Assignment 2: RA 1: Legal Requirements
The insanity defense is as old as it is controversial. There are times when insanity truly applies and times when it is not easy to determine. In either case, the documentation of services provided to these clients is typically heavily scrutinized by attorneys since documentation is the primary means used by courts to measure insanity as it meets legal standards. This assignment will allow you to examine the legal standards for insanity in your jurisdiction in addition to the requirements for the documentation of services provided to these individuals.
Search your state and regulatory boards, professional associations, state psychology boards, and state psychological associations. Use resources from professional literature to support your response. Professional literature may include relevant textbooks; peer-reviewed journal articles; and websites created by professional organizations, agencies, or institutions (.edu, .org, and .gov).
Write a 3- to 4-page paper, including the following:
What are the legal requirements in your jurisdiction regarding the documentation of services provided by a forensic psychology professional? If not-guilty-by-reason-of-insanity (NGRI) and guilty-but-mentally-ill (GBMI) evaluations are not recognized by your jurisdiction, review the legal requirements in a jurisdiction where they are the standard.
What are the specific laws and rules regarding the documentation of psychological services?
What are the differences between the requirements for clinical work and the requirements for forensic work, if any?
What standards are used in your jurisdiction for an insanity plea?
Do the insanity standards identify mental disease or defect with any exclusions, such as substance use? Explain.
How do the standards in your jurisdiction contrast with the standards presented in your course textbooks?
Do the insanity laws specify the presence of cognitive or volitional impairment as a threshold requirement to meet insanity? Provide brief examples.
Legal Requirements in Texas
In Texas, the legal requirements relating to the documentation of services provided by forensic psychology professionals call for the maintenance of accurate records in the professional practice. With regard to this, forensic psychology professionals are expected to maintain higher practice standards compared to other professionals in general practice (Kalmbach & Lyons, 2006). The legal requirements in Texas is that forensic psychology professionals must maintain all notes, recordings, documentation, tests and other materials used to reach an opinion. The state of Texas recognizes the not-guilty-by-reason-of-insanity (NGRI) and guilty-but-mentally-ill (GBMI) standards. In Texas, the M’Naghten Rule is applied. Evaluation is conducted using the Irresistible Impulse Test, while the burden of proof rests on the defendant.
Various specific laws and rules guide documentation of psychological services in Texas. The law requires forensic psychology professionals to document or take notes of their mental health patients for further reference. Chapter 611 of the Mental Health Records in Texas provides guidelines about documentation of mental health records in the state. Sec. 611.002 require that the forensic psychology professional keeps confidential the information obtained in the encounter with the patient. Records involving evaluation, treatment of the patient, diagnosis, and identify should remain confidential (Health and Safety Code, n.d). Chapter 611 also gives patients and their legally recognized representatives the right to access their mental health records kept by the professional.
Disclosure of confidential records is provided for in sections 611.004 and 611.0045. These sections provide that the professional may only disclose confidential information to law enforcement personnel, government agency, in case of a medical request, to an agent of the professional, to the patient’s representative, and other approved persons. Section 611.003 provides that the patient or other persons acting on behalf of the patient may claim the confidentiality of the results. Section 611.005 offers legal remedies in case of improver disclosure of confidential information by the forensic psychology professional. The aggrieved party can sue for damages in a civil court. Section 611.007 provides for revocation of disclosure consent by either the patient or legally recognized representative of the patient (Health and Safety Code, n.d).
There are significant differences in requirements for clinical work and those for forensic work. The major difference arises from the fact that in clinical work, the client is the same individual who presents himself for treatment. In forensic work, however, the client is not the same person who presents self for treatment (Kalmbach & Lyons, 2006). The latter brings about issues to do with informed consent and disclosure. In clinical work, confidentiality is limited to circumstances where there is need to report findings to a legal authority, where third parties have legal right to access information, and in situations where the client authorizes the sharing of the information obtained (Texas Department of State Health Services, 2011). Forensic psychology professionals are expected to maintain high ethical standards while performing their duties. These professionals must always give key attention to confidentiality, legally recognized recipients of the information, and role clarification. In forensic work, the professional should ensure that the patient understands fully the disclosure provided. In case that the defendant does not understand, this should be included in the final report. Informed consent may be given by a third party in case the patient is not able to do so.
