Law and the Mental Health System, Civil and Criminal Aspects

Christopher Slobogin, Vanderbilt University Law School

Thomas L. Hafemeister, Virginia

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Table of Contents

Chapter 1: Mental Disorders and Their Treatment, the Mental Health Professions, the Financing of Mental Healthcare, and Other Emerging Issues
 

• Revised descriptions of diagnoses and diagnostic categories, based on the newest version of the APA’s Diagnostic and Statistical Manual, published in 2022 (DSM-5-Text Revised)
• Extensive updated research on the correlations between “mental disorder” and neurology, biochemistry and heredity
• The movement toward describing mental disorder at the “symptom” level
• The development of new treatments, such as ketamine to treat depression, Cobenfy to treat schizophrenia, non-stimulant medications for ADHD, and LSD formulas and virtual reality to treat anxiety
• Updated descriptions of other treatments, including antidepressants, ECT, and transcranial magnetic stimulation
• Summary of recent research on the efficacy of second-generation anti-psychotic medication and its side effects
• New data on racial diagnostic differences and racial disparities in access to mental health treatment
• Update on the number of different types of mental health professionals (including counselors)
• New developments in connection with board certification of mental health professionals
• Litigation and statutes governing the extent to which ERISA requires private insurers to cover all treatment required by leading standards on mental health and substance use care
• New federal regulations (promulgated in 2024) requiring greater parity between physical and mental health coverage
• The dramatic impact of the COVID-19 pandemic on mental health, the factors contributing to this impact, and its continuing impact and consequences, particularly among young adults
• The impact of the COVID-19 pandemic on the delivery of mental health services and the response, including the expansion and embracement of telehealth for the treatment of mental disorders and associated challenges
• The emerging and sharply contested debate over the use of artificial intelligence (AI) in conjunction with mental healthcare, as well as its history, diverse applications, and consequential effects
• An exploration of the various federal and state efforts to regulate the use of AI for mental healthcare, including where responsibility falls for flawed applications
• A discussion of the role of mental healthcare providers when an AI-tool is employed for mental healthcare and related lawsuits

Chapter 2: Regulation of the Mental Health Professions
 

• An update on the dramatic increase in occupational licensing in the U.S., with psychiatrists, psychologists, and social workers now licensed in all states, as well as the ongoing debate over the merits of occupational licensing requirements in this field
• An exploration of the impact of telehealth on occupational licensing requirements for mental health providers
• The evolving positions of professional organizations regarding the minimum educational requirements mental health providers must meet
• New information on the prevalence and impact of the administrative regulation of mental health providers, including disciplinary actions
• Expanded disciplinary and tort actions, as well as federal law enforcement, targeting sexual relationships between mental health providers and clients
• A discussion of how mental health providers refrain from seeking needed mental health treatment for fear of its impact on their licensure, and associated responses
• The latest regarding the ongoing “turf wars” among the mental health professions, including where and under what circumstances psychologists and social workers can now prescribe medications, and the impact of these changes
• The emerging debate on whether AI should be able to prescribe medications

Chapter 3: Professional Liability for Malpractice
 

• Updates on the professional liability of the various types of mental health providers
• Legislative efforts to ban “conversion therapy” and related judicial rulings
• Developments regarding professional liability for the suicide of a client
• An exploration of professional liability issues surrounding the use of telehealth for mental health services and states’ responses
• A discussion of professional liability issues associated with the use of AI for mental health care (including the prediction of dangerousness), with a focus on chatbots, and the response of the federal government and the various states
• The continuing evolution of the Tarasoff doctrine and professional liability to third parties
• New information on the potential mental health-related liability of healthcare institutions, institutions of higher education, and public officials/governmental units

Chapter 4: Informed Consent
 

• Evolving views regarding the role and required nature of informed consent in mental healthcare and treatment
• A probe of the emerging issue of whether clients or their surrogates must be informed that AI will be involved in generating the client’s diagnosis or treatment plan, or play a role in the client’s treatment and monitoring
• A discussion of what impact the rapidly changing nature and role of AI in mental healthcare should play in defining the scope of the requisite informed consent that must be obtained from mental health clients
• An investigation of whether and, if so, how the informed consent obtained from a client should be different when telehealth is employed
• Ongoing views regarding the role and required nature of informed consent in research involving human participants
• How “risk of harm” is increasingly being defined in conjunction with the obtaining of informed consent in research involving human participants
• The establishment of a private right of action for violating rules governing research using DNA samples, genetic testing, and genetic information
• Emerging positions regarding the involvement of participants with a mental health disorder in clinical trials and other studies, and the obtaining of informed consent to participate, questions that became more pressing with the occurrence of the COVID-19 pandemic
• A consideration of whether it should be permissible to employ telehealth and/or AI in obtaining surrogate consent

Chapter 5: Confidentiality and Access to Records
 

• Issues unfolding regarding the protection of privacy and confidentiality in conjunction with mental healthcare
• New developments regarding the federal regulation of healthcare privacy and protected health information (PHI), including when transmitted or maintained via electronic media, modifications specifically pertaining to mental healthcare, and related state laws
• Unfolding state-based legal remedies for breach of confidentiality and privacy in mental healthcare, as well as an update regarding the fate of the documentary “Titicut Follies”
• The impact of telehealth on mental healthcare privacy and confidentiality, emerging questions and potential adverse effects, existing and suggested remedies, and issues pertaining to the crossing of state lines in the delivery of telehealth services
• The impact of AI on mental healthcare client privacy and confidentiality, emerging questions and potential adverse effects, and existing and suggested remedies for privacy and confidentiality violations
• Emerging discussions of exceptions to the duty of confidentiality in mental healthcare, the testimonial privilege, and the evolution of the “dangerous patient” exception

