Running head: WHEN LEGALITY IS AT ODDS WITH ETHICAL OBLIGATION 1

When Legality is at Odds with Ethical Obligation:

The Case of Linda Bishop

Rebecca R. Falcone

Lesley University
WHEN LEGALITY IS AT ODDS WITH ETHICAL OBLIGATION 2

Abstract

Hindsight is 20/20, but, for counselors and medical professionals establishing level of

potential risk, there must be reliance on the vision one currently has. So often, counselors maintain

the difficult job of having to predict the future of their clients, and while there are assessments and

tools a counselor can use, none are completely free of human error; there is always the possibility

that the counselor’s assumptions and predictions are wrong. Other times, as much as the counselor

advocates for the client, the system fails. “Today, there are three times as many mentally ill people

in jails as in hospitals. Others end up on the streets” (Aviv, 2011). Counselors are stuck in the

middle of ethical and legal obligations, trying to allow the greatest level of rights mental illness

permits for each individual client while protecting them from themselves, and the system. This

paper follows the case of Linda Bishop, and the ethical considerations related.

Keywords: ethics, psychosis, insight, competency

WHEN LEGALITY IS AT ODDS WITH ETHICAL OBLIGATION 3

When Legality is at Odds with Ethical Obligation:

The Case of Linda Bishop

Hindsight is 20/20, but, for counselors and medical professionals establishing level of

potential risk, there must be reliance on the vision one currently has. So often, counselors maintain

the difficult job of having to predict the future of their clients, and while there are assessments and

tools a counselor can use, none are completely free of human error; there is always the possibility

that the counselor’s assumptions and predictions are wrong. Other times, as much as the counselor

advocates for the client, the system fails. “Today, there are three times as many mentally ill people

in jails as in hospitals. Others end up on the streets” (Aviv, 2011). Counselors are stuck in the

middle of ethical and legal obligations, trying to allow the greatest level of rights mental illness

permits for each individual client while protecting them from themselves, and the system.

The Case of Linda Bishop

A prime example of the balance between ethical and legal is the case of Linda Bishop.

Linda had a relatively good childhood, graduated from the University of New Hampshire with a

bachelor’s degree in art history, and later had a daughter (Aviv, 2011). In adulthood, however,

being diagnosed with bipolar disorder with psychosis, some professionals believing it to be

schizoaffective disorder instead, “she drifted between homeless shelters, hospitals, and jail” (Aviv,

2011). In fact, “Linda had led a nomadic existence ever since she had abandoned her sleeping

thirteen-year-old daughter, [Caitlin]” (Aviv, 2011). They did later reconcile when Caitlin was an

adult, but as Linda’s illness worsened, Caitlin and Linda’s sister Joan found it necessary to get her

the help she needed (Aviv, 2011). The problem was, Linda did not believe she had a mental illness,

which led her to “refuse all psychiatric medication” (Aviv, 2011). At age fifty-one, Linda was

“admitted to the hospital . . . after having been found incompetent to stand trial for a series of

offenses. She spent most of her eleven months there reading, writing, and crocheting” (Aviv,
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2011). Upon release, Linda broke into a vacant home, living off apples she collected nearby,

writing in journals she found, with no one knowing where she went (Aviv, 2011).

Psychosis commonly coincides with religious reveries, and the longer Linda was

off her medication the more everyday occurrences seemed to be laced with hidden

connections and symbols. Faith in the Lord’s plan for her became essential as the

days shortened and the temperature dropped. Her neck ached, because she spent

about sixteen hours a day curled up under blankets on a mattress, in order to stay

warm. So much hair fell out each time she combed it that she realized she might

need a temporary wig. But it was “nothing a little fresh air, sunshine, exercise, good

food + love [from a man she believed to be her husband] won’t remedy in a short

period of time.” (Aviv, 2011)

She starved to death in the home that winter (Aviv, 2011).

