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Abstract:
This paper considers the implications of assisted outpatient commitment laws (OPC), with specific focus on New York's "Kendra's Law" through the lens of therapeutic jurisprudence (TJ). Kendra's Law's day-to-day operationalization, the on-going constitutional challenges, the law's potential impact on the delivery of other mental health services in the state, and - most important - the inevitability of a "mistake" (a case in which denial of a Kendra's Law commitment is followed by the commission of a notorious criminal act, or a case in which entry of a Kendra's Law commitment is followed by a patient developing neuroleptic malignant syndrome or some other potentially-fatal antipsychotic drug side effect because of a misdiagnosis or an error in prescription or medication dispensation) all make it inevitable that it will become the centerpiece of the next mental health law debate.

It is thus especially important that a discussion of Kendra's Law also provide a national perspective as well as background on OPC - and how, for decades, OPC has been the paradigm trompe l'oeil illusion of mental disability law. In this paper. I first offer some perspectives on the relationship between involuntary civil commitment and outpatient commitment, with a few brief words about how all of this relates to the concept of the "least restrictive alternative" (LRA). Then, I consider some of the empirical research that's been done on outpatient commitment laws in other jurisdictions - most notably, North Carolina - and focus on both the issues that seemed to matter to whether OPC "worked" and on the impact OPC may have had on "revolving door" commitments. After that, I look at the most controversial aspect of outpatient commitment: its relationship to forced drugging. Here, I consider briefly the civil libertarian critique of OPC/forced drugging laws, look at some important recent developments, and consider the state-of-the-art research done by the MacArthur Research Network on Mental Health.

Finally, I will look closely at Kendra's Law, providing a brief overview of the law itself, and identifying some "pressure points" and pivotal issues in the law. I believe that there are ambiguities in some of the "pressure points" that cry out for resolution, and that the appellate disposition of some of the pivotal issues will provide some clues as to the ultimate "real life" impact of Kendra's Law. Finally, I will consider the TJ implications of Kendra's Law, in part, in an effort to determine how it "fits" into the public's "take" on all of mental disability law.

Abstract:
In this chapter, we will consider the question of how mental health law and human rights law first "met," and then will move on to the challenges facing those who seek to extend international rights protections to persons with mental disabilities. Our thesis is this: the issue of the human rights of people with disabilities had been ignored for decades by the international agencies vested with the protection of human rights on a global scale. A cluster of recent developments - political, legal, social and cultural - have altered the contours of the "playing field" in a such a way as to, finally, help create an environment that is potentially hospitable to a movement that "extends" (the quotation marks are intentionally provocative) human rights to this population. But these rights are often ignored, and other times granted only on paper. We contend that the cause of this is sanism: an irrational prejudice of the same quality and character of other irrational prejudices that cause (and are reflected in) prevailing social attitudes of racism, sexism, homophobia, and ethnic bigotry, that infects both our jurisprudence and our lawyering practices, that is largely invisible and largely socially acceptable, and that is based predominantly upon stereotype, myth, superstition, and deindividualization, and is sustained and perpetuated by our use of alleged "ordinary common sense" (OCS) and heuristic reasoning in an unconscious response to events both in everyday life and in the legal process.

These developments are extraordinarily recent: within the legal literature, it appears that the first time disability rights was conceptualized as a human rights issue was as recently as 1993. For people with mental disabilities, in particular, the development of human rights protections may be even more significant than for people with other disabilities. Like people with other disabilities, people with mental disabilities face degradation, stigmatization, and discrimination throughout the world today. But unlike people with other disabilities, many people with mental disabilities are routinely confined, against their will, in institutions, and deprived of their freedom, dignity, and basic human rights. The challenge we face is to give life to international human rights for this population.

In our chapter, we will present a brief overview of the origins and history of mental disability law, tracing the origins of a civil-rights-protective, legal approach to this "health" issue. We will consider the "missing link" between international human rights law and mental disability law, focusing on the reluctance of mainstream human rights groups to take on the rights of persons with mental disabilities (especially those institutionalized) as a human rights issue. Next, we will trace the "discovery" and the acknowledgment of this "missing link," by examining important reports and UN documents, and the early work of important non-governmental organizations, especially Mental Disability Rights International (MDRI).

We will then consider subsequent developments and accomplishments in this field, including: * the work of international and local advocacy organizations, * the impact of publicity and media coverage of human rights abuses in this arena, * the work of a handful of heroic lawyers and judges in this area of the law, * the relevant caselaw from regional human rights bodies, and * the development of recent important international and domestic legislation and policy, especially the UN Convention on the Rights of Persons with Disabilities.

We will next consider the challenges that need to be addressed in the 21st century, including the thorny issue of limited resources, the need for the creation of meaningful deinstitutionalization and community integration programs, and the absence (or lack of enforcement) of rights-protective mental health legislation. Along with this, we will consider what we term the "universal factors" that appear to corrupt mental disability law in virtually every nation in the world. Finally, we will focus on the pernicious and corrosive power of sanism, which arguably underlies every major challenge faced in this field, and we will conclude that, only by confronting and dealing with sanism's omnipresence, will be have any meaningful chance of redeeming this issue of law and policy.

international human rights law, sanism, mental disability law, United Nations, NGOs

Abstract:
For many years, institutional psychiatry was a major tool in the suppression of political dissent. Moreover, it appears painfully clear that, while the worst excesses of the past have mostly disappeared, the problem is not limited to the pages of history. What is more, the revelations of the worst of these abuses (and the concomitant rectification of many of them) may, paradoxically, have created the false illusion that all the major problems attendant to questions of institutional treatment and conditions in these nations have been solved. This is decidedly not so.

Remarkably, the issue of the human rights of persons with mental disabilities had been ignored for decades by the international agencies vested with the protection of human rights on a global scale. Within the legal literature, it appears that the first time disability rights were conceptualized as a human rights issue was as recently as 1993 when, in a groundbreaking article, Eric Rosenthal and Leonard Rubenstein first applied international human rights principles to the institutionalization of people with mental disabilities.

