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The Mentally Disordered Inmate and the Law, by Fred Cohen (Book Review)
Reviewed by Paul Wright
With the steady criminalization of mental illness over the past thirty years, prisons and jails now hold hundreds of thousands of mentally ill prisoners. Conservative estimates place the number of mentally ill prisoners at 8 to 10% of the nation's prison and jail population. Mentally ill prisoners impose a different set of obligations on detention facility officials, and liability if those needs are not met. The Mentally Disordered Inmate and the Law (TMDIL) offers a concise, detailed overview of the mentally ill prisoner and detainee and the legal requirements on officials who incarcerate the mentally ill.
The book's author, Fred Cohen, is one of the leading experts on mental health care law in prisons. He has served as a court monitor and expert witness in mental health care lawsuits as well as publishing, lecturing and consulting on the topic. He Is also co-editor of The Correctional Law Reporter.
The book will be most useful to prison and jail officials, medical staff who deal with mentally ill prisoners and those who are litigating issues surrounding the care, or lack of care, for such prisoners. This book serves as an ideal primer on this area of law. It offers an overview of the general legal issues, i.e., the right to medical treatment for prisoners, a duty on prison officials to diagnose medical needs, to keep accurate treatment records, the treatment relationship itself, etc.
Cohen lays out the basic rights of prisoners, mentally ill or not, then has an extensive, detailed discussion on the constitutional right to medical care, the legal standards that are applied and how it relates to mental health. Throughout the book Cohen has chapters on leading cases, usually class action suits that challenged systemic deficiencies in the provision of care for mentally ill prisoners. Since the plaintiffs won all the cited cases, it illustrates what conditions will most likely be found unconstitutional by the courts.
Chapters include detention facility officials' legal obligations to conduct intake screening and classification of prisoners arriving at prisons and jails as well as defining treatment; the case law on treatment obligations; substance abuse programs; treatment relationships in prison and its lack of confidentiality and medical record keeping requirements. Of use to those litigating control unit issues, are chapters on the effect of isolation on mental illness, the use of bodily restraints and disciplinary hearings for the mentally ill.
An entire chapter focuses on the unique problem of suicides. The rights of pretrial detainees are also discussed in detail. Cohen also distinguishes between mentally retarded prisoners and their unique needs as well as the transfer of prisoners to mental institutions for treatment.
The book has several useful appendixes. One provides a summary of the standards various professional organizations have set on the level of care mentally ill prisoners should be provided with. Another appendix has extensive sections of leading cases on the topic and includes the consent decree from Dunn v. Voinovich, [PLN , Dec. 1995] a class action suit which challenged the lack of treatment for mentally iII prisoners in Ohio.
TMDIL is the most detailed and comprehensive book on this topic. It will undoubtedly be a valuable addition to law libraries, for litigants, medical personnel and government officials alike. Its usefulness to pro se prisoner litigants is probably limited. Depending on the level of disability, pro se prisoners are rarely able to successfully litigate mental health care issues.
Overall the book is excellent and gives a much needed look at this important issue. One drawback is the book does not use a straight pagination system, instead pages are numbered by chapter which I find awkward, cumbersome and difficult to use. One deficiency in the book is that while it focuses on overall legal issues, the author neglects to mention that in many cases mentally ill prisoner plaintiffs have received hefty damage verdicts and large attorney fee awards. After mentioning this to Cohen be agreed and said future editions of TMDIL will include a chapter on this very issue. Including this information will illustrate the duty prison and jail officials have to meet the needs of mentally ill prisoners that goes beyond an abstract discussion of "duty" and "obligation." It will also aid personal injury and civil rights lawyers in deciding whether individual injury claims by mentally ill prisoners are economically viable. In some cases attorney fee awards can reach millions of dollars, which emphasizes the need of having sound mental health treatment programs in place before an agency is sued.
Cohen's discussion of the impact that the sensory deprivation of so called "supermax" prisons has on the mental health of prisoners will be useful to those litigating the issue. Some courts have already found that control units push some prisoners "to the brink of human endurance," and some get pushed over the brink. To order the book send $98.95, postpaid, to: Civic Research Institute, P.O. Box 585, Kingston, NJ 08528.
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