” Finally, Donaldson threatened a lawsuit and was reluctantly discharged by the hospital after 14 years of confinement. He then sued both O’Connor and the hospital, winning an award of $20,000. The monetary award is insignificant compared with the significance of the ruling. Again, the U.S. Supreme Court reaffirmed a patient’s right to treatment. It ruled that Donaldson did not receive appropriate treatment and said that the state cannot constitutionally confine nondangerous citizens who are capable of caring for themselves outside of an institution or who have friends or family willing to help them. Further, the court ruled that physicians, as well as institutions, are liable for improper confinements.
16-3bRight to Refuse Treatment
Proponents of the right to refuse treatment argue that many forms of treatment, such as medication or electroconvulsive therapy, may have long-term side effects, as discussed in previous chapters. They also point out that involuntary treatment is generally much less effective than treatment that is accepted voluntarily. People forced into treatment seem to resist it, thereby nullifying the potentially beneficial effects.
Did You Know?
In United States v. Comstock (2010), the U.S. Supreme Court ruled that certain sex offenders can be civilly committed and indefinitely confined even after finishing their federal prison sentence. This ruling allows the federal government under the “necessary and proper clause” of the U.S. Constitution to detain prisoners who have engaged in sexually violent conduct and are at risk of reoffending. Some believe the ruling has dangerous implications for civil liberties.
Source: Liptak, 2010
The issue of the right to refuse treatment has been addressed by the courts. The case of Rennie v. Klein (1978) involved several state hospitals in New Jersey that had a policy of forcibly medicating patients in nonemergency situations. The court ruled that people have a constitutional right to refuse treatment (psychotropic medication) and to have an opportunity for a due process hearing if professionals believe forced treatment is essential to a patient’s well-being.
Courts have usually supported the right to refuse treatment, under certain conditions, and have extended the principle of the least restrictive alternative doctrine to include the least intrusive forms of treatment. Generally, psychotherapy is considered less intrusive than somatic or physical therapies (e.g., electroconvulsive therapy and medication). Although this compromise may appear reasonable, other problems present themselves. First, how do we define intrusive treatment? Second, if patients are allowed to refuse certain forms of treatment and if the hospital does not have alternatives for them, can they sue the institution? These questions remain unanswered.
The right to refuse treatment occasionally poses ironies. For example, a U.S. Supreme Court ruling (Ford v. Wainwright, 1986) concluded that the government cannot execute someone who is incompetent. Why would someone agree to take medication only to be executed? Some courts have ordered prisoners to take medication based on the assumption that doing so will improve their mental condition. In June 2003, however, the U.S. Supreme Court (Sell v. United States) placed strict limits on the ability of the government to forcibly medicate defendants who are mentally ill to make them competent to stand trial. Such actions must, according to the court ruling, be in the “best interest of the defendant.”
In restoring competency, alternative reasons for treatment should be considered such as reducing danger to the self or others. If these do not exist the government can seek involuntary treatment only under “limited circumstances.” That is, the treatment must be medically appropriate, have no competency-impairing side effects, and be the least intrusive means available. In most cases, defendants who are found incompetent to stand trial appear to willingly accept treatments (Landis, 2012). In one study, over three quarters of those with severe mental illnesses who were found to be incompetent to stand trial were restored to competency after being involuntarily medicated (Herbel & Stelmach, 2007).
16-3cDeinstitutionalization
Governmental trends such as the move toward deinstitutionalization can also influence access to treatment, especially for those with severe mental illness.
Deinstitutionalization
involved the shifting of responsibility for the care of those who are severely mentally ill from large central institutions to agencies within local communities. When originally formulated in the 1960s and 1970s, the concept excited many mental health professionals. Since its inception, the mental hospital population of patients has dropped 75 percent, the number of state-run mental hospitals has declined dramatically, and there has been a 75 percent decrease in the average daily number of committed patients (J. L. Geller, 2006; Lamb & Weinberger, 2005). The impetus behind deinstitutionalization came from several quarters.
