Beyond NCR – A Roadmap to Mental Health Law
Mental health and law intersect in multitude ways especially in the realm of criminal law. As a society, we are becoming better informed and more understanding when it comes to mental health and mental illness. Thus, this arena has been significantly broadened in the past few decades as compared to the conventional narrow understanding of forensic <1> psychiatry.
In the last few years, there have been a growing number of debates, publications, and opinions about the verdict of Not Criminally Responsible (“NCR”) on account of mental illness. The high-profile cases of NCR have also received many media attention. Yet, less attention has been paid to the aftermath of an NCR verdict. The objective of this publication is to not only look at the legal historical changes of NCR, but also to provide a thorough understanding of the forensic mental health system that is in charge of rehabilitation of such patients.
Given that my clinical experience is mainly based on the province of Ontario and specifically, the city of Toronto, this publication will focus on the Ontario Review Board (“ORB”) and services available under that jurisdiction. However, the overall structure of the forensic system is somewhat similar across provinces with the exception of the Territories. 2
In a leading Supreme Court of Canada decision of Winko v British Columbia (Forensic Psychiatric Institute), Madam Justice McLachlin wrote:
In every society there are those who commit criminal acts because of mental illness. The criminal law must find a way to deal with these people fairly, while protecting the public against further harms. The task is not an easy one. 3
Two years prior, in 1992, there was significant legislative reform following a decision of the Supreme Court of Canada, R v Swain. 4 In the Swain case, the Supreme Court held that the provisions of the Criminal Code dealing with those found unfit to stand trial or found not guilty by reason of insanity were unconstitutional, as they violated the accused’s Charter guaranteed rights to procedural fairness and to be free from arbitrary detention.
The Parliament’s enactment of Part XX.I (Mental Disorder) of the Criminal Code became a new regime for dealing with the mentally disordered accused person. In the wise words of Justice McLachlin (as she then was):
Part XX.I reflected an entirely new approach to the problem of the mentally ill offender, based on a growing appreciation that treating mentally ill offenders like other offenders failed to address properly the interests of either the offenders or the public. The mentally ill offender who is imprisoned and denied treatment is ill-served by being punished for an offence for which he or she should not in fairness be held morally responsible. At the same time, the public facing the unconditional release of the untreated mentally ill offender was equally ill-served. To achieve the twin goals of fair treatment and public safety, a new approach was required. 5
Following the enactment of Part XX.I of the Criminal Code, Review Boards were established in each province and territory. Accused persons come before a Review Board pursuant to the authority set out in the mental disorder provisions contained in Part XX.I, in sections 672.1 through 672.95 of the Criminal Code, which provide for:
• Orders for an accused’s mental condition to be assessed, in certain circumstances;
• Orders for the treatment of an accused who has been found unfit to stand trial, if certain criteria are met;
• Dispositions and orders in relation to an accused person, who has been found NCR on account of mental disorder or unfit to stand trial (Unfit);
• The establishment of provincial ORBs to make or review dispositions concerning any NCRMD or Unfit accused; and
• The membership, jurisdiction and procedure of a Review Board in making or reviewing dispositions or assessment orders.
According to Statistics Canada, there were a total of 1,908 adult criminal court cases completed in ten jurisdictions in Canada <6> over the period of 2005 to 2012 that had at least one charge with a final verdict of NCR on account of mental disorder. 7 With a shift towards therapeutic jurisprudence, the statistics have most likely increased since 2012; however, the exact figures are not available.
So what happens after the verdict of NCR? In short, typically a long journey of rehabilitation awaits the NCR accused—also known as a forensic mental health patient.
The Ontario Review Board
As mentioned above, the establishment, jurisdiction, powers and procedure of Review Boards are set out in Part XX.I of the Criminal Code.
Review Boards should consist of not fewer than five members appointed by the Lieutenant Governor in Council of the province. A Review Board must have at least one member who is a qualified psychiatrist and at least one other member who has training and experience in the field of mental health and qualified to practice either medicine or psychology. 8
The Chairperson of a Review Board is either a judge, a retired judge or a person who is qualified for appointment to a judicial office (i.e., a lawyer who has been called to the Bar for 10 or more years). 9 There is also an appointed public member on the panel.
Section 672.54 of the Criminal Code provides for the types of dispositions that may be made by courts and the ORB for the NCR accused on an annual basis. In making a disposition, the ORB must consider four factors in determining which of the possible dispositions should be made. Those factors are:
• The safety of the public, which is the paramount consideration; 10
• The mental condition of the accused;
• The reintegration of the accused in to society; and
• The other needs of the accused.
