Chapter 17 Flashcards
civil commitment
The legal system exercises significant influence over the mental health system, for better or for worse. Laws have been designed to protect people who display abnormal behaviour and to protect society. Often, achieving this protection is a delicate balancing act, with the scales sometimes thought to be tipped in favour of the rights of individuals and at other times in favour of society as a whole. For example, each province and territory has civil commitment laws under the provincial or territorial Mental Health Acts that detail when a person can be legally detained in a psychiatric institution— even against his or her will.
When Arthur’s family tried to have him involuntarily committed to a mental health facility, hospital officials decided that because he was not in imminent danger of hurting himself or others, he could not be committed against his will. In this case, the laws of his provincial Mental Health Act protected Arthur from involuntary commitment, but they also put him and others at potential risk by not compelling him to get help. In civil commitment law, the rights of people are pitted against the responsibility of the government (in this case, the provinces and territories) to care for its citizens.
Criteria for Civil Commitment
Although there is variability across provinces and territories, most provincial legislation permits commitment when the follow- ing three conditions have been met: (1) The person has a mental disorder, (2) the person is dangerous to himself or herself or others, and (3) the person is in need of treatment. All Canadian jurisdictions require the second of these three criteria and some, but not all, also require the first and third. Although every Canadian jurisdiction but Québec requires that a person have a mental illness before he or she can be detained under civil commitment legislation, the definition of mental illness differs across jurisdictions, as we will see in the next section of this chapter. Similarly, although every Canadian jurisdiction also requires that a person be a danger to himself or herself or others, or that the person needs to be hospitalized for his or her safety or protection or for the safety or protection of others, the provinces and territories vary considerably in how they define safety and protection.
For example, British Columbia defines these terms very broadly (i.e., the person requiring hospitalization to prevent his or her substantial mental or physical deterioration). Broad definitions, such as this, one can require a great deal of judgment from the court and from mental health professionals. In contrast, Ontario defines these terms much more strictly
For example, John Gray and Richard O’Reilly of the British Columbia Ministry of Health and the University of Western Ontario, respectively, argue that if a patient cannot be legally admitted until he or she has demonstrated dangerousness, not only will the patient’s prognosis be worse for the lost treatment time, but the patient will also likely have legal issues to deal with because he or she has broken the law (Gray & O’Reilly, 2001).
But others, such as the Québec patient advocacy group Action Autonomie, have argued that less strict definitions of dangerousness can result in decisions that compromise a patient’s autonomy. For example, such a definition of dangerousness could result in a psychiatrist deciding to detain a schizophrenic patient because he refuses to take his medica- tions. This could happen if the psychiatrist feels the medication noncompliance could result in the patient directing traffic, for example, thus putting the patient and others in danger—even when the patient is not actively dangerous to others in the sense of wanting to hurt someone
The Canadian jurisdictions also differ on several other issues pertaining to civil commitment, such as whether the patient has the right to refuse treatment, the right to be informed of the reasons for the hospital detention, the right to apply to a review
panel that can grant a discharge from the hospital, and the specified right to legal counsel. These safeguards are built into the civil commitment process to guarantee the rights of the person being examined and to ensure that no one is involuntarily committed to a psychiatric facility for other than legitimate reasons.
The legislations relevant to civil commitment across Canada also vary in terms of how long a person can be detained.
How the conditions for civil commitment are interpreted has varied over the years and has always been controversial. Two types of authority permit the government to take actions that are against a citizen’s will: police power and parens patriae (“state as the parent”) power. Under police power, the government takes responsibility for protecting the public health, safety, and welfare and can create laws and regulations to ensure this protection. Criminal offenders are held in custody if they are a threat to society. This first rationale for civil commitment has a long history under Canadian law. Even as Europeans were settling Canada, people with mental illnesses could be detained to prevent them from harming others. The provinces and territories apply the second rationale for civil commitment—parens patriae power—in circumstances in which citizens are not likely to act in their own best interest. For example, it is used to commit individuals with severe mental illness to mental health facilities when it is believed that they might be harmed because they are unable to secure the basic necessities of life, such as food and shelter, or because they do not recognize their need for treatment
Under parens patriae power, the government acts as a surrogate parent, presumably in the best interests of a person who needs help.
A person in need of help can always voluntarily request admission to a mental health facility; after an evaluation by a mental health professional, he or she may be accepted for treatment. When an individual does not voluntarily seek help, but others feel that treatment or protection is necessary, however, the process of civil commitment may be initiated. The specifics of this process differ across jurisdictions, but typically one or two physicians or psychiatrists must conduct an assessment and agree that the person meets the criteria for commitment outlined in the relevant jurisdiction’s legislation.
In Canada, people deemed suitable for commitment are not necessarily committed to a hospital. Instead, there are also options for compulsory community treatments (CCT) for the mentally ill. CCT’s main goals are to prevent relapse and to provide care in a less restrictive environment. Unlike Australia, where CCT is allowed as a first form of treatment, CCT is not permitted in Canada until there has already been previous inpatient treatment. In Canadian jurisdictions, the patient must satisfy one of two necessary criteria for CCT: the patient must have some risk of increased mental deterioration or possibly pose harm to himself or herself or others (Gray & O’Reilly, 2005).
