Chapter 18 - legal issues

Charter of Rights and Freedoms

• Includes provisions that allow for people to be removed from society if they act in a way that infringes on the rights of others

• The rights of mentally ill people are covered under provisions for the rights of disabled people

Criminal commitment

• procedure that may confine a person in a mental institution

• Used for determination of competency to stand trial or after a verdict of Not Criminally Responsible because of Mental Disorder (NCRMD)

• Much of Canadian law has derived from English common law

  • Exception is Quebec:

  • Napoleonic law incorporated into civil statutes

• Criminal law is a matter of federal statute

  • Same in every province

• Health law is provincial and can differ from province to province.

Civil Commitment

• Under provincial law

• Procedure by which mentally ill people who may not have broken a law can be deprived of liberty and incarcerated in a psychiatric hospital

insanity defence

• When the insanity defense was in force, it was used only rarely

• Usually only successful when applied to severely disordered individuals

• People found to be “insane” were typically detained for long periods of time that exceeded a typical sentence for the same crime

M’Naghten rule

• formulated in aftermath of 1843 murder trial in england

• M’Naghten set out to kill british prime minister and killed someone else by mistake

• claimed he was instructed to kill from voice of god

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

changes with Bill C-30

• The phrase “not guilty by reason of insanity” (NGRI) was altered to “not criminally responsible on account of mental disorder” (NCRMD).

• • Another change concerned the party to be responsible for the individual found NCRMD.

• As a result of Regina v. Swain (1991) and the subsequent proclamation of Bill C-30, review boards now determine the individual’s fate within 45 days of the verdict and thereafter not less than annually. •

• Review boards must weigh many factors, including the individual’s current mental status and the risk to society posed by the individual. •

  • Can discharge an individual with or without conditions or, alternatively, they can order detention in a hospital setting.

NCRMD—Not Criminally Responsible for their acts on account of Mental Disorde

• NCRMD was previously known as the insanity defense

• Involves the legal argument that a defendant should not be held responsible for an otherwise illegal act IF:

  • The illegal act (actus reus) is attributable to mental illness that interferes with rationality or that results in some other excusing circumstance, such as not knowing right from wrong (mens rea)

• Actus reus – the illegal act

• Mens rea – the guilty mind

Neurolaw

• The introduction of neuroscientific data into the legal system

  • Mainly geared to reducing the severity of sentences rather than establishing innocence, at least at present. May use brain scans.

  • The primary argument is that the accused suffers from some form of brain dysfunction and related processing deficits, and, as such, he or she really couldn’t help himself or herself

Fitness to Stand Trial

• NCRMD defense concerns accused person’s mental state at the time of the crime

  • but first questions is person is competent or fit to stand trail

• fit to stand trial - physically and mentally present

• a person can be judged competent to stand trial and NCRMD

Fitness Interview Test-Revised

• Does the person understand the nature and purpose of legal proceedings?

• Does the person understand the possible or likely consequences of proceedings?

• Is the person capable of communicating with his/her lawyer?

In Canada, a person can be committed to a psychiatric hospital against their will if a judgment made that person is:

1) mentally ill and

2) a danger to self (including being unable to provide basic needs for self) or

3) a danger to others

There are two categories of commitment - 1. Formal commitment

• Formal or judicial commitment is by order of a court. The person has the right to object.

• In Canada, this procedure is covered by provincial legislation that permits an ex parte hearing before a justice of the peace.

• Generally, this legislation permits a justice of the peace to have an individual held against his or her will for a period of time (e.g., up to 72 hours in Ontario) for the purposes of assessment only

There are two categories of commitment - 2. informal commitment

• Emergency commitment of mentally ill persons can be accomplished without initially involving the courts.

• Civil commitment affects far more people than criminal commitment.

Community Treatment Orders (CTOs)

• CTOs stipulate that the individual will be released back into the community only if he or she adheres to recommended treatments.

• It is a controversial topic because this condition of release essentially forces people to be treated, regardless of their wishes

• The Canadian Psychiatric Association (2009) confirmed its support for mandatory outpatient treatment

• The association stated that mandatory outpatient treatment in the form of CTOs is especially called for when people suffer from persistent deficits in insight.

