Incompetence, mental

Although prisoners do not enjoy the same rights as nonincarcerated Americans, prisoners retain their right to give informed consent before being the subject of a medical procedure or treatment. Thus, unless a court has determined that a prisoner is mentally incompetent, the informed consent requirements discussed in the previous section retain their validity within the prison context. 

A prisoner can be compelled to take psychiatric medication in only two circumstances. First if he suffers from a serious mental illness that renders him mentally incompetent to make his own medical decisions, prison medical authorities are permitted to forcibly treat the prisoner, so long as the treatment is in the best interests of the prisoner and complies with due process. Second, a prisoner whose mental illness leads him or her to engage in dangerous behavior that threatens to harm other prisoners or prison staff, may be forcibly treated with psychotropic medication.This ruling is based on the unique safety and security issues within prisons. 

Compelling a prisoner, parolee or probationer to take a pharmacotherapy drug, assuming the person is not mentally incompetent or dangerous, is akin to torture or barbarism. It treats the person as a means, rather than an end, and ought to be considered cruel and unusual punishment. 

Skinner v. Oklahoma 316 U.S. 535, 538 (1942). Despite the Skinner decision a handful of states continue to have laws allowing for the compulsory sterilization of criminals or the mentally incompetent. See, e.g., MISS. CODE ANN. 41-45-1 (1991) N.C. GEN. STAT. 35-36 (1990) W.VA. CODE 27-16-1 (1986). It is unlikely that these laws, if challenged, would withstand constitutional scrutiny. 

The principle of justice states that individuals should be given what they deserve, be that benefit or burden. Cases that are alike should be treated similarly, and relevant distinctions should be drawn consistently. The principle of justice does not specifically state what distinctions are fair or which criteria are reasonable it simply requires that, once criteria are determined, they be applied fairly. Justice is important in many areas, such as recruitment of research subjects for pharmaceutical studies. For example, researchers must guard against distributing the burdens of participation disproportionately among populations that are poorly equipped to give informed consent, such as children or the mentally incompetent. 

We would propose that all mentally ill persons, whether adjudicated or presumed incompetent, retain the right to articulate their objection to or refusal of treatment and that any such concerns must be heard. The critical factor regarding treatment refusals by the mentally ill is whether, when, how, and by whom such a refusal can be overridden. In our opinion, the decision to override a treatment refusal is best made by medical personnel rather than the legal system the override decision should be allowed in all circumstances, not just emergencies and it can and should be made expeditiously ( 19). 

In case of legal incompetence, informed consent should be obtained from the legal guardian in accordance with national legislation. Where physical or mental incapacity makes it impossible to obtain informed consent, or when the subject is a minor, permission from the responsible relative replaces that of the subject in accordance with national legislation. 

Webster s defines disability as deprivation or lack, esp. of physical, intellectual, or emotional capacity or fitness a physical or mental illness, injury, or condition that incapacitates in anyway. the inability to pursue an occupation or perform services for wages because of physical or mental impairment handicap lack of legal qualification (incompetence) disadvantage. Note that disability is here defined as a condition (noun), not as an attribute (adjective). More succinctly, The Oxford English Dictionary (OED) defines disability as want of ability (to discharge any office or function) inability, incapacity, impotence. ... 

In short, the term psychiatric disorder is useful because it enables psychiatrists to waffle It may be a disease, or may not be may render the patient incompetent, or may not may annul intentionality, but not necessarily may cause dangerousness to self and others, but not always and be an excuse for crime, and may not be. It all depends on the psychiatrists interpretation of their so-called clinical observations. This discretion enables them—aided and abetted by other physicians, lawyers, politicians, journalists, and the general public—to transform personal, marital, moral, political, social, and spiritual problems into mental diseases. 

Under TSA s rule, the roughly 3.5 million commercial drivers with hazardous material endorsements now will be required to undergo a routine background and records check that includes a review of criminal, immigration, and FBI records. Any applicant with a conviction (military or civilian) for certain violent felonies over the past seven years, or who has been found mentally or physically incompetent, will not be permitted to obtain or renew the hazardous material endorsement. The checks will also verify that the driver is a U.S. citizen and a lawful permanent resident as required by the U.S.A. Patriot Act. 

While working definitions of cultural competency in community venues have been available for more than a decade, the implementation, measurement, and attainment of cultural competency in clinical practice have been more elusive. It may be argued that cultural competency is a relative concept. That is, unlike other standards to be attained such as licensure or certification, cultural competency is an ongoing process and a dynamic, constantly changing one. In this way, it is possible that a mental health professional working at a school may seem culturally competent at one specific moment but culturally incompetent at another. 

The preceding have been descriptions of exclusionary or marginalizing acts or processes in school-based mental health programs. They contribute to cultural incompetency, insensitivity, and disrespectfulness. Fortunately there are alternative processes or stances that can contribute to greater cultural sensitivity, relevancy, and effectiveness in outcomes in school-based mental health programs. 

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