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Chapter 19

TEXTBOOK Chapter 19 - Mental Disorder and Law

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University of Toronto Mississauga
Hywel Morgan

Notes From Reading C HAPTER  19: M ENTAL  DISORDER AND  THE  LAW   PGS . 486­508) MENTALDISORDER IN CANADIAN LAW - The inability to perceive accurately or reason correctly about the outside world is referred to as cognitive impairment - The inability to exert adequate controls on one’s behaviour is referred to as volitional impairment - Canadian law recognizes that mental disorder may cause cognitive or volitional impairment - The law defines mental disorder as any impairment of psychological functioning that is internal, stable and involuntary in nature - Legal definitions of mental disorder typically focus on acute and severe disturbances in through, affect, or behaviour - In legal proceedings, triers of fact (judges, juries, or review boards) must determine whether or not a person who is party to the proceedings has a mental disorder, according to how mental disorder is defined in the relevant law - Mental health professionals act merely as consultants to triers of fact, providing expert observations and opinions THE CANADIAN LEGALSYSTEM - Law is a set of rules and procedures designed to regulate the behaviour of people - Goal: prevent and resolve, in a principled manner, conflicts among people - In Canada, there are here primary sources of law: Constitutional Law - Constitutional Law – Comprises of rules that govern the administration of Canada as a nation state (authorizes and limits the power of government and its citizens) - Canada has the same form of gov’t as the UK – constitutional monarchy - The Charter of Rights and Freedoms sets out the fundamental freedoms of citizens, including: o Freedom of conscience and religion; freedom of thought, belief, opinion and expression; freedom of peaceful assembly; and freedom of association - It also sets out basic rights including democratic rights, mobility rights, legal rights, equality rights, and language rights - People with mental disabilities: implications from section 15(1) prohibits discriminations on the basis of mental disability, they cannot be held against their will, prevented from expressing themselves, or denied opportunities for such things as employment or housing solely on the basis that they suffer from a mental disorder - The nature of the restriction must be justified in light of any cognitive or volitional impairment resulting form mental disorder; they cannot be arbitrary or excessive - The Charter demands that people suffering from mental disorder are treated fairly and retain as many of their rights and freedom as possible Statutory Law - Statutory Law – Comprises written codes enacted by legislative authorities - In Canada, statutes are written and enacted by the government, with the support and approval of the monarch - Statutes set out what should and should not be done with respect to trade and commerce, health and safety, education, taxation, the environment - Mental disorder plays an important role in two types of statutory law in Canada: o Civil mental health law sets out the procedures under which people suffering from mental disorder can be involuntarily hospitalized or treated Notes From Reading C HAPTER  19: MENTAL  DISORDER  AND THE  LAW  PGS . 486­508) o Criminal law – specifically the Criminal Code – defines various criminal offences and sets out the procedures under which people can be arrested, tried, and sentenced for those offences - The Criminal Code is intended to deal with people who are aged of 18 or older - People in conflict with the law who are between the age of 12 and 17 inclusive are dealt with under the Youth Criminal Justice Act o Similar to the Criminal Code but has a more rehabilitative philosophy in recognition of the special status and needs of young people Common Law - Common Law – Comprises legal precedent; it is the body of decisions made in past cases with respect to specific issues - Common law may eventually become enshrined in statutory or even constitutional law - Parens Patriae recognizes that the monarch or state has the duty – again, both the responsibility and the authority – to care for citizens when they are unable to care for themselves - In Canada, the common law principle is, in part, enshrined in the civil mental health laws of the provinces and territories - Quebec differs from the rest of Canada; it relies on a civil code instead of common law - Civil code is a comprehensive set of legal rules and principles that guides legal proceedings and decision making ACLOSER LOOK AT CIVILMENTALHEALTH LAW - Civil mental health laws gives the provinces and territories power to interfere in the lives of citizens, including the authority to detain people against their will Involuntary Hospitalization - Civil Commitment – (aka Involuntary Hospitalization), is the process of detention of people against their will on the grounds that they pose a risk to themselves or others on account of mental disorder - Gov’ts have legal responsibility to protect citizens, and this includes the responsibility to protect the from the harmful consequences of physical or mental illness - Laws allowing involuntary hospitalization infringe on the basic rights and freedoms of citizens, and may be legally justified on two grounds: o Governments have parens pattriae powers to act as guardian or caretaker for people who are deemed unable to make decisions about their own health and welfare because they are physically and mentally ill o Governments have police powers to control people who threaten public order, whether or not they are physically or mentally ill - Involuntary hospitalization of mental disorder differs from Criminal Commitment o Criminal commitment is inherently and deliberately punitive o Intended to make people suffer for harms they have perpetrated and for which they are morally culpable - Involuntary hospitalization as a form of civil commitment is preventative and intended to minimize potential harm o The procedures for and conditions of involuntary hospitalization must not be punitive if it is to be legally justified - People may be involuntary hospitalized only if each of the following 3 criteria is met: o People must be suffering from a mental disorder; must be severe (causing serious impairment) and treatable (improved by treatment). Notes From Reading C HAPTER  19: MENTAL D ISORDER AND THE  LAW  PGS . 