Mental Illness Flashcards
How do you establish guilt?
Actus reus:
Wrongful deed
Mens rea:
Criminal intent
Both of these elements and elements of the case must e found beyond a reasonable doubt for a guilty verdict to be reached.
-Requires that defendant understands charge(s) and can participate meaningfully in proceedings.
Issues of insanity, automatism, and mental disorders all call into question these basic 2 elements.
Unift to stand trial
What case stated that an unfit person could not be sentenced?
If Unfit to Stand Trial, defendant unable to conduct a defence at any stage of proceedings on account of mental disorder
Fit to stand trial
What is the precedence for fitness standard?
If fit, individuals charged with crime expected to understand nature of proceedings and assist with defence
R. v. Prichard (1836)
What case stated that an unfit person could not be sentenced?
R v. Balliram:
Fitness must be restored for defendant to be tried and sentenced.
Historically what was the criteria set forth by the R v. Prichard case for fitness to stand trial?
Whether defendant is mute of malice ie. intentionality
Whether defendant can plead
Whether defendant has sufficient cognitive capacity to understand trial proceedings
Legislation of fitness to stand trial
With the enactment of Bill C-30 (1992), Criminal Code (s. 2) states:
Defendant is found to be unfit if he or she is unable, due to a mental disorder, to
understand the nature of the proceedings,
understand the consequences of the proceedings, or
communicate with counsel.
*Before a verdict is rendered
Changes to the fitness legislation in 1992
R v. Taylor (1992) - “best interest” criterion too strict
Defendant need only be able to tell counsel the facts relating to the offence
Bill C30 Information
Stated terms of fitness to stand trial
Provision in R v. Taylor
Length of time a defendant could be detained:
5-day limit with provisions, if necessary
Extension not to exceed 20 days
With extensions, entire stay should not exceed 60 days
*Avg 3 weeks, 88% inpatient (Roesch et al, 1997)
Legal issues regarding fitness level
Issue of fitness raised at various stages from arrest to sentence determination
In Canada, only medical practitioners can conduct court-ordered assessments:
Criminal code of Canada states that a defendant is assumed to be fit unless the court is satisfied on the balance of probabilities to prove unfit
Defence or Crown can raise issue of unfitness: that party must prove
In US (& others) “competency” “Incompetent to stand trial”
Fitness Instruments
Screening instruments help evaluators quickly screen out defendants who are competent to stand trial. Various formats: Checklists Self-report questionnaires Sentence-completion tasks Interview-based techniques
Full assessment follows
Types of fitness instruments
Fitness Interview Test-Revised (FIT-R); : Semi- Structured Interview-based
Competency Screening Test (CST):Sentence-completion task
MacArthur Competence Assessment Tool-Criminal Adjudication (MacCAT-CA): Interview-based (with criterion-based scoring)
FIT-R
Developed by psychologists at SFU
Fitness Interview Test Revised:
Designed to to meet fitness criteria in CAD criminal code
30-min semi-structured interview; Each response rated: 0 (no/little impairment) 1 (moderate impairment) 2 (severe impairment)
FIT-R: Section 1
Criminal Code: Understand the nature or object of the proceedings
Factual Knowledge of Criminal Procedure
Focus on criteria of understanding the nature or object of the proceedings
Items:
1. Understanding the arrest process
2. Understanding of nature and severity of current charge
3. Understanding of the role of key participants
4. Understanding of the legal process
5. Understanding of the pleas
6. Understanding of court procedure
FIT-R: Section 2
Understand the possible consequences of the proceedings
Appreciation of Personal Involvement in and Importance of the Proceedings
Focus is on criteria of understanding possible consequences of proceedings
Items:
7. Appreciation of range and nature of possible penalties
8. Appraisal of available legal defenses
9. Appraisal of likely outcome
FIT-R: Section 3
Communicate with counsel:
Ability to Participate in Defence
Focus is on ability to communicate with counsel
Items:
10. Capacity to communicate facts to lawyer
11. Capacity to relate to lawyer
12. Capacity to plan legal strategy
13. Capacity to engage in own defense
14. Capacity to challenge prosecution witnesses
15. Capacity to testify relevantly
16. Capacity to manage courtroom behaviour
CST
Competency Screening Test: Developed at Harvard Medical School Goal: minimize lengthy stays for inpatient evaluations 22 incomplete sentences developed to identify defendants who are clearly competent 0 = incompetent 1 = marginally competent 2 = competent Focus on legal abilities
25 min
High false positive rates
MacCAT-CA
MacArthur Competence Assessment Tool- Criminal Adjudication
20-55 mins to administer
3 sections to assess:
Understanding the legal system and legal processes
Reasoning Ability
Appreciation of own legal situation and circumstances
22 items
16 involve answering questions about brief vignette
8 2-part questions (understanding)
8 questions about facts considered relevant (reasoning)
6 questions about defendant’s specific circumstances (appreciation)
All rated 0, 1, or 2
Unfit Defendant
Demographics: young never married unemployed living alone male Criminological: more likely charged with a violent offence less likely to have a prior arrests
Differences between fit and unfit accused?
