Psychiatric Review Course Ottawa 2010

Dr John Bradford, Associate Chief, Forensic,

Royal Ottawa Health Care Group Professor of Psychiatry,

University of Ottawa. email: john.bradford@rohcg.on.ca

Objectives

1. Principles of Forensic Psychiatry 2. Violence and Mental Disorder 3. Assessment and Treatment of Sexual

Deviation 4. Overview of Sexual Dysfunction

PRINCIPLES OF FORENSIC PSYCHIATRY

•Basic Definitions

•Fitness to Stand Trial

•Assessment Orders

•Criminal Responsibility

•Civil Competency

•Confidentiality, Dangerousness, Tarasoff and Duty to Warn

Why Forensic Psychiatry?

The largest interface between medicine and the law is between psychiatry and the law

Definition of Forensic Psychiatry “Forensic Psychiatry is a sub-specialty of

psychiatry in which scientific and clinical expertise is applied to legal issues in legal contexts embracing civil, criminal, correctional or legislative matters; forensic psychiatry should be practiced in accordance with the guidelines and ethical principals enunciated by the profession of psychiatry”

American Board of Forensic Psychiatry and adopted by AAPL and CAPL

Textbooks

Principles and Practices of Forensic Psychiatry. Edited by Robert Blueglass and Paul Bowden. Churchill Livingstone, 1990.

Principles and Practice of Forensic Psychiatry. 2nd Edition. Edited by Richard Rosner Arnold, London, UK, distributed in the United States by Oxford University Press Inc. 2003

Fitness to Stand Trial Historical aspects of legal standards for fitness to stand trial

•Both a ritual and a fairness function •Common law has long held that an accused could not be required to plead to an indictment or to be tried for a crime when he was so mentally disordered that he could not meet the common law test of fitness •The early English court..."mute by malice" or "mute by visitation of God"

Walker (1968 ) described how the early English courts had difficulty distinguishing between those defendants unable to reply to criminal charges and those unwilling to do so. This was a particular problem for the medieval and Tudor judges. The accused's silence and the Court's concern about legal procedure clashed....silence meant the accused could not be convicted and his property could not be forfeited to the Crown or worse

•The solution was the first test of fitness "peine forte et dure"...... where the man was slowly crushed to death under increasingly heavy weights placed on his chest unless he relented and agreed to plead •This procedure was only officially abolished in 1772

•Fitness evolved as a fairness and protective function (ie the defendant was able to protect himself in the adversary system) •Isaac Ray "A Treatise on the Medical Jurisprudence of Insanity" 1838 recognized that in insanity cases that the trial or sentence should be delayed to allow physicians to observe the accused's state of mind

Legal Principles Underlying Fitness to Stand Trial

1. To safeguard the accuracy of any criminal adjudication

2. To guarantee a fair trial 3. To preserve the integrity and dignity of

the legal process 4. To be certain the accused if found guilty,

knows why he is being punished

Fitness to Stand Trial in Canada

The accused is presumed fit to stand trial unless the court is satisfied on a balance of probabilities that the accused is unfit to stand trial (Section 672.2)... on the basis of mental disorder

The standard of proof is a balance of

probabilities

Statutory Definition of Unfit to Stand Trial (Section 2 CCC)

Unfit to stand trial means being unable on account of mental disorder to conduct a defense at any stage of the proceedings before a verdict is directed or to instruct counsel to do so and in particular unable on account of mental disorder to:

a. understand the nature or object of the proceedings

b. understand the possible consequences or c. communicate with counsel

Canadian Cases R v Taylor: 1992 Court of Appeal of Ontario.

Introduced the ‘limited cognitive capacity’ test versus the ’analytical capacity test’

Section 672.11 of the CCC provides for

an assessment for fitness to stand trial Fitness to stand trial is determined by a

judge or jury at a trial of fitness

McGarry’s Checklist

Situations Where Fitness May Be an Issue

• Preliminary hearing • At arraignment • Before and during a trial • On appeal • Prior to sentence

Psychoactive Drugs and Fitness to Proceed with Trial

• Treatment order provision Section 672.58 CCC this is when a finding of unfitness is made but prior to a disposition under 672.54 CCC

