Week 10 - Mental Illness in Court

fitness to stand trial: establishing guilt

elements that must be present for criminal guilt

• actus reus: wrongful deed

• mens rea: criminal intent

must be found guilty beyond a reasonable doubt for guilty verdict

mental health issues can call these elements into question

fitness to stand trial

fitness to stand trial - having some understanding of the charges and the proceedings against you

fitness standard - Bill C-30

• a defendant is unfit to stand trial if they are unable to:

• understand the nature or object of proceedings

• understand possible consequences of proceedings

• communicate effectively with counsel

fitness to stand trial: who assesses fitness

traditionally only medical practitioners

• canada, unlike US and Australia, excludes psychologists from conducting court-ordered assessments

fitness to stand trial: fitness instruments

Fitness Interview Test Revised (FIT-R), three broad sections

• understand the nature of the object and criminal proceedings - factual knowledge

• understand possible consequences - you are a suspect, could go to prison

• communicate with counsel - plan legal strategy with defence attorney

other tools also exist: CST, CAI, IFI, MacCAT-CA

fitness to stand trial: predictors

unfit defendants more likely to be:

• single

• unemployed

• living alone

• older females belonging to a minority group

• diagnosed with psychotic disorder

fitness to stand trial: when found unfit

restoring fitness!

• courts may decide to treat defendant with medication in order to restore fitness

• dilemma: how can someone ruled unfit be deemed competent to keep up with treatment plan

proceedings against defendant who is found unfit are halted until competency is restored

in canada, defendant can be detained in hospital or conditionally discharged

• reassessed in 45 days

• if defendant still unfit after 90 days, referred to review board for assessment

  • arbitrary numbers seemingly

insanity standard: mental state at time of offence

insanity: not being of sound mind, mentally deranged or irrational

• legally essentially removes criminal responsibility of performing an act because of uncontrollable impulses or delusions (mens rea)

insanity standard: elements of insanity defence (past and present)

three elements specific to insanity defences were established from R v McNaughton (1843)

• defendant must be suffering from a defect of reason/disease of the mind

• must not know the nature and quality of act they are performing

• must not know what they are doing is wrong

Bill C-30 (1992) made important changes to insanity legislation

• term changed to Not Criminally Responsible on Account of Mental Disorder (NCRMD)

• wording of standard was altered

• review boards created

insanity standard: raising the issue of insanity

very few defendants use the insanity defence

• approx 25% succeed when raised (probably inflated)

• typically occurs when both sides agree

canada - only two situations when Crown may raise issue of insanity

• following a guilty verdict

• if defence states the defendant has a mental illness

whoever raises the issue must prove beyond balance of probabilities

insanity standard: assessing insanity (scale)

insanity defence requires a psychiatric assessment

Rogers Criminal Responsibility Assessment Scales (R-CRAS)

• patient reliability

• organicity (brain damage)

• psychopathy

• cognitive control

• behavioural control

insanity standard: defendants found NCRMD

three dispositions can be made

• absolute discharge

• conditional discharge

• psychiatric facility

in canada, dispositions made by court of a review board

• court dispositions reviewed by board within 90 days

• disposition can be changed at any point

insanity standard: info for review boards

• charge info

• trial transcript

• criminal history

• risk assessment

• clinical history

• psychological testing

• hospital’s recommendation

insanity standard: factors affecting dispositions

four main criteria considered when deciding a disposition

• public safety

• mental state of defendant

• reintegration of defendant into society

• other needs of the defendant

automatism

automatism - unconscious, involuntary behaviour

• person committing the act is not aware of what they are doing

• Canadian Criminal Code does not address automatism as a defence

automatism: R v Stone (1999)

supreme court stated there are two forms of automatism

• non-insane (external factor)

• insane (mental disorder, internal factor)

to address defenses of automatism judge decides

• whether evidence exists that behaviour was involuntary

• if condition is a mental disorder (insane vs non-insane)

automatism: defenses of noninsane automatism

potential defences recognized by canadian courts

• a physical blow

• physical ailments (stroke)

• hypoglycemia (low blood sugar)

• carbon monoxide poisoning

• sleepwalking

• involuntary intoxication (no longer recognized as a defense)

• psychological blow from extraordinary external event

verdict outcome differs

• NCRMD verdict may result in defendant being sent to mental health facility

• noninsane automatism results in a not guilty verdict

• insane automatism results in a NCRMD verdict

defendants with mental disorders: rates

fit defendants may still have mental health issues

• offenders have higher rates than general population

several factors may be responsible for higher rates

• individuals with mental illness are likely to be arrested more often

• individuals with a mental illness are more likely to get caught

• individuals with a mental illness more likely to plead guilty

defendants with mental disorders: disorder variety

prevalence rates of specific psychiatric disorders differ

• substance abuse disorders most likely

• second is antisocial personality disorder

• affective disorders

• followed by anxiety disorders and schizophrenia

defendants with mental disorders: police action

police have two options when dealing with suspects with mental disorders

• mental health system

• criminal justice system

• special secret third option: release, but unlikely

biases may exist in conditional release of mentally ill offenders

• conditionally released as result of mandatory supervision (after serving 2/3 years of sentence)

• more likely to have release suspended - break conditions of parole

mental illness and violence

some links between psychiatric diagnosis and physical violence

• kind of diagnosis important factor

complex interaction between different diagnoses and other factors

• age, substance use, etc

• the compounding of risk factors

not distinguishable based on offence type

not predictive of recidivism

• having mental health diagnosis alone not a risk factor

treatment for offenders with mental disorders: goals

when someone has been successfully diverted into mental health treatment (whether in prison or outside), there are specific goals

• symptom reduction

• decreased length of stay in facility

• no need for re-admittance to hospital

• reduce risk of recidivism

treatment for offenders with mental disorders: options

facilities for treatment include:

• psychiatric institutions

• hospitals

• assisted housing units

two key treatment options for psychotic symptoms:

• antipsychotic drugs

• behavioural therapy

overarching goal is reintegration

• community treatment order

• diversion

mental health courts: objectives

four main objectives

• divert accused charged with minor to moderately serious offenses

• facilitate a defendant’s fitness to stand trial evaluation

• ensure treatment for a defendant’s mental disorders

• decrease likelihood of repeat offences

offer a rehabilitative option to deal with criminal behaviour

mental health courts: research

results of canadian survey 2012 - majority reported positive attitudes toward the mental health courts

initial research supports positive impacts

• reduced recidivism and criminogenic needs

mental health courts: Bergkamp et al (2023)

need for cultural competency in competency to stand trial evaluations

linguistic barriers

• inability to find interpreter can cause some potentially risky fixes

• either have to find non-court trained interpreter or sometimes have friend/family member interpret - risk of bias

diagnosis

• certain groups of people may be over diagnosed with certain disorders

• potential fix: structured judgement interview, but there are some issues

the balance between colour-blindness and cultural competency