Copyright (c) 2009 All rights reserved. http://works.bepress.com/gmorris Recent documents in Grant H Morris en-us Sun, 31 May 2009 06:13:15 PDT 3600 http://works.bepress.com/gmorris/6 http://works.bepress.com/gmorris/6 Tue, 11 Nov 2008 15:33:24 PST Thirty years ago, I wrote an article on mental health conservatorships in California and the role of counsel for persons for whom a conservatorship has been proposed. Data was gathered on the performance of attorneys in court hearings conducted in San Diego County Superior Court. The data revealed that lawyers representing proposed conservatees were inactive and ineffective in representing their clients' interests. The lawyers did not consider themselves advocates in an adversary process in which conservatorship was to be avoided. A year after the article was published, the California Supreme Court, citing that article as authority for the "paternalistic attitude" exhibited by appointed counsel for proposed conservatees, ruled that proof beyond a reasonable doubt and jury unanimity are constitutionally mandated standards necessary to assure that mental health conservatorships are accurately established. I have now replicated that study to determine whether the California Supreme Court's critique of attorney performance has significantly improved the representation of persons who have been proposed for mental health conservatorships. The data reveal that the quality of legal representation for proposed conservatees has not improved significantly. Stated simply, paternalism persists. The article explores reasons why the paternalistic model of legal representation continues today, despite the California Supreme Court's disapproval of such model in these cases 29 years ago, and what changes are needed to assure that individuals for whom a conservatorship has been proposed receive effective assistance of counsel in proceedings to establish a conservatorship. Grant H. Morris Civil Rights Constitutional Law Courts Health Law and Policy Human Rights Law Law and Society Medical Jurisprudence Professional Ethics Psychology and Psychiatry Law and Psychiatry http://works.bepress.com/gmorris/5 http://works.bepress.com/gmorris/5 Tue, 02 Oct 2007 13:08:55 PDT It is a statistical fact of life that two-thirds of the law students who enter law school will not graduate in the upper one-third of their law school class. Typically, those students are disappointed in their examination grade results and in their class standing. Nowhere does this disappointment manifest itself more than in their attitude toward their classes. As students begin law school, they are eager, excited, and willing to participate in class discussion. But after they receive their first semester grade results, many students withdraw from the learning process; they are depressed and disengaged. They suffer a significant loss of self-esteem. This article considers whether law professors should prepare their students for the disappointing results--the poor grades--that many are certain to receive. I assert that professors do indeed have a role to play--in fact, a duty to their students--to confront this problem. I offer a strategy by which professors can acknowledge students' pre-examination anxiety and deal constructively with their impending disappointment. There are lessons to be learned from Casey at the Bat, Ernest Lawrence Thayer's immortal poem about failure. Grant H. Morris General Law Psychology and Psychiatry Law and Psychiatry Legal Education; Law and Literature; Law School Exams http://works.bepress.com/gmorris/4 http://works.bepress.com/gmorris/4 Mon, 04 Dec 2006 16:03:06 PST Under the common law doctrine of informed consent, if a person is competent to understand the risks, benefits, and alternatives to proposed treatment, that person is allowed to decide whether to accept or reject the proposed treatment. Informed consent is not required if the person is incompetent or if an emergency arises that necessitates treatment to save the person's life. Nevertheless, various devices are used to deny mentally disordered persons their right to refuse treatment even when they are competent decisionmakers and even when no emergency exists. For example, some courts substitute a "limited due process" model for a "full due process model," allowing doctors to decide whether the proposed treatment is appropriate, rather than requiring a court's determination of the patient's competence to withhold consent. Some states substitute the decision to involuntarily commit the patient, or a decision to appoint a guardian or conservator to assist the patient, for the requirement that the patient be incompetent to make treatment decisions. In some states, the limited emergency exception to the requirement of informed consent has been expanded to allow involuntary treatment of dangerous patients-without requiring that an emergency exists. In some states, the requirement of voluntary and informed consent has been replaced by uninformed or coerced assent. For example, if the patient does not object to the treatment, some courts have allowed doctors to medicate the patient-without informing the patient of the risks, benefits, and alternatives to that medication and obtaining the patient's informed consent to its administration. Outpatient commitment laws have been enacted-such as Kendra's Law in New York-through which courts order mentally disordered persons to accept medication, even though such persons are not subject to involuntary civil commitment. These various devices so erode the competent patient's right to autonomous medical decisionmaking that the right of competent, though mentally disordered, persons to refuse treatment is, in reality, refused. Grant H. Morris Psychology and Psychiatry Law and Psychiatry http://works.bepress.com/gmorris/3 http://works.bepress.com/gmorris/3 Fri, 03 Nov 2006 02:28:47 PST This article considers whether lawyers act as zealous advocates when they represent mentally disordered, involuntarily committed patients who wish to assert their right to refuse treatment with psychotropic medication. After discussing a study that clearly demonstrates that lawyers do not do so, the article explores the reasons for this inappropriate behavior. Michael Perlin characterizes the problem as "sanism," which he describes as an irrational prejudice against mentally disabled persons of the same quality and character as other irrational prejudices that cause and are reflected in prevailing social attitudes of racism, sexism, homophobia, and ethnic bigotry. The article critiques Perlin's characterization of the problem and suggests other reasons for the phenomenon, including a belief that the civil commitment decision "proved" that the person was incompetent to make treatment decisions, and a belief that the decision on what treatment should be administered is a medical judgment to be made by the patient's doctor and should trump any patients' rights claim. The article concludes by considering whether aggressive