The Increasingly Blurred Line Between
While court decisions have increasingly protected seriously mentally ill individuals from involuntary commitment or retention in a psychiatric facility without significant due process, a series of legislative actions, bolstered by court decisions, simultaneously increased the involvement of the mental health system in the treatment and control of criminally involved individuals, particularly those diagnosed with serious personality disorders. In Foucha v. Louisiana, the Supreme Court drew a seemingly clear line in ruling that an insanity acquittee, with only antisocial personality disorder and no other active mental health diagnosis, despite remaining dangerous, could not be retained in a psychiatric hospital. But, more recently, Kansas v. Hendricks upheld the use of sexually violent predator laws on the basis that the goal was to treat individuals with a mental abnormality, including anti-social personality disorder,rather than to punish them, thereby allowing for post-incarceration detention of convicted sex offenders under the auspices of a mental health institution.
The onus placed on the public mental health system to provide treatment for such personality disorders is compounded by the fact that courts have also required clinicians to intervene and protect third parties who are in some way at risk of harm from a patient. While this burden appears reasonable in some circumstances where danger results from serious mental illnesses, it takes on a much more onerous nature when the patient is severely antisocial or psychopathic, both when personality disorder is the sole diagnosis, and when personality disorder overlays an additional psychiatric diagnosis.