Chapter 18: Ethical and Legal Issues
Criminal Commitment
Criminal commitment = confinement in a psychiatric hospital under federal criminal law.
Can occur in 2 situations:
To determine competency to stand trial.
After a verdict of Not Criminally Responsible on account of Mental Disorder (NCRMD).
Insanity Defence
Formerly called “not guilty by reason of insanity (NGRI).”
Now NCRMD in Canada.
Means a defendant is not held legally responsible if mental illness impaired rationality, awareness, or voluntary control (e.g., not knowing right from wrong).
Rare and usually only successful in severe mental illness cases.
People found NCRMD are usually detained for long periods, sometimes longer than a prison sentence.
Section 16 of the Criminal Code & NCRMD
“Disease of the mind” = legal term for mental disorder.
Conditions: At the time of the crime, the person must either:
Not know the nature and quality of the act, OR
Not know it was wrong.
After R. v. Swain (1991) & Bill C-30 (1992):
Authority transferred from lieutenant governors to provincial review boards.
Boards decide within 45 days and annually after.
They can discharge, conditionally discharge, or detain.
Transfer to Mental Health Facility
Mentally disturbed individuals charged with a crime can be transferred if they’re unfit to stand trial or found NCRMD.
Ex: R. v. Conception (2014) – courts must not delay treatment for people deemed unfit.
Civil Commitment
Provincial law (not criminal).
Involuntary admission if a person is:
Mentally ill, AND
Dangerous to self (including inability to meet basic needs), OR
Dangerous to others.
Formal commitment = via a justice of the peace (initial ~72 hours).
Informal/emergency commitment = hospital board detains temporarily.
More people are affected by civil commitment than criminal.
Recent Legal Developments
Greater protection for patients:
Right to treatment (state must provide care if liberty removed).
Right to refuse treatment (varies by province).
Ex: Regina v. Rogers (1991) upheld refusal rights; Starson v. Swayze (2003) added nuance with “prior capable wishes.”
Care must be in the least restrictive setting (community when possible).
Community Treatment Orders (CTOs): outpatient treatment conditions for release.
Research Protections
Codes of ethics:
Nuremberg Code, Declaration of Helsinki, MRC Guidelines (1987), Tri-Council Policy Statement (1997).
Principles: informed consent, right to withdraw, protect against harm.
Prediction of Dangerousness
Old term = “dangerousness prediction,” now risk assessment.
Clinicians are often poor at predicting violence.
Actuarial models like the VRAG (Violence Risk Appraisal Guide) use statistical predictors.
HCR-20 = structured clinical judgment tool developed in Canada (historical, clinical, risk factors).
Winko v. BC (1999): if risk is uncertain, must release the individual.
Confidentiality & Privilege
Confidentiality = therapist won’t share without permission.
Privileged communication = legally protected (e.g., lawyer-client, physician-patient, psychologist-patient).
Limits: Tarasoff v. Regents (1974) established the duty to warn and protect if there is risk of harm.
Right to Treatment vs. Right to Refuse
Right to treatment = if committed, the state must provide care (O’Connor v. Donaldson, 1975).
Right to refuse = varies by province; some allow treatment without consent, others require consent or substitute decision-maker.
Ethical Dilemmas in Therapy
Who is the client (e.g., in family/court-mandated therapy)?
What are the goals of treatment? (relapse prevention, public safety, individual welfare).
Which techniques should be used? (balancing evidence-based care with patient wishes).
Competence of treatment providers also matters.
