Mental Health Law I: Legal Precedent in Everyday Clinical Practice Flashcards
(34 cards)
informed consent
a person cannot legally agree (consent) to a given course of action unless he or she has first been properly informed about the nature, risks, and benefits of that course of action.
informed consent evolved through
Fourteenth Amendment of the U.S. Constitution, which deals with due process and the right to a fair trial.
three key legal elements in informed consent
voluntariness,
disclosure,
capacity
Voluntariness
Consent must be made of the person’s own free will, and not coerced
Disclosure
all information relevant to making the decision must be presented
IF “disclosure” has taken place, a person is considered
adequately “informed”
Capacity
refers to the person’s mental ability to understand the legal or other consequences of the actions in question
informed consent first appeared
Salgo v. Leland Stanford Jr. Board of Trustees (1957)
Major case involving informed consent
Miranda v. Arizona (1966)
“read them their rights”
Kaimowitz v. State of Michigan (1972)
Addressed the issue of coercion as an annulment to informed consent in both medical and legal settings
Canterbury v. Spence (1972)
refined the definition of “informed”
Changing it from if a “reasonable professional” (i.e., physician) would have seen fit to disclose more information to “what the typical patient would want to know”
(aka the “prudent patient” or the “materiality of risk” criterion)
Zinermon v. Burch (1990)
+clarified the need for informed consent when dealing with admissions into mental health facilities
+set forth specific guidelines for mental health professionals to follow in order to ensure that voluntary consents to treatment represent the competent wishes of the patient
Burch argument in Zinermon v. Burch (1990)
Burch asserted that the hospital professionals should have been more aware of his condition during the time he was signing admission forms.
Burch felt he should not have had to sign voluntary admission forms, but he should have been admitted by going through the involuntary admission process.
Arizona v. Fulminante (1991)
There is no constitutional due process right to a perfect trial, merely to a fair one,
Confidentiality
What a client considers private must stay private;
Privileged communication
Legal term indicating that even a court cannot compel disclosure
John H. Wigmore: how can the appropriateness of testimonial privilege be determined?
- The communication must originate after an expectation of confidentiality is established
- Confidentiality must be essential to the relationship between the parties
- Any injury that would occur to the relationship by breaching confidentiality must be greater than any benefit gained by society by the breach.
Court interpretation of the Wigmore criteria with regard to 3rd parties.
if information is given to a third party, there is no expectation of confidence and hence no privilege.
employee assistance programs (EAPs)
programs that provide mental health benefits to company employees.
ways that employers can legally obtain information about an employee in an EAP
(1) if the supervisor, even casually, suggested that the client contact the EAP, the supervisor is entitled to know what visits were made (though not the contents of the visits)
(2) if the employee sues for wrongful termination, discrimination, breach of contract, or virtually anything else
(3) if the client is suicidal or threatens violence, or reports a child being abused. Also, if the client files a workplace injury claim, EAP records are often turned over to claims adjusters (not directly to the employer)
In re Lifschutz (1970)
the first case to assert clearly and formally that a constitutional right to privacy includes a psychotherapist–patient privilege and that the patient, not the therapist, “owned” the privilege
Caesar v. Mountanos (1976)
9th Circuit U.S. Court of Appeals:
Asserted that the constitutional right to privacy protects the confidentiality of psychotherapist–patient communications.
However, it rejected the argument that the privilege was absolute.
The Court held that the privilege may be limited when necessary to advance a compelling state interest.
Pennsylvania v. Ritchie (1987)
Ritchie was accused of sexually assaulting his daughter, and the judge was allowed to subpoena a state agency’s confidential mental health file, over the defense’s objections, to decide which material would be revealed. Upheld by Supreme Court
The case of Jaffee v. Redmond, 1996
Jaffee wanted notes/records from an lcsw, who had counseled Redmond.
The trial judge rejected the social worker’s assertion of privilege, and instructed the jury “to presume the contents of the notes would be unfavorable” to the defense.
An Appeals Court overturned the verdict on the basis of client–therapist privilege. They argued for a balance of interests test under which they supported the assertion of privilege in this case. Relatives appealed, arguing that the Appeals Court created too broad of a privilege.
The 7th Circuit Court affirmed the Appeals Court logic, including the balance of interests test under Rule 501 of the Federal Rules of Evidence.
The Supreme Court ruled on June 14, 1996, that federal courts must allow psychotherapists and other mental health professionals to refuse to disclose patient records in judicial proceedings.
