Vol. 1, Issue 1
In This Issue
- PGY6 Forensic Psychiatry Program Directors’ Update
- Forensic Psychiatry Competency By Design Workshop, May 3, 2017
CPD and Training
Civil Forensic Psychiatry
- Westerhof v Gee Estate and McCallum v Baker: A Warning to Guard Against the Perception of being a “Hired Gun”
- Forensic Psychiatric Evaluation of Mild Traumatic Brain Injury
- Ethical and Therapeutic Questions About the Use of Seclusion and Restraint in Patients With Severe Borderline Personality Disorder in Forensic and Correctional Settings
Criminal Forensic Psychiatry
Ask the Experts
- Dr. Derek Eaves and the Origins of the Canadian Academy of Psychiatry and the Law
- It’s Membership Renewal Time
From the Co-Editors
Jeff Waldman, MD, FRCPC and Todd Tomita, MD, FRCPC
As the new co-editors of the CAPL Newsletter, we are very excited about launching Volume 1, Issue 1 of the new era of the newsletter. As many of you are aware, the CAPL Newsletter had previously been the job of the CAPL President, but with forensic psychiatry becoming a formal subspecialty, the Board decided that dedicated editors were required. We have volunteered as editors, and as new Board members, and our goal is to increase the profile and readership of the CAPL Newsletter.
The newsletter format is a work in progress, and we certainly hope members will provide feedback and contribute to it. We hope that this newsletter will become a forum for communication across the country to discuss interesting cases, ethical dilemmas, and allow the small number of forensic psychiatrists dispersed across the country to feel like they are part of a community that is there to support each other.
We are particularly interested in providing opportunities for fellows/PGY6 residents and early career forensic psychiatrists to write about specific areas of interest, allowing them to contribute to a resumé that demonstrates their expertise to the courts and other decision-makers.
The success of the newsletter ultimately lies with increasing engagement with CAPL members both as readers and contributors. We hope this inaugural issue fulfils this mission and you will take up our call for more feedback, suggestions and contributions for future issues.
Joel Watts, MD, FRCPC, DABPN (Forensic Psychiatry)
It has been almost a year since our last newsletter, and it feels far too long! It is only appropriate that with the first hints of summer, we launch the regular publication of a new, revamped and—we hope—more engaging newsletter to share the activities of CAPL and include our members in important discussions in our field. I wish to extend a big thanks to Drs. Todd Tomita and Jeff Waldman for agreeing to be co-editors of this new CAPL Newsletter. Please do not hesitate to share your ideas for content for the newsletter with them or the Board at email@example.com.
The CAPL Annual Conference in Victoria is only just behind us and once again, I am humbled to be leading such an illustrious and fun-loving group. Thank you to all who attended (especially those who came to the business meeting and participated in our elections) and presented. Once again, the organizing and scientific committees and Ms. Chantal Goddard deserve many thanks for a job well done. We enjoyed many excellent presentations from members and invited speakers. It was a pleasure to hear from the winner of our annual Fellowship Award, Dr. Achal Mishra and it was an honour to present the Bruno Cormier Award to long-time CAPL contributor, Dr. Johann Brink. It was lovely to see the genuine surprise of such a deserving candidate. Our conference continues to go from strength to strength, and the addition of the pub night was a resounding hit. I am very much looking forward to seeing what Montréal has in store for us next year!
There was significant turnover in the composition of our Board of Directors after the aforementioned elections at our Annual General Meeting (AGM). Several directors were at their term limits and we thank them for their service to CAPL over the years: Drs. Sandy Simpson, Paul Fedoroff and Johann Brink. It was a pleasure working with them and CAPL was well-served by their many contributions to its advocacy and its governance. Taking their places we welcome Drs. Louis Morrisette, Todd Tomita and Jeff Waldman to the Board. Drs. Brad Booth, Phil Klassen, Vicki Roth and I were reelected to our final (third) two-year terms. We reached a goal of achieving more geographical representation on the Board, as we now have directors from Québec, Ontario, Manitoba, and British Columbia. Per our current bylaws, the Board decides who will occupy the officer positions of President, Vice-President, Secretary and Treasurer for the next year, and Dr. Brink, Nominating Committee Chair, agreed to chair the first meeting of the new Board to help us through this process.
We were happy to announce at the AGM that the motion to accept the new Ethical Guidelines passed by vote of the membership. Nineteen out of 22 people who responded to the call to vote were in favour, which carried the motion per the minimum number of votes needed (15). We are excited that these new guidelines have been published on the website, after several years of hard work by many CAPL members, including: Drs. Graham Glancy and Padraig Darby, who worked on the initial drafts of this document, the CAPL Board, and Drs. Renée Fugère and Sébastien Proulx who reviewed the French translation.
The Board of Directors continues to have a full agenda and we will continue to meet every few months to work on it. We are currently drafting our operating procedures and policies, now that our bylaws are up to date. We met just prior to the AAPL conference in Denver, Colorado, in October 2017 and were able to make good headway over a four-hour meeting. We will hold another meeting to work on these documents in the next few months. This will further bolster the operational efficiency of CAPL, ensure more efficient decision-making and reinforce the institutional memory of our organization. At the AGM, Dr. Roth presented several options and updates for the surplus funds that CAPL has accumulated, and we will continue to work on making good use of these funds in keeping with the wishes of a consensus of CAPL members, all the while ensuring the financial stability of the organization for years to come.
CAPL will continue to work closely with the CPA, as we have done in the past year, including speaking on our combined behalf to different stakeholders, and responding to media requests. As President of CAPL, I now sit on the CPA Board and the Council of Academies, having taken over from Dr. Brink. CAPL has been asked to present the Expert Psychiatry Series talk at the CPA Annual Conference, which will be held from Sept. 27 – 29, 2018 in Toronto. Based on a needs assessment by our psychiatrist colleagues at CPA, a group of CAPL members will give a talk on the issue of assessing different capacities, and provide some expert advice on how to prepare documentation and prepare for testimony.
PGY6 Forensic Psychiatry Program Directors’ Update
Lenka Zedkova, MD, PhD, FRCPC
Program Director, Forensic Psychiatry Residency Program, University of Alberta
We now have seven accredited PGY6 forensic psychiatry training programs across Canada:
- University of Alberta
- McMaster University
- University of Montreal
- University of Ottawa
- University of Saskatchewan
- University of Toronto
- University of British Columbia
There are currently 11 PGY6 forensic psychiatry residents in programs across Canada, and five are slated for the 2018-2019 academic year.
The program director group will provide CAPL members with ongoing updates related to training. As part of this new column, we will focus on a particular PGY6 forensic program and provide a review of the training details. For this issue, we will focus on the University of Alberta (UofA) PGY6 forensic psychiatry training program. The UofA program has one funded PGY6 forensic psychiatry resident position each year.
University of Alberta Forensic Psychiatry Residency Program
The UofA program was accredited by the Royal College of Physicians and Surgeons in 2013. As with other programs, a successful completion is a prerequisite for the Royal College examination in forensic psychiatry. To date, up to two resident positions have been funded annually.
In our program, residents are exposed to a broad range of training experiences. Our inpatient services, the largest in Alberta, are located at Alberta Hospital Edmonton (AHE), with over 100 forensic psychiatry beds. At AHE, residents gain expertise in court-ordered assessments of fitness to stand trial and criminal responsibility and report writing (including complex or high-profile cases). With more experience, residents provide court testimonies if the opportunity arises. Along with their team, the residents are also involved in establishing a recovery model-based rehabilitation plan and risk management for patients found unfit to stand trial or not criminally responsible (NCR). Residents are expected to complete formal risk assessments, write reports for the Alberta Review Board (ARB) and provide testimonies at ARB hearings.
Our outpatient forensic services (Forensic Assessment and Community Services (FACS)) offer subspecialized assessments, treatment services and outreach services. During their rotation at FACS, residents may continue to complete court-ordered assessments, including pre-sentence assessments. The focus here is on the treatment and risk management of NCR outpatients. Residents are also involved in the assessment and treatment of offenders participating in the sex offender program and spousal violence program.
Our young offender programs involve both inpatient and outpatient services. The adolescent forensic unit (Turningpoint Program) at AHE gives trainees a truly unique exposure to young offenders admitted for a variety of court ordered assessments, including Section 34 assessments, intensive rehabilitative custody supervision assessments, and assessments of fitness and criminal responsibility. In the outpatient Centerpoint Program, our residents access pre-sentence assessments and treatment cases referred by the courts, probation and community agencies.
A recent addition to the learning experience is a newly-established mental health court with a dedicated forensic psychiatrist. The purpose of this court is to expedite proceedings via real-time assessments and to link clients to various community resources.
The Edmonton Remand Centre provides our residents with more opportunity to be involved in court ordered assessments, including high risk offender assessments. In our provincial and federal correctional facilities, trainees become familiar with the running of clinics and the uniqueness of the correctional environment.
