1972 “Declaration on the Rights of Mentally Retarded Persons, General Assembly of the United Nations

“the mentally retarded person has, to the maximum degree of feasibility, the same rights as other human beings . . . “

1975 “Declaration on the Rights of Disabled Persons”, General Assembly of the United Nations

“inherent right to respect for their human dignity . . . The same civil . . . Rights as other human beings. . . .”Each person has their own needs and the right to live in the most appropriate [least restrictive] environment"

“Normalization”--”making available to all mentally retarded people patterns of life and conditions of everyday living which are as close as possible to the norms and patterns of the mainstream of society” (Nirje, 1969)

Focus on normalization began in Scandinavia in the 1960s and was spread to the U.S. through the writings of Wolfensberger (1972) and Nirje (1969)Normalization served as a philosophical basis for deinstitutionalization

Contributed to movement toward community care for persons with mental retardation and individualized free and appropriate education programs for youth with special needs

Supported employment initiative

“Competency for the mentally retarded persona refers to competency to manage one’s own affairs, to physically care for one’s self, and to care for others (parenting).” (Harris, 1998, p. 564)

Basic legal competency

Ability to be a competent witness

Ability to stand trial as a person responsible for one’s own actions

Competency in what regard?

Legal

Parental

Consent

Contractual

Partial Competency

Guardianship

Designated payee

Competency to consent to sexual activity

“. . . It is important to recognize that individuals with mental retardation whould not be held to different standards than those commonly applied to individuals within the general population.” (Morris et al., 1993, 264)

Criteria set for by several states (AZ, IL, IN, IO, KA, LO)

Understanding the nature of sexual conduct
Understanding possible consequences
Possessing the abilities to resist coercion & implement a choice

Parental Competency

The parent(s), child, and society all have an interest in maintaining the family unit

When termination of parental rights are considered, the most common determining standards are

Parental fitness standard--based on common law presumption that parents act in their child’s best interest

Child’s best interest standard--focuses on child’s needs

The legal system has emphasized 3 skills

Expressing love and affection
Performing household tasks
Attending to child’s physical needs

Some courts have added a 4th skill

Stimulating the child intellectually

Legal Competency

Competency to stand trial

Ability to comprehend the nature and consequences of legal proceedings

Ability to assist legal counsel in preparing and carrying out one’s own defense

Competency to testify

A witness is not automatically disqualified because they are mentally retarded

Must understand they can be punished for not telling the truth

Must be capable of recall and reporting past events accurately

Criminal Liability

Mental retardation may be a mitigating circumstance that reduces an offender’s culpability

Reliability of confessions to a crime

Voluntary, knowing, intelligent waving of Miranda rights

Insanity defense

Culpability often refers to capacity to distinguish right from wrong

McNaghten rule: due to mental disease or defect, lacks knowledge of the nature and wrongfulness of the act--individual is not being held responsible

Capital Crimes

Supreme Court has found that mentally retarded individuals can not be given a death penalty

A previous ruling had found that mental retardation must be considered a mitigating circumstance in capital crimes

The American Association on Mental Retardation (AAMR) had adopted a position that individuals with mental retardation should not be sentence to death or executed, arguing:

No penological purpose
Disproportionate to the retarded person’s culpability
Do no consider degree of moral blameworthiness
Are cruel and unusual punishment

Rights of the Incompetent

developmentally disabled individuals adjudicated mentally incompetent are unable to exercise their rights; there for procedural safeguards are necessary to protect them

Preservation of autonomy despite incompetency a major challenge

Cannot voluntarily consent in regard to decision

Undergo or terminate life-sustaining treatment
Reproduce and give birth
Community placement versus institutionalization

Two general approaches;

Best interest test: focuses on needs of the incompetent person

Substituted judgment test: court renders decision considering the decision the person might render if they were competent

Procedural safeguards

Appointment of guardian ad litem

Adversarial hearing: due process

Opportunity to be heard
Opportunity to question and cross-examine witnesses
Right to offer evidence

Limits on the role of the court

Areas of contention

Sterilization/antilibidinal drugs/sexual expression

Treatment with psychoactive drugs

Right to refuse treatment

Use of “chemical restraint” [“emergency pharmacotherapy”]

Side effects

Issue of consent

Consent: informed, voluntarily, & competent

Consent to treatment
Consent to take medication
Consent to release informatio

Competence requires understanding of the nature and consequences of the decision, and availability of relevant information to reach an informed and rational choice

References

Harris, J.C. (1998). Developmental Neuropsychiatry, Vol II: Assessment, diagnosis, and treatment of developmental disorders. New York: Oxford University Press.

Kennedy, C.H. (1999). Assessing competency to consent to sexual activity in the cognitively impaired population. Journal of Forensic Neuropsychology, 1, 17-33.

Morris, C.D., Niederbuhl, J.M., & Mahr, J.M. (1993). Determining the capability of individuals with mental retardation to give informed consent. American Journal on Mental Retardation, 98, 263-272.

MPDLR (1989). U.S. Supreme Court remands esecution of man with mental retardation. Medical and Physical Disability Law Reporter, 13, 334-338.

Nirje, B. (1969). A Scandinavian visitor looks at U.S. institutions. In W. Wolfensberger and R. Kugel (eds.), Changing Patterns in Residential Services for the Mentally Retarded. Washington, D.C.: President’s Committee on Mental Retardation.

Wolfensberger, W. (1972). The Principle of Normalization in Human Servcies. Toronto, Ontario: National Institution on Mental Retardation.