Mental health practitioners have the ethical responsibility to use the least restrictive alternative when treating the mentally ill. Confinement should only be used when no other alternative exists to help the patient. A sound practice is to confer with other professionals to determine the length and type of treatment. Health professionals should be familiar with their own state laws and also resources that exist within their own communities to help mentally ill patients.
Civil rights of the patient are required to be upheld by ethics codes. A psychotherapist not only should know the laws governing the institution where a person is being confined, but also the status of the patient. Was the patient voluntarily confined, involuntarily confined, or legally incompetent? Often therapists are called as witnesses to testify on whether or not confinement should continue.
Though both the mental health law and the criminal law have provisions for involuntarily confining a person, they differ in several aspects including; burden of proof, purpose of confinement, what confinement is based on and length of confinement. First, under criminal law the burden of proof is beyond a reasonable doubt. Under health laws, proof is clear and convincing evidence. Though patient’s rights advocates had requested that a burden of proof under mental law also be beyond a reasonable doubt, courts held that was beyond the capabilities of mental health professionals. Courts felt that the civil standard of a fair preponderance of the evidence was not enough to protect the rights of individuals facing long confinement. The middle ground the courts decided was clear and convincing evidence.
The purpose of confinement differs in criminal cases and mental health cases. In a criminal case the purpose of confinement is punishment. In mental cases the purpose it to help the patient, not to punish. Under criminal law confinement is based on past acts where mental health law focuses on past, present and future indicators of behavior. The length of time a person will be confined also differs under the two types of law. Criminal law confines a person for a set period of time. Mental health law confines a person until the person is considered cured.
Health laws has gone through many changes over many years. Patients have endured neglect and persecution, forced confinement and freedom to be homeless. Due process laws have helped to ensure that patients are protected from unnecessary confinement. Mental health professionals have an ethical responsibility to balance the patient’s rights of liberty with the patient’s therapeutic welfare.
The health care system has complex laws that are not fully understood by most medical practitioners and patients alike. Because of this, employing the services of a health care attorney is therefore imperative in order to have better grasp on these governing health care laws. Lawyers who specialize on these types of laws can provide medical practitioners and organizations with medico-legal counsels that are essential for the improvement of providing medical services to people.