Mental Health Law in a Nutshell
Author:
Myers, John E.B.
Edition:
2nd
Copyright Date:
2019
13 chapters
have results for mental disability
Chapter 1. Introduction 1 60 results (showing 5 best matches)
- In mental health practice, an important part of the diagnostic process is the mental status examination. The professional asks questions to learn of the patient’s current mental state and functioning. A helpful description of the mental status examination is found on the Social Security Administration’s website that lists criteria to evaluate disabilities based on mental disorder. The website states:
- An English statute from the middle ages defined individuals with mental disabilities as lunatics or idiots. (17 Edward 2, chapter 9–10 (1324)). A lunatic was a person whom today we would refer to as mentally ill. Lunatic comes from the Latin , the moon. The early thought was that mental illnesses come and go, like phases of the moon. Idiot was the term for those with intellectual disability, or, mental retardation, to use the older term.
- Many individuals with mental disability benefit from medication. The National Institute of Mental Health publishes an online description of mental health medications, which states in part:
- What is mental health law? The answer is: Many things to many people. This Nutshell covers a broad range of subjects at the interface of law, psychology, clinical social work, psychiatry, and medicine. Subjects include the insanity defense, the Americans with Disabilities Act, involuntary psychiatric hospitalization, Social Security disability, and much more.
- A mental disorder is a syndrome characterized by clinically significant disturbance in an individual’s cognition, emotion regulation, or behavior that reflects a dysfunction in the psychological, biological, or developmental processes underlying mental functioning. Mental disorders are usually associated with significant distress or disability in social, occupational, or other important activities. An expectable or culturally approved response to a common stressor or loss, such as the death of a loved one, is not a mental disorder. Socially deviant behavior ( not mental disorders unless the deviance or conflict results from a dysfunction in the individual, as described above. (p. 20).
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Chapter 3. Expert Testimony 71 16 results (showing 5 best matches)
- Expert testimony from mental health and medical professionals plays a vitally important role in litigation regarding mental illness and intellectual disability. This chapter outlines the rules of evidence governing expert testimony.
- In litigation involving mental illness and intellectual disability, expert testimony is provided by psychiatrists, psychologists, clinical social workers, and other clinicians. Rule 702 of the Federal Rules of Evidence describes who qualifies to provide expert testimony. The Rule states:
- Rule 703 specifies that experts may base opinions on information that is not admissible in evidence, so long as other experts in that field rely on such information. In the mental health field, experts routinely rely on hearsay that might or might not be admissible in court. Written hearsay includes clinical records, test results, and documents prepared by police and social services agencies. Verbal hearsay includes the patient’s “history.” A mental health professional acts properly when the professional bases expert testimony on such hearsay.
- May a lay witness offer an opinion that someone was insane or out of touch with reality? Clearly, a lay witness could describe a person’s behavior, and testify to things the person did and said, from which an inference of mental illness might flow. In , defendant walked into a church, drew a gun, and robbed parishioners. At his robbery trial, it was proper for the parishioners to describe the defendant’s behavior during the robbery. The Michigan Court of Appeals wrote, “The testimony of lay witnesses may be competent evidence on a defendant’s mental illness.” (
- In a criminal case, an expert must not state an opinion about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged or of
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Chapter 4. Criminal Law 93 75 results (showing 5 best matches)
- M’Naghten’s “disease of the mind” refers to mental illness or intellectual disability. This is not to say that mental illness itself is a defense. Most seriously mentally ill defendants, including those with schizophrenia, do not meet M’Naghten.
- Chapter 4 discusses the role of mental illness and mental health professionals in criminal law. Not a day goes by that police, prosecutors, defense attorneys, probation and parole officers, jail and prison authorities, and judges do not interact with individuals suffering mental illness, addiction, and intellectual disability. It is a sad commentary that America’s jails and prisons are home to hundreds of thousands of mentally ill inmates. Indeed, there are more mentally ill people in jail than in the hospital.