First, there was (and still is) a feeling that large hospitals mainly provide custodial care, that they produce little benefit, and that they may even impede improvement. The longer people are hospitalized, the more likely they are to remain hospitalized or to be readmitted once released. Second, beginning in the 1970s, the issue of patient rights began to receive increased attention. Mental health professionals became very concerned about keeping people confined against their will and began to discharge patients soon after their mental competency improved. In addition, advances in psychopharmacology made it more likely that improvement would continue once patients were discharged. Third, state hospitals were often overcrowded and inadequately staffed due to insufficient funding. Given these overcrowded conditions, mental health administrators viewed the deinstitutionalization movement favorably and supported the rapid release of patients back into communities.
What has been the impact of deinstitutionalization on people with mental illness? Critics believe that deinstitutionalization policies have allowed states to relinquish their responsibility to care for people who are unable to care for themselves. There are alarming indications that deinstitutionalization has been responsible for placing or “dumping” on the streets many former patients who should have remained hospitalized (Rosenberg & Rosenberg, 2006). Critics believe that people such as the “bag lady” (BL) discussed earlier highlight the human cost and tragedy of deinstitutionalization policies. Unfortunately, it is likely that the plight of the severely mentally ill will continue to worsen due to economic pressures facing local governments. For example, between 2009 and 2012, states cut $4.35 billion of public mental health funding from their budgets (Pan, 2013).
The personal toll of inadequate mental health services is immense, as can be seen in the following case.
Case Study
Walter is a 54-year-old DC resident with schizophrenia . . . Living on the streets with a mental disorder can often be a hellish experience. Walter describes days filled with long walks and prayer . . . “I prayed a lot. I didn’t really know what I was going through. I wasn’t eating properly. All I know is that prayer kept me going.” He usually avoided homeless shelters, apprehensive of the type of people that frequented them. Those fears were justified. Around Walter’s 45th birthday, a group of men at a shelter he went to sneaked in alcohol, got drunk, and beat Walter so badly that they broke his jaw (Mukherjee, 2013).
It is becoming apparent that many people with severe mental illness are not receiving treatment. Stories such as Walter’s are all too common in communities throughout the United States. Many live on the streets under harsh conditions where they are prone to violent victimization. Others live in nursing homes, board-and-care homes, or group residences. The quality of care in many of these places is marginal, resulting in deterioration in functioning or periodic hospitalization.
The Downside of Deinstitutionalization
Many believe that deinstitutionalization contributed to the epidemic of homelessness, especially in cities. However, it is not clear what proportion of people who are now homeless had previously resided in mental institutions.
Gideon Mendel/Encyclopedia/Corbis
It is difficult to estimate how many discharged mental patients joined the ranks of the homeless. We do know that homelessness in the United States, especially in large urban areas, is increasing at an alarming pace. Certainly, it is not difficult to see the number of people who live in transport terminals, parks, flophouses, homeless shelters, cars, and storefronts. It is hard to determine exactly how many of these people are in need of mental health services. However, it is estimated that 30 to 70 percent of the U.S. adults who are homeless have a mental disorder (Hoffman, 2013).
We know that homelessness is associated with poor psychological adjustment and higher arrests and conviction records. The number of individuals who are mentally ill among inmates incarcerated in local, state, and federal prisons more than quadrupled from 1998 to 2006 and has increased operational costs by an additional 50 percent in some county jails. Ironically, spending $2,000 to $3,000 annually to treat individuals who are mentally ill could result in savings of $50,000 for each mentally ill person who is unnecessarily incarcerated (Pan, 2013).
Checkpoint Review
1. Why should we be concerned about the rights of mental patients?
2. Compare and contrast the right to treatment and right to refuse treatment.
3. Identify the positive and negative aspects of deinstitutionalization.
16-4Ethical Guidelines for Mental Health Professionals
Each mental health profession is guided not only by legal rulings, but also by an enforceable code of ethics for its members. For psychologists, the ethical code covers issues such as professional competence, human relations, privacy and confidentiality, advertising, record keeping and fees, required education and training, research, assessment, and therapy. All psychologists are expected to be aware of these guidelines. Being unaware of or misinterpreting these codes is not a defense against a charge of unethical conduct (American Psychological Association, 2010a). We will review legal and ethical issues pertaining to the therapist–client relationship.