The state of Texas applies a number of standards to guide an insanity plea. Article 46c.051 provides that a defendant who wishes to raise an insanity plea must do so at least 20 days before the hearing date (Code of criminal procedure, n.d). The defendant must file a copy with the attorney general of the state. Article 46c.101 provides that the court, based on the fulfillment of the aforementioned article, shall appoint a non-partisan professional to examine the insanity of the defendant. Texas also outlines the minimum requirements for professionals involved in examining the defendant. Article 46c.102 requires that the professional must be licensed with the appropriate bodies, have appropriate certification, and relevant experience in the field. The defendant must submit to examination, failure to which disciplinary measures may be taken. Article 46c.105 mandates the professional to submit a written report of the examination and including the procedures applied in conducting the examination (Code of criminal procedure, n.d). Basing on the evidence provided, the judge may give a guilty verdict, a not guilty verdict, or a not guilty because of insanity verdict. A ‘not-guilty-by-reason-of-insanity verdict is given when the defense provides evidence that the accused committed the offense while insane. In such a case, the court may give community-based treatment option with mandatory supervision.
The insanity standards in Texas identify mental illness and mental retardation by clearly defining their meaning and exclusions they have. Mental illness is defined as an “illness, disease, or condition, other than epilepsy, dementia, substance abuse, or intellectual disability” that can significantly alter the normal cognitive functioning of an individual (Health and Safety Code, n.d). Clearly, this definition excludes substance abuse, epilepsy, and intellectual abuse from the definition of insanity. As such, one may not claim an insanity plea if the behavior was drug-induced. Mental retardation is defined as intellectual disability, which is one of the exclusions under Texas insanity standards.
The standards in Texas have no significant difference from those presented in course textbooks. Texas standards allow the defendant to claim a plea of not guilty by reason of insanity. According to Erickson and Erickson S., (2008), defendants in the U.S. can enter into a plea of not-guilty-by-reason-of-insanity where insanity is the main cause of the behavior. The standards are also similar in that insanity resulting from use of drugs is not recognized as credible reason for entering a plea of not-guilty-by-reason-of-insanity. Moreover, the defendant must be competent to stand trial in case charges are brought against him/her. This is the same case in Texas, where psychiatrists examine defendants for mental illness.
Texas laws clearly specify the presence of cognitive impairment as a threshold requirement with regard to insanity. The law specifies various cognitive impairments that may affect an individual such as impairments to the thought process, impairment to judgment, misperceptions of reality, impairment of thought process, and behavior impairment. In case of volitional impairment, the law may disregard an insanity claim by the defendant. The mental health of the individual must be carefully examined following outlined procedures and protocols. In addition, a qualified professional is required to examine the mental health of the defendant in order for a claim of insanity to pass.
Code of criminal procedure. (n.d). Insanity defense. Retrieved from http://www.statutes.legis.state.tx.us/docs/CR/htm/CR.46C.htm
Erickson, P. E., & Erickson, S. K. (2008). Crime, Punishment, and Mental Illness : Law and the Behavioral Sciences in Conflict. New Brunswick, N.J.: Rutgers University Press.
Health and Safety Code. (n.d). Retrieved from http://www.statutes.legis.state.tx.us/Docs/HS/htm/HS.611.htm
Kalmbach, K. C., & Lyons, P. M. (2006). Ethical issues in conducting forensic evaluations. Applied Psychology in Criminal Justice, 2(3): 2-30. Retrieved from http://www.apcj.org/documents/2_3_Ethics_foren.pdf
Texas Department of State Health Services. (2011). Rules relating to the licensing and regulation of social workers. Retrieved from sw_rules.pdf
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