• For up to 60 days • Subject to conditions imposed by court • Can be out of custody • Made without the consent of the

accused

Assessment Orders 672.11 CCC Order of assessment of mental condition of accused to determine whether the accused is-

• Unfit to stand trial • Exempt from criminal responsibility

Section 16(1) at time of commission of offence

• Mind of accused disturbed arising out of death of newborn child

• Hospital treatment order

Assessment Order:

• 5, 30 or 60 days • In or out of custody • All extensions not to exceed 60 days • Presumption against custody

Assessment Reports

• Original to judge • Copies to prosecutor and defense

counsel

Protected Statements

Definition: A statement made by accused during the course and for the purpose of an assessment and treatment directed by disposition to the person specified in the assessment order or the disposition or any person acting under that person's direction

With reference to Phillip J. Resnick, “Psychiatric prediction of Violence”

AAPL Review Course, 1996.

VIOLENCE AND MENTAL DISORDER

Demographics of Violence Monahan, 1986 Age: Violence peaks in the late teens and early

adulthood Sex: Males are more violent than females Social Class: the lower the social class, the

higher the level of violence IQ: the lower the IQ, the higher the

violence/substance abuse

Violence – Civil Issues Impact of Canadian Charter of Rights and

Freedoms on the right of involuntary patients to refuse tx (Starson, 2003)

Patient has right to refuse medical tx, even if tx is potentially life saving (Astaforoff)

Nova Scotia first province to recognize right of involuntary pts to refuse tx – Ontario and Manitoba followed suit following amendments to MHA

Role of substitute decision maker (OMHA, 1987). Can be overturned by Review Board

MHA 1990- allows for medical director to make tx decision on behalf of involuntary patients (Fleming v Reid)

Upheld that involuntary patient incompetent to make tx decisions may refuse tx (Thwaites)

Physicians’ responsibility re: competency to operate a motor vehicle; Physician legally protected from legal liability arising (Ontario)

ECA Study: Swanson et al, 1990

Violent Behaviour in Last Year % No Mental Disorder 2 OCD 11 Panic Disorder 12 Major Depression 12 Biopolar Disorder 11 Schizophrenia 13 Cannabis Abuse/Dependence 19 Alcohol Abuse/Dependence 25 Other Drug Abuse/Dependence 35

Link et al, 1992 Violent Offence Long Term Community 1% Pt. 6%

Fighting past 5 Years Community 1.5% Pt. 28%

Weapon Use past 5 Years Community 3% Pt. 13%

Serious Harm Long Term Community 5% Pt. 12%

Violence in mentally ill is caused by psychosis. If there is no psychotic episode, then the patient is no more likely than the controls to be violent

(Link et al, 1990)

Hodgins, 1992

Swedish cohort followed from birth to 30 years:

Men with major mental disorder 4x more likely to commit a violent offense

Women with major mental disorder 27x more likely to commit a violent offense

Men intellectually handicapped 5x more likely to commit a violent offence

Women intellectually handicapped 25x more likely to commit a violent offense

Dangerousness

The individual being examined has certain characteristics

These characteristics increase with a certain probability violent behaviour

The probability of violent behaviour is sufficiently great to warrant preventive intervention

Components of Dangerousness Magnitude Likelihood Imminence Frequency

Psychiatric Prediction of Dangerousness

Psychiatrists and all mental health professions have not shown to be accurate in the long-term prediction of dangerousness. Studies show that psychiatrists are no better than social workers, judges, correctional officers, or others predicting dangerousness

(Ennis & Litwack, 1974)

Psychiatrists over-predict violence by 40-90%

Clinicians are able to predict violence in the short term and in men better than chance, but are unable to predict violence in women.

(Lidz, Mulvey, Gardener, 1993)

The Low Base Rate Problem Homicide and suicide are infrequent events Homicide rate is 2/100,000 population;

Suicide rate is 12/100,000 population in Canada

Family violence rate is 16,000/100,000 in the US and therefore, this should be more easy to predict

Meehl and Rosen, 1995 noted it is virtually impossible to predict anything with a low base rate. The problem is over-prediction and high levels of false positives

Assume…..

That 1 out of 1000 persons kill There is highly accurate test to differentiate

killers from non-killers at 95% level of accuracy. Then screen a city of 100,000 people and out of the 100 potential killers, 95 would be accurately identified. However, out of the 99,900 non-killers, there would be 4,995 non-killers identified as kills.

