Chapter 8: The Role of Mental Illness in Court Flashcards
what elements are necessary for criminal guilt?
actus reus & mens rea
actus reus
a wrongful deed
mens rea
criminal intent
unfit to stand trial
refers to an inability to conduct a defence at any stage of the proceedings on account of a person’s mental disorder
R. v. Balliram (2003)
concluded that an unfit person could not be sentenced
Once a person is found not criminally responsible, they are diverted to a provincial or territorial review board composed of approximately 5 members, usually chaired by a judge, and containing at least one member who is entitled under the law of the specific province to practice psychiatry
R. v. Pritchard (1836)
is considered the key case for the fitness standard
Three criteria delineated in the Prichard case
- Whether the defendant is mute of malice (intentionality)
- Whether the defendant can plead to the indictment
- Whether the defendant has sufficient cognitive capacity to understand the trial proceedings
Bill C-30 (1992)
stated a fitness standard: “A defendant is unfit to stand trial if they are unable on account of mental disorder to conduct a defence at any stage of the proceedings before a verdict is rendered 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 of the proceedings, or c) communicate with counsel.
R. v. Taylor (1992)
the Ontario Court of Appeal decided that applying the “best interest” rule was too strict a criterion. They ruled instead that the defendant need only be able to state the facts relating to the offence that would allow an appropriate defence
court-ordered assessments controvery
Concerns have been raised about creating limits for Bill C-30’s court-ordered assessments, but it has not been amended
when can issues of fitness be raised?
- Issues of fitness can be raised at various points from arrest to sentence determination
- Ex. when a plea is entered when a defendant chooses not to be represented by counsel, and during sentencing
criteria for determining fitness to stand trial
A defendant is assumed to be fit to stand trial unless the court is satisfied on the balance of probabilities that they are unfit
who can raise the issue of a defendant’s fitness?
The Crown or the defence may raise the issue of a defendant’s fitness
frequency of fitness evaluations in Canada
Approximately 5,000 fitness evaluations are conducted annually in Canada
who can perform assessments of fitness in Canada?
- In Canada, medical practitioners or any other professional who has been designated by the attorney general as qualified to conduct an assessment is allowed to conduct court-ordered assessments of fitness to stand trial and criminal responsibility
- Psychologists can assist with court-ordered assessments in various ways
Zapf & Roech, 1998 screening instruments study
compared fitness decisions that were made by using a screening instrument with decisions that were made following a defendant’s stay in a psychiatric facility. They found that the two sets of decisions were consistent with each other, and thus, long stays in mental facilities were unnecessary for most of the fitness decisions
Fitness Interview Revised (FIT-R)
a semi-structured interview designed to determine if a defendant meets the fitness criteria outlined in the Canadian Criminal Code. Each response is rated on a 3-point scale, ranging from 0 (no/little impairment) to 2 (serious impairment)
3 main psychological abilities assessed by FIT-R
- Understanding nature or object of the proceedings
- Understanding the possible consequences of the proceedings
- Communicate with counsel
3 stages of assessing FIT-R results
- Determining the existence of a mental disorder
- Determining the defendant’s capacity regarding each of the three psychological abilities
- Examining previous information
MacArthur Competence Assessment Tool - Criminal Adjudication (MacCAT-CA)
a structured interview containing 22 items that assess competencies in 3 areas
3 areas of competency assessed by MacCAT-CA
- Factual understanding of the legal system and the adjudication process
- Reasoning ability
- Understanding of one’s own legal situation and circumstances
interpreting MacCAT-CA scores
MacCAT-CA is assessed with a score of 0-2 based on the scoring criteria. Score ranges are provided for 3 levels of impairment: none to minimal, mild, or clinically significant
major differences between fit and unfit defendants
- A greater proportion of incompetent defendants were diagnosed with a psychotic disorder compared with those who were competent
- Both unemployed and unmarried defendants were more likely to be found incompetent compared with those who were employed and married
- Competent defendants were more likely to have a current violent criminal charge as opposed to a nonviolent charge
Demographic differences between fit and unfit defendants
- Unfiit defendants were significantly more likely to have never been married
- Unfit defendants are more likely to be female
- Unfiit defendants are more likely to belong to a minority racial group
- Unfit defendants are more likely to be older
Competency differences between fit and unfit defendants
- Unfit defendants were less likely to maintain employment
- Unfit defendants have a more serious mental illness than competent defendants
- Unfit defendants were more likely to be charged with property and miscellaneous crimes rather than violent crimes
predictive factors for an unfit ruling
- A psychotic disorder
- Being unemployed
- An earlier psychiatric hospitalization
restoring fitness
- Medication is the most common form of treatment
- Sometimes, courts will impose a treatment order to get the defendant fit
what happens after a finding of unfitness?
