CORRECTIONAL PSYCHIATRY AND RIGHT TO TREATMENT
From Forensic Psychiatry Review Course, presented by the American Academy of Psychiatry and the Law
Charles L. Scott, MD, Chief, Division of Psychiatry and the Law, Department of Psychiatry and Behavioral
Sciences, University of California, Davis, School of Medicine, Sacramento, CA
Educational Objectives
| The goal of this program is to improve management of mentally ill patients in correctional facilities by acquainting
the clinician with general principles of correctional psychiatry and the right to treatment. After hearing and assimilating
this program, the clinician will be better able to:
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 | 1. Describe types of correctional facilities and their purposes.
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| 2. Cite the most common psychiatric diagnoses found in correctional facilities.
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| 3. Discuss issues of therapy and confidentiality pertaining to persons in correctional facilities.
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| 4. Provide details of historical cases that establish the right to treatment of involuntarily committed persons.
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| 5. State the consequences of right-to-treatment rulings.
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Faculty Disclosure
In adherence to ACCME Standards for Commercial Support, Audio-Digest requires all faculty and members of the
planning committee to disclose relevant financial relationships within the past 12 months that might create any personal
conflicts of interest. Any identified conflicts were resolved to ensure that this educational activity promotes
quality in health care and not a proprietary business or commercial interest. For this program, the faculty and planning
committee reported nothing to disclose.
Acknowledgements
Dr. Scott was recorded at Forensic Psychiatry Review Course, held October 15-17, 2007, in Miami Beach, FL, and
sponsored by the American Academy of Psychiatry and the Law. The Audio-Digest Foundation thanks Dr. Scott and
AAPL for their cooperation in the production of this program.
| Introduction: prison population in United States has increased every year for last decade; according to recent survey,
>50% of prison inmates have mental health diagnosis
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| Purposes of punishment: deterrence (dissuading general population from committing crimes); incapacitation (incarcerating
individuals to prevent them from committing further crimes); rehabilitation (participation in treatment
and prison programs to correct underlying problems that led to criminal conduct); retribution (incarcerating
individuals because they deserve it; also known as “just deserts”)
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| General definitions: corrections—division of criminal justice system comprising all agencies of social control
that attempt to rehabilitate and neutralize deviant behavior of adult criminals and juvenile delinquents for protection
of society; mentally disordered offender—individual formally judged by judicial system as guilty of a
crime and emotionally disturbed; this category does not include prisoners whose mental illness has not been
formally recognized by the courts; probation—court-ordered community supervision of convicted offenders
by probation agency; in many instances, probation requires adherence to specific rules of conduct while offender
is in community; parole—period of conditional supervised release after prison term; may also require
adherence to specific rules of conduct; in many states, individual’s eligibility for parole determined by parole
board; diversion—shunting individual out of criminal justice system into alternate system (eg, mental health
treatment); practice increasing because of overcrowding in jails and prisons; mental health courts—usually division
of criminal courts; handle cases involving nonviolent misdemeanor defendants recognized as mentally ill
or retarded; 34 states have created mental health courts in past decade
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| Types of correctional facilities: lockup—local confinement facility that constitutes initial phase of criminal justice
process, from arrest to arraignment; average stay <48 hr; most common type of correctional facility (>12,000
in United States); jail—locally operated correctional facility in which individual confined before or after adjudication;
also houses individuals with sentences ≤1 yr; may also serve additional functions, eg, holding mentally ill persons
until their transfer to appropriate facility; prison—confinement facility that has custodial authority over
adults with sentences >1 yr; usually owned and operated by state or federal government; most have >500 beds; supermax
(also called security housing unit [SHU])—freestanding facility or distinct unit within another facility that
provides management and secure control of inmates officially designated violent or seriously disruptive
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| Demographics: ratio of incarcerated men to women 14:1; however, population of women inmates rising at faster
rate than that of men; for many reasons, minorities over-represented in correctional facilities; >40% of all individuals
in department of corrections have not completed high school (compared to 18% of general population)
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| Mental illness in correctional facilities: 2006 Department of Justice survey (used structured clinical interview)
revealed that >50% of inmates have mental health problems (other studies show lower percentage); women inmates
have higher rates of mental illness than men; up to one-third of women inmates have posttraumatic stress
disorder (PTSD); mentally ill inmates more likely than non-mentally ill inmates to have—been homeless and