Defining mental illness
The concept of mental illness figures prominently in civil commitment, and it is important to understand how it is defined.
In this context, mental illness is a legal concept, typically meaning severe emotional or thought disturbances that negatively affect an individual’s health and safety.
As we mentioned earlier, each Canadian jurisdiction has its own definition. For example, in Saskatchewan, mental illness means “a disorder of thought, perceptions, feelings or behaviour that seriously impairs a person’s judgement, capacity to recognize reality, ability to associate with others, or ability to meet the ordinary demands of life, in respect of which treatment is advisable” (Douglas & Koch, 2001, p. 355). Robertson (1994) refers to this type of definition of mental illness as a functional definition, because it specifies the effect of the illness on the patient’s thoughts and behaviour. In contrast, some other provinces, like Ontario, do not use a functional definition of mental illness; they instead define mental disorder more traditionally as a
“disease or disability of the mind” (Douglas & Koch, 2001, p. 355). Mental illness is not synonymous with psychological disorder; in other words, receiving a DSM-5 diagnosis does not necessarily mean that a person fits the legal definition of someone having a mental illness. Although the DSM is quite specific about criteria that must be met for diagnosis, considerable ambiguity exists about what constitutes a “disease or disability of the mind” and what are “adverse effects on a person’s ability to function” as required in a functional definition of mental illness. This ambiguity allows for flexibility in making decisions about individual cases, but it also creates the possibility of subjective
impression and bias influencing these decisions.
Dangerousness
Assessing whether someone is a danger to himself, herself, or others is a critical determinant of the civil commitment process. Dangerousness is a particularly controversial concept for people with mental illnesses: according to popular opinion, people who have a mental illness are more dangerous than those who do not (Kobau et al., 2010; Schomerus et al., 2012). The belief is still widespread, in part because of sensational media reports. Such views are important to the process of civil commitment if they bias a determination of dangerousness and unfairly link it with severe mental illness.
The results of research on dangerousness and mental illness are often mixed, but evidence points to a small increased rate of violence among people with mental illness (Elbogen & Johnson, 2009; Elbogen et al., 2016). Closer examination of this kind of research reveals that although having a serious mental illness (e.g., schizophrenia, depression) generally does increase the like- lihood of future violence, specific factors such as a high anger predisposition, recent stressors (e.g., victimization) and espe- cially substance use are likely responsible for the increased risk of violence (Elbogen et al., 2016; Fazel et al., 2015; Tiihonen et al., 1997). It is also the presence of these risk factors that may predict the reoccurrence of violent crimes by individuals with mental illness. Among incarcerated individuals, inmates with serious mental illnesses like schizophrenia are less likely to commit a new violent offence on release than inmates without serious mental illnesses
Early research on this issue suggested that psychiatrists and psychologists were actually rather poor at assessing dangerousness (see review by Harris et al., 2015). However, more recent research has shown that accurate assess- ments of the risk for violence are indeed possible (Harris & Rice, 2010; Harris et al., 2015; Ogloff & Daffern, 2006; Rice, 1997). Many advances in assessing danger- ousness have been made by Canadian research teams. One example is a series of studies that showed that a rating scale based on important predictors of violence (e.g., psychopathy score, age at first arrest, fail- ure on prior conditional release) can reliably predict violent recidivism among individuals who have already been violent
Clinical judgment is required to score the person on the scale, but the summation of the scores and the differential importance of each item are determined by prior statistical analyses, making the risk assessment actuarial in nature. Canadian teams have also made important advances in the prediction of violence in women (e.g., Nicholls et al., 2005; Olver et al., 2018).
Similarly, since risk for self-harm is one of the common crite- ria used for decisions about civil commitment, one might ask whether psychologists can accurately assess risk for suicidal behaviour. The job of assessing patients’ risk for suicide and other self-harm is an important and common activity for many mental health professionals. A good deal of research, again much of which has been done by Canadian teams (e.g., Cochrane-Brink et al., 2000), shows that several important variables should be assessed in evaluating a patient’s risk for self-injury. For example, a study done by forensic psychologist James Ogloff and his colleagues investigated nearly 300 psychiatric patients who had been involuntarily committed to the Riverview Psychiatric Hospi- tal in British Columbia. These researchers investigated what variables predicted which patients would display self-injurious behaviour while in hospital. They found that those patients who reported suicidal thoughts while in hospital, those who showed verbal and physical aggression toward others in hospital, those with a history of self-harm, and those who had engaged in a suicide attempt or other form of self-injurious behaviour within the two weeks before being committed to hospital were most likely to harm themselves while in hospital (Jack et al., 1998; Nicholls et al., 1998). More recently, a scale called the Suicide Risk Assessment Scale (SRAS) for prisoners was developed by a group of researchers at the Correctional Service of Canada (Wichmann et al., 2000). The SRAS was subsequently validated by a research group in Trois-Rivières, Québec. Specifically, the SRAS performed better than a more elaborate test in assessing suicide risk in two samples of inmates (Daigle et al., 2006). Research like this has led to guidelines to help clinicians make decisions about predicting self-harm that are more accurate than clinicians’ global judgments and far better than chance
Deinstitutionalization and Homelessness
Two trends have influenced the number of people in Canada who are involuntarily committed each year: (1) the increase in the number of people who are homeless and (2) deinstitutionalization, the move- ment of people with severe mental illness out of institutions. Homelessness, although not exclusively a problem of the mentally ill, is largely determined by social views of people with mental illness.
