PSY328H5 Lecture Notes - Lecture 8: Involuntary Commitment, Edward Drummond, Deinstitutionalisation

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12 Mar 2018
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Plan for Today
Criminal Commitment
Civil Commitment
Criminal Commitment
Bobby’s story
25 years old, suffers from down syndrome
Recently become sexually mature
Out shopping with his mom and they are waiting in line at the checkout with a
women in front of them
No warning, never happened before
He grabs the lady from behind by her breasts and grinds into her with an
erection
The women is frightened, angry, calls the police, wants to press charges
Will go to jail
Doesn’t feel safe with him living in her neighborhood
Down’s Syndrome - IQ below 50 (severely retarded)
25 years old, 6’4’’, 300 pounds
Has recently become sexually mature
Acting out his sexual urges violently against women
Recently charged with sexual assault
Fitness to Stand trial
“An accused individual must be protected from a conviction that could have resulted
from a lack of participation or capacity to make proper judgment”
R. v. Pritchard
Accused must be able to assist in his or her defense1)
Does the accused understand his or her role in the proceedings2)
Does the accused understand the nature or object of the proceedings 3)
Fitness to Stand Trial
section 2 of the Criminal Code
Unfit to stand trial means unable on account of mental disorder to conduct a defense
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
Understand the nature or object of the proceedingsa)
Understand the possible consequences of the proceedings, orb)
Communicate with counsel - can he say what he did and why he did it?c)
Fitness to Stand Trial
An accused is presumed fit to stand trial unless the court is satisfied on a balance of
probabilities that he or she is unfit (s.672.22)
The party raising the issue has the burden of proving the issue of unfitness (s. 672.23)
R. v. Taylor – “limited cognitive capacity”
The accused need only have the ability to recount to his or her lawyer the facts
relating to the offence that would enable the lawyer to properly present the case.
The accused need not have the ability to act in his or her own best interest.
In the US you need to be able to consult with your lawyer about what you did
Fitness to Stand Trial
if unfit to stand trial, there are 3 options
Conditional discharge - just let them go, would have to be a minor charge in this case1)
A detention order - bail is denied and you are committed to a hospital for the
criminally insane until found competent - unfit to stand trial, if you're found unfit to
stand trial due to a state of psychosis you can be held and detained and forced to
take medication
2)
A treatment order – treated until fit to stand trial3)
If determined you will never be competent, you must be released or civil
commitment proceedings are initiated
Fitness Interview Test
Nature and object of the proceedings: the arrest process, the nature and severity of
the charges, the role of key players, pleas available, consequences of pleas, court
procedure
1)
Understanding of the consequences: range and nature of penalties, available legal
defences and the likely outcome
2)
Ability to communicate with lawyer: capacity to communicate facts, relate to lawyer,
engage in defence, challenge witnesses, testify, and manage courtroom behaviour
3)
Profile of Unfitness
Single, unemployed men, living alone
History of psychiatric problems and previous psychiatric hospitalizations
Mostly charged with property offences and other non-violent offences
Demographic, criminological, mental disorder
Most people found unfit will spend more time in prison than if they were found
guilty and served the maximum sentence
Insanity
Borrowed term from common parlance developed into a legal concept.
The challenge for the prosecutor is to ensure the common concept of insanity does
not invade the legal concept.
Insanity Prior to M’Naughten
in ancient Hebrew law children and the insane were not held responsible for their
acts.
In 1265, Bracton set forth the first explicit standard “an insane person is a person
who does not know what he is doing, is lacking in mind and reason, and is not far
removed from brutes.”
Wild Beast
(1724) …”totally deprived of his understanding and memory, and . . . not know what
he is doing, no more than an infant, than a brute, or a wild beast.”
Lord Hale (1736) “total defect of understanding” – less than a child of 14
M’Naughten case (1843)
Daniel M’Naughten wanted to kill the Prime Minister Peel but mistakenly killed Peel’s
secretary Edward Drummond.
M’Naughten was acquitted after nine medical experts testified to his insanity.
