From the subjectivity of diagnoses to the imprecision of assessing competence, mental health does seem unique among medical specialties. Gorsuch’s concern for a slippery slope could well be misplaced.
“I think mental health issues are unique because when you’re talking about criminal prosecution, that that’s where the relevant issues are,” said Stephen Lally. “And as a question of resources, yes, it would be cheaper to say nobody has such a right. Just like it would be cheaper in terms of resources to say that we don’t have a right to an attorney. But in a justice system that values fairness and a level playing field, it just seems like an important part of that is allowing the defendant to have access to a mental health expert who could help clarify and consult.”
Of course, acknowledging subjectivity and uniqueness of mental health do not—I think it’s important to state clearly—delegitimize the profession or challenge the reality of anyone’s suffering. Attempts to squeeze mental illness into the same medical model as orthopedic surgery and dermatology, though, do seem to. It may simply be that mental health is orders of magnitude more complex and deserves to be regarded accordingly.
No one I spoke with has a good sense of where the Supreme Court will come down in June. All expect it to be close.
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