The 2016 Census enumerated Canadians spending the night of May 9 in a homeless shelter. The 965 shelters had 22190 resi- dents, of whom 61 percent were men (McDermott et al., 2019). These numbers only begin to estimate the homeless population in Canada. It is estimated that 235 000 Canadians will experience homelessness in a given year (Gaetz et al., 2014). Shelter resi- dents are considered homeless individuals receiving emergency shelter (e.g., shelters for abused women and their children). The majority, 180 000 persons, use this type of emergency shelter while 50 000 have provisional shelter (e.g., are couch surfing, in prison, in hospital). An estimated 5000 are unsheltered (e.g., living in their car or outside).
Stuart and Arboldea-Florez (2000) from Queen’s University interviewed homeless people using inner-city shelters in Calgary in the late summer of 1997. Three-quarters of them had some kind of mental health issue, with 33 percent displaying significant mental health problems. Lifetime alcohol abuse was evident for one-third. Those with mental health problems were having a harder time living on the streets (e.g., being victimized, stressed, having a harder time finding food and work) than those without mental health problems. These researchers also reported that the face of the homeless person in Canada has changed from the image of an older male with an alcohol use disorder; today, there are also many younger people, women, and families living on the streets (Stuart & Arboldea-Florez, 2000). As University of Lethbridge researchers have noted, Indigenous people, refugees, and ethnic minorities are overrepresented among the homeless in Canada (Belanger et al., 2012; Hargrave, 1999).
Deinstitutionalization caused by the closing of many large psychiatric hospitals and reductions in the number of beds in hospitals are factors that many believe have contributed to increasing rates of homelessness in Canada. Deinstitutionalization had two goals: (1) to downsize or even close the large provincial and territorial psychiatric hospitals and (2) to create a network of community mental health services in which the released individu- als could be treated. As explained by Douglas and Koch (2001), the deinstitutionalization movement led to the rapid downsizing of psychiatric facilities across Canada. In 1957, some 70300 persons were detained in psychiatric institutions in Canada (Dominion Bureau of Statistics, 1955–1957). In 1975, this figure was down to 44 847 inpatients (Statistics Canada, 1975). Further decreases ensued. For example, in 1992–1993 alone, 29991 patients were discharged from psychiatric hospitals, and the number detained was even lower (Douglas & Koch, 2001; Statis- tics Canada, 1995). Some argue that the deinstitutionalization
movement continues into the present-day era of “community integration” (Jones, 2007).
As we can see, the first goal of the deinstitutionalization movement (i.e., downsizing or closing the large provincial and territorial mental hospitals) appears to have been substantially accomplished. However, the second goal of providing alternative community care has not. Instead, there was transinstitutionalization, or the movement of people with severe mental illness from large psychiatric hospitals to nursing homes or other group residences, including jails and prisons, many of which provide only marginal services (Sealy & Whitehead, 2004). Because of the deterioration in care for many people who had previously been served by the provincial or territorial mental hospital system, deinstitutionalization is largely considered a failure. Although many praise the ideal of providing community care for people with severe mental illness, the support needed to provide this type of care has been severely deficient. And many remain concerned about continuity of care (i.e., how the many different agencies and services should best work together) in this new era of community integration (e.g., Durbin et al., 2006).
As noted by Patricia Sealy and Paul Whitehead (2004) of the University of Western Ontario, since the deinstitutionalization movement began over 40 years ago, community care continues to grow and the number of hospital beds continues to decrease. They fear this trend will continue until the appropriate balance of community care and inpatient psychiatric services is definitively determined. However, others argue that deinstitutionalization does not lead to homelessness or patient abandonment in the community. For example, a study by researchers at the University of Montréal examined the effects of deinstitutionalization in a sample of 96 patients discharged from Louis H. Lafontaine Hospital between 1989 and 1998, as compared with a sample of 96 patients who were hospitalized during the same interval. They did not find higher rates of homelessness in the deinstitutional- ized sample (only two ended up on the streets). Most discharged patients moved to some form of group residential supervised care in the community
Criminal commitment
Nova Scotian Jane Hurshman admitted to shooting her common-law husband, Billy Stafford, to death but claimed she was driven to it by years of severe abuse perpetrated by Stafford (Vallee, 1986). She was acquitted by a jury, but on appeal, a new trial was ordered. Rather than go through another trial, Hurshman pleaded guilty to manslaughter and served a short jail term. Cases such as this have ignited considerable controversy about the conditions under which people should be responsible for criminal behaviour. Jane Hurshman’s experience and other similar cases (e.g., Regina v. Lavallee; see Regehr & Glancy, 1995) led to the recognition of battered woman syndrome in Canadian law (Schuller & Yarmey, 2001).