Taking those four factors into account, the legislation requires the ORB to make the disposition that is “necessary and appropriate in the circumstances.” 11 In making such a disposition, the ORB must consider not only the general type of disposition (absolute discharge, conditional discharge or detention order), but must also consider the effect of the conditions of the disposition, so that the disposition taken as a whole is the least onerous and least restrictive to the accused. 12
Rehabilitation—A Gradual and Careful Approach
The purpose of the forensic mental health system is not to be punitive. Rather, it is to help rehabilitate and reintegrate people into the community. Many have misunderstood the role as a life-long hospitalization and are frightened by the idea of having patients reintegrate and transition back to their communities. Understanding the extent of assessment, treatment, supervision and careful planning that takes part during the patient’s rehabilitation is important to help reduce this pubic fear. There are several layers of safety measures that are built in the structure of the forensic mental health system; both legally and clinically.
Initially, most patients are confined to secure hospital wards while a multidisciplinary team of health care professionals <13> work with them to understand their illness, their treatment needs and to develop a rehabilitation and recovery plan in compliance with their Review Board disposition. During this time, staff members also identify the potential risk the patient has to themselves as well as to others. Once this is attained, a gradual plan for increasing privileges is put in place so the person may attend treatment opportunities available off the ward. This may also include pass privileges for purposes of recreation and socialization. With public safety always being the prominent concern, off-unit passes are only approved and granted to patients if several conditions are met:
The Review Board has provided authorization;
The patient understands the purpose of the pass;
The patient agrees to the conditions and responsibilities inherent in being given the pass; and;
The treatment team finds the purpose integral to the patient’s recovery.
Outings primarily take the form of brief visits on the grounds of the hospital with two or more staff escorts. When utilized successfully, the passes very gradually increase in duration, frequency and decrease from escort levels to indirectly supervised into the community. The gradual increase of off-unit passes plays an essential role in preparing and transitioning the person to safely re-engage with the community. It is also an important aspect of the rehabilitation mandates as part of the forensic system.
Under the Review Board system, when a patient absconds from an escort or does not return in a timely manner as stated by the terms of their pass, they are declared AWOL and subsequently, police are informed. Almost all return within a few hours. However, due to public safety and out of concern for the patient, designated psychiatric facilities and the police inform the public that the person is AWOL.
Given that this is a privilege-system in that the patients have to prove they meet the criteria to access off-ward passes, AWOLs are taken very seriously and can push back community reintegration plans for a long time. At the same time, once patients are declared discharge ready, that means they have been able to follow the terms of their disposition under supervision without any concerns and have proven to their treatment team and the Review Board that they are ready to gradually transition to the community.
This transition is very gradual, considering the vulnerability of each patient and it entails a careful discharge plan addressing all the patient’s risk factors. In addition, the in-patient care is always transferred to a forensic out-patient team for continuous monitoring, risk management and clinical support. What often gets missed in conversations on this topic is the fact that even after a patient is granted an absolute discharge (which ends their supervision under the auspices of the Review Board), a non-forensic out-patient team still follows the patient in the community to make sure they receive appropriate support when necessary.
As already noted, this system is slow, vigilant and perhaps for majority of patients a longer process than incarceration. It is also not a perfect system. Critics have argued that it is not victim focused and it is not designed for certain complex mental conditions where individuals are not able to follow strict rules, hence making it almost impossible for them to successfully transition back to the community and be granted an absolute discharge. But with more transparency, education, social, political and legal supports we can address the shortfalls and move towards a more comprehensive forensic mental health system.
1 The term “forensic” means “of or relating to courts of law” and in this context, describes a hospital that has been designated by the provincial Minister of Health as a place for the custody, treatment or assessment of mentally disordered offenders pursuant to the provisions of Part XX.1 of the Criminal Code of Canada.
2 The Nunavut Criminal Code Review Board (NRB) acts similar to the Ontario Review Board, however, currently there are no psychiatric facilities with a forensic division in Nunavut.
3 R v Winko,  2 SCR 625 at para 1, McLachlin J. (as she then was) [Winko].
4 R v Swain,  1 SCR 933 [Swain].
5 Winko, supra note 3 at para 20.
6 Excludes cases from Quebec, the Northwest Territories, and Yukon, as well as superior court data from Prince Edward Island, Ontario, Manitoba, and Saskatchewan, which were unavailable.
7 Statistics Canada, Verdicts of not criminally responsible on account of mental disorder in adult criminal courts, 2005/2006-2011/2012 < https://www150.statcan.gc.ca/n1/pub/85-002-x/2014001/article/14085-eng.htm#a5> accessed 29 September 2018.
8 Criminal Code of Canada, RSC 1985, c C46, s 672.11 [CC].
9 Ibid, s. 672.4(1).
10 Ibid, s. 672.54 , as amended in July 2015, by Bill C-14, 2014, c.5, s 9.
12 Mental Health Centre Penetanguishene v Ontario (Attorney General),  1 SCR 498 at 503, 517-519.
13 The multidisciplinary team includes these disciplines: psychiatry, pharmacy, nursing, social work, occupational therapy, recreational therapy, behaviour therapy, psychology and psychometry.