unemployed before incarceration; history of physical or sexual abuse; issues with substance abuse or dependence;
record of violent crimes; rule violations in correctional facility; problems within prison disciplinary system
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| Most common diagnoses: substance abuse (70%-90% of those entering into criminal justice system); ≈50% of men
inmates have diagnosis of antisocial personality disorder
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| Suicides in correctional facilities: lockups—suicide more common in lockups than in prisons or jails; studies in
1980s showed that suicidal inmates in lockups and jails tended to be younger white men without psychiatric histories
who were intoxicated when arrested for minor infraction, and who committed suicide within first 24 hr of
incarceration; jails—suicide second leading cause of death (32.3%) after natural causes; men and white inmates
have highest rates of suicides; inmates <18 yr of age have highest suicide rate in local jails, whereas those 18 to
24 yr have lowest rate; after that, rate of suicide gradually increases with age; inmates ≥55 yr of age have highest
rate among adults; suicide rate for violent jail inmates 3 times higher than that for nonviolent offenders; kidnappers
have highest suicide rate, followed by those held for rape and homicide; violent offenders 5 times more
likely to commit suicide than drug offenders; prisons—suicide third leading cause of death after natural causes
and AIDS; rates of suicide equal among men and women (as opposed to statistics for those in jails); in state prisons,
suicide highest among white inmates; inmate age not related to suicide rate (unlike in jails); violent offenders
more than twice as likely to commit suicide as nonviolent offenders, with kidnappers having highest rate;
most suicides in state prisons occurred after first year of confinement, and 33% after 5 yr; most frequent causes
of suicide—bad news from outside; conflict with other inmates; most common method of suicide—in all types
of facilities, hanging most common method, and generally occurs in period shortly after incarceration (in lockups,
one-half of suicides occur within first 24 hr)
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| Therapeutic issues in correctional facilities: safety—“even the hardest toughened criminals are always
talking about watching their backs and being careful”; weapons can be made from almost anything; gangs (also
known as security threat groups [STGs]) prevalent in prisons; overcrowding more common as prison population
increases; drug use (drugs often supplied by prison guards; 1998 study showed 10% of random urine samples
positive for ≥1 drug); homemade alcoholic brews easy to synthesize from everyday food items; insomnia; separation
from family; medical issues, including HIV infection (rate in prison populations >3 times that in general
population) and hepatitis C (approximately one-third of people who present to prisons test positive for hepatitis
C)
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| Ganser syndrome: classified in Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV)
as atypical dissociative disorder; viewed as inmate’s attempt to feign mental illness without having accurate
knowledge of symptoms, resulting in “approximate answers”; eg, examiner may ask how much 2 plus 2 is, and
prisoner answers 5 (approximate answers sometimes considered as symptom pathognomic of Ganser’s syndrome,
but also found in malingering); other symptoms include clouding of consciousness, somatic conversion
(particularly of sensory symptoms), and hallucinations; symptoms often seen after severe psychologic stress and
are of brief duration; subsequent amnesia of episode common
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| Isolation and segregation: inmate may be confined to his or her cell for punishment, protection, or administrative
discipline; in some isolation units, inmates locked up 23 hr/day and eat meals alone in cell; legal problems arise
when conditions of isolation involve wanton infliction of pain or denial of basic human needs; in ≥2 cases, courts
have ruled that prisoners may not be placed in SHU or supermax if likely to cause or exacerbate mental illness in
that inmate
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| Sexual exploitation: in survey of inmates in 7 men’s prison facilities, 21% reported ≥1 episode of pressured or
forced sexual contact, and ≥7% reported having been raped; most common allegations made against correctional
officers, not against other inmates
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| Confidentiality issues: principles of privilege and confidentiality generally apply in institutional settings, but must
be balanced with countervailing demands of security; confidentiality may be suspended when inmate—suicidal;
homicidal; presents reasonably clear danger of injury to self or others, by virtue of conduct or oral statements;
presents reasonably clear risk for escape or creation of internal disorder or riot; receives psychotropic medication
or is noncompliant with medication; requires movement to special unit for observation, evaluation, or treatment
of acute episode; requires transfer to treatment facility outside of jail or prison
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| Dual agency (also known as dual loyalty): situation in which psychiatrist subject to >1 authority or >1 moral principle
(for example, participation by treating psychiatrist in court-ordered evaluation, screening and classification,
or evaluation for parole board); before proceeding, mental health professional in prison or mental health hospital
advised to disclose the following, 1) agency with which mental health professional afiliated; 2) purpose of encounter;
3) how information may or will be used; National Commission on Correctional Health Care requires