Battered woman syndrome is not specifically mentioned in the DSM-5. The term refers to a state of learned helplessness or post- traumatic stress that results from chronic abuse within a relation- ship such that a woman feels unable to leave. The Supreme Court of Canada has acknowledged that in certain extreme cases involv- ing battered woman syndrome, an accused may well be under a reasonable apprehension of death even though she is not in danger of “imminent or immediate harm” at the moment that force is used to protect herself. This is an expansion of the self-defence legal defence that is always available to any person accused of murder who reasonably believes that his or her life was in danger from an assault. A battered woman’s apprehension about dying may be quite realistic; one study conducted in Ontario found that nearly 80 percent of female murder victims are killed by their spouses or intimate partners (Crawford & Gartner, 1992). Nonetheless, the battered woman syndrome defence has its critics, with some calling it the “abuse excuse” (e.g., Dershowitz, 1994).
Criminal commitment is the process by which people are held because (1) they have been accused of committing a crime and are detained in a mental health facility until they can be deter- mined to be fit to participate in legal proceedings against them, or (2) they have been found not criminally responsible on account of a mental disorder (NCRMD).
The insanity Defence
Not all people are punished for criminal behaviour. Why not? Because the law recognizes that, under certain circumstances, people are not responsible for their behaviour and it would be unfair to punish them. Current views originate from a case recorded more than 150 years ago in England. Daniel M’Naghten today might receive the diagnosis of schizophrenia. He held the delusion that the English Tory party was persecuting him, and he set out to kill the British prime minister. He mistook the man’s secretary for the prime minister and killed the secretary instead. In what has become known as the M’Naghten rule, the English court decreed that people are not responsible for their criminal behaviour if they do not know what they are doing or if they don’t know that what they are doing is wrong. An adaptation of this standard became part of Canadian law in 1894.
The M’Naghten rule was the most common insanity defence standard used in the last half of the 19th century and well into the 20th century. The requirements of the M’Naghten rule are still being used by numerous jurisdictions worldwide, including in Canada and in many states in the United States. Other standards have been proposed in the United States to modify the M’Naghten rule, because many critics feel that simply relying on an accused person’s knowledge of right or wrong is too limiting and a broader definition is needed (Guttmacher & Weihofen, 1952). For example, a person with a compulsion may know what he or she is doing is considered wrong by society and yet not be able to resist the compulsion.
There have been changes to the insanity defence in Canada as well. Originally, under the 1985 Canadian Criminal Code, a person found not guilty by reason of insanity would be automatically detained in a psychiatric hospital until the mental disorder improved sufficiently to justify the patient’s release. The purpose of this criminal commitment was to protect the public and to allow the patient to recover from his or her mental disorder. However, concerns were raised about whether patients detained under crimi- nal commitment were actually receiving sufficient treatment. Concerns were also expressed that the detention periods in psychi- atric facilities were often much longer than the prison sentence the person would have served if convicted of the offence (Gelinas,
1994). Thus, in 1991, in the case of Regina v. Swain (1991), the Supreme Court ruled that this indeterminate detention infringed on the rights of the accused. There were also changes in the insanity defence. Specifically, the name of the defence was changed from not guilty by reason of insanity (NGRI) to not criminally respon- sible on account of mental disorder (NCRMD). The wording of the standard was also revised, as follows:
No person is criminally responsible for an act committed or an omission made while suffering from a mental disorder that rendered the person incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong. (Criminal Code of Canada, Section 16, 1992)
There are three main differences between the NGRI and the NCRMD defences. First, the term insanity has been replaced by mental disorder. Second, the defendant is now considered “not criminally responsible” as opposed to “not guilty.” This differ- ence may appear subtle, but the change recognizes explicitly that the defendant did commit the crime as opposed to being “not guilty” of the crime. Finally, the meaning of “wrong” has changed. Unlike NGRI, which was concerned only with legal wrongs, NCRMD judgments can be made if the person is inca- pable of knowing that his or her actions were either legally or morally wrong (Davis, 1993).