M’Naughten (1843)
Queen Victoria was openly angry about the verdict and complained about a legal
system that would allow an NGRI verdict for Hadfield (1800) and M’Naughten
“whilst everybody is morally convinced that both malefactors were perfectly
conscious and aware of what they did.”
Canadian Criminal Commitment
M’Naghten rules – common law (English)
“A person is presumed sane unless it can be clearly proven that , at the time of the
committing of the act, the party accused was labouring under such a defect of
reason, from disease of the mind, as not to know the nature and quality of the act he
was doing; or if he did know it, that he did not know he was doing what was wrong.”
Mental Disorder & Capacity
Cdn. Criminal Justice is based on the principle that individuals are responsible for
their acts.
those who choose to disobey are subject to punishment.
ignorance of the law is not an excuse.
Section 16 Criminal Code of Canada (CCC)
the law does exempt criminal responsibility for those who are incapable of making a
rational choice.
the M’Naughten Rules, with modest variations, found their way into the Canadian
Criminal Code.
R. v. Swain
Supreme Court of Canada gave 6 months to reform the law = Bill C-30
s. 16 Criminal Code of Canada
“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 knowing that it was wrong.”
Section 16
(2) Every person is presumed not to suffer from a mental disorder so as to be exempt
from criminal responsibility by virtue of subsection (1), until the contrary is proved
on a balance of probabilities.
Section 16
(3) The burden of proof that an accused was suffering from a mental disorder so as
to be exempt from criminal responsibility is on the party that raises the issue.
S. 16 Mental Disorder
Criminal Code defines mental disorder in a circuitous fashion.
“disease of the mind” - legal concept that is up to the judge to decide.
S. 16 Mental Disorder
Court decisions have implied that:
a substantial impairment of mental abilities in the form of obvious psychotic
behaviour or delusions had to occur before a person can claim lack of criminal
responsibility
S. 16 Mental Disorder
the disorder better be internal rather than externally caused.
the disorder is not transitory.
Appreciating
Even if the offender has a “disease of the mind” at the time they committed the
criminal act, that will not exempt him from criminal responsibility unless that
disorder caused him to be incapable of “appreciating the nature and quality of his
act…or of knowing that it was wrong.”
S. 16 - Appreciate
Appreciating includes the act of knowing but knowing does not necessarily include
appreciating.
Knowing is awareness, rational perception, a cognitive or intellectual ability.
Appreciating requires an analysis of the of the knowledge and experience.
Appreciating
In a murder case the killer may be aware of the physical character of his act and still
be found insane.
Appreciating
The fact that the suspect lacked the appropriate feeling of remorse or guilt doesn’t
mean he did not realise the nature and quality of his act.
Lack of remorse, empathy or guilty conscience usually indicates a personality
disorder.
Criminal Commitment
Acquitted at trial by reason of insanity
Not responsible if conduct is attributable to mental illness that interferes with
rationality.
Burden is on the party raising the issue of insanity
Must be insane at the time the crime was committed (retrospective)
Not Criminally Responsible by reason of Mental Disorder (NCRMD)
Absolute discharge “not a significant threat”, conditional discharge, detention in
hospital
Profile of NCRMD
Marginalized member of society, white, single male, late 20s early 30s
Unemployed, lacks a grade 12 education
History of hospitalization and arrest
Typically psychotic
Typically non-violent offences
Civil Commitment
Parens Patriae: power of the state
Personal liberty vs. governmental obligation to protect its’ citizens
The Canadian Charter of Rights and Freedoms
Protection of citizens from the state vs. the protection of citizens from themselves or
others
Civil Commitment
Danger to Self or Others
Hard to accurately predict dangerousness
Best predictor of future behaviour is past behaviour, and even that isnt very
good
Best predictor of dangerousness?
Past behavior.