advocacy would substantially improve the situation. Most patients accept-or are coerced into accepting-medication that their doctor prescribes. Because competency hearings are only conducted for those patients who assert a right to refuse medication, few patients would be affected by more aggressive attorney advocacy. Those patients who are successful in resisting coerced treatment are likely to be released from the hospital without an improvement in their mental condition and processed through the criminal justice system when they are detained in the future. Grant H. Morris Civil Rights Constitutional Law Criminal Law and Procedure Health Law and Policy Human Rights Law Medical Jurisprudence Professional Ethics Psychology and Psychiatry Public Law and Legal Theory http://works.bepress.com/gmorris/2 http://works.bepress.com/gmorris/2 Fri, 03 Nov 2006 02:28:43 PST This essay, written as part of a symposium issue to commemorate the 50th anniversary of the University of San Diego Law School, discusses the evaporating distinction between sentence-serving convicts and mentally disordered nonconvicts who are involved in, or who were involved in, the criminal process-people we label as both bad and mad. By examining one Supreme Court case from each of the decades that follow the opening of the University of San Diego School of Law, the essay demonstrates how the promise that nonconvict mentally disordered persons would be treated equally with other civilly committed mental patients was made and then broken and forgotten. The essay discusses the shift in Supreme Court jurisprudence shift from the Warren Court's liberal application of the Constitution to prohibit the special categorization of sentence-expiring prisoners and permanently incompetent criminal defendants for civil commitment, to the Burger and Rehnquist Court's conservative application of the Constitution to permit the special categorization of persons acquitted of crime by reason of insanity and sexually violent predators for civil commitment, and to permit the coerced treatment of competent, though dangerous, criminal defendants. The essay begins by discussing Baxstrom v. Herold, 383 U.S. 107 (1966). A unanimous Supreme Court held that equal protection "demands" that sentence-expiring convicts receive the same procedural safeguards that all others receive in the civil commitment process; they cannot be specially classified to avoid the standard procedural roadblocks to civil commitment. Six years later, the promise of equal treatment was extended to criminal defendants found mentally incompetent to stand trial. In Jackson v. Indiana, 406 U.S. 715 (1972), a unanimous Supreme Court ruled that equal protection is denied when incompetent criminal defendants are subjected to a more lenient commitment standard and to a more stringent release standard than is applicable to all other persons who could only be detained under the state's civil commitment laws. In 1983, the equal protection promise was broken, however, in Jones v. United States, 463 U.S. 354 (1983). In Jones, a narrowly divided Court held that persons acquitted of crime by reason of insanity constituted a special class who can be subjected to automatic, indeterminate commitment without first undergoing the civil commitment process. In 1997, the Supreme Court forgot its Baxstrom promise to sentence-expiring convicts. In Kansas v. Hendricks, 521 U.S. 346 (1997), the Court upheld the constitutionality of a statute creating a separate civil commitment process for a limited subclass of dangerous sentence-expiring convicts who could be identified as sexually violent predators. In 2003, the Supreme Court forgot its Jackson promise to mentally incompetent criminal defendants. In Sell v. United States, 539 U.S. 166 (2003), the Court ruled that incompetent criminal defendants do not have the same right to medical self-determination that other civilly committed patients possess. Relying heavily on a case involving a mentally ill, sentence-serving convict, the Court upheld the forced medication of dangerous criminal defendants, even if they are competent to understand the risks, benefits, and alternatives to the proposed treatment. Grant H. Morris Civil Law Civil Rights Constitutional Law Criminal Law and Procedure General Law Health Law and Policy Human Rights Law Jurisprudence Law and Society Medical Jurisprudence Professional Ethics Psychology and Psychiatry Public Law and Legal Theory Social Welfare http://works.bepress.com/gmorris/1 http://works.bepress.com/gmorris/1 Fri, 03 Nov 2006 02:28:40 PST This Article considers the legal standards for the determination of competency to stand trial, and whether those standards are understood and applied by psychiatrists and psychologists in the forensic evaluations they perform and in the judgments they make-judgments that are routinely accepted by trial courts as their own judgments. The Article traces the historical development of the competency construct and the development of two competency standards. One standard, used today in eight states that contain 25% of the population of the United States, requires that the defendant be able to assist counsel in the conduct of a defense "in a rational manner." The second, adopted by the Supreme Court in Dusky v. United States, 362 U.S. 402 (1960) as the Court's interpretation of the federal competency statute, requires that the defendant have an ability to consult with counsel with a reasonable degree of "rational understanding." The "rational manner" standard seemingly focuses on the defendant's behavior; the "rational understanding" standard seemingly focuses on the defendant's thinking. The Article reports on a survey we conducted of 273 forensic psychiatrists and psychologists who were asked to read two case study vignettes and assess the competency of each criminal defendant using the "rational manner" standard, the "rational understanding" standard, and the federal statutory standard that merely requires that the defendant be able to "assist properly" in his or her defense. In one vignette, the defendant's thinking was irrational but his behavior was rational. In the other, the defendant's thinking was rational, but her behavior was irrational. In responding to both vignettes, more than three-fourths of all respondents either found the defendant competent under all three standards or incompetent under all three standards. Surprisingly, in answering the first vignette, the respondents divided almost equally in deciding whether the defendant was competent. The Article analyzes the results of the study and concludes with specific proposals to improve competency to stand trial assessments. Fairness to the defendant requires that the competency standard be clearly defined and applied by those who assess and determine competency. Grant H. Morris Civil Rights Constitutional Law Courts General Law Health Law and Policy Jurisprudence Medical Jurisprudence Psychology and Psychiatry Public Law and Legal Theory