MENTAL HEALTH LAW
Mental Health Law is a very broad field so this post will be limited to the basics:
SOURCES OF PSYCHIATRIC LIABILITY
The chief sources of psychiatric liability are:
1. Sex With Patient
2. Wrongful Discharge
3. Suicide of Patient
4. Medication
5. Failure to Warn of Dangerous Patient.
6. Misdiagnosis
6. Misdiagnosis
Sex With Patient
A patient who is vulnerable, revealing her innermost feelings, and emotionally dependent on her therapist.is easy prey for a psychotherapist who is tempted to take physical advantage of her.
For some time, sex with patients was even offered as a form of therapy that would be beneficial in promoting psychological healing. A cynic might suspect that this treatment plan was offered only to physically attractive patients, and one need not be a cynic to believe that the lady was still billed for these sessions.
Sex with patients can lead to serious problems for a psychiatrist. Besides the obvious risk that an enraged husband, father or brother may burst in and beat the crap out of the psychiatrist...and demand a refund...a psychiatrist having sex with his patients opens himself to malpractice suits and license discipline.
Because of their racy, and slimy, quality some of these cases fortunately make it into the press where they can provide us with actual examples of this misconduct.
Mr. Steven Kay sued his therapist, Dr. Rosenberg, because he and his wife had gone to him for couples counseling after Kay's wife began talking of divorce. When Mr. Kay became depressed and attempted suicide, it was Dr. Rosenberg who offered his hand at treating Mr. Kay's depression. It subsequently turned out that Dr. Rosenberg was offering more than his hand: he began having an affair with Mr. Kay's wife. For this 'couples counseling', Dr. Rosenberg charged only $87,000. Of course Mr. Kay sued Dr. Rosenberg for medical negligence and breach of the applicable standard of psychiatric care.
Dr. Daniel Lerom had repeated sexual encounters with his patient and billed Blue Cross, Blue shield for the sessions. Dr. Lerom specializes in marriage and relationship counseling.
Apparently Dr. Lerom sent text messages to his patient saying:
"My body felt great all over last night." and "I wish you were in the shower with me to warm me up." and "If I were there, I would rub you and kiss you all over."
One suspects that these treatment notes never made it into the patient's medical record or, for that matter, into the billing code to Blue Cross. What is the cpt code for ravishing your patient?
When Dr. Lerom's wife learned of these treatments, he discontinued this therapy and his patient suffered a mental collapse. Ultimately, she roused herself enough to sue Dr. Lerom.
A psychiatrist in Canada lost his license when it was learned that he had had sex with two patients and made inappropriate advances on a third woman. Found in his desk were condoms, lubricant and sexually explicit photos of an unidentified woman who was not one of the complainants.
The temptations are great and the penalties severe. Having sex with a patient is a great way to destroy your career, your reputation and your fortune.
Wrongful Discharge
Maybe they should have just stenciled 'ticking time bomb . . . run for cover' on his forehead. Staff knew he was dangerous but they turned him into the streets all the same. He pushed a young woman to her death in front of a subway train.
In Perreira v. State the court addressed whether the physician (and others) could be held liable for the death of a police officer who was murdered by a mentally ill person released from short-term involuntary commitment. The jury entered a verdict in favor of the police officer's wife and the Court of Appeals set aside the verdict. On appeal to the Colorado Supreme Court the ruling of the Court of Appeals was reversed and a duty of care when releasing potentially dangerous mental patients was set down.
In Bruscato v. O'brien is an interesting case. Mr. Bruscato murdered his parents and then sued his psychiatrist for negligent care. The trial court granted summary judgment in favor of the doctor, ending Mr. Bruscato's suit. The court of appeals re-instituted the claim and the supreme court confirmed the decision of the court of appeals. When Dr. O'Brien began treating his then 38-year-old patient, Bruscato had a long history of mental illness and violence. Among other things he had auditory hallucinations that commanded him to kill people or molest girls. He was released into the care of his elderly parents who were ill-equipped to manage him and Dr. O'Brien discontinued the medication that helped control his homicidal impulses. He crushed his mother's skull with a battery charger and stabbed her 72 times.
Here is a legal comment on negligent discharge of an involuntarily admitted patient.
Suicide of Patient
Survivors are angry when a family member commits suicide and if the deceased is receiving psychotherapy at the time there may be a desire to hold the therapist responsible. This article discusses a case in which a suit against a psychiatrist ended in the psychiatrist's favor on a motion for summary judgment. It also includes an interesting discussion on the standards of care and the degree of proof applied in these cases.
Medication
Psychiatrists are at risk for failing to adequately monitor a patient's intake in much the same way other physicians are. In this case a failure to recognize a patient's symptoms of lithium toxicity led to her death and a $1 million settlement, and here is a similar suit involving the death of an over-medicated child. Even psychiatrists risk discipline if their prescribe controlled substances for themselves or close family members. Doctors treating chronic pain risk being sued for causing a patient to become addicted to opiods (I know, it's not fair), but psychiatrists also face potential liability for creating dependency. Liability for failure to guard against unwanted side effects (or contraindications for other drugs the patient is taking) are, again, risks across the field of medicine. Psychiatrists may fact enhanced risks for stopping powerful medications as we saw in Bruscato case discussed above in which his patient smashed in his mother's skull after having his medication curtailed. The popular expression, "He's off his meds," gives a sense how much this risk has made its way into popular culture. Dr. Bruscato's patient was 'off his meds' when he murdered his mother. A possible avenue of liability almost unique to psychiatrists involves administering involuntary medication to a mentally ill patient. This is another area where you may be liable if you do and also liable if you don't, however it is too involved to address in detail here. Perhaps later.