For people with mental disabilities, in particular, the development of human rights protections may be even more significant than for people with other disabilities. Like people with other disabilities, people with mental disabilities face degradation, stigmatization, and discrimination throughout the world today. But unlike people with other disabilities, many people with mental disabilities are routinely confined, against their will, in institutions, and deprived of their freedom, dignity, and basic human rights. People with mental disabilities who are fortunate enough to live outside of institutions often remain imprisoned by the social isolation they experience, often from their own families. They are not included in educational programs, and they face attitudinal barriers to employment because they have not received the education and training needed to obtain employment or because of discrimination based on unsubstantiated fears and prejudice. Only recently have disability discrimination laws and policies in the United States and elsewhere focused on changing such attitudes and promoting the integration of people with disabilities into our schools, neighborhoods, and workplaces.

The question remains, however: to what extent has institutional, state-sponsored psychiatry been used as a tool of political suppression, and what are the implications of this pattern and practice? In Part I of this article, I discuss the first revelations of the dehumanization inflicted on persons with mental disabilities, primarily (but not exclusively) in Soviet Bloc nations. In Part II, I discuss developments after these revelations were publicized. In Part III, I weigh the extent to which the post-revelation reforms have been effective and meaningful. In Part IV, I explain the meanings of sanism and pretextuality, and discuss how they relate to the topic at hand. Then, in Part V, I raise questions that have not yet been answered, and that, I believe, should help set the research agendas of those thinking about these important issues.

international human rights, mental disability law, political use of psychiatry, sanism, pretextuality

Abstract:
An examination of comparative mental disability law reveals that there are at least five dominant, universal, core factors that must be considered carefully in any evaluation of the key question of whether international human rights standards have been violated. Each of these five factors is a reflection of the shame that the worldwide state of mental disability law brings to all of us who work in this field. Each is tainted by the pervasive corruption of sanism that permeates all of mental disability law. Each reflects a blinding pretextuality that contaminates legal practice in this area.

These are the factors that I identify:

- Core factor #1: Lack of comprehensive legislation to govern the commitment and treatment of persons with mental disabilities, and failure to adhere to legislative mandates
- Core factor #2: Lack of independent counsel and lack of consistent judicial review mechanisms made available to persons facing commitment and those institutionalized
- Core factor # 3: A failure to provide humane care to institutionalized persons
- Core factor #4: Lack of coherent and integrated community programs as an alternative to institutional care
- Core factor # 5: Failure to provide humane services to forensic patients

In this paper, I discuss each of these universal factors, and offer examples from many regions of the world (not primarily from caselaw nor from sophisticated jurisprudential analyses but mostly from reports done by advocacy agencies and non-governmental organizations). Although the picture I paint is bleak, there are some rays of optimism: involvement (albeit tardily) of global human rights groups such as Amnesty International, heroic work by mental disability law-specific groups such as Mental Disability Rights International and the Mental Disability Advocacy Center, the greater readiness of international human rights courts and commissions to consider the substantive claims in institutional condition cases, and the publication of the UN Convention on the Rights of Persons with Disabilities.

mental disability law, international human rights law, institutions, forensic facilities, psychiatry, psychology counsel

Abstract:
Almost all the literature about the influence of sanism and pretextuality on the development of mental disability law has dealt with questions of institutionalization and the rights of persons who are subject to commitment to in-patient psychiatric hospitals. Problems of mental disability, however, are not solely institutional problems. A significant percentage of the public - the vast majority of whom will never be in peril of institutionalization - exhibit some sort of serious mental illness during their lifetime. A much larger percentage exhibits some sign of mental disability or mental disorder. And this population - like the rest of the population - frequently has problems that require resolution by a lawyer and the legal system, among them, contract problems, property problems, domestic relations problems, and trusts and estates problems. In this paper, I consider why there has been so little literature dealing with these issues, and call on scholars to turn their attention to the way that sanism and pretextuality infect this aspect of mental disability law as well.

Mental Disability Law, Jurisprudence, Sanism, Pretextuality

Abstract:
The robust debate over neuroimaging has highlighted a series of law-and-policy questions dealing primarily with reliability, admissibility and availability. When we consider the topic that I will be addressing in this paper - the impact of this evidence on juror decision-making in insanity defense cases - we need to recalibrate our focus so as to incorporate other questions that are as essential (most likely, more essential) to the resolution of the underlying dilemma: (1) to what extent will such evidence - apparently, less inherently easy to falsify - have on jurors whose inherent suspicion of mental state opinion testimony is well-documented, (2) will this falsifiability issue even matter to jurors whose personal values/moral codes reject the motion of any non-responsibility verdict because it is dissonant with their heuristics-driven false ordinary common sense, (3) will there now be some shred of truth in one of the standard insanity defense myths (that the insanity defense is a rich man's ploy); that is, will the rich and famous be able to disproportionately rely on neuroimaging testimony in their trials?, (4) to what extent will sanism and pretextuality drive juror behavior in such cases, and (5) what are the therapeutic jurisprudence implications of the answers to all of these questions?

This presentation addresses, though it does not fully answer, all of these questions in the hopes that other legal scholars will be stimulated to consider them each in depth in the future.

insanity defense, neuroimaging, evidence, jury decisionmaking, criminal procedure

Abstract:
In this paper I consider the question of the extent to which sanism and pretextuality - the factors that contaminate all of mental disability law - do or do not equally contaminate the special education process, and the decision to label certain children as learning disabled. The thesis of this paper is that the process of labeling of children with intellectual disabilities implicates at least five conflicts and clusters of policy issues:

* The need to insure that all children receive adequate education

* The need to insure that the cure is not worse than the illness (that is, that the labeling of a child as being in need of special education services doesn't insure that the child will forever be seen as a second-class citizen)

* The need to consider the ultimate impact this decision may have if the child eventually winds up in the criminal justice system,

* The need to consider the relationship between the decision-making in this system and issues of gender, social class, and race, and

* The need to consider the public's attitude that a learning disability label is an advantage to a child competing for admission to a prestigious university or graduate school.

This paper traces the history of American federal legislation and special education law reform in the American courts; considers some of the real life problems that create pitfalls in the implementation and enforcement of those laws; looks at the meanings of sanism and pretextuality, in an effort to illuminate the insidious ways that stereotyping drives decision-making; considers issues of race and social class, looking specifically at the connection between these issues, sanism and pretextuality, and the implications of that connection for the purposes of this inquiry; considers the unique relationship between special education labeling and the criminal justice system; and looks at the way that special education labeling is seen as somehow different from other types of labeling, noting that some upper-middle class and upper class families sometimes view the label as a strategic or tactical advantage.