(Monahan, 1981)

Prediction

Actual Behaviour

Predicted Behaviour

Yes No

No False + True -

Yes True + False -

Clinical Studies

Actual Group

Predicted Group

Non-Violent

Violent

Non-Violent

94% 41% (n=193)

Violent 6% 59% (n=46)

Klaasen & O’Connor 1988)

Therefore, the False Positive rate was 41%

Clinical Assessment of Violence

This should be expressed as risk and there are issues of risk prediction and risk management

Violence Prone Individuals

Serious violence occurs late in the evolution of psychosis (Taylor, 1993)

Paranoid schizophrenics are more violent than other diagnostic categories (Krakowski et al, 1986)

In paranoid patients, violence follows the delusional beliefs (ie. The person persecuting them)

Paranoid patients….

Are more likely to be violent as they are more likely to be in the community and have access to weapons

Retain cognitive functioning, therefore can plan and carry out their plan

Among the criminally insane are more likely to have committed a murder

Chronically disorganized patients are more likely to be assaultive in hospital

Schizophrenics and manics who make threats prior to admission are 33% more likely to commit an assault in hospital (McNeill & Binder, 1989)

Manics are more likely to be violent without prior threats of violence

Command Hallucinations

Compliance with commands 10-80% Compliance is decreased if command is

dangerous Compliance is increased if there is a

hallucination-related delusion Compliance increases if the voice is

familiar

Threat/Control Override Symptoms

Mind feels dominated by forces beyond their control

Feelings/thoughts are being put in their head

Feelings/people wish them harm Beliefs they are being followed

Delusional Misidentification Syndromes

More likely to be violent than other delusional disorders and schizophrenics

Paranoid ideas are common in association with misidentification syndromes

When they have delusional misidentification of themselves, they are particularly dangerous and especially if they identify themselves as powerful figures such as the Anti-Christ

Erotomania

5% violent Violence is more likely directed to person

in the way of their loved one Loved one is second target of violence

Depression Parents kill their children prior to suicide,

especially mothers of young children (Resnick, 1969)

Murder-suicide is defined as suicide within one week of homicide. Victims are female partners of young or middle-aged men, children of psychotic or depressed women

Major depression is the common diagnosis Male perpetrators have a higher than average

history of domestic violence

Mania

High frequency of assaultive behaviour but serious violence is less frequent

Less criminal behaviour than schizophrenics

Often respond violently to limit setting

Organic Brain Disorder Temper tantrums, rage attacks as children ADHD Prisoners with highest violence have highest

neurological and neuropsychological deficits Violent crimes committed by 73% of brain

damaged group compared to 28% controls Personality deterioration after head trauma

with increased violence Intermittent explosive disorder Temporal lobe epilepsy

Stalkers Compared 10 studies of stalkers Stalkers are social and sexual failures Stalkers have prior psychiatric and criminal

histories The victim of violence is the stalking victim 50% stalkers threaten violence and this is more

likely if a previous intimate relationship with the victim

75% of those who threaten are not subsequently violent

Homicide incidence 2% Meloy, 1996)

Stalkers who Kill Stranger Target

Have a mental disorder Believe themselves to be unique Identify with other stalkers Keep a diary of their stalking Research their target victim Purchase a weapon Show up uninvited at the work or home of

victim They switch targets often (Dietz, 1994)

Criminal Responsibility

Historical Roots of Criminal Responsibility

Mens rea fundamental to Western criminal law was based on ecclesiastical courts

The twin corner stones of criminal responsibility is that the accused committed a forbidden act (actus reus) with a wicked intent (mens rea)

1265 Bracton formulated the wild beast test 16th Century Coke’s dicta 17th Century Hale elaborated on Coke’s dicta Famous British trials that resulted in the

development of criminal responsibility Arnold 1724: Hadfield 1800; Daniel McNaughton

Blackstone 18th Century (rule of 7’s) and formulated the right-wrong test

Rule of 7’s

Child <7 yrs cannot be criminally responsible Child between 7 and 14 yrs can be criminally

responsible if they know the difference between right and wrong (good and evil)

Child of 14 yrs is criminally responsible

In Canada today, the age for criminal responsibility is 12 years

The McNaughton Rules

The most common legal basis for a finding of criminal responsibility

Resulted from public outrage and Queen Victoria’s concern

Five questions put forward and the answers became the McNaughton Rules

To establish a defense on the grounds of insanity, it must be proven that, at the time of committing the act, the party accused was laboring under such a defect of reason, from a disease of the mind, as not to know the nature and quality of the act he was doing; or, if he did know, that he did not know what he was doing was wrong.