Failure to Warn/Protect of Dangerous Patient
In Tarasoff, the California Supreme Court twice addressed the question whether a mental health therapist has a duty to violate patient confidentiality and privilege and take steps when his patient reveals a genuine intent to harm or kill another person. The Supreme Court affirmed that the duty exists and first said the therapist has a duty to warn the intended victim and then, on a subsequent review, the court said the therapist has to protect the intended victim. How a therapist might protect someone from a rabid patient is probably easier to conceive than to do, but a therapist does have at least one good arrow in his quiver: civil commitment. A person who is a danger to others can be committed against his will. Although the Tarasoff limited its use in the circumstances of the case. An excerpt from the case can be found at the bottom of the post on Privacy, Confidentiality etc.
This would not have been an easy question for the therapist to decide when first confronted with the problem. After all, the 'duty' was revealed by the court only after reviewing the civil case against him. So far as he knew, the patient's disclosures to him are both confidential and privileged. 'Privilege' means that that the information is so secure it normally cannot be obtained in discovery or other court proceedings. A clear reading of the statutes and the court cases up to the time of the Tarasoff decision would have told him he would be in peril of being sued by his patient and disciplined by his medical board if he dared reveal any patient confidence. Even the experienced superior court trial judge concluded that there was no legitimate cause of action and dismissed the original civil complaint that was subsequently restored by the supreme court.
Tarasoff has been adopted by courts and legislatures in other states. Significantly, the related statute of the State of Colorado reads:
This statute might be of interest in the case of, James Holmes, the maniac who stepped into a Colorado theater and began killing people. It turns out Holmes was seeing a psychiatrist before the massacre.
Subsequently, Chantel Blunk, the widow of one of the people murdered filed a civil suit against the psychiatrist. Among the allegations was the charge that the psychiatrist failed to have Holmes arrested after he 'fantasised about killing a lot of people'. Indeed, it appears that Holmes was clearly a danger to others and given the history of the Tarasoff case one wonders why it never occurred to her to seek his civil commitment before he went on his mass murder spree.
Here is the first Tarasoff opinion.
Tarasoff v. Regents of University of California
Misdiagnosis
Here is a report of a psychiatrist being sued for $2.25 million by a physician who was misdiagnosed with psychosis, bipolar disorder, mania and potential harm to her self or others. The designation of 'potential harm to self or others' is often a basis for involuntary commitment.
The danger of psychiatric misdiagnosis is greater than one would expect. In Being Sane in Insane Places, Rosenham reported an experiment in which 8 sane and normal subjects attempted to get admitted to a mental institution by presenting with minimal symptoms. Though some thought they would be discovered immediately, the pseudopatients were admitted with a diagnosis of schizophrenia. Once in the institution they reverted to perfectly normal behavior and waited to see how long it took staff to discover they had no mental illness. None was discovered. Ultimately the pseudopatients were discharged with a diagnosis of 'schizophrenia in remission'.
CIVIL COMMITMENT
It could be said that the system does not always function as fairly as it should. Mr Franklin Frye spent 43 years in a psychiatric hospital for stealing a necklace worth $20.00. He made a successful criminal defense to the charges and was found not guilty by pleading insanity. He was then committed to an institution for the criminally insane where he languished for much of the rest of his life. He may be pleased that he beat the criminal charge with his insanity plea, but if he had simply pleaded guilty he would likely have been given a small fine and a short term of probation. Perhaps he was insane after all. Usually an insanity plea is reserved for cases where one is facing very serious consequences if convicted. It is instructive that John Hinckley, who tried to assassinate President Reagan, is housed in the same facility as Mr. Frye. His plea of insanity also succeeded.
Once someone is committed against his will to a mental institution the normal rule is that he must be released once his infirmity has been cured or, at least, until he can function in society without being a risk to himself or others. Mr. Frye didn't 'fall through the cracks' so much as get wedged in a crack and never noticed again. It seems likely there is more to this story that is evident from the article, but relying only on the newspaper article it appears Mr. Frye has been done an injustice.
Civil Commitment of Sexual Predators
Hendricks
appealed to the United States Supreme Court claiming he had served his criminal
sentence and the civil commitment was nothing more than a disguised additional
punishment. He had no mental illness
meeting the normal standards warranting civil commitment. But the Supreme Court held that Kansas’
civil commitment procedure for sexual predators did not offend the
Constitution. Hendricks remained
civilly locked up under the police power for the protection of others. Kansas v. Leroy Hendricks, 521 U.S.346, 117 S. Ct. 2072 (1997)
For some time, sex with patients was even offered as a form of therapy that would be beneficial in promoting psychological healing. A cynic might suspect that this treatment plan was offered only to physically attractive patients, and one need not be a cynic to believe that the lady was still billed for these sessions.