Diagnosis

The first area of discussion concerning this case is that of diagnosis. Linda denied her

mental illness, and “only when conversations moved away from her mental illness, a term she

generally placed in quotation marks, was she cheerful and engaged” (Aviv, 2011). It is

understandable that being diagnosed after having a normal, productive childhood would be

difficult for someone. Yet, this is often the reality for individuals diagnosed with psychotic

disorders due to their presentation beginning in early adulthood, and sometimes developing even

later, “particularly after periods of stress of isolation” (Aviv, 2011). From an ethical standpoint,

according to the American Counseling Association’s (ACA; 2014) Code of Ethics, counselors have

an obligation to provide proper, accurate diagnoses to clients (E.5.a.). However, “counselors may

refrain from making and/or reporting a diagnosis if they believe that it would cause harm to the

client or others. Counselors carefully consider both the positive and negative implications of a
WHEN LEGALITY IS AT ODDS WITH ETHICAL OBLIGATION 5

diagnosis” (ACA, 2014, E.5.d.). The first question, then, pertaining to Linda’s case is whether it

was appropriate to offer and maintain a diagnosis. In Linda’s particular case, it was obvious that

her psychosis was interfering with her ability to move throughout the world in a productive way,

as it led her to run-ins with law enforcement, and a disconnected relationship with her family. It

also kept her from maintaining stable housing, however, one could argue that she preferred a more

unconventional lifestyle. From the counselor’s point of view, diagnosing Linda would have

positive impact in allowing her access to resources otherwise not available to her. For example,

instead of going to jail for crimes, she was able to be admitted to psychiatric hospitals. However,

it came at the risk of potentially limited freedoms and the internalization of cultural stigma

surrounding mental illness. In regard to diagnosis, while it is important to weigh the pros and cons

from an individual standpoint, it is also important “counselors recognize historical and social

prejudices in the misdiagnosis and pathologizing of certain individuals and groups and strive to

become aware of and address such biases in themselves or others” (ACA, 2014, E.5.c.). For Linda,

I agree with the treatment team’s decision to diagnose. I think it was an important protection for

her from the inner workings of the system, however, I think more work was necessary to help

Linda recognize the mental illness was separate from her; it did not define her. Similarly, perhaps

reframing her so-called illness in a more positive light, she would have been more willing to accept

its existence and see it as something which makes her and her worldview unique.

Issues within the Concept of Insight

Because for Linda, denying her illness also meant denying potential help for that illness.

Today, insight is assessed every time a patient enters a psychiatric hospital, through

the Mental Status Examination, but this form of awareness is still poorly

understood. Patients are considered insightful when they can reinterpret unusual

occurrences—growing angel’s wings, feeling as if their organs have been removed,

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decoding political messages in street signs—as psychiatric symptoms. (Aviv, 2011)

Yet, this begs the question, how are we to expect individuals to categorize their own, very real

experiences of life as mere byproducts of an illness? This, of course, may invite a conversation

about social constructivism for a later time, as to Linda, her reality was formed of those experiences

which felt real, and therefore were real to her. Therein lies the paradox: using the denial of an

illness as proof of its existence (Aviv, 2011). Linda was routinely categorized as lacking this so-

called “insight,” not unlike many others with similar diagnoses, as “studies have shown that nearly

half of people given a diagnosis of psychotic illness, such as schizophrenia or bipolar disorder, say

that they are not mentally ill—naturally, they also tend to resist treatment” (Aviv, 2011). “For

Linda, the validity of her diagnosis was the subtext of nearly all her encounters with her

psychiatrists, whose attempts to teach her that parts of her personality could be ‘construed as a

mental illness,’ as she described it, only alienated her” (Aviv, 2011).

The impact of insight as a concept. The impact, in Linda’s case, was “[avoidance] of

anyone who could challenge her interpretation of the world” (Aviv, 2011). Had Linda encountered

a counselor or psychiatrist more willing to help her work through the visions and discuss the

importance of imagination, but also the importance of taking medication to control the problematic

ones leading her to police intervention, she may have had better outcomes. Of course, “people

recovering from psychotic episodes rarely receive extensive talk therapy, because insurance

companies place strict limits on the number of sessions allowed and because for years psychiatrists

have assumed that psychotic patients are unable to reflect meaningfully on their lives” (Aviv,

2011). I think in these difficult cases like Linda’s, it is important to take advantage of moments of

clarity and do real work. Just because a client cannot reflect meaningfully in moments of psychosis,

does not mean they are not capable at any time. It is important to keep in mind, though, that low

insight may also serve as a protection for some clients, as “insight is correlated with fewer hospital
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readmissions, better performance at work, and more social contacts, but it is also linked with lower

self-esteem and depression” (Aviv, 2011). Knowledge of illness may help a patient/client to

remember their medication, however, it may cause feelings of distress, further iterating the need

for therapeutic intervention in more than just times of crisis; assuming they are willing to take it.

Access to resources. For one of the greatest impacts of insight is access to resources.

