The mentally ill who break the law deserve 'all mercy and humanity'

CAMH editorial featured in the Globe and Mail on March 6, 2009

At the turn of the 19^th century, James Hadfield fired a shot at King George III and was subsequently found "not guilty" because the court found him “insane” at the time he committed the act. The Chief Justice, Lord Kenyon, recognized that to send Mr. Hadfield to prison was not justified, but he also saw that his return to the community was not safe. His judgment states the following:

"the prisoner, for his own sake, and for the sake of society at large, must not be discharged; …people of both sexes and of all ages may, in an unfortunate frantic hour, fall a sacrifice to this man, who is not under the guidance of sound reason; and therefore it is absolutely necessary for the safety of society that he should be properly disposed of, all mercy and humanity being shown to this most unfortunate creature. But for the sake of the community, undoubtedly he must somehow or other be taken care of, with all the attention and all the relief that can be afforded him... for the present we can only remand him to the confinement he came from..."

More than 200 years later, in Canada, the important aspects of Lord Kenyon’s judgement are enshrined in Section 16 of the Criminal Code of Canada. We now refer to such individuals as Not Criminally Responsible (NCR). The Mental Disorder Provisions of the Criminal Code set out a legal context within which NCR accused are cared for in the forensic mental health system. The law requires that all necessary steps be taken to protect the public from dangerous persons. The Supreme Court has stressed that the offender be treated with dignity and that any restrictions imposed be the least onerous and least restrictive compatible with public safety.

The law also stresses the importance of treatment for the individual to promote their rehabilitation and reintegration into the community. Unlike the situation in 19^th century England, we now have psychiatric and psychosocial interventions that reduce or minimize the harmful effects of serious mental disorder. Successful treatment offers the possibility of safe community reintegration for these individuals.

Tragic events as we have seen recently in Manitoba provoke an understandable desire to seek retribution and a call for long term incarceration. But persons suffering from schizophrenia are no more responsible for their illness than persons suffering from cancer or heart disease. They deserve medical care in a humane setting. And, when they recover from their illness, they deserve to take their place in society. The desire for confinement may be rooted in the fear that persons with serious mental disorders are frequently violent; in fact, there is much research to show that that is not the case.

Long term confinement of persons who have been violent while suffering from a serious mental illness but who have recovered from their illness and no longer pose a threat to the community is problematic in two important ways. First, such confinement runs counter to our efforts to de-stigmatize mental disorder and promote integration of all persons previously marginalized. This has been referred to as the de-institutionalization of the mentally ill, and it would be regressive and tragic to go back to using asylums as we have in the past. Second, long term confinement discounts the tremendous advances that we’ve seen in recent years in treatment and rehabilitation of mentally disordered persons, and in the assessment and management of violent behaviour.

Canada should be proud that it has developed a thoughtful, balanced and fair system for treatment of persons afflicted with mental illness who commit criminal acts that balances the need to protect the safety of the public while at the same time providing humane mental health care and active rehabilitation.

Howard Barbaree, Ph.D., C.Psych.
Professor and Head, Law and Mental Health Program
Department of Psychiatry, University of Toronto, and
Clinical Director, Law and Mental Health Program
Centre for Addiction and Mental Health

Phil Klassen, M.D., FRCP (C)
Deputy Clinical Director
and Associate Head (Education)
Law and Mental Health Program
Centre for Addiction and Mental Health
Assistant Professor,
Departments of Psychiatry and Medicine,
University of Toronto

Padraig Darby, MB, MRCPsych, FRCP(C)
Deputy Clinical Director
Law and Mental Health Program
Chair Research Ethics Board
Centre for Addiction and Mental Health
Assistant Professor,
Department of Psychiatry,
University of Toronto