CHAPTER ELEVEN
CHAPTER OBJECTIVES
► Know how the mentally ill were treated in America from the colonial period onward.
► Understand the meaning of competency in the American legal system.
► Know some of the essential features of a psychological competency evaluation.
KEY TERMS
Assisted outpatient treatment Dusky v. United States
Kansas v. Hendricks Not guilty by reason of insanity
O’Connor v. Donaldson Right to treatment
LECTURE NOTES
Capacity and Incapacity
Competency in the Civil Justice System
In the civil justice system this may involve competency to make a contract, understand
the terms of a will, competency to decide medical treatment, and competency to consent to
research.
Competency to Make a Contract
For a contract to be valid and enforceable the parties must be capable of understanding
their mutual obligations. Persons who are so disabled by mental illness that they are unable to
understand the nature of a transaction in a reasonable manner, usually also lack the legal capacity
Competency to Make a Will (testamentary capacity)
When a will is contested (i.e. its validity is officially doubted), it is usually because of one of two
possible factors. The first is that that the testator (i.e. the person making the will) lacked
testamentary capacity. This would be the case if the testator was somehow mentally
incompetent at the time of signing the will. The second reason is that the testator was subject to
undue influence such as coercion, manipulation, deception, compulsion, intimidation, etc.
Competency to Decide Regarding Treatment (informed consent)
Informed consent is the process by which a fully informed patient can participate in choices
about his or her health care. Some of the elements involved in informed consent include
reasonable alternatives to the proposed intervention, risks and benefits of the intervention, and
the patient’s understanding of the proposed treatment or intervention. The patient must be
considered competent in order for any consent to be held as being valid.
Competency to Consent to Research
Are psychiatric inpatients more likely than non-patients to consent to research, and therefore be
more needy of protection? Actually, the opposite seems to be the case.
Means of Protecting Individuals who are Incompetent to make Decisions
In the civil justice system there are two primary means of protecting individuals who are
incompetent to make vital decisions for themselves − guardianship and conservatorship.
Guardianship
This is one of the most ancient aspects of mental health law. Under English common law, the
sovereign possessed the power and duty to “guard” the estate of incompetent persons.
Conservatorship
This is a court-appointed relationship in which the conservator becomes the surrogate decision
maker for matters concerning the property and/or income of a person deemed incapable of
administering his or her own financial affairs because of physical, mental, or other incapacity.
Competency in the Criminal Justice System
In criminal cases, the capacity to comprehend legal proceedings and communicate with
an attorney, or to understand and waive certain rights, such as the right to remain silent
The authority of the Government to Control its Citizens originates from three places
The first two are based in the criminal law, the third is part of the civil law.
The Police Power
The government’s police power authorizes the state to protect the community and to
incarcerate individuals who are threats to the public or who have committed crimes.
The criminal justice authority
incarceration of individuals brought to it by the police.
The state’s parens patriae authority
The parens patriae power operates as the general guardian of all those who cannot care for
Competence to stand trial
The question of whether s defendant is competent to stand trial is the most commonly assessed
issue in the criminal justice system. Competence to stand trial refers to a defendant’s ability to
function in a meaningful fashion in a legal proceeding. Although most often raised in pretrial
hearings, a defendant’s competence is relevant at every stage of the criminal justice process and
can be raised at any point.
Dusky v. United States (1960)
In Dusky, the Supreme Court set forth a definition of competency to stand trial that has
since come to be the standard in federal court and most state jurisdictions as well. The
Court stressed that the important questions that must be answered when evaluating
competence:
Constitutional Standards of Care
Right to Liberty
The right to liberty is at the center of all the rights relating to patients in state confinement.
Right to Safety
Involuntarily committed residents of state mental retardation institutions have a constitutional
right to reasonably safe conditions of confinement, freedom from unreasonable bodily restraints,
and habilitation.
Youngberg v. Romeo (1982)
Right to Treatment
There is no constitutional “right to treatment” in this country. However, the Constitution does
guarantee that individuals in custody or confined are entitled to something more than just
custodial care, or worse yet, “storage.”
O’Connor v. Donaldson (1975)
In O’Connor, Kenneth Donaldson was committed to Florida’s Chattahoochee State Hospital in
1956 for having, among other things, paranoid delusions. Donaldson denied he was ill and
We hold that a person involuntarily civilly committed to a state mental hospital has a
constitutional right to receive such individual treatment as will give him a reasonable
opportunity to be cured or to improve his mental condition. In reaching this result,
we begin by noting the indisputable fact that civil commitment entails a “massive
curtailment of liberty” in the constitutional sense….the due process clause [of the
Constitution] guarantees a right to treatment. . . . (O’Connor v. Donaldson, 1975).
(Emphasis added).
The right to treatment established in O’Connor has since been expanded to an individualized right
to treatment geared to the particular patient.
Wyatt v. Stickney (2003)
The 1970 case of Wyatt v. Stickney presented a federal question regarding the minimum
Right to Least Restrictive Alternative
In Wyatt, the court described the beneficial movement of residents of mental institutions from (1)
Right to Refuse Involuntary Medication
Until the 1970’s people who were civilly committed or criminally insane could be forcibly
medicated regardless of their competency to make treatment decisions.
The Competency Evaluation
Between 25,000 and 39,000 competency evaluations are conducted in the United States each year.
Traditionally, forensic psychologists and psychiatrists have focused on the presence or absence of
The Assessment Process and Psychological Report
Even before meeting with a defendant (the examinee) for the first time, the forensic psychologist
should speak with both the prosecution and the defense as a means of discovering the reasons behind the
request for the evaluation.