Canadian Federal Mental Health Act
Ontario Health Care Consent Act
Substitute Decisions Act
Application for Psychiatric Assessment (Form 1)
Example: professor X
Teaches intro courses, loved by students and family, under a lot of stress
Seen wandering the streets at night, he is barking at the stop lights, weirding
people out
He thinks there is nothing wrong with him, but it is clear something is wrong
Not responsible, gambling all the time, not paying his bills, clear there is a
problem
In Ontario, if a physician examines a person and has reasonable cause to believe that
the person:
Has threatened or attempted to cause bodily harm to him or herselfa)
Has behaved violently towards another person or has caused another person to fear
bodily harm from him or her; or
b)
Has shown a lack of competence to care for him or herself; or c)
Application for Psychiatric Assessment
if the person is suffering from a mental disorder of a nature or quality that likely will
result in,
Serious bodily harm to the personD)
Serious bodily harm to another person; orE)
Imminent and serious physical impairment of the personF)
Form 1, 2, 3 and 4
The physician who signs the application must have personally examined the person
and must be signed within 7 days
Can be detained against your will for 72 hours
After 72 hours you must be released or admitted as a voluntary patient or
involuntary patient
Involuntary admission requires another physician to complete a certificate of
involuntary admission (Form 2)
Form 3 allows the involuntary detention and treatment for a period of 14 days
First renewal (1 month) second (2 months) third and subsequent renewals (every 3
months)
We don’t want people in who don’t need to be in anymore
Civil Commitment
Least restrictive alternative
Deinstitutionalization, group homes
Right to refuse treatment
side effects
refusing to get help
Civil and Criminal Commitment: Lecture 8
Wednesday, March 7, 2018
12:18 PM
Unlock document

This preview shows pages 1-3 of the document.
Unlock all 10 pages and 3 million more documents.

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Plan for Today
Criminal Commitment
Civil Commitment
Criminal Commitment
Bobby’s story
25 years old, suffers from down syndrome
Recently become sexually mature
Out shopping with his mom and they are waiting in line at the checkout with a
women in front of them
No warning, never happened before
He grabs the lady from behind by her breasts and grinds into her with an
erection
The women is frightened, angry, calls the police, wants to press charges
Will go to jail
Doesn’t feel safe with him living in her neighborhood
Down’s Syndrome - IQ below 50 (severely retarded)
25 years old, 6’4’’, 300 pounds
Has recently become sexually mature
Acting out his sexual urges violently against women
Recently charged with sexual assault
Fitness to Stand trial
“An accused individual must be protected from a conviction that could have resulted
from a lack of participation or capacity to make proper judgment”
R. v. Pritchard
Accused must be able to assist in his or her defense
1)
Does the accused understand his or her role in the proceedings
2)
Does the accused understand the nature or object of the proceedings
3)
Fitness to Stand Trial
section 2 of the Criminal Code
Unfit to stand trial means unable on account of mental disorder to conduct a defense
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
Understand the nature or object of the proceedings
a)
Understand the possible consequences of the proceedings, or
b)
Communicate with counsel - can he say what he did and why he did it?
c)
Fitness to Stand Trial
An accused is presumed fit to stand trial unless the court is satisfied on a balance of
probabilities that he or she is unfit (s.672.22)
The party raising the issue has the burden of proving the issue of unfitness (s. 672.23)
R. v. Taylor – “limited cognitive capacity”
The accused need only have the ability to recount to his or her lawyer the facts
relating to the offence that would enable the lawyer to properly present the case.
The accused need not have the ability to act in his or her own best interest.
In the US you need to be able to consult with your lawyer about what you did
Fitness to Stand Trial
if unfit to stand trial, there are 3 options
Conditional discharge - just let them go, would have to be a minor charge in this case1)
A detention order - bail is denied and you are committed to a hospital for the
criminally insane until found competent - unfit to stand trial, if you're found unfit to
stand trial due to a state of psychosis you can be held and detained and forced to
take medication
2)
A treatment order – treated until fit to stand trial3)
If determined you will never be competent, you must be released or civil
commitment proceedings are initiated
Fitness Interview Test
Nature and object of the proceedings: the arrest process, the nature and severity of
the charges, the role of key players, pleas available, consequences of pleas, court
procedure
1)
Understanding of the consequences: range and nature of penalties, available legal
defences and the likely outcome
2)
Ability to communicate with lawyer: capacity to communicate facts, relate to lawyer,
engage in defence, challenge witnesses, testify, and manage courtroom behaviour
3)
Profile of Unfitness
Single, unemployed men, living alone
History of psychiatric problems and previous psychiatric hospitalizations
Mostly charged with property offences and other non-violent offences
Demographic, criminological, mental disorder
Most people found unfit will spend more time in prison than if they were found
guilty and served the maximum sentence
Insanity
Borrowed term from common parlance developed into a legal concept.