Demographics:
living alone
transient
living in a hotel at time of offence
Criminological: no diff. in offence type no diff. in seriousness of crime Mental Health psychosis history of psychiatric hospitalization
After finding unfitness..?
Either detained in hospital or conditionally discharged
Proceedings halted until fit
–Reassessed within 45 days
Defendant proves to be unfit after 90 days- review board
For defendants who continue to be unfit, Crown must prove that there is enough evidence to continue if fitness restored
-Prima facie case ( every 2 year review)
R v. Demers
Supreme court of Canada ruled that the inability of the courts review boards to issue and absolute discharge due to the defendants who are unlikely to become fit and who pose no significant threat to society could not be detained because it was in violation under section 7 of the charter of rights and freedoms (Bill c-10)
Bill C10
If unlikely to become fit, court can stay proceedings according to Bill C-10 if:
Accused is unlikely ever to become fit
Accused does not pose a significant threat to public safety
Stay of proceedings is in interests of administration of justice
Does not provide review board with the ability of absolute discharge only the courts have this power
Restoring Fitness
Do we have the right to refuse medication?
Medication
YES- indefinitely hospitalized
Insanity
Not being of sound mind
Being mentally deranged and irrational (Sykes, 1982)
Legally, insanity removes responsibility of performing an act because of uncontrollable impulses or delusions
-Removes free will
2 cases that have shaped insanity:
James Hadfield: Criminal Lunatics Act (1800)
Daniel McNaughton
McNaughton Standard
Substantive Elements of Defence:
A defect of reason, from disease of the mind
Do not “know” nature and quality of act you are committing
Do not know that what you are doing is wrong
S. 16 of the Criminal Code
No person is criminally responsible for 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 of knowing that it was wrong.
What does it mean to “know it was wrong”?
R. v. Chaulk (1990)
Facts:
Accused were convicted of first degree murder Unsuccessfully argued for insanity defence
Issue:
Meaning of the word “wrong” in S. 16
Does this mean knowing that the criminal action was legally wrong, morally wrong, or both?
Decision:
Crown must show that accused knew what s/he was doing was morally wrong
Winko v. British Columbia (1999): how is it relevant
to Bill C30
Further changed the ruling on NCRMD
Facts:
Mr. Winko stabbed a person in 1983, was found not criminally responsible and received treatment from BC Forensic Psychiatric Institute.
In 1995, Review Board granted him a conditional discharge.
He appealed his conditional discharge to the Court of Appeals and lost.
Issue:
Conditional vs. absolute discharge?
Decision:
Supreme Court ruled that accused who is NCRMD should only be detained if they pose a threat to society
If no threat to society, then should receive an absolute discharge
What is the importance of Winko v. BC 1999
Importance:
Characterizes NCRMD as neither guilty verdict nor acquittal
Provided interpretation of “significant threat to the safety of the public”
-Real risk of physical/psych harm
-Potential harm must be serious
If the court or Review Board unable to determine whether “significant risk” exists, absolute discharge must be granted.
