Mental Illness

Question 1

How do you establish guilt?

Answer 1

Actus reus:
Wrongful deed
Mens rea:
Criminal intent

Both of these elements and elements of the case must e found beyond a reasonable doubt for a guilty verdict to be reached.
-Requires that defendant understands charge(s) and can participate meaningfully in proceedings.

Issues of insanity, automatism, and mental disorders all call into question these basic 2 elements.

Question 2

Unift to stand trial

What case stated that an unfit person could not be sentenced?

Answer 2

If Unfit to Stand Trial, defendant unable to conduct a defence at any stage of proceedings on account of mental disorder

Question 3

Fit to stand trial

What is the precedence for fitness standard?

Answer 3

If fit, individuals charged with crime expected to understand nature of proceedings and assist with defence

R. v. Prichard (1836)

Question 4

What case stated that an unfit person could not be sentenced?

Answer 4

R v. Balliram:

Fitness must be restored for defendant to be tried and sentenced.

Question 5

Historically what was the criteria set forth by the R v. Prichard case for fitness to stand trial?

Answer 5

Whether defendant is mute of malice ie. intentionality

Whether defendant can plead

Whether defendant has sufficient cognitive capacity to understand trial proceedings

Question 6

Legislation of fitness to stand trial

Answer 6

With the enactment of Bill C-30 (1992), Criminal Code (s. 2) states:
Defendant is found to be unfit if he or she is unable, due to a mental disorder, to
understand the nature of the proceedings,
understand the consequences of the proceedings, or
communicate with counsel.

*Before a verdict is rendered

Question 7

Changes to the fitness legislation in 1992

Answer 7

R v. Taylor (1992) - “best interest” criterion too strict

Defendant need only be able to tell counsel the facts relating to the offence

Question 8

Bill C30 Information

Answer 8

Stated terms of fitness to stand trial

Provision in R v. Taylor

Length of time a defendant could be detained:
5-day limit with provisions, if necessary
Extension not to exceed 20 days
With extensions, entire stay should not exceed 60 days

*Avg 3 weeks, 88% inpatient (Roesch et al, 1997)

Question 9

Legal issues regarding fitness level

Answer 9

Issue of fitness raised at various stages from arrest to sentence determination

In Canada, only medical practitioners can conduct court-ordered assessments:
Criminal code of Canada states that a defendant is assumed to be fit unless the court is satisfied on the balance of probabilities to prove unfit

Defence or Crown can raise issue of unfitness: that party must prove

In US (& others)  “competency”
“Incompetent to stand trial”

Question 10

Fitness Instruments

Answer 10

Screening instruments help evaluators quickly screen out defendants who are competent to stand trial. 
Various formats:
Checklists
Self-report questionnaires
Sentence-completion tasks
Interview-based techniques

Full assessment follows

Question 11

Types of fitness instruments

Answer 11

Fitness Interview Test-Revised (FIT-R); : Semi- Structured Interview-based

Competency Screening Test (CST):Sentence-completion task

MacArthur Competence Assessment Tool-Criminal Adjudication (MacCAT-CA): Interview-based (with criterion-based scoring)

Question 12

FIT-R

Answer 12

Developed by psychologists at SFU
Fitness Interview Test Revised:
Designed to to meet fitness criteria in CAD criminal code

30-min semi-structured interview;
Each response rated:
0 (no/little impairment) 
1 (moderate impairment)
2 (severe impairment)

Question 13

FIT-R: Section 1

Answer 13

Criminal Code: Understand the nature or object of the proceedings

Factual Knowledge of Criminal Procedure
Focus on criteria of understanding the nature or object of the proceedings
Items:
1. Understanding the arrest process
2. Understanding of nature and severity of current charge
3. Understanding of the role of key participants
4. Understanding of the legal process
5. Understanding of the pleas
6. Understanding of court procedure

Question 14

FIT-R: Section 2

Answer 14

Understand the possible consequences of the proceedings

Appreciation of Personal Involvement in and Importance of the Proceedings
Focus is on criteria of understanding possible consequences of proceedings
Items:
7. Appreciation of range and nature of possible penalties
8. Appraisal of available legal defenses
9. Appraisal of likely outcome

Question 15

FIT-R: Section 3

Answer 15

Communicate with counsel:

Ability to Participate in Defence
Focus is on ability to communicate with counsel
Items:
10. Capacity to communicate facts to lawyer
11. Capacity to relate to lawyer
12. Capacity to plan legal strategy
13. Capacity to engage in own defense
14. Capacity to challenge prosecution witnesses
15. Capacity to testify relevantly
16. Capacity to manage courtroom behaviour