The challenge for the prosecutor is to ensure the common concept of insanity does
not invade the legal concept.
Insanity Prior to M’Naughten
in ancient Hebrew law children and the insane were not held responsible for their
acts.
In 1265, Bracton set forth the first explicit standard “an insane person is a person
who does not know what he is doing, is lacking in mind and reason, and is not far
removed from brutes.”
Wild Beast
(1724) …”totally deprived of his understanding and memory, and . . . not know what
he is doing, no more than an infant, than a brute, or a wild beast.”
Lord Hale (1736) “total defect of understanding” – less than a child of 14
M’Naughten case (1843)
Daniel M’Naughten wanted to kill the Prime Minister Peel but mistakenly killed Peel’s
secretary Edward Drummond.
M’Naughten was acquitted after nine medical experts testified to his insanity.
M’Naughten (1843)
Queen Victoria was openly angry about the verdict and complained about a legal
system that would allow an NGRI verdict for Hadfield (1800) and M’Naughten
“whilst everybody is morally convinced that both malefactors were perfectly
conscious and aware of what they did.”
Canadian Criminal Commitment
M’Naghten rules – common law (English)
“A person is presumed sane unless it can be clearly proven that , at the time of the
committing of the act, the party accused was labouring under such a defect of
reason, from disease of the mind, as not to know the nature and quality of the act he
was doing; or if he did know it, that he did not know he was doing what was wrong.”
Mental Disorder & Capacity
Cdn. Criminal Justice is based on the principle that individuals are responsible for
their acts.
those who choose to disobey are subject to punishment.
ignorance of the law is not an excuse.
Section 16 Criminal Code of Canada (CCC)
the law does exempt criminal responsibility for those who are incapable of making a
rational choice.
the M’Naughten Rules, with modest variations, found their way into the Canadian
Criminal Code.
R. v. Swain
Supreme Court of Canada gave 6 months to reform the law = Bill C-30
s. 16 Criminal Code of Canada
“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 knowing that it was wrong.”
Section 16
(2) Every person is presumed not to suffer from a mental disorder so as to be exempt
from criminal responsibility by virtue of subsection (1), until the contrary is proved
on a balance of probabilities.
Section 16
(3) The burden of proof that an accused was suffering from a mental disorder so as
to be exempt from criminal responsibility is on the party that raises the issue.
S. 16 Mental Disorder
Criminal Code defines mental disorder in a circuitous fashion.
“disease of the mind” - legal concept that is up to the judge to decide.
S. 16 Mental Disorder
Court decisions have implied that:
a substantial impairment of mental abilities in the form of obvious psychotic
behaviour or delusions had to occur before a person can claim lack of criminal
responsibility
S. 16 Mental Disorder
the disorder better be internal rather than externally caused.
the disorder is not transitory.
Appreciating
Even if the offender has a “disease of the mind” at the time they committed the
criminal act, that will not exempt him from criminal responsibility unless that
disorder caused him to be incapable of “appreciating the nature and quality of his
act…or of knowing that it was wrong.”
S. 16 - Appreciate
Appreciating includes the act of knowing but knowing does not necessarily include
appreciating.
Knowing is awareness, rational perception, a cognitive or intellectual ability.
Appreciating requires an analysis of the of the knowledge and experience.
Appreciating
In a murder case the killer may be aware of the physical character of his act and still
be found insane.
Appreciating
The fact that the suspect lacked the appropriate feeling of remorse or guilt doesn’t
mean he did not realise the nature and quality of his act.
Lack of remorse, empathy or guilty conscience usually indicates a personality
disorder.
