A Rule Without a Reason: Determining the Capacity for Negligence of a Person with Mental Illness

Since the pandemic, the impacts of structural bias on racial minorities and other groups have become an even more compelling concern for legal commentators. One group that has received some attention in the effort to confront bias is the mentally ill. This attention has coincided with a rise in the willingness of individuals to talk about, and destigmatize, mental health issues in society. Yet, despite these efforts, along with a long and well-established body of scholarship that criticizes its treatment of mental illness, the civil law—particularly the law of tort—continues its entrenched refusal to consider mental illness when determining the liability of individuals for harms they have caused. The law has lurched from one policy rationale to another in its efforts to avoid considering the impact of mental illness on liability. As evidenced by the Restatement (Third) of Torts, the only consistent basis for liability seems to be concerns over the law’s administrability, with commentators continuing to suggest that the courts cannot adequately identify if and when a mental illness has impacted an individual’s capacity to understand and act in accordance with the law. Although many commentators have suggested that mental health professionals can adequately deal with concerns over administrability, none of them have explained how mental health practitioners actually do so. In this Article, we fill this gap. We first provide a sense of the legal landscape—describing the law of negligence’s treatment of mental illness and the rather uncertain and constantly changing policy basis underlying it—before turning to the Restatement (Third) of Torts’ almost complete reliance on administrability concerns as the basis for refusing to consider mental illness in addressing issues of liability. We then turn to a discussion of how these administrability concerns are unfounded by describing the process used by mental health professionals to analyze capacity in legal decision-making. Our goal is not only to make clear that the stated policy basis for liability is unsound, but also to provide lawyers, judges, and those concerned with the administration of justice with an understanding of the depth and reliability of the process that is used to analyze capacity when mental illness is at issue in a particular negligence case. When the process is delineated in its completeness and its safeguards brought to light, its rigor can hopefully decrease the influence of biases and misjudgments whose influence persists.