Question 16

CST

Answer 16

Competency Screening Test:
Developed at Harvard Medical School
Goal: minimize lengthy stays for inpatient evaluations
22 incomplete sentences developed to identify defendants who are clearly competent
0 = incompetent
1 = marginally competent
2 = competent
Focus on legal abilities

25 min

High false positive rates

Question 17

MacCAT-CA

Answer 17

MacArthur Competence Assessment Tool- Criminal Adjudication
20-55 mins to administer

3 sections to assess:
Understanding the legal system and legal processes
Reasoning Ability
Appreciation of own legal situation and circumstances

22 items
16 involve answering questions about brief vignette
8 2-part questions (understanding)
8 questions about facts considered relevant (reasoning)
6 questions about defendant’s specific circumstances (appreciation)
All rated 0, 1, or 2

Question 18

Unfit Defendant

Answer 18

Demographics:
young
never married 
unemployed
living alone
male
Criminological:
more likely charged with a violent offence
less likely to have a prior arrests

Question 19

Differences between fit and unfit accused?

Answer 19

Demographics:
living alone
transient
living in a hotel at time of offence

Criminological:
no diff. in offence type
no diff. in seriousness of crime
Mental Health
psychosis
history of psychiatric hospitalization

Question 20

After finding unfitness..?

Answer 20

Either detained in hospital or conditionally discharged

Proceedings halted until fit
–Reassessed within 45 days

Defendant proves to be unfit after 90 days- review board

For defendants who continue to be unfit, Crown must prove that there is enough evidence to continue if fitness restored
-Prima facie case ( every 2 year review)

Question 21

R v. Demers

Answer 21

Supreme court of Canada ruled that the inability of the courts review boards to issue and absolute discharge due to the defendants who are unlikely to become fit and who pose no significant threat to society could not be detained because it was in violation under section 7 of the charter of rights and freedoms (Bill c-10)

Question 22

Bill C10

Answer 22

If unlikely to become fit, court can stay proceedings according to Bill C-10 if:
Accused is unlikely ever to become fit
Accused does not pose a significant threat to public safety
Stay of proceedings is in interests of administration of justice

Does not provide review board with the ability of absolute discharge only the courts have this power

Question 23

Restoring Fitness

Do we have the right to refuse medication?

Answer 23

Medication

YES- indefinitely hospitalized

Question 24

Insanity

Answer 24

Not being of sound mind
Being mentally deranged and irrational (Sykes, 1982)

Legally, insanity removes responsibility of performing an act because of uncontrollable impulses or delusions
-Removes free will

2 cases that have shaped insanity:
James Hadfield: Criminal Lunatics Act (1800)

Daniel McNaughton

Question 25

McNaughton Standard

Answer 25

Substantive Elements of Defence: A defect of reason, from disease of the mind Do not “know” nature and quality of act you are committing Do not know that what you are doing is wrong

Question 26

S. 16 of the Criminal Code

Answer 26

No person is criminally responsible for 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 of knowing that it was wrong.

Question 27

What does it mean to “know it was wrong”?

Answer 27

R. v. Chaulk (1990) Facts: Accused were convicted of first degree murder Unsuccessfully argued for insanity defence Issue: Meaning of the word “wrong” in S. 16 Does this mean knowing that the criminal action was legally wrong, morally wrong, or both? Decision: Crown must show that accused knew what s/he was doing was morally wrong

Question 28

Winko v. British Columbia (1999): how is it relevant | to Bill C30

Answer 28

Further changed the ruling on NCRMD Facts: Mr. Winko stabbed a person in 1983, was found not criminally responsible and received treatment from BC Forensic Psychiatric Institute. In 1995, Review Board granted him a conditional discharge. He appealed his conditional discharge to the Court of Appeals and lost. Issue: Conditional vs. absolute discharge? Decision: Supreme Court ruled that accused who is NCRMD should only be detained if they pose a threat to society If no threat to society, then should receive an absolute discharge

Question 29

What is the importance of Winko v. BC 1999

Answer 29

Importance: Characterizes NCRMD as neither guilty verdict nor acquittal Provided interpretation of “significant threat to the safety of the public” -Real risk of physical/psych harm -Potential harm must be serious If the court or Review Board unable to determine whether “significant risk” exists, absolute discharge must be granted.

