Forensic Psychiatrists - Canada

Canada

In Canada certain credentialed medical practitioners may, and apparently at their sole discretion, make state-sanctioned investigations into and diagnosis of "mental illness". These diagnoses appear to be based at least in part, and in some cases entirely upon, the investigator's expressed perception of the validity of the subject's thoughts and beliefs. This aspect of diagnosis is manifest in the Diagnostic and Statistical Manual of Mental Disorders IV Text Revision (DSM-IV-TR) glossary definition of "delusion" which begins; "A false belief based on...", and is found on page 821 of the DSM-IV-TR and, similarly, elsewhere. Significantly the presence of "delusions" seem to form a primary criterion for the diagnosis of the majority of DSM-IV-TR "psychotic" disorders including Schizophrenia and Schizoaffective Disorder (Criterion A1 in the case of Schizophrenia). The DSM-IV-TR also states that "No laboratory findings have been identified that are diagnostic of Schizophrenia". This statement is also applied to Major Depressive episodes and Manic episodes.

The application of DSM-IV-TR criteria to the various pieces of criminal as well as federal health and provincial mental health law in Canada seems still to occur in spite of their conflict in this respect with Section 2(b) of the Canadian Charter of Rights and Freedoms, which guarantees the "fundamental" "freedom of thought, belief, opinion and expression". Part VII -- General, of the Canadian Constitution Act, 1982 states that "any law that is inconsistent with the provisions of the Constitution "...(which contains the Charter of Rights and Freedoms)..."is, to the extent of the inconsistency, of no force or effect".

The potential for state sanctioned involuntary detainment and treatment exists pursuant to the Criminal Code of Canada, and these health acts. The Ontario Mental Health Act, for example contains references to circumstances under which involuntary admission to psychiatric facilities can occur.

However, legal involvement and involuntary detainment and treatment is not fundamental to the DSM-IV-TR nor, again according to the DSM-IV-TR, are implications of violent behavior at frequencies exceeding that of the general population attributed to those diagnosed. To a significant degree courts are in fact cautioned against the use of DSM-IV-TR diagnosis in the DSM-IV-TR introduction itself in its section entitled Use of DSM-IV-TR in Forensic Settings.

In the Canadian criminal justice system, again, in spite of the Charter Freedoms, individuals continue to be subjected to discrimination based on DSM IV diagnosis within the context of part XX.1 of the Criminal Code of Canada, . This part sets out provisions for, among other things, court ordered attempts at "treatment" before individuals receive a trial as described in section 672.58 of the Criminal Code. Also provided for are court ordered "psychiatric assessments".

Confidentiality
The position of the Canadian Psychiatric Association itself, stated in The Confidentiality of Psychiatric Records and the Patient's Right to Privacy(2000-21S), and holds that "in recent years, serious incursions have been made by governments, powerful commercial interests, law enforcement agencies, and the courts on the rights of persons to their privacy." It goes on to state that "breaches or potential breaches of confidentiality in the context of therapy seriously jeopardize the quality of the information communicated between patient and psychiatrist and also compromise the mutual trust and confidence necessary for effective therapy to occur."

An outline of the Forensic Psychiatric process as it occurs in the Canadian Province of Ontario is attempted in the publication The Forensic Mental Health System In Ontario published by the Centre for Addiction and Mental Health, in Toronto. The Guide states; "Whatever you tell a forensic psychiatrist and the other professionals assessing you is not confidential". The Guide further states; "The forensic psychiatrist will report to the court using any available information, such as: police and hospital records, information given by your friends, family or co-workers, observations of you in the hospital". Also according to The Guide;"You have the right to refuse to take part in some or all of the assessment. Sometimes your friends or family members will be asked for information about you. They have the right to refuse to answer questions too.".

It is noteworthy that the emphasis in The Guide is on the right to refuse participation. The adversarial tone of The Guide may seem unusual given that a result of Not Criminally Responsible by reason of Mental Disorder (NCR) verdict is often portrayed as desirable to the defense. The Insanity defense is the language used to describe the equivalent process in the United States. The language here in Canada can be confusing. In the popular sense NCR is a "defense" (for example in this page from The Supreme Court of Canada website which refers to "mental illness defense" ). The Criminal Code of Canada describes "defense of mental disorder" in Part I General section 16. However it is a "defense" which can be imposed by the court or the crown, not one that is sought only through application by a defendant or "the defense" in the usual sense. This process is also described in section 672.12 of The Code. Essentially, the Crown (an adversarial entity in Canadian law) or the Court itself (a neutral entity) can make an application to "defend" the "defendant" against the wishes of "the defense".

