Mental Health Law: Major Issues by David B. Wexler

By David B. Wexler

THE center OF psychological healthiness legislation A musty dossier in Arizona's Greenlee County Courthouse unearths that on January 22, 1912, presently sooner than Arizona grew to become a nation, a 19-year-old Mexican-American lady dwelling in Morenci used to be taken into custody and put within the county detention center by means of a deputy sheriff who, that very same day, filed with the Greenlee County Probate courtroom the subsequent dedicate­ ment petition: Have recognized woman approximately 12 months. final summer-July or Aug. 19- started out to behave irrational. Has been less than remedy of physicians prior four months. They known as me this A.M. and instructed me they have been not able to regard her successfully-that she is loopy and that i needs to arrest her. The proposed sufferer was once it appears tested day after today through physicians, who duly accomplished the mandatory clinical questionnaire. as well as stating that the patient's actual overall healthiness used to be stable, that she used to be "cleanly" in her own conduct, that she didn't use liquor, tobacco, or medicinal drugs, and that neither she nor any of her family had ever been mentally in poor health or hospitalized long ago, the medical professionals indexed the persist with­ ing details on these parts of the shape dedicated to psychological sickness and dangerousness: Dangerousness: No threats or makes an attempt to devote suicide or homicide. Is of a really chuffed temperament. tends to snigger and sing. proof indicating madness: She desired to dance. so much of dialog was once particularly rational.

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Lessard is not simply an isolated example, but is instead reflective of a more general concern for protection even in a therapeutic environment. Legislative enactments and proposals are following a surprisingly similar course. 1 14 But the most encouraging development of all, perhaps, is that the question of the necessity for procedural protections is no longer one that is almost automatically answered along polarized lines, with the legal profession urging protection and the medical and allied professions urging the abandonment of legal apparatus.

Moreover, even if all concerned supposedly have "the best interests" of the deviant at heart, therapeutic proceedings cannot afford to dispense altogether with an adversary framework. The sciences of behavior, particularly but not exclusively psychiatry, are sufficiently inexact to allow for considerable room in f scruti'nizing the evaluations of the testifying experts through skillful cross-examination by counsel and by the presentation of independent experts. 107 It is well known, for example, that psychiatric predictions of dangerousness are notoriously inaccurate and are decidedly in the direction of overpredicting future dangerous conduct.

109 Indeed, even the "harder" (and presumably more credible) sciences such as neurology are in need of serious ventilation in the commitment context. Thus, some physicians, drawing on neurological knowledge to the effect that violent behavior attributable to brain pathology can often be detected by electroencephalogram (EEG) readings, have recommended that violent offenders with demonstrated abnormal electrical brain activity be removed from society until their EEGs become normal. 111 Though counsel and independent experts are obviously required in order to effectively scrutinize medical and behavioral science testimony, counsel is also needed to perform more mundane, but equally important, functions.

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