Though some argue against diagnoses, they do often allow individuals to qualify for resources like

housing and state funding. However, on applications, it must be disclosed that there is an illness;

the conundrum being that individuals who lack insight do not believe they have one. Therefore, in

the current system, many refuse housing, or will not qualify for it because they cannot identify

themselves as having a mental illness; because they lack insight (Aviv, 2011). For Linda, “although

she had complained of the indignity of being homeless, she didn’t authorize the hospital to share

her records with a free transitional-housing service, because when she reviewed the paperwork she

saw her diagnosis” and refused to sign the paperwork (Aviv, 2011). “Instead, she left the hospital

with only pocket change, no access to a bank account, and not a single person aware of where she

was going” (Aviv, 2011). Legally, this could happen, as Linda had rights to privacy and

confidentiality. However, ethically, “counselors do not abandon or neglect clients in counseling.

Counselors assist in making appropriate arrangements for the continuation of treatment, when

necessary, during interruptions such as . . . following termination” (ACA, 2014, A.12.). Though

the treatment team was covered legally, they had an ethical obligation to provide further protection

for Linda. If they were unable to disclose information, could they have worked with her to tell her

family where she was going of her own accord? If, in our culture, we did not place a stigma on

individuals with mental illness would Linda have accepted her illness more readily and been more

willing to accept help? Once again, it is difficult to answer these questions in retrospect, but seeing

where she ended up, it does remind us there is much to be desired in the healthcare system.
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Informed consent. Another impact of the concept of insight is informed consent.

Getting patients to acknowledge their own disorders . . . has become an ethical

imperative. Implicit in the doctrine of informed consent is the notion that before

agreeing to take medication patients should be aware of the nature and course of

their own illnesses. In balancing rights against needs, though, psychiatry is stuck in

a kind of moral impasse . . . in which refusal of treatment is commonly viewed as

a manifestation of illness rather than as an authentic wish. (Aviv, 2011)

When obtaining consent from clients, “it is important that clients give their consent with

understanding” (Corey, Corey, & Corey, 2019, p. 153). More specifically, “informed consent

requires that the client understands the information presented, gives consent voluntarily, and is

competent to give consent to treatment” (Corey et al., 2019, p. 153). The question then, is whether

individuals without insight are competent to give such consent. The earlier-mentioned conundrum

is ever-present here: if a client does not believe they have an illness despite evidence to the

contrary, they lack insight, but, patients also do not have to accept treatments for illnesses they do

not believe they have. Claiming an individual who lacks insight therefore lacks competence may

seem easy, leading one to conclude they should be given involuntary treatment, discussed later,

for their own protection, but such an assumption comes at the risk of limiting rights for individuals

who may have been misdiagnosed or have other explanations for refusing treatment, such as to

avoid potential side effects or the social stigma of mental illness (Aviv, 2011). It is the job of the

counselor, then, according to ACA Code of Ethics (2014) standard A.2.d. to

seek the assent of clients to services and include them in decision making as

appropriate, [balancing] the ethical rights of clients to make choices, their capacity

to give consent or assent to receive services, and parental or familial legal rights

and responsibilities to protect these clients and make decisions on their behalf.
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Competency to give informed consent should be assessed on a case-by-case basis and over time,

but becomes even more complicated when considering the legal system surrounding.

Legal competency. Though not explicitly stated, it is clear Linda was found incompetent to

be criminally responsible in some capacity, as she was sentenced to psychiatric treatment rather

than jail time in her final hospital stay prior to her death. “[Client] competency . . . is based on the

need for fairness in our legal system. A legal proceeding in which someone lacks the mental state

sufficient to participate and understand the issues is inherently unfair” (Huss, 2014, p. 167). If

Linda was found not criminally responsible for her crimes, it begs the question of why she was

still found competent enough to refuse treatment. It likely has something to do with the differences

between clinical and criminal competency evaluations. In fact, even just within the criminal justice

system, “there is no standard approach for conducting competency evaluations and there appears

to be a great deal of variability” (Huss, 2014, p. 172), and yet, “there appears to be significant

agreement between the judge’s final determination of competency and the expert’s evaluation” (p.