• The provinces differ in the specific CTO details.

Risk assessment

• Prediction of Dangerousness

  • Central to civil commitment

  • More contemporary approaches focus on the assessment of risk rather than the prediction of dangerousness

• Is dangerousness easily predicted?

  • Professionals overestimate the incidence of violence when the institutionalized were released.

  • Mental health professionals are poor at making this judgement through clinical means alone.

Actuarial prediction VRAG

• VRAG: Marnie Rice and her colleagues developed the Violence Risk Appraisal Guide for the purposes of actuarial assessments of risk; that is, using statistical models to predict the likelihood of violence

• Involves the use of statistical formulae composed of factors that are significant predictors of dangerousness.

• The factors are weighted statistically by their importance, based on the outcomes of previous studies.

Structured Clinical Judgment

• Structured forms of clinical judgments instead of unstructured clinical judgments

• The HCR-20 is a more structured assessment device developed in Canada

• “HCR” refers to historical variables, clinical variables, and risk variables.

• Research on whether NCR-MD individuals were re-hospitalized or discharged found that dynamic factors including HCR-20 scores and recent salient behaviours (e.g., substance use or recent violence) played a substantial role in the ultimate decisions and this information seems to be receiving strong weight from review boards

Winko v. British Columbia

• This case established that where there is uncertainty about whether an offender poses a risk, the onus is on the province in question to resolve this uncertainty, and if it cannot be resolved, the former offender must be released

• In other words, unless the provincial review board can find affirmatively and prove that the accused poses a significant threat to public safety, he or she must be discharged absolutely.

Right to Refuse Treatment

• The case of Regina v. Rogers (1991) in British Columbia reiterated that mentally disordered individuals have the right to refuse treatment, even if they were civilly committed against their personal wishes.

• Some provinces maintain the patient’s right to refuse treatment (e.g., Nova Scotia, Quebec, Ontario, and Manitoba)

• Some have provisions that allow for treatment without the individual’s consent (e.g., Prince Edward Island, Newfoundland and Labrador, New Brunswick, and British Columbia).

• In Alberta mental health officials have the opportunity to apply to a review panel in order to override the patient’s right to refuse treatment

Deinstitutionalization, civil liberties, and mental health

• Many mentally ill people, including those with with substance abuse issues are becoming incarcerated

• Many patients discharged from mental hospitals are eligible for social benefits, but a large number do not receive this assistance.

Codes of Ethics for conducting research

medical research is governed by four documents

• the Nuremberg code

• the declaration of Helsinki

• the medical research counsil of canada document guidelines on research involving human subjects

• the tri-council policy statement: ethical conduct for research involving humans. 3 core principles:

  • the respect for persons

  • concern for welfare

  • justice

Potential Threats To Current Ethical Standards

1. increase in research by for-profit organizations

• some companies may push for research that would not be approved by human subject committees in non-profit organizations such as universities

2. Internationalization of research

• Developing countries are particularly eager for partnerships in research and do not always have the same historical commitment to individual informed consent and safety that is prevalent in more industrialized democratic countries

Ethics in Therapy and Research

• Informed consent

• Ability to end participation at any time

• Confidentiality

  • nothing will be revealed to a third party, except to other professionals and those intimately involved in the treatment

Privileged Communication

• Communication between parties in a confidential relationship that is protected by law in Canada

• Husband and wife (legally married, events and communication that took place during the marriage and not before or after the marriage)

• Lawyer-client with some exception

Limits to a client’s right of privileged communication

• Child abuse, so long as the person is not over the age of 18 when the information is disclosed.

• Another mental health professional or medical doctor has engaged in sexual activities with a patient/client.

• Duty to warn and protect potential and current victims

Tarasoff – Duty to warn and to protect

• Clients have right to privileged communication (what the person says in therapy is confidential)

• This right is not absolute – certain conditions when confidentiality should not be kept is when harm might befall to others

• Tarasoff v. Regents of the University of California, 1974 described circumstances in which a therapist not only may but must breach the sanctity of a client’s communication.

Zachary mom

• Zachary Antidormi was stabbed to death by a neighbour, Lucia Piovesan

• his mom wasnt for harsh punishment for NCMR