lecture 12+appendix

Question 1

all canadian law must conform to the _______

Answer 1

constitution of canada

Question 2

what are the 4 sources of canadian law

Answer 2

constitution
common law
civil law
statute law

Question 3

2 ways ppl end up in mental health care facilities

Answer 3

voluntarily: you have legal right to make decisions respecting your own health care

involuntarily: can be detained against your will

Question 4

state the names of the 2 main types of involuntary commitment governed by different statutes

Answer 4

criminal commitment

civil commitment

Question 5

criminal commitment + the two forms

Answer 5

from the criminal code

1. involuntarily detained for assessment of fitness to stand trial (FST) bc they have been accused of a crime
2. found not criminally responsible for a crime on account of mental disorder (NCRMD)

Question 6

civil commitment

Answer 6

provincial and territorial mental health acts

have not been accused of a crime (or NCRMD) but are involuntarily detained bc they meet 3 criteria:

1. person is “dangerous”** to himself or others
2. person has “mental disorder”**
3. person is in need of treatment

** note that the legal definitions of each criteria may vary across jurisdictions

Question 7

are legal definitions of “mental illness” synonymous with psychological disorder?

Answer 7

NO, legal definitions are much more ambiguous, allowing for more flexibility in decision making

Question 8

what increases the risk of someone being viewed as “dangerous” under civil commitment?

Answer 8

psychosis, severe mania, etc

Question 9

what is another institution where people can be committed besides psychiatric institutions?

Answer 9

compulsory community treatments (CCT)

prevent relapse and provide care in less restrictive environment

not permitted unless there has alrdy been previous inpatient treatment

Question 10

explain the 2 trends that influence how many ppl in Canada are involuntarily committed each year

Answer 10

first trend:
increase in number of ppl who are unhoused (homeless)

second trend:
deinstitutionalization, which involved 2 main goals:
1. downsize/close large provincial and territorial mental hospitals
2. create network of community mental health service in which released ppl can be placed

the second deinstitutionalization goal has not been met. we instead are doing transinstitutionalization.

Question 11

what are laws for

Answer 11

govern, regulate and control human behaviour

it wants order in our society

Question 12

what is the ultimate source of canadian law

Answer 12

constitution of canada

Question 13

examples of what the constitution of canada outlines

Answer 13

powers of / what falls under each jurisdiction (federal vs provincial)

tiered court system

the charter

Question 14

whats the order of tiered court system

Answer 14

lower , superior , court of appeal, supreme court

Question 15

where are violations of the constitution of canada heard?

Answer 15

supreme court

Question 16

when a court case comes to a final decision, where is this decision implimented?

Answer 16

common law, as these cases provide legal precedent

Question 17

what province is civil law used in

Answer 17

quebec

Question 18

what is civil law based on?

Answer 18

a set of principles. so it checks if the case has x criteria

Question 19

statute law

Answer 19

when parliament passes a law

Question 20

give an example of federal statute law and a statute law that varies among provinces

Answer 20

federal: criminal code of canada

provincial: mental health acts

Question 21

explain the balancing act of legal and mental health systems

Answer 21

one side of us wants to protect people who display psychopathological behaviour, but the other wants to protect society

Question 22

what rights do we have?

Answer 22

right to treatment

right to refuse treatment

right to be informed of reasons for hospital detention

right to apply to a review panel that can grant a discharge from hospital

right to legal counsel

Question 23

what issue did “right to refuse treatment” bring about?

