CAPL Newsletter

Vol. 5, Issue 1

In This Issue

Subspecialty

CPD and Training

Ask the Experts

Professional Practice

Inside CAPL

Outgoing President’s Message
Todd Tomita, MD, FRCPC

It has been an unsettling year.

We have all demonstrated resilience and adaptability, living in the time of the COVID pandemic. Our pivot to virtual work has been surprisingly productive. Glimmers of optimism are ahead.

CAPL was pleased to be able to hold the conference and Annual General Meeting in person at the Banff Springs Hotel on April 3–6, 2022. The CAPL conference committee showed great adaptability in navigating the need to accommodate old 2021 submissions with new 2022 ones; we were pleased to maintain the spirit of holding a forum for all interested CAPL members to showcase their work and interests. Our fingers are crossed that bumpy progress towards opening up continues.

The CAPL project developing Canadian Guidelines for Forensic Psychiatry Assessment and Report Writing has made steady progress. CAPL members should see the initial six guidelines e-published on the CAPL website soon. To-date, the Board has approved the following guidelines:

1. General Principles
2. Fitness to Stand Trial
3. Criminal Responsibility
4. Violence Risk Assessment
5. Dangerous Offender and Long-Term Offender Risk Assessments
6. Sexual Behaviour and Risk of Sexual Offending

Special thanks to you, our CAPL members, for your continuing support. You may have been puzzled by the invoice you received in December for your 2021 annual dues. Although membership invoices are normally sent in the summer, CAPL had technology upgrades in 2021, and our membership system migrated to a new cloud-based database. The work took a little longer than anticipated. Your ongoing financial support and participation are highly valued and essential to the success of our organization. Please watch for your 2022 dues invoice in the coming weeks.

Best wishes for a happy and healthy summer.

Subspecialty

Greetings from Your RCPSC Forensic Psychiatry Specialty Committee!
Brad Booth, MD, FRCPC, DABPN (Forensic Psychiatry)
Chair, Specialty Committee in Forensic Psychiatry

As with all aspects of our lives, the Royal College Specialty Committee in Forensic Psychiatry has also been impacted by the pandemic. Our in-person meetings have been on hold since March 2020, but we held our first in-person meeting on April 3, 2022, in Banff.

Despite the virtual world, your committee has continued their volunteer work for the specialty in Canada. This has been an enjoyable but busy year at the RCPSC for your representatives, who volunteer 100 per cent of their time to this important cause of education and establishing the standard of the discipline.

As the national specialty society, CAPL has a vital link to your Royal College specialty committee, in existence since December 2009. At the specialty committee, we work in close collaboration with CAPL and our profession nationally to establish training standards in the specialty, develop examinations, ensure quality training is occurring, and certify individuals waiting to become forensic psychiatrists.

Your core voting members include:

Dr. Brad Booth – Chair
Dr. Joel Watts – Vice-Chair and Chair-Elect
Dr. Victoria Roth – Region 1 (B.C., Alta., Yuk., N.W.T.)
Dr. Jeff Waldman – Region 2 (Sask., Man.)
Dr. Lisa Ramshaw – Region 3 (Ont., Nvt.)
Dr. Fabien Gagnon – Region 4 (Que.)
Dr. Aileen Brunet – Region 5 (N.B., N.S., P.E.I., N.L.)

Dr. Graham Glancy continues in his role as examination board chair, along with his hard-working team of exam board members—Dr. Mansfield Mela (Vice-Chair), Dr. Johann Brink, Dr. Gary Chaimowitz, Dr. Shaheen Darani, Dr. Mathieu Dufour, Dr. Roy O’Shaughnessy, two anonymous exam quality reviewers, and me, as an ex officio.

In addition to the core members, each of the program directors from the accredited programs serves as a non-voting member. Since the formal recognition of the specialty in April 2011, eight schools have come online with accredited programs:

University Program Director
McMaster University Dr. Yuri Alatishe
Université de Montréal Dr. Jocelyne Brault
University of Alberta Dr. Lenka Zedkova
University of British Columbia Dr. Kulwant Riar
University of Calgary Dr. David Tano
University of Ottawa Dr. Floyd Wood
University of Saskatchewan Dr. Azaad Baziany
University of Toronto Dr. Sumeeta Chatterjee

Thanks for the hard work and dedication of outgoing program directors Dr. Michelle Mathias, who sat on the committee as program director for Ottawa since October 2017, and Dr. Todd Tomita, who sat on the committee as program director for UBC since January 2014.

In addition, Dr. Kim St. John will usually attend our meetings, bringing important insights and expertise in her role as the chair of the specialty committee in psychiatry – she will be completing her term in this role as of June 30, 2023. Dr. Léon Tourian will then take over as chair of the primary specialty committee.

With the formalization of the subspecialty in 2011, there are currently 203 psychiatrists in Canada who are RCSPC-certified as forensic psychiatrists.

We are pleased to confirm that Competence by Design (CBD) was successfully launched on July 1, 2021, for all forensic psychiatry programs in Canada. You can access the CBD information on the RCPSC website. This includes the Competencies, Standard of Accreditation, and Training Experiences. With the new Training Experiences, we have outlined the landmark cases that all trainees will need to be familiar with. Check out the recent publication by committee members on CBD in the American Academy of Psychiatry and the Law. (1)

The specialty committee is always interested in hearing from Fellows of the Royal College and CAPL members. We continue to work on making forensic psychiatry training high quality. Also, please be sure to extend thanks to your committee members for their endless hours of work advocating for our subspecialty!

References

  1. Booth BD, Chatterjee S, Watts J, et al. Towards a new model of training in Canadian forensic psychiatry. J Am Acad Psychiatry Law 2021;49(3):381–395.

CPD and Training

It was great to see you live for the 26th CAPL Annual Conference, on April 3–6, 2022, at the Fairmont Banff Springs Hotel in Banff, AB. Please mark your calendars for the 2023 conference, which will be held May 7-10 at the Prince George Hotel in Halifax, NS. Watch the CAPL website for more details.

Ask the Experts

Between a Rock and a Hard Place: Ethics Dilemmas in Forensic Practice
Graham Glancy, MB, ChB, FRCPC

A CAPL member asked the following: “I was retained by a very, shall we say, assertive defence counsel, who made it a condition of the retainer that I video the assessment. This is something that I am not accustomed to and I felt very uncomfortable with it. What are your thoughts on this?”