Special education, mental disability law, sanism, pretextuality, labelling, criminal justice, learning disabled

Abstract:
For the past three decades, scholars have carefully considered the scope of the right of involuntarily committed psychiatric patients to refuse the administration of medication from a rich array of perspectives, including, but not limited to, clinical perspectives, civil libertarian perspectives, philosophical perspectives, and political perspectives. Yet, virtually all of this - remarkably - passes over what I believe is the single most important issue in real life. This issue is the most relevant to the actual (as opposed to paper) existence of the right and the actual (as opposed to paper) implementation of that right: the availability and adequacy of counsel to represent patients seeking to assert this right to refuse. In spite of the extensive literature and case law that has developed in this area of the law, the topic remains egregiously under-discussed and under-litigated.

Simply put, if active, trained counsel is not provided for patients seeking to interpose this right, then the right becomes nothing more than a paper document: useless and meaningless (and perhaps, counterproductive) in the real world, and yet another in a series of shameful pretexts that dominate this area of the law.

In this paper, I discuss: (1) the generally mediocre job done by lawyers in the involuntary civil commitment process; (2) the equally mediocre job done in the right to refuse treatment process, especially where both courts and legislatures have failed to articulate a universal right to counsel in right to refuse cases;(3) the reasons why counsel is so critical in such cases; (4) the significance of what I call sanism and what I call pretextuality, and the application of a therapeutic jurisprudence mode of analysis to the topic in trying to understand all of this, and (5) these recommendations for the future:

- Each state should adopt procedures that guarantee the appointment of effective, trained counsel to represent patients at both involuntary civil commitment hearings and at right to refuse treatment hearings.
- State attorneys general and county counsels should insist that lawyers representing hospitals in such cases be equally effective and trained.
- Judicial educational agencies such as the National Judicial College should offer regular courses in all aspects of the right to refuse treatment for state court judges.
- All participants in the system should acknowledge the ways that sanism and pretextuality corrupt the judicial process (especially this aspect of the judicial process), confront that corruption, and take seriously the significance of that corruption.
- A therapeutic jurisprudence lens should regularly be applied to this entire area of the law, and courts should begin to consider the issues discussed here through a therapeutic jurisprudence filter.
- Scholars should seriously consider adding this issue to their research agendas.

Psychiatric institutionalization, right to refuse treatment, role of counsel

Abstract:
Little attention has been paid to the importance (if any) of the relationship between therapeutic jurisprudence (TJ) and the role of criminal defense lawyers in insanity and incompetency-to-stand-trial (IST) cases. That inattention is especially noteworthy in light of the dismal track record of counsel providing services to defendants who are part of this cohort of incompetency-status-raisers and insanity-defense-pleaders. On one hand, this lack of attention is a surprise as TJ scholars have, in recent years, turned their attention to virtually every other aspect of the legal system. On the other hand, it is not a surprise, given the omnipresence of sanism, an irrational prejudice of the same quality and character of other irrational prejudices that cause (and are reflected in) prevailing social attitudes of racism, sexism, homophobia, and ethnic bigotry, that infects both our jurisprudence and our lawyering practices, that is largely invisible and largely socially acceptable, and that is based predominantly upon stereotype, myth, superstition, and deindividualization, and is sustained and perpetuated by our use of alleged "ordinary common sense" (OCS) and heuristic reasoning in an unconscious response to events both in everyday life and in the legal process.

In Part I of this paper, I examine the literature that seeks to apply TJ principles to the criminal law process in general, drawing mostly on the work of Professor David Wexler. In Part II, I will consider why the lack of attention that I have referred to already is surprising (given TJ‘s mandate and the fact that many TJ issues are inevitably raised in any insanity or IST case). In Part III, I will then consider why this lack of attention is not surprising, given the omnipresence of sanism. I will then offer some modest conclusions.

As part of this work, I will address these TJ related-issues that are raised by cases involving criminal defendants pleading the insanity defense or for whom the incompetency status has been raised (issues that have never been previously been addressed in any unified way in the literature):

* If a defendant is, in fact, incompetent to stand trial, that means that he does not have "sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding" and/or a "rational as well as factual understanding of the proceedings against him"; how can TJ principles be invoked in such a case?

* If a defendant is initially found to be incompetent to stand trial, will the lawyer act as most lawyers and consider him to be de facto incompetent for the entire proceeding (as a significant percentage of lawyers do act for any client who is institutionalized)?

* If a defendant is found to be incompetent to stand trial, will the lawyer assume that he is also guilty of the underlying criminal charge?

* What are the issues that a lawyer must consider in addition to the client‘s mental state in assessing whether or not to invoke an incompetency determination?

* What are the TJ implications for a case in which the incompetency status is not raised by the defendant, but, rather, by the prosecutor or the judge?

* Are there times when TJ principles might mandate not raising the incompetency status (for example, in a case in which the maximum sentence to which the defendant is exposed is six months in a county workhouse but the defendant is in a jurisdiction in which IST defendants are regularly housed in maximum security forensic facilities for far longer periods of time than the maximum to which they could be sentenced)?

* What are the TJ implications of counseling a defendant to plead - or not to plead - the insanity defense?

* Can a defendant who pleads NGRI ever, truly, "take responsibility"?

* Does the fact that the insanity-pleading defendant must concede that he committed the actus reus distort the ongoing lawyer-client relationship?

* To what extent do the ample bodies of case law construing the "ineffective assistance of counsel" standard established by the US Supreme Court in Strickland v. Washington even consider the implications of TJ lawyering?

* To what extent does the pervasiveness of sanism make it obligatory for lawyers in such cases to educate jurors about both sanism and why sanism may be driving their decisionmaking, and to what extent should lawyers in such cases embark on this educational process using TJ principles?

I conclude the paper by concluding that we must rigorously apply therapeutic jurisprudence principles to each aspect of the insanity defense, so as to strip away sanist behavior, pretextual reasoning and teleological decision making from the insanity defense process, so as to enable us to confront the pretextual use of social science data in an open and meaningful way. This gambit would also allow us to address - in a more successful way than has ever yet been done - the problems raised by the omnipresence of ineffective counsel in cases involving defendants with mental disabilities.