A well-known example of the successful use of the NCRMD defence in Canada is the case of André Dallaire in 1995. In November of that year, Dallaire attempted to assassinate the Canadian prime minister at the time, Jean Chrétien. Dallaire broke into the prime minister’s home armed with a knife, intend- ing to slit Chrétien’s throat. Chrétien and his wife were able to hide safely in a locked bedroom until the police came to arrest Dallaire. A psychiatric assessment revealed that Dallaire was suffering from a psychotic disorder, specifically paranoid schizo- phrenia. His hallucinations consisted of hearing voices that commanded him to kill the prime minister. He also displayed delusions of grandeur that he was a secret agent with a mission to avenge the outcome of the Québec independence referendum (Fisher, 1996). Although Dallaire was found guilty of the crime of attempted murder of the prime minister, he was also found not to be criminally responsible for his actions because his intention to kill the prime minister was ruled to be the product of a mental disorder and because his mental disorder prevented him from comprehending the nature of his actions or the fact that his actions were wrong (Fisher, 1996). He was committed to the Royal Ottawa Mental Health Centre, where he received treatment, including antipsychotic medication. Once Dallaire was no longer delusional or hallucinating, he was conditionally released to a group home and finally into the community with continued psychiatric care (Fisher, 1996).
Another example is that of David Carmichael, a well-known fitness expert who strangled his 11-year-old son in a London, Ontario, hotel room in July 2004. He was charged with first- degree murder. Two leading forensic psychiatrists assessed Carmichael as having been in a major depression with psychotic features, including delusions, at the time when he killed his son. Carmichael was judged to be NCRMD and was sentenced to the Brockville Mental Health Centre where he received the treatment he needed. One year later, he was released into the community where he continued as an outpatient and worked with his wife and daughter to rebuild their family (Mandel, 2007).
A third example of the use of the NCRMD defence is the case of Vince Li, who beheaded and cannibalized a man on a Grey- hound bus near Portage la Prairie, in Manitoba, in 2008. Li was delusional at the time of the offence, and he believed that the victim, who was sleeping in the seat next to him, was possessed by the devil and was going to kill him. After being found NCRMD, Li was treated for his mental illness and is now not considered dangerous and allowed to live in a group home (“Bus Beheader,” 2015).
University of Alberta researchers recently examined the long- term criminal outcomes of all 528 Albertans (84 percent male) who were found NGRI or NCRMD between 1941 and 2015. The overall reconviction rate was 20 percent, and of those reconvicted for a crime, only 13 percent committed a new violent crime; these numbers are much lower than those seen for offenders not desig- nated NGRI or NCRMD. Overall, then, this was not a very dangerous group, a finding in line with other research in Canada and elsewhere. In fact, in that and other studies, having a severe mental disorder (e.g., schizophrenia) was associated with a lower reconviction risk (Richer et al., 2018).
Reactions to the insanity defence
The successful use of concepts such as insanity or mental disorder in criminal cases alarmed large segments of the population, however, just as have defences involving battered woman syndrome discussed earlier in this chapter. As noted by Ogloff and Whittemore (2001), when someone is found NCRMD, there is often a public outcry that the person has “got off” too easily. Research supports that the public often holds negative percep- tions about the NCRMD defence. One telephone survey study found that 91 percent of people who responded agreed with the statement that “judges and juries have a hard time telling whether the defendants are really sane or insane” (Hans, 1986). Almost 90 percent agreed the “insanity plea is a loophole that allows too many guilty people to go free.” In a similar study, 90 percent of people agreed that “the insanity plea is used too much. Too many people escape responsibilities for crimes by pleading insanity” (Pasewark & Seidenzahl, 1979). In a recent Canadian survey, one- third of respondents disagreed with the availability of the NCRMD defence (Fraser & Desjardins, 2009). Do you think that Dallaire, Carmichael, or Li “got off too easily”? Is there hard evidence that the insanity defence is used too often?
You will probably be surprised to learn that the NGRI defence was used relatively infrequently in Canadian courts. For example, in 1991, only about 1000 individuals who had been found NGRI were being held in institutions across Canada (Roesch et al., 1997). Although the NCRMD defence is used more often than the NGRI defence (Livingston et al., 2003), its use is still relatively uncommon (Roesch et al., 1997). For example, in British Colum- bia, in the two years following the legal change to the NCRMD defence, among those cases remanded for assessment of criminal responsibility, psychiatrists’ recommendations favoured NCRMD only 29 percent of the time—a total of only 53 cases over two years. In a review of NCRMD and unfit to stand trial (see below) cases under the Québec and Ontario Review Boards, there were only 486 and 215 new cases in 2004, respectively (Latimer & Lawrence, 2006).
Negative public perceptions of the NCRMD defence reflect a lack of appreciation by the public about just how serious the consequences are of using this defence (Ogloff & Whittemore, 2001). Although the NCRMD defence does not entail automatic detention in a psychiatric hospital, some defendants end up being kept in psychiatric institutions for much longer periods than they would have been sentenced to prison if they had not employed this defence (Davis, 1994; Holley et al., 1998); correctional sentences are finite, whereas NCRMD detainments in a hospital can continue indefinitely if the patient is considered dangerous, for example. People with mental illness apparently do not often “beat the system” as a result of being judged NCRMD
Perhaps because of the negative public perception of NCRMD, and also because of a few very high-profile cases, the Canadian Criminal Code was amended in 2014 to designate some NCRMD individuals as high-risk accused. High-risk accused face more restrictions and are more likely to stay in secure settings, rather than transitioning into the community like most NCRMD people do. A pan-Canadian team of researchers recently examined the effectiveness of this amendment to the law by studying all indi- viduals who would have been designated as high-risk accused in British Columbia, Ontario, and Québec between 2000 and 2005. They found that NCRMD high-risk accused were not more likely to commit a new crime, compared with NCRMD who were not considered high-risk accused (Goossens et al., 2018). High-risk accused were already being managed carefully in the forensic system. Thus, the amended law will likely do little to improve public safety, beyond what was already done.