Sex with patients can lead to serious problems for a psychiatrist. Besides the obvious risk that an enraged husband, father or brother may burst in and beat the crap out of the psychiatrist...and demand a refund...a psychiatrist having sex with his patients opens himself to malpractice suits and license discipline.
Because of their racy, and slimy, quality some of these cases fortunately make it into the press where they can provide us with actual examples of this misconduct.
Mr. Steven Kay sued his therapist, Dr. Rosenberg, because he and his wife had gone to him for couples counseling after Kay's wife began talking of divorce. When Mr. Kay became depressed and attempted suicide, it was Dr. Rosenberg who offered his hand at treating Mr. Kay's depression. It subsequently turned out that Dr. Rosenberg was offering more than his hand: he began having an affair with Mr. Kay's wife. For this 'couples counseling', Dr. Rosenberg charged only $87,000. Of course Mr. Kay sued Dr. Rosenberg for medical negligence and breach of the applicable standard of psychiatric care.
Dr. Daniel Lerom had repeated sexual encounters with his patient and billed Blue Cross, Blue shield for the sessions. Dr. Lerom specializes in marriage and relationship counseling.
Apparently Dr. Lerom sent text messages to his patient saying:
"My body felt great all over last night." and "I wish you were in the shower with me to warm me up." and "If I were there, I would rub you and kiss you all over."
One suspects that these treatment notes never made it into the patient's medical record or, for that matter, into the billing code to Blue Cross. What is the cpt code for ravishing your patient?
When Dr. Lerom's wife learned of these treatments, he discontinued this therapy and his patient suffered a mental collapse. Ultimately, she roused herself enough to sue Dr. Lerom.
A psychiatrist in Canada lost his license when it was learned that he had had sex with two patients and made inappropriate advances on a third woman. Found in his desk were condoms, lubricant and sexually explicit photos of an unidentified woman who was not one of the complainants.
The temptations are great and the penalties severe. Having sex with a patient is a great way to destroy your career, your reputation and your fortune.
ONCE A PATIENT ALWAYS A PATIENT? MAYBE NOT.
Sometimes it is said that insofar as possible intimate relations are concerned 'once a patient, always a patient' thus essentially banning a relationship with a former patient forever. However, California has addressed the issue with specific legislation that is less forbidding. Have a look at this part of the California Code:
Sometimes it is said that insofar as possible intimate relations are concerned 'once a patient, always a patient' thus essentially banning a relationship with a former patient forever. However, California has addressed the issue with specific legislation that is less forbidding. Have a look at this part of the California Code:
California Civil Code 43.93
Cause of action for sexual misconduct of therapist
(4) "Therapeutic
relationship" exists during the time the patient or client is rendered professional service by the therapist.
(5) "Therapeutic
deception" means a representation by a psychotherapist that sexual contact with the psychotherapist
is consistent with or part of the patient's or former patient's treatment.
(b) A cause of action
against a psychotherapist for sexual contact exists for a patient or
former patient for injury caused by sexual contact with the psychotherapist, if the sexual contact occurred under any of the following
conditions:
(1) During the
period the patient was receiving psychotherapy from the psychotherapist.
(2) Within two
years following termination of therapy.
(3) By means of
therapeutic deception.
(c) The patient or former patient may recover
damages from a psychotherapist who is found liable for sexual contact. It
is not a defense to the action that sexual contact with a patient occurred
outside a therapy or treatment session or that it occurred off the premises
regularly used by the psychotherapist for therapy or treatment sessions.
No cause of action shall exist between spouses within a marriage.
Thus, if you intend to open a psychiatric practice in California and intend to make sex with your patients one of your perks, wait until at least 2 years after the termination of therapy. California Civil Code 43.93(5)(b)(2).
Wrongful Discharge
Maybe they should have just stenciled 'ticking time bomb . . . run for cover' on his forehead. Staff knew he was dangerous but they turned him into the streets all the same. He pushed a young woman to her death in front of a subway train.
In Perreira v. State the court addressed whether the physician (and others) could be held liable for the death of a police officer who was murdered by a mentally ill person released from short-term involuntary commitment. The jury entered a verdict in favor of the police officer's wife and the Court of Appeals set aside the verdict. On appeal to the Colorado Supreme Court the ruling of the Court of Appeals was reversed and a duty of care when releasing potentially dangerous mental patients was set down.
The question in this
case is whether a state mental health center and its staff psychiatrist can be
held liable in tort for the shooting death of a police officer by a mentally
ill person, recently released from an involuntary commitment for short-term treatment."
"In conclusion, we hold that Dr. Anders had a legal duty to exercise due
care in determining whether Buckmaster had a propensity for violence and, if
released from his involuntary commitment, would thereby present an unreasonable
risk of serious bodily harm to others, including a police officer in the
position of Officer Perreira at the time of his death. We further hold that if
indeed Dr. Anders knew or should have known, in accordance with the knowledge
and skill ordinarily possessed by psychiatric practitioners under similar
circumstances, that Buckmaster had a propensity for violence and thus presented
an unreasonable risk of serious bodily harm to others, then Dr. Anders was
obliged to take reasonable precautions to protect members of the public from
the danger created by Buckmaster's release, including the giving of due
consideration to extending the term of Buckmaster's commitment or to placing
appropriate conditions and restrictions on Buckmaster's release consistent with
his needs and the safety of the public." [Emphasis mine. Note
the nod to Tarasoff even though Tarasoff was decided in
California, a different state.]