Therapeutic jurisprudence, counsel, insanity, incompetency, criminal procedure, mental disability

Abstract:
For many years, institutional psychiatry was a major tool in the suppression of political dissent. Moreover, it appears painfully clear that, while the worst excesses of the past have mostly disappeared, the problem is not limited to the pages of history. What is more, the revelations of the worst of these abuses (and the concomitant rectification of many of them) may, paradoxically, have created the false illusion that all the major problems attendant to questions of institutional treatment and conditions in these nations have been solved. This is decidedly not so.

Remarkably, the issue of the human rights of persons with mental disabilities had been ignored for decades by the international agencies vested with the protection of human rights on a global scale. For people with mental disabilities, in particular, the development of human rights protections may be even more significant than for people with other disabilities. Like people with other disabilities, people with mental disabilities face degradation, stigmatization, and discrimination throughout the world today. But unlike people with other disabilities, many people with mental disabilities are routinely confined, against their will, in institutions, and deprived of their freedom, dignity, and basic human rights. People with mental disabilities who are fortunate enough to live outside of institutions often remain imprisoned by the social isolation they experience, often from their own families. They are not included in educational programs, and they face attitudinal barriers to employment because they have not received the education and training needed to obtain employment or because of discrimination based on unsubstantiated fears and prejudice. Only recently have disability discrimination laws and policies in the United States and elsewhere focused on changing such attitudes and promoting the integration of people with disabilities into our schools, neighborhoods, and workplaces.

The question remains, however: to what extent has institutional, state-sponsored psychiatry been used as a tool of political suppression, and what are the implications of this pattern and practice? After an Introductory section (Part I), I discuss, in Part II, the first revelations of the dehumanization inflicted on persons with mental disabilities, primarily (but not exclusively) in Soviet Bloc nations. In Part III, I discuss developments after these revelations were publicized. In Part IV, I weigh the extent to which the post-revelation reforms have been effective and meaningful. In Part V, I explain the meanings of sanism and pretextuality, and discuss how they relate to the topic at hand. Then, in Part VI, I raise questions that have not yet been answered, and that, I believe, should help set the research agendas of those thinking about these important issues.

mental disability law, international human rights law, institutions, psychiatry, psychology, forensic facilities, suppression of free speech, China, Russia

Abstract:
In Panetti v. Quarterman, the US Supreme Court expanded upon and clarified its earlier decision in Ford v. Wainwright, barring the execution of persons with mental disabilities who do not have a rational understanding of the reasons for their execution. The Panetti decision, however, has a second holding that may be equally important: that the failure to provide a defendant an adequate opportunity to submit expert evidence in response to the report filed by the court-appointed experts thus deprived him of his constitutionally adequate opportunity to be heard.

Both of these holdings leave open multiple questions that will likely be explored in subsequent cases (how severe does a mental illness have to be to qualify under this standard? how closely will the Court monitor the extent to which lower courts implement the new standard? To what extent does this decision augur a new level of comfort with expert testimony in other sorts of criminal proceedings?). However, the Court chose not to address the question that many observers had thought was at the core of the case: whether a defendant can be medicated so as to make him competent to be executed? Does the Court's decision to not confront this question mean that it will never deal with such a case?

In this discussion of Panetti, I offer some possible answers to these questions.

death penalty, competence to be executed, expert testimony, medication of death row inmates

Abstract:
The path of mental disability law over the past 35 years bears the stamp of the work of Dr. Robert L. Sadoff, one of the leading forensic psychiatrists in the nation. This article tracks the development of civil commitment law, right to treatment law, and right to refuse treatment law, and demonstrates the crucial roles that Dr. Sadoff has played in each of these.

Dr. Robert L. Sadoff, forensic psychiatry, mental disability law, involuntary civil commitment, right to treatment, right to refuse treatment

Abstract:
The author frequently speaks on issues involving the sexuality rights of persons with mental disabilities who are institutionalized. In this article, he discusses the prevalent attitudes of audience members to these presentations, attitudes ranging from anger to denial to projection to transference/countertransference to fear to expressions of religiosity. In some cases, an important connection is made between the speaker and audience members. The article considers these attitudes and seeks to offer explanations for why this is such a threatening topic to so many listeners.

sexuality, persons with mental disabilities, attitudes, rights of persons with mental disabilities to sexual interaction

Abstract:
The roles of forensic psychologists in coerced environments such as corrections include that of treatment provider (for the offender) and that of organizational consultant (for the community). This dual role raises ethical issues in the balance between offender and community rights; an imbalance results in the violation of human rights. A timely reminder of a slippery ethical slope that can arise is the failure of the American Psychological Association to manage this balance regarding interrogation and torture of detainees under the Bush administration. To establish a “bright-line position” regarding ethical practice, forensic psychologists need to be cognizant of international human rights law. In this endeavor, international covenants and a universal ethical code ought to guide practice, although seemingly unresolveable conflicts between ethics codes and the law may arise. The legal theory of therapeutic jurisprudence can assist psychologists to understand the law, the legal system, and their role in applying the law therapeutically to support offender dignity, freedom, and well-being. In this way, a moral stance is taken and the forensic role of treatment provider and/or organizational consultant is not expected to trump the ethical principle “do no harm” with the ethical principle “community protection”.

Forensic psychology, human rights, therapeutic jurisprudence, international human rights law, ethics.

Abstract:
The legal profession has notoriously ignored the reality that a significant number of its members exhibit signs of serious mental illness (and become addicted or habituated to drugs or alcohol at levels that are statistically significantly elevated from levels of the public at large). This is no longer news. What has not been explored is why so much of the bar has remained willfully ignorant of these realities, and why it refuses to confront the depths of this problem.

The roots of this puzzle are found in the social attitude of sanism, an irrational prejudice of the same quality and character of other irrational prejudices that cause (and are reflected in) prevailing social attitudes of racism, sexism, homophobia, and ethnic bigotry, that infects both our jurisprudence and our lawyering practices, that is largely invisible and largely socially acceptable, and that is based predominantly upon stereotype, myth, superstition, and deindividualization, is sustained and perpetuated by our use of alleged ordinary common sense (OCS) and heuristic reasoning in an unconscious response to events both in everyday life and in the legal process.