Criminal Commitment
Acquitted at trial by reason of insanity
Not responsible if conduct is attributable to mental illness that interferes with
rationality.
Burden is on the party raising the issue of insanity
Must be insane at the time the crime was committed (retrospective)
Not Criminally Responsible by reason of Mental Disorder (NCRMD)
Absolute discharge “not a significant threat”, conditional discharge, detention in
hospital
Profile of NCRMD
Marginalized member of society, white, single male, late 20s early 30s
Unemployed, lacks a grade 12 education
History of hospitalization and arrest
Typically psychotic
Typically non-violent offences
Civil Commitment
Parens Patriae: power of the state
Personal liberty vs. governmental obligation to protect its’ citizens
The Canadian Charter of Rights and Freedoms
Protection of citizens from the state vs. the protection of citizens from themselves or
others
Civil Commitment
Danger to Self or Others
Hard to accurately predict dangerousness
Best predictor of future behaviour is past behaviour, and even that isnt very
good
Best predictor of dangerousness?
Past behavior.
Canadian Federal Mental Health Act
Ontario Health Care Consent Act
Substitute Decisions Act
Application for Psychiatric Assessment (Form 1)
Example: professor X
Teaches intro courses, loved by students and family, under a lot of stress
Seen wandering the streets at night, he is barking at the stop lights, weirding
people out
He thinks there is nothing wrong with him, but it is clear something is wrong
Not responsible, gambling all the time, not paying his bills, clear there is a
problem
In Ontario, if a physician examines a person and has reasonable cause to believe that
the person:
Has threatened or attempted to cause bodily harm to him or herselfa)
Has behaved violently towards another person or has caused another person to fear
bodily harm from him or her; or
b)
Has shown a lack of competence to care for him or herself; or c)
Application for Psychiatric Assessment
if the person is suffering from a mental disorder of a nature or quality that likely will
result in,
Serious bodily harm to the personD)
Serious bodily harm to another person; orE)
Imminent and serious physical impairment of the personF)
Form 1, 2, 3 and 4
The physician who signs the application must have personally examined the person
and must be signed within 7 days
Can be detained against your will for 72 hours
After 72 hours you must be released or admitted as a voluntary patient or
involuntary patient
Involuntary admission requires another physician to complete a certificate of
involuntary admission (Form 2)
Form 3 allows the involuntary detention and treatment for a period of 14 days
First renewal (1 month) second (2 months) third and subsequent renewals (every 3
months)
We don’t want people in who don’t need to be in anymore
Civil Commitment
Least restrictive alternative
Deinstitutionalization, group homes
Right to refuse treatment
side effects
refusing to get help
Civil and Criminal Commitment: Lecture 8
Wednesday, March 7, 2018 12:18 PM
Unlock document

This preview shows pages 1-3 of the document.
Unlock all 10 pages and 3 million more documents.

Already have an account? Log in
Plan for Today
Criminal Commitment
Civil Commitment
Criminal Commitment
Bobby’s story
25 years old, suffers from down syndrome
Recently become sexually mature
Out shopping with his mom and they are waiting in line at the checkout with a
women in front of them
No warning, never happened before
He grabs the lady from behind by her breasts and grinds into her with an
erection
The women is frightened, angry, calls the police, wants to press charges
Will go to jail
Doesn’t feel safe with him living in her neighborhood
Down’s Syndrome - IQ below 50 (severely retarded)
25 years old, 6’4’’, 300 pounds
Has recently become sexually mature
Acting out his sexual urges violently against women
Recently charged with sexual assault
Fitness to Stand trial
“An accused individual must be protected from a conviction that could have resulted
from a lack of participation or capacity to make proper judgment”
R. v. Pritchard
Accused must be able to assist in his or her defense1)
Does the accused understand his or her role in the proceedings2)
Does the accused understand the nature or object of the proceedings 3)
Fitness to Stand Trial
section 2 of the Criminal Code
Unfit to stand trial means unable on account of mental disorder to conduct a defense
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
Understand the nature or object of the proceedingsa)
Understand the possible consequences of the proceedings, orb)
Communicate with counsel - can he say what he did and why he did it?c)
Fitness to Stand Trial
An accused is presumed fit to stand trial unless the court is satisfied on a balance of
probabilities that he or she is unfit (s.672.22)
The party raising the issue has the burden of proving the issue of unfitness (s. 672.23)
R. v. Taylor – “limited cognitive capacity”
The accused need only have the ability to recount to his or her lawyer the facts
relating to the offence that would enable the lawyer to properly present the case.