Question 30

When can the crown raise issue of mental illness

Answer 30

In Canada, only 2 situations in which Crown may raise insanity: Following a guilty verdict If defence already stated defendant has mental illness

Question 31

Assessing Insanity Defence

Answer 31

Successful defence requires psychiatric assessment Rogers Criminal Responsibility Assessment Scales (R-CRAS; Rogers, 1984)- 5 scales First (and really, only) assessment scale for criminal responsibility

Question 32

Absolute Discharge:

Answer 32

Is not a significant threat to the safety of the public: Defendant is released into community without restrictions to his or her behaviour ~13% in Canada

Question 33

Conditional Discharge:

Answer 33

Defendant is released BUT, under certain conditions that s/he must meet Examples Not to possess firearms Others? Failure to meet conditions may result in incarceration or hospitalization in forensic facility ~35% in Canada

Question 34

Custody Order:

Answer 34

Defendant held in psychiatric facility: - Undergo treatment (not compulsory) - Cases reviewed at least yearly Bill C-30 – capping Max time affected by disposition Varies by crime However, cannot be released until no longer threat to public safety

Question 35

Information Considered by Review Boards

Answer 35

``` Charge information Trial transcript Criminal history Risk assessment Clinical history Psychological testing Hospital’s recommendation ```

Question 36

Factors Affecting Dispositions

Answer 36

Least limiting to the defendant 1. Public safety 2. Mental state of the defendant 3. Reintegration of defendant into society 4. Other needs of defendant

Question 37

Factors Related to Success of NCRMD Pleas -The Court

Answer 37

Female jurors more sympathetic (Blau, McGinley, & Pasewark, 1992) Religious people are less sympathetic (Tygart, 1992) Judges more sympathetic than jurors

Question 38

General Results of pleading NCRMD (NGRI)

Answer 38

People who win usually spend more time in mental hospital than they would have in prison People who lose spend more time in prison than they would had they not pled NGRI Receive sentences 22% longer than non-NGRI pleaders 67% of unsuccessful NGRI pleaders went to prison compared to 11% of all felony arrests

Question 39

Why is there such high rates of mental illness in offender populations?

Answer 39

Individuals with a mental illness: May be arrested at a disproportionately higher rate -More likely to get caught May be less adept at committing crime May be more likely to plead guilty - Access to good counsel - Do not understand ramifications of their plea

Question 40

Role of police in dealing with mentally ill offenders

Answer 40

``` Provincial and territorial mental health legislations grants police 2 ‘official’ options available: Mental Health System: assessment institutionalization Criminal Justice System: arrest ```

Question 41

Mental Illness & Violence

Answer 41

Commonly held belief that mentally ill person = violent predator More likely to be victim than to commit violence Some truth: Acute psychosis or mania 3-4x increase violence risk

Question 42

Mental Illness & Violence: Schizophrenia

Answer 42

Schizophrenia: Diagnosis associated with lower rates of violence Also significantly lower rates than in personality disorder or substance use Co-occurring substance use diagnosis strongly predictive of violence

Question 43

Mental Illness & Violence:Delusions and Hallucinations

Answer 43

General delusions and hallucinations not correlated with violence Command delusions and hallucinations not correlated with violence Violent command hallucinations and persistent violent ruminations are -Steadman et al. 1998. Swanson et al.

Question 44

Rice & Harris (1990) study

Answer 44

Mental Illness & Recidivism: Compared 210 NCRMD defendants to 210 convicted defendants Matched on age, index offence, & criminal hx Results: NCRMD defendants lower rates of general recidivism NCRMD defendants lower rates of violent recidivism