Our program offers a variety of elective opportunities, including the already mentioned assessment and treatment of individuals in sex offender or spousal violence programs, young offender programs, civil forensic psychiatry, or forensic research. Out of province electives are encouraged.
Residents are expected to participate in educational activities which include but are not limited to a weekly forensic seminar series, monthly forensic grand rounds and journal club and an annual mock trial.
Forensic Psychiatry Competency By Design Workshop, May 3, 2017
Draft Entrustable Professional Activities Stages
Copyright © 2018 The Royal College of Physicians and Surgeons of Canada. Referenced and produced with permission.
Stage 1 – Transition to Practice
- Performing a general psychiatric assessment, formulation and management plan, including the acute risk of violence and/or suicide
- Obtaining informed consent for a forensic examination
- Working effectively as a member of the interprofessional team
- Documenting the clinical encounter
Stage 2 – Foundations of Discipline
- Performing fitness assessments and completing reports in uncomplicated adult cases
- Performing NCR assessments and report completion in uncomplicated adult cases
- Performing risk assessments in uncomplicated adult patients
- Assessing and providing ongoing management for review board patients
Stage 3 – Core of Discipline
- Completing targeted complex, legally defensible psychiatric assessments
- Completing clear legally defensible written reports on complex issues
- Testifying before courts and tribunals
- Providing ongoing management for complex patients
- Leading the forensic psychiatry team in patient care and risk management
- Interacting professionally with lawyers, crown, and support agencies
Stage 4 – Transition to Practice
- Managing the caseload of a forensic psychiatrist
- Contributing to the field (grand rounds, abstracts, admin etc)
- Developing and maintaining a CV
- Developing a career and learning plan for the first 3-5 years
CPD and Training
2019 CAPL Annual Conference
Phil Klassen, MD, FRCPC
The Scientific and Planning Committee is pleased to announce that the next CAPL Annual Conference will be held Apr. 28 – May 1, 2019 at Le Westin Montréal in Montréal, Québec. Responding to the results of the member surveys, which indicated that members would like the conference to be later in the spring than has traditionally been the case, we are holding the meeting in Montreal on dates that should make for a more inviting outdoor experience. In keeping with survey results, and our tradition of alternating between eastern and western venues, the committee is planning for a 2020 meeting in Banff, in a similar time slot; this would allow attendees a range of outdoor experiences including biking, hiking, golf and spring skiing. Please feel free to give the committee members your thoughts on our suggestions. We look forward to seeing you!
Upcoming Forensic Psychiatry Meetings
49th AAPL Annual Meeting
Oct. 25-28, 2018
24th Annual CAPL Conference
Apr. 28 – May 1, 2019
The Calgary Annual Forensic Conference: Vicarious Trauma in Forensic Settings.
Speakers: Dr. John Bradford, Dr. Julian Gojer, PCJ Michele Collinson, Dr. Sergio Santana
Oct. 12, 2018
Contact: Dr. Oluyemisi Ajeh : firstname.lastname@example.org
Forensic Psychiatry Education Day, 9th Edition
UBC Forensic Psychiatry Division & CAPL BC Regional Section
UBC Robson Square, Vancouver
Nov. 9, 2018
Civil Forensic Psychiatry
Westerhof v Gee Estate and McCallum v Baker: A Warning to Guard Against the Perception of Being a “Hired Gun”
Jeffrey C. Waldman, MD, FRCPC
I have worked in forensic psychiatry since I completed my residency training program in 2003. For the first 10 years of that practice I also worked in correctional psychiatry, and for approximately seven years, I was the only psychiatrist who worked in the psychiatric intensive care unit. I provide clinics to clients with low IQ, have a history of violence and criminal sexual behaviour, as well as provide ongoing community-based psychiatric care for some of the more complex, high-risk, psychiatric patients with a history of involvement with the criminal justice system in the province.
Winnipeg is a relatively small community with only a few psychiatrists willing to provide expert testimony to the courts. As such, either out of habit, out of convenience, or out of pragmatism, the relationship between the courts and its experts has been an informal one. Although I remain cognizant of some of the issues related to how I communicate to the court in my various roles, that informal relationship allowed me to give recommendations to the court and successfully advocate for my patients, and for my clients’ and patients’ interests.
In early 2013, all of my colleagues left the hospital-based forensic program. I took over as the medical director and I began studying for my subspecialty examination in forensic psychiatry. Although the lack of formality of communication between the courts and my program in Winnipeg provided me with more power than I was likely entitled to, and more influence on the outcome of court proceedings for my patients or the accused, I decided that it was essential for our program to provide information to decision-makers in an ethical and standardized fashion. As such, I took steps to formalize the processes within forensic psychiatry to provide training to residents specifically on the role of providing testimony as an expert as opposed to a fact witness, and the responsibility that we have to a decision-maker to provide all of the relevant information in an unbiased fashion without usurping the role of the decision-maker in that process. Even after providing grand rounds to the department, speaking to the judiciary, providing information about the role of the expert at a defence – Crown conference, and speaking to members of the Law Society, I am still struck by the kinds of questions posed to me that are unrelated to the assessment question, the court’s use of information provided by some of my colleagues and my colleagues’ lack of awareness regarding issues raised when they are asked to answer questions unrelated to their role as a treatment provider.
Approximately three years ago, a Winnipeg man who had attempted to strangle the passenger he was sitting next to on a Greyhound bus was admitted to hospital in Vancouver. He was then transitioned back to Winnipeg to follow up with the Schizophrenia Program here. Within a couple of months he had attempted to drive his vehicle into oncoming traffic. When his vehicle finally lost control and left the road, he removed all of his clothes and ran into the woods screaming a religious monologue. Although the outcome may not have been different were the courts to order an assessment from our department, he was found Not Criminally Responsible (NCR) based on a one-paragraph letter by his treating psychiatrist, simply indicating that the man has schizophrenia, he was sick at the time, and providing the opinion that “he should be found NCR.”
Another case that I presented at a previous CAPL conference on sexsomnia involved a man who was referred by his family physician to a sleep specialist in Ontario as part of his family doctor’s efforts to respond to concerns that the man may be engaging in sexual behaviour in his sleep. In the context of that medical consult, the sleep expert indicated that it was his opinion that the reason the patient had been sexually assaulting his wife during the night was because of a condition that the sleep specialist called sexsomnia. With that report, and no forensic assessment, the individual was found NCR. He later acknowledged that he misled the medical specialist and that he was not asleep for any of the assaults.
At the most recent CAPL conference there was a talk of great interest to all forensic psychiatrists that was presented by two law students under the supervision of Dr. Glancy who spoke on the role of the expert in the courts, and how it has been further clarified in the Ontario Appeals Court. Although the emphasis was on White Burgess,1 I found the cases of Westerhof v Gee Estate and McCallum v Baker2 that were also referenced most interesting. By my reading, those cases seemed to allow treatment providers to be questioned as experts without any consideration for the ethical obligations or professional obligations of the treatment provider to their patient. The courts also seem to assume that the issues relevant for the courts should be available to treatment providers who are completing basic diagnostic assessments or are seeing their patients in order to simply provide treatment.
Are the decisions in Westerhof and McCallum reflective of a lack of understanding or an inherent truth? It appears that the court and the average person make two general assumptions. First, they believe that a treating psychiatrist or treatment provider who has known a patient over time will ultimately have the most relevant information for the courts or any other decision-maker. Second, that the expert is simply a hired gun and is being paid to provide a predetermined opinion. In response to this and the cases that have spoken to this issue, forensic psychiatrists need to be very careful to explain the processes that occur in the context of their assessment and do everything they can to ensure that the courts understand the steps taken to remain objective.
I expect that there is significant cross-Canada variability in understanding the role of the expert in general, and of the forensic psychiatrist in particular. I expect that all forensic psychiatrists are comfortable educating the courts and other decision-makers on issues relevant to decisions that are being made. But in my opinion these cases highlight the importance of educating the courts and other decision-makers, as well as our psychiatry colleagues on the role of the expert and the processes involved in arriving at our opinions. I expect that most would be comfortable with this and might even be of the opinion that this is already the case. If so, what is at the root of the judges involved in the cases who appear to value the opinion of the treatment provider as opposed to the expert? You might all agree with the first step required to remedy the apparent misperception of the layperson and the courts that the expert is to educate them on the processes that occur in the context of a forensic assessment. A forensic psychiatrist is not simply providing a bought opinion, but rather an opinion based on sound methodology, specific to the issues relevant for the decision-maker.