- warnings before questioning. A suspect can waive the rights to remain silent and to an attorney, but such waiver must be voluntary. Mental illness and intellectual disability are relevant factors in determining the voluntariness of waiver. It should be added, however, that many individuals with mental illness or intellectual disability are capable of waiving their
- ). Abolition of the insanity defense does not mean evidence of mental illness or intellectual disability is irrelevant. Evidence of mental illness or intellectual disability
- In the penalty phase of death penalty cases, defendants routinely present evidence of mental disability in an effort to persuade jurors to vote against death. (
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Chapter 7. Discrimination Against Mentally Ill and Intellectually Disabled 223 15 results (showing 5 best matches)
- The ADA defines disability as “a physical or mental impairment that substantially limits one or more major life activities. . . .” ( ). The ADA covers mental illness. ( (bipolar)). The ADA’s implementing regulations state that mental impairment includes, “Any mental or psychological disorder, such as an intellectual disability (formerly termed ‘mental retardation’), organic brain syndrome, emotional or mental illness, and specific learning disabilities.” (
- accommodate her disability. The trial court granted summary judgment, holding that police officers making an arrest are not required to comply with the ADA before taking steps to protect themselves and others. On appeal, the Ninth Circuit vacated the summary judgment, concluding it was “for a jury to decide whether San Francisco should have accommodated Sheehan by, for instance, respecting her comfort zone, engaging in non-threatening communications and using the passage of time to defuse the situation rather than precipitating a deadly confrontation.” ( Kelley B. Harrington (Note) Policing Reasonable Accommodations for Individuals with Disabilities, 50 1361 (2017); Taylor Pugliese (Note) Dangerous Intersection: Protecting People with Mental Disabilities from Police Brutality During Arrests Using the Americans with Disabilities Act, 46
- States have antidiscrimination laws that cover mental disability. (
- ). A person is covered by the Act when she has a physical or mental disability that substantially
- There is a long and sorry history of discrimination against disabled persons. In the Americans with Disabilities Act, Congress found, “[H]istorically, society has tended to isolate and segregate individuals with disabilities. . . . [D]iscrimination against individuals with disabilities persists. . . .” (
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Chapter 8. Financial and Medical Benefits for Disabled Persons 235 17 results (showing 5 best matches)
- In 1956, Congress amended the Social Security Act by adding disability benefits for covered workers who become disabled. Disability benefits are paid to disabled workers, surviving spouses of such workers, and children of such workers. The Social Security Act defines disability as the inability to engage in substantial gainful activity due to a medically determinable mental or physical impairment that can be expected to result in death or to last at least a year.
- States and the federal government provide disability benefits and disability retirement for government workers. As well, individuals can purchase private disability insurance. Government disability programs generally cover mental as well as physical illness and injury. (
- Third, if the applicant has a severe impairment, does the impairment meet or equal a disability in Social Security’s Listing of Impairments? If yes, the applicant is eligible. The Listing of Impairment includes the following mental disorders: neurocognitive disorders, schizophrenia spectrum and other psychotic disorders; depressive, bipolar and related disorders, intellectual disorder; anxiety and obsessive-compulsive disorders, somatoform disorders and related disorders; personality and impulsive-control disorders, autism spectrum disorder; neurodevelopmental disorders, eating disorders, and trauma- and stressor-related disorders.
- The same disability definitions and standards are used for Social Security Disability and SSI Disability.
- The entity that makes initial recommendations on applications for Social Security disability is a state agency called the Disability Determination Section (DDS). Based on DDS’s recommendation, Social Security approves or denies applications.
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Chapter 5. Civil Matters 151 55 results (showing 5 best matches)
- Is there a legally enforceable right to mental health treatment? Michael Perlin observes that “there was virtually no mention of the idea of a ‘right to treatment’ in any of the legal literature written prior to 1960.” (Michael Perlin,
- Monahan and his colleagues describe “money as leverage.” Over one million people with mental disorders receive disability benefits—Supplemental Security Income or Social Security Disability. Many of these individuals have a representative payee who receives the money on behalf of the recipient. Monahan writes, “In a majority of representative payee programs, some relationship exists between treatment adherence and receipt of funds; in a substantial minority of programs this relationship approaches quid pro quo status.” (p. 1199).
- No right is more precious than freedom, and no act of government strikes a deeper nerve than depriving people of freedom. Citizens with mental illness share the passion for freedom, yet some people with serious mental illness cannot live safely in the community. Some are dangerous to themselves. Others are dangerous to others. The law of civil commitment seeks a balance between freedom, on one hand, and the government’s interest in helping the ill and protecting the innocent, on the other. (
- Mental Disability Law: Civil and Criminal,
- Mental Disability Law: Civil and Criminal,
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Index 241 18 results (showing 5 best matches)
Chapter 6. Civil Liability of Mental Health Professionals 189 30 results (showing 5 best matches)
- Lawsuits against mental health professionals are uncommon. Yet, the complexity of mental health practice, coupled with the serious consequences of error, means the potential for liability cannot be ignored. This chapter addresses civil liability of mental health professionals.
