Elyn Saks
Politico - The Agenda
Originally published August 9, 2017
Patient consent is an important principle in medicine, but when it comes to mental illness, things get complicated. Other diseases don’t affect a patient’s cognition the way a mental illness can. When the organ with the disease is a patient’s brain, how can it be trusted to make decisions?
That’s one reason that, historically, psychiatric patients were given very little authority to make decisions about their own care. Mental illness and incompetence were considered the same thing. People could be hospitalized and treated against their will if they were considered mentally ill and “in need of treatment.” The presumption was that people with mental illness—essentially by definition—lacked the ability to appreciate their own need for treatment.
In the 1970s, the situation began to change. First, the U.S. Supreme Court ruled that a patient could be hospitalized against his will only if he were dangerous to himself or others, or “gravely disabled,” a decision that led to the de-institutionalization of most mental health care. Second, anti-psychotic medications came into wide use, effectively handing patients the power—on a daily basis—to decide whether to consent to treatment or not, simply by deciding whether or not to take their pills.
The article is here.
Showing posts with label Legal Capacity. Show all posts
Showing posts with label Legal Capacity. Show all posts
Tuesday, September 12, 2017
Sunday, May 15, 2016
Legal Insanity and Executive Function
Katrina Sifferd, William Hirstein, and Tyler Fagan
Under review to be included in The Insanity Defense: Multidisciplinary Views on Its History, Trends, and Controversies (Mark D. White, Ed.) Praeger (expected Nov. 2016)
1. The cognitive capacities relevant to legal insanity
Legal insanity is a legal concept rather than a medical one. This may seem an obvious point, but it is worth reflecting on the divergent purposes and motivations for legal, as opposed to medical, concepts. Medical categories of disease are shaped by the medical professions’ aims of understanding, diagnosing, and treating illness. Categories of legal excuse, on the other hand, serve the aims of determining criminal guilt and punishment.
A theory of legal responsibility and its criteria should exhibit symmetry between the capacities it posits as necessary for moral, and more specifically, legal agency, and the capacities that, when dysfunctional or compromised, qualify a defendant for an excuse. To put this point more strongly, the capacities necessary for legal agency should necessarily disqualify one from legal culpability when sufficiently compromised. Thus one’s view of legal insanity ought to reflect whatever one thinks are the overall purposes of the criminal law. If the purpose of criminal punishment is social order, then legal agency entails the capacity to be law-abiding such that one does not undermine the social order. If the purpose is institutionalized moral blame for wrongful acts, then legal agency entails the capacities for moral agency. If a criminal code embraces a hybrid theory of criminal law, then all of these capacities are relevant to legal agency.
In this chapter we will argue that the capacities necessary to moral and legal agency can be understood as executive functions in the brain.
The chapter is here.
Under review to be included in The Insanity Defense: Multidisciplinary Views on Its History, Trends, and Controversies (Mark D. White, Ed.) Praeger (expected Nov. 2016)
1. The cognitive capacities relevant to legal insanity
Legal insanity is a legal concept rather than a medical one. This may seem an obvious point, but it is worth reflecting on the divergent purposes and motivations for legal, as opposed to medical, concepts. Medical categories of disease are shaped by the medical professions’ aims of understanding, diagnosing, and treating illness. Categories of legal excuse, on the other hand, serve the aims of determining criminal guilt and punishment.
A theory of legal responsibility and its criteria should exhibit symmetry between the capacities it posits as necessary for moral, and more specifically, legal agency, and the capacities that, when dysfunctional or compromised, qualify a defendant for an excuse. To put this point more strongly, the capacities necessary for legal agency should necessarily disqualify one from legal culpability when sufficiently compromised. Thus one’s view of legal insanity ought to reflect whatever one thinks are the overall purposes of the criminal law. If the purpose of criminal punishment is social order, then legal agency entails the capacity to be law-abiding such that one does not undermine the social order. If the purpose is institutionalized moral blame for wrongful acts, then legal agency entails the capacities for moral agency. If a criminal code embraces a hybrid theory of criminal law, then all of these capacities are relevant to legal agency.
In this chapter we will argue that the capacities necessary to moral and legal agency can be understood as executive functions in the brain.
The chapter is here.
Saturday, November 14, 2015
The Strange Case of Anna Stubblefield
By Daniel Engber
The New York Times Magazine
Originally published October 20, 2015
Here are two excerpts:
Then there was a lull in the conversation after Wesley came back in, and Anna took hold of D.J.’s hand. ‘‘We have something to tell you,’’ they announced at last. ‘‘We’re in love.’’
‘‘What do you mean, in love?’’ P. asked, the color draining from her face.
To Wesley, she looked pale and weak, like ‘‘Caesar when he found out that Brutus betrayed him.’’ He felt sick to his stomach. What made them so uncomfortable was not that Anna was 41 and D.J. was 30, or that Anna is white and D.J. is black, or even that Anna was married with two children while D.J. had never dated anyone. What made them so upset — what led to all the arguing that followed, and the criminal trial and million-dollar civil suit — was the fact that Anna can speak and D.J. can’t; that she was a tenured professor of ethics at Rutgers University in Newark and D.J. has been declared by the state to have the mental capacity of a toddler.
