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Chapter 8

Psychology 2032A/B Chapter 8: CHAPTER 8 Text

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Western University
Psychology 2032A/B
John Campbell

CHAPTER 8 – THE ROLE OF MENTAL ILLNESS IN COURT Presumptions in Canada’s Legal System • Two elements that must be present for criminal guilt to be established: o Actus reus: wrongful deed o Mens rea: criminal intent • Must be found beyond a reasonable doubt for a guilty verdict to be reached Fitness to Stand Trial • Unfit to stand trial: inability to conduct a defence at any stage of proceedings on account of a person’s mental disorder • R. v. Balliram (2003) – concluded that an unfit person could not be sentenced • R. v. Prichard – key case for fitness standard; three criteria were delineated: o Whether defendant is mute of malice (ex: intentionality) o Whether defendant can plead to indictment o Whether defendants has sufficient cognitive capacity to understand trial proceedings • Fitness Standard – section 2 of Criminal Code  a defendant is unfit to stand trial if he or she is unable on account of mental disorder to conduct a defence at any stage of proceedings before a verdict is rendered or to instruct counsel to do so, and, in particular, unable on account of mental disorder to: o Understand the nature or object of proceedings o Understand possible consequences of proceedings o Communicate w/ counsel • Mental health law (commitment and treatment in psychiatric facilities) is under provincial/territorial jurisdiction Raising the Issue of Fitness • Issue of defendant’s fitness may be raised when a plea is entered, when a defendant chooses not to be represented by counsel and during sentencing • Criminal Code of Canada states that a defendant is assumed to be fit to stand trial unless court is satisfied on balance of probabilities that he/she is unfit • Burden of proving unfitness is on the party who raises the issue How many Defendants are Referred for Fitness Evaluations • Approx. 5000 fitness evaluations are conducted annually in Canada Who can Assess Fitness? • Traditionally, only medical practitioners have been allowed to conduct court-ordered assessments of such aspects as fitness to stand trial and criminal responsibility • Canadian Criminal Code excludes psychologists from conducting court-ordered assessments Fitness Instruments – Fitness Interview Test Revised (FIT-R) • Developed to meet fitness criteria outlines in Canadian Criminal Code • In the form of a semi-structured interview and assesses three psychological abilities stated in Code’s fitness standard • Each section contains several items that evaluator robes w/ defendant o Understand nature or object of proceedings ▪ Factual knowledge of criminal procedure • Defendant’s understanding of arrest process • Nature and severity of current charges • Role of key participants o Understand possible consequences of proceedings ▪ Appreciation of personal involvement in and importance of proceedings • Appreciation of range and nature of possible penalties and defences o Communication with counsel ▪ Ability to participate in defence • Defendant’s ability to communicate facts • Defendant’s ability to relate to his/her attorney • Defendant’s ability to plan legal strategy • Each response is rated on a 3-point scale, ranging from 0 (indicated no to little impairment) to 2 (indicates severe impairment) • Final decision involves 3 stages: o Determining existence of a mental disorder o Determining defendant’s capacity regarding each of three psychological abilities stated above o Examining previous information Distinguishing b/w Fit and Unfit Defendants • Referred defendants more likely to live alone, have a current violent offence, be diagnosed as psychotic, and had previous hospitalizations • Non-referred defendants more likely to have previous arrests and have substance abuse problems • Fit defendants were significantly more likely to have been married (married, divorced, separated, common law) than were unfit defendants • Unfit defendants were more likely to be older females belonging to a minority group and to have fewer marital resources • Incompetent defendants were less likely to maintain employment and had more serious mental illness than competent defendants • More African-American defendants were found incompetent compared w/ Caucasian defendants • Incompetent defendants were more likely to be charged with property and miscellaneous crimes rather than violent crimes compared with competent defendants • Defendants w/ a psychotic disorder were eight times more likely to be found incompetent than defendants w/out a psychotic disorder • Unemployed defendants were twice as likely to be found incompetent than employed defendants • Defendants w/ an earlier psychiatric hospitalization were twice as likely to be found incompetent than defendants w/out a history of hospitalization How is Fitness Restored? • When defendant is found unfit to stand trial, goal of criminal justice system is get defendant fit, usually through medication What Happens after a Finding of Unfitness? • In US, almost all jurisdictions limit time a defendant may be “held” as unfit • Jackson v. Indiana (1972) – US Supreme Court state