We discussed this case with the member. It involved a 21-year-old man who had been charged with the murder of his mother, following an incident where she was helping him clean his room in the basement of the family home, after much urging on her part. He had been charged one day prior to the call from counsel, and there is no information available except the one-page police synopsis, which had very little information. The member told me they were used to being retained on cases where there were significant amounts of information provided, including witness statements, videotaped interviews, previous psychiatric records, psychiatric records from the detention centre, and others. What made matters even more difficult was that the referral came on Dec. 22, just a couple of days before the holiday.

CAPL does not address the issue of video recording assessment interviews in the code of ethics or elsewhere. (1) The American Academy of Psychiatry and the Law (AAPL) convened a task force on the issue (AAPL Task Force, 1999) that concluded that video recording was not a contravention of ethics standards and discussed the arguments for and against the procedure. In their guidelines for forensic assessment, they restate the position of the organization, affirming that video recording is “acceptable but not a mandatory procedure.” (2) In effect, AAPL appears to take a neutral stance, concluding that the decision should be made based on the circumstances of each case and the preferences of the parties involved. Colorado passed legislation in 2017, mandating video recording evaluations regarding sanity and related criminal responsibility questions in certain offences, and other states have passed similar legislation. (3)

Some practitioners feel that video recording might affect the relationship between the evaluator and the evaluee. It has also been argued that, when video recording is done months or even years after the index offence, the careful interpretation and reconstruction of knowledge and memory performed by the artistry of forensic psychiatry may be lost to a jury who will interpret the recording themselves. (3) The logistics of purchasing the necessary equipment, getting permission to use this equipment in detention centres, and ensuring the original recording is preserved, unaltered, and eventually made available to the necessary parties presents certain challenges. These are potentially irritating and time- consuming, and they introduce technological challenges. It could also be argued that the forensic psychiatrist is made vulnerable to potential new areas of cross-examination about the form of each question (leading or not leading), questions notable by their absence, and the evaluator’s attitude and tone asking certain questions. Every question or statement made by the evaluator is fair game for a question on cross-examination. This could greatly increase the time and scope of cross-examination, which is already arduous for the practising forensic psychiatrist. In addition, the forensic psychiatrist might have to spend extra time reviewing the video recording prior to completing the report and before testifying in court, adding to the time and expense of the evaluation.

Martinez and Gray also note that, even though the evaluee has been warned regarding the limited confidentiality of the interview, they may not be aware that they could or should withhold certain private information to protect themselves. Therefore, certain aspects of the evaluation may be recorded that are not relevant to answer a narrow medicolegal question. Martinez argues that the ‘zone of privacy’ would be broken by video recording.

When arguing for the use of video recording, several points can be made. First, there is a complete and accurate record. The recording can be transcribed by a certified transcription agency (although this increases the cost of the assessment). It could be argued that most forensic psychiatrists take verbatim notes, either in handwritten or typed form, so there is an accurate recording without technology. These may not be entirely accurate, however, particularly when attempting to type when someone is talking at 300 words a minute. Trained court reporters have special keyboards that enable them to type at this rate, and even then, they sometimes have to ask a witness to speak more slowly. Therefore, a complete record that is verifiable and reproducible may increase transparency, furthering our goal of honesty and objectivity.

One aspect of video recording is that an early and contemporaneous mental state can be recorded for future use. This is particularly germane to the case presented above. The lawyer could be right in retaining a forensic psychiatrist early in the process to interview the evaluee as soon after the index offence as possible. In this case, their mental state is quite close to that at the time of the index offence. There may be a small window of opportunity to record this. It is increasingly common that correctional psychiatrists actively treat any psychotic symptoms soon after admission to a detention centre. It is also increasingly common that, even if the evaluee is not willing to take medication or does not have the capacity to consent to medication, transfers to psychiatric hospitals are arranged and the evaluee is treated under the relevant statutes of the mental health act.

It is common practice for lawyers to wait until they have seen the disclosure, which is often six to 12 months after a serious offence, before they decide whether to retain a forensic psychiatrist. This could mean the forensic psychiatrist assesses the person a year or more after the event. In this time, they might have been treated and their memory attenuated by time, treatment, or discussions with others. This suggests that the assessment performed sometime later could be greatly improved by a preliminary visit soon after the alleged index offence. In serious cases, it could be three years after the alleged index offence before the evaluee attends court. They may be treated and neatly dressed and groomed; they could present very differently to a judge or jury than they would have soon after the index offence. An early contemporaneous video recording could be helpful in demonstrating their mental state close to the time of the offence.

Returning to the original question, the lawyer might well be correct in demanding an early assessment with a video recording. Of course, if the forensic psychiatrist is unwilling or unable to comply, they can refuse the retainer and refer the lawyer to another forensic psychiatrist who may be willing to comply.  In summary, in Canada, video recording assessments for criminal responsibility is ethically acceptable but not mandatory, nor is it commonly done. There are advantages and disadvantages to video recording and each practitioner should discuss the strategy with the retaining lawyer on a case-by-case basis.

References

  1. Canadian Academy of Psychiatry and the Law. Ethical guidelines for Canadian forensic psychiatrists. Ottawa (ON): Author; 2019 [cited 2021 Sept 01]. Available from: https://www.capl-acpd.org/wp-content/uploads/2019/06/CAPL-Ethics-FIN-Rev2019-EN.pdf.
  2. Glancy G, Ash P, Bath E, et al. AAPL practice guideline for the forensic assessment. J Am Acad Psychiatry Law 2015;43(2 Suppl):S3–53.
  3. Martinez R, Gray TB. Ethics in the mandated video recording of forensic evaluations. In: Griffith E, editor. Ethics challenges in forensic psychiatry and psychology practice. New York (NY): Columbia University Press; 2018. p 176–189.