Answer 23

if u dont recieve treatment, you may indefinitly be in a psych facility and not be released in society .. but thats unconstitutional! so what should be done??? this relates to that whole balancing act idea

Question 24

2 types of authority government has that allows them to take actions against a citizens will

Answer 24

1. police power (they r responsible to protect pubic health/safety so they can make laws to ensure this protection.)
2. parens patriae aka “state as the parent” (gov can act in situations in which citizens are not likely to act in their own best interest, like in context of psychiatric disorder)

Question 25

form 1/2 - civil commitment

Answer 25

gives gov legal authority to detain you for a SHORT PERIOD in mental health care facility for the purpose of ASSESSMENT

ex; ontario = 72 hours

**form 2 is the same, but the time that they can detain you varies more.

Question 26

form 3 - civil commitment

Answer 26

allows involuntary admission for longer period of time

ex; ontario = 2 weeks

Question 27

form 4 - civil commitment

Answer 27

allows extension of involuntary admission for a longer period of time

ex; ontario = 3 months

Question 28

transinstitutionalization

Answer 28

we have closed down the large mental hospital facilities, but we dont have community places for people. so instead, we put them into other large institutions like prisons or group homes, and in these places they may not get the treatment they need.

Question 29

unfit to stand trial means…

Answer 29

accused is unable on account of mental disorder to:

• understand the nature or object of the proceedings
• understand the possible consequences of the proceedings
• communicate with counsel

if they are unable to do even one of these things they are unfit to stand trial

Question 30

if someone is unfit to stand trial, court usually orders …

Answer 30

involuntary detainment in a psychiatric facility for treatment to restore their competency (medication, psychotherapy, etc)

if competency cant be restored, the review board can order a stay of proceedings or an absolute discharge

Question 31

stay of proceedings

Answer 31

person is free to go, and
criminal charges will not be brought to the court again bc they will never be fit to stand trial for those crimes

Question 32

stay of proceedings

Answer 32

person is free to go, and
criminal charges will not be brought to the court again bc they will never be fit to stand trial for those crimes

Question 33

absolute discharge

Answer 33

free to go, but you can bring the criminal charges back against them at a future date, if its possible that their competency can be resorted in the future.

Question 34

prosecuting crown must prove the presence of what criminal elements? what standard do they have to reach to prove them?

Answer 34

prove them “beyond reasonable doubt”

presence of:
1. mens rea (guilty mind): at the time of the crime they had criminal intent to commit the act
2. actus reus (guilty act): the person engaged in the action that broke the law

Question 35

current views of “insanity as a defense” is based on what?

Answer 35

Daniel M’Naghten

decided he was going to kill the prime minister at the time bc he believed they were persecuting him personally

as a defense they said he had delusions of persecution, he heard voices too

created the M’Naghten rule

Question 36

M’Naghten rule

Answer 36

in order to be found not guilty bc of insanity, you must prove:
1. at the time the crime was committed, there was presence of mental disorder
2. lack of comprehension of nature or wrongfulness of the crime they did.

Question 37

the 1995 criminal code regarding insanity

Answer 37

person not guilty by reason of insanity (NGRI) would be detained in psychiatric hospital until “ the pleasure of the Lieutenant Governor is known”

this meant they would be held in a psych facility for the rest of their lives.

Question 38

what did they determine through Regina v. Swain in 1991?

Answer 38

that being in detention for an indeterminate time regarding insanity is unconstitutional (aka the 1995 criminal code insanity defense was poopoo)

Question 39

what bill was introduced in 1992 to change the insanity defense? what exactly did it change?

Answer 39

bill c-30

insanity was changed to mental disorder

defendant was considered not criminally responsible instead of not guilty

it turned over responsibility of NCRMD people to provincial review board (they review periodically and automatically)

Question 40

how does the change from NGRI to NCRMD impact elements of the criminal act like Mens rea and Actus reus?

Answer 40

1. bc of mental disorder, could not establish mens rea
2. bc of the disorder, could not establish actus reus (it was involuntary bc they had no control)
3. although both mens rea and actus rea have can be proven, mental disorder still provides supervening defense (bc of mental disorder they didnt understand what they did was wrong)

Question 41

why are NCRMD defenses controversial + negatively perceived by public?