171-172). Surprisingly, “researchers found that rates of finding a defendant incompetent varied

from 0% to 62%” (Huss, 2014, p. 172). This may explain why a defendant who is found

incompetent in the legal system may not be found incompetent to make their own decisions

clinically, and why so many individuals with mental illness end up in jails despite diagnostic

criteria being present. Once again, Linda’s specific circumstances may not be the fault of the

clinical team, but rather the system, which allows such variation with little standardization,

particularly in the area of testing. In fact, “[a 1995 study] found that forensic psychologists were

evenly split on the importance of using psychological testing with 51% seeing testing as essential

and 49% viewing it as optional” (Huss, 2014, p. 172). But then the question is whether the

treatment team did all they could to assist Linda in working within the system. According to the

ACA Code of Ethics (2014), “the primary purpose of [psychological] assessment is to gather
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information regarding the client for a variety of purposes, including, but not limited to, client

decision making, treatment planning, and forensic proceedings” (E.1.a.). By using testing, the

system acknowledges the limitations in decision-making capacity in some clients, recognizing

“these inabilities may endanger them or others around them [and] determination of these

limitations justifies the state’s intrusion to protect the individual by limiting some of his or her

rights” (Huss, 2014, p. 168). Evidently, the treatment team and/or legal system did not find Linda’s

clinical needs to outweigh her rights to make her own decisions in this particular case.

Privacy and confidentiality. Also important to the concept of informed consent within the

realm of insight is privacy and confidentiality. In Linda’s case, the family was upset when no one

released information of where she was going after treatment, or her condition in treatment (Aviv,

2011). However, because there were no legal guardians over her—because Linda’s right to make

her own decisions outweighed her need for protection from herself or the system—the family had

no legal right to that information. Ethically, “when counseling . . . adult clients who lack the

capacity to give voluntary, informed consent, counselors protect the confidentiality of information

received . . . as specified by federal and state laws, written policies, and applicable ethical

standards” (ACA, 2014, B.5.a.). The treatment team in Linda’s case was stuck in the middle of a

legal obligation to protect privacy and confidentiality, and an ethical obligation to protect her from

danger she put herself in, in her psychotic state. “Confidentiality . . . and privacy are related

concepts, but there are important distinctions among them” (Corey et al., 2019, p. 207). While

confidentiality refers to keeping client communications private, “privacy is the right to be

protected from visibility, access, or intrusion by others” (Corey et al., 2019, p. 211). Counselors

who do not adhere to these standards laid out in the ACA Code of Ethics (2014) standards B.1.b.

and B.1.c. without legal justification, such as serious and foreseeable harm (ACA, 2014, B.2.a.),

can even be sued (Wheeler & Bertram, 2015, p. 103). The legal verses ethical obligations of
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counselors conflicting in this way perpetuates a system in which Linda was able to leave the

treatment facility with no plan for her safety. Because when these conflicts happen, the only thing

counselors can do is try to resolve the issue by “[making] known their commitment to the ACA

Code of Ethics [and] if the conflict cannot be resolved using this approach, counselors, acting in

the best interest of the client, may adhere to the requirements of the law” (ACA, 2014, I.1.c.). It

seems law sometimes exceeds client care. Working within the system to the best of their ability, a

psychiatrist consulted with Linda’s family, predicting “that Linda would ‘probably get into further

altercations with the police’ and end up back at the hospital; then there would be more evidence to

apply again for a legal guardian” which Linda’s sister, Joan, had been petitioning for, only to be

told “the hospital had to prove beyond a reasonable doubt—the same threshold used in criminal

trials—that Linda was incapable of making her own decisions” (Aviv, 2011). Without that proof,

the hospital was legally unable to disclose Linda’s information to her family, even if ethically

having family know where she was going would have provided a necessary support system.

Ethical Decision-Making

It is easy to point out everything that went wrong with Linda’s situation, but, unfortunately,

counselors are bound between legality and ethics, and it is impossible to ask them to be without

error. Therefore, using a decision-making model is incredibly important in treatment. As defined

by the ACA Code of Ethics (2014),

When counselors are faced with an ethical dilemma, they use and document . . . an

ethical decision-making model that may include, but is not limited to, consultation;

consideration of relevant ethical standards, principles, and laws; generation of

potential courses of action; deliberation of risks and benefits; and selection of an

objective decision based on the circumstances and welfare of all involved. (I.1.b.)