Professional Practice

Exploratory Findings Challenging the Perception of a “Hired Gun” Expert in the IME Process
Jeffrey Waldman, MD, FRCPC; Sarah Brown, PhD

An independent medical examination (IME) is often sought when medical information or opinion is needed from an independent assessor who’s an expert in a specific field of medicine. When an expert is assessed as an evaluee, they are not involved in providing treatment to the person being assessed. Their role is to assist decision makers, including insurance companies, the courts, and employers, by providing medical information relevant to the decision-making process. IMEs are a valuable instrument for determining disability or impairment, (1) and independent assessors are often afforded additional resources, time, and collateral information that may not be available to treating physicians. However, the objectivity and independence of IMEs has been questioned for over a century, with independent assessors being labelled as “hired guns” (2) and “witnesses for hire.” (3) This perception is underpinned by limited — if any — empirical evidence. (4) Whether independent assessors exhibit bias that exceeds the inherent bias all experts carry regardless of the role remains largely unknown.

Over the last three years, we have provided two or three IMEs a week, often from a small but growing number of insurance companies, employers, and law firms. To determine if IME reports show that our independent assessments favour the requesting third party that funds the report (i.e., are we “hired guns”?), we collected anonymized data through an online survey, from January 2021 to November 2021. We examined data on perception of bias; outcomes of IMEs reported by case managers, including continuing compensation, funding of rehabilitation efforts, and facilitating access to mental health treatment; satisfaction with the report; and claimant feedback (if provided) through the online survey. We also collected retrospective data on opinions and recommendations about the presence of a mental illness, ongoing symptoms relevant to decisions about disability status, and recommendations for ongoing mental health treatment in IME assessment reports conducted for insurance companies between October 2020 and October 2021. We then determined whether insurance companies approached our clinic for additional assessments, based on whether the reports supported ongoing disability and the need for further treatment.

We examined whether the outcomes of our IMEs favoured the third party that was funding them and if their satisfaction and repeat hire only arose with their guaranteed or likely financial benefit.

Survey Results

Satisfaction: Sixteen case managers completed the survey, and a minimum of 12 answers were provided for each item: 93.3% (14/15) of respondents said the report met their needs and 100% said it appeared to consider all relevant information supplied; 93.3% were satisfied with the final report.

Bias: On the basis of the opinion provided, 84.6% (11/13) of respondents said the claimant would continue to receive benefits and 85.7% (12/14) said the claimant would be supported in continuing to receive or access mental health treatment. Nobody said the report appeared biased in favour of the claimant. Of the claimants who gave their case manager feedback on their experience of the assessment (n = 7), 71.4% had an overall positive impression.

Retrospective Data Collection Results

Fifty IMEs were completed between October 1, 2020, and October 31, 2021, for third-party insurance companies. Of these, 44 (88%) recommendations included an opinion that the evaluee had a mental illness requiring ongoing or additional mental health treatment. The same number indicated the claimant continued to have limitations on their ability to function at work because of their mental illness or had medical restrictions related to their psychiatric diagnoses. Of the remaining six claimants, one did not believe they had, nor did they present with, psychiatric symptoms, and it was recommended that their case be followed up with a different medical expert. One individual had undergone extensive treatment with no benefit and, as a result, the continuation of treatment was not recommended, and they were deemed to be “totally disabled.” Two (4%) claimants were thought to have substance use disorders not related to the compensable injury, and in both cases treatment recommendations were made. In two (4%) cases it was opined that the claimant did not have a psychiatric disorder related to the claim.

IMEs were commissioned by 10 different insurance companies. Seven requested three or more reports, with the number of IMEs per company ranging from one to 19. A total of 76% of the IMEs were commissioned across four insurance companies, and three of the four companies never received an opinion suggesting their claimant did not have a mental illness or that they required ongoing mental health treatment. There was no evidence that an opinion that their claimant had a mental illness, that they remained unable to work because of their mental illness, or that they still required mental health treatment prevented companies from requesting future assessments.

Preliminary Findings

Based on the survey results and the IME outcomes, there appears to be no evidence that independent assessors in this context are paid for an opinion in favour of the third party or are “licensed to bill.” (5) Contrary to bold statements regarding the biased nature of IMEs (i.e., “far too often the assessor provides an unqualified, biased or shoddy assessment” and “. . . rehabilitation and benefits are often discontinued based on a flawed report”) (6), our results suggest the requesting third party is approximately nine times more likely to receive an opinion that the claimant has a mental illness impacting on function and requires additional psychiatric treatment. An opinion in favour of the claimant did not prevent third-party decision makers from requesting assessments in the future.

While we acknowledge this is a preliminary finding based on a small sample size and exploratory data, it highlights the inaccuracy of the perception that all independent assessors are biased towards the requesting third party. This is a concerning and problematic view that can cause tension and suspicion and hinder the psychiatric assessment process, which requires a level of trust, honesty, and rapport to produce treatment recommendations and accommodations best suited for each person assessed. Websites have been developed with steps on how to prepare for IMEs, which can negatively impact evaluation outcomes, (7) benefitting neither the claimant nor the expert assessor. Continuing to examine and refute these inaccurate perceptions of bias is an important step towards improving best practices and facilitating positive experiences between the assessor and the assessed.

Limitations

There are several limitations that are important to note. First, we acknowledge that the present findings are based on a single clinic and a small sample size. It is certain that the bias inherent to each independent assessor differs; however, these findings only reflect the specific clinic from which data were drawn and cannot be used to make a blanket statement regarding bias across the IME process in general. Second, this investigation was conducted internally. Although we did not intentionally skew our opinions to support our hypothesis, it cannot be ruled out. Finally, about two-thirds of case managers did not complete the online survey after receiving the report requested. As a result, it is possible that a sampling bias skewed results of the online survey.

These exploratory findings are a preliminary step in our examination of the perception of bias in the context of IMEs. We are in the process of expanding the scope of this study to include a broader range of clinics and independent assessors. If you are interested in participating in a larger-scale study examining bias, please contact us at sbrown@roblinfg.ca.