The proceedings against a defendant who is found unfit are halted until competency is restored
Jackson v. Indiana (1972)
the U.S. Supreme Court stated that a defendant should not be held for more than a reasonable period to determine whether there is a likelihood of the person gaining competency
what happens if a defendant remains unfit?
their case is reviewed on an annual basis by the review board
Prima facie case
- A case in which the Crown prosecutor must prove there is sufficient evidence to bring the case to trial
- Occurs every 2 years until the defendant becomes fit and any time the defendant requests the proceeding
unfit youth defendants
For youth who are found unfit, the court must review the case every year instead of every two years
what happens if the Crown loses a prima facie case?
the defendant is declared not guilty
what happens if unfitness occurs during the proceedings?
they must stop until the defendant becomes fit again
what happens if a defendant becomes fit while in custody and there is reason to believe that they may become unfit if released?
the defendant will be required to remain in the facility until the trial is complete
R. v. Demers (2004)
the Supreme Court of Canada ruled that the inability of the courts or review boards to use an absolute discharge to defendants who are unlikely to become fit and who pose no significant threat to society violated the liberties guaranteed by section 7 of the Charter of Rights and Freedoms
changes following R. v. Demers (2004)
Following R. v. Demers (2004), Bill C-10 was amended, giving a court the authority to stay the proceedings for a defendant who is unlikely to become fit if any of the following are true 1) The accused is unlikely to ever become fit
2) The accused does not pose a significant threat to the safety of the public
3) A stay of proceedings is in the interest of the proper administration of justice
who can absolutely discharge an accused found unfit?
- Only courts have the power to absolutely discharge an accused found unfit
- A review board can recommend to a court that an inquiry be undertaken to determine if a stay of proceedings is in the interests of the proper administration of justice
insanity
impairment of mental or emotional functioning that affects perceptions, beliefs, and motivations at the time of the offence
implication of the insanity plea
Insanity removes the responsibility for performing a particular act
James Hadfield
attempted to assassinate King George lll in 1800. His lawyer successfully argued that he was out of touch with reality due to a brain injury he suffered while fighting against the French, and therefore met the insanity standard of the day
R. v. McNaughton (1843)
McNaughton shot and killed a close associate of the British Prime Minister, but was found not guilty because of his mental state
3 critical elements that emerged from the McNaughton verdict
- A defendant must be found to be suffering from a defect of reason/disease of the mind
- A defendant must not know the nature and quality of the act they are performing
- A defendant must know that what they were doing is wrong
R. v. Swain (1991)
the Supreme Court of Canada determined that defendants who were found not guilty because of insanity could not be automatically detained until their level of dangerousness was decided or an appropriate disposition was determined
1992 amendments to Bill C-30
- The term not guilty because of insanity was changed to not criminally responsible on account of mental disorder (NCRMD)
- The wording of the standard was altered and stated in section 16 of the Criminal Code “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 know- ing that it was wrong.”
- Review boards were created
review boards
legal bodies mandated to oversee the care and disposition of defendants found unfit or not criminally responsible on account of a mental disorder
Winko v. British Columbia
the Supreme Court of Canada stated that a defendant who is NCRMD should be detained only if they pose a criminal threat to the public; otherwise, they should be discharged
insanity defence statistics
- Less than 1% of defendants use the insanity defence
- Approximately 25% of defendants who use the insanity defence succeed
when do insanity defences occur?
typically when opposing sides agree to such a verdict
predictive factors for NCRMD defences
NCRMD defendants are likely to have major psychiatric disorders and past mental health problems that resulted in hospitalization
male vs. female NCRMD defendants
Male and female NCRMD defendants were found to have similar past violent offences and were just as likely to be aggressive toward other patients
who usually raises the insanity defence in Canada?
the defence
Two situations where the Crown may raise the issue of insanity
- Following a guilty verdict, the Crown could argue that the defendant was NCRMD. This situation may occur if the Crown believes that the defendant requires psychiatric treatment and that a mental facility is best suited for their needs
- The defence states that the defendant has a mental illness, the Crown can then argue it
standard of proof for the insanity defence
The party that raises the issue of insanity must prove it beyond a balance of probabilities
assessing insanity
requires a psychiatric assessment
The Rogers Criminal Responsibility Assessment Scale (R-CRAS)
the only standardized assessment scale for criminal responsibility
5 scales on the R-CRAS
- Patient reliability
- Organicity
- Psychopathology
- Cognitive control
- Behavioural control
interpreting R-CRAS scores
Items are scored from 0-6, where higher values represent greater severity
what happens when a defendant is found NCRMD?