Just as lawyers are sanist towards clients with mental disabilities, they are sanist towards their peers with mental disabilities. This presentation will (1) explain sanism, (2) describe its impact upon the legal system with special attention paid to the narrow but important question of its impact on lawyers who represent persons with mental disabilities, (3) speculate as to why lawyers are as susceptible (or more susceptible) to sanism's pernicious power as others, and then consider (4) how a consideration of and an application of therapeutic jurisprudence principles to this problem may eventually have a redemptive effect.

Disability, sanism, legal profession, ADA, therapeutic jurisprudence

Abstract:
There has been surprisingly little literature about two of the most important issues that affect the way the right of institutionalized psychiatric patients to refuse medication is implemented in an institutional setting: the attitudes of the parties concerned (patients and staff), and the adequacy of counsel that is made available to patients seeking to invoke their constitutional right to refuse. The lack of literature on these issues reflects, I believe, a deeper issue: the extent to which we, as a society, trivialize what is at stake in the right to refuse treatment litigation and trivialize the personhood of those in institutions subject to such medications.

If appellate courts enter broad orders in right to refuse cases without thinking about the operationalization of these orders in subsequent individual cases (or if only perfunctory assignment of disinterested counsel is made), the initial order becomes little more than a pretext. And if other appellate courts close their eyes to the level of inadequacy of counsel, this willful blindness simply adds one extra layer of pretextuality to the process.

We also need to consider some other underlying social issues. The common wisdom is clear here. Drugs serve two major purposes of social control: they cure dangerousness, and they are the only assurance that some deinstitutionalized patients can remain free in community settings. Both of these assumptions are reflected in the case law that has developed in individual involuntary civil commitment cases (in which a judge's perception of the likelihood that an individual will self-medicate becomes the critical variable in case dispositions); they are also reflected in the public discourse that is heard in classrooms, hospital corridors, and courtrooms.

Neither of these assumptions has any basis in science or in law. Yet, without counsel to serve as a brake - to ask questions, to challenge assumptions, to identify faux "ordinary common sense", to point out the dangerous pitfalls of heuristic thinking - these assumptions will continue to dominate and control the disposition of individual right to refuse treatment cases.

Again, counsel's significance increases even more drastically here in the context of the improper presumption of incompetency indulged in by many trial judges. Without vigorous, independent counsel, it is doubtful that challenges to this improper presumption would ever be launched. This is especially problematic in light of the fact that the equation of incompetency to mental illness does appear consonant with ordinary common sense. Counsel's role is especially important in areas of the law where ordinary common sense is so dissonant with empirical fact. If there is any expectation that these issues be considered thoughtfully and critically, it is essential that the issue of counsel presence and adequacy be moved to center stage.

right to refuse treatment, patient/staff attitudes, adequacy of cousel, sanism pretextuality

Abstract:
This paper considers the implications of neuroimaging in three under discussed aspects of criminal procedure - the implications of Ake v. Oklahoma (an indigent defendant's access to expert testimony) in cases where neuroimaging tests might be critical, (2) the defendant's competency to consent to the imposition of a neuroimaging test or examination; and (3) the impact of medications - specifically, antipsychotic medications - on a defendant's brain at the time that such a test is performed.

Given the warning signals that have been raised by commentators as to the potentiality of juror misuse and misinterpretation of neuroimaging testimony, it is critical that we take seriously the issues raised here. I conclude that there are hidden landmines inevitably present when we think about the use of neuroimaging in criminal trials - landmines that go can infect the fairness of the trial process itself.

If an indigent criminal defendant is refused access to an independent expert in an area where jurors may uncritically accept neuroimaging testimony (because of its visual appeal and its apparent lack of falsifiability), the fairness of the entire trial remains in question. If no attention is paid to the difficult and complex ethical issues that should surface if the question of the defendant's competency to consent to being tested is not raised, trial fairness is a concern. And finally, if we ignore the reality that the neuroimaging evidence shown to jurors may not be an accurate depiction of the defendant's brain at the time of the offense - but rather, a depiction of his brain at a later time when his brain biochemistry has been altered by the imposition of medication - we willfully blind ourselves to the possibility (perhaps "likelihood") that the database presented to the jury is potentially fatally flawed.

insanity defense, competency to consent, evidence, right to expect assistance, criminal procedure, neuroimaging, jury decisionmaking, antipsychotic medication

Abstract:
The quality of counsel assigned to represent individuals facing involuntary civil commitment to psychiatric hospitals is, in most American jurisdictions, mediocre or worse. In many other nations, it is non-existent, or so minimal as to offer only the illusion of legal safeguards. (Perhaps) remarkably, there has been virtually no mention of this latter scandal in the legal literature. Also, there has been little attention paid to this development by the clinical education movement (domestically and globally).

A variety of interrelated factors, however, may shed some light on this scandal, and may, encouragingly, lead to social change in the future:

- emerging caselaw construing the European Convention on this issue

- the publication of the United Nations Convention on the Rights of Persons with Disabilities which will eventually focus international attention on this issue

- the first burst of professional interest in this issue, as evidenced by programs, workshops and panels at the Congress of the International Academy of Law and Mental Health, and other interdisciplinary groups that focus on questions of psychology, psychiatry and law

- the focus by mental disability law-specific NGOs (e.g., Mental Disability Rights International; Mental Disability Advocacy Center) on institutional conditions in Central and Eastern Europe and in Central and South America, calling attention to this issue, and

- the emergence of the Global Alliance for Justice Education as a factor in the promotion of socially relevant legal education, similarly calling attention to these issues.

This paper will proceed in this manner. In Part I, I will review developments in the United States, with special focus on the Montana case of In the Matter of the Mental Health of K.G.F., without doubt the most comprehensive decision on the scope of and meaning of the right to counsel in this context from any jurisdiction in the world. In Part II, I will survey an array of other jurisdictions (common law, civil law, and mixed), and consider the range of findings (from nations in which there is no counsel, to perfunctory-at-best-counsel, to almost-adequate counsel). In Part III, I will consider other major legal, political and social developments that may, it is hoped, shine some light on these issues. In Part IV, I will examine these issues from the perspective of clinical legal education. In Part V, I will consider the impact of sanism and pretextuality on these developments. Finally, I will offer some modest conclusions.

Sanism is an irrational prejudice of the same quality and character of other irrational prejudices that cause (and are reflected in) prevailing social attitudes of racism, sexism, homophobia, and ethnic bigotry. See infra Part V.