The accused need not have the ability to act in his or her own best interest.
In the US you need to be able to consult with your lawyer about what you did
Fitness to Stand Trial
if unfit to stand trial, there are 3 options
Conditional discharge - just let them go, would have to be a minor charge in this case
1)
A detention order - bail is denied and you are committed to a hospital for the
criminally insane until found competent - unfit to stand trial, if you're found unfit to
stand trial due to a state of psychosis you can be held and detained and forced to
take medication
2)
A treatment order – treated until fit to stand trial
3)
If determined you will never be competent, you must be released or civil
commitment proceedings are initiated
Fitness Interview Test
Nature and object of the proceedings: the arrest process, the nature and severity of
the charges, the role of key players, pleas available, consequences of pleas, court
procedure
1)
Understanding of the consequences: range and nature of penalties, available legal
defences and the likely outcome
2)
Ability to communicate with lawyer: capacity to communicate facts, relate to lawyer,
engage in defence, challenge witnesses, testify, and manage courtroom behaviour
3)
Profile of Unfitness
Single, unemployed men, living alone
History of psychiatric problems and previous psychiatric hospitalizations
Mostly charged with property offences and other non-violent offences
Demographic, criminological, mental disorder
Most people found unfit will spend more time in prison than if they were found
guilty and served the maximum sentence
Insanity
Borrowed term from common parlance developed into a legal concept.
The challenge for the prosecutor is to ensure the common concept of insanity does
not invade the legal concept.
Insanity Prior to M’Naughten
in ancient Hebrew law children and the insane were not held responsible for their
acts.
In 1265, Bracton set forth the first explicit standard “an insane person is a person
who does not know what he is doing, is lacking in mind and reason, and is not far
removed from brutes.”
Wild Beast
(1724) …”totally deprived of his understanding and memory, and . . . not know what
he is doing, no more than an infant, than a brute, or a wild beast.”
Lord Hale (1736) “total defect of understanding” – less than a child of 14
M’Naughten case (1843)
Daniel M’Naughten wanted to kill the Prime Minister Peel but mistakenly killed Peel’s
secretary Edward Drummond.
M’Naughten was acquitted after nine medical experts testified to his insanity.
M’Naughten (1843)
Queen Victoria was openly angry about the verdict and complained about a legal
system that would allow an NGRI verdict for Hadfield (1800) and M’Naughten
“whilst everybody is morally convinced that both malefactors were perfectly
conscious and aware of what they did.”
Canadian Criminal Commitment
M’Naghten rules – common law (English)
“A person is presumed sane unless it can be clearly proven that , at the time of the
committing of the act, the party accused was labouring under such a defect of
reason, from disease of the mind, as not to know the nature and quality of the act he
was doing; or if he did know it, that he did not know he was doing what was wrong.”
Mental Disorder & Capacity
Cdn. Criminal Justice is based on the principle that individuals are responsible for
their acts.
those who choose to disobey are subject to punishment.
ignorance of the law is not an excuse.
Section 16 Criminal Code of Canada (CCC)
the law does exempt criminal responsibility for those who are incapable of making a
rational choice.
the M’Naughten Rules, with modest variations, found their way into the Canadian
Criminal Code.
R. v. Swain
Supreme Court of Canada gave 6 months to reform the law = Bill C-30
s. 16 Criminal Code of Canada
“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 knowing that it was wrong.”
Section 16
(2) Every person is presumed not to suffer from a mental disorder so as to be exempt
from criminal responsibility by virtue of subsection (1), until the contrary is proved
on a balance of probabilities.