In Bruscato v. O'brien is an interesting case. Mr. Bruscato murdered his parents and then sued his psychiatrist for negligent care. The trial court granted summary judgment in favor of the doctor, ending Mr. Bruscato's suit. The court of appeals re-instituted the claim and the supreme court confirmed the decision of the court of appeals. When Dr. O'Brien began treating his then 38-year-old patient, Bruscato had a long history of mental illness and violence. Among other things he had auditory hallucinations that commanded him to kill people or molest girls. He was released into the care of his elderly parents who were ill-equipped to manage him and Dr. O'Brien discontinued the medication that helped control his homicidal impulses. He crushed his mother's skull with a battery charger and stabbed her 72 times.
Here is a legal comment on negligent discharge of an involuntarily admitted patient.
Suicide of Patient
Survivors are angry when a family member commits suicide and if the deceased is receiving psychotherapy at the time there may be a desire to hold the therapist responsible. This article discusses a case in which a suit against a psychiatrist ended in the psychiatrist's favor on a motion for summary judgment. It also includes an interesting discussion on the standards of care and the degree of proof applied in these cases.
Medication
Psychiatrists are at risk for failing to adequately monitor a patient's intake in much the same way other physicians are. In this case a failure to recognize a patient's symptoms of lithium toxicity led to her death and a $1 million settlement, and here is a similar suit involving the death of an over-medicated child. Even psychiatrists risk discipline if their prescribe controlled substances for themselves or close family members. Doctors treating chronic pain risk being sued for causing a patient to become addicted to opiods (I know, it's not fair), but psychiatrists also face potential liability for creating dependency. Liability for failure to guard against unwanted side effects (or contraindications for other drugs the patient is taking) are, again, risks across the field of medicine. Psychiatrists may fact enhanced risks for stopping powerful medications as we saw in Bruscato case discussed above in which his patient smashed in his mother's skull after having his medication curtailed. The popular expression, "He's off his meds," gives a sense how much this risk has made its way into popular culture. Dr. Bruscato's patient was 'off his meds' when he murdered his mother. A possible avenue of liability almost unique to psychiatrists involves administering involuntary medication to a mentally ill patient. This is another area where you may be liable if you do and also liable if you don't, however it is too involved to address in detail here. Perhaps later.
Failure to Warn/Protect of Dangerous Patient
In Tarasoff, the California Supreme Court twice addressed the question whether a mental health therapist has a duty to violate patient confidentiality and privilege and take steps when his patient reveals a genuine intent to harm or kill another person. The Supreme Court affirmed that the duty exists and first said the therapist has a duty to warn the intended victim and then, on a subsequent review, the court said the therapist has to protect the intended victim. How a therapist might protect someone from a rabid patient is probably easier to conceive than to do, but a therapist does have at least one good arrow in his quiver: civil commitment. A person who is a danger to others can be committed against his will. Although the Tarasoff limited its use in the circumstances of the case. An excerpt from the case can be found at the bottom of the post on Privacy, Confidentiality etc.
This would not have been an easy question for the therapist to decide when first confronted with the problem. After all, the 'duty' was revealed by the court only after reviewing the civil case against him. So far as he knew, the patient's disclosures to him are both confidential and privileged. 'Privilege' means that that the information is so secure it normally cannot be obtained in discovery or other court proceedings. A clear reading of the statutes and the court cases up to the time of the Tarasoff decision would have told him he would be in peril of being sued by his patient and disciplined by his medical board if he dared reveal any patient confidence. Even the experienced superior court trial judge concluded that there was no legitimate cause of action and dismissed the original civil complaint that was subsequently restored by the supreme court.
Tarasoff has been adopted by courts and legislatures in other states. Significantly, the related statute of the State of Colorado reads:
Colorado
Statutes
Title 13. COURTS AND COURT PROCEDURE.
DAMAGES
Damages
Article 21. Damages
Part 1. GENERAL PROVISIONS
§ 13-21-117. Civil liability - mental health care providers - no duty
A physician, social worker, psychiatric nurse, psychologist, or other mental health professional and a mental health hospital, community mental health center or clinic, institution, or their staff shall not be liable for damages in any civil action for failure to warn or protect any person against a mental health patient's violent behavior, and any such person shall not be held civilly liable for failure to predict such violent behavior, except where the patient has communicated to the mental health care provider a serious threat of imminent physical violence against a specific person or persons. [ final bold is mine].
Title 13. COURTS AND COURT PROCEDURE.
DAMAGES
Damages
Article 21. Damages
Part 1. GENERAL PROVISIONS
§ 13-21-117. Civil liability - mental health care providers - no duty
A physician, social worker, psychiatric nurse, psychologist, or other mental health professional and a mental health hospital, community mental health center or clinic, institution, or their staff shall not be liable for damages in any civil action for failure to warn or protect any person against a mental health patient's violent behavior, and any such person shall not be held civilly liable for failure to predict such violent behavior, except where the patient has communicated to the mental health care provider a serious threat of imminent physical violence against a specific person or persons. [ final bold is mine].