References

  1. Ky P, Hameed H, Christo PJ. Independent medical examinations: facts and fallacies. Pain Physician 2009;12:811–818 [cited 2021 Nov 4]. Available from: https://www.paulchristomd.com/wp-content/themes/flowhub/pdf/IME%20FINAL.pdf.
  2. Blackwell T. Hired gun in a lab coat: how medical experts help car insurers fight accident claims [website archive, 2017]. The National Post [cited 2021 Nov 11]. Available from: https://nationalpost.com/news/hired-gun-in-a-lab-coat-how-medical-experts-help-car-insurers-fight-accident-claims.
  3. Simmons LRS. Justice by witnesses-for-hire [website archive, 1992]. The Christian Science Monitor [cited 2021 Nov 5]. Available from: https://www.csmonitor.com/1992/0114/14181.html.
  4. Waldman J, Oswald T, Johnson E, et al. Independent assessors in contrast to treating physicians as expert witnesses in Canada: comparing duties and responsibilities. The Journal of Forensic Psychiatry & Psychology 2020;31:541–544.
  5. Tomlinson K. Licensed to bill: how doctors profit from injury assessments that benefit insurers [website archive, 2017]. The Globe and Mail [cited 2021 Nov 4]. Available from: https://www.theglobeandmail.com/news/investigations/doctors-insurance-independent-medical-examinations/article37141790/
    .
  6. FAIR Association of Victims for Accident Insurance Reform. The independent insurer medical examination IME/IE. Mississauga: FAIR; n.d. [cited 2021 Nov 5]. Available from: http://www.fairassociation.ca/the-independent-medical-examination-imeie/
  7. Horwitz JE, McCaffrey RJ, Thompson B. A review of internet sites regarding independent medical examinations: implications for clinical neuropsychological practitioners. Appl Neuropsychol 2006;13:175–179.

R v. Minassian: Autism Qualifies as a Mental Disorder
Brian Robertson, MD; Jason Quinn, MD, FRCPC; Graham Glancy, MB, ChB, FRCPC

On April 23, 2018, Alek Minassian, a 26-year-old man diagnosed with autism spectrum disorder (ASD), used a rental van as a weapon to kill 10 people and injure 16 others in Toronto. He was interviewed shortly after his arrest and made multiple inculpatory statements, including that he rented the van with the intention to kill people. This interview was released to the press pre-trial and was widely shown. Mr. Minassian’s lawyer elected to have the case heard by judge alone, likely believing it impossible to find an impartial jury.

There was no dispute of the facts throughout Mr. Minassian’s trial. His defence conceded the facts necessary to prove the charges of first-degree murder and attempted murder. The central issue of the case was Mr. Minassian’s state of mind at the time of his offences. He entered a plea of not guilty to all 26 counts of the indictment, relying on section 16 of the Criminal Code as a defence (not criminally responsible on account of mental disorder [NCRMD]).

To be eligible for a section 16 defence, the accused must first establish that he has a mental disorder and, second, that the mental disorder rendered him incapable of appreciating the nature and quality of his act or omission or of knowing it was wrong. (1)

What we now refer to as the NCRMD defence was first established in British Law in 1843 as the M’Naghten Rules, which Canada inherited in 1867, and became the basis for the first Criminal Code. Further refinement relevant to R v. Minassian has come through Canadian case law. For instance, in R v. Kjeldsen, the Supreme Court ruled that a person appreciates the nature and quality of an act if they know what they are doing and are aware of the physical consequences that will result from their acts. (2) In R v. Chaulk, knowing wrongfulness was defined as knowing moral wrongfulness and not merely knowing legal wrongfulness. (3) In R v. Oommen, the Supreme Court reframed the question of knowing wrongfulness as a capacity test. Justice McLachlin ruled that an accused should be exempted from criminal responsibility because of mental disorder if the mental disorder at the time “deprived him of the capacity for rational perception and hence rational choice about the rightness or wrongfulness of the act.” (4)

An NCRMD defence can only be successful if the accused was “suffering from a mental disorder.” Mr. Minassian’s father testified that Mr. Minassian had a well-established diagnosis of pervasive developmental disorder (now known as ASD) as a child. Every expert who interviewed Mr. Minassian agreed he was on the autism spectrum, though without cognitive impairments and with above-average intelligence.

Prior to this trial, no Canadian court had determined whether ASD qualifies as a mental disorder within the meaning of section 16 of the Criminal Code. In Cooper v. The Queen, the Supreme Court of Canada held that “mental disorder” should be given a “broad and liberal construction” but that the definition was a legal definition, as opposed to a medical one. (5)

In Minassian, the judge first considered whether ASD qualifies as a mental disorder within the meaning of the Criminal Code. She turned to existing case law for guidance. Only one Canadian (6) and two American (7,8) cases have dealt with whether ASD is considered a mental disorder, and the issue was settled in neither case.

Justice Molloy decided that ASD qualifies as a mental disorder because it has “internal cause, rooted in the brain, and often has a genetic link.” It is a “permanent condition . . . [that] has an impact on brain functioning and thought processes. ASD might cause a person to lack the capacity to appreciate the nature of an action or know that it is wrong.” She further clarified that “Not every person diagnosed with ASD will be eligible to assert the defence” because “Everything depends on the particular circumstances of the individual and how they are affected by their disability.” (9)

As to whether Mr. Minassian was “incapable of appreciating the nature and quality of the act or omission,” the judge found there was no question that he appreciated the nature and quality of his act, based on interviews in which he demonstrated he knew what he did would be first-degree murder, could define the term premeditated, and knew that murder is a criminal offence.

The final question was whether Mr. Minassian knew his act was wrong within the meaning of the Criminal Code. Based on interviews with psychologists and psychiatrists, the judge concluded that Mr. Minassian understood on an intellectual level that society would deem his act to be morally wrong; however, she opined that R v. Oommen set out additional principles when determining if a defendant “[knew] that [the act or omission] was wrong,” as follows:

1. Under a section 16 analysis, the focus is not on the accused’s intellectual capacity to know right from wrong in the abstract sense but on their capacity to know that a given act was wrong in the specific circumstances of the case.

2. The issue is whether the accused possessed the capacity to know that the act in question was morally wrong, having regard to the everyday standards of the ordinary person.

3. An accused cannot be said to “know” something is “wrong” within the meaning of section 16 if, because of a mental disorder, he lacks the capacity for rational perception and hence rational choice about the rightness or wrongness of the act.

4. This does not excuse people with psychopathy or anyone following their own deviant code of behaviour because they choose to do so, not because they are incapable of knowing their acts are wrong in the eyes of society.

Justice Molloy decided that Mr. Minassian knew his act was wrong according to these four principles. She based this on the fact that he made a calculated decision by using a rented van to kill as many people as possible to gain notoriety and fame. Had the accused not understood the moral wrongfulness of his actions, he would not have devised a plan to gain notoriety secondary to the public’s horrified reaction to his act. He was found guilty on all 10 counts of first-degree murder and all 16 counts of attempted murder.

