Chapter 5 Mental Health, Criminal Justice, and Civil Commitment

imissyou419's version from 2017-10-21 03:15

Section 1

Question Answer
Court-ordered psychiatric assessment and unfitness to stand trialan accused may be detained and subjected to a comprehensive psychiatric assessment if there is reasonable to believe he is currently unfit to stand trial or was mentally ill at the time of the offence;
all accused are presumed to be fit, unless the defence or prosecutor proves otherwise on a balance of probabilities;
An accused will be found unfit if they areunable, because of a mental disorder, to understand the nature or possible consequences of the proceedings, or to communicate with counsel
If an accused is found unfit, what happens?they may be detained and treated without their consent for up to 60 days
If, after treatment, the accused remains unfit, what happens?the trial will be stayed
If the accused becomes fit after being detained and treated, what happens?the criminal proceedings will continue as if fitness was never an issue
Not Criminally Responsible by Reason of Mental Disorder (NCR)individuals cannot be held criminally responsible if they were suffering from a mental disorder that rendered them "incapable of appreciating the nature and quality of the act... OR of knowing it was wrong";
SCC held that the defence may apply when the accused knows the conduct is legally wrong, but does not know that it is morally wrong;
everyone is presumed not to be suffering from a mental disorder of this nature;
T/F having a mental disorder gives rise to the NCR defenceF, it does not in itself give rise to the NCR defence, the accused must prove that the disorder rendered him incapable of appreciating the nature and quality of the act or of knowing it was wrong. The party that raises the issue bears the burden of proving it.
If the accused is NCR, what happens, the court may take 1 of the 3 dispositions: and what must the court consider?absolute discharge, conditional discharge, or detention in a hospital;
the court must impose the least onerous and restrictive disposition considering the need to protect the public, the accused's mental condition, reintegration into society, and other needs
Can NCR accused be treated against their will?No, even if the treatment is in their best interests
Who maintains authority over NCR and unfit to stand trial individuals until they have been absolutely discharged?Criminal Review Boards;
individuals who no longer pose a significant threat to the safety of the public must be discharged absolutely, even if they exhibit signs of untreated mental illness
How did the federal government amend the NCR provisions?requires courts to consider public safety as the paramount concern;
the amendment creates a "high risk accused" designation for accused who are found to be NCR for a "serious personal injury offence";
"high-risk" accused are not eligible for absolute or conditional discharge. Rather they must be detained in a hospital until a court, based on a Criminal Review Board recommendation, removes the designation
Mental Health and sentencing general factors includepsychiatric, psychological or other problems; willingness to address these issues; and ongoing risk
Aggravating factorsa history of violence, refusing to take responsibility, and failing to seek or accept assistance for an underlying psychiatric, psychological or other problem
Mitigating factorshaving a physical or mental disability, accepting responsibility, and a commitment to addressing psychiatric, psychological or other problems
Participation in treatment as a condition of probation, parole, or a conditional discharge. What happens if they refuse consent to the treatment?will likely not be granted probation, parole or a conditional discharge
What must the court do prior to designating an offender as a dangerous or long-term offender?the court must remand an offender for an assessment and consider the resulting report
Dangerous offenderslimited to offenders who have been convicted of sexual, violent or other serious offences and whose persistent aggressive conduct or brutality indicates they pose an ongoing threat to the life and safety of others; and are subject to indeterminate imprisonment, restricted parole eligibility and lifetime supervision if paroled
Long term offenderslimited to offenders convicted of a sexual, violent or other serious offence that warrants at least 2 years imprisonment and who pose a substantial risk of reoffending that may eventually be controlled in the community; and are subject to a long-term supervision order of up to 10 years after release and parole has ended

Section 2

Question Answer
What does the MHA aplpy to?in- and outpatients of psychiatric hospitals.
It also governs the apprehension and detention of individuals who are believed to be mentally-ill and at risk of harming themselves or others
What does MHA not apply to?does not generally apply to other types of mental health services or patients who are seeing a psychiatric or psychologists in the community
MHA does not provide authority fortreatment of psychiatric patients. Rather, the consent, capacity and substitute consent provisions of HCCA and SDA govern these matters
Voluntary patientscapable individuals who are admitted to psychiatric facility on their own behalf. Although voluntary patients cannot be detained, their status may be changed if they meet the criteria for involuntary admission
Informal patientsincapable individuals who are admitted under their SDM's authority and consent; incapable individuals who are 16 or older cannot be admitted as informal patients against their will, except in limited circumstances (incapable individuals under 16 can be admitted against their will)
Involuntary patientsindividuals detained in a psychiatric facility under a certificate of involuntary admission or renewal; their admission is based on statutory authority and not their consent or that of their SDMs
MHA section 15sets out the circumstances in which a physician may apply for a psychiatric assessment of a person.
MHA contains somewhat similar provisions authorizing police, justices of the peace and judges to apprehend or arrange for the apprehension and detention of individuals who are believed to be mentally-ill at at risk.