This statute might be of interest in the case of, James Holmes, the maniac who stepped into a Colorado theater and began killing people. It turns out Holmes was seeing a psychiatrist before the massacre.
Subsequently, Chantel Blunk, the widow of one of the people murdered filed a civil suit against the psychiatrist. Among the allegations was the charge that the psychiatrist failed to have Holmes arrested after he 'fantasised about killing a lot of people'. Indeed, it appears that Holmes was clearly a danger to others and given the history of the Tarasoff case one wonders why it never occurred to her to seek his civil commitment before he went on his mass murder spree.
Here is the first Tarasoff opinion.
Tarasoff v. Regents of University of California
Misdiagnosis
Here is a report of a psychiatrist being sued for $2.25 million by a physician who was misdiagnosed with psychosis, bipolar disorder, mania and potential harm to her self or others. The designation of 'potential harm to self or others' is often a basis for involuntary commitment.
The danger of psychiatric misdiagnosis is greater than one would expect. In Being Sane in Insane Places, Rosenham reported an experiment in which 8 sane and normal subjects attempted to get admitted to a mental institution by presenting with minimal symptoms. Though some thought they would be discovered immediately, the pseudopatients were admitted with a diagnosis of schizophrenia. Once in the institution they reverted to perfectly normal behavior and waited to see how long it took staff to discover they had no mental illness. None was discovered. Ultimately the pseudopatients were discharged with a diagnosis of 'schizophrenia in remission'.
CIVIL COMMITMENT
Civil Commitment refers to the incarceration
of a person who has not committed a crime but whose mental state is such that
he is a danger to others or a danger to himself.
If one thinks of it, this is essentially the same thing that happens when a person infected a very dangerous communicable disease is confined against his will in a sanitarium or other facility for the protection of the general population.
Once a person with an infectious disease has been cured and is no longer a danger to others, he must be released. The same is true of those who have been incarcerated against their will for mental illness. Once expert opinion concludes that they are no longer a danger to themselves or to others, they must be released.
The state cannot arbitrarily confine someone against his will. It must act under an authority granted to the state by law. The state may compel the
involuntary detention of an individual for civil rather than criminal
(punitive) purposes under two distinct governmental powers:
1. Parens Patriae (used when person is a
danger to himself). Under the parens
patriae power (see Glossary) the state may detain a person whose mental
condition has reached the point of decisional incompetence and he
has become a danger to himself. The parens
patriae power is exercised by the state in the best interests of
the individual endangered by his decisional incompetence.
2. Police Power (used when person is a danger to others). The police power is the government’s authority to act for the protection of the public safety, health and
morals. It could be used, for example,
to quarantine individuals infected with a dangerous and infectious
disease. In the mental health setting
the police power is used to detain individuals whose mental condition makes
them a danger to others.
Due Process. An individual with mental illness or developmental problems
warranting confinement under parens patriae or the police power is
entitled to due process. This means
that there will generally be a commitment hearing (like a trial) before
an impartial tribunal, most often with notice and representation by counsel.
Expert
Opinion. Psychologists or
psychiatrists may testify at commitment hearings as to their opinion of the
mental status of the person facing civil commitment, and the trier of fact may
rely upon the testimony of experts in reaching a final judgment, but the ultimate
legal issue is decided by the tribunal, not by the experts.
Standard
of Proof. A civil commitment
hearing is not a criminal proceeding.
Instead, the question is not whether the individual is guilty or
innocent but whether he is a danger to himself or others. Although civil commitment is a civil
rather than criminal proceeding, the usual standard of proof used in
civil cases [the ‘preponderance of the evidence standard] is too low a bar when
someone’s liberty is at stake.
Therefore, the Supreme Court has held that the standard of proof in
civil commitment proceedings may not be lower than the clear and convincing
evidence standard. This standard is
more exacting than the civil ‘preponderance of evidence’ standard used in
medical malpractice cases, but less exacting than the ‘beyond a reasonable
doubt’ standard used in criminal cases.
Once someone is committed against his will to a mental institution the normal rule is that he must be released once his infirmity has been cured or, at least, until he can function in society without being a risk to himself or others. Mr. Frye didn't 'fall through the cracks' so much as get wedged in a crack and never noticed again. It seems likely there is more to this story that is evident from the article, but relying only on the newspaper article it appears Mr. Frye has been done an injustice.
Civil Commitment of Sexual Predators
When
a person is incarcerated after being convicted of a crime, his imprisonment is
a part of his punishment.
On
the other hand, when a person is committed against his will because of mental
problems, his confinement is not punishment.
Instead, he is being confined by a civil (not a criminal) court for
treatment, and his confinement is for his protection or for the protection of
others.
In
this system, sexual predators pose an unusual problem. Often they have no detectable mental illness
or developmental problems. They are not
burdened with decisional incompetence.
They may even be highly intelligent and rational beyond the norm. But they prey sexually upon others
relentlessly. Their acts are criminal
and when they are caught they are punished, but they have an extraordinarily
high recidivism rate.