Would you be willing to take more decisive steps? Given that we are a self-regulated profession, what is the obligation of the forensic psychiatrist when we believe a colleague is providing unsubstantiated opinion, or opinion that they could not have arrived at in the course of a routine clinical assessment or during the course of treatment? Is the integrity of forensic psychiatry as a subspecialty worth encouraging our regulating body to censure colleagues who undermine what we do? There is an article that describes a process for communicating with expert colleagues when appropriate practice processes are not followed.3 The authors provide a useful process for “polite” email or letter communication to a colleague with templates for “confronting colleagues.” This process is an excellent first step. If this process does not result in a change in practice, a report to our regulating body is necessary.
The integrity of the forensic psychiatry profession depends on maintaining high ethical standards. The revised Canadian ethical standards for forensic psychiatry that were approved at the last CAPL conference, highlight the importance of careful attention to practising forensic psychiatry with a high ethical standard. In my opinion, the integrity of our profession requires us to hold each
other and our colleagues to that ethical standard, and that may require that we as a profession be willing to take more decisive steps to address unsubstantiated opinions based on misguided methodology as one additional remedy to counter the courts’ assumptions that a treating physician is the most objective expert and that a forensic psychiatrist may simply be a hired gun.
- White Burgess Langile Inman v Abbott and Haliburton Co. [2015[ SCC 23.
- Westerhof v Gee Estate; and McCallum v. Baker  ONCA 206.
- Brodsky SL, McKinzey RK. The ethical confrontation of the unethical forensic colleague. Prof Psychol. 2002;33(3):307–309.
Forensic Psychiatric Evaluation of Mild Traumatic Brain Injury
Todd Tomita, MD, FRCPC
“Follow the data…” – Dr. Roy O’Shaughnessy
I often hear Dr. O’Shaughnessy’s admonition to follow the data which I have always found to be a guiding maxim in my approach to forensic psychiatric evaluation, particularly in personal injury cases. To those uninitiated to the civil medical-legal arena in which personal injury cases are assessed and adjudicated, it can be an eye-opening experience to observe how opinions based on a paucity of data can influence the outcome of cases. In British Columbia, and I suspect in most jurisdictions, forensic psychiatrists do not provide the bulk of psychiatric personal injury evaluations; however, in my admittedly biased view, the quality of forensic psychiatric assessments and written reports does much to moderate some of the extreme, “hired-gun” type opinions that stray far from the available data in particular cases.
Mild traumatic brain injury is one of those troublesome areas in which there can be considerable variability in opinions based on limited or questionable data sources. In this article, I propose to comment on the strengths of a forensic psychiatric methodology in the approach to personal injury cases involving mild traumatic brain injury. I will touch briefly on relevant research findings, then highlight the vexing forensic psychiatric assessment issues that need to be explicitly addressed in a written report and testimony.
Forensic Psychiatric Methodology
In the civil legal arena, lawyers will often inquire as to the differences between a clinical and a forensic approach to the psychiatric evaluation. Perhaps the simplest way to explain this is to emphasize that a forensic psychiatrist routinely juggles two different roles—forensic and treater—and the approach adopted differs depending on the one being used. In contrast, non-forensic psychiatrist evaluators may have difficulty stepping out of the treater role as the forensic role is not a routine part of their work. A treater role is ill-suited to a forensic psychiatric evaluation.
There are several ways to unpack the forensic psychiatric approach but one generally accepted model is Heilbrun’s four step model:1,2
- Data Collection
- Data Analysis
- Report Writing and Testimony
I do not propose to go through each step, but suffice to say that preparation involves understanding the legal questions at hand in a personal injury case that typically focus on diagnosis, causation and psychiatric functional impairment.
The data collection step is critical in mild traumatic brain injury cases, as it provides the foundation for opinions. Lovejoy and Oakes describe data lying along a subjective-objective continuum.4 They emphasize that all data needs to be clinically weighted in terms of reliability and degree of applicability to the questions at hand in data analysis.
Data can range from the most subjective to a mix of subjective/objective to the most objective. The most subjective data are in individual statements or medical records submitted by treaters that offer a recapitulation of self-report without any formulations related to diagnosis, impairment or documentation of observed behaviours.
The subjective/objective level of data typically relates to procedures that serve to quantify and organize subjective symptoms in reports, and offer a cross-sectional view in an individual’s functioning. This is typically where the forensic psychiatric interview will take place.
The most objective evidence includes things such as academic records, formal work performance evaluations, neuroimaging, psychometric testing with norms and provisions for validity testing and surveillance data. Establishing the clinical weight to assign to these sources of data is critical as sometimes less objective and more subjective data is emphasized in opinions involving mild traumatic brain injury cases which can have a marked influence on the conclusions. Furthermore, it can distort opinions away from what appears to be the most objective picture based on the data.
Relevant Research Findings
There is an extensive literature on mild traumatic brain injury. Examination of the details and nuances of the literature is beyond the scope of this paper. Instead, a selective review of the key findings related to the typical course after mild traumatic brain injury and some of the competing clinical conditions and factors that can complicate assessment will be reviewed.
The typical course after mild traumatic brain injury is full recovery. The research literature is reasonably settled in this regard. Within the first week after a mild traumatic brain injury, there are objective cognitive sequalae. Measures of attention, memory and speed of information processing show abnormalities. There is rapid recovery within weeks. The majority are fully recovered by three months. There is a persistent minority who deviate from the typical recovery trajectory with numbers ranging from five per cent to 15 per cent cited. Commentators caution that the number needs to be interpreted carefully as persisting symptoms, typically attributed to a post-concussion syndrome, are primarily subjective in nature.
There is a typical constellation of symptoms attributed to post-concussive syndrome including cognitive, physical and emotional symptoms. Cognitive symptoms include loss of concentration and memory problems. Physical symptoms include headaches, dizziness, fatigue, insomnia, tinnitus, and sensitivity to light and noise. Emotional symptoms include depression, irritability and anxiety.
It is critical to recognize that the post-concussive syndrome is not synonymous with mild traumatic brain injury. The literature shows that individuals who have not suffered any traumatic brain injury can manifest similar symptoms. Consequently, the persistent post-concussion syndrome is non-specific and of questionable utility in forensic evaluations. This is for at least three reasons that may be used in rebuttal or testimony. First, the underlying pathophysiology is undefined. Second, the severity of traumatic brain injury does not clearly correlate with the risk of post-concussion syndrome. Third, the symptoms are subjective and common in other clinical populations and, in fact, in the general population.
The literature and expert commentary would suggest that the informed treater position would be to avoid lumping cognitive, physical and emotional symptoms into a single syndrome of post-concussion syndrome. This approach can create iatrogenic difficulties with implied causation and it also obscures rather than helps clarify some of the vexing independent medical examination (IME) assessment issues when the clinical data are undifferentiated.
Conditions that can present with post-concussion syndrome symptoms in the absence of traumatic brain injury include depression, chronic pain, posttraumatic stress disorder, non-traumatic brain injury trauma and normal populations. Ultimately, whether it is called post-concussion syndrome or simply persisting symptoms attributable to a mild traumatic brain injury, this conclusion is most reasonably considered a diagnosis of exclusion after other conditions that can produce comparable symptoms are excluded.
There are some predictors of incomplete recovery from mild traumatic brain injury: these include prior head injury, presence of psychiatric conditions, Glasgow Coma Scale (GCS) of 13 rather than 15 following head injury, and involvement in litigation and compensation proceedings. It is important to emphasize that given the state of our science, these are correlational and not causal predictors.
For the purposes of a forensic psychiatric evaluation, based on the available literature, there are four reasonable assumptions to make:
- mild traumatic brain injury is a highly individualized injury;
- the typical course is full recovery by three months;
- an atypical course is most likely due to preexisting and comorbid conditions; and
- long-term problems attributable to a mild traumatic brain injury should be reserved as a diagnosis of exclusion.
Forensic Psychiatric Assessment Challenges
I will turn to the psychiatric assessment challenges in the forensic evaluation of mild traumatic brain injury cases. There is a reasonable consensus on the challenging issues in the assessment of mild traumatic brain injury but no standardized assessment approach. My contention is that a forensic psychiatric methodology is well-suited to these types of evaluations.
Part of the difficulty in mild traumatic brain injury cases is that they lie at the intersection between multiple specialties including neurology, neurosurgery, physical medicine and rehabilitation, and neuropsychology. No specialist can make the determinative finding; however, psychiatry may be particularly well-situated as the comorbid conditions which lead to a persistence of emotional and cognitive symptoms are often attributable to psychiatric disorder.
Five psychiatric assessment challenges arising in the forensic psychiatric assessment of mild traumatic brain injury revolve around: 1) clinical discernment and bias, 2) different diagnostic thresholds, 3) atypicality and persistence of symptoms, 4) multifactorial causation and 5) proportionate attribution.
1. Clinical discernment and bias
Employing a high degree of clinical discernment and maintaining an awareness of bias are critical in evaluating mild traumatic brain injury cases. As already mentioned, data must be weighed, and the key question is to consider whether the data being relied upon to form a picture of the outcome of mild traumatic brain injury are clinically credible.