DEFINITIONS
Term | High-Yield Definition (Crammable) |
|---|---|
Actuarial prediction | Statistical prediction of dangerousness/risk using weighted factors. More objective than clinical judgment. |
Civil commitment | Involuntary hospitalization of someone deemed mentally ill + dangerous, even if no crime committed. |
Community commitment | Involuntary treatment while living in the community (via Community Treatment Orders). |
Community treatment orders (CTOs) | Legal conditions for release into community; non-adherence can lead to rehospitalization. Aim = protect patient. |
Confidentiality | Ethical duty of professionals (psychologists, doctors, etc.) to keep client information private. |
Criminal commitment | Confinement to psychiatric hospital when: (1) unfit to stand trial, or (2) found NCRMD (insanity defence). |
Informed consent | Person agrees to treatment/research after being told possible risks + benefits. |
Insanity defence | Legal argument that mental illness prevented knowledge of nature/wrongness of act → not legally responsible. |
M’Naghten Rules | Historic test: person didn’t know what they were doing OR that it was wrong. Basis for insanity defence. |
Neurolaw | Using neuroscience (e.g., brain scans) to inform legal decisions about responsibility or risk. |
Not criminally responsible (NCR) | Canadian term: illegal act occurred but mental disorder removes legal responsibility. Replaces “NGRI.” |
Prior capable wish | Treatment wishes made earlier when the person was of sound mind; can guide care later if incapacitated. |
Privileged communication | Legal protection of confidential therapist-client (or lawyer, doctor, spouse, clergy) communication from disclosure. |
PEOPLE + NAMES + CULTURAL THINGS
Topic | High-Yield Cram Notes |
|---|---|
Workplace Stigma & Discrimination | Mental illness → highest discrimination of all disabilities. Stigma = proximal (stereotypes, prejudice) + distal (systemic disadvantage, weak policies). |
Crimes & Mental Illness Cases | Lucia Piovesan (1997): paranoid schizophrenia, untreated → stabbed neighbour’s child → NCRMD. |
Key Canadian Legal Cases | Rex v. Hadfield (1800): mentally ill → institutionalization, not prison. |
Louis Riel Case | Executed for treason (1885). Lawyers wanted insanity defence, but Riel opposed. Showed megalomania (believed he was prophet, “Riel Phenomenon”). Debate continues: was he NCRMD or unfit to stand trial? |
Marnie Rice & Actuarial Risk | Canadian researcher, co-developed Violence Risk Appraisal Guide (VRAG). Best predictors: Psychopathy Checklist score (PCL-R) + elementary school maladjustment. |
Tarasoff Case (1974, USA) | Duty to warn + protect identifiable victims outweighs confidentiality. Therapists must act if danger suspected. |
Canadian Duty to Warn Cases | Wenden v. Trikha (1993): no liability because no specific victim identified; duty applies if identifiable victims exist. |
Topic | High-Yield Cram Notes |
|---|---|
Scott Starson Case (Right to Refuse Treatment) | Schizoaffective disorder; brilliant but delusional (believed he worked with Pope John Paul II, planned to marry Joan Rivers, etc.). ⚖ Starson v. Swayze (2003): Supreme Court of Canada upheld his right to refuse treatment (6–3 decision) if legally capable, even if refusal seems harmful. Ontario CCB originally ruled he must be treated, but courts overturned → legal rights > best interests. 🌟 Shows capacity = key, not diagnosis. Later relapsed, nearly died refusing food/water; eventually rehospitalized. |
Implications of Starson Case | Patients can refuse meds if deemed capable. If incapacitated (on balance of probabilities) → treatment can be forced. Criticized as inhumane by some (his mother: “destroyed his life and dream”). Highlights ongoing tension between autonomy vs. protection. |
Solutions for Mentally Ill in Canada (1998–2008 reports) | 📰 Toronto Star Madness (Boyle & Vincent, 1998), Out of Mind (Simmie, 1998), Globe & Mail Breakdown (Picard, 2008). Common recommendations: |
Picard’s 12-Step Plan (2008) | 1. National mental health plan 🇨🇦 |
FLASHCARD VERSIONS OF THAT ^^
⚖ Major Canadian Legal Cases
Q: What did Rex v. Hadfield (1800) change?
A: Mentally ill offenders institutionalized instead of prison.
Q: What standard came from Regina v. M’Naghten (1843)?
A: Insanity defence test: did not know act OR did not know it was wrong.
Q: What did Regina v. Chaulk (1990) add to “wrong”?
A: Wrong = morally AND legally wrong.
Q: What was the outcome of Regina v. Swain (1991)?
A: Created Bill C-30 → provincial review boards, changed “NGRI” → NCRMD.
Q: What was the ruling in Regina v. Oommen (1994)?
A: Accused must know wrong AND be able to apply knowledge at the time.