16-4aThe Therapist–Client Relationship
Case Study
A psychiatrist was working with a client named Mary, who had five personalities. He was especially concerned with “Sam,” who sometimes demonstrated extreme violence—forcefully throwing chairs and other objects and making threats to injure staff members. Given the potential violence of this aggressive personality, the psychiatrist made certain that restraints were available. During one session, Sam made a threat toward a specific individual—the owner of a grocery store where the client lived. He stated, “I’ll kill that guy. You know I will. I’ve already made a plan and bought a gun. I’m going to shoot him tonight when he gets off work” (Norko, 2008, p. 144).
Later, the psychiatric resident sitting in on the case asked the psychiatrist if they should inform the police about Sam’s threat. The psychiatrist expressed reluctance, believing such a move would undo the work that they accomplished in therapy. Was the psychiatrist right in his decision? Was he not obligated to protect the possible victim?
The therapist–client relationship involves a number of legal, moral, and ethical issues. We will discuss how they affect cases such as this complex case of dissociative identity disorder. Three primary concerns are issues of confidentiality and privileged communication, the therapist’s duty to warn others of a risk posed by a client, and the therapist’s obligation to avoid sexual intimacies with clients.
Confidentiality and Privileged Communication
Basic to the therapist–patient relationship is the premise that therapy involves a deeply personal association in which clients have a right to expect that what they say is kept private. Therapists believe that therapy cannot be effective unless clients trust their therapists and are certain that what they share is confidential. Without this guarantee, clients may not be completely open with their thoughts and may subsequently obtain less benefit from therapy.
Confidentiality
is an ethical standard that protects clients from disclosure of information without their consent. Confidentiality, however, is an ethical, not a legal, obligation.
Privileged communication
, a narrower legal concept, protects privacy and prevents the disclosure of confidential communications without a client’s permission (Corey, Callanan, et al., 2010).
Our society recognizes how important certain confidential relationships are and protects them by law. These relationships are spousal, attorney–client, pastor– congregant, and therapist–client relationships. Psychiatric practices are regulated in all 50 states and the District of Columbia, and most of those jurisdictions have privileged-communication statutes. The Health Information Portability and Accountability Act (HIPAA) further enhanced privacy protections for individuals who seek mental health evaluation or treatment, including protection of therapist records such as notes taken during therapy. An important aspect of the privacy concept is that the holder of the privilege is the client, not the therapist. In other words, if a client waives this privilege, the therapist has no grounds for withholding information.
Although states vary considerably, they all recognize certain situations in which communications can be divulged. Corey and associates (Corey, Callahan, et al., 2010) summarized these conditions:
· In situations that deal with civil or criminal commitment or competency to stand trial, the client has the right to request that privileged information be shared.
· Disclosure can also be made when a client who has been in therapy introduces his or her mental condition as a claim or defense in a civil action.
· When the client is younger than 16 or is a dependent elderly person and information leads the therapist to believe that the individual has been a victim of a crime (e.g., incest, rape, or abuse), the therapist must provide such information to the appropriate protective services agency.
·
When the therapist has reason to believe that a client presents a danger to himself or herself (such as high risk of suicide) or may potentially harm someone else, the therapist must act to ward off the danger.
As you can see, exemptions from privilege involve a variety of complex situations and decisions. Let’s examine one of the important exceptions—the duty to warn.
The Duty to Warn
Case Study
In 1968, Prosenjit Poddar—a graduate student from India studying at the University of California, Berkeley—sought therapy from the student health services for depression. Poddar was apparently upset over what he perceived to be a rebuff from another student, Tatiana Tarasoff, whom he claimed to love. During the course of treatment, Poddar informed his therapist that he intended to purchase a gun and kill Tarasoff. Judging Poddar to be dangerous, the psychologist breached the confidentiality of the professional relationship by informing the campus police. The police detained Poddar briefly but freed him because he agreed to stay away from Tarasoff. On October 27, 1969, Poddar went to Tarasoff’s home and killed her, first wounding her with a gun and then stabbing her repeatedly with a knife.
In the subsequent lawsuit filed by Tarasoff’s family, the California Supreme Court made a landmark ruling in 1976 that established what is popularly known as the duty to warn—the court ruled that the therapist should have warned not only the police but the intended victim as well.
Did You Know?