- Child custody cases in family court can breed incalculable anger and heartache. When a mental health professional is appointed by the family court judge to conduct a custody evaluation, the professional typically enjoys immunity from civil liability. A mental health professional who is not court-appointed lacks immunity. It is not surprising that many mental health professionals will only accept custody cases when they are appointed by the court.
- Arizona’s law states, “There shall be no cause of action against a mental health provider nor shall legal liability be imposed for breaching a duty to prevent harm to a person caused by a patient, unless both of the following occur: (1) The patient has communicated to the mental health provider an explicit threat of imminent serious physical harm or death to a clearly identified or identifiable victim or victims, and the patient has the apparent intent and ability to carry out such threat. (2) The mental health provider fails to take reasonable precautions.” (Arizona Revised Statutes § 36–517.02).
- Mental health professionals can be sued for improperly disclosing confidential and/or privileged records. ( , for example, the plaintiff was a minor when it was discovered that he sexually abused a younger child. The offending minor was brought before the juvenile court, and was evaluated by mental health professionals. Later, the mental health professionals devised a mock trial based on the juvenile court case, and performed the mock trial to help other mental health professionals understand juvenile court. Apparently, during performances of the mock trial, the offending minor’s name, and that of the other child, was revealed. The minors sued. Although the suit was unsuccessful because the minors did not prove damages, the case illustrates the importance of keeping confidential information—including names—confidential.
- While virtually all jurisdictions have acknowledged some form of the duty to warn, various jurisdictions have nevertheless strenuously disagreed whether mental health treatment providers can testify about threatening statements made by their patients when these statements have been disclosed pursuant to the duty to warn. For example, in , the Sixth Circuit Court of Appeals held that even if a mental health treatment provider warns potential victims and law enforcement about a patient’s threatening statements, the provider is still barred from testifying about these statements in court. In contrast, in of Appeals held that the testimonial privilege does not bar mental health treatment providers from testifying about threatening statements that the providers disclosed pursuant to their duty to warn.
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Chapter 2. Confidentiality 39 19 results (showing 5 best matches)
- The law in many states provides that the defendant cannot be the one to trigger the patient-litigant exception by putting the plaintiff’s mental or physical condition in issue. The initiative must come from the plaintiff. In , for example, the court wrote, “A plaintiff does not put his mental state in issue merely by acknowledging he suffers from depression, for which he is not seeking recompense; nor may a defendant overcome the privilege by putting the plaintiff’s mental state in issue.” At the same time, however, when a party’s mental or physical condition is central to the outcome of a case, the law generally allows judges to balance the need for relevant information
- The patient-litigant exception sometimes comes up in contested child custody litigation. One parent seeks the other parent’s mental health records in an effort to persuade the judge that the children will be harmed by the parent’s mental problems. Courts generally are unsympathetic to this argument, holding that a decision to fight for custody does not place a parent’s mental condition in issue. (
- The HIPAA Privacy Rule protects the confidentiality of health and mental health information. The Rule is broad, protecting all “individually identifiable health information.” HIPAA applies to most health and mental health professionals in the United States. Professionals and entities covered by HIPAA are called “covered entities.” The Privacy Rule requires covered
- HIPAA specifies that parents can sign “an agreement of confidentiality,” in which parents agree to respect the confidentiality of communications between a professional and their child. (45 C.F.R. § 164.502(g)(3)(i)(C)). In practice, most mental health professionals who work with children—particularly adolescents—insist that parents respect the privacy of communications between the therapist and the child.
- Some mental health professionals organize client files to keep “psychotherapy notes” in separate files. Doing so surrounds this highly sensitive information with added protection from disclosure. For example, insurance plans cannot demand access to psychotherapy notes.
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Outline 10 results (showing 5 best matches)
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- Publication Date: August 1st, 2019
- ISBN: 9781684674787
- Subject: Health Law
- Series: Nutshells
- Type: Overviews
- Description: Mental illness and intellectual disability (formerly called mental retardation) impact 20% of Americans, and have enormous personal, legal, and policy implications for patients, families, and society. This Nutshell introduces you to the broad range of criminal and civil issues in mental health law, including diagnosis of mental illness; expert testimony on mental health issues; civil commitment; competence to stand trial; the insanity defense; various competencies; ethical/legal issues facing mental health professionals, including informed consent, confidentiality, privilege, and malpractice; discrimination against persons with mental illness; financial and medical benefits for disabled persons.