486­508) o People must be either unwilling to consent or incapable of consenting to hospitalization on a voluntary or informal basis. o People must be at risk for causing harm to self or others due to mental disorder - Process of involuntary hospitalization sometimes starts with emergency or short-term detention (ordered by a physician who has evaluated the patient) - Other cases, process beings with certification and commitment (people are already being assess or treated for mental disorder and thus there is no need to detain for further evals - Once the initial period of commitment is over, people may be recommitted if they continue to meet the criteria in the mental health act (often longer than initial) - Release from involuntary hospitalization happens either: o People may get better as a result of treatment or due to the passage of time o People may be released by a review board or panel despite lack of improvement Involuntary Treatment - Temporary Substitute Decision Maker – When patients are committed and deemed incapable of making decisions about treatment, someone must make treatment decisions on their behalf o May be a physician, director of a psychiatric unit, or private representative (family) that was chosen by the patient when capable of making decisions - Temporary substitute decision makers must exercise their judgement using 2 principles: o Best Interests Principle – choose treatment that maximizes the changes of a good outcome for the patient, taking into account the risks and benefits of all available treatments o Capable Wishes Principle – Patient’s personal wishes regarding treatment should be given the greatest weigh in the decision-making process, especially when these wishes were expressed previously when patient was competent - Compulsory Treatment Orders – Involuntary treatment on an outpatient basis have mental health acts that permit compulsory treatment orders o All require that the person has a history or recent psychiatric hospitalization - Strength of compulsory treatment orders: o Provides a means of ensuring that patients will receive treatment that may relieve their distress o Reduce the chances of relapse or re-hospitalization in a way that is less restrictive than involuntary hospitalization - Limitations of compulsory treatment orders: o Coercive: people are legally required to receive a treatment they do not want, and face the threat of involuntary hospitalization if they fail to comply o Critics says that compulsory treatment orders are used to coerce people into treatment who do not meet criteria for involuntary hospitalization becuase they pose a relatively low risk of harm to self or others o No evidence for effective in reducing health service use or improving clinical outcome and social functioning relative to traditional forms of treatment, voluntary or involuntary Reviews andAppeals - For involuntary hospitalization, reviews typically take place at the end of each period of commitment and also, under certain circumstances, at the request of patients - Patients do not have the right to be released from hospital while their commitment is under review or appeal Notes From Reading C HAPTER 19: M ENTAL DISORDER  AND THE LAW   PGS. 486­508) - Review panel will convene a hearing to consider evidence presented by the hospital to which the person was committed, as well as any evidence presented by the patients themselves` - For involuntary treatment, procedures are similar, except that treatment cannot begin until the matter is resolved, including any appeal Some Examples of Research on Mental Health Law in Canada - Who is involuntarily hospitalized? o There has been a major decrease in the rate of long-term hospitalization for mental disorder, referred to as deinstitutionalization o 15-20% of all hospitalization for mental disorder in Canada are involuntary o In a study conducted, they found that involuntary patients were more likely to be male, stayed in the hospital longer, were more likely to be diagnosed as schizophrenic, and more frequently has a criminal record prior to admission o Patient who were released appeared to have less serious mental disorder, spent less time hospitalized, and were perceived to be at lower risk for harm to self - How can violence risk be evaluated? o Violence risk is a key element in decision making with respect to involuntary hospitalization o Two approaches to violence risk assessment: discretionary and nondiscretionary o Discretionary approach is sometimes referred to as clinical, informal, or intuitive  Permits mental health professionals to exercise judgment in gathering relevant information and combining the information to make decisions  About kind of violence a patient might commit and how best to prevent the occurrence of violence or minimize the harm because by the violence  Strength: easily adapted to new/unusual situations, and idiographic, or responsive to the unique characteristics of the case at hand o Nondiscretionary approach is referred to as actuarial, mechanistic or algorithmic  Imposes strict rules on the assessment process  Instructing mental professionals as to exactly which information can and must be considered and exactly how the information should be weighted and combined to make decisions  Strength: encourages consistency o Example of discretionary approach is the HCR-20 where the 20 risk factors fall i
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