Prosenjit Poddar served 4 years of a 5-year sentence for manslaughter and was then released on a technicality involving problematic jury instructions regarding diminished capacity. To prevent a retrial, he agreed to leave the United States. He currently lives in India.
Source: Vitelli, 2007
The therapist notified his supervisor, the director of the psychiatric clinic, about Poddar’s comments because he was extremely concerned that Prosenjit Poddar was dangerous and likely to carry out his threat to harm Tatiana Tarasoff. He also informed the campus police, hoping that they would detain Poddar. Surely the therapist had done all that could be reasonably expected. Not so, ruled the California Supreme Court (Tarasoff v. the Board of Regents of the University of California, 1976).
In the
Tarasoff ruling
, the court stated that when a therapist determines, according to the standards of the mental health profession, that a client presents a serious danger to another, the therapist is obligated to warn the intended victim. In general, courts have ruled that therapists have a responsibility to protect the public from dangerous acts of violent clients, and have held therapists accountable for (a) failing to predict dangerousness, (b) failing to warn potential victims, (c) failing to initiate commitment proceedings for dangerous individuals, and (d) prematurely discharging dangerous patients from a hospital.
Because of the James Holmes theater shooting in Aurora, Colorado, the governor of Colorado signed House Bill 14-1271 on April 7, 2014, a bill that extends the duty to warn to include not only specifically identified individual targets, but also threats to entities such as buildings or specific locations (parks, etc.) where people might be endangered. Under this law, Colorado mental health professionals must notify the people responsible for the locations or entities, as well as law enforcement, or take other steps such as initiating commitment proceedings. Most but not all states have statutes consistent with the Tarasoff ruling, but as you can see, state differences do exist (see
Figure 16.3
).
Figure 16.3Duty to Warn
Most states either require or permit mental health professionals to disclose information about clients who may become violent. In some states, the duty to warn about possible danger is mandatory.
© Cengage Learning®
The Tarasoff ruling seems to place the therapist in the unenviable role of being a double agent. Therapists have an ethical and legal obligation to their clients, but they also have legal obligations to society. These dual obligations sometimes not only conflict with one another, but they can also be quite ambiguous. State courts are frequently forced to clarify the implications and uncertainties of the duty to warn.
When the Tarasoff ruling came out, M. Siegel (1979) loudly criticized it, stating that the outcome was a hollow victory for individual parties and was devastating for the mental health professions. He reasoned that if confidentiality had been an absolute policy applied to all situations, then Poddar might have continued his treatment, thus ultimately saving Tarasoff’s life. In other words, he wonders if the requirement to notify the authorities led to an escalation of events that resulted in Tatiana Tarasoff’s death. Other mental health professionals have echoed this sentiment in one form or another (Werth et al., 2009). Hostile clients with pent-up emotions may be less likely to act out or become violent if allowed to vent their feelings. The irony, according to critics, is that the duty to warn may actually be counterproductive to its intent to protect potential victims.
A Duty to Warn
Tatiana Tarasoff, a college student, was stabbed to death in 1969 by Prosenjit Poddar, a graduate student at the University of California, Berkeley. Although Poddar’s therapist notified the police about threats made by Poddar, the California Supreme Court ruled that the therapist should have also warned Tarasoff.
AP Images
Sexual Relationships with Clients
According to the ethical code for psychologists, sexual intimacies are prohibited with current clients, the relatives or partners of current clients, or former clients for a minimum of 2 years after termination of therapy. Even after 2 years, sexual intimacy with a former client would not be acceptable “except in the most unusual circumstances” (American Psychological Association, 2010a). Unfortunately, such contact does occur—the most common civil complaint related to psychotherapy involves sexual intimacies between a therapist and a current or former client (Corey et al., 2010).
Traditionally, mental health practitioners have emphasized the importance of separating and creating boundaries between their personal and professional lives. This separation is emphasized because therapists need to be objective and because becoming emotionally involved with a client may interfere with therapy. A therapist who is personally involved with a client may be less confrontational, may fulfill his or her own needs at the expense of the client’s, and may unintentionally exploit the client because of his or her position (Corey & Corey, 2010). Although some people question the premise that a social or personal relationship interferes with therapy, professional codes make it clear that personal relations, especially sexual intimacy, are inappropriate. Fortunately, the vast majority of psychologists behave in a professional manner.