Cases often turn on whether the physician:
- HAD REASONABLE CAUSE TO BELIEVE that 1 of the criteria in s 15(1)
a) has threatened or attempted .. to cause bodily harm to himself;
b) has behaved... violently toward another person or has caused.. another person to fear bodily harm from him; or
c) has shown.. a lack of competency to care for himself; and
WAS OF THE OPINION that the person's mental disorder would LIKELY RESULT in
a) serious bodily harm to the person
b) serious bodily harm to another person, or
c) serious physical impairment of the person
If the requirements of s 15(1) are met, the physician must do what?complete a Form 1 and sign it within 7 days
What does Form 1 authorize?provides authority to apprehend the person, and detain and assess them in a psychiatric facility for up to 72 hours.
What does Form 1 not authorize?does not provide authority to treat the person
After the assessment is completely, the physician must decide whatif the person is to be released, admitted as a voluntary, informal, or involuntary patient
Section 20(5) sets out criteria for issuing a certificate of involuntary admission
If requirements for s 20(5) are met, the physician must do whatcomplete a Form 3
What does Form 3 authorize?provides authority to detain, restrain, observe and examine the patient for up to 2 weeks; aka "certificate of involuntary admission"
Upon completing a Form 3, what must the physician notify the patient?physician must notify the rights adviser and inform the patient of their various legal rights (+ reasons for the detention, rights to a CCB hearing, right to legal counselling)
Certificates of renewalif the patient continues to meet involuntary admission criteria, attending physician may complete a first, second, third "certificates of renewal" authorizing the patient's hospitalization for an additional 1, 2, 3 months respectively; Thereafter, a patient who meets the involuntary admission criteria is held on "certificate of continuation" each providing authority to detain the patient for 3 months
CTO may only be issued or renewed ifif the patient meets the criteria for involuntary admission,
within the past 3 years, the patient must: have been admitted to a psychiatric facility on 2 or more occasions or for a cumulative period of at least 30 days; or have been the subject of a previous CTO;
the physician must have examined the patient in the past 72 hrs and believe that the patient has a mental disorder, such that the patient needs continuing treatment, supervision or care while living in the community;
the additional criteria include: the consent of the patient (or SDM), consulting broadly in developing the community treatment plan, and ensuring the patient (or SDM) has been informed of their various legal rights
When does a CTO expire?after 6 months, unless it is renewed or terminated
Under what circumstances is the CTO terminated?at the patient's (or SDM's) request, or if he withdraws consent to the treatment plan
What happens if the treatment plan is breached? what happens upon return to the facility?the physician may issue an order of examination, which authorizes the police to apprehend the patient;
On the patient's return to the facility, the physician must examine the patient to determine if he should be released, held for psychiatric assessment, or subject to another CTO
When must the rights advisor be notified?when a certificate of involuntary admission is issued or renewed; or when, subject to certain exceptions, an informal patient between the ages of 12-16 is admitted
Are patients required to meet with a rights advisor?No, but if they do not the adviser must notify the attending physician
Role of the rights advisorexplain to the patient his or her rights, and to assist the patient in exercising them e.g. a rights advisor must promptly meet with involuntary patients and explain to them the significance of the involuntary admission certificate and their right to have the CCB review the certificate
Involuntary patients and CCBinvoluntary patients and those subject to a CTO may apply to the CCB to determine if the statutory criteria were met. A mandatory review is conducted when the patient's first certificate of continuation ends, at the end of every 4th certificate of continuation, and when there is a second renewal of a CTO
Any party to a CCB proceeding may appeal its decision tothe Ontario Superior Court of Justice
Consent to psychiatric treatment is governed byHCCA's general principles of consent; thus in order to treat a voluntary, informal, or involuntary patient in a psychiatric facility, a physician must be of the opinion that the patient is capable and consented to the proposed treatment, or of the opinion that the patient is not capable and his/her SDM consented
MHA does not permit what in regard to consenta patient's (or SDM's) refusal of consent to be overridden, even if the proposed psychiatric treatment is clearly in his/her best interests
Does the MHA authorize health professionals to restrain involuntary patients?yes, "restrain" as placing a patient under control when necessary to prevent serious bodily harm to the patient or another person by the minimal use of physical force, or by mechanical or chemical means ; the restraint must be fully documented.
Although the MHA does not authorize restraining voluntary or informal patients, health professionals have common law authority to do so in order to prevent them from injuring themselves or others
MHA prohibits what kind of surgery on involuntary patients?prohibits psychosurgery on involuntary patients or patients who are incapable of consenting to the surgery on their own behalf. The term does NOT include electroconvulsive therapy or specified neurological procedures
T/F Patient consent must be given for information be collected, used, and disclosedF, patient information may be collected, used, and disclosed without consent for the purpose of: examining, assessing, observing, or detaining a psychiatric patient; or complying with a Criminal Code order or disposition
Under what circumstances can MHA provide broad authority to collect, use, and disclose patient information without consentissuing or renewing a CTO, and co-ordinating the treatment, counselling or care of patients on a CTO
MHA provisions governing the right of patients to access and seek correction of their recordswere repealed and these issues now governed by PHIPA

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