BCMJ, Vol. 41, No. 7, September 1999, page(s) 382-385—Article

Elisabeth Zoffmann, MD, FRCPC

Criminalization of the Mentally Ill

Families, social workers, police, and general practitioners too often look to the forensic system to help them achieve what the underfunded mental health system cannot. It is an expensive alternative.

Over the past 7 years, the number of people referred for forensic assessment and treatment has increased rapidly, outdistancing the natural occurrence of mental illness in the population at large. Most, if not all, patients who are retained in the forensic system would, in the past, have resided at long-term hospitals such as Riverview or Tranquille for ongoing care and asylum. There has been argument that changing criteria for civil commitment, deinstitutionalization of mental patients, and changing social values are responsible for the increasing numbers of people in jail with serious mental illness.1-4 Evidence is mounting that, in fact, mentally ill people are simply being moved from one institution to another.5-8

This article examines some of the factors that may be contributing to this phenomenon from both a local and general perspective.

Civil commitment laws

The trend of change in these laws began in the United States and has slowly made its way across Canada. Old laws were thought to be too paternalistic and did not allow mental patients their constitutionally guaranteed rights and freedoms.9-10 The decisionmaking process has been taken away from clinicians and has been turned into an adversarial process in which the patient’s best interests are the last item of priority.

Most civil commitment laws in the US require that the person be proven to be an actual, immediate danger to self or others before involutary hospitalization can occur.11,12 Unfortunately, the patient must display “dangerous” behavior in order to fulfill these criteria sufficiently to satisfy a judge. While the observed trend is for the judiciary and clinicians to bend the rules back toward a more common-sense, paternalistic, or best-interest outcome, patients must become severely ill to be brought before a civil commitment panel. Given that a person must display dangerous behavior before civil commitment can occur, there is a great risk that a disturbed person will be arrested and charged long before he or she can get to a hospital.12-17

British Columbia’s Mental Health Act has some of the broadest, least restrictive language and regulations in Canada. In the Appeal Court of British Columbia decision in McCorkell v. Riverview, the judges clearly defined the word “protection” in the broadest possible terms. This appeal was brought by Mr McCorkell when Riverview Hospital detained him under the Mental Health Act because his chronic mental illness and noncompliance with treatment would inevitably lead to deterioration of both his physical and mental health. The Court gave the opinion that the term “protection” includes both physical and psychological harm and may refer to things such as a simple inability to care for oneself. It may also include protecting family members from verbal abuse, harassment, or disastrous financial incompetence (as is often encountered in those suffering from mania). It is clear that dangerous behavior is only one of a number of possible reasons for detaining a person under the Mental Health Act.

Unfortunately, this act is not being applied consistently in different hospitals or jurisdictions or by different clinicians. The reasons for this arise from a number of sources.

First, many clinicians have a mistaken belief that they may face civil litigation if they certify a person under the Mental Health Act. The act specifically protects physicians against this result. Although it has not yet come to this in British Columbia, we are much more likely to be liable for failing to certify patients than for acting to protect them or others from harm.

Second, physicians are under pressure from civil liberties groups to change their treatment of mental illness. The trend here is to follow the lead of the US, where civil libertarians are pressing to have patients “dying with their rights on”.9 This leads physicians to apply ever-narrower “dangerousness” criteria when considering whether patients meet the local standards for civil commiment.

A third local factor is the Review Panel system. When initiating certification, physicians are using the protection.  While this approach is contrary to good medical practice and common sense, panels are driven by legal criteria that may seem to medical practitioners to be counterintuitive. This problem may be remedied by the new Mental Health Act (1998).

The conflict between entrance and exit criteria causes physicians to second- guess their decisions, and they often fail to certify patients who they predict will be released by Review Panels. Patients can be discharged by panels long before they are clinically ready. In the end, doctors become nihilistic about the chances of keeping a patient in treatment long enough to make a significant difference in the illness.

 

Budgetary issues

The ever-shrinking mental health budget means there are fewer and fewer beds for acute and chronic treatment of reason for failing to admit a patient, it continues to happen. Families, social workers, police, and general practitioners become frustrated and cynical about the inability of the mental health system to respond to the needs of the mentally ill. They look to other systems to help them achieve what the underfunded mental health system cannot.

Another effect of budget pressures and resultant shortened lengths-of-stay is that medical practitioners do not have the opportunity to observe that patients do respond to treatment if only it is applied long enough. For example, some patients take upwards of 6 to 24 months to respond to a trial of clozapine. If the patient’s initial response is equivocal, there is pressure to stop the medication at 6 months to obtain a rebate for the cost of the drug. In such a case, the patient is robbed of the opportunity for better mental health, and the clinician does not learn that the illness is in fact treatable. Seeing patients cycling in and out of hospital and not getting well engenders a certain degree of nihilism and decreases the likelihood that further attempts at treatment will be made. This negative outlook is compounded by the fact that mental illness such as schizophrenia worsens with each untreated episode.

A further consequence of our inability to treat patients to a point of wellness is that there is a slow but discernible shift in the diagnostic perception of mental illness. Where psychiatrists used to be able to see that behavioral dysregulation, including aggression, was part of the presentation of severe mental illness, there is now a tendency to view psychotic behavior as criminal and worthy of detention rather than treatment.

 

Bill C-30

The pathway to criminalization of the mentally ill was further paved by the passage of Bill C-30, which changed the Criminal Code of Canada. This bill established Review Boards to oversee the treatment and supervision of accused persons found “not criminally responsible by reason of mental disorder”. This system was thought to be less onerous than the previous “Lieutenant Governor’s Councils”, which were politically appointed bodies that rarely granted discharges to those detained under a “warrant of committal” in hospital.

That decision has led to increasing numbers of mentally ill people being processed through the courts when they cannot or will not obtain mental health treatment through the medical system. 4,18,19 Families and others are encouraged to press charges, believing that the offender can obtain treatment through the forensic system. Communities that are at their wits’ end between difficult-to-manage patients and a lack of resources also fall back on the legal solution.

From a systems point of view, this strategy is effective. First, it removes the individual from the community, and second, it may achieve consistent treatment. The current system of treatment of mentally ill people detained under warrants of committal is effective. The length of treatment is adequate, the degree of aftercare is intensive, and the rate of relapse is relatively low, considering that our patient population is generally severely ill. We deliver standard mental health care. However, it is very costly.

Instead of a simple admission to hospital with sufficient time for recovery and proper aftercare, these patients have multiple contacts with the legal system as well as the forensic psychiatric system. Police, legal-aid lawyers, Crown attorneys, sheriffs, bail supervisors, judges, courts, social workers, jail personnel, and many others become involved before adequate health care is obtained. If they are retained by the Review Board system, the costs continue to mount. Each yearly hearing costs more than $5000—not including the time physicians spend preparing re-Commuports for or attending these hearings. Much more consideration should be given to diversion from court, along with increased resources for our mental health system.20-23

 

Case studies

Case A

Mr A went on a 4-day methamphetamine binge. By the fifth day he had stopped. He developed an acute psychosis and was brought to hospital by his relatives. Neither the emergency physician nor the consultant psychiatrist interviewed the family members who could give clear examples of his hallucinations and delusions. During the direct interview, Mr A was incoherent but did admit to recent amphetamine abuse. He was sent away from hospital over his family’s protests and was told to seek treatment at a detox unit. The family was told that resources could not be wasted on drug abusers.

Four hours later, Mr A attacked a stranger while in a paranoid delusional state.

To date, Mr A has had four court appearances. He has a legal-aid lawyer. He is in jail awaiting trial (he had been employed). He spent 3 weeks in a forensic hospital for assessment. He will likely require a preliminary hearing and will go to trial. At his trial, there will be expert testimony regarding his mental state at the time of the offence. He may be found not criminally responsible on account of a (temporary) mental disorder (NCRMD), and, if so, he will certainly be seen by the Review Board a number of times before he receives an absolute discharge.

It would have been far more economical to treat Mr A when he presented to hospital in an acute psychotic state. The problem was that the focus on his drug abuse prevented the physicians from properly identifying his psychosis.

 

Case B

Mr B was chronically psychotic and chronically noncompliant with treatment. His family was very frustrated with the mental health system. They felt that doctors were not listening to them, and their son was not being certified when he was a risk both to himself and to them.

Mr B was often aggressive toward his family when his demands were not met. He would strike out impulsively. He was always aware of his actions and knew that they were wrong. Mr B was clearly a candidate for long-term hospitalization.

During his most recent episode of illness, Mr B was not certified. Instead,his family was advised to press charges so that a forensic solution could be applied. Mr B was found NCRMD with the cooperation of Crown, defence, judge, and psychiatrist, even though it is difficult to understand how he could have met the criteria set out in Section 16.1 of the Criminal Code of Canada. He is now under the auspices of the Review Board.

 

Case C

Mr C was aggressive toward his parents because they would not let him live with them. He had been evicted from the only psychiatric boarding home in his remote corner of the province. He too was charged so that a solution could be found for his housing and psychiatric care problems. The assessing psychiatrist applied Section 16.1 CCC appropriately, and Mr C went to jail, where his mental condition deteriorated further. There, he developed paranoid delusions and struck another inmate and a guard, both of whom were hospitalized. The guard is still on medical leave, covered by workers’ compensation. Mr C remains untreated in jail, as he has no insight and refuses treatment. When he is released from jail, he will be in worse shape than when he was arrested. Appropriate     housing, psychiatric care, and structured day programs would have achieved a much better result.

Conclusion

The foregoing case studies represent just a few examples of how psychiatric patients disappear from our hospitals and clinics. What should be very obvious is that this route is not cheap, does not preserve anyone’s rights, is potentially harmful to innocent bystanders, and does not provide a long-term solution.

The solution needs to be multifaceted. Provision of resources to adequately treat persons with mental illness is essential. Continuing education of physicians on the appropriate use of the Mental Health Act of British Columbia is also necessary. As a profession, we need to resist the pressures placed on us to limit the treatment of mental illness due to budgetary considerations. Finally, we must resist any redefinition of mental illness that fails to account for the fact that acute psychosis is often accompanied by disorganized and aggressive behavior.

References

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Dr Zoffmann is a forensic psychiatrist at the Forensic Psychiatric Institute and clinical assistant professor of psychiatry at the University of British Columbia.

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