- absolute discharge
- conditional discharge
- the defendant is sent to a psychiatric hospital
absolute discharge
- The defendant is released into the community without restrictions to their behaviour
- Occurs when the defendant is not a threat to society or poses a low risk of reoffending
conditional discharge
a defendant is released, but their release carries certain conditions that the defendant must meet. Failure to meet the conditions imposed with a conditional discharge may result in the defendant being incarcerated or sent to a psychiatric facility
does the defendant have to comply with psychiatric treatment?
- The defendant need not comply with the treatment
- Only when their mental health has deteriorated to the point where they are no longer competent to make treatment decisions can the treatment be forced
how often are dispositions reviewed?
Review boards review the defendant’s disposition every year and take into account various information
capping
- A notion introduced through Bill C-30, where there is a maximum period a person with a mental illness could be affected by their disposition
- Once the cap is reached, the defendant can be released without restrictions, unless they are perceived to be dangerous or were a violent offender
Four main criteria used when deciding a disposition
- Public safety
- Mental state of the defendant
- Reintegtaion of the defendant into society
- Other needs of the defendant
Crocker et al., 2011 review board decisions study
examined factors related to review board decisions on whether to detain or release individuals found NCRMD. They found that dynamic (changeable) risk factors rather than static factors were related to the decisions to detain or release the individual
Bill C-54 (2013)
- A proposed bill to prevent conditional or absolute discharge for high-risk NCRMD offenders
- Did not receive royal assent
mental illness in offender populations stats
- 92% of Edmonton defendants have a lifetime prevalence of psychiatric disorders
- 73% of male offenders recently admitted to a correctional facility in Canada were diagnosed with at least one mental health disorder
- Drug dependencies were the most prevalent, followed by antisocial personality disorder, and anxiety disorders
- Female and Indigenous offenders are more likely to present with two or more severe symptoms of a mental disorder
- Offenders with mental illness are likely to have more than one mental health issue
possible explanations for high rates of mental illness in offender populations
- Individuals with mental illness are likely to be arrested at a disproportionately higher rate compared with those who do not have a mental illness.
- Individuals with mental illness are less adept at committing crime and therefore more likely to get caught.
- Individuals with mental illness are more likely to plead guilty, possibly because of an inability to access good representation or to understand the consequences of their plea.
- Individuals with mental health issues are likely to be detected and arrested for nuisance offences such as trespassing and disorderly conduct and are more likely to be remanded into custody for these minor offences.
2 routes for police handling mentally ill offenders
- Mental health system
- Criminal justice system
what route do police ususally take when handling mentally ill offenders?
Individuals with mental disorders are more likely to be incarcerated as a result of deinstitutionalization and strict hospital admittance criteria
Porporino & Motiuk, 1995 bias against offenders with mental illness study method
compared 36 male offenders meeting the criteria for a mental disorder with 36 male defendants not meeting these criteria
Porporino & Motiuk, 1995 bias against offenders with mental illness study findings
- A similar proportion of offenders from both groups received conditional releases
- Offenders with mental disorders were more likely to be conditionally released as a result of mandatory supervision, whereas offenders who did not have a mental disorder were more likely to be conditionally released because of parole
- Offenders with mental disorders were more likely to have their release suspended compared with other offenders
Baillargeon et al., 2009 parole and mental disorders study
examined the relationship between parole revocations and mental disorders. They found that those with a psychiatric disorder were less likely to violate their parole and commit a new offence than those who had a combination of a major psychiatric disorder and a substance-use disorder
Balyakina et al., 2014 mental health disroders and recidivism study
found that offenders diagnosed with both substance use and mental health disorders were more likely to have higher rates of recidivism and violent behaviour compared to those classified as only having a substance-use disorder, a mental health disorder, or no disorder
Bland & Orn, 1986 mental illness and violence study
found that 55% of people with a psychiatric diagnosis committed violent acts compared to 16% who did not. 80-93% of people with two psychiatric diagnoses committed violent acts
Fazel et al., 2014 schizophrenia and adverse health outcomes study
examined the relationship between schizophrenia and adverse health outcomes. They found that drug-use disorders and previous criminality prior to diagnosis were among the three risk factors predictive of adverse outcomes, but these same factors raise the risk of adverse outcomes in the general population as well
are people with mental illness violent?