Iverson and Lange review potential biases in the assessment of mild traumatic brain injuries.3 There are potential plaintiff biases including expectancy bias, “good old days” bias and iatrogenesis. Expectancy bias refers to symptoms being caused by expecting to have them after an event occurs. People can experience a head injury and expect to have some adverse outcome: this can create symptoms. “Good old days” bias refers to a tendency to recall one’s condition before a traumatic brain injury in an overly positive way. Iatrogenesis refers to a medically-induced adverse outcome. In mild traumatic brain injury cases, iatrogenesis is often introduced when treating clinicians keep telling people that their persisting symptoms are related to mild traumatic brain injury. This causes difficulties as the underlying assumption is often that little can be done as the changes are permanent.
There are potential expert biases. They include treater bias, partisan bias, as well as anchoring and confirmation bias. Treater bias arises in the context of a treating physician taking on a dual role in provisioning an IME report. Treaters are aligned with patients, advocate for them and do not want to impugn them or cause harm as this is typically against the treater’s ethics. This creates the potential for bias if the direction of opinions is not aligned in a favourable way for the plaintiff/patient. Partisan bias refers to alignment with the retaining side. In extreme cases, this leads to the “hired gun” phenomenon. Anchoring bias refers to the tendency to focus on a single event in mild traumatic brain injury cases—the injuring incident. Confirmation bias refers to a search for the presence of symptoms, in this case post-concussion syndrome, to affirm the presence of a mild traumatic brain injury with persisting symptoms.
2. Different diagnostic thresholds
Although diagnostic thresholds are not always explicitly applied, it is important to emphasize that there is variability. The classification of traumatic brain injury severity involves three factors: 1) duration of loss of consciousness, if any, 2) the duration of memory disturbance and 3) GCS score.
Three generally used mild traumatic brain injury diagnostic criteria are the American Congress of Rehabilitation Medicine (ACRM), Diagnostic and Statistical Manual of Mental Disorders (DSM-5) and International Classification of Disease (ICD-10). Depending on which diagnostic criterion is employed, the threshold to establish a diagnosis changes.
The lowest threshold is the ACRM, which requires, “…a traumatically induced physiological disruption of brain function” that is manifested by one or more of the following: any period of loss of consciousness for up to 30 minutes, any loss of memory for events immediately before or after the accident for as much as 24 hours, or, any alteration of mental state at the time of the accident (e.g., feeling dazed, disoriented or confused).
A higher threshold for diagnosis is found in the DSM-5 criteria for mild neurocognitive disorder due to traumatic brain injury. The DSM-5 has an emphasis on the need for evidence of a traumatic brain injury, and sets out a requirement that there has been an impact to the head or other mechanisms of rapid movement or displacement of the brain within the skull. There is also a temporal criteria that symptom onset occurs immediately after the traumatic brain injury or after recovery of consciousness.
The DSM-5 also has a comparatively higher threshold as it does not use the “any” criteria that is found in the ACRM criteria. Instead, there are definitive findings that must be present including one or more of the following: loss of consciousness, posttraumatic amnesia, disorientation and confusion, or neurological signs (e.g., neuroimaging demonstrating injury, a new onset of seizures, a marked worsening of preexisting seizure disorders, visual field cuts, anosmia (loss of smell), hemiparesis).
The ICD-10 post-concussion syndrome criteria are the highest threshold by virtue of the defining criteria for injury that requires a history of head trauma with a loss of consciousness preceding symptom onset by a maximum of four weeks. The presence of multiple symptoms including physical, cognitive and emotional are required.
The most common challenge in forensic psychiatric evaluations is the need to carefully consider whether a mild traumatic brain injury diagnosis established using the ACRM also crosses the DSM-5. If not, then a more extended analysis of other causal conditions and factors is required. It is often in this specific scenario that the strength of a forensic psychiatric methodology is demonstrated in parsing, weighting and analysing the case data.
3. Atypicality and persistence of symptoms
Usually by the time a forensic psychiatrist evaluating a case of mild traumatic brain injury sees the plaintiff, the clinical course has become atypical as the individual has failed to recover and has persisting symptoms, hence the reason for the evaluation.
Addressing atypicality requires: 1) identifying predictors of incomplete recovery, 2) identifying any of the common co-occurring conditions that are present, 3) identifying contemporaneous factors clouding the causation question and 4) addressing the issue of malingering.
As Dr. O’Shaughnessy’s admonition indicates, following the data is critical. Initial injury data must be reviewed, including first responder reports such as ambulance crew, witness statements and hospital records. A survey of the medical records often reveals symptom patterns. It is important, in particular, to look for a pattern of increasing complaints or symptoms over time, which would typically militate against attribution to a traumatic brain injury in which, absent other clinical conditions, one would expect a pattern of decreasing symptoms and recovery. The issue of “chart creep” needs to be examined carefully. For example, finding evidence of altered reporting about the severity of the initial trauma, or any indications of misdiagnosis or misinformation provided to the patient by various health care providers or others.
One must also examine for possible biases and assess the person’s beliefs and expectations regarding their injury and their understanding of the mechanism, damages and outcomes. In particular, one must be careful to identify mixed messages that a plaintiff may have received and the issue of iatrogenesis in which the notion of persisting mild traumatic brain injury, typically in the form of post-concussion syndrome, is introduced and endorsed by treatment providers.
4. Multifactorial causation
Single factor causation is rare in mild traumatic brain injury cases. Instead, the most common scenario is multiple causal factors lead to persistence of symptoms; in other words, multifactorial causation is the rule rather than the exception. In contrast, in moderate to severe brain injury, it is more clinically plausible to expect that traumatic brain injury is the single causal factor. A guiding maxim, grounded in the available literature, is that persistent mild traumatic brain injury symptoms and related impairment need to be reserved as a diagnosis of exclusion while one considers factors that may be leading to atypicality of outcome.3
There are sometimes contemporaneous issues which cloud the assessment that are often difficult to express in the psychiatric IME. These include the role of the litigation context. Involvement in litigation can be stressful and it is unsurprising that involvement in litigation is one of the predictors of persisting symptoms. There is also the role of personality. Sometimes this is obvious as in the case of someone with an obsessional personality who has great difficulty accepting and adjusting to some degree of residual difficulties, whether it be physical or emotional as a consequence of a traumatic injury. At other times, it can be more subtle and difficult to pin down with available data. Finally, clinical misattribution, reinforcement and iatrogenesis can sometimes be important factors, but they may be difficult to address explicitly in the assessment.
5. Proportionate attribution
The final area is in the data analysis section in ensuring that proportionate attribution of causal conditions and factors is explained. The psychiatric expert’s analysis needs to reflect the realities that single factor causation is the exception rather than the rule.
If one approaches these cases with a “multifactorial maxim” in mind, a clinical weighting of contributing conditions and factors must follow. Clinical judgment is required in weighing the data along the subjective-objective data continuum because this can be a source of significant variability in both diagnosis and opinions around attribution of persisting symptoms and related functional impairment. One must be careful to select data which are the most credible to use as a foundation for opinions. The analysis that is set out should reflect evidence of a search for symptom patterns, both of symptoms that might be attributable to mild traumatic brain injury and for common co-occurring conditions in mild traumatic brain injury. That is, there should be some type of “ruling out” process in evidence in the analysis.
Clinical judgment is critical in evaluating mild traumatic brain injury cases because of the need to decide on the causal weight to place on a remote mild traumatic brain injury when contemporaneous causal factors such as depression, insomnia or chronic pain, are present.
Clinical judgment is required in determining the scope and limits of psychiatric expertise. Mild traumatic brain injuries typically involve multiple evaluators from different specialties including neurology, neurosurgery, physical medicine and rehabilitation, and neuropsychology. Depending on the presence of comorbid conditions, a psychiatrist may not be best-placed to provide opinions. For example, if posttraumatic headaches have been diagnosed and these are the main source of clinical distress and impairment, then this may be deferred to a neurologist.
Forensic psychiatrists are well-placed to conduct forensic evaluations in personal injury cases. In my jurisdiction, when two forensic psychiatrists, retained by opposing counsel, evaluate the same case, opinions typically fall into the same ballpark. When major divergences in opinions occur, it is often when a non-forensic evaluator and a forensic psychiatric evaluator provide opinions. Although there are many factors in play, I submit that one recurring finding is that divergence in opinions is often because the non-forensic opinion has strayed too far from the data. From my perspective, promoting and demonstrating the utility of a forensic psychiatric methodology could do much to reduce the “battle of the experts” phenomenon that often transpires in the civil legal arena.
Forensic psychiatrists have a well-defined skill set employing a forensic assessment methodology that can assist in making a unique contribution to psychiatric evaluations in the civil legal arena. This paper has been an attempt to highlight the strengths of forensic psychiatric methodology in the approach to mild traumatic brain injury cases.
