July 5 juillet 8:30 – 12:15
(extended session)
Room NCDH–201
Chair:
Richard Cooper
, Federal Court of
Australia
Discussant: Hy Bloom
, University of Toronto
Expert examiners are often called upon to examine an injured
person and answer the question of What is causing their symptoms? We will
explore here the specific issues of causation, such as cause-in-fact, proximate
cause and remoteness, convenient focus, and thin (eggshell) skull or thin
(eggshell) psyche rules from the point of view of the information that may be
brought forward by the examiner. We shall do so by looking at examples of
chronic pain e.g., the late whiplash syndrome and post-traumatic stress disorder
following accidents. Although the legal concepts and rules are relatively
straightforward, such cases are often complex or lead to apparently opposite
judgements because, too often, diagnostic labels are applied without an explicit
statement of the probable illness mechanism.
The purpose of this paper is to critically describe the way
in which the courts have analyzed claims for psychiatric illness. In this paper,
I will draw attention to the problems that exist in determining the causation of
psychiatric disorders for the purposes of deciding issues of compensation. What
is at issue is the different standards of causation that operate in law and
medical psychiatry. In the former, it is necessary to show only that on the
balance of probabilities, a chain of causation exists, showing that the
defendant’s conduct “caused the plaintiff’s psychiatric illness”.
Whereas in the latter, issues of causation present even greater problem as they
are confined to issues of diagnosis of mental disorders, multifactorial
etiologies, and the degree of psychiatric impairment.
In addition, the discussion will turn to the revised interpretation of Post Traumatic Stress Disorder encapsulated in the Diagnostic Statistical Manual for Mental Disorders (DSM-IV-TR) and the International Classification of Diseases (ICD-10). The purpose of this examination is to question the method adopted by practitioners and judges in interpreting the manual. This is seen from a methodological assessment of diagnostic concordance in the light of inherent problems of psychiatric classifications and malingering. This assessment will ultimately relate to psychiatric classification of individual patients who are subjected to an intense trauma, fear and helplessness , unable to relate to what had taken place, not able to realize that the psyche is muddled or reorganised. In the absence of an actual physical lesion, the courts have become skeptical and wary of extending the defendant’s liability to cover alleged damage, such as psychiatric illness. The inherent fears are that evidence can be confabulated and based on false premise, i.e. repressed and false memory. Hence, the courts make a linguistic interpretation in view of the struggle between the law and psychiatric illness.
The legal theories of undue influence are reviewed to
highlight the unavoidable relevance of the susceptibility theory. The
susceptibility theory is discussed with a view to the creation of indicia of
susceptibility to influence in the mentally impaired. These indicia are compared
to the common law indicia of undue influence in order to show that they are
distinct, although related. A reported case from the Ontario courts is used as
an illustration of the complexities that susceptibility to undue influence poses
for the legal system.
Recently, the Ontario Court of Appeal quashed a conviction for attempted murder and proceeded to find that the accused/appellant was unfit to stand trial. At trial, the accused was unrepresented. Throughout the proceeding the accused displayed substantial signs of mental illness. While the Crown observed that this situation was one that the court “may wish to consider”, the Judge simply asked the accused whether or not he was fit to stand trial and, with an affirmative answer, proceeded with the trial. The Court of Appeal indicated that the trial judge should have directed a trial of the issue. The Criminal Code of Canada makes such an inquiry discretionary. What should the trial court do?
Mental Health Courts in North America have taken somewhat different approaches to solving the problem of the criminalization of the mentally ill.
This paper will describe the origins of the Mental Health Court approach, the common features and differences among various courts and the issues that arise from the Mental Health Court models.
It will discuss various judicial approaches and the tension
created within the criminal justice system when the judge “enters the
arena”.
Forensic psychiatric reports are the essential vehicle for conveying an expert psychiatrist’s findings following the assessment of an accused in a criminal matter, and are by far, the most basic work product or outcome of a forensic psychiatric evaluation.
The role of mental health experts is expanding in the criminal courts, and this is so notwithstanding the ongoing debate about the usefulness or appropriateness of psychiatric participation in criminal proceedings.
Judges vary in their knowledge of and familiarity with mental health issues and in their attitude about the usefulness of mental health experts in the courts. These attitudinal differences could influence the way they see and manage mental health issues as they arise relatively frequently in criminal proceedings.
No systematic study has yet been carried out in Canada to determine precisely what features of psychiatric reports and psychiatric expert participation judges find useful.