that “written policy and procedures prohibit the prison’s health personnel from participating in the collection of
certain information for forensic purposes”; treating clinician should strictly avoid gathering information on inmate’s
crime or competency to stand trial because “our job is not to be an investigator; it’s to diagnose and
treat”
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| Mental health treatment in correctional facilities: in state prisons, ≈12% of inmates receive mental health
treatment and ≈15% receive psychotropic medications; drug and alcohol treatment—almost 40% of inmates in
drug treatment program, although only ≈14% in program with trained professional; in general, courts have ruled no
constitutional right to drug and alcohol rehabilitation; mental retardation and developmental disabilities—also no
constitutional right to rehabilitation; sex offenders—increasing numbers in jails and prisons; pedophiles most reviled
types of inmates in correctional setting and may need protection from other inmates and from correctional officers
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| Introduction: legal roots date back several centuries; historically, before modern psychotropic medications, seclusion
and restraint primary methods of managing patients with mental illness; in 1744, English legislation charged
parish overseer with “keeping, maintaining, and curing lunatics during their restraint”; this eventually (1929) led to
theory of quid pro quo, which says that if something (eg, liberty) taken away from mentally ill patient, something
(eg, treatment) must be offered in return; in 1960, Morton Birnbaum, MD, JD, first proposed that courts recognize
constitutionally protected right to treatment based on substantive due process; Birnbaum argued that because of due
process, mentally ill patient who has committed no crime cannot be deprived of his or her liberty by indefinite institutionalization
without treatment in mental prison; United States Congress ultimately agreed and passed 1964 Hospitalization
of the Mentally Ill Act
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| Landmark cases: Rouse v Cameron (1966); Wyatt v Stickney (1971); Wyatt v Aderholt (1974); Donaldson v
O’Connor (1974); O’Connor v Donaldson (1975); Youngberg v Romeo (1982)
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| Summary of decisions: mentally ill people cannot be held involuntarily in state hospitals without treatment being
provided; furthermore, hospital’s lack of staff and facilities does not justify failure to provide treatment; Abigail
Alliance v Eschenbach (2007)—medically (but not mentally) ill patient denied treatment because it was considered
experimental; Circuit Court of Appeals ruled there is no constitutional right to experimental treatment; case
to be appealed; speaker opines that final ruling will apply to psychiatric as well as medical patients
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| Consequences of lawsuits: mandated staffing patterns and increased standards of treatment resulted in large numbers
of chronically mentally ill patients being discharged from state mental hospitals; no federal constitutionally
based right to treatment, but such right may be achieved through legal solutions such as 1) judicial imposition of treatment
for individual patient (Rouse v Cameron), 2) statistical standards (both Wyatt cases), and 3) malpractice lawsuits
(Donaldson v O’Connor); legislative bills of rights for patients
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Suggested Reading
Annas GJ: The patient’s right to safety—improving the quality of care through litigation against hospitals. N Engl
J Med 354:2063, 2006; Appelbaum PS: The Supreme Court looks at psychiatry. Am J Psychiatry 141:827, 1984;
Basu S et al: HIV testing in correctional institutions: evaluating existing strategies, setting new standards. AIDS
Public Policy J 20:3, 2005; Behnke SH: O’Connor v. Donaldson: retelling a classic and finding some revisionist
history. J Am Acad Psychiatry Law 27:115, 1999; Brink J: Epidemiology of mental illness in a correctional system.
Curr Opin Psychiatry 18:536, 2005; DePugh D: The right to treatment for involuntarily committed sex offenders in
the wake of Kansas v Hendricks. Buffalo Public Interest Law Journal 17:71, 1999; Donaldson K: Insanity Inside
Out. New York: Crown Publishers, 1976; Dvoskin JA, Spiers EM: On the role of correctional officers in prison
mental health. Psychiatr Q 75:41, 2004; Geller JL: At the margins of human rights and psychiatric care in North
America. Acta Psychiatr Scand Suppl 399:87, 2000; Gutheil TG et al: The inappropriateness of “least restrictive
alternative” analysis for involuntary procedures with the institutionalized mentally ill. J Psychiatry Law 11:7, 1983;
Konrad N et al: International Association for Suicide Prevention Task Force on Suicide in Prisons. Preventing suicide
in prisons, part I. Recommendations from the International Association for Suicide Prevention Task Force on
Suicide in Prisons. Crisis 28:113, 2007; Laurie G: Personal autonomy and right to treatment. Edinburgh Law Review
9:123, 2005; Metzner J, Dvoskin J: An overview of correctional psychiatry. Psychiatr Clin North Am
29:761, 2006; Moore P: An end-of-life quandary in need of a statutory response: when patients demand life-sustaining
treatment that physicians are unwilling to provide. Boston College Law Review, March 2007; Shannon BD: The
impact of the courts on mental health policy and services, in: Watkins TR, Callicut JW (eds): Mental Health Policy
and Practice Today. CA: Sage Publications, 1997; Smoot GA: The Law of Insanity. Kansas City, MO: Vernon Law
Book Co., 1929; Stefan S: What constitutes departure from professional judgment? Mental and Physical Disability
Law Review, Apr. 1993, 207; Torrey EF (ed): Out of the Shadows: Confronting America’s Mental Health Crisis.
New York: John Wiley & Sons, 1997.
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