Combination of Wild Beast Test

Section 16 CCC

Modified McNaughton Test now replaced with appreciate

Post Swain the wording modernized

Section 16 CCC

16(1): “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”

16(2) Presumption: Every person is presumed

not to suffer from a mental disorder so as to be exempt from criminal responsibility by virtue of subsection (1) until the contrary is proven on the basis of a balance of….

16(3) Burden of Proof: “The burden of proof than an accused was

suffering from a mental disorder as to be exempt from criminal responsibility is on the party that raises the issue”

NCR Finding

Bifurcated trial Dispositions by judge or deferred to

Review Board If deferred, hearing by Review Board in 45

days or 90 days, if judge makes disposition

Types of Dispositions

Detention Order Conditional Discharge Absolute Discharge

HADFIELD TO WINKO Evolution of the Rights of Not Criminally Responsible Individuals: Finding a Balance with the Rights of Society

prepared by Rhona Buchan Student at Law, April 14, 2000

1800 - 1892

•1800 James Hadfield •1843 McNaughten "rules" •1892 British North America Constitution Act - adopted British Criminal Code and provisions of the English Criminal Lunatics Act: "Automatic detention" and "custody at the pleasure of the Lt. Governor".

1892-1992 Law Reform Activity

•1969 Amendment empowering Lt.Governor to appoint advisory board to review cases of those kept in custody. •1976 Report of the Law Reform Commission "Mental Disorder in the Criminal Process" •1982 Charter of Rights and Freedoms came in with the 1982 Constitution Act. •1982 Federal Department of Justice formed the Mental Disorder project. •1985 Report of the "Mental Disorder Project"

Law Reform Attempts ...

•1986, June: Tabling of draft bill by Hon John Crosbie, Minister of Justice •1988: Bill ready but Government lost Min of Justice in election. •1990 & 1991 introduced twice more as a private members bill.

1991 R. v. SWAIN: Constitutional Challenge of

Legislation Constitutional test for a violation of a Charter Right:

Section 7: Everyone has the right to life liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice

Section 7 Test:

•Is there a deprivation of either life, liberty or security? •Is that deprivation in accordance with the principles of fundamental justice? What is the objective of the state? Does the deprivation have a valid purpose in relation to the state's objective? S.1 of charter: Can that violation be justified in a free and democratic society?

Section 15:

Everyone is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability.

Section 15 Test: •Is there a violation or denial of an equality right? Does the law draw a distinction on its face? Does the law have a disproportionate impact on a particular group? <Is the distinction based on an enumerated or analogous ground? <Is the law discriminatory? Does it impose a burden or deny a benefit? •Can the violation be justified in a free and democratic society? (Section 1)

1991 R. v. SWAIN [1991] 1 SCR 933. Decision by the SCC ruled CCC "insanity" legislation unconstitutional. Three issues were analysed: < Constitutionality of the Crown raising "insanity" defense over the wishes of the accused. < Is s.542(2) CCC within the jurisdiction of the parliament? ("Intra vires") < Does "automatic detention" of the NGRI accused under s.542(2) violate S.7, right to life liberty and security or s.9 of the Charter, the right not to be arbitrarily detained? RESULT: struck down the legislation and gave parliament 6 months to create new mental disorder legislation for the criminal code.

1992 PART XX.1 Criminal Code MENTAL DISORDER PROVISIONS

Major changes resulting from the 1992 ammended legislation: •S.16: "not guilty reason of insanity" changed to "not criminally responsible by reason of mental disorder" •Identify patient as the "accused" •Removed Lt. Governor role

• Warrant of the Lt. Gov" is now a disposition

• s.672.38 - Establishes review boards for every province

• Removed automatic "strict custody" • Court can make disposition immediately

following verdict. • Decision making power of Review

boards is adjudicative not advisory. • "Order" became "disposition" by review

board.