When can the crown raise issue of mental illness
In Canada, only 2 situations in which Crown may raise insanity:
Following a guilty verdict
If defence already stated defendant has mental illness
Assessing Insanity Defence
Successful defence requires psychiatric assessment
Rogers Criminal Responsibility Assessment Scales (R-CRAS; Rogers, 1984)- 5 scales
First (and really, only) assessment scale for criminal responsibility
Absolute Discharge:
Is not a significant threat to the safety of the public:
Defendant is released into community without restrictions to his or her behaviour
~13% in Canada
Conditional Discharge:
Defendant is released
BUT, under certain conditions that s/he must meet
Examples
Not to possess firearms
Others?
Failure to meet conditions may result in incarceration or hospitalization in forensic facility
~35% in Canada
Custody Order:
Defendant held in psychiatric facility:
- Undergo treatment (not compulsory)
- Cases reviewed at least yearly
Bill C-30 – capping
Max time affected by disposition
Varies by crime
However, cannot be released until no longer threat to public safety
Information Considered by Review Boards
Charge information Trial transcript Criminal history Risk assessment Clinical history Psychological testing Hospital’s recommendation
Factors Affecting Dispositions
Least limiting to the defendant
- Public safety
- Mental state of the defendant
- Reintegration of defendant into society
- Other needs of defendant
Factors Related to Success of NCRMD Pleas -The Court
Female jurors more sympathetic (Blau, McGinley, & Pasewark, 1992)
Religious people are less sympathetic (Tygart, 1992)
Judges more sympathetic than jurors
General Results of pleading NCRMD (NGRI)
People who win usually spend more time in mental hospital than they would have in prison
People who lose spend more time in prison than they would had they not pled NGRI
Receive sentences 22% longer than non-NGRI pleaders
67% of unsuccessful NGRI pleaders went to prison compared to 11% of all felony arrests
Why is there such high rates of mental illness in offender populations?
Individuals with a mental illness:
May be arrested at a disproportionately higher rate
-More likely to get caught
May be less adept at committing crime
May be more likely to plead guilty
- Access to good counsel
- Do not understand ramifications of their plea
Role of police in dealing with mentally ill offenders
Provincial and territorial mental health legislations grants police 2 ‘official’ options available: Mental Health System: assessment institutionalization Criminal Justice System: arrest
Mental Illness & Violence
Commonly held belief that mentally ill person = violent predator
More likely to be victim than to commit violence
Some truth:
Acute psychosis or mania
3-4x increase violence risk
Mental Illness & Violence: Schizophrenia
Schizophrenia:
Diagnosis associated with lower rates of violence
Also significantly lower rates than in personality disorder or substance use
Co-occurring substance use diagnosis strongly predictive of violence
Mental Illness & Violence:Delusions and Hallucinations
General delusions and hallucinations not correlated with violence
Command delusions and hallucinations not correlated with violence
Violent command hallucinations and persistent violent ruminations are
-Steadman et al. 1998. Swanson et al.
Rice & Harris (1990) study
Mental Illness & Recidivism:
Compared 210 NCRMD defendants to 210 convicted defendants
Matched on age, index offence, & criminal hx
Results:
NCRMD defendants lower rates of general recidivism
NCRMD defendants lower rates of violent recidivism
Treatment of offenders with mental disorders
Goals for treatment vary greatly, but generally include: Symptom reduction Decreased length of stay in the facility No need for re-admittance to hospital Decrease recidivism
Overarching goal is reintegration
Facilities for treatment include:
Psychiatric institutions
Hospitals
Assisted housing units
2 key treatment options for psychotic symptoms:
Anti-psychotic drugs
Behaviour therapy
Characteristics/Features of Mental health courts
Separate docket for mentally ill defendants
Dedicated judge
Dedicated prosecution and defense counsel
Nonadversarial team approach
-joint decision-making between criminal justice and mental health professionals
Voluntary participation by defendants agreeing to follow a treatment regimen
Monitoring by the court
Promise of dismissed charges or avoidance of incarceration
4 main goals: Mental health court
- Divert accused charged with minor to moderately serious criminal offences
- Facilitate a defendant’s fitness to stand trial evaluation
- Ensure treatment for a defendant’s mental disorder
- Decrease repeat offending
Moore & Hiday (2006)
Purpose:
Examine whether mental health courts work
Do mental health courts reduce re-offending (y/n)?
Do mental health courts reduce recividism severity?