(cut)
Sitting at the keyboard, D.J. also seemed to have a lot to say. His messages were simple and misspelled at first, but his skill and fluency improved. Eventually he could hit a letter every second, and if Anna guessed the word before he finished typing, he would hit the ‘‘Y’’ key to confirm. Anna brought books for him to read, Maya Angelou and others, and discovered that he read like a savant — 10 pages every minute. (She turned the pages for him.) They discussed the possibility of his enrolling in a G.E.D. program.
As D.J. came into his own, Anna kept her mother posted on his progress. In the spring of 2010, Sandra asked if D.J. might like to give a paper for a panel she was organizing at a conference of the Society for Disability Studies in Philadelphia. The panel was on Article 21 of the United Nations Convention on the Rights of Persons With Disabilities, which lays out the right to freedom of expression and opinion. D.J. wasn’t sure he could do it, Anna said, but she convinced him he should try.
The entire article is here.
Note to readers: The article is long, detailed and (from my perspective) creepy. This case appears to demonstrate where compassion and personal values override good judgment, research, and professional responsibilities.
The New York Times Magazine
Originally published October 20, 2015
Here are two excerpts:
Then there was a lull in the conversation after Wesley came back in, and Anna took hold of D.J.’s hand. ‘‘We have something to tell you,’’ they announced at last. ‘‘We’re in love.’’
‘‘What do you mean, in love?’’ P. asked, the color draining from her face.
To Wesley, she looked pale and weak, like ‘‘Caesar when he found out that Brutus betrayed him.’’ He felt sick to his stomach. What made them so uncomfortable was not that Anna was 41 and D.J. was 30, or that Anna is white and D.J. is black, or even that Anna was married with two children while D.J. had never dated anyone. What made them so upset — what led to all the arguing that followed, and the criminal trial and million-dollar civil suit — was the fact that Anna can speak and D.J. can’t; that she was a tenured professor of ethics at Rutgers University in Newark and D.J. has been declared by the state to have the mental capacity of a toddler.
(cut)
Sitting at the keyboard, D.J. also seemed to have a lot to say. His messages were simple and misspelled at first, but his skill and fluency improved. Eventually he could hit a letter every second, and if Anna guessed the word before he finished typing, he would hit the ‘‘Y’’ key to confirm. Anna brought books for him to read, Maya Angelou and others, and discovered that he read like a savant — 10 pages every minute. (She turned the pages for him.) They discussed the possibility of his enrolling in a G.E.D. program.
As D.J. came into his own, Anna kept her mother posted on his progress. In the spring of 2010, Sandra asked if D.J. might like to give a paper for a panel she was organizing at a conference of the Society for Disability Studies in Philadelphia. The panel was on Article 21 of the United Nations Convention on the Rights of Persons With Disabilities, which lays out the right to freedom of expression and opinion. D.J. wasn’t sure he could do it, Anna said, but she convinced him he should try.
The entire article is here.
Note to readers: The article is long, detailed and (from my perspective) creepy. This case appears to demonstrate where compassion and personal values override good judgment, research, and professional responsibilities.
Friday, July 10, 2015
Against a singular understanding of legal capacity: Criminal responsibility and the Convention on the Rights of Persons with Disabilities
By Jullian Craigie
International Journal of Law and Psychiatry
Volume 40, May–June 2015, Pages 6–14
Abstract
The United Nations Convention on the Rights of Persons with Disabilities (CRPD) is being used to argue for wider recognition of the legal capacity of people with mental disabilities. This raises a question about the implications of the Convention for attributions of criminal responsibility. The present paper works towards an answer by analysing the relationship between legal capacity in relation to personal decisions and criminal acts. Its central argument is that because moral and political considerations play an essential role in setting the relevant standards, legal capacity in the context of personal decisions and criminal acts should not be thought of as two sides of the same coin. The implications of particular moral or political norms are likely to be different in these two legal contexts, and this may justify asymmetries in the relevant standards for legal capacity. However, the analysis highlights a fundamental question about how much weight moral or political considerations should be given in setting these standards, and this is used to frame a challenge to those calling for significantly wider recognition of the legal capacity of people with mental disabilities on the basis of the Convention.
The entire article is here.
International Journal of Law and Psychiatry
Volume 40, May–June 2015, Pages 6–14
Abstract
The United Nations Convention on the Rights of Persons with Disabilities (CRPD) is being used to argue for wider recognition of the legal capacity of people with mental disabilities. This raises a question about the implications of the Convention for attributions of criminal responsibility. The present paper works towards an answer by analysing the relationship between legal capacity in relation to personal decisions and criminal acts. Its central argument is that because moral and political considerations play an essential role in setting the relevant standards, legal capacity in the context of personal decisions and criminal acts should not be thought of as two sides of the same coin. The implications of particular moral or political norms are likely to be different in these two legal contexts, and this may justify asymmetries in the relevant standards for legal capacity. However, the analysis highlights a fundamental question about how much weight moral or political considerations should be given in setting these standards, and this is used to frame a challenge to those calling for significantly wider recognition of the legal capacity of people with mental disabilities on the basis of the Convention.
The entire article is here.
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