Mark Heyrman Talks with Daily Kos About Mental Health, Insanity, and Criminal Law

Jared Loughner, Mental Health and the Law
Adam B
Daily Kos.com
January 10, 2011

I know enough to know what I don't know, and then I turn to the experts. Prof. Mark Heyrman has taught at The University of Chicago Law School's Edwin F. Mandel Legal Aid Clinic since 1978, where he supervises students in litigation and legislative advocacy on behalf of persons with mental illness, and teaches a course on Law and the Mental Health System. Among his accomplishments is that in the late 1980s he served as executive director of the Governor's Commission to Revise the Mental Health Code of Illinois, with dozens of his proposals becoming law.

I interviewed him by email today.

Q: From the news reports so far, it sounds like some of Jared Loughner's professors were sufficiently concerned with his mental health that he was required to seek a "mental health clearance" in order to return from school post-suspension. He refused. From that point, what else could those concerned about Loughner have done, and what were his corresponding rights?

Heyrman: This is somewhat complicated but I will try. I must give you a caveat that mental health law is primarily created at the state level and there is substantial variation among the 50 states. I am not an expert in Arizona law. But here is what is generally true in all 50 states:

Any adult (there are special rules for children) can be involuntarily committed if s/he meets the commitment standard. These standards vary among the states. There is an ongoing and vigorous debate about what standard should be used for commitment. Most states uses something like the following:

    * Due to mental illness the respondent is reasonably expected to inflict serious physical harm on her/himself or another in the near future or is unable to care for her/his basic physical needs so as to guard her/himself from serious harm.
    * The debate often centers on how imminent the harm must be and what evidence, if any, of past dangerous behavior exists. Almost everyone agrees (at least in principle) that commitment should be about preventing future harm rather than simply responding to past behavior. The problem is that is much easier to predict future behavior from a record of past behavior—so we often wait (perhaps too long) before we intervene the very first time.
    * Some states allow commitments based upon non-physical harms—this could include harm to property or emotional or financial harms.
    * There has been a move to allow outpatient commitment—commitment to treatment in the community rather than a hospital—often under a lower standard. I don’t know whether this option is available in Arizona.

Faculty: