Health Sciences 3101A/B Lecture Notes - Lecture 5: Involuntary Commitment, Mental Disorder
10 Oct 2020
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Healthcare law lecture 5 notes – mental health, criminal justice, & civil commitment
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Learning objectives:
Part 1: criminal justice and mental health
Court-ordered psychiatric assessments and unfitness to stand trial:
• An accused may be detained and subjected to a comprehensive psychiatric assessment
if the judge has reason to believe that he or she 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 are unable, 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, they may be detained and treated without their consent for
up to 60 days
• If, after treatment, the accused remains unfit the trial will be stayed
o If the accused then becomes fit, the criminal proceedings will continue as if
fitness was never an issue
Not criminally responsible by reason of mental disorder:
• 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 that it was wrong”
• The 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
o R. v. Chaulk
o R. v. Dobson
• Everyone is presumed not to be suffering from a mental disorder of this nature
• The onus is on the party raising the issue
• If the accused is NCR, the court may make 1 of 3 dispositions: absolute discharge;
conditional discharge; or detention in a hospital
Healthcare law lecture 5 notes – mental health, criminal justice, & civil commitment
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• The court must impose the least onerous and restrictive disposition considering the
need to protect the public, and the accused’s mental condition, reintegration into
society, and other needs
• NCR accused cannot be treated against their will, even if treatment is in their best
interests
• Criminal Review Boards maintain authority over NCR and unfit individuals until they
have absolutely discharged
• The federal government recently amended the NCR provisions requiring courts to
consider public safety as the paramount concern
• The amendment creates a “high-risk” designation for accused found NCR for a “serious
personal injury offences”
• “High-risk” accused are not eligible for absolute or conditional discharges
o Rather they must be detained in hospital until a court, based on a Criminal
Review Board recommendation, removes the designation
Mental health and sentencing:
• General sentencing factors include: psychiatric, psychological or other problems;
willingness to address these issues; and ongoing risk
• Aggravating factors that courts must consider include: a history of violence; refusing to
take responsibility; and failing to seek or accept assistance for an underlying psychiatric,
psychological or other problem
• Mitigating factors that courts must consider include: having a physical or mental
disability; accepting responsibility; and a commitment to addressing psychiatric,
psychological or other problems
• Participation in treatment may be made a condition of probation, parole or a condition
discharge
o The accused may refuse consent to the treatment, but will likely not be granted
probation, parole or a conditional discharge
Dangerous and long-term offenders:
• The court must remand an offender for an assessment and consider the resulting report
before deciding whether to designate him or her a dangerous or long-term offender
• Dangerous offenders
o Limited to offenders who have been convicted of sexual, violent or other serious
offences and whose persistent aggressive conduct or brutality indicates that they
pose an ongoing threat to the life and safety of others; and
o Are typically subject to indeterminate imprisonment, restricted parole eligibility
and lifetime supervision if paroled
• Long-term offenders
o Limited 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
Document Summary
Healthcare law lecture 5 notes mental health, criminal justice, & civil commitment. If an accused is found unfit, they may be detained and treated without their consent for up to 60 days. If, after treatment, the accused remains unfit the trial will be stayed. If the accused then becomes fit, the criminal proceedings will continue as if fitness was never an issue. Not criminally responsible by reason of mental disorder: If the accused is ncr, the court may make 1 of 3 dispositions: absolute discharge; conditional discharge; or detention in a hospital. Healthcare law lecture 5 notes mental health, criminal justice, & civil commitment: are subject to a long-term supervision order of up to 10 years after release and parole has ended. Informal patients are incapable individuals who are admitted under their sdm"s authority and consent. Incapable individuals who are 16 or older can"t be admitted as informal patients against their will, except in limited circumstances.
