LEGAL AND ETHICAL ISSUES

This module aligns with key elements of APNA’s “Ethical and Legal Principles” (American Psychiatric Nurses Association Education Council, Undergraduate Branch, 2022).

Module Outline

• Legal Issues Related to Mental Illness
• Patient’s Rights
• Ethical Issues Related to Mental Illness

Module Learning Outcomes

• Describe how nursing interacts with law
• Describe issues related to voluntary versus involuntary commitment
• Outline patient’s rights.
• Clarify concerns related to the therapist-client relationship

Overview

In this module, we will tackle the issue of how nursing interacts with law. Our discussion will include topics related to voluntary versus involuntary commitment, patient’s rights, and the patient-therapist relationship.

Legal Issues Related to Mental Illness

Civil Commitment

When individuals with mental illness behave in erratic or potentially dangerous ways, to either themselves or others, then something must be done. The action involves an involuntary commitment to a hospital or mental health facility and is done to protect the individual and express concern over their well-being, much like a parent would do for their child. An individual can voluntarily admit themselves to a mental health facility, and upon doing so, staff will determine whether or not treatment and extended stay are needed.

Criteria for Involuntary Commitment

Though states vary in the criteria used to establish the need for involuntary commitment, some requirements are common across states.

1. First, the individual must present a clear danger to either themselves or others.
2. Second, the individual demonstrates they are unable to care for themselves or make decisions about whether treatment or hospitalization is necessary.
3. Finally, the individual believes they are about to lose control, and so, needs treatment or care in a mental health facility.

Procedures in Involuntary Commitment

The process for involuntary commitment does vary a bit from state to state, but some procedures are held in common.

1. First, a family member, mental health professional, or primary care practitioner, may request that the court order an examination of an individual. If the judge agrees, two professionals, such as a mental health professional or physician, are appointed to examine the person in terms of their ability for self-care, need for treatment, psychological condition, and likelihood to inflict harm on self or others.
2. Next, a formal hearing gives the examiners a chance to testify as to what they found. Testimonials may also be provided by family and friends, or by the individual him/herself. Once testimonies conclude, the judge renders judgment about whether confinement is necessary and, if so, for how long. Typical confinements last from 6 months to 1 year, but an indefinite period can be specified too. In the latter case, the individual has periodic reviews and assessments.
3. In emergencies, the process stated above can be skipped and short-term commitment made, especially if the person is an imminent threat to him/herself or others.

In an emergency, where an individual has expressed threats of harm to themselves or another person, most states have laws that permit involuntary commitment for 48-72 hours to ensure the patient’s safety.

Patient’s Rights

Patients admitted to a psychiatric treatment facility maintain all their civil rights with one exception; if they have been admitted involuntarily, they may not be able to leave the facility (Videbeck, 2020). The following are several rights pertaining to patients and mental health treatment settings.

See this article (American Psychiatric Association, n.d.) for further reading.

A summary of these rights as included in Videbeck (2020) includes:

• Right to Information related to treatment options, providers’ qualifications, appeals, and grievance procedures
• Right to Refuse Treatment 
• Right to Least Restrictive Environment to Meet Needs
• Choice of Providers
• Confidentiality
• Nondiscrimination
• Parity
• Hold Accountable Professionals and Payers responsible for injury associated with incompetence, negligence, or unjustified decisions
• Treatment is determined by Professionals, not third-party payers

The Therapist-Client Relationship

Two concerns are of paramount importance in terms of the therapist-client relationship. These include the following:

• Confidentiality – As you might have learned in an introductory nursing course, confidentiality guarantees that information about the patient is not disseminated without their consent. The Health Insurance Portability and Accountability Act (HIPAA) also guides nurses on when and who should receive information concerning individuals admitted to a psychiatric treatment facility. See the resource located under “Additional Resources” below.
• Duty to Warn – In the 1976 Tarasoff v. the Board of Regents of the University of California ruling, the California Supreme Court said that a patient’s right to confidentiality ends when there is a danger to the public, and that if a therapist determines that such a danger exists, there is an obligation to warn the potential victim. Tatiana Tarasoff, a student at UC, was stabbed to death by graduate student, Prosenjit Poddar in 1969, when she rejected his romantic overtures, despite warnings by Poddar’s therapist that he was an imminent threat. The case highlights the fact that therapists have a legal and ethical obligation to their clients but, at the same time, a legal obligation to society. How exactly should they balance these competing obligations, especially when they are vague? The 1980 case of Thompson v. County of Alameda ruled that a therapist does not have a duty to warn if the threat is nonspecific.

Additional Resources

What resources are there for the application of HIPAA within a mental health facility?

• Check out this webpage to answer this question (U.S. Department of Health & Human Services, n.d.)

Adapted from Fundamentals of Psychological Disorders 2nd Edition- Module 15 by Alexis Bridley, Ph.D. and Lee W. Daffin Jr., Ph.D. licensed under a Creative Commons Attribution 4.0 International License. Modifications: revised for clarity and flow .