What is normal? What do we mean when we say “mental illness”? When we talk about illness in the physical realm there tends to be greater clarity such as: liver disease, heart problems or infection. When we speak about illness in the mental realm, things start to get fuzzier. Since the 1950’s, the DSMs have been evolving, as scientific evidence has been gathered by American psychiatry for the range of mental conditions.

Clinical practice, medical research and professional training both contribute to and have relied upon this encyclopedia and its delineation of mental conditions for definitive answers. Also, as health insurance has become a more important and controlling participant in the American health care system, these definitions and contributory symptoms have come to play a more dominant role. They have also had a strong impact on the legal system.

However, because of the DSM’s evolutionary nature, lack of precise current definitions and multiplicity of causal factors, there is much controversy and confusion, especially among the lay public.

The response of society keeps changing as we continue trying to balance the common good and community safety with the well-being, civil rights and protection and safety of a vulnerable, mentally ill individual.

The front page of the New York Times, May 26, 2011 presents a case in point. The tragic shooting of Representative Gabrielle Giffords, plus the killing of 6 and wounding of 12 others was the subject of the article. The headline read: “Suspect is Ruled Incompetent For Trial in Giffords Shooting.”

Incompetent to Stand Trial

The shooter, identified as Jared L. Loughner, was ruled unable, by virtue of mental incompetence, to stand trial for his crimes at this time. The ruling was made by Judge Larry A. Burns of Federal District Court in Tucson, AZ following extensive videotaped evaluations by two mental health experts appointed by the prosecution and the judge, respectively. Hallucinations, delusions, bizarre thoughts, plus outbursts and strange behavior in the courtroom are highlights with the general consensus that Mr. Loughner suffers from paranoid schizophrenia, and has been symptomatic and declining for the past few years.

The deputy prosecutor said: “It is always better to hold criminals accountable, but we may not be able to go forward if the mental health issues are insurmountable.” An effort to determine whether he might be faking mental illness was found negative. Judge Burns concluded: “At the present time, Mr. Loughner does not have the rational understanding of these proceedings,” and he ordered him to be treated for up to four months at a federal psychiatric facility.

Not Guilty by Virtue of Insanity

Mr. Loughner is called “the accused” in our criminal justice system because he has not been determined guilty by a jury of his peers. However, he has been clearly identified as the shooter by his living victims and many others. It would be a terrible error to assume that murder or other criminal behavior is a common symptom of mental illness because it is not. However, the second issue to address is the sticky problem of the insanity defense.

In 1843, Englishman Daniel McNaughton shot and killed the secretary of the British Prime Minister, missing the PM, but having believed the PM to be conspiring against him. His acquittal “by reason of insanity” became the standard test for culpability in the United Kingdom and the United States for the next hundred years, known as the McNaughton Rule, “not knowing right from wrong.”

As the DSM evolved, so did the use of mental illness as a defense in the criminal justice system. The Durham Rule of 1953, known as the “irresistible impulse,” cast too broad a net and was abused: drug addicts, alcoholics, behavioral addicts such as compulsive gamblers, used this defense to defeat a wide variety of criminal prosecutions. As a response, in 1972, the American Law Institute, with a panel of legal experts, developed the Model Penal Code: “the defendant is not responsible for criminal conduct where (s)he, as a result of mental disease or defect, did not possess substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law.” (United States v. Brawner, 1972).

With the successful insanity plea defense (using the Model Penal Code) of John Hinkley, after his assassination attempt on President Ronald Reagan, the huge civic backlash was so strong that Congress rethought the standards and created the 1984 Federal Comprehensive Crime Control Act: “at the time of his or her crime the defendant, as a result of severe mental disease or defect, was unable to appreciate the nature and quality of the wrongfulness of his acts.”

Most legal experts agree that the current statute is tighter and the wording stricter than the McNaughton Rule of 1843. Although the Model Penal Code has remained the major basis for definition and management of the insanity defense in most states, the theory and practice of American criminal law has shifted away from the idea of deterrence and rehabilitation and more toward criminalization.

Involuntary Commitment

Most societies, countries and all of the different jurisdictions in the United States have used involuntary commitment for a variety of purposes that have been debated and shaped over time. The legal framework is built around the basic premise that the state, or its legal arm, the courts, need to step in, in a parental role (parens patriae), to at least temporarily provide protection when the individual, by virtue of mental illness, suffers from impaired reasoning ability. Most jurisdictions go a step further to seek evidence that the effect of this state of mental impairment will produce a risk to themselves or others. Modern mental health law in the U.S. has come to center on the patient’s rights to due process rather than treatment, and patients are no longer confined to what formerly was called an insane asylum, simply because they have a mental illness.

Some of the basic purposes of involuntary commitment have been: first aid, observation, containment of danger to self (suicidal) or others (homicidal), initiating treatment of illness, moving the patient toward community treatment.

The Massachusetts regulations and procedures are contained in the General Laws of Massachusetts – Chapter 123 Mental Health. Section 12 governs who and what. The properly authorized person who examines the mentally ill person and has “reason to believe that failure to hospitalize such person would create a likelihood of serious harm by reason of mental illness may restrain or authorize the restraint of such person and apply for hospitalization of such person for a three day period at a public facility or a private facility.” In an emergency situation, if the duly designated mental health professionals are unavailable, then a police officer may make the application for 3 days of observation. The application needs to “state the reasons for the restraint of such person and any other relevant information.  Whenever practicable the applicant shall…communicate with a facility to describe the circumstances.” The qualified professionals are: any licensed physician, qualified psychiatric nurse mental health clinical specialist, and licensed psychologist.

If the patient believes there has been an abuse or misuse of the provisions of the law, they have the right to request through provided counsel, an emergency hearing in the district court. The patient has the right to apply for voluntary rather than involuntary admission. The superintendent of the hospital may discharge the patient at any point prior to the three days should he “determine the patient is no longer in need of care or treatment. “  The superintendent may apply for a longer commitment to the court at the end of the three-day period unless the patient remains on a voluntary status.

When it comes to juveniles, under age 16, any person may make application to a district court justice of the juvenile court for a three day commitment to a facility where failure to confine would cause a likelihood of serious harm. If the justice believes that the evidence is sufficient, he appoints counsel to represent the patient and issues a warrant for apprehension. Then a designated physician or qualified psychologist examines the patient and may recommend that the court orders the juvenile to be committed to a facility for observation, not to exceed three days.

Dalby JT, “The case of Daniel McNaughton: let’s get the story straight.” Amer J Forensic Psych: 2009, (27): 17 – 32.
Bennett AOM, “Criminal law as it pertains to mentally incompetent defendants. Aust NZJ Psychiatry: 2009, (43); 4, 289 – 99.