I think, in Linda’s case, the treatment team did what they could within the system that exists.
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However, that is not to say there is nothing I would have done differently. Psychiatry is typically

less oriented in the talk therapies, particularly with individuals who have psychotic symptoms. But

Linda had great moments of lucidity, especially when in treatment (Aviv, 2011). Taking advantage

of those moments to provide therapy related to the stigma of mental illness, developing a plan for

the future, the potential of informing family members where she might be heading next, and talking

about concerns related to not being able to trust one’s own experiences or how hard it must be to

have others discredit those very real experiences, may have been helpful in assisting Linda to feel

more comfortable in taking medication and working toward stable housing. “In the weeks leading

up to her discharge, her doctors urged her to make arrangements for housing and follow-up care,

but Linda refused, saying, ‘God will provide’” (Aviv, 2011). While I respect and understand the

legal requirement to not force patients, it seems ethically negligent to allow them to leave with no

plan, nor to have any systems in place for reintegration. Once again, that seems to be a systemic

problem rather than a team one. Similarly, though Linda lied about where she was planning to go

after treatment by providing a non-existent address (Aviv, 2011), and it was her right to keep that

information private if she desired, the team should have checked to ensure the housing was stable

before release, as there is an ethical obligation to ask for private information for the client’s

protection. Yet, this brings up the issue of whose responsibility it is to decide what is “best” for

the client. Linda believed going away from where people could find her was best for her, the

treatment team and her family believed otherwise. “Joan and Caitlin [even] sued the hospital for

failing to properly plan Linda’s discharge . . . ‘Ask the daughter!’ Caitlin said. ‘I could have told

them that every time the structure is gone she goes straight down the tubes’” (Aviv, 2011). With

moments of lucidity in the hospital, legally she seemed stable enough to make decisions, and

perhaps that is what treatment team saw, even if she refused medication. And if people are truly

capable of growth and change, it may not be appropriate to use the daughter’s testimony or any
WHEN LEGALITY IS AT ODDS WITH ETHICAL OBLIGATION 13

other aspect of the past to inform the future, so proper therapeutic intervention and assessment

would have been helpful in identifying if there was enough growth to expect safety upon release.

Better, more standardized assessments also would have been helpful in Linda’s case, as it is hard

to treat someone who unable to recognize their illness. As a person, you should not be solely

responsible for determining if an illness is getting in the way of an individual’s ability to continue

making their own decisions regarding their treatment, but by use of consultation and assessment,

those determinations could be more objective. It would appear consultation was a large part of the

treatment team’s actions, as well as knowledge of laws, however, I would have applied more work

on weighing risks and benefits to the decision-making model. Too often policies and ethical codes

are in response to tragedy rather than prevention of it. Better therapeutic intervention and more

concrete post-treatment supports could have helped her to maintain her freedom while still

ensuring the family she would be safe. In the end, though, “the attorneys representing the hospital

argued that Linda’s doctors had a legal duty to allow her the right to live in the least restrictive

setting that her disability allowed.” (Aviv, 2011). That is, of course, the outlook we should have

as counselors. However, “[the lawyers] ended up arguing the case that Linda had been making all

along: she wasn’t that ill” (Aviv, 2011).

Conclusion

When it comes to the system, legality is often at odds with ethical obligation. However, as

a therapist, it is your job to recognize these flaws and help your client to work within the system

to provide the best quality care possible. My personal philosophy on the case relied on a social

constructivist perspective: that her experiences of life were real and true, and it was her right to

refuse medication that may have helped her if she so chose, though it is clear it was the only relief

from psychotic symptoms she would have been able to get. However, she was not living

productively, as evidenced by her altercations with law enforcement. As her therapist, the job
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would have been to assist her in maintaining a life which allowed her uniqueness in worldview,

but safety from its dangers; to talk about and develop a plan for how to move throughout the world.

To go over the importance of medication in a non-judgmental way, and work with her on

alternatives if she needed them. Because her experiences were real and they were preventing her

from living the life she wanted. As counselors, I think one of the most important ethical standards

is that of advocacy. “When appropriate, counselors advocate at individual, group, institutional, and

societal levels to address potential barriers and obstacles that inhibit access and/or the growth and

development of clients” (American Counseling Association, 2014, A.7.a.). Linda really needed a

different system; one that simply did not exist… one that could though, if we fought for it.
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References

American Counseling Association (2014). ACA code of ethics. Alexandria, VA: American

Counseling Association.

Aviv, R. (2011). God knows where I am. The New Yorker, May 30, 2011. Retrieved from

http://www.newyorker.com/magazine/2011/05/30/god-knows-where-i-am

Corey, G., Corey, M. S., & Corey, C. (2019). Issues & ethics in the helping profession (10th ed.).

Boston, MA: Cengage Learning.

Huss, M. T. (2014). Forensic psychology: Research, clinical practice, and applications (2nd

ed.). Hoboken, NJ: John Wiley & Sons, Inc.

Wheeler, A. M. & Bertram, B. (2015). The counselor and the law: A guide to legal and ethical

practice (7th ed.). Alexandria, VA: American Counseling Association.