Method:
Compared outcomes for 82 defendants who went through mental health courts vs. 183 defendants who went through traditional courts
-Matched on offence
-Followed for 12 months
Automatism
General Definition:
Unconscious, involuntary behaviour
Legal Relevance:
Person committing act is not aware of what they are doing
Examples: Physical blow Carbon monoxide poisoning Sleepwalking Psychological blow
Canadian Criminal Code does not address automatism as a defence
Insane automatism
Involuntary action caused by disease of the mind
NCRMD verdict
Noninsane automatism
Verdict is not guilty
Automatism vs. NCRMD
Verdict:
NCRMD verdict may result in defendant being sent to mental health facility
Noninsane automatism results in not guilty verdict
-acquittal
Insane automatism results in NCRMD verdict
Intoxication as a defence
In 1995, Bill-C-72 passed
Intoxication is not recognized as defence for violent crimes
Cultural defence
Uses the excuse that the defendant’s culture has different laws, social interactions, and traditions than the United States
The crime committed would not have been a crime in the defendant’s native country
Civil Commitment
post-sentence institutional detention of an offender with the intention of preventing further offenses.
Major violation of right to freedom & liberty:
Only other process that deprives liberty = criminal justice process
-Not the criminal justice system
-The mental health system
The parens patriae model
State is construed as “parent” of those unable to care for themselves
The “best interests” of mentally ill
Civil Commitment Law
Civil commitment criteria varies by province
-By psychiatrist only
Typically includes:
Mental Illness
Need for treatment
Dangerousness
Criteria 1 for Civil Commitment Law
Criteria 1 – Mental Illness
Inter-provincial variation:
What is a mental illness?
In some provinces (e.g., Sask.)
-Effect on patients’ thoughts and behaviour
Other provinces
Focus on mental disorder as a ‘disease or disability of the mind’
Do not specify effect on behaviour
Criteria 2 for Civil Commitment Law
Whether person poses danger to self/others
Inter-provincial variation:
Determining Dangerousness
-Broad perspective
-Narrow perspective
Broad Perspective
E.g., British Columbia
Mental Health Act states that person must require “care, supervision, and control in Provincial mental health facility for the person’s own protection or for the protection of others.”
Narrow Perspective
E.g., Ontario
Mental Health Act requires that person’s mental disorder will likely result in “serious bodily harm to the person,” “serious bodily harm to another person,” or “imminent and serious physical impairment of the person.”
How to assess dangerousness
Risk assessment :
Process of evaluating individuals to:
Characterize likelihood they will engage in target outcome (usually violence)
Develop interventions to manage or reduce that likelihood
Psychiatric Gating
Definition:
Informal mechanism whereby offenders are certified by a physician under Mental Health Act as requiring detention in a psychiatric facility on grounds that they present a danger to themselves or others
Civil committal of dangerous sex offenders:
-Defining deviant sexual behaviour as a mental disorder
Dangerous Offender Legislation
Section 753 of Criminal :
- ) Crown must prove beyond reasonable doubt that offender committed serious personal injury offence
- indictable offence (other than murder or treason)
- sexual assault, sexual assault with a weapon, and aggravated sexual assault
2.) Second, Crown must establish dangerousness criteria
One of:
Pattern of unrestrained behaviour
Pattern of aggressive behaviour with indifference to consequences
Behaviour of a brutal nature – ordinary restraint can’t control
Failure to control sexual impulses
Once designated a dangerous offender: Indefinite sentence of detention Time served before parole eligibility 7 years Can apply every 2 years after that
Long-Term Offender Legislation
S. 752, Criminal Code:
LTO Criteria:
Appropriate to impose a sentence of 2 yrs. or more for the current offence
Substantial risk that offender will re-offend
Reasonable possibility of control in community
Additional period of up to 10 years of community supervision
Limitations to DO and LTO Provisions for sex offenders:
- ) Sexual nature of crimes not evident:
- Offender poses a risk for sexual violence but it is not directly evident in Criminal Code charge
- Not eligible for either DO or LTO
2.) Appropriate sentencing range
Many sex offences do not receive a sentence of 2 years or more
Problem with psychiatric gating
No agreement about whether various psychosexual and personality disorders, qualify as mental disorders for purposes of mental health legislation
-Usually NOT considered mental disorder under Criminal Code