This case clearly stated that ASD may be considered a mental disorder, which may be the basis of a section 16 defence. It reaffirmed that the issue is whether the accused possessed the capacity to know the act in question was morally wrong, having regard to the everyday standards of the ordinary person, as per R v. Oommen. Although this was only a decision at the provincial level, it may be followed by other provincial and territorial courts that have coordinate jurisdiction.

References

  1. Criminal Code [1985] RSC 1985, c C-46.
  2. R v. Kjeldsen [1981] 2 SCR 617.
  3. R v. Chaulk [1990] 3 SCR 1303.
  4. R v. Oommen [1994] 2 SCR 507.
  5. R v. Cooper [1980] 1 SCR 1149.
  6. R v. J.F. [2019] ONCA 432.
  7. United States v. Cottrell, 333 F. App’x 213 (9th Cir. 2009).
  8. People v. Larsen, 140 Cal. Rptr. 3d 762, 205 Cal. App. 4th 810 (Ct. App. 2012).
  9. R v. Minassian [2021] ONSC 1258.


Automatism Revisited: R v. Sullivan
Graham Glancy, MB, ChB; Kiran Patel, MBBS

The constituents of a criminal offence involve the actus rea and the mens rea. In forensic psychiatry, we are most usually concerned with the mens rea, the guilty mind, which may be affected by mental disorder, in which case consideration is given to the defence of not criminally responsible due to mental disorder (NCR-MD). Components of the actus include voluntariness and consciousness. In certain circumstances, it has been postulated that the actus requires that the actor is not unconscious and not acting in an involuntary manner. Courts have wrestled with the complicated concepts of automatism and voluntariness. In a recent decision, the Ontario Court of Appeal took a new look at this complicated issue. Although this case was styled as R v. Sullivan, (1) it actually considered two cases together: the cases of David Sullivan and Thomas Chan.

R v. Chan

In 2015, Thomas Chan consumed “magic mushrooms” with friends in the basement of his mother’s home. He had no history of any antisocial criminal behaviour. Soon after ingesting the mushrooms, he began speaking in gibberish, called his mother and sister Satan and the devil. He then ran to his father’s house, which was nearby, and broke into the window. Appearing not to recognize his father, he began stabbing him repeatedly until his death. He then attacked his father’s partner, who testified that she did not think he recognized her. At trial, Mr. Chan claimed that section 33.1 of the Criminal Code of Canada—the law that prevented him from raising a state of self-induced intoxication to negate general intent or the voluntariness required to commit the offence—was not constitutional.

R v. Sullivan

Mr. Sullivan had been prescribed Wellbutrin for smoking cessation. He took this for some time and occasionally abused it. He apparently began to experience episodes in which he believed aliens were living in his condominium. On the day of the offence, Mr. Sullivan took 30 to 80 Wellbutrin tablets in a suicide attempt. He subsequently attacked his mother, after bringing her into the room to witness the alien he thought had entered his room. When his mother disagreed with him, he stabbed her, believing her to be an alien. His mother survived the attack but died of unrelated causes before trial.

At trial, the defence was of non-mental disorder automatism. Mr. Sullivan did not challenge the constitutional validity of section 33.1. He argued that this section did not apply because his intoxication was not voluntary, as it had been prescribed for medical purposes and was taken, in the final act, in a suicide attempt and not for the purpose of intoxication. He instead used the mental disorder defence. The trial judge concluded that, first, the cause of Mr. Sullivan’s automatism was the ingestion of Wellbutrin and, therefore, an external cause; and second, he did not pose a continuing danger. He concluded that the automatism was not caused by mental disorder but by intoxication; therefore, the defence of NCR-MD did not apply. The trial judge then found that the defence of non-mental disorder automatism was excluded because the intoxication had been voluntary, in that he ingested the medication deliberately (though with the intention of killing himself). Mr. Sullivan was convicted of aggravated assault and using a weapon in committing an assault.

Automatism

Historically, automatism was defined in the courts by Lord Denning, as follows:

An act which is done by the muscles without any control by the mind, such as spasm, a reflex action, or a convulsion; or an accident by a person who is not conscious of what he is doing such as an act done while suffering from concussion or while sleep walking. (Bratty v. Attorney-General for Northern Ireland, 1963, para. 409.) (2)

This definition places emphasis on involuntary muscle movements. Other examples could include a motorcyclist driving erratically while being stung by a swarm of bees, or a person flailing their arms when sneezing, thereby hitting a candle and starting a fire. Examples could also include types of epilepsy and traumatic brain injury. In the following sections, we discuss other examples, including somnambulism and dissociation.

R v. Rabey

The case of R v. Rabey (1980) was a case of dissociation that ultimately ended up at the Supreme Court. (3) They subsequently defined automatism as “unconscious, involuntary behaviour, the state of the person who, though capable of action, is not conscious of what he is doing.” In its ruling, the court also differentiated between insane automatism and non-insane automatism, the former arising from a disease of the mind. Non-insane automatism was described as a transient effect produced by some specific external factor.

R v. Parks

In the case of R v. Parks (1992), the Supreme Court addressed the issue of sleepwalking and automatism. (4) The issue for the Supreme Court on appeal was whether sleepwalking should be classified as non-insane automatism, resulting in an acquittal, or whether it should be considered a disease of mind, resulting in what was then referred to as not guilty by reason of insanity (NGRI). The court used a two-stage test to decide whether the condition was a disease of the mind. A disease of mind would have to be caused by something internal to the mind of the brain of the accused. It would likely result in recurrence and, therefore, represent a danger to the public if left untreated. It should be noted that Bill C-30, which replaced NGRI with NCR-MD, was enacted in 1991, as this case was proceeding through the various courts.

R v. Stone

In the 1999 case of R v. Stone, the court ruled that a two-step process must be followed before automatism can be accepted as a defence and that expert evidence must be called. (5) In addition, a major change was made regarding the burden and standard of proof. In R v. Parks the burden of proof regarding the voluntariness of the act was placed on the Crown. In R v. Stone, this was transferred to the defence having to prove involuntariness on a balance of probabilities. If the existence of automatism is deemed established, the court must explore whether the cause of the automatism is an internal factor, such as a mental disorder; or an external factor, such as a blow to the head; and whether there is, consequently, an ongoing danger. The case introduced several other factors that might support a claim of automatism, including the severity of the triggering stimulus, corroborating evidence by bystanders, previous medical history of such states, any motives that might explain the crime, and whether the trigger is also the victim of the crime.

R v. Daviault

In R v. Daviault (1994), the issue was whether self-induced intoxication could lead to such a severe state as to be considered automatism, such that the defendant could not possess the minimal intent necessary to commit the offence, in this case, rape. (6) In its decision, the court referred to what was known as the “Leary rule.” In R v. Leary (1978), it was ruled that intoxication could be a defence for criminal offences involving specific intent but that it could not be used for crimes only involving general intent. (7) Under the prevailing Leary rule, the accused’s intention to become intoxicated is substituted for the intention to commit a dangerous act. This means the recklessness demonstrated by an accused becoming voluntarily intoxicated is sufficiently blameworthy to find that the general intent offence has been committed.

The court ruled that the strict application of the Leary rule offended the presumption of innocence and therefore contravened section 11(d) of the Canadian Charter of Rights and Freedoms. (8) In other words, the intention to become intoxicated could not be substituted for the intention to commit a crime. The court noted that automatism would apply only in rare cases of extreme intoxication. Mr. Daviault was therefore acquitted.

There was a swift and damning public response to this decision. The press, police associations, and the Canadian Association of Sexual Assault Centres criticized the ruling as providing an excuse for male violence against women. Nine months later, Parliament enacted section 33.1 of the Criminal Code, specifically seeking to protect women and children from male violence linked to intoxication. (9) This law closed the door on a defence of self-intoxication for any offence related to the bodily integrity of the victim if the offence is one requiring general but not specific intent.

Ruling by the Ontario Court of Appeal

More than two decades after R v. Daviault, in the 2020 case of R v. Sullivan, the court struck down section 33.1 of the Criminal Code on the grounds that it was antithetical to the presumption of innocence, in that the person does not have the will or voluntariness to commit the act, and offended the principles of fundamental justice. The court concluded that it was not demonstrably justified in a free and democratic society and, therefore, was not saved by section 1 of the Canadian Charter of Rights and Freedoms.

The rejection of section 33.1 leads to two options. The first is the restoration of the Daviault precedent. Under this basis, extreme intoxication akin to automatism would require expert evidence, would be under a reverse onus, and would continue to be difficult to access. The second is for Parliament to review alternatives to section 33.1 and consider making it a crime to commit a prohibited act while drunk (or otherwise intoxicated). This was supported by the Law Reform Commission of Canada in previous considerations.

An appeal has been made against this decision to the Supreme Court by the Women’s Legal Education and Action Fund (LEAF). A definitive decision by the court will help clarify the expected next steps. However, in the cases discussed above, exceptionally competent judges and courts of appeal at the provincial level have made such well-reasoned judgements that it will be hard for the Supreme Court to reverse this decision.

References

  1. R v. Sullivan [2020] ONCA 333.
  2. Bratty v. Attorney General for Northern Ireland [1963] UKHL 3 [p 409].
  3. R v. Rabey [1980] 1 SCR 513 [p 514].
  4. R v. Parks [1992] 2 SCR 871.
  5. R v. Stone [1999] 2 SCR 290.
  6. R v. Daviault [1994] 3 SCR 63.
  7. R v. Leary [1978] 1 SCR 29.
  8. Canadian Charter of Rights and Freedoms: Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act (UK), c11 (1982).
  9. Criminal Code, RSC 1985, c. C-46 s 752.

Implementation of CBD in Forensic Psychiatry Subspecialty Training Programs: A University of Toronto Perspective
Sumeeta Chatterjee, MD, FRCPC; Laeticia Eid, MD, FRCPC; Treena Wilkie, MD, FRCPC; Graham Glancy, MB, ChB, FRCPC

For the last two decades, best practices in medical education have turned Canada’s attention to Competence by Design (CBD), following the path of many other countries that have already embraced this new curriculum. Beginning in 2017, at the direction of the Royal College of Physicians and Surgeons of Canada (RCPSC), medical residency programs began moving to CBD, with some forensic psychiatry programs rolling out in July 2021. (1) All faculty working and teaching within forensic psychiatry training facilities were encouraged to equip themselves with the basics of the CBD framework, how this translated to the one-year forensic psychiatry subspecialty training program, and how it was being implemented on the ground.

CBD is premised on a few key principles: that residents should be assessed based on direct observation of key skills unique to each discipline; that frequent low-stakes assessments be used for learning in addition to infrequent high-stakes assessments of learning; and that determination of competence is best achieved through the analysis of multiple data points over time, vetted by a group of content and educational experts rather than by individual supervisors.

CBD recognizes that a learner’s trajectory traverses many stages as their skills mature and that assessment expectations should align with these developmental stages. As such, CBD for all programs comprises the following four stages: Transition to Discipline, Foundations of Discipline, Core of Discipline, and Transition to Practice. Key tasks that encompass CanMEDS roles are assessed through direct observation of entrustable professional activities (EPAs) that are discipline- and stage-specific. EPAs are tools meant to assess and deliver timely, effective, and actionable feedback to residents, to promote skills development. It is expected that residents will attempt EPAs multiple times within each stage of training, until they achieve the desired number of “entrustabilities” (or competence) for each, before progressing to the next stage of training. As well, instead of individual supervisors determining suitability to progress to the next rotation, an established competence committee meets regularly to analyze all available assessment data for each learner, determine strengths and areas of improvement, and ultimately render decisions on suitability to progress to the next stage of learning and the Royal College examination.

CBD in Forensic Psychiatry

Forensic psychiatry training programs implemented the new CBD curriculum in July 2021, after the nationally represented Royal College Subspecialty Committee in Forensic Psychiatry spent three years determining the details of all discipline-specific elements for the above components of CBD. (1) This comprised the development of forensic psychiatry competencies, training requirements, and EPAs. Readers are encouraged to review these documents. (2) To operationalize this curriculum, the forensic psychiatry one-year program first had to assign timestamps to each of the four stages of training, as seen in Figure 1.

Figure 1. CBD competence continuum reflecting the stages of training

As noted, to progress to the next stage, a resident must first achieve entrustability in the EPAs assigned to their current stage a specified number of times. An overview of forensic psychiatry EPAs is provided in Table 1. The breadth of forensic assessment work that trainees must gain exposure to or competence in is accounted for within the contextual variables of EPAs or the clinical case log.

Competence committees are established in each training program and generally comprise forensic faculty with teaching and content expertise. This process is moderated by a chairperson, who coordinates a minimum of four meetings annually, aligned with each stage of training. Each resident is presented by a primary reviewer who has conducted a detailed analysis of all assessment data. Assessment data include EPAs, among other assessment tools, such as in-training assessment reports (ITARs); end-of-rotation summative evaluations, multisource feedback forms, coach’s feedback forms, and resident self-assessment forms. The primary reviewer documents their findings, which are then presented to the committee for discussion and decision making around resident progression to the next stage of training. Modifications to learning plans can be made for those who are struggling and recommendations can be made to further the training experiences of those who are excelling.

Table 1. Forensic Psychiatry Training Entrustable Professional Activities (EPA) Checklist

Implementation of a CBD Curriculum in Forensic Psychiatry

The implementation of CBD at the University of Toronto required significant planning, recruitment of educational champions, and central support from the university’s postgraduate office. The planning process began a year before rollout. It is advisable that a CBD operations committee, led by either the program director or an appointed CBD lead, be created to spearhead and report their progress to the residency program committee (RPC).

The core tasks to begin this process included:

  • Planning the training experience.
  • Writing a variance report.
  • Designing the curriculum and assessment map.
  • Devising a faculty and learner development plan.

Next, the program needed to address:

  1. the development of assessment tools (EPAs, ITARs, and others),
  2. rotation plans for incoming residents, and
  3. the formation of a competence committee.

The final stages included:

  1. the generation of learner and site schedules, and
  2. concentrated faculty and learner development sessions, using multiple modalities, in the months before rollout.

In the first stage, the training experience planning process involved ensuring the program could provide all the required and recommended training experiences (and, ideally, optional training experiences), as articulated in the Royal College document suite. Gaps in training experiences were identified and addressed early in the planning process. For some programs, this process might have required a reimagination of the formal teaching curriculum, the addition of clinical opportunities, or the recruitment of faculty or sites with access to the requisite experiences for learners. A variance report comparing the pre-CBD curriculum to the new CBD curriculum addressed all anticipated changes, especially those affecting the provision of clinical care, when moving from the old to the new curriculum.

Designing the curriculum and assessment map was perhaps the most interesting aspect of CBD planning and involved developing a bird’s-eye-view document detailing all program components (EPAs, training experiences, formal teaching, competence committee meetings, etc.) and where they sit in relation to one another over the course of the year.

Faculty and learner development strategies were considered and planned in advance because significant shifts in educational practices require repetition over time to optimize uptake.

Early planning also enabled CBD leadership to mine the wealth of existing resources and tailor these to ensure current applicability. A centralized CBD resource file was created for faculty and learners that contained pithy summaries of need-to-know information and recordings of faculty and learner development sessions. Recruiting educational champions at each learning site and involving them in the RPC and/or CBD operations committee is highly recommended, as it allows them to serve as a hands-on resource to the diverse faculty members across various training sites involved in the PGY-6 program. Implementation of changes was multimodal, incorporated informal and formal teaching methods, capitalized on different communication forums (i.e., medical staff meetings, RPC meetings, emails, and individual coaching), and occurred over time, both before and after the formal rollout.

In the next stage, the development of assessment tools began with the university’s assistance in uploading the Royal College EPAs onto the electronic platform selected by the hospital (for example, in Toronto’s case, the Centre for Addiction and Mental Health chose Elentra for this task). The creation of ITARs involved the review of existing in-training evaluation reports (ITERs) and modifications to match the rotation plan. Programs may also choose to incorporate additional assessment tools, including self-assessment, multisource feedback, and coaching narrative feedback forms. Rotation planning occurred in parallel, as programs decided if modifications to their old rotation schedule were required to meet the needs of the new CBD curriculum.

In the year before rollout, it is recommended that each program pilot a competence committee to establish a culture of reviewing resident assessment data and progression as a group, thoughtfully discussing strengths and areas of improvement, and rendering recommendations on optimizing and individualizing training experiences. Upon the formal rollout of CBD, a competence committee chairperson was appointed to oversee the process of data collection, committee meetings, and resident feedback. The committee will typically include supervisors and potentially others with educational or forensic content expertise. Given the small size of forensic psychiatric programs and the possible sensitivity of the information being discussed, PGY-6 resident representation on this committee is generally not recommended.

Finally, learner and site schedules were developed. Faculty and learner development sessions were concentrated around the time of rollout, with booster sessions and individual support scheduled as needed.

In conclusion, the CBD program and its competence committee provide a unique opportunity not only to evaluate the progress of residents but also to review the program delivery and its ability to train competent forensic psychiatrists. Evaluation of the CBD curriculum and assessment tools remains imperative to identify and address both the learning needs of trainees and the faculty’s response to and uptake of the new model. The rollout of CBD in the forensic psychiatry subspecialty program presents an opportunity to evaluate, plan, and implement changes in the program to ensure that it meets the needs of those it is meant to serve at the university level, the hospital level, and the level of society in general.

References

  1. Booth B, Chatterjee S, Watt J, et al. Toward a new model of training in Canadian forensic psychiatry. J Am Acad Psychiatry Law 2021;49(3):381–95.
  2. Royal College of Physicians and Surgeons of Canada. Information by discipline. Ottawa (ON): Author [cited 2021 July 21]. Available from: https://bit.ly/3jU908W.

Inside CAPL

CAPL BC Regional Section Update
Todd Tomita, MD, FRCPC and Andrew Kolchak, MD, FRCPC
Chair, BC Regional Section

The CAPL BC Regional Section has had a renewal of the executive. The new CAPL BC regional executive includes the following:

1. Dr. Andrew Kolchak, Chair
2. Dr. Emlene Murphy, Vice-Chair
3. Dr. Jeanette Smith, Secretary
4. Dr. David Morgan, Other Member
5. Dr. Rakesh Lamba, Other Member

Dr. Jeanette Smith is the new chair of the planning committee for the UBC Division of Forensic Psychiatry and CAPL BC Regional Section forensic education days. After a lengthy hiatus due to the pandemic, we hope to resume in-person events in 2022, perhaps on a smaller scale. Let’s hope that we can proceed.

Dr. Emlene Murphy was appointed as the new head of the UBC Division of Forensic Psychiatry. Consequently, we have excellent cross-representation between UBC and the CAPL BC Regional Section.

News from CAPL – Quebec Regional Section

Fabien Gagnon, MD, Psy. D., PGDipl., FCFP, FRCPC
President, Quebec Regional Section

In no specific order, our pre-occupations are currently as follows:

1. In some regions, forensic psychiatry beds are taken by general psychiatry patients.
2. Increasingly more often, forensic psychiatrists are asked to do general psychiatry assessments, putting pressure on forensic psychiatry clinicians.
3. It is becoming more difficult to recruit forensic psychiatrists in certain Quebec regions, fragilizing access to forensic psychiatry services for the court.
4. Forensic psychiatry units are sometimes occupied by violent general psychiatry patients.
5. In some regions, there are not enough forensic psychiatrists to offer psychiatric services in correctional settings; the use of forensic nurse practitioners to compensate is being considered.
6. The new Quebec College of Physicians’ Guide to Third-Party Assessments was published in June 2021. It is mandatory that all third parties complete an expert declaration form.
7. The Quebec Psychiatric Association will review the Act Respecting the Protection of Persons Whose Mental State Presents a Danger to Themselves or Others. The participation of mental health nurse practitioners will be discussed.
8. The prioritization of forensic psychiatric services is under development.

A Guide to the New CAPL Guidelines
Todd Tomita, Graham Glancy

The CAPL Board of directors has recently become involved in a project preparing 10 guidelines for key areas of forensic psychiatry assessment and report writing. These areas include the following:

  • General Principles
  • Fitness to Stand Trial
  • Criminal Responsibility
  • Violence Risk Assessment
  • Dangerous Offender and Long-Term Offender Risk Assessments
  • Sexual Behaviour and Risk of Sexual Offending
  • Disability Assessments and Reports
  • Fitness to Work
  • Personal Injury
  • Professional Misconduct and Malpractice

This project is the brainchild of Dr. Lisa Ramshaw from the University of Toronto Division of Forensic Psychiatry. She has led the project and assembled a team of authors based at the University of Toronto, comprising herself, Dr. Sumeeta Chatterjee, Dr. Treena Wilkey, Dr. Graham Glancy, and Dr. Todd Tomita. This team became the steering committee for the project.

Having shown the foresight and vision to assemble the steering committee team, Dr. Ramshaw shepherded the project process through CAPL Board approval to constitute a national working group composed of forensic psychiatry representatives from across Canada. The working group includes Dr. Lisa Ramshaw (Chair), Dr. Aileen Brunet (East Coast), Dr. Mathieu Dufour (Quebec), Dr. Jocelyne Brault (Quebec), Dr. Brad Booth (Ontario), Honourable Mr. Justice Richard Schneider (Ontario), Dr. Jeffrey Waldman (Manitoba), Dr. Mansfield Mela (Saskatchewan), Dr. Alberto Choy (Alberta), and Dr. Todd Tomita (BC).

The project is now in its second year, and each guideline is at a slightly different stage of approaching completion. The process to finalize each guideline involves the steering committee team completing an initial draft. Once the draft is at a reasonable stage of development, it is sent to the national working group, with each member contributing to and editing the document. An expert reviewer who is a leader in the guideline area assesses the draft and adds final edits. This final English guideline is sent to the Board for approval. Once approved, the guideline is translated into French, and the English and French versions are e-published on the CAPL website.

The CAPL Board adopted the first guideline — General Principles of Forensic Psychiatry Assessments and Reports — on June 23, 2021. It has been translated into French and will soon be published on the CAPL website as a resource for those who are interested. Others will follow as they go through the process. The goal is to e-publish the other nine guidelines within the next year, as they are all in various stages of completion.

An overarching aim is to ensure the guidelines are relevant and applicable nationally, by identifying and considering the nuances of practice in different provincial jurisdictions. We expect that the nationally representative working group and expert reviewer part of the process will give the document applicability throughout Canada, as it is known that provinces vary in their practices, interpretation, and implementation of forensic psychiatric methods.

Readers will be aware that the American Association of Psychiatry and the Law has produced a guideline for a forensic assessment but there is no Canadian equivalent. (1) Canadian laws are different from US laws and Canadian practice is distinct from that of the US in many respects. For these reasons, it was felt important to have Canadian guidelines as a resource for those in the field.

The guidelines are intended as a review of legal and forensic psychiatric principles to offer practical guidance and be a resource for learners, early career forensic psychiatrists, and others. They reflect a consensus among the CAPL Board and others. They are not intended to dictate the standard of care or be used for legal purposes.

The CAPL guideline project represents a significant advance for forensic psychiatry in Canada. All of the CAPL members involved should be commended for their diligence and commitment. The guidelines must be living documents to remain relevant, and we hope CAPL members will send feedback and take up the future call to become involved in updating them. This is an important project; we hope these guidelines will be well received by the membership and a helpful resource for the field of forensic psychiatry going forward.

References

  1. Glancy GD, Ash P, Bath EP, et al. AAPL practice guideline for the forensic assessment. J Am Acad Psychiatry Law 2015;43(2 Suppl):S3–53.

2022 CAPL Annual General Meeting

At the Annual General Meeting on April 5, 2022, members elected new Board directors, each for a two-year term:

  • Dr. Elizabeth Coleman
  • Dr. Padraig Darby
  • Dr. Mathieu Dufour
  • Dr. Andrew Kolchak
  • Dr. Sébastien Prat
  • Dr. Lisa Ramshaw
  • Dr. Jeff Waldman

New officers were appointed from among the directors at the first Board meeting on May 4, 2022:

  • President: Dr. Sébastien Prat
  • Vice-President: Dr. Mathieu Dufour
  • Secretary: Dr. Andrew Kolchak
  • Treasurer: Dr. Padraig Darby

Each officer serves a one-year term.

Members also made two amendments to CAPL’s bylaws at the AGM. The first allows former directors who have served their maximum term of six years to return to the Board after a one-year absence, and the second implements advance notice provisions for election of directors.

These amendments are the product of discussion that began at the Board table. CAPL is a small organization, and there may not always be a full complement of members who are willing to take on the additional responsibilities involved with serving as a director. Advance notice provisions for election of directors will help the Nominating Committee confirm that candidates for director are properly qualified in accordance with governance policies, and ensure an orderly elections process.