Law & Mental Health Professionals – Utah
by Leslie Pickering Francis and Linda F. Smith
Reviewed by Judge Judith S. H. Atherton
Providers of mental health services (MHPs) are affected by the law in numerous ways. Not only does the law govern their credentialing, licensing, business practice, and personal liability but also, and, importantly, it dictates their direct participation in the administration of the legal system. MHPs increasingly are called upon to provide expert opinions and testimony on subjects ranging from an individual’s competency to participate in court proceedings, marry, enter a contract, vote, sign a will, or testify in court about that person’s mental status, amenability to treatment and even the likelihood of effectively responding to a prescribed medication treatment regimen to restore competence. Lawyers and MHPs do not necessarily speak the same language, but they must interact on a regular basis. Law & Mental Health Professionals – Utah seeks to be a comprehensive and accurate review and integration of all the law that affects MHPs in Utah. This book is the latest in a series of similar state volumes published by the American Psychological Association, which has a stated goal of having such a book for each state and federal jurisdiction and for the District of Columbia. It is, then, a handbook, written primarily for the MHP, in language readily understood by non-lawyers, but it is also a valuable resource for the law-trained. It is meant to provide an accurate statement of the existing law only and offers neither critique nor commentary on the law’s substance.
The book consists of eight sections, each covering a discrete area of the law that affects the MHP. Each section includes a paraphrasing of the applicable law and notes specific concerns or responsibilities MHPs may face, including instances when they may be called to testify and what matters they may need to address. The book meticulously cites the Utah Code and applicable case law, making this volume a valuable resource. However, the book contains no statutory text and does not include legislation passed by the 2007 Utah Legislature. The decision not to include the statutes themselves may have been based upon the concerns of the targeted reader, the MHP, for whom the statutory language may be intimidating or the fact that the legislature regularly tweaks statutes, rendering some of the language obsolete after
each session. The statutory cites themselves are unlikely to change, however, and the legislature has an easily accessible website, www.le.state.ut.us/, which provides all current statutory language.
The interaction between the legal and the mental health professions is vexing, at best. Statutes, drafted by attorneys for application by attorneys and judges, impose legal standards for decision-making that must be followed. Those standards often do not relate to the reality of mental health concerns, including treatment and probable outcomes. For a simple example, in a competency hearing in a criminal matter the law requires the court to find that an incompetent defendant is “incompetent to stand trial with a substantial probability that the defendant may become competent in the foreseeable future” or that the person is “incompetent to stand trial without a substantial probability that the defendant may become competent in the foreseeable future.” Utah Code Ann. § 77-15-6 (4)(b), (c) (2007) (emphasis added). As a practical matter the court relies almost exclusively on the opinion that the MHP evaluator is required by law to offer, to make that legal determination, even if any prediction of competency restoration is clinically impossible. The resulting determination often is a work of legal-clinical fiction. While the authors of this book do not take on the thorny issues relating to the relationship between two very different professions, their book is a very welcome resource for MHPs as an informative and accessible resource that begins to bridge the chasm between them.