- While psychiatric diagnoses may influence the likelihood of committing a violent offence, prior violence and substance abuse also affect the likelihood of future violence
- Overall, the notion that people with mental illness are violent may not be a completely accurate view
types of offences committed by people with mental illness
- NCRMD defendants were more likely to have committed murder or attempted murder
- Offenders were mental disorders committed a variety of crimes and were not distinguishable from other offenders solely based on offence type
Charette et al., 2005 recidivism and NCRMD defendants
examined recidivism rates among NCRMD defendants. They found that recidivism, rates were lower than that of the general population of offenders
Bonta et al., 2014 mental illness and recividism rates study
examined the recidivism rates of more than 23,000 offenders and found that having a mental disorder was not predictive of recidivism
what are the strongest predictors of recidivism?
- the number of previous offences
- age on admission
- the number of days hospitalized
Castillo & Alaraid, 2011 alcohol use disorder and recidivism study
found that offenders with an alcohol problem were more likely to recidivate earlier and be rearrested for a violent offence than those without an alcohol problem
Treatment options for those with active psychotic symptoms
antipsychotic drugs & behavioural therpay
antipsychotic drugs
help control psychotic symptoms
behaviour therapy
provides positive social and material rewards for appropriate behaviour, while decreasing or eliminating attention for symptomatic behaviour
Morgan et al., 2012 treating offenders with mental illness study
- Found that intervening with offenders with mental illness reduced the offender’s distress and improved their ability to deal with their problems, in turn improving behavioural outcomes
- Interventions geared to meet the psychological and behavioural issues significantly reduced mental illness and recidivism
The overarching goal of treatment
reintegrate the offender into society
Community treatment order
a sentence that allows an offender with mental illness to live in the community, with the stipulation that they agree to treatment or detention if their condition deteriorates
diversion
a decision not to prosecute but rather have an offender undergo an educational or community service program. Also an option for the courts dealing with offenders with mental illness who are facing minor charges. The court can divert the offender directly into a treatment program rather than have them go through the court process
objectives of mental health courts
- To divert accused who have been charged with minor to moderately serious criminal offences and offer them an alternative
- To facilitate evaluation of a defendant’s fitness to stand trial
- To ensure treatment for a defendant’s mental disorders
- To decrease the cycle that offenders with mental disorders experience by becoming repeat offenders
where are mental health courts found?
in many communities across Canada
Canadians’ attitudes towards mental health courts
The majority of Canadians from the general public and professional groups report positive attitudes toward mental health courts
Predictive factors of support for mental health courts
- Being older
- Having prior exposure to mental health coursework
- Displaying psychological openness
- Having positive help-seeking attitudes
- Having positive attitudes toward mental illness generally
- Educating people about the effectiveness of mental health courts increased positive perceptions of the courts
offenders’ attitudes towards mental health courts
Offenders who have gone through the mental health system report more satisfaction with the process and perceptions of higher levels of fairness, lower levels of coercion, and increased confidence in the administration of justice
Sarteschi et al., 2011 effectiveness of mental health courts study
conducted a meta-analysis on the effectiveness of mental health courts and found a medium effect size for improving mental health outcomes, such as increasing access to mental health services, reducing recidivism, and decreasing the length of incarceration
Campell et al., 2015 recidivism and criminogenic needs in mental health courts study
examined the impact of mental health courts on mental health recovery, criminogenic needs, and recidivism in 196 offenders. Compared to offenders who did not start or complete the treatment program as mandated by the health court, those who completed the program had a reduction in both recidivism risk and criminogenic needs.
gender differences in mental health disorders
- Women have higher rates of mood personality disorders
- Men have higher rates of psychotic disorders
Ennis et al., 2016 gender difference and mental illness findings
- Being admitted to a mental health court was higher for offenders with a psychotic disorder, but mood disorders also raised the likelihood of admittance.
- Men admitted to a mental health court committed more violent offences than women.
- Women were more likely to be admitted as their number of violent crimes increased, but the admission for men remained stable regardless of the number of violent offences committed