The current presentation will first review the current literature dealing with the subject of judge’s attitudes towards psychiatric participation in legal proceedings. The presenter will then report on the first study of its kind in Canada; the study examines the effectiveness and value of psychiatric input and testimony at various stages of criminal proceedings. The study involved the development of a questionnaire that addressed the circumstances in which psychiatric reports were considered helpful. The questionnaire further canvassed judge’s attitudes towards psychiatric evidence for the purposes described and the role of psychiatry within the overall legal framework. One hundred and ninety-one questionnaires were forwarded to Provincial Criminal Court Judges; sixty-three responded. The results indicated that a significant number of judges found psychiatric reports to be helpful at all stages of criminal proceedings. Recommendations designed to enhance the quality and usefulness of psychiatric participation in court will also be discussed.
Part I: In Ontario, a physician determines if a patient is capable of consenting to psychiatric treatment. The patient can apply to a board for a review of this finding and decisions of the review board can be appealed to the courts. Once an application for review is initiated, treatment cannot begin until the matter is resolved. We studied delays in initiating treatment associated with 334 applications made by 237 patients at two psychiatric hospitals between 1990 and 1999. Forty-nine patients applied more than once, with one patient making 11 separate applications. The diagnostic breakdown was schizophrenia, 45%; bipolar disorder, 24%; schizoaffective disorder, 18%; and other psychotic disorders, 13%. Patients withdrew 22.7% of the applications prior to a hearing, 3.6% were reassessed by the physician to be capable of consenting to treatment and 2.7% of applications were dismissed without a hearing. Thus, 70.9% of the original 334 applications resulted in a hearing. The review board overturned the physician’s finding of incapacity in 5 (2.1%) of these 237 hearings. The average time between an application and the review board hearing was 7.5 days (range 1 to 59). In the absence of an appeal of the review board’s finding to the courts, the average delay in initiating treatment was 25 days. Whereas, of the 15 patients who appealed to the courts the average delay in initiating treatment was 253 days (330 days for the 7 patients who eventually had a court hearing). The court did not find any patient capable.
Part II: The effects of these delays in initiating
treatment include prolonged individual suffering, increased self harm, increased
use of seclusion and restraint, worsening of the long-term prognosis,
deterioration of the therapeutic alliance, increased frequency of assaults,
creation of a non-therapeutic ward milieu, demoralization of health
professionals, blocking of scarce inpatient beds, redirection of limited
financial and clinical resources to non-treatment activities and, paradoxically,
the deprivation of liberty rights by withholding standard clinical treatment
necessary to effect release from involuntary detention in hospital.
Can withholding treatment be justified in the face of these detrimental
consequences? We suggest that delay cannot be justified in the absence of
evidence to show that stays of treatment during legal reviews of incapacity
prevent the administration of inappropriate treatment to substantial numbers of
individuals. This evidence does not exist. Review panels and courts seldom
overturn a finding of incapacity and almost never do so when a first level of
judicial or quasi-judicial review has confirmed incapacity. We thus recommend
that non-urgent treatment begin immediately after the first level of review
which should take place within a clinically appropriate period, i.e. within a
week of a patient challenging a finding of incapacity.
The recent case of R. v. MacDonald highlights the
conflicting obligations of psychiatrists acting on behalf of courts or crown
attorneys in assessing accused persons for fitness to stand trial and for
criminal responsibility. Under
section 672.11 of the Criminal Code, accused persons may be assessed by a
physician, commonly a psychiatrist, for this purpose.
However, the psychiatrist has significant ethical and legal obligations
to the accused as a patient, which sometimes conflict with their court-ordered
responsibilities. In particular
cases, this dual-agency problem raises significant ethical difficulties.
Clearly, the psychiatrist cannot simply abandon either set of
responsibilities, so such conflicts must be managed rather than definitively
resolved in favour of one or the other obligation.
Accused persons, particularly those for whom mental capacity
is an issue, may not appreciate the ramifications of divulging certain
information to the forensic psychiatrist. The
subsequent use of that information may be unfairly prejudicial to the accused.
Issues surrounding consent to treatment, as distinct from the psychiatric
assessment, are complex. Treatment
itself may be controversial, since many lawyers believe that some clients, for
whom the defense of not criminally responsible is to be advanced, are better
served by not having psychiatric treatment prior to their trial.
Cases drawn from the Canadian criminal courts are presented
and discussed to highlight some of the conflicts inherent in forensic
psychiatric practice.
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