Also noteworthy is that an accused placed in a hospital setting is there presumably due to a perception at some level that there are reasonable grounds to believe that that person is ill in the first place. It is difficult to imagine then that they or those around them would not need, or at very least feel a need, to divulge information to that hospital in order to secure appropriate treatment. Indeed information about allergies, medications, past diagnosis etc. may be fundamental to the safety of any stay in custody whether there is an actual "need" for hospitalization proper, or not.

This raises the reasonable possibility that if the information in the guide is correct, and that "any information" can be used for the purpose of reporting to the court, that a dynamic of torture is set up whereby the court is apprised of information gathered from accused persons, their families, and their doctors under the premise of its necessity for the purpose of ethical medical treatment.

Treatment/Assessment Conflict
In Ontario a court ordered inpatient forensic assessment for criminal responsibility will typically involve both treatment and assessment being performed with the accused in the custody of a single multi-disciplinary team over a thirty or sixty day period. An accused may, as may any of the other potential sources mentioned, feel compelled on ethical, medical or legal grounds to divulge information, medical or otherwise, to "assessors" in an attempt to allow for and ensure safe and appropriate "treatment" during that period of custody. This to their own benefit and to that of other "patients" and the facility staff themselves. An accused placed in the custody of a forensic psychiatric practitioner or entity imbued with the dual, and conflicting, responsibilities of caregiver and assessor may be compromised for that reason. Involved parties may also be moved to provide information as a result of concern over how victims, the families on both sides, they themselves, or indeed "society" may be affected by perceived possible outcomes.

The author is at a loss to find an instance of reference to the occurrence of this dual assessment/treatment paradigm in an inpatient criminal setting without citing case law apparently covered by publication ban. The omission of statements ruling out the dynamic of assessment/treatment conflict in The Forensic Mental Health System in Ontario an Information Guide and in descriptions of various Forensic inpatient assessment units in Ontario; Whitby, CAMH, Royal Ottawa, Thunder Bay is perhaps telling enough.

There are however abundant internet references to treatment/assessment conflict as it relates to various justice systems, particularly civil litigation in other jurisdictions including, .

The American Academy Of Psychiatry and the Law does state in its ethics guidelines that "when a treatment relationship exists, such as in correctional settings, the usual physician-patient duties apply." It is however not clear whether this statement refers to evaluation in a correctional setting or treatment of those living in a correctional setting independent of the involvement of the court system. Arguably the practice of psychiatry involving incarcerated persons independent of the court's interest is by definition not truly forensic psychiatry, but simply psychiatry, though it may be offered by a practitioner with forensic qualifications who happens to practice in a correctional institution.

The dynamic of assessment/treatment conflict, particularly in a court mandated inpatient setting, arguably constitutes "torture". The dangers reasonably perceived and associated with modern psychiatric treatment, and the potential dangers of non-treatment or mistreatment as a result of the lawful omission of information pertaining to an accused by the accused or by interested third parties cause an ethical dilemma. It is akin to placing a person with any dangerous illness or disease into custody, isolating them from outside treatment, and telling them, their families, their doctors, and anyone else with pertinent information, that if they give that information, which they may reasonably feel is vital to management of that disease, that that information can and will be used to produce a case against that person in a court of law.

Notably the experience of torture applies not only to an accused but potentially to third parties such as witnesses, families, friends, associates, doctors, caregivers, police, and even victims. Any party from which information relating to the accused or alleged crime may be collected is vulnerable to the dynamic. The process thus appears to allow these parties to suffer torture as described in section 269.1(1)(a)(i) of the Criminal Code of Canada which states "torture" means any act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person (a) for a purpose including (i) obtaining from the person or from a third person information or a statement. The United Nations Convention Against Torture provides a similar set of criteria. The condition of being tortured set out in these texts seems also to extend to members of the forensic mental health and Justice community itself faced with the conflicting demands of ethical medical care and the precedent of court mandated assessment in an environment that does not separate these two roles.

Outcomes
With a finding of "Not Criminally Responsible on Account of Mental Disorder" as described in section 672.34 of the Criminal Code lifelong restrictions on freedom, mandatory "treatment", and indefinite detention subject to periodic non-judicial review appear possible well beyond the scope of set limits for detention of those found to be criminally responsible for the same or even much more serious offenses. Section 672.12 of the Criminal Code states "The court may make an assessment order at any stage of proceedings against the accused of its own motion, on application of the accused or, subject to subsections (2)and (3), on application of the prosecutor" implying that the test is not universally applied.