- Heilbrun K, Grisso T, Goldstein AM. Foundations of forensic mental health assessment. New York: Oxford University Press; 2009.
- Heilbrun K. Principles of forensic mental health assessment. New York: Kluwer Academic /Plenum Publishers; 2001.
- Iverson G, Lange R. Traumatic brain injury in the workplace. In: Bush SS, Iverson GL, editors. Neuropsychological assessment of work-related injuries. New York: Guilford Press; 2012.
- Lovejoy DW, Oakes HJ. The behavioural health provider as a participant in the disability determination process: Evaluations, terminology and systems. In: Bush SS, Iverson GL, editors. Neuropsychological assessment of work-related injuries. New York: Guilford Press; 2012.
Ethical and Therapeutic Questions About the Use of Seclusion and Restraint in Patients With Severe Borderline Personality Disorder in Forensic and Correctional Settings
Gabrielle Provost, MD, FRCPC
Forensic Psychiatrist, Institut Philippe Pinel de Montréal
This article is a complement to the CAPL 2018 complex case presentation describing issues with the use of restrictive measures with a patient presenting a severe borderline personality disorder. It highlights multiple challenges associated with the use of seclusion and restraint measures and the specificities of working in a forensic environment while facing such challenges. The specific demographic of patients with a borderline personality disorder within the forensic milieu is specifically discussed. Finally, remaining unanswered questions within the existing literature are highlighted and lead to reflection on current practices.
Challenges in Seclusion and Restraints Use
The ethical and professional challenges associated with the use of seclusion and restraint measures in psychiatric and correctional settings are widely acknowledged. This issue has been the subject of much reflection and many publications. These include efforts aimed at decreasing the use of seclusion and the discussions about the efficacy of such measures, within general psychiatry units and in forensic settings.1,2 It appears to be an important time for forensic psychiatrists to reflect on their clinical practice around the use of seclusion and restraints given the the increasing scrutiny on the use of segregation and solitary confinement. Although clinical seclusion is arguably different than these non-clinical practices, this may not be a view shared in all quarters of society.
Practical experience using clinical seclusion in a forensic environment with particularly challenging patients highlights how such issues can take up a major place in daily clinical decisions. These challenges are even more complex when they involve the management of patients with not only aggressive behaviour towards others, but also (and sometimes mainly) towards self. Caring for patients with borderline personality disorder, especially those with severe presentations, represents a good example of this specific type of challenge. Indeed, discussing such patients can, and should, lead to further reflection on the challenges in balancing the risks to self and others posed by the patient, between safety for all and the need to develop a therapeutic, positive alliance and rehabilitation-oriented approach.
The Specificities of the Forensic Milieu
The forensic environment presents particularities which render the management of such patients more complex. There is a paradoxical dual role of care and custody, incorporating dynamics of power, protection and containment, that can often present as significantly coercive. This specific dynamic can, by itself, be described as a factor leading to the development of self-harm behaviour in patients within forensic settings.3,4,5 Self-harm also presents, in and of itself, as a dynamic risk factor for aggression.6 Forensic settings are also risky environments, leading to specific safety concerns associated with the distinctive characteristics of their populations. Forensic environments tend to care for a clientele presenting with self-harm behaviour as these patients are specifically referred to secure settings because of previous aggressive behaviours, unmanageable self-harm or need for a high secure environment of care. The need to prevent and manage violence and the parallel need to achieve therapeutic and rehabilitative goals are both paramount. Additional challenges can include flights and security breaches, which are heightened in forensic/correctional settings and must be considered in decision-making. The legalistic framework can sometimes lead to an oppositional position from the patient, to more secret self-harming or plain refusal to be helped. Finally, the risk of assaults on staff by patients when they try to prevent or manage self-harm can have a significant negative impact on staff morale and capacity to care.4,7,8
Patients With Borderline Personality Disorders: Tackling an Additional Challenge
The ethical and therapeutic questions associated with use of seclusion and restraints measures are of paramount importance when addressing the care of patients with borderline characteristics in forensic settings. A key question is the impact these measures may have on the clinical trajectory of patients with severe borderline personality presentation, which are overrepresented within the female population in forensic settings,9 and whether iatrogenic effects can arise from the use of such measures. Indeed, these issues have been increasingly highlighted around the use of seclusion in the context of self-harm or suicidal intention. In 2016, the National Commission on Correctional Health Care deemed prolonged seclusion as inhumane and harmful to health. In the literature on segregation in correctional settings, some authors can make quite definitive statements (for example, segregation measures being described as torture) although recent research questions whether these definitive statements are realistic or generalizable. (For example, Chadick et al describing segregation as a “barrier to opportunities for continued growth” rather than causing significant psychological damage.)10
What Do We Know?
A review of the literature reveals a lack of consistent findings. A Cochrane review from 2000, updated in 2012, notes a lack of well designed and controlled studies showing the effectiveness of using seclusion measures in patients with serious mental illness.11 This review highlights the important difficulty in carrying out controlled trials in people with challenging behaviour, and, hence, no recommendation was provided regarding the effectiveness, benefit or harmfulness of seclusion or restraint. Nevertheless, the perspective is mostly pessimistic about seclusion measures in qualitative studies addressing more specifically staff and patient perceptions throughout their trajectories and about the use of restrictive measures. As described by Tulley et al, “Patient perspectives include anger with a sense of injustice, and feelings of being rendered powerless and of being degraded.”12 Anxiety and trauma are described as possible long-term effects of seclusion measures. The use of such seclusion and restraint have been described as not only detrimental to the therapeutic relationship, but also as potentially resulting in physical injury to patients and staff.13,14,15,16,17
Being Cautious in the Face of Uncertainty
In conclusion, the literature is quite sparse in regard to the specific use of seclusion measures with patients presenting with borderline personality disorders within forensic settings. Nevertheless, the ethical and therapeutic questions must be responded to in our day-to-day clinical decisions. The current knowledge about the personality structure, reactions and trajectories of borderline personality disordered patients compel the conclusion that using seclusion and restraints in forensic and correctional settings must be done with caution and a firm clinical rationale. Avoiding harm and iatrogenic effects is critical. This patient population can be described as “severely traumatized and challenging patient group,”18 and the issues are complex and involve avoiding reenactment of traumatic experiences, maintaining a fragile treatment alliance and recognizing the adverse effects given the ease with which these patients can feel vulnerable and powerless. Although there is no prescriptive approach, guidelines that address the particularities of treating these patients in forensic and correctional settings would help clinicians manage these challenging, resource-intensive, patients.
- Goulet MH, Larue C, Dumais A. Evaluation of seclusion and restraint reduction programs in mental health: a systematic review. Aggress Violent Behav. 2017;34:139-146.
- Long CG, West R, Afford M, et al. Reducing the use of seclusion in a secure service for women. Journal of Psychiatric Intensive Care. 2015;11(2):84-94.
- Jade Lovell L, Hardy G. (2014). Having a diagnosis of borderline personality disorder in a forensic setting: a qualitative exploration. Journal of Forensic Practice. 2014;16(3):228-240.
- Baker A, Wright K, Hansen E. A qualitative study exploring female patients’ experiences of self‐harm in a medium secure unit. J Psychiatr Ment Health Nurs. 2013;20(9):821-829.
- Shaw S. Shifting conversations on girls and women’s self injury: an analysis of the clinical literature in historical context. Feminism and Psychology. 2002;12:191–291.
- Selenius H, Leppänen Östman S, Strand S. Self-harm as a risk factor for inpatient aggression among women admitted to forensic psychiatric care. Nord J Psychiatry. 2016;70(7):554-560.
- Sarkar J. Short-term management of repeated self-harm in secure institutions. Adv Psychiatr Treat. 2011;17(6):435-446.
- Uppal G, McMurran M. Recorded incidents in a high‐secure hospital: a descriptive analysis. Crim Behav Ment Health. 2009;19(4):265-276.
- Conn C, Warden R, Stuewig J, et al. Borderline personality disorder among jail inmates: how common and how distinct? Correct Compend. 2010;35(4):6.
- Chadick CD, Batastini AB, Levulis SJ, et al. The psychological impact of solitary: A longitudinal comparison of general population and long‐term administratively segregated male inmates. Leg Crim Psychol. 22 Feb 2018. doi:10.1111/lcrp.12125.
- Sailas EE, Fenton M. Seclusion and restraint for people with serious mental illnesses. Cochrane Database Syst Rev. 2000;(2):CD001163.
- Tully J, McSweeney L, Harfield KL, et al. Innovation and pragmatism required to reduce seclusion practices. CNS Spectr. 2016;21(6):424-429.
- Bonner G, Lowe T, Rawcliffe D, et al. Trauma for all: a pilot study of the subjective experience of physical restraint for mental health inpatients and staff in the UK. J Psychiatr Ment Health Nurs. 2002; 9(4): 465–473.