An important issue concerns where such people should be cared for once they have been judged NCRMD. A recent Canadian review suggests that forensic community programs are generally one of the best tools for helping people deemed NCRMD (Woodworth et al., 2003). These authors recommend that to best implement such community-based programs for NCRMD individ- uals, people in the community must be aware of the program and be appropriately educated about the risk that these individuals pose and that there be high levels of monitoring of these people, assess- ment of psychopathic traits (see Chapter 14), and routine use made of validated risk assessment tools, such as those discussed earlier in this chapter (Woodworth et al., 2003).
A final issue relates to the legal concept of burden of proof, the weight of evidence needed to win a case. With respect to the defence of NCRMD, according to Canadian law, the defendant can raise the issue of NCRMD at any time. In contrast, the pros- ecution can only raise the possibility of NCRMD after the defendant has been found guilty or after the defence, for any reason (Ogloff & Whittemore, 2001).
Society has long recognized the need to identify criminals who may not be in control of their behaviour. The challenge is in trying to do what may be impossible: determining whether the person knew what he or she was doing, knew right from wrong, and could control his or her behaviour at the time of the offence. Mental health professionals cannot assess mental health retro- spectively. An additional dilemma is the desire, on the one hand, to provide care to people with mental illness and, on the other, to treat them as responsible individuals. Finally, we must resolve the simultaneous and conflicting interests of wanting to assist people with mental illness and wanting to be protected from those who might be dangerous. By evaluating the effects of various conse- quences, science may be able to help resolve some of these issues. Concerns about law and order must be balanced with the rights of people with mental illness, providing adequate attention to both concerns.
fitness to stand trial
Before people can be tried for a criminal offence, they must be able to understand the charges against them and to assist with their own defence—criteria outlined by the Canadian Criminal Code in 1992. Thus, in addition to interpreting a person’s state of mind during the criminal act, experts must also anticipate his or her state of mind during the subsequent legal proceedings. A person could be ruled NCRMD because of his or her mental illness at the time of the criminal act yet still be fit to stand trial.
The classic case for the determination of fitness in Canada is Regina v. Pritchard (1836). Lindsay (1977) describes three issues emerging from the criteria defined in the Pritchard ruling that need to be addressed in a fitness assessment: (1) Is the accused able to assist in his or her defence? (2) Does the accused under- stand his or her role in the proceedings? (3) Does the accused understand the nature or object of the proceedings? According to the Canadian Criminal Code: “Unfit to stand trial means . . . in particular, unable on account of mental disorder to: (a) understand the nature or object of the proceedings, (b) understand the possible consequences of the proceedings, or (c) communicate with coun- sel” (Ogloff & Whittemore, 2001, p. 294).
A person determined not fit to stand trial typically loses the authority to make decisions and faces commitment. If the defen- dant is found to be unfit to stand trial, the court may decide the next step (e.g., detention in hospital) if it can do so readily, and if not, a review board must reach a decision in 45 days. The review board’s three options are to (1) conditionally discharge the accused, (2) detain the accused in hospital, or (3) order that the accused receive treatment (Ogloff & Whittemore, 2001).
Canadian researchers have contributed substantially to devel- oping sound instruments and methods for assessing a defendant’s fitness to stand trial (Ogloff & Whittemore, 2001). For example, the Fitness Interview Test–Revised is a three-part instrument developed by Christopher Webster and his colleagues (Roesch et al., 1999) that specifies the particular abilities required by an individual to demonstrate that he or she is fit to stand trial. In the first section, the individual’s understanding of the nature and object of the proceedings is assessed (e.g., does the individual understand key components, such as the arrest process, pleas available, court procedures?).
In the second section, the individual’s understanding of the possible consequences of the proceedings is measured (e.g., the range of possible penalties, legal defences available). In the final section, the individual’s capacity to contribute to his or her own defence is tapped (e.g., can he or she communicate with a lawyer, plan a legal strategy?). This test reliably screens out those indi- viduals who are clearly fit to stand trial (Viljoen et al., 2002; Zapf, 2001; Zapf & Roesch, 1997).
In Canada, most criminal responsibility and fitness to stand trial evaluations are done by psychiatrists, not psychologists. It has been suggested (correctly, we think) that forensic psychologists are particularly qualified to perform these assessments, and calls have been made for changes in the law to allow all qualified mental health professionals to perform these assessments. This change would likely increase timely access to these services (Roesch et al., 2019).