To
deal with the problem of sexual predators, Kansas adopted a law for the civil
commitment of sexual predators until such time as treatment or circumstance
renders them safe for release. Even
though civil commitment normally requires that the clear and convincing
standard of evidence be met, Kansas adopted the beyond a reasonable doubt
standard for the civil commitment of sexual predators. The high standard was adopted because there
is no treatment for sexual predators and confinement under the new law could be
indefinite.
One
of the first individuals to be ensnared by the new law was a man named
Hendricks. He had molested nearly every
child of both sexes with whom he had come in contact over a period of many
years. When released from prison, he
returned to his practices without remorse or hesitation. However, when he finished his last prison
term for his criminal sentence in Kansas, he was immediately given a civil
commitment hearing for being a sexual predator. Upon a finding he was a sexual predator, he was confined in a
mental facility.
In later case, Kansas v. Crane the Court narrowed the conditions under which a designated sexual predator could be confined and ruled the Crane, not meeting those criteria must be released.
Mr. Crane celebrated in his newly awarded freedom by engaging in kidnapping, assault, rape and sodomy.
Here is a pdf article giving a fuller discussion of the evolution of sexual predator commitment law.
Incompetence
Incompetence can be a complicated issue to address. Basically, if one is incompetent he is incapable of making some decisions on his own behalf. A patient who is rolled into the ER after an auto accident and semi-conscious and, importantly, incapable of understanding the consequences of his medical decisions, may be temporarily incompetent or incapacitated and his physician may make important and necessary medical decisions such as giving blood.
A minor is, as a matter of law, incompetent. He may be rational and sane, but (subject to important exceptions) unable to consent to or refuse medical care. His natural guardians, his parents, have the legal authority to make those decisions for him. A 12-year-old diagnosed with appendicitis may declare he will not have surgery, but his declaration doesn't count. His parents have the legal authority to say he will have the surgery whether he wants it or not..
The question of competence comes up again when addressing elderly or brain-damaged patients with dementia. If the mental impairment is sufficient a court may appoint a guardian or conservator who will have essentially the same authority over the mentally impaired individual that parents have over a minor child. The conservator/guardian will make essential financial and medical decisions for the afflicted patient.
An example of this can be seen in the case of actress Amanda Bynes. Because of her erratic behavior she was first involuntarily committed as a danger to herself and then, two months later, the court appointed a conservator to make critical decisions for her.
This article reports the involuntary commitment and subsequent appointment of a Conservator (California's term for a guardian) to manage the affairs of actress Amanda Bynes.
The judge ruled the actress had a "lack of capacity to give informed consent to medical care."
Amanda's mother was appointed her conservator.
"The ruling permits Lynn Bynes to control decisions involving the health and finances of her daughter. It will be in effect until Sept. 30.
According to the article, conservatorship over Ms. Bynes was sought "after authorities involuntarily committed their daughter after she started a fire in the driveway of a home in her hometown of Thousand Oaks.
The petition states that their daughter had become increasingly paranoid in recent months and expressed fears she was being watched by smoke detectors and devices in the dashboard of her car.
"We are deeply concerned that Amanda poses a substantial risk to herself, to others, and to property based on recent events in her life," the filing stated."
The judge's ruling was based on a doctor's evaluation and an investigator's interview of Bynes.
Note that being involuntarily committed as a danger to yourself or others does not automatically mean that you are incompetent. Even though suicidal (for example) you may still be legally competent to make out a Last Will and Testament (good idea if you are suicidal) or sign a contract or make other business decisions.
On the other hand, being declared incompetent does not mean that you need to be confined as a danger to self or others. You may still be able to function safely and happily in your own home, particularly if you remember the way home from the grocery store and have electrical appliances that turn themselves off when left unattended too long. But when it comes to buying unnecessary aluminum siding from the nice man who knocked on your door, your contract will be invalid because a declared incompetent cannot sign a valid contract. Your guardian/conservator will also make important medical decisions for you.
Insanity
Incompetence
Incompetence can be a complicated issue to address. Basically, if one is incompetent he is incapable of making some decisions on his own behalf. A patient who is rolled into the ER after an auto accident and semi-conscious and, importantly, incapable of understanding the consequences of his medical decisions, may be temporarily incompetent or incapacitated and his physician may make important and necessary medical decisions such as giving blood.
A minor is, as a matter of law, incompetent. He may be rational and sane, but (subject to important exceptions) unable to consent to or refuse medical care. His natural guardians, his parents, have the legal authority to make those decisions for him. A 12-year-old diagnosed with appendicitis may declare he will not have surgery, but his declaration doesn't count. His parents have the legal authority to say he will have the surgery whether he wants it or not..
The question of competence comes up again when addressing elderly or brain-damaged patients with dementia. If the mental impairment is sufficient a court may appoint a guardian or conservator who will have essentially the same authority over the mentally impaired individual that parents have over a minor child. The conservator/guardian will make essential financial and medical decisions for the afflicted patient.
An example of this can be seen in the case of actress Amanda Bynes. Because of her erratic behavior she was first involuntarily committed as a danger to herself and then, two months later, the court appointed a conservator to make critical decisions for her.
This article reports the involuntary commitment and subsequent appointment of a Conservator (California's term for a guardian) to manage the affairs of actress Amanda Bynes.