- Frueh BC, Knapp RG, Cusack KJ, et al. Patients’ reports of traumatic or harmful experiences within the psychiatric setting. Psychiatr Serv. 2005;56:1123-1133.
- Nelstrop L, Chandler-Oatts J, Bingley W, et al. A systematic review of the safety and effectiveness of restraint and seclusion as interventions for the short-term management of violence in adult psychiatric inpatient settings and emergency departments. Worldviews Evid Based Nurs. 2006;3(1):8–18.
- Hallett N, Huber JW, Dickens GL. Violence prevention in inpatient psychiatric settings: Systematic review of studies about the perceptions of care staff and patients. Aggress Violent Behav. 2014;19(5):502–514.
- Larue C, Dumais A, Boyer R, et al. The experience of seclusion and restraint in psychiatric settings: perspectives of patients. Issues Ment Health Nurs. 2013;34(5):317-324.
- Parkes JH, Freshwater DS. The journey from despair to hope: an exploration of the phenomenon of psychological distress in women residing in British secure mental health services. J Psychiatr Ment Health Nurs. 2012;19(7):618-628.
Criminal Forensic Psychiatry
The Defence of Duress
David William Morgan, LLM, FRCPC
Forensic Psychiatrist, Northern British Columbia
The criminal law of England and Wales, from which Canadian law derives in large part, is based on the fundamental principle that only voluntary conduct – the product of a free will and controlled body, unhindered by external constraints – should attract criminal liability. Or, as the Latin phrase actus reus non facit reum nisi mens sit rea reminds us, that without a guilty mind, there is no crime.
The defence of duress is a complete common law defence whose history dates back many centuries; common law, also known as judicial precedent, is that body of law derived from courts, and is more malleable than statutory law. In common law, the ratio decidendi is a legal rule which refers to the way in which the court uses the legal, moral and social principles to arrive at a particular judgement, and are binding on lower courts through the legal doctrine of stare decisis.
Statutory defence: s17, Criminal Code of Canada
In current Canadian law, the defence of compulsion by threats is enunciated in s17 of the Criminal Code of Canada; this provides:
“17. A person who commits an offence under compulsion by threats of immediate death or bodily harm from a person who is present when the offence is committed is excused for committing the offence if the person believes that the threats will be carried out and if the person is not a party to a conspiracy or association whereby the person is subject to compulsion, but this section does not apply where the offence that is committed is high treason or treason, murder, piracy, attempted murder, sexual assault, sexual assault with a weapon, threats to a third party or causing bodily harm, aggravated sexual assault, forcible abduction, hostage taking, robbery, assault with a weapon or causing bodily harm, aggravated assault, unlawfully causing bodily harm, arson or an offence under sections 280 to 283 (abduction and detention of young persons)”.
The clinical utility of the statutory s17 defence is thus very limited indeed; it applies only to situations where there exists an imminent threat of death or bodily harm, and where the threatener is bodily present at the material time the threat is made. Further, it can be seen that the defence does not apply to a number of specific offences, particularly those involving more severe violent or sexually violent offences.
However, the common law defence of duress still exists, by virtue of s8(3), which provides:
“Common law principles continued
(3) Every rule and principle of the common law that renders any circumstance a justification or excuse for an act or a defence to a charge continues in force and applies in respect of proceedings for an offence under this Act or any other Act of Parliament except in so far as they are altered by or are inconsistent with this Act or any other Act of Parliament”.
The common law defence of duress
The defence applies in situations where an accused person has no reasonable means of escape, and the crime is committed in response to a threat; the accused is a victim of a scenario created by another person, and reacts to preserve themselves or others. The legal authority (precedent) on the common law defence of duress is R. v. Ruzic;1 as R. v Ruzic is a decision of the Supreme Court of Canada, per stare decisis it is binding on all lower courts. The judgement in R. v. Ruzic means, that when considering the common law defence of duress, one must consider (i) the particular circumstances of the accused, (ii) the ability of the accused to perceive a reasonable alternative to committing the crime, and (iii) the background and essential characteristics of the accused.
The common law defence of duress is thus far broader than that set out in s17 of the Criminal Code, and is commensurately more useful in clinical practice.
I was recently retained by a defence lawyer regarding the defence of duress for a young female who had been involved in an RCMP standoff; this was the first time I had been involved in a case involving the defence of duress. The standoff had developed as a result of her father, who was probably suffering from a psychotic illness, believing that the world was about to end and taking steps to prepare for this. These preparations involved his hoarding firearms, ammunition, food, batteries and other items needed to survive in a post-apocalyptic world. The young female had lived with her father subsequent to the breakdown of her parents’ marriage some years earlier, and since that time had enjoyed very little contact with the outside world. As a result, she gradually came to take on some of her father’s beliefs – those that the world was ending, and that they needed to be prepared. Her father had physically and emotionally abused his daughter over many years; as a result the daughter had become very compliant, shy and withdrawn.
In the context of the father’s untreated psychotic illness, he and his daughter began, over the course of several years, to progressively live in more rural and remote areas. They eventually moved to a very isolated village in the foothills of the BC Rockies, and began to live off the grid. In addition to the firearms and stored supplies, they also had a number of German Shepherd dogs, which were trained to attack. The daughter had no contact with the outside world for a number of years during her late adolescence, a critically important developmental period.
After a situation arose at a cross-country ski facility between the father and members of the public, the RCMP were called and the father was charged and released on bail. The situation was resolved without incident. However, the father and daughter then moved further into the bush and began to live in a hunting cabin; the owner attended and found it occupied; after speaking with the father, the owner called the RCMP.
There then followed significant RCMP surveillance, the establishment of a secure perimeter and the deployment of an ERT team; ERT teams are highly trained RCMP officers who specialize in high risk situations. After a standoff, the incident commander decided to end the situation, and the ERT team was deployed. This resulted in the father being killed, and the daughter being shot three times. She survived after a lengthy stay in hospital.
The statutory defence of compulsion by threats was not available; there was no direct threat to the daughter from the father, and one of the offences she was charged with was assault with a weapon.
In ascertaining whether the criteria for the common law defence of duress was fulfilled, several factors were relevant: that her father exerted almost complete control over her, her having no contact with the external world and her father being far more powerful than her, in the context of a critically sensitive developmental period, led to the development of a Folie à Deux and her believing that the world was ending. There seemed to me to be a good case for the common law defence of duress, when the particular circumstances of the daughter, her ability to perceive a reasonable alternative to committing the crime, and her background characteristics.
Eventually, defence counsel elected not to run the common law defence of duress, as there were separate charges related to the earlier standoff and her jeopardy would be higher; offences involving circumstances where a shoot-out with RCMP members occur typically attract significant custodial sentences. However, a joint submission by Crown counsel and defence resulted in a conditional discharge. I am reliably informed by the defence counsel that she continues to live with her mother and do well, and is free of psychotic symptoms.
- R. v. Ruzic  1 SCR 687 SCC24.
Ask the Experts
Rock and a Hard Place: Practice, Ethics and Dilemmas in Forensic Psychiatry
Susan is a 41-year-old single woman whom you have seen for the last 21 years, initially as an inpatient and then as an outpatient. She was charged with infanticide regarding the death of her 11-month-old daughter. She was diagnosed with psychotic depression and was found NCR-MD. You have followed her since she was admitted to your unit on a detention order, then when she was discharged with conditions, and finally you have seen her as an outpatient after she was discharged absolutely by the provincial review board. She has been stable as an outpatient. Recently she has been babysitting her daughter’s four-year-old daughter. You have received a letter from the Children’s Aid Society (CAS) legal department requesting an assessment of her risk to the child since they are concerned about her background. How should you respond?
Per Dr. Graham Glancy
In 1984, psychiatrist and professor of law, Alan Stone, challenged the field of forensic psychiatry, commenting that the field itself lacks sufficient intellectual and ethical boundaries. There has been much debate about this since that time, but one issue that most commentators have agreed upon is the problems inherent in psychiatrists “wearing two hats.”1 One of the issues that Dr. Stone raised was that a psychiatrist might bend the rules of justice to help the patient. Since 1984, forensic psychiatry and psychology have made significant efforts to develop ethics guidelines for the practice of forensic psychiatry, culminating in the most recent iterations, accepted in 2018.2 Inherent in this argument upon the above-noted dilemma is the issue that acting as a treating psychiatrist, one’s primary obligation is to the patient or the doctor-patient relationship. However, when one acts as a forensic psychiatrist, Appelbaum notes that we have an obligation to the justice system, nevertheless respecting the values of truth-telling and respect for persons.3 In the above influential paper by Strasburger and colleagues, it was noted that therapist who attempted to combine these roles faced especially treacherous waters, strongly advising against such efforts.