Procedural Changes •S.672.81 Annual review by review boards •S.672.52 (3) Required to provide every party with a copy of their reasons -includes the accused. •S.672.5(5) Must give adequate notice of hearings •S.672.5(8) and 672.5(8.1) Accused's right to counsel "where legal aid is not granted counsel shall be paid by the AG to the extent that the accused in unable to pay them"

• Legislation does not require an independent psychiatric assessment as required before 1992.

• Board Has power to direct parties to take action that will assist in its decision making. IE Call witnesses.

• s.672.72 Right of Appeal to the Court of Appeal

s.672.54(a) - (c)

sets out the TEST for a disposition

The court or review board shall take into consideration four factors: <the need to protect the public from dangerous persons <the mental condition of the accused <the reintegration of the accused into society <the other needs of the accused

Three Options for Dispositions

Considering the four above factors the Board shall make one of the following dispositions that is the least onerous and restrictive to the accused: <(A) Absolute discharge <(B) conditional discharge <(C) detention in custody in hospital

A Hybrid Disposition

It is acceptable to have disposition (c) detention in hospital, with supervised community living at the discretion of and under restrictions set by the hospital. •This power is delegated to the hospital by the board under s.672.56 (1). •Possibly because of a broad common law interpretation of "custody" and "detention". •Reflects the need to employ a flexible approach to mentally disordered offenders.

Interpretation of the New Legislation

Focused on s.672.54: Dispositions made by a Review Board or court.

1996: R. v. Orlowski (BC Court of Appeal )

(companion appeals: Winko,& Bese)

Court of Appeal found no S.7 or s.15 violation (dissent found s.7 violation)

R. v. Orlowski

Key was interpretation of s.672.54: TEST: if board does NOT make a positive finding that patient is NOT a threat they should detain him. ONUS: there is a presumption of danger. Accused carries the onus to disprove the presumption of his dangerousness. the board is adversarial, rather than inquisitorial. It is up to the parties to place evidence before the board.

R .v. Lepage (Ontario Ct Appeal 1997)

Found there is no presumption of dangerousness or of detention flowing from the NCR verdict. A presumption would violate s.15 of Charter. But the accused is subject to restriction of liberty pending the disposition.

R. v. Hoeppner (Man Ct Appeal, March 1999)

Found that, absent capping provisions, s.672.54 violates s.7 of the Charter and should be declared invalid.

MD Legislation endorsed by the Supreme Court

•1999 SCC considered three appeals from the BCCA on the constitutionality of the new legislation •The Legislation upheld •Thorough analysis of how s.672.54 should be interpreted.

Winko v. BC Forensic Psychiatric Institute, [1999] 2

SCR 625 The Supreme Court of Canada found no S.7 or s.15 violations if interpreted according to the guidelines provided in the decision.

Past Offense is not Evidence “The court or Review Board must at all

times consider the circumstances of the individual NCR accused before it”

•A past offense committed while the NCR accused suffered from a mental illness is not, by itself, evidence that the NCR accused continues to pose a significant risk to the safety of the public

•However, where it is relevant to identifying a pattern of behaviour, the Board may consider the fact of the past criminal act together with other circumstances

Dispositions

If the court or Review Board [pro-actively] concludes that the NCR accused is not a significant threat to the safety of the public, it must order an absolute discharge.

Dispositions

If the court or Review Board concludes that the NCR accused is a significant threat to the safety of the public, it may order that the NCR accused be:

•discharged subject to the conditions the court or Review Board considered necessary or •detained in custody in a hospital, subject to appropriate conditions.

Least Onerous and Least Restrictive Order

The Review Board must make the order that is the least onerous and least restrictive to the NCR accused, considering again:

•the need to protect the public from dangerous persons, •the mental condition of the NCR accused, •the reintegration of the NCR accused into society, and •the other needs of the NCR accused.

WHAT HAS WINKO CHANGED?

1999 although Winko upheld the legislation it gave reasons that changed the functioning of the review boards:

•The test for significant threat •The onus

Test under Winko:

Uncertainty as to threat results in a loss of jurisdiction over the accused. A failure to positively conclude a significant threat to the public requires board to give an absolute discharge • possible result in more absolute discharges.