Training in Ethics
Students learning to be therapists often participate in ethical training in preparation for their work with clients. Here students discuss ethical dilemmas during a training activity.
JLP/Jose L. Pelaez/Crave/Corbis
Did You Know?
On June 15, 2013, Ethan Couch lost control of his pickup and rammed into two vehicles, killing four people and injuring four others. Couch had three times the legal limit of alcohol in his system. A psychologist hired by the defense testified that Couch had “affluenza” and that he was irresponsible because his family set no boundaries and gave him everything he wanted. The judge, surprisingly, accepted the psychologist’s argument and placed Couch on probation with treatment rather than the jail term sought by the prosecution. Is it ethical for a psychologist to use an unrecognized syndrome (such as “affluenza”) as a mitigating factor?
Source: Hashimoto, 2014
Checkpoint Review
1. Distinguish between confidentiality and privileged communication.
2. Under what conditions can therapists breach confidentiality?
3. What is the Tarasoff decision?
Focus on Resilience
Using Positive Psychology to Build Soldier Resilience: An Ethical Dilemma?
Throughout this text, we have extolled the virtues of positive psychology and a strength-based approach to viewing the human condition. Positive psychology has made many contributions to our understanding of resilience and the protective factors that may help safeguard against mental disorders. But can the basic tenets and principles of positive psychology be misused and misapplied? If so, would that not raise moral and ethical questions?
Such is the case with an intervention that created a major controversy within the psychological community—the Comprehensive Soldier Fitness (CSF) program being implemented by the U.S. Army (G. W. Casey, 2011; Cornum, Matthews, & Seligman, 2011). Using research findings and principles derived from positive psychology, the U.S. Army embarked on an effort to increase the psychological strength and positive performance of soldiers and to reduce any maladaptive responses to military trauma and demands. The goal is to increase soldiers’ resilience as they face threat of injury or death, sleep deprivation, separation from family and friends, extreme climates, and the trauma of taking the lives of enemy combatants.
S-F/Shutterstock.com
The CSF training develops psychological resilience in soldiers using an evidence-based approach that strengthens emotional, social, family, and spiritual fitness to ward off the stresses of military life and combat. Just as physical training focuses on physical preparedness for military combat, CSF increases the mental fitness of soldiers by strengthening their psychological assets and preparing them to participate in high-risk actions such as going on patrols, killing or injuring their enemies, and interrogating captives (Cornum et al., 2011). Preliminary evidence suggests that the CSF program is effective (Algoe & Fredrickson, 2011; Cacioppo, Reis, & Zautra, 2011; Tedeschi & McNally, 2011), although questions have been raised regarding the adequacy of the research design in these studies (Eidelson & Soldz, 2012; Sagalyn, 2012).
On the surface, the CSF program appears to have very worthy goals—providing the best care possible for those who serve in the military. Yet a number of psychologists have raised serious moral and ethical objections to the use of positive psychology in the CSF program. They assert that the basic premise of the program is flawed and misguided (Eidelson, Pilisuk, & Soldz, 2011; J. Krueger, 2011; Phipps, 2011). Among their objections are the following:
· The use of positive psychology in the military operates under the assumption that war is unavoidable and that, as a result, it is the patriotic duty of psychologists to help the military make our men and women more resilient in combat. Critics vehemently question this assumption, and instead advocate the use of positive psychology principles to reduce conflict between nations, to prevent war, and to promote peace.
· War is horrific and exposes combatants to gruesome sights and situations. Reactions of distress or repugnance are natural, healthy, and humane responses. To train soldiers to experience less distress when encountering or perpetuating death, destruction, and inhumane acts is a frightening prospect. To teach soldiers, for example, to feel better about killing is morally and ethically questionable.
· Psychologists who use positive psychology to help the military are deceiving themselves. The CSF client is the Army and not the individual soldier. The Army demands discipline, efficiency, and obedience, and attempts to standardize behavior. It is naive to think that the CSF program would put soldiers’ psychological needs ahead of the goals of the Army.
Is it appropriate for psychologists to lend their considerable expertise in human behavior for military purposes if the outcome involves objectionable goals? We must remember that psychological science can be used for any number of purposes, both good and bad.