In the case above, the conflict between roles becomes especially clear. You have seen this patient through a number of difficult events, and to your great credit you have stuck by her and remained her doctor through thick and thin. Over the course of this time, you have empathized with her while she mourned her child, tried to get her life back together and have guided her recovery through a serious illness, with creditable success. It is clear that you have a good therapeutic alliance and your skills of empathy and identification have served both doctor and patient well in guiding her recovery. However, it is these very skills, and the issues encountered, that put you in the worst position to give an objective risk assessment. No doubt your patient will beg you and expect you to help her and be her advocate in this difficult situation. However, my advice to you would be to refuse and explain to her very clearly the reasons why you must refuse in order to be ethical. These reasons include the fact that everything she has told you has been in the setting of doctor-patient confidentiality. If you do this report, you may breach this confidentiality and therefore possibly harm the therapeutic alliance. You should explain to her that you are her advocate and you could not be independent or objective. You should also explain that in order to perform this assessment, you would have to get collateral information, for instance from the daughter and other people in her life, about how she was doing, and she may feel betrayed by this. Equally, you should explain these reasons to the CAS lawyer. It would be helpful if you gave the names of some colleagues, preferably in a different program, who might be able to do an objective risk assessment.
Per Dr. John Bradford
Despite the seminal articles and positions put forward by Dr. Glancy, there are alternative arguments. Some other medical academies, including surgical subspecialties, argue that as the treating physician and surgeon you are in the best position to advise whether the person has recovered from treatment and is stable moving forward. The argument is there is no magic in bringing in a qualified third party who sees the patient and reviews the record of treatment for the first time to give an opinion on the course of treatment and the level of recovery and stability of the patient at this single point in time. It is forensic psychiatry that seems to have this difficulty. I would argue that the foundation of this is a throwback to when psychodynamic psychotherapy was the hallmark of the psychiatrist-patient alliance as opposed to the competent use of psychopharmacology that is the norm today. In forensic psychiatry, the issue is often the evaluation of potential risk of future violence. The objective risk assessment model is violated everyday in Canada, the United Kingdom, Europe and the United States. This occurs specifically in the context of individuals who are found not criminally responsible on the basis of mental disorder or its equivalent in other countries. In fact, the tribunals responsible for the monitoring and decision-making with regard to granting further freedom to these individuals in the community rely heavily on the attending physician and treatment team to guide them in their decision-making. The low recidivism and positive outcome for persons under Criminal Code Review Boards in Canada shows the success of this approach.4
This then raises the question as to why this approach of Review Boards eliciting principal evidence from the treating physician and treatment team is so successful even when violating objective evaluation and possibly ethics guidelines. A systematic evaluation of work of these tribunals in three provinces in Canada showed that a variety of static and dynamic factors were considered by these Review Boards.4,5 The defined legal basis for the decision-making of these Criminal Code Review Boards is the “need to protect the public, the mental condition of the accused, and other needs of the accused,” especially with regard to decisions to reintegrate the accused into the community. In most cases, a structured risk assessment was not presented to these Review Boards.
The Review Boards were found to take into account empirically validated factors related to risk such as items from the HCR-20. Particular attention was paid to the patient’s behaviour between annual hearings, including acts of violence and compliance with medication and compliance with conditions or restrictions. Interestingly, historical factors such as the severity of the index offence had more influence on decisions to detain somebody in hospital, whereas clinical factors had more influence in community integration as well as the move towards an absolute discharge.
Large epidemiological-based studies tend to show that the factors being considered by Review Boards are intrinsically validated when considering psychotic patients committing a homicide within six months of discharge from hospital.6 Clinical factors on admission associated with a risk of homicide were a previous hospitalization for a violent incident, substance abuse and poor self-care. Inpatient factors were the presence of a severe mental disorder for at least one year before admission. Other factors associated with homicide were noncompliance with medication and substance abuse. The predictive validity of these factors related to homicide and schizophrenic patients was not strong but were clinical factors.6
A followup epidemiological study showed the importance of treatment with antipsychotic medications in reducing violent recidivism.7 Violent crime dropped by 45% in patients receiving antipsychotics and 24% in patients receiving mood stabilizers. Within the group receiving antipsychotic medications, those receiving higher doses compared with those receiving lower doses had lower rates of violent recidivism and those taking intramuscular antipsychotics had lower rates of violent recidivism compared to those receiving oral medications.7
These studies support the importance of having a therapeutic alliance with the patient and ensuring their compliance with treatment. This supports the argument for a strong clinical input into managing patients with a violent history and a serious mental disorder. Compliance with pharmacological treatment has an enormous effect on reducing violent recidivism.
Epidemiological studies of risk assessment instruments show that they are better geared towards identifying low-risk individuals, as opposed to high-risk individuals.8 This may mean that the success of Review Boards is based on a common sense approach to identifying low-risk individuals on their clinical presentation as monitored by the attending psychiatrist and treatment team.
Another significant exception to the objection to a dual role is when, for instance in rural communities, there is a profound lack of psychiatrists and forensic psychiatrists, claiming no alternative but to use the treating psychiatrist. In our experience come particularly in several cases, the courts tended to favour the opinions of treating psychiatrists, even though our own ethics guidelines caution us against this. Although this is an important legal and ethical concept, in my opinion (JB), this can be dealt with by a declaration of possible bias that you may have as a treating psychiatrist.
For the last 30 years, various iterations of ethics guidelines in North American forensic psychiatry have cautioned us against being in the situation where we are the treating psychiatrist and the evaluating psychiatrist. There are a number of good reasons for this, including the possible breach of trust of fiduciary duty, possible harm to the therapeutic alliance, lack of objectivity, amongst others. There may be exceptions, such as when it is not possible to avoid the conflict, in review boards settings, and in areas where there is a shortage of psychiatrists. Declaring the conflict and the limitations inherent may be one way of dealing with the situation if no other solution arises.
Drs. Glancy and Bradford will answer questions from members related to practical issues in the real world of forensic psychiatry. Please send questions to email@example.com
- Strasburger L, Gutheil TG, Brodsky A. On wearing two hats: role conflicts in serving as both psychotherapist and expert witness. Am J Psychiatry. 1997;154(4):448-456.
- Canadian Academy of Psychiatry and the Law (CAPL). Ethical guidelines for Canadian forensic psychiatrists. Ottawa (ON): CAPL; 2018. Available from: http://www.capl-acpd.org/wp-content/uploads/2018/05/2018-CAPL-Ethical-Guidelines-FIN-EN.pdf
- Appelbaum PS. A theory of ethics for forensic psychiatry. Am J Acad Psychiatry Law. 1997;25(3):233-247.
- Charette Y, Crocker AG, Seto MC, et al. The national trajectory project of individuals found not criminally responsible on account of mental disorder in Canada. Part 4: criminal recidivism. Can J Psychiatry. 2015;60(3):127-134.
- Crocker AG, Nicholls TL, Charette Y, et al. Dynamic and static factors associated with discharge dispositions: the national trajectory project of individuals found not criminally responsible on account of mental disorder (NCRMD) in Canada. Behav Sci Law. 2014;32(5):577-595.
- Fazel S, Buxrud P, Ruchkin V, et al. Homicide in discharged patients with schizophrenia and other psychoses: a national case-control study. Schizophr Res. 2010:123(2-3):263-269.
- Fazel S, Zetterqvist J, Larsson H, et al. Antipsychotics, mood stabilisers, and risk of violent crime. Lancet. 2014;384(9949):1206-1214.
- Fazel S, Sing JP, Doll H, et al. Use of risk assessment instruments to predict violence and antisocial behaviour in 73 samples involving 24 827 people: systematic review and meta-analysis. BMJ. 2012;345:e4692.
MAID and Forensic Psychiatry
Skye Rousseau, MD, FRCPC
With the recent passing of Bill C-14 in 2016, a response to the Carter v. Canada decision of the Supreme Court of Canada (SCC), medical assistance in dying (MAID) has become legal in Canada.1 There are a number of requirements that must be met in order for a person to access MAID, and these include: the person must suffer from a grievous and irremediable medical condition as defined within Bill C-14, and they must voluntarily provide informed consent. It is unlikely that many psychiatrists will be directly involved in the administering of lethal substances to patients for the purposes of causing their death. However, psychiatric assessment will sometimes be requested to assist the physicians and nurse practitioners involved in providing MAID.
A psychiatrist’s involvement in MAID is most likely to arise in two scenarios. The first is when a patient requests MAID for a terminal or progressive disease and there is concern that the patient lacks required decision-making capacity due to co-morbid mental illness. To my knowledge, most provincial colleges do not mandate psychiatric assessment for patients; however if there are concerns about a patient’s capacity, a psychiatrist’s opinion may be requested. The second scenario is when a patient requests MAID solely on the basis of mental illness. Though many such requests are certainly made in Canada, the eligibility criteria as presently legislated in Bill C-14 effectively exclude patients for whom mental illness is the primary reason they are requesting MAID.