The judge ruled the actress had a "lack of capacity to give informed consent to medical care."
Amanda's mother was appointed her conservator.
"The ruling permits Lynn Bynes to control decisions involving the health and finances of her daughter. It will be in effect until Sept. 30.
According to the article, conservatorship over Ms. Bynes was sought "after authorities involuntarily committed their daughter after she started a fire in the driveway of a home in her hometown of Thousand Oaks.
The petition states that their daughter had become increasingly paranoid in recent months and expressed fears she was being watched by smoke detectors and devices in the dashboard of her car.
"We are deeply concerned that Amanda poses a substantial risk to herself, to others, and to property based on recent events in her life," the filing stated."
The judge's ruling was based on a doctor's evaluation and an investigator's interview of Bynes.
Note that being involuntarily committed as a danger to yourself or others does not automatically mean that you are incompetent. Even though suicidal (for example) you may still be legally competent to make out a Last Will and Testament (good idea if you are suicidal) or sign a contract or make other business decisions.
On the other hand, being declared incompetent does not mean that you need to be confined as a danger to self or others. You may still be able to function safely and happily in your own home, particularly if you remember the way home from the grocery store and have electrical appliances that turn themselves off when left unattended too long. But when it comes to buying unnecessary aluminum siding from the nice man who knocked on your door, your contract will be invalid because a declared incompetent cannot sign a valid contract. Your guardian/conservator will also make important medical decisions for you.
Insanity
Both insanity and incompetency
are legal standards, not psychiatric standards, and their
provenance is the courtroom, not the couch.
In making a legal determination of insanity or incompetency a court may
use psychiatric testimony, but the ultimate issue rests with the court.
To
be insane means that you will not be held morally or criminally responsible
for your acts. One of the oldest tests
for insanity is the M’Naghten Rule.
Under this rule a person may be found insane if at the time of the act
the party was laboring under such a defect of reason he could not know the
nature and quality of the act he was doing; or if he did know it he did not
know that it was wrong.
If
a person is found to have been insane at the time that he commits what would
normally be a criminal act then he cannot be found guilty of a crime.
Some
states have adopted a guilty but mentally ill, or guilty but insane,
finding as an alternative to the finding of guilty or insane. A guilty but mentally ill verdict
might be particularly appropriate when an individual who has committed a crime
is clearly suffering from some mental illness but it is doubtful whether the
illness is so severe that it would rise to the M’Naghten (sometimes McNaughton) Rule. In such a case, the convicted individual may
be sentenced to both punishment and mental health treatment.
Here is a comment on distinctions between McNaughton and Durham and the Federal Rule
Examples are sometimes better than argument for making distinctions clear.
Here is an example of case that promises a successful insanity defense.
Mother Kills Baby, Eats Brain
She thought the Devil made her do it. Clearly she did not understand the nature of her act or that it was wrong at the time she was doing it so she is likely insane under either of the McNaughton requirements.
On the other hand, some people are not so much insane as simply evil.
Here is a case of misconduct that is fairly easy to distinguish from that of the poor lady who killed her child. When Mr. Bundy killed women and had sex with their dead bodies he knew what he was doing and he knew that it was wrong. He took great pains to avoid being caught, but he does not seem to have made much of an effort to stop what he was doing. According to some reports he thought of himself as basically a very good guy except for 'one little thing' (murdering women).
He Murdered 100 People - Defense Attorney Says He Was Evil
He killed more than 100 people and knew very well what he was doing and that it was wrong. He liked doing it.
Here is another one:
BTK Killer. Like Bundy, the 'Bind Torture Kill' Killer knew exactly what he was doing and he was very skillful at doing it. It took years to finally catch him.
Neither Ted Bundy nor BTK could mount a successful McNaughton insanity plea and neither tried.
POLICE POWER AND QUARANTINE OF EBOLA PATIENTS -
Here is a comment on distinctions between McNaughton and Durham and the Federal Rule
Examples are sometimes better than argument for making distinctions clear.
Here is an example of case that promises a successful insanity defense.
Mother Kills Baby, Eats Brain
She thought the Devil made her do it. Clearly she did not understand the nature of her act or that it was wrong at the time she was doing it so she is likely insane under either of the McNaughton requirements.
On the other hand, some people are not so much insane as simply evil.
Here is a case of misconduct that is fairly easy to distinguish from that of the poor lady who killed her child. When Mr. Bundy killed women and had sex with their dead bodies he knew what he was doing and he knew that it was wrong. He took great pains to avoid being caught, but he does not seem to have made much of an effort to stop what he was doing. According to some reports he thought of himself as basically a very good guy except for 'one little thing' (murdering women).
He Murdered 100 People - Defense Attorney Says He Was Evil
He killed more than 100 people and knew very well what he was doing and that it was wrong. He liked doing it.
Here is another one:
BTK Killer. Like Bundy, the 'Bind Torture Kill' Killer knew exactly what he was doing and he was very skillful at doing it. It took years to finally catch him.
Neither Ted Bundy nor BTK could mount a successful McNaughton insanity plea and neither tried.
POLICE POWER AND QUARANTINE OF EBOLA PATIENTS -
QUARANTINE AND EBOLA
CLICK to go to START PAGE and Links to all course material.