Question 45

Treatment of offenders with mental disorders

Answer 45

``` Goals for treatment vary greatly, but generally include: Symptom reduction Decreased length of stay in the facility No need for re-admittance to hospital Decrease recidivism ``` Overarching goal is reintegration

Question 46

Facilities for treatment include:

Answer 46

Psychiatric institutions Hospitals Assisted housing units

Question 47

2 key treatment options for psychotic symptoms:

Answer 47

Anti-psychotic drugs | Behaviour therapy

Question 48

Characteristics/Features of Mental health courts

Answer 48

Separate docket for mentally ill defendants Dedicated judge Dedicated prosecution and defense counsel Nonadversarial team approach -joint decision-making between criminal justice and mental health professionals Voluntary participation by defendants agreeing to follow a treatment regimen Monitoring by the court Promise of dismissed charges or avoidance of incarceration

Question 49

4 main goals: Mental health court

Answer 49

1. Divert accused charged with minor to moderately serious criminal offences 2. Facilitate a defendant’s fitness to stand trial evaluation 3. Ensure treatment for a defendant’s mental disorder 4. Decrease repeat offending

Question 50

Moore & Hiday (2006)

Answer 50

Purpose: Examine whether mental health courts work Do mental health courts reduce re-offending (y/n)? Do mental health courts reduce recividism severity? Method: Compared outcomes for 82 defendants who went through mental health courts vs. 183 defendants who went through traditional courts -Matched on offence -Followed for 12 months

Question 51

Automatism

Answer 51

General Definition: Unconscious, involuntary behaviour Legal Relevance: Person committing act is not aware of what they are doing ``` Examples: Physical blow Carbon monoxide poisoning Sleepwalking Psychological blow ``` Canadian Criminal Code does not address automatism as a defence

Question 52

Insane automatism

Answer 52

Involuntary action caused by disease of the mind NCRMD verdict

Question 53

Noninsane automatism

Answer 53

Verdict is not guilty

Question 54

Automatism vs. NCRMD

Answer 54

Verdict: NCRMD verdict may result in defendant being sent to mental health facility Noninsane automatism results in not guilty verdict -acquittal Insane automatism results in NCRMD verdict

Question 55

Intoxication as a defence

Answer 55

In 1995, Bill-C-72 passed | Intoxication is not recognized as defence for violent crimes

Question 56

Cultural defence

Answer 56

Uses the excuse that the defendant’s culture has different laws, social interactions, and traditions than the United States The crime committed would not have been a crime in the defendant’s native country

Question 57

Civil Commitment

Answer 57

post-sentence institutional detention of an offender with the intention of preventing further offenses. Major violation of right to freedom & liberty: Only other process that deprives liberty = criminal justice process -Not the criminal justice system -The mental health system

Question 58

The parens patriae model

Answer 58

State is construed as “parent” of those unable to care for themselves The “best interests” of mentally ill

Question 59

Civil Commitment Law

Answer 59

Civil commitment criteria varies by province -By psychiatrist only Typically includes: Mental Illness Need for treatment Dangerousness

Question 60

Criteria 1 for Civil Commitment Law

Answer 60

Criteria 1 – Mental Illness Inter-provincial variation: What is a mental illness? In some provinces (e.g., Sask.) -Effect on patients’ thoughts and behaviour Other provinces Focus on mental disorder as a ‘disease or disability of the mind’ Do not specify effect on behaviour

Question 61

Criteria 2 for Civil Commitment Law

Answer 61

Whether person poses danger to self/others Inter-provincial variation: Determining Dangerousness -Broad perspective -Narrow perspective

Question 62

Broad Perspective

Answer 62

E.g., British Columbia Mental Health Act states that person must require “care, supervision, and control in Provincial mental health facility for the person’s own protection or for the protection of others.”

Question 63

Narrow Perspective

Answer 63

E.g., Ontario Mental Health Act requires that person’s mental disorder will likely result in “serious bodily harm to the person,” “serious bodily harm to another person,” or “imminent and serious physical impairment of the person.”

Question 64

How to assess dangerousness

Answer 64

Risk assessment : Process of evaluating individuals to: Characterize likelihood they will engage in target outcome (usually violence) Develop interventions to manage or reduce that likelihood

Question 65

Psychiatric Gating

Answer 65

Definition: Informal mechanism whereby offenders are certified by a physician under Mental Health Act as requiring detention in a psychiatric facility on grounds that they present a danger to themselves or others Civil committal of dangerous sex offenders: -Defining deviant sexual behaviour as a mental disorder

Question 66

Dangerous Offender Legislation

Answer 66

Section 753 of Criminal : 1. ) Crown must prove beyond reasonable doubt that offender committed serious personal injury offence - indictable offence (other than murder or treason) - sexual assault, sexual assault with a weapon, and aggravated sexual assault 2.) Second, Crown must establish dangerousness criteria One of: Pattern of unrestrained behaviour Pattern of aggressive behaviour with indifference to consequences Behaviour of a brutal nature – ordinary restraint can’t control Failure to control sexual impulses ``` Once designated a dangerous offender: Indefinite sentence of detention Time served before parole eligibility 7 years Can apply every 2 years after that ```

Question 67

Long-Term Offender Legislation

Answer 67

S. 752, Criminal Code: LTO Criteria: Appropriate to impose a sentence of 2 yrs. or more for the current offence Substantial risk that offender will re-offend Reasonable possibility of control in community Additional period of up to 10 years of community supervision

Question 68

Limitations to DO and LTO Provisions for sex offenders:

Answer 68

1. ) Sexual nature of crimes not evident: - Offender poses a risk for sexual violence but it is not directly evident in Criminal Code charge - Not eligible for either DO or LTO 2.) Appropriate sentencing range Many sex offences do not receive a sentence of 2 years or more

Question 69

Problem with psychiatric gating

Answer 69

No agreement about whether various psychosexual and personality disorders, qualify as mental disorders for purposes of mental health legislation -Usually NOT considered mental disorder under Criminal Code