Pretextuality defines the ways in which courts accept (either implicitly or explicitly) testimonial dishonesty and engage similarly in dishonest (and frequently meretricious) decisionmaking. See infra Part V.

Human rights, Right to counsel, Psychiatric hospitalization, Civil commitment, Clinical education

Abstract:
The so-called battle of the experts is, in most cases, a myth. The vast majority of insanity cases are walk-throughs; most cases involving competency to stand trial determinations never reach the contested trial stage. Yet, those case that are contested are vivid (not coincidentally, often because they involve high-profile crimes, victims or defendants, thus assuring saturation media coverage), and we tend to make many of our assumptions about the criminal justice system based on our knowledge about this relatively-small database.

And it is these cases that help shape our focus on an important question of forensic ethics: to what extent does a witness's pre-existing value system of political, cultural, and social beliefs shape her expert opinions (especially, though not exclusively, in criminal and quasi-criminal cases)? Studies by Homant and Kennedy tell us that an expert's opinion in insanity defense cases and civil psychic trauma trials positively correlates with the expert's underlying political ideology. And certainly there are experts who testify only (or virtually only) for the state or for defendants, although, anecdotally, witnesses who split their time (testifying on both sides) appear to have greater credibility with at least some trial judges and juries because of that fact.

In a series of articles and a book (The Hidden Prejudice: Mental Disability on Trial), I have explored the impact of what I call sanism and what I call pretextuality in the mental disability law system. I have concluded that it is impossible to understand any aspect of mental disability law without an understanding of the corrosive and malignant impact of these factors

To the best of my knowledge, no one has ever yet explored the connection between sanism and pretextuality and the question of forensic ethics: to what extent do (some) witnesses's pre-existing social/cultural/political stances on issues dominate and color their professional practices, and to what extent, if any, does this effect reflect sanism and pretextuality? I will modestly attempt a first tentative answer to this question in this paper, and will then consider all questions through a therapeutic jurisprudence filter.

expert testimony, forensic ethics, sanism, pretextuality, personal values, therapeutic jurisprudence

Abstract:
This article is a commentary on Michael Ashley Stein & Janet Lord, Jacobus TenBroek, Participatory Justice, and the UN Convention on the Rights of Persons with Disabilities, - Tex. J. Civ Lib. & Civ. Rts. - (2008) (in press). In it, I seek to expand their analysis of the new UN Convention on the Rights of Persons with Disabilities in an effort to invigorate an area of institutionalized patients rights law that is now nearly forgotten: the rights of such persons to exercise civil rights while institutionalized. I also argue that Prof. Stein and Ms. Lord's paper should lead us to focus also on the issues of attitudes, and how authentic amelioration and law reform in this area is impossible unless and until we begin to consider how negative and stereotypical attitudes towards persons with mental disabilities are formed and perpetuated. I conclude that the demand for participatory justice for persons with disabilities cannot be satisfied unless and until we turn our attention to attitudinal issues.

international human rights law, mental disability law, sanism, institutional rights, participatory justice

Abstract:
This article introduces a Symposium on Perspectives on Mental Disability Law that appears in the most recent issue of the New York Law School Law Review.

The articles deal with a variety of perspectives on mental disability law - the status of sex offenders, the role of advocacy organizations, assisted outpatient treatment, institutional rights - but each explores the tensions present when the question is raised as to whether institutionalized persons are being treated "as human beings" (Falter v. Veterans Administration, 502 F.Supp. 1178, 1185 (D.N.J. 1980) (Ackerman, J.). All share a constant leitmotif: the ways that we as a society, simply put, do not take seriously the impact of institutionalization on persons with mental disabilities, and the ways that we continue to marginalize and dehumanize such individuals, sometimes under the guide of public protection, sometimes under the guise of benevolence.

We come to these conclusions when looking at this cohort of articles: 1. Our "ordinary common sense" about persons who are institutionalized is usually wrong. 2. Sanism and pretextuality continue to dominate our social policies. 3. Issues of mental disability cannot be meaningfully uncoupled from other social issues such as race or class discrimination 4. Therapeutic jurisprudence is a necessary palliative to remediate the factors just discussed..

The individuals written about in the essays here are all marginalized. Their marginalization has led to their being treated as somehow less worthy of legal protection than others. For nearly three decades, we have continued to ignore Judge Ackerman's cautionary advice - to treat them "like human beings."

sanism, pretextuality, mental disability law, sex offenders, afvocacy, counsel, outpatient treatment, institutional rights

Abstract:
There has been an explosion of interest in therapeutic jurisprudence as both a filter and lens for viewing the extent to which the legal system serves therapeutic or anti therapeutic consequences. However, little attention has been paid to the impact of therapeutic jurisprudence on questions of international human rights law and the role of forensic psychologists. Human rights are based on legal, social, and moral rules. The paper will propose that human rights principles can add to the normative base of therapeutic jurisprudence, and in turn, therapeutic jurisprudence can assist forensic psychologists to actively address human rights. As duty bearers, forensic psychologists need to address the core values of freedom and wellbeing in rights holders (in this instance, prisoners and detainees with a mental illness).

International Human Rights law, therapeutic jurisprudence, forensic psychologists, prisoners & detainees, mental illness

Abstract:
As recently as fifteen years ago, disability was not broadly acknowledged as a human rights issue. Although there were prior cases decided in the United States and in Europe that, retrospectively, had been litigated from a human rights perspective1 the characterization of "disability rights" (especially the rights of persons with mental disabilities) was not discussed in a global public, political or legal debate until the early 1990s. Instead, disability was seen only as a medical problem of the individual requiring a treatment or cure. By contrast, viewing disability as a human rights issue requires us to recognize the inherent equality of all people, regardless of abilities, disabilities, or differences, and obligates society to remove the attitudinal and physical barriers to equality and inclusion of people with disabilities.

The recent ratification of the United Nations Convention on the Rights of Persons with Mental Disabilities (CRPD) has the potential to create the most significant tectonic plate shift in mental disability law since the United States Supreme Court, finally, in 1972, agreed that the due process clause of the US Constitution applied to persons institutionalized because of mental disability. I believe that this new international law truly has the potential to force us to reconceptualize everything that we have thought of as the "accumulated truths" of mental disability law.