Previous work has found that even among psychiatrists there is significant concern about the ability to assess capacity in a patient who has requested MAID, especially in a single assessment.4 Among psychiatrists, forensic psychiatrists might be considered to have the greatest expertise in assessment of decision-making capacity in different situations, and one of the earliest published surveys of psychiatrists’ views on assisted suicide is a survey of forensic psychiatrists specifically.4 Thus it is not unreasonable to anticipate that the opinion of forensic psychiatrists may occasionally be sought in particularly difficult assessments.
A recent national survey examined the attitudes of psychiatrists towards MAID2. The primary outcomes were to examine whether psychiatrists in general supported MAID for solely psychiatric illness, and the reasons that they either supported or did not support such a practice. Most respondents supported legalization of MAID for certain medical conditions (72%) nearly to the same degree that the general public supports MAID; however only a minority (24%) supported legalization of MAID on the basis of mental illness. Identified concerns about the legalization of MAID for mental illness included the concern that it could compromise a psychiatrist’s commitment to endure with patients through their times of greatest suffering, and concerns from professional experience of having patients who likely would have received MAID were it legal, but went on to recover from their illness. In a recent ethical and legal analysis, Simpson identified similar concerns about provision of MAID for reasons of mental illness. In his view, one of the fundamental roles of a psychiatrist is to help a patient find a life worth living, and participating in a decision to end a patient’s life is fundamentally in conflict with this role.3 Additionally, he suggests that hope of recovery from mental illness is never lost, and emphasizes our inability to predict recovery or whether the severity of an illness will remit in time. For these reasons and a host of others, he concludes that “acting as a partner in helping people recover as well as acting as an agent in a patient’s death is an impossible burden that is not ethically justifiable….”3
Perhaps a more important role for psychiatrists with forensic training and experience will involve the interpretation and application of case law with respect to MAID. With numerous challenges to Bill C-14 likely to arise, there may be need for expertise in a realm quite familiar to forensic psychiatrists, that of interpreting case law to guide assessment and opinion. Already there has been at least one instance in which the ambiguous language of the SCC Carter decision led to an interpretation that was unsupported by the legislation which followed; in the legislative vacuum that existed after the Carter decision but before Bill C-14, at least one person was found to be eligible for MAID based solely on mental illness, which would not have happened under Bill C-14. In the case of Canada v. EF (plaintiff)5, the Alberta Court of Appeal granted MAID due to severe pain and disability arising from a conversion disorder. EF received MAID when it was briefly permissible through a court ruling using the Carter criteria; however, she would now not be eligible for MAID.
In Simpson’s recent review of the topic, he points out that one of the key arguments made in the Carter decision does not extend to patients requesting MAID solely for mental illness.3 The SCC found that a prohibition is a violation of Section 7 of the Charter of Rights and Freedoms on the basis that a prohibition on MAID forces some individuals with progressive illness to take their lives early due to fear that they would be incapable of doing so when they were in a state of further decline. Simpson rightly points out that the arguments made in Carter do not hold for mental illness, since the decision is not an end-of-life decision, and the individual will not be robbed of their ability to take their own life due to progressive illness as they would in a progressive illness such as ALS.
Psychiatrists with an interest in the intersection between the law and psychiatry will have a role in public and academic discourse about MAID.2-4 Though regular input from forensic psychiatrists will not be requested for the provision of MAID, a psychiatrist with training in forensics may possess degree of comfort in understanding and providing relevant opinions that would be valuable for the courts and potentially for teams providing MAID. Challenges to the criteria of Bill C-14 are likely already in process and will certainly be forthcoming. There will be a need for expertise in interpretation and application of case law for the purpose of providing a psychiatric opinion, and forensic psychiatrists may be uniquely qualified to have input in such cases.
- Parliament of Canada. An act to amend the criminal code and to make related amendments to other acts (medical assistance in dying) [Internet]. Canada; 2016. [cited 2018 April 12]. Available from: http://www.parl.gc.ca/HousePublications/Publication.aspx?Language¼E&Mode¼1&DocId¼8384014.
- Rousseau S, Turner S, Chochinov HM, et al. A national survey of Canadian psychiatrists’ attitudes toward medical assistance in death. Can J Psychiatry. 2017;62(11):787-794.
- Simpson, A. Medical assistance in dying and mental health: a legal, ethical, and clinical analysis. Can J Psychiatry. 2018;63(2):80-84.
- Ganzini L, Leong G, Fenn D, et al. Evaluation of competence to consent to assisted suicide: views of forensic psychiatrists. Am J Psychiatry. 2000;157(4):595-600.
- Canada v EF, 2016 ABCA 155.
CAPL BC Regional Section Update
Todd Tomita, MD, FRCPC
Chair, BC Regional Section
The CAPL BC Regional Section continues its focus on organizing educational events in conjunction with the UBC Division of Forensic Psychiatry. The primary focus has been on forensic education for CAPL members and psychiatry trainees. In addition, we aim to foster collegial relationships with other relevant professional groups in legal and correctional areas.
The current CAPL BC Regional Section Executive Committee includes:
- Chair: Dr. Todd Tomita
- Vice Chair: Dr. Rakesh Lamba
- Secretary: Dr. David Morgan
- Member-at-Large: Dr. Jeanette Smith
The CAPL BC & UBC Forensic Division Program Planning Committee includes:
- Dr. Kulwant Riar, Clinical Professor, UBC
- Dr. Jeanette Smith, Clinical Associate Professor, UBC
- Mr. Lyle Hillaby, Senior Crown Counsel
- Dr. Hugues Herve, Forensic Psychologist
- Dr. David Morgan, Clinical Assistant Professor, UBC
- Dr. Andrew Kolchak, Clinical Assistant Professor, UBC
- Dr. Emlene Murphy, Clinical Professor, UBC
- Dr. Anton Schweighofer, Forensic Psychologist
- Mr. Bernd Walter, Chair of BC Review Board
- Dr. Johann Brink, Clinical Professor, UBC
- Dr. Todd Tomita, Clinical Associate Professor, UBC
We continue to hold spring and fall forensic education days at UBC Robson Square in Vancouver. Participation has generally been between 30 to 40 people with a mix of forensic psychiatrists, forensic psychologists, psychiatry and psychology trainees, Crown and defence counsel, and members of the BC Review Board.
CAPL BC and UBC Forensic Education Day 6th Edition – May 12, 2017
Odd, Eccentric, and Erratic Participants in Civil & Criminal Courts:
Dr. Johann Brink
Eccentric Litigants: Challenges they pose for the Court
Honourable Madam Justice Duncan, BC Supreme Court
Eccentric Litigants: Practical and Professional Challenges they pose for Crown Counsel
Christina Godlewska, Crown Counsel
Eccentric Litigants: Practical and Professional Challenges they pose for Defence and Plaintiff Counsel
Janet Winteringham, QC
Stalking of Professionals in the Criminal Justice System
Dr. Randy Kropp
Psychological Aspects of Radicalization
Mr. David Marxsen
CAPL BC and UBC Forensic Education Day 7th Edition – Nov. 7, 2017
Work Stress and Trauma: Managing Self-Care over a Forensic Career
Dr. Jeff Morley
Forensic Questions about Cannabis Use: A Practical Update
Dr. Nick Mathew, UBC
Mr. Big Undercover Operations:
Mr. Big Undercover Operations: Culpability, Confessions & Coercion
Mark Jette, Defence Counsel, & Elliott Poll, Crown Counsel
A Psychotic Murder Confession to Mr. Big and a Trio of Experts:
Perspectives of the Defence, Crown, and Court-Appointed Experts
Dr. Jeanette Smith, Dr. George Wiehahn, Dr. Todd Tomita
The CAPL BC and UBC Forensic Education Day 8th Edition was held on Jun. 1, 2018. The theme of the day was on intoxication and insanity with speakers addressing issues related to substance-induced psychosis.
Update From the Quebec Regional Section
Joel Watts, MD, FRCPC, DABPN (Forensic Psychiatry)
The Quebec regional section of CAPL continues to meet every six months over dinner to share our experiences, concerns and develop consensus on how to advocate for improved forensic service provision in the province. Even more so, it is a great opportunity to enjoy a nice meal and maintain the great friendships and collegiality that exists amongst our members. We recently tried a new location, still in the central Shawinigan region of the province, which allows for as many members to be present as possible. CAPL-QC membership has remained fairly stable over the past few years at 35 members and our executive continues to remain unchanged, with good representation from the major regions of the province.
Since July 2015 our leadership has been as follows:
- President – Joel Watts (CAPL Board rep)
- Past-president – Sébastien Proulx (Québec City)
- Vice-president – Fabien Gagnon (Quebéc City)
- Secretary – Louis Morissette (Montréal