Chapter 19: Mental Disorders and the Law

Question 1

What does Canadian law assume about the individual?

Answer 1

• people can and do think and act in a deliberate and reasoned manner
• recognizes that in some cases mental disorder may cause cognitive or volitional impairment

Question 2

How is mental disorder defined by the law?

Answer 2

• impairment of psychological functioning that is internal, stable, and involuntary, rather than situational or contextual
• much narrower definition than recognized by mental health professionals and the DSM-V

Question 3

What are statutes?

Answer 3

• codes of law adopted by a government and supported by a monarch
• govern almost every aspects of daily life

Question 4

Which types of statutes do mental disorders play a role in?

Answer 4

• civil mental health law
  → varies across provinces and territories
• criminal law
  → does not vary

Question 5

What criteria is required for involuntary hospitalization?

Answer 5

– People must suffer from a severe and treatable mental disorder

– People must be either unwilling or incapable of consenting to hospitalization on a voluntary basis

– People must be at risk of causing harm to self or others due to mental disorder

– Usually the process of voluntary commitment starts with emergency or short-term detention, and often ordered by the physician evaluating the patient
→ Release occurs when improvements are observed due to the passage of time or
because of treatment

Question 6

What is a temporary substitute decision maker?

Answer 6

• in provincial mental health law, someone authorized to make treatment decision on behalf of a person who is civilly committed and deemed incapable of making such a decision

Question 7

What is required to appoint someone a temporary substitute decision maker?

Answer 7

1 - appointed decision makers must act in accordance with the best interest’s principle. → make decisions which would best serve the interest of the patient

2 - capable wishes principle
→ the patient’s wishes should be given the greatest weight, especially when these wishes were expressed previously

Question 8

What are compulsory treatment orders?

Answer 8

• involuntary treatment for people

who are not hospitalized

Question 9

Who is involuntarily hospitalized?

Answer 9

• 15 to 20% of all hospitalizations for mental disorder in Canada are involuntary
• 14% request a review

Question 10

How can violence risk be evaluated?

Answer 10

• discretionary approach
  → more informal or intuitive
  → uses clinical judgment
• non-discretionary approach
  → actuarial
  → uses strict rules of assessment producing probability estimates of committing violence

Question 11

What is actus reus?

Answer 11

• prohibited physical act that, combined with mens rea, defines a criminal offence

Question 12

What is mens rea?

Answer 12

• guilty mind or bad intent that, combined with actus reus, defines a criminal offence

Question 13

What is NCRMD?

Answer 13

• not criminally responsible on account of mental disorder

- not morally culpable for comitting a prohibited act due to mental disorder at the time the act was confirmed

Question 14

What is UST?

Answer 14

• unfit to stand trial
• people who are unable to participate actively and effectively during their trial
  → unable to be present, confront accusers, make full answer to the accustion

Question 15

How are fitness evaluations conducted?

Answer 15

• courts rarely disagree with the opinion of mental health professional regarding the individual’s mental health status
• such opinions are usually based on the severity of the mental disorder
• development of revised Fitness Interview Test (FIT-R) greatly aided competency evaluations

Question 16

Who are referred for fitness evaluation?

Answer 16

• 15% of defendants
  → >50% NCRMD
  → given indefinite commitment to secure hospitals

Question 17

What is the history of the M’Naghten Standard?

Answer 17

• 1843, Daniel M’Naghten was acquitted of murdering Edward Drummond, whom M’Naghten had mistaken for British Prime Minister Robert Peel
• British House of Lords asked a panel of judges a series of hypothetical questions about the defence of insanity
• rules proposed have been a standard test for criminal liability in relation to mentally disordered defendants in common law jurisdictions ever since

Question 18

What is the M’Naughten Standard?

Answer 18

1 - accused must have been suffering from a mental disorder

2 - they must not have known at least one of the two things: the nature and quality of the act and that what they have done was wrong

• “cognitive” test for insanity

Question 19

What happens if the M’Naughten Standard rules are satisfied?

Answer 19

• accused may be adjudged “not guilty by reason of insanity” or “guilty but insane”
• sentence may be a mandatory or discretionary (but usually indeterminate) period of treatment in a secure hospital facility
  → instead of a punitive disposal

Question 20

What is the irresistible impulse exemption?

Answer 20

• volitional aspect of insanity

- e.g., “I knew it was wrong, but God told me to do it!”

Question 21

What is GBMI?

Answer 21

• guilty but mentally ill
• indicates presence of mental illness and mens rea
• is a verdict, unlike NCRMD

Question 22

What are concerns for the psychologist when assessing sanity?

Answer 22

– The other side is likely to have their own experts (outside of states like Michigan)

– In some jurisdictions, the expert witness cannot provide specific opinions on that specific case and can only answer general questions

– Believing that if a behavior is atypical, it must be pathological (e.g., Jeffrey Dahmer)

– Likely to face a stiff and critical cross‐examination

– The length of time since the offense occurred

– Personal Biases

– Limiting themselves to the boundaries of their license

– Malingering

Question 23

What is ultimate issue v. ultimate opinion testimony?

Answer 23

• psychologist cannot say definitely whether the defendant is actually guilty or insane
• must be left up to the court to decide

Question 24

What is malingering?

Answer 24

• individuals who intentionally pretend to have symptoms of mental or physical illness
  → to achieve financial or other gain
  → to avoid criminal conviction or unwanted duty
  → to facilitate escape from captivity or incarceration

Question 25

What is competency?

Answer 25

• person’s ability to understand the court’s
  proceedings, the nature of the charges against them & their ability to assist in their own defense
  → competency needed to stand trial or plead guilty

Question 26

What are some competency screening tests?

Answer 26

• Competency Assessment Instrument

- Georgia Court Competency Test (GCCT)

Question 27

What percentage of Canadian inmates in federal prison are aboriginal?

Answer 27

• 20%

Question 28

What are the proposed causes for the disproportionate number of aboriginal people in Canadian prisons?

Answer 28

• generational effects of colonization and residential schools
• systemic discrimination
• high prevalence of substance abuse
• ongoing trauma

Question 29

What is restorative justice?

Answer 29

• report (the Gladue report) is to be prepared that outlines the aboriginal individual’s unique circumstances
• sentencing takes into account aboriginal views of justice, and encourages the integration and healing of the individual within the community
• 8% lower recidivism rate

Question 30

What is forensic psychology?

Answer 30

• area of specialization in psychology
• focuses on application of research and practice to matters of law
  → criminal or civil courts
  → administrative boards and tribunals

Question 31

What are ethical codes?

Answer 31

• written statements that set out the core values that should guide decision making by members of a profession
• fundamental part of psychology

Question 32

What are the ethical principles?

Answer 32

• Autonomy
– Self-determination (veracity, informed consent, refuse, retract participation)

• Non-maleficence
– ‘do no harm’ (assess and manage risk)

• Beneficence
– ‘do good’ (benefits, risks, burdens)

• Fidelity
– Conflicts of interest

• Justice
– Fair distribution (benefits, risks, costs)

• Right to Privacy, Confidentiality, Anonymity

Question 33

What do psychologists do in the legal system?

Answer 33

• asked to give evidence

- involved in evaluations related to involuntary hospitalization, fitness, or criminal responsibility