that a defendant should not be held for more than a reasonable period of time to determine whether there is a likelihood of person gaining competency • Unfit defendants in Canada, judge may order that defendant be detained in a hospital or be conditionally released o Reassessed w/in 45 days o If remains unfit after 90 days, referred to a review board for assessment and disposition • Prima facie case: Crown prosecutor must prove there is sufficient evidence to bring case to trial • Bill C-10 – court has authority to stay proceedings for a defendant who is unlikely to become fit if any of the following are true: o Accused is unlikely ever to become fit o Accused does not pose a significant threat to safety of public o Stay of proceedings is in interests of proper administration of justice • Bill C-10 does not provide review board w/ ability to absolutely discharge an accused who is found unfit, only courts have this power Mental State at Time of Offence • Insanity: impairment of mental or emotional functioning that affects perceptions, beliefs, and motivations at the time of the offence • Two primary British cases that shaped current standard of insanity in Canada o James Hadfield ▪ 1800 attempted to assassinated King George III ▪ suffered brain injury while fighting against French ▪ met the insanity standard of the time in court o Daniel McNaughton ▪ Shot Drummond in the back, one of Prime Minister Robert Peel’s secretaries • Five critical elements emerged from McNaughton verdict, with three specific to insanity defences of today: o A defendant must be found to be suffering from a defect of reason/disease of mind o A defendant must not know nature and quality of act he/she is performing o A defendant must not know that what he/she is doing is wrong • Bill C-30 changed in 1992 o Term “guilty by reason of insanity” was changed to “not criminally responsible on account of mental disorder” (NCRMD) o Wording of standard was altered and stated in section 16 of 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 person incapable of appreciating nature and quality of act or omission or of knowing that is was wrong” o Review boards were created ▪ Review boards: legal bodies mandated to oversee care and disposition of defendants found unfit and/or not criminally responsible on account of mental disorder • Winko v. British Columbia – 1999: a defendant who is NCRMD should be detained only if he/she poses a criminal threat to public; otherwise, should receive absolute discharge Raising the Issue of Insanity • Ogloff, Schweighofer, Turnbull, and Whittemore (1992): defendants found NCRMD are likely to have major psychiatric disorders, such as schizophrenia, and many past mental health problems that resulted in hospitalization or prior rulings of unfitness • Male vs. female NCRMD: both found to have similar violent offences and likely to be aggressive toward other patients • In Canada, two situations in which Crown may raise issue of insanity: o Following a guilty verdict, Crown could argue that defendant was NCRMD. This situation may occur of Crown believes that defendant requires psychiatric treatment and a mental facility is best suited for defendant’s needs o If defence stats that defendant has a mental illness, Crown can then argue it. • Party that raises issue must prove it beyond a balance of probabilities Assessing Insanity – R-CRAS • Rogers Criminal Responsibility Assessment Scales (R-CRAS) – developed by Richard Rogers – 5 scales: o Patient reliability o Organicity o Psychopathology o Cognitive control o Behavioral control • Developed to standardize evaluations and ensure particular areas are evaluated, rather than produce a cut-off score to indicate criminal responsibility What Happens to a Defendant Found NCRMD? • Three dispositions can be made following a finding of NCRMD: o If defendant not a threat to society or poses low risk for reoffending, court or review board can order an absolute discharge – released into community w/out restrictions to his/her behavior o Conditional discharge – defendant is released but w/ certain condition that defendant must meet; if fail, incarceration or psychiatric facility o Defendant be sent to a psychiatric facility ▪ Need not comply w/ treatment • Only when defendant’s mental health has deteriorated to a point that he/she is no longer competent to make treatment decisions that steps may be taken to force treatment on defendant • In Canada, dispositions may be made by court or referred to a provincial or territorial review board • Dispositions made by court also reviewed by review board w/in 90 days and can be changed at any point o Exception: if court makes an absolute discharge – this decision does not go before a review board • Review boards review defendant’s disposition every year • Information that review boards consider: o Charge information o Trial transcript o Criminal history o Risk assessment o Clinical history (previous admissions to hospital) o Psychological testing o Hospital’s recommendation • Capping: notion introduced through Bill C-30 where there is a max period of time a person w/ mental illness could be affected by his/her disposition • When deciding on a disposition,
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