Answer 41

1. misconceptions
   - about psychological disorders
   - sensationalized cases lead ppl to think this i common + successful, but in reality these defenses are rarely invoked and rarely successful
   - accused does not “beat the system” or exploit a loop hole, they still have to go through treatment

Question 42

ethical + legal considerations of research

Answer 42

1. do no harm
   - minimize harm to participants
   - research must be reviewed by institutional review board
2. voluntary participation
   - participants should only participate by free choice
   - should b free to leave at any time
3. informed consent
   - before study starts, ppl should b given complete info about study so they can make an informed decision regarding their participation
4. rights, all participants have rights to:
   - privacy
   - confidentiality
   - anonymity

Question 43

ethical + legal considerations of treatment

Answer 43

1. informed consent
   - therapist must help client understand what will happen during therapy, potential outcomes/risk, alt choices, etc
   - after being informed, client can consent or not
   - consent must be voluntary
2. boundaries
   - mental health care professionals must be clear about professional boundaries with their clients to avoid conflicts of interest
   - should avoid dual relationships
   - cant exploit relationship for personal, business or political interests at the expense of client
3. do no harm (ethical and legal)
   - minimize client harm
   - broad duty (record keeping, prohibits sexual intimacy, etc)
4. recognize limits of competence (ethical and legal)
   - must practice within limits of their competence
5. confidentiality (ethical+legal)
   - mental health care pros cant discuss info in therapy to others
   - legally defined: privileged communication (typically controlled by client, but there are limits of confidentiality)

Question 44

limits of confidentiality in treatment

Answer 44

clinician must report if client is causing harm to a child or themselves or others

Question 45

if clinician believes that a client poses danger to themselves or others, what can they do?

Answer 45

emergency commitment
- civil commitment

• ask client if they will voluntary go to a psychiatric facility
• if they refuse, they make an emergency commitment (Form 1)
• if the patient does not show improvement after a while, long term placement (Form 3/4)

Question 46

Discuss the “Duty to Warn” case (related to limits of confidentiality) .. very long card sorry!!!!!!!!!!!!!!!

Answer 46

Prosenjit Poddar came to USA and enrolled in grad school at Uni of California

He kissed Tatiana Tarasoff and believed they were engaged after that. When he told her this, she rejected him.

Poddar became depressed and stalked Tatiana. She left to South America for a trip, and during that time Poddar was fine! But it went back to poopoo after a while.

He talked to campus psychologist, and told them he wanted to kill Tatiana and bought a gun. Psychologist thought he was having a schizophrenic episode and the psychologist asked if he would seek out treatment, which he denied.

Psychologist wrote a letter to police about the issue, they interviewed him and he seemed rational, he said he would stay away from Tatiana.

Later, Tatiana came back to campus from her trip, and Poddar shot and stabbed her.

Tatiana’s parents sued the therapist, campus police and regents of the university for FAILURE TO WARN TATIANA THAT SHE WAS IN DANGER.

The case was initially dismissed because therapist has duty to therapist, not third parties, and this was upheld by appeal courts.

The case went to the supreme course, and they overturned the decisions. This became known as Tarasoff 1:
- therapists have to use reasonable care to give threatened people warnings as are essential to avert foreseeable danger arising from patient’s condition

After complaints from mental health professionals, the supreme court reheard the case and upheld their decision.

Tarasoff 2 was made: Duty to warn a third party if they are in danger

Question 47

is there legal duty to warn in canada?

Answer 47

no, only the USA

Question 48

describe the Smith v. Jones case

Answer 48

Smith was arrested for sexually assaulting sex worker.

Dr. Jones interviewed Smith, who admitted that when he is released he wants to kill as many sex workers as he can

Dr. Jones was not called to give testimony at the trial but he still wanted to tell authority what Smith told him, but obviously Smith’s defense Attorneys didnt want that

Supreme court of Canada did not specify if duty to warn was mandatory. They set out 3 factors to use to decide if they can breech confidentiality with clients:
1. is there clear risk to identifiable person/ group of ppl?
2. is there a risk of serious harm or death?
3. is the danger imminent?

Question 49

is there an ETHICAL duty to warn in Canada? explain.

Answer 49

yes!

Under the Canadian Psychological Association code of ethics, psychologists have an ethical duty to warn third party of impending danger from a client, even when confidential relationship is involved.