Duty to Warn and Protect
Do mental health professionals have any responsibility for the actions of the people they serve? This question is especially important when we consider the dangerous behaviour exhibited by a minority of people with severe mental illness. What are the responsibilities of professionals who suspect that someone with whom they are working may hurt or even kill another person? Must they contact the appropriate authority or the person who may be harmed, or are they forbidden to discuss information disclosed during therapy sessions?
These issues are the subject of a tragic and influential case in the United States known as Tarasoff v. Regents of the University of California (1974, 1976). In 1969, Prosenjit Poddar, a graduate student at the University of California, Berkeley, killed a fellow student, Tatiana Tarasoff, who had previously rejected his roman- tic advances. At the time of the murder, he was being seen by two therapists at the University Health Center and had received a diagnosis of paranoid schizophrenia. At his last session, Poddar hinted that he was going to kill Tarasoff. His therapist believed this threat was serious and contacted the campus police, who investigated the allegation and received assurances from Poddar that he would leave Tarasoff alone. Weeks later, after repeated attempts to contact her, Poddar shot and stabbed Tarasoff until she died.
After learning of the therapists’ role in the case, Tatiana Tarasoff’s family sued the university, the therapists, and the university police, saying they should have warned Tatiana that she was in danger. The court agreed, and the Tarasoff case has been used ever since as a standard in the United States for therapists concerning their duty to warn a client’s potential victims. Nonetheless, it is still difficult for therapists to know their exact responsibilities for protecting third parties from their clients. Good clinical practice dictates that any time they are in doubt, they should consult with colleagues. A second opinion can be just as helpful to a therapist as to a client. We have not had a legal precedent in Canada like the ruling in the Tarasoff case in the United States. Nonetheless, the Alberta Court of Queen’s Bench stated in Wenden v. Trikha (1991) that a duty to warn might be imposed for psychologists under some circumstances (Lyon et al., 2001; Schuller & Ogloff, 2001).
In addition to this legal warning, the code of ethics of the Canadian Psychological Association dictates how mental health practitioners should behave in such cases. The code is quite clear that psychologists have an ethical duty to protect a third party of impending danger from a client, very similar to the legal require- ments imposed by the ruling in the Tarasoff case in the United States (Ogloff & Olley, 1998). Specifically, the Canadian Psycho- logical Association Code requires that psychologists should do everything within reason to stop or offset the harmful or lethal consequences of a client’s actions. According to the Code, the ethical response can include making a report to appropriate authorities (e.g., the police) or warning an intended victim or a family member. Moreover, the psychologist should take such actions even when a confidential relationship, like a patient– therapist relationship, is involved (Canadian Psychological Asso- ciation [CPA], 2017).
Communications between a therapist and client are required to be held completely confidential, except in a very few exceptional situations (CPA, 2017). These exceptions are called “limits to confidentiality.” One such limit to confidentiality occurs when the psychologist must break confidentiality to allow for the protection of identifiable third parties at risk for harm (Schuller & Ogloff, 2001). Another such limit to confidentiality involves suspected cases of child abuse. In virtually every Canadian jurisdiction, psychologists have an affirmative duty to report suspected cases of child abuse, even when information pertaining to this suspicion was obtained within the otherwise confidential patient–therapist relationship. A further situation in which limits to confidentiality apply occurs when the psychologist judges the patient to be a risk to himself or herself. The therapist may need to break confidenti- ality to arrange for proper care for a highly suicidal patient who does not want to enter hospital, for example.
mental Health Professionals as expert Witnesses
Judges and juries often have to rely on expert witnesses, individuals who have specialized knowledge, to assist them in making decisions. The Canadian legal system has been relying increasingly often on expert witness testimony in such areas as child custody disputes (Austin et al., 1994). We have alluded to several instances in which mental health professionals serve in such a capacity, providing information about a person’s dangerousness or ability to understand and participate in the defence. The public perceives expert witnesses ambivalently. On one hand, they see the value of persuasive expert testimony in educating a jury; on the other, they see expert witnesses as “hired guns” whose opinions suit the side that pays their bills. How reliable are the judgments of mental health professionals who act as expert witnesses?
To take one example, in deciding whether someone should be civilly committed, the assessor must determine the person’s potential for future violence.
Mental health professionals appear to have expertise in iden- tifying malingering and in assessing competence. Remember, as we discussed in Chapter 7, that to malinger is to fake or grossly exaggerate symptoms, usually to be absolved from blame. For example, a person might claim to have been actively hallucinating at the time of the crime and therefore not be responsible. A good deal of research suggests that malingering is detectable using validated instruments like the Minnesota Multiphasic Personality Inventory (MMPI; e.g., Bacchiochi & Bagby, 2006; Bagby, Marshall, & Bacchiochi, 2005; Bagby, Nicholson, et al., 2002). For example, the MMPI test is almost 90 percent accurate in revealing malingering in people claiming to have post-traumatic stress disorder (PTSD; McCaffrey & Bellamy-Campbell, 1989). However, recent work cautions that people who have knowledge about the MMPI validity scales can be quite successful in avoiding detection that they are faking PTSD (Bury & Bagby, 2002). Mental health professionals also appear capable of providing reliable information about a person’s competence or ability to understand and assist with a defence (Melton et al., 1987). Overall, mental health professionals can provide judges and juries with reliable and useful information in specific areas.