UPDATE to following comment: Ms. Hickox has been released from
her quarantine in New Jersey and traveled to her home in Maine. Maine
has implemented a voluntary quarantine expecting Ms. Hicox to remain in
her home during the balance of the Ebola incubation period. Ms. Hicox
apparently is refusing to comply with Maine's requirements. She
believes they are too burdensome. I'm glad she isn't my neighbor. I
would not be surprised if a lot of people in Maine feel the same way.
As will be seen in the comment below, the State of Maine probably has
the power to give this person no choice in the matter. SEE: Lawyer For Fort Kent nurse held on Ebola fears says she won't abide by quarantine.
Reckless, arrogant and self-interested behavior like this is exactly
why government has the legal authority to quarantine someone against her
will when she may reasonably pose a danger to others.
It is worth remembering that the same power has been used with some
tuberculosis patients, with sexual predators, and with mentally deranged
persons who pose a risk to others.
Comment:
Kaci Hickox, A nurse returning from Africa where she treated Ebola patients,
was detained in New Jersey under an emergency rule intended to reduce
the risk of spreading the deadly disease to American citizens.
After pressure from the White House and the CDC, both of whom oppose
travel bans from Ebola jurisdictions, Governor Christie released Ms.
Hickox to return to her home state of Maine. She is threatening to sue
for violation of her civil liberties.
This is as much a political issue as a legal issue. Ms. Hickox' Web
presence previously identified her as an employee of the CDC. That
information has been scrubbed from Linkedin.com site and is not widely
covered in the media. But knowing who she works with may explain why
her present claim to victim status dovetails so smoothly with the
administration's present position against travel restraints.
The federal government in the form of the White House (President Obama),
the CDC and the NIH have been remarkably consistent in their opposition
to a travel ban from countries where Ebola is raging despite the fact
that one physician who appeared free of the disease when he arrived in
America has since developed the disease and put others at risk.
Perhaps they could get back sooner if they simply pretended to be
citizens of Liberia so they could be waved into the country with a
hearty 'Welcome'.
This bizarre situation is entirely consistent with the stunning
incompetence that has been the hallmark of the this administration in
practically every field where it has acted or failed to act.
Public confidence in government policy is further diminished by the
blizzard of contradictory information coming from the NIH and CDC, one
of the strangest being CDC
director Frieden's claim that a person cannot catch Ebola by riding on a
bus but it is possible for a person infected with Ebola to transmit it
by riding on a bus. Who will the Ebola carrier transmit the
disease to on a bus if others on the bus cannot get the disease on the
bus? This would call into question Frieden's mental competency were it
not obvious that federal agencies like the CDC are putting political
agendas ahead of simply protecting the public health.
Not everyone in this administration is on the same page. HHS Secretary Dr. Nicole Laurie testified in Congress that Ebola can spread through perspiration left on a bus seat.
BUT IS MS. HICKOX RIGHT IN CLAIMING HER QUARANTINE WAS UNLAWFUL?
Probably not.
Those familiar with this blog have seen the issue come up before in the post on mental health law where it was said that:
The police power is a power inherent to governments. It is the power to
act with force for the protection of the public safety, health and
morals. Quarantining a person who has potentially been exposed to an
infectious and dangerous disease is an ancient and legitimate use of the
police power of a government.
Some of the posts on this subject on the internet erroneously state that
the 10th Amendment of the Constitution grants the police power to the
several states. That is a backwards reading of the Constitution. The
Constitution does not grant powers to the States. It is the instrument
by which the States have granted limited powers to the federal
government. All powers not expressly and exclusively granted by the
States to the federal government remain with the States.
Two very good law blogs have addressed the issue of state quarantines. The Volokh Conspiracy at the Washington Post states Constitutional Challenge to (Hickox's) Quarantine Unlikely to Succeed.
And Legal Insurrection asks, Can The Government Quarantine Me? Short answer: It depends, but yes.
In Compagnie Francaise de Navigation a Vapeur v.Louisiana Board of Health 186 U.S. 380
(1902). The United States Supreme Court agreed with the ruling of the
Louisiana Supreme Court when it held constitutional a statute that
"empowered the board to exclude healthy persons from a locality infested
with a contagious or infectious disease, and that this power was
intended to apply as well to person seeking to enter the infected place,
whether they came from without or from within the state."
Generally, we can expect that courts will allow state quarantine laws
when they are used for a reasonable purpose and are not applied in an
arbitrary or capricious manner.
Given what happened with the physician who arrived in New York from an
Ebola zone symptom free, and who passed a CDC standard screening only to
advance into a full case of the disease after riding subways, going
bowling, visiting restaurants and coming in contact with thousands of
unsuspecting people, a temporary quarantine of others coming from Ebola
zones who have had contact with Ebola patients does not seem arbitrary
or capricious or unreasonable when the quarantine does not exceed the
time it takes for a newly infected person to manifest symptoms..
And if a quarantine is unreasonable, why is the United States government
isolating in Italy those American soldiers who have been in Africa to
help with the Ebola outbreak?
Given how mangled the messages have been from the White House, the NIH,
and the CDC one has to wonder whether the public will have any
confidence in their eructions if a very dangerous and highly infectious
disease threatens this country.
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