Chapter 6: Mental Health Professionals and Expertise
 

• Changes to the federal rules of evidence (made in 2023) and to the federal rules of criminal procedure
• Research on the extent to which psychological tests are challenged and the extent to which such challenges are successful
• New research on the accuracy of violence prediction
• More analysis of actuarial prediction
• Changes in the American Bar Association’s Criminal Justice Mental Health Standards, reflecting commentary promulgated in 2024.
• New caselaw on the permissibility of expert testimony describing hearsay evidence
• Discussion of the implications of Diaz v. United States, 602 U.S. 526 (2024) (interpreting Federal Rule of Evidence 704)

Chapter 7: Mental Disorder and Criminal Law
 

• Update on the status of the insanity defense in the United States
• Description of additional research on juror understanding of the dispositional consequences of an insanity finding
• The insanity defense in other countries
• Further studies on the insanity defense and veterans
• Discussion of the implications of City of Grants Pass, Oregon v. Johnson, 603 U.S. 520 (2024) and the Eighth Amendment on the criminalization of homelessness and the volitional impairment prong of the insanity defense
• Two new problem cases on volitional control, including the case of Andrew Goldstein (the New York subway case that led to Kendra’s Law).
• New research on caselaw considering the relevance of dissociative identity disorder (a.k.a. multiple personality disorder) to criminal liability
• New research and case law on battered woman syndrome
• Update on caselaw construing Atkins v. Virginia’s prohibition on execution of people with intellectual disability
• New research from the federal sentencing commission on downward departures based on mental disability and discussion of the 2025 federal regulations allowing more flexibility on such departures

Chapter 8: Civil Commitment
 

• New data on hospitalization rates and length of hospital stays
• New data on the relationship of serious mental illness to violence and crime generally
• New data of the effectiveness of involuntary medication
• New data on patient perceptions of commitment
• More description of statutory approaches to the incompetence predicate for commitment
• Update on laws allowing preventive commitment, including California’s CARE Act
• Update on research on voluntary alternatives to outpatient commitment
• President Trump’s executive order calling for hospitalization and outpatient commitment “to the maximum extent permitted by law”
• Additional research on the efficacy of red flag laws
• Analysis of how police react to people with mental disability and accounts of new, non-police methods of dealing with such people
• New caselaw on release conditions
• New data on voluntary admissions
• Discussion of the relationship between advanced directives and voluntary admissions
• New data on the percentage of people with mental illness in jails and prisons
• Discussion of whether the ADA requires diversion from jail
• New data on the efficacy of mental health and drug courts
• New data on the percentages of people with substance abuse disorders
• New research on community placement of people with intellectual disability
• New research on the decision-making competence and diagnoses of juveniles

Chapter 9: Competency Determinations
 

• Updated information about and analysis of state laws on guardianship, supported decision-making and advanced directives
• New data on the prevalence of guardianship terminations
• Brief treatment of Doe v. Dist. of Columbia, 206 F.Supp.3d 583 (2016) (involving the constitutionality of elective surgery, including abortions, on three women with intellectual disability that was authorized solely via government consent)
• New data on effects of anti-psychotic medication on consumers’ “quality of life”
• New data and caselaw on the “competency crisis” (including delays in evaluation and restoration of competency)
• Update on statutory implementation of Jackson v. Indiana’s requirement that restoration occur within a reasonable period of time
• Update on caselaw construing Indiana v. Edwards’s ruling regarding when a person is competent to proceed pro se
• Elaboration of the ABA’s position on the decisions about the criminal process that defendants (as opposed to counsel) control
• Caselaw on the use of deception during interrogation
• Discussion of Madison v. Alabama, 586 U.S. 265 (2019), regarding dementia and competency to be executed
• Update on post-Panetti caselaw regarding competency to be executed

Chapter 10: Post-Commitment Issues
 

• Discussion of the extent and causes of deinstitutionalization
• New caselaw on the right to treatment and the right to compensation for work performed while committed
• Discussion of the appropriateness of class actions under the ADA challenging treatment conditions in both public and private institutions
• Litigation about whether plaintiffs can sustain a prima facie ADA claim by showing that they are “likely” to be at “serious risk of institutionalization.”

Chapters 11: Entitlements for People with Mental Disabilities
 

• Updated references to the IDEA and Social Security regulations
• Discussion of A.J.T. v. Osseo Area Schools, 605 U.S. 335 (2025) and other developments regarding the interaction of the IDEA and the ADA
• Litigation regarding accommodations involving remote work and lack of concentration
• Update on caselaw since Endrew F.’s interpretation of the IDEA
• Data on the costs of the IDEA and extent to which federal government covers it.
• Data on the costs and expansion of Social Security benefits

Chapter 12: Protection Against Discrimination
 

• Data on the nature of ADA claims and their success
• Data on the number of accommodation requests by students
• Discussion of the extent to which accommodation in schools should remain confidential
• New summary of ADA law governing questions on bar examinations
• Litigation on the relevance of grades to whether accommodations are necessary

Learn more about this series.