Jackson v. Indiana (1972)
Prior to 1972, there was no legal direction on how long an incompetent defendant can be held, and
some were held indefinitely. But in that same year came the case of Jackson v. Indiana in which the
At the present time the length of commitment of incompetent defendants varies from state to state.
Can Competency be restored against a Defendant’s Will?
There are two general scenarios involving restoration of competency of incarcerated individuals.
Riggins v. Nevada (1992)
In Riggins v. Nevada (1992), the Court was faced with the issue of involuntarily medicating a
United States v. Weston (2001)
For the first time, a federal court established a legal precedent for forcibly administering medication
to restore competency in a case of a federal Capitol crime. The case was based on the events of July 24,
1998, when Russell Eugene Weston, armed with a .38 caliber revolver forced his way past security
checkpoints at the United States Capitol and shot and killed Capitol police officers Jacob Chestnut
and John Gibson.
The Historical Basis of the Insanity Defense
In the 13th Century, the English Lord Bracton established the principle of mental deficiency in
human behavior. He said that some people simply do not know what they are doing and act in a
manner “as to be not far removed from the brute” (Menninger, 1968).
The M’Naughten Rule
Daniel M’Naughten shot and killed the British Prime Minister‘s secretary in 1843 and
The Model Penal Code: turning responsibility to the jury
In 1962, the American Law Institute (“ALI”) drafted the Model Penal Code test in an
attempt to solve problems of earlier insanity tests. This rule says that a defendant is not
responsible for criminal conduct where he/she, as a result of mental disease or defect, did not
possess “substantial capacity either to appreciate the criminality of his conduct or to conform
his conduct to the requirements of the law.”
Not Guilty by Reason of Insanity (NGRI) v. Guilty But Mentally Ill (GBMI)
In the trial of John Hinkley (for attempting to assassinate President Reagan and seriously
wounding Reagan’s press secretary and various law enforcement personnel), Hinkley was found
“not guilty by reason of insanity.” In the aftermath of the trial, twelve states established a
separate verdict of “guilty but mentally ill” (GBMI). The primary difference with regard to the
Civil Commitment
The total number of persons involuntarily committed on any given day in the United States is
approximately 39,868 (Parry, 2005).
History
In colonial America incompetent persons were the responsibility of their families.
town to town. It was not until 1773 in Williamsburg, Virginia, when the first hospital devoted
exclusively to the mentally disabled was constructed.
Types of Civil Commitment
There are today three types of commitment for persons with mental illness:
1. Inpatient commitment (to an institution)
2. Outpatient commitment (to the community with close monitoring by a government agency)
Inpatient Civil Commitment
The inpatient commitment statutes of every state and the District of Columbia require some
combination of mental illness and dangerousness as prerequisites for commitment.
Outpatient Civil Commitment
Alternatively referred to as Assisted Outpatient Treatment or “AOT,” this is designed to help
patients adhere to a treatment plans, prevent psychological relapse, and function out of the
Sexually Violent Predator Commitment
This type of civil commitment has become increasingly more prevalent since the mid-1990s. It
Involves confining sex offenders after their sentence has been served because they are deemed too
dangerous to be released into society.
SUMMARY
The first American hospital for the exclusive care of people with mental disorders was
established in 1773, in Williamsburg, Virginia. During the next 180 years these “asylums” became
“warehouses” for individuals with mental disorders (and others) without sufficient procedural
safeguards. From 1955 to 1975, with the advent of psychotropic medication and the proliferation
of the community mental health movement, treatment of the mentally ill moved from the
institution to the community.
There is no psychiatric diagnosis that always renders a defendant incompetent to stand
trial or waive constitutional rights. Even the presence of psychosis is not sufficient by itself for
such a finding. People with schizophrenia or bipolar illness are not incompetent per se, and those
with less serious diagnoses are not necessarily competent. In order for a court to make a
determination on the competency issue, a forensic evaluation and subsequent report are often
required. The drafting of a forensic report requires the examiner to organize, weigh, and
integrate data from various sources. At the minimum, reports should include the circumstances
of the referral, nature of clinical contacts, collateral data sources, relevant personal background
information, clinical findings, and conclusions.
Trial competence is different from criminal responsibility. The former refers to current
ability to understand and participate in the trial process. Criminal responsibility (sanity) refers to
one’s state of mind at the time of the alleged crime. The primary test of insanity up until the
mid-1950s in this country was the M’Naughten Test which required proof that the individual
was, at the time he or she committed the offense, under defect of reason resulting from a disease
of the mind and that such a defect resulted in the individual’s not being able to recognize the
nature and quality of his actions (or not knowing that such actions were wrong). Most states
adhere to the M’Naughten test or the American Law Institute’s Model Penal Code (substantial
capacity) test for insanity defenses.
REVIEW QUESTIONS
1. In the middle ages, what was thought to be the cause of mental disorders?
2. Who were responsible for caring for the mentally ill in colonial America?
6. What does the Sixth Amendment guarantee to a criminal defendant?
7. How is the “right to liberty” relevant to patients in state confinement?
8. How is the competency standard for pleading guilty related to that for standing trial?
9. Is a psychiatric diagnosis alone sufficient for rendering a defendant incompetent?
12. Under what circumstances can a defendant receive medication against his will?
13. How is trial competence different from criminal responsibility?
14. What does the M’Naughten Rule for insanity hold?