Section 16
(3) The burden of proof that an accused was suffering from a mental disorder so as
to be exempt from criminal responsibility is on the party that raises the issue.
S. 16 Mental Disorder
Criminal Code defines mental disorder in a circuitous fashion.
“disease of the mind” - legal concept that is up to the judge to decide.
S. 16 Mental Disorder
Court decisions have implied that:
a substantial impairment of mental abilities in the form of obvious psychotic
behaviour or delusions had to occur before a person can claim lack of criminal
responsibility
S. 16 Mental Disorder
the disorder better be internal rather than externally caused.
the disorder is not transitory.
Appreciating
Even if the offender has a “disease of the mind” at the time they committed the
criminal act, that will not exempt him from criminal responsibility unless that
disorder caused him to be incapable of “appreciating the nature and quality of his
act…or of knowing that it was wrong.”
S. 16 - Appreciate
Appreciating includes the act of knowing but knowing does not necessarily include
appreciating.
Knowing is awareness, rational perception, a cognitive or intellectual ability.
Appreciating requires an analysis of the of the knowledge and experience.
Appreciating
In a murder case the killer may be aware of the physical character of his act and still
be found insane.
Appreciating
The fact that the suspect lacked the appropriate feeling of remorse or guilt doesn’t
mean he did not realise the nature and quality of his act.
Lack of remorse, empathy or guilty conscience usually indicates a personality
disorder.
Criminal Commitment
Acquitted at trial by reason of insanity
Not responsible if conduct is attributable to mental illness that interferes with
rationality.
Burden is on the party raising the issue of insanity
Must be insane at the time the crime was committed (retrospective)
Not Criminally Responsible by reason of Mental Disorder (NCRMD)
Absolute discharge “not a significant threat”, conditional discharge, detention in
hospital
Profile of NCRMD
Marginalized member of society, white, single male, late 20s early 30s
Unemployed, lacks a grade 12 education
History of hospitalization and arrest
Typically psychotic
Typically non-violent offences
Civil Commitment
Parens Patriae: power of the state
Personal liberty vs. governmental obligation to protect its’ citizens
The Canadian Charter of Rights and Freedoms
Protection of citizens from the state vs. the protection of citizens from themselves or
others
Civil Commitment
Danger to Self or Others
Hard to accurately predict dangerousness
Best predictor of future behaviour is past behaviour, and even that isnt very
good
Best predictor of dangerousness?
Past behavior.
Canadian Federal Mental Health Act
Ontario Health Care Consent Act
Substitute Decisions Act
Application for Psychiatric Assessment (Form 1)
Example: professor X
Teaches intro courses, loved by students and family, under a lot of stress
Seen wandering the streets at night, he is barking at the stop lights, weirding
people out
He thinks there is nothing wrong with him, but it is clear something is wrong
Not responsible, gambling all the time, not paying his bills, clear there is a
problem
In Ontario, if a physician examines a person and has reasonable cause to believe that
the person:
Has threatened or attempted to cause bodily harm to him or herselfa)
Has behaved violently towards another person or has caused another person to fear
bodily harm from him or her; or
b)
Has shown a lack of competence to care for him or herself; or c)
Application for Psychiatric Assessment
if the person is suffering from a mental disorder of a nature or quality that likely will
result in,
Serious bodily harm to the personD)
Serious bodily harm to another person; orE)
Imminent and serious physical impairment of the personF)
Form 1, 2, 3 and 4
The physician who signs the application must have personally examined the person
and must be signed within 7 days
Can be detained against your will for 72 hours
After 72 hours you must be released or admitted as a voluntary patient or
involuntary patient
Involuntary admission requires another physician to complete a certificate of
involuntary admission (Form 2)
Form 3 allows the involuntary detention and treatment for a period of 14 days
First renewal (1 month) second (2 months) third and subsequent renewals (every 3
months)
We don’t want people in who don’t need to be in anymore
Civil Commitment
Least restrictive alternative
Deinstitutionalization, group homes
Right to refuse treatment
side effects
refusing to get help
Civil and Criminal Commitment: Lecture 8
Wednesday, March 7, 2018 12:18 PM
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