The research described here does not indicate how accurate expert testimony actually is under everyday conditions. In other words, under the right circumstances, experts can make accurate determinations of the risks that a person will commit an act of violence, is faking certain symptoms, or is fit to stand trial, and of what diagnosis should be made. Yet other factors conspire to influence expert testimony. Personal and professional opinions that exceed the competence of the expert witness can influence what information is or is not presented, as well as how it is relayed to the court (Drogin et al., 2012). For instance, if the expert witness believes in general that people should not be invol- untarily committed to mental health facilities, this opinion will likely influence how the witness presents clinical information in civil commitment court proceedings. Carleton University researchers studied expert witnesses retained during dangerous offender hearings (hearings to determine if someone is very dangerous and thus should receive an indeterminate sentence). Expert witnesses retained by the prosecution rated offenders as more psychopathic on the Psychopathy-Checklist Revised, compared with expert witnesses retained by the defence (Lloyd et al., 2010).
EThICs and TREaTMEnT of MEnTal IllnEss
Psychologists who are providing treatment to individuals with mental disorders are bound by the ethical principles set out by their professional organization to protect the dignity of the indi- viduals they are treating and to ensure that caring for them occurs in a responsible fashion. Canadian psychologists follow the ethical principles laid out in the Canadian Code of Ethics for Psychologists, published by the CPA (2017). These ethical principles cover a variety of issues including boundary issues, the requirement that the psychologist do no harm, and the need for psychologists to practise within their areas of competence. Let us first turn our attention to a case in which two of these principles were broken.
The ethical principles of maintaining clear boundaries with patients and doing no harm were breached in a case that occurred in Toronto in the 1980s. Psychologist David Garner lost his licence to practise in Ontario after engaging in sexual relations with two clients he was treating for eating disorders. You may remember Garner’s name from Chapter 9, as he was a very productive researcher in the area of eating disorders. At the time his licence to practise was revoked, Garner was already serving a two-year suspension of his registration after it was learned that he had engaged in sexual relations with another 18-year-old client with anorexia nervosa in 1985. The original two-year suspension of Garner’s licence forced him to resign from his position as a clinical psychologist at the Toronto General Hospital and from his academic appointment at the University of Toronto. He moved to the United States, where he engaged in research until he was once again issued a licence to practise psychology by the Ohio psychology board in 1994 (Goodman, 2003; Mahr, 2003).
BounDary issues
The Canadian Code of Ethics for Psychologists (CPA, 2017) clari- fies that psychologists must be clear about professional boundar- ies with their clients to avoid conflict of interest. This means that psychologists should avoid dual relationships (e.g., acting as therapist to someone they have interactions with in another context) whenever possible. It also means that psychologists must not exploit any relationship established with them as psycholo- gists to further their own personal, business, or political interests at the expense of the best interests of their client. This means a psychologist cannot take advantage of a client’s trust or depen- dency to encourage or engage in sexual relations with clients or with a client’s partner or relatives.
Do no Harm
Psychologists are also bound by the ethical principle of minimizing harm to their clients. This is quite a broad ethical principle that applies to such activities as record keeping (not recording informa- tion that could be misinterpreted and misused), psychological report writing (using clear language in reports that can be under- stood by the person who receives the report), and making referrals to other mental health professionals (giving reasonable assistance to help a person secure needed services if a therapist is unable to treat the person). The do-no-harm imperative also prohibits sexual intimacy between a therapist and a client. The Canadian Code of Ethics for Psychologists stipulates that the psychologist must be “acutely aware of the power relationship in therapy and, therefore, not encourage or engage in sexual intimacy with therapy clients” (CPA, 2017, principle II.28, p. 22). This prohibition against sexual relations with therapy clients applies not only to the period while therapy is taking place but also to any period after therapy has ended when the power relationship could reasonably be expected to still be influencing the client’s decision making. It was Garner’s failure to attend to the power relationship that was present with his two female clients, and his consequent failure to minimize harm to them by engaging in sexual relations with them despite the power relationship, that resulted in the revoking of Garner’s psycholo- gist’s licence in Ontario.
reCognizing limits of ComPetenCe
According to the Canadian Code of Ethics for Psychologists (CPA, 2017), psychologists must practise within the limits of their competence. A neuropsychologist would not treat an indi- vidual with a substance use disorder, unless he or she had the proper training to work with a client with addictions, for example. Psychologists must obtain specific training (coursework, research, individual study, applied training, or supervision) in the particular areas of expertise in which they provide clinical services. If a neuropsychologist wanted to begin working with clients with substance use disorders, he or she would need to obtain special- ized training in this new area to establish competence before providing clinical services in this new area. Clients have the right to receive treatment from competent and well-trained profession- als. This brings us to a discussion of specific examples of patients’ rights and how they are, and have come to be, protected by law in Canada today.