Q: What was established in Winko v. BC (1999)?
A: If no significant threat → must be discharged absolutely.
Q: What did R. v. Conception (2014) decide?
A: Courts can’t delay/refuse treatment for unfit accused.
🧑🤝🧑 Notable Cases
Q: Why is Louis Riel (1885) debated in mental health law?
A: Showed megalomania (“Riel Phenomenon”), may have been NCRMD/unfit, but executed for treason.
Q: What happened in the Vincent Li (2008 Greyhound bus case)?
A: Schizophrenia psychosis, killed passenger, found NCRMD.
🔬 Marnie Rice & Risk Assessment
Q: What did Marnie Rice contribute?
A: Developed VRAG (Violence Risk Appraisal Guide).
Q: What are the best VRAG predictors of violent recidivism?
A: High PCL-R (psychopathy score) + elementary school maladjustment.
Q: Does schizophrenia predict violence?
A: No – not a major risk factor.
Q: Who is most likely to reoffend violently?
A: Psychopaths.
🛑 Duty to Warn / Confidentiality
Q: What was the ruling in Tarasoff (1974, USA)?
A: Therapists must warn & protect identifiable victims → public safety > confidentiality.
Q: What did Hedlund v. Superior Court (1983) add?
A: Duty extends to foreseeable victims (e.g., child with mother).
Q: What Canadian case established duty to warn?
A: Wenden v. Trikha (1993): applies if specific identifiable victims exist.
Q: What did Smith v. Jones (1999, Canada) rule?
A: Even solicitor–client privilege can be broken → public safety outweighs confidentiality.
Q: What was unique about Ahmed v. Stefaniu (2006)?
A: First judgment against psychiatrist for failing to warn/protect → patient released, killed sister.
EXTRA
⚖ High-Yield Case Mnemonics
M’Naghten (1843) – “Didn’t Know” Rule
🧠 Mnemonic: “McNotsure” → If the mind didn’t know what it was doing OR that it was wrong.
👉 Start of modern insanity defence.
Chaulk (1990) – Morally Wrong
⚖ Mnemonic: “Chaulk it up to morals” → Wrong means morally AND legally wrong.
Swain (1991) – NCRMD + Review Boards
🏛 Mnemonic: “Swain → Switch” → Switched “Not guilty by reason of insanity” → NCRMD & created review boards. (Bill C30)
Oommen (1994) – Must Apply Knowledge
👀 Mnemonic: “Oommen = Oops, can’t use it” → Must not only know what’s wrong but be able to apply that knowledge.
Winko (1999) – Absolute Discharge if No Risk
🔓 Mnemonic: “Winko = Window open” → If no significant risk, window opens → absolute discharge.
Conception (2014) – Must Treat Immediately
💊 Mnemonic: “Conception = Can’t delay care” → Courts must not delay or refuse treatment → fit for trial.
🛑 Duty to Warn / Confidentiality
Tarasoff (1974, US) – Duty to Warn & Protect
☎ Mnemonic: “TarasOFF → Tip OFF” → Must warn identifiable victims if client is dangerous.
Wenden v. Trikha (1993, Canada) – Duty in Canada
🚗 Mnemonic: “Wenden = Who’s in danger?” → Duty applies if specific victims identifiable.
Smith v. Jones (1999, Canada) – Public Safety > Privilege
🔐 Mnemonic: “Smith spilled the secret” → Even solicitor–client privilege can be broken if public safety is at risk. (FREQUENCY OF REFERRALS DECREASE)
Ahmed v. Stefaniu (2006, Canada) – Psychiatrist Liable
⚠ Mnemonic: “Stefaniu = Set Free, Sister Stabbed” → Released patient too early → first Canadian ruling against psychiatrist for failure to protect.
🧠 Schizoaffective disorder, very intelligent physicist-like guy → refused meds, argued it would “slow his brain.”
⚖ Supreme Court ruled he had the right to refuse treatment if legally capable (decision capacity, not best medical interest).
📌 Famous because it showed Canadian law prioritizing autonomy over forced treatment.
Starson reached for the stars and kept his say — Right to Refuse treatment