Guidelines for Interpretation of s.672.54

The court or Review Board must consider four factors •the need to protect the public from dangerous persons, •the mental condition of the NCR accused, •the reintegration of the NCR accused into society, and •the other needs of the NCR accused.

“Significant Threat”

A "significant threat to the safety of the public" means

•a real risk of physical or psychological harm to members of the public •that is serious in the sense of going beyond the merely trivial or annoying. •The conduct giving rise to the harm must be criminal in nature.

Burden of Proof

There is no presumption that the NCR accused poses a significant threat to the safety of the public.No onus is to be on the NCR to disprove dangerousness

Err on Side of Accused’s Liberty

Restrictions on his or her liberty can only be justified if, at the time of the hearing, the evidence before the court or Review Board shows that the NCR accused actually constitutes such a threat.

Board is to Have an Inquisitorial Function:

•The proceeding before the court or Review Board is not adversarial. •If the parties do not present sufficient information, it is up to the court or Review Board to seek out the evidence it requires to make its decision. •There is never any legal burden on the NCR accused to show that he or she does not pose a significant threat to the safety of the public.

Broad Range of Evidence Evidence available to the board may include •the past and expected course of the NCR accused's treatment, if any, •the present state of the NCR accused's medical condition, •the NCR accused's own plans for the future, •the support services existing for the NCR accused in the community, and •the assessments provided by experts who have examined the NCR accused. •Other factors - This list is not exhaustive.

Exception

•Uncertainty around future treatment results in finding a significant threat. •Variables that may cause a relapse, resulting in a threat to the public:

•compliance with treatment •living arrangements •abstinence from substance use •any other relevant circumstances

Onus under Winko

•There is no presumption of dangerousness where there is a verdict of NCR. •The reverse onus test for significant threat established in Orlowski , where the accused had to disprove his dangerousness, was changed by Winko . •Reverse onus would be a constitutional violation of s.7.

Functions of the Board Have Changed

•Has become inquisitorial - required to search out the evidence. •Carries the legal and evidentiary burden of

•gathering evidence •establishing that the accused poses a threat to public safety, to justify a restrictive disposition.

Threshold of “Significant Threat”

Focused now on present condition or situation at the time of the hearing, However, assessment of risk is a forward looking process

CONCLUSIONS

Does it follow the principles laid out in The Law Reform Report? 4 basic tenets of the administration of criminal justice:

•Disposition to be made in the open •Re: known criteria •Disposition should be Reviewable •Disposition should be a determinate length.

Positive Results

•Clarification that the legislation is constitutionally sound - as long as it is interpreted according as Court directs. •Onus has been taken off the accused to disprove his dangerousness. •Positive test for dangerousness upholds the liberty of the accused. •Inquisition puts the onus on neither the AG nor the Accused but on the board to solicit the info.

Risk Associated with Absolute Discharge

•Likely to result in more absolute discharges: •NCR need not be in purely good mental health to be absolutely discharged. •Consequently absolute discharge requires a recognition and acceptance of a certain degree of risk. •Must be aware that the Mental Health Act is a safety net.

Ontario Mental Health Act

Allows for transfer to the civil jurisdiction of the Ontario Mental Health Act,

•s.15: reasonable cause to believe patient is threatening to or attempting to cause serious bodily harm to self or others. •In 1987 the Ontario Mental Health Act was brought in line with the Charter

Problem of Jurisdiction

•Moving from the criminal code into the MHA is moving into a provincial jurisdiction from federal law . •The law is not consistent in all the provinces. Not all the provinces have followed a uniform model of mental health legislation. •1987 a Uniform Mental Health Act drafted n compliance with the charter, but has not been adopted by all the provinces

CRITICISMS:

Onus on board to solicit evidence may result in a lack of all the evidence being heard:

•The board is swamped: four hearings a day. •The crown is swamped. •Much of the weight of the board's decision is put on the expert witness's evidence •Because it is a non-adversarial setting it is important that the expert ensures the Board has information to fill all the criteria they must assess regarding risk.

Indefinite Detention?

•NCR Accused still faces an indefinite period of detention. •Mitigating the loss of liberty of the NCR accused

•He is given annual review and consideration for absolute discharge where appropriate •he is detained only where the safety of the public is at risk •This is the only constitutionally viable reason to restrict a liberty.