Rights of patients, International Human Rights, mental disability law, United Nations Convention on the Rights of Persons with Disabilities

Abstract:
Cultural competency is critical in criminal forensic evaluations. Cultural competency eschews reliance on stereotype, precluding the mistake of assuming that cultural dictates apply with equal force to all who share a cultural background, thus allowing the forensic examiner to provide a comprehensive picture of the defendant to the factfinder. While raised frequently in death penalty cases, it is equally important to the entire criminal process. Cultural sensitivity in test selection and interview techniques that enhance validity of results are addressed. In a parallel fashion, ratification of the UN Convention on the Rights of Persons with Disabilities has drawn importance to cultural competency. Although international human rights and cultural sensitivity have been considered with regard to race, gender and religion, applications to criminal matters are still in their infancy. This paper considers strategies to enhance the effectiveness of testimony and mitigation efforts.

forensic evaluations, cultural competency, mental disability law, sentencing, death penalty, international human rights, forensic psychology, forensic neuropsychology, nitigation, UN Convention on the rights of persons with disabilities

Abstract:
Over the past three decades, the US judiciary has grown increasingly less receptive to claims by convicted felons about the conditions of their confinement while in prison. Although courts have not articulated a return to the 'hands off' policy of the 1950s, it is clear that it has become significantly more difficult for prisoners to prevail in constitutional correctional litigation. The passage and aggressive implementation of the Prison Litigation Reform Act has been a powerful disincentive to such litigation in many areas of prisoners' rights law.

From the perspective of the prisoner, the legal landscape is more hopeful in matters that relate to mental health care and treatment. Here, in spite of a general trend toward more stringent applications of standards of proof and a reluctance to order sweeping, intrusive remedies, some courts have aggressively protected prisoners’ rights to be free from 'deliberate indifference' to serious medical needs, and to be free from excessive force on the part of prison officials.

A mostly hidden undercurrent in some prisoners' rights litigation has been the effort on the part of some plaintiffs' lawyers to look to international human rights doctrines as a potential source of rights, an effort that has met with some modest success. It gets support by the inclination of other courts to turn to international human rights conventions, even in nations where such conventions have not been ratified, as a kind of 'best practices' in the area.

The recent publication and subsequent ratification (though not, as of yet, by the United States) of the UN Convention on the Rights of Persons with Disabilities (CRPD) may add new support to those using international human rights documents as a basis for litigating prisoners' rights claims. To the best of our knowledge, there has, as of yet, been no scholarly literature on the question of the implications of the CRPD on the state of prisoners' rights law in a US domestic context. In this paper, we raise that question, and offer some tentative conclusions.

Corrections, prison litigation, mental health, psychology, international human rights, UN Convention on the Rights of Persons with Disabilities, Prison Litigation Reform Act

Abstract:
The question of how courts assess expert evidence - especially when mental disability is an issue - raises the corollary question of whether courts adequately evaluate the content of the expert testimony or whether judicial decision making may be influenced by teleology (‘cherry picking’ evidence), pretextuality (accepting experts who distort evidence to achieve socially desirable aims), and/or sanism (allowing prejudicial and stereotyped evidence). Such threats occur despite professional standards in forensic psychology and other mental health disciplines that require ethical expert testimony. The result is expert testimony that, in many instances, is at best incompetent and at worst biased. The paper details threats to competent expert testimony in a comparative law context - in both the common law (involuntary civil commitment laws and risk assessment criminal laws) and, more briefly, civil law. We conclude that teleology, pretextuality, and sanism have an impact upon judicial decision making in both the common law and civil law. Finally, we speculate on whether the new United Nations Convention on the Rights of Persons with Disabilities is likely to have any impact on practices in this area.

expert testimony, criminal law, civil law, psychologists, risk assesment, mental disability law, international human rights law

Abstract:
One of the most controversial policy questions in all of institutional mental disability law is the extent to which patients in psychiatric hospitals have a right to voluntary sexual interaction. The resolution of this matter involves the resolution of difficult and sensitive questions of law, social policy, clinical judgment, politics, religion, and family structures.

As difficult as these questions are in cases involving civil hospitals, the difficulties are exacerbated when the topic is the application of the right in forensic hospitals. Such facilities typically house individuals involved in the criminal justice system (either those who may be incompetent to stand trial, those who have been found to be incompetent to stand trial, those who have been found not guilty by reason of insanity, or, in some cases, those convicted of crimes). These statuses raise public concerns about the populations in question, the extent to which they are entitled to exercise civil rights while institutionalized, and the potential additional danger that might be associated with the granting of sexual freedom to this population. A different set of difficulties are present when we consider the application of this right in hospitals (whether civil or forensic) in Asia, where the notion of "patients rights" regrettably lags far behind the construction of such rights in Western nations.

It is impossible to meaningfully come to grips with the multiple issues presented in this paper without also coming to grips with the social attitude of sanism, an irrational prejudice of the same quality and character of other irrational prejudices that cause (and are reflected in) prevailing social attitudes of racism, sexism, homophobia, and ethnic bigotry. Sanism infects both our jurisprudence and our lawyering practices; it is largely invisible and largely socially acceptable, is based predominantly upon stereotype, myth, superstition, and deindividualization. It is sustained and perpetuated by our use of alleged "ordinary common sense" (OCS) and heuristic reasoning in an unconscious response to events both in everyday life and in the legal process.

In this paper, I will (1) discuss the state of the law that applies to sexual autonomy in psychiatric institutions, (2) review the social policy issues as they relate to (a) forensic patients, (b) Asia, (3) explain the pernicious impact of sanism, and (4) seek to offer some tentative solutions to the underlying dilemmas.

Psychiatric Hospitalization, Forensic International Human rights Law, Sexual autonomy, Mental Disability law, Asia, Rights of patients, Hospitals

Abstract:
There is a robust clinical literature on how issues of race and gender may influence all aspects of the clinical setting: the relationship between student and client, the relationship between student and student, the relationship between student and clinical supervisor, the attitude of the fact-finder toward the clinical client. But there has been virtually no attention paid to the role of sanism in the clinical setting.

Sanism is an irrational prejudice of the same quality and character as other irrational prejudices that cause and are reflected in prevailing social attitudes of racism, sexism, homophobia and ethnic bigotry. It permeates all aspects of mental disability law, and affects all participants in the mental disability law system: fact finders, counsel, expert and lay witnesses. Its corrosive effects have warped mental disability law jurisprudence in involuntary civil commitment law, in institutional law, in tort law, and in all aspects of the criminal trial process.

