lecture 12+appendix Flashcards
all canadian law must conform to the _______
constitution of canada
what are the 4 sources of canadian law
constitution
common law
civil law
statute law
2 ways ppl end up in mental health care facilities
voluntarily: you have legal right to make decisions respecting your own health care
involuntarily: can be detained against your will
state the names of the 2 main types of involuntary commitment governed by different statutes
criminal commitment
civil commitment
criminal commitment + the two forms
from the criminal code
- involuntarily detained for assessment of fitness to stand trial (FST) bc they have been accused of a crime
- found not criminally responsible for a crime on account of mental disorder (NCRMD)
civil commitment
provincial and territorial mental health acts
have not been accused of a crime (or NCRMD) but are involuntarily detained bc they meet 3 criteria:
- person is “dangerous”** to himself or others
- person has “mental disorder”**
- person is in need of treatment
** note that the legal definitions of each criteria may vary across jurisdictions
are legal definitions of “mental illness” synonymous with psychological disorder?
NO, legal definitions are much more ambiguous, allowing for more flexibility in decision making
what increases the risk of someone being viewed as “dangerous” under civil commitment?
psychosis, severe mania, etc
what is another institution where people can be committed besides psychiatric institutions?
compulsory community treatments (CCT)
prevent relapse and provide care in less restrictive environment
not permitted unless there has alrdy been previous inpatient treatment
explain the 2 trends that influence how many ppl in Canada are involuntarily committed each year
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.
what are laws for
govern, regulate and control human behaviour
it wants order in our society
what is the ultimate source of canadian law
constitution of canada
examples of what the constitution of canada outlines
powers of / what falls under each jurisdiction (federal vs provincial)
tiered court system
the charter
whats the order of tiered court system
lower , superior , court of appeal, supreme court
where are violations of the constitution of canada heard?
supreme court
when a court case comes to a final decision, where is this decision implimented?
common law, as these cases provide legal precedent
what province is civil law used in
quebec
what is civil law based on?
a set of principles. so it checks if the case has x criteria
statute law
when parliament passes a law
give an example of federal statute law and a statute law that varies among provinces
federal: criminal code of canada
provincial: mental health acts
explain the balancing act of legal and mental health systems
one side of us wants to protect people who display psychopathological behaviour, but the other wants to protect society
what rights do we have?
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
what issue did “right to refuse treatment” bring about?
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
2 types of authority government has that allows them to take actions against a citizens will
- police power (they r responsible to protect pubic health/safety so they can make laws to ensure this protection.)
- 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)
form 1/2 - civil commitment
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.
form 3 - civil commitment
allows involuntary admission for longer period of time
ex; ontario = 2 weeks
form 4 - civil commitment
allows extension of involuntary admission for a longer period of time
ex; ontario = 3 months
transinstitutionalization
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.
unfit to stand trial means…
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
if someone is unfit to stand trial, court usually orders …
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
stay of proceedings
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
stay of proceedings
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
absolute discharge
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.
prosecuting crown must prove the presence of what criminal elements? what standard do they have to reach to prove them?
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
current views of “insanity as a defense” is based on what?
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
M’Naghten rule
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.
the 1995 criminal code regarding insanity
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.
what did they determine through Regina v. Swain in 1991?
that being in detention for an indeterminate time regarding insanity is unconstitutional (aka the 1995 criminal code insanity defense was poopoo)
what bill was introduced in 1992 to change the insanity defense? what exactly did it change?
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)
how does the change from NGRI to NCRMD impact elements of the criminal act like Mens rea and Actus reus?
- bc of mental disorder, could not establish mens rea
- bc of the disorder, could not establish actus reus (it was involuntary bc they had no control)
- 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)
why are NCRMD defenses controversial + negatively perceived by public?
- 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
ethical + legal considerations of research
- do no harm
- minimize harm to participants
- research must be reviewed by institutional review board - voluntary participation
- participants should only participate by free choice
- should b free to leave at any time - informed consent
- before study starts, ppl should b given complete info about study so they can make an informed decision regarding their participation - rights, all participants have rights to:
- privacy
- confidentiality
- anonymity
ethical + legal considerations of treatment
- 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 - 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 - do no harm (ethical and legal)
- minimize client harm
- broad duty (record keeping, prohibits sexual intimacy, etc) - recognize limits of competence (ethical and legal)
- must practice within limits of their competence - 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)
limits of confidentiality in treatment
clinician must report if client is causing harm to a child or themselves or others
if clinician believes that a client poses danger to themselves or others, what can they do?
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)
Discuss the “Duty to Warn” case (related to limits of confidentiality) .. very long card sorry!!!!!!!!!!!!!!!
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
is there legal duty to warn in canada?
no, only the USA
describe the Smith v. Jones case
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?
is there an ETHICAL duty to warn in Canada? explain.
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.