Role of the Crown •The Attorney General is not a required party at the Board and in many provinces does not attend. •When in attendance the Crown performs the function of representing the interests of society and not of victims or the concerns of individuals.

•The Crown cross examines experts with the intention of proving the danger. •The Crown cross examination of the expert facilitates the drawing out of all of the evidence.

Erring on Side of Caution

•Despite this ruling, I submit that the review boards may continue to err on the side of caution, as may psychiatrists in their recommendations. •The review boards are protected from civil liability for their decisions under s. 672. 38(3) (enacted 1997).

Right of Appeal •Right of appeal provided •However, because the Board has expertise, under the principles of administrative law, the court will show a great deal of deference to their decision. •Appeal on the interests of societal safety would be made by the Crown. Appeal from a disposition can only be made by a party. Another reason why there should be mandatory attendance by the Crown at all the hearings.

Where is Criminal Mental Health Law Heading?

•Capping: Issue of the constitutionality of the ability to detain a person indefinitely on the basis of their mental disability. S.7 challenge •Releasing on an absolute discharge puts the patient into the civil system.

Jurisdiction of Criminal and Civil Mental Health Law:

•Difference is "threat" vs. "Significant threat." •At what point should the civil mental health system pick up from the criminal system, without compromising the safety of the public? •Is there too wide a gap between the criminal and the civil jurisdiction?

Conclusions of Bradford, Glancy et al:

•Uniform jurisdiction for NCRs . •Inquisitorial nature gives expanded role and increased responsibility to review boards, which endorses the role of forensic psychiatry. •Guidance of SCC in assessing significant threat in terms of relapse prevention in treatment -endorses forensic psychiatry in the treatment of an NCR offender. •Requires further research into

•treatment outcome •risk assessment

2000 “5 year review” of MD Legislation

•Due in 1997 but is still anticipated. •Likely to address:

•Interprovincial transfer provisions •Dangerous Mentally Disordered Offenders. •Capping •Role of the Crown Attorney in Review Board hearings.

Confidentiality, Dangerousness, Tarasoff and the Duty to Warn

1970’s – “duty to warn in the US” (civil) Duty to warn – duty to protect doctrine Ethical relationship between

psychiatrist/therapist and patient (Hippocrathic Oath)

Supreme Court of California: “protected privilege ends where public begins”

First vs Second Generation Tarasoff

Violence – Civil Issues Impact of Canadian Charter of Rights and

Freedoms on the right of involuntary patients to refuse tx (Starson, 2003)

Patient has right to refuse medical tx, even if tx is potentially life saving (Astaforoff)

Nova Scotia first province to recognize right of involuntary pts to refuse tx – Ontario and Manitoba followed suit following amendments to MHA

Role of substitute decision maker (OMHA, 1987). Can be overturned by Review Board

MHA 1990- allows for medical director to make tx decision on behalf of involuntary patients (Fleming v Reid)

Upheld that involuntary patient incompetent to make tx decisions may refuse tx (Thwaites)

Physicians’ responsibility re: competency to operate a motor vehicle; Physician legally protected from legal liability arising (Ontario)

REFERENCES

1. Schneider, RD, Glancy, GD, Bradford, JMW, Seibenmorgen, E. Canadian Landmark Case, Winko v. British Columbia: Revising the Conundrum of the Mentally Disordered Accused. J Am Acad Psychiatry Law 28:206-12, 2000.

2. Bradford, JMW. The Pharmacological Treatment of the Adolescent Sex Offender. Guilford Publications, Inc. 1993.

3. Bradford, JMW. The Forensic Psychiatric Aspects of Schizophrenia. June 1983.

4. Bradford, JMW, Gratzer, T. A Treatment for Impulse Control Disorders and Paraphilias: A Case Report. Can J Psychiatry, Vol. 40, February, 1995.

Law and Compassion

“I view law as the means by which we order social relations to create social conditions for human cooperation and the attainment of justice. ... What is the relationship between these two concepts -law and compassion? It is my belief and contention that for the law to be just it must reflect compassion.

For a judge to reach decisions which comport with justice and fairness, he or she must be guided by an ever-present awareness and concern for the plight of others and the human condition...

compassion is not some extralegal factor magnanimously acknowledged by a benevolent legal decision maker. Rather compassion is part and parcel oft he nature and content of that which we call "law." “

Chief Justice Dickson