Sanist myths exert especially great power over lawyers who represent persons with mental disabilities. The use of stereotypes, typification, and deindividualization inevitably means that sanist lawyers will trivialize both their clients' problems and the importance of any eventual solution to these problems. Sanist lawyers implicitly and explicitly question their clients' competence and credibility, a move that significantly impairs their advocacy efforts.

These phenomena are especially troubling in the clinical setting, in which students are exposed for the first time to the skills that go to the heart of the lawyering process: interviewing, investigating, counseling and negotiating. All of these are difficult for us (and our students) to learn, but this difficulty is significantly increased when the client is a person with mental disability (or one so perceived). The difficulties can be further exacerbated when the clinical teacher - either overtly or covertly - expresses sanist thoughts or reifies sanist myths. And sanism problems continue at every "critical moment" of the clinical experience: the initial interview, case preparation, case conferences, planning litigation (or negotiation) strategy, trial preparation, trial and appeal.

This paper will explore (1) the meaning of sanism, (2) the general impact of sanism on the representation of persons with mental disabilities, (3) the special problems faced when sanism infects the clinical teaching process, and (4) some tentative solutions to this dilemma.

Abstract:
Mental Disability law is contaminated by "sanism," an irrational prejudice similar to such other irrational prejudices as racism and sexism. The passage of the Americans with Disabilities Act (ADA) - a statute that focused specifically on questions of stereotyping and stigma - appeared at first to offer an opportunity too deal frontally with sanist attitudes and, optimally, to restructure the way that citizens with mental disabilities were dealt with by the remainder of society. However, in its first decade, the ADA did not prove to be a panacea for such persons. The Supreme Court's 1999 decision in Olmstead v. L.C. - ruling that the ADA entitled certain state hospital residents to treatment in an "integrated community setting," and stressing that "unjustified isolation...is properly regarded as discrimination based on disability" - appeared to have the potential to transform and revolutionize mental disability law. This Article questions whether Olmstead has done that, and whether, in fact, it has the capacity to do that. Furthermore, a review of post-Olmstead caselaw - a universe that is "pretty pallid" - and the meager (in volume) scholarship, conclude that, in spite of Olmstead, "there are still many sanist attitudes that need to be undone."

Abstract:
Clinical legal education is both more exhilarating and more stressful than "traditional" legal education. It forces students to confront their pre-existing assumptions about the practice of law and the representation of clients (frequently, indigent and marginalized individuals), and it similarly forces them to integrate new doctrine, theory, and practice in a very different way than "regular" law classes demand.

Therapeutic jurisprudence considers the role of the law as a therapeutic agent, and examines all aspects of the legal system in an effort to determine whether it is operating therapeutically or anti-therapeutically, and suggests that legal decision-makers consider the potential impact that legal judgments may have on individuals' well-being.

Therapeutic jurisprudence has several applications to clinical teaching: It (1) improves the teaching of skills, (2) gives clinical teachers a better understanding of the dynamics of clinical relationships, (3) investigates ethical concerns and the effect on lawyering roles, and (4) invigorates the way teachers and students question accepted legal practice.

Abstract:
This article argues that the Supreme Court's decision in Olmstead v. L.C., 119 S. Ct. 2176 (1999), finding a qualified right to community treatment and services for certain institutionalized persons under the Americans with Disabilities Act (ADA), causes us to reconceptualize state policies that mandate that all defendants in four categories - those being evaluated for competency to stand trial, those found permanently incompetent to stand trial under the Supreme Court's decision in Jackson v. Indiana, 406 U.S. 715 (1972), those being evaluated for insanity, and those found not guilty by reason of insanity - be treated and housed in the state's maximum security forensic facility. It concludes that such across-the-board policies that fail to take into account the severity of the crime with which the defendant is charged, the degree of his current dangerousness, and the severity of his mental illness violate the ADA under the terms of the Olmstead decision.

Abstract:
This article argues that the Supreme Court's decision in Olmstead v. L.C., 119 S. Ct. 2176 (1999), finding a qualified right to community treatment and services for certain institutionalized persons under the Americans with Disabilities Act (ADA) and endorsing an "integration mandate," forces us to reconsider the role of the "least restrictive alternative" in institutional mental disability law, and may serve to resuscitate and revitalize the constitutional foundations of that principle in this area of the law. In this context, Olmstead has the capacity to be the Supreme Court's most therapeutic mental disability law decision since that Court decided, in Jackson v. Indiana, 406 U.S. 715 (1972), that the "nature and duration" of civil commitment were constitutionally bound.

Abstract:
Olmstead v. L.C., 119 S. Ct. 2176 (1999), qualifiedly affirming a decision that the Americans with Disabilities Act entitled plaintiffs - residents of Georgia State Hospital - to treatment in an "integrated community setting" as opposed to an "unnecessarily segregated" state hospital, potentially has the capacity to transform and revolutionize institutional mental disability law. Whether that potential is realized depends on multiple factors, especially the extent to which courts, legislatures and the public are willing to confront the extent to which sanism (an irrational prejudice of the same quality and character of other irrational prejudices that cause and are reflected in prevailing social attitudes of racism, sexism, homophobia and ethnic bigotry) and pretextuality (ways that courts accept and even encourage, either implicitly or explicitly, testimonial dishonesty, especially on the part of expert witnesses) in the law.

Abstract:
Mental disability law jurisprudence is often incoherent Much of its incoherence can be explained by two concepts that dominate this area of the law: sanism (the irrational prejudices that cause, and are reflected in, prevailing social attitudes toward mentally disabled persons, and those so perceived) and pretextuality (the courts' acceptance -- either implicit or explicit -- of testimonial dishonesty and their decisions to engage in dishonest decisionmaking in mental disability law cases). Mental disability law is frequently premised on stereotypes and on prejudice, on typification and fear. These distortions reflect sanism; cases that sanction the use of such stereotypes and prejudice reflect pretextuality.

In this article, I demonstrate how these constructs help explain much of what is irrational about such areas of mental disability law as, inter alia, civil commitment, the meaning of "dangerousness," competency to consent to treatment, judicial interpretations of the Americans with Disabilities Act, the relationship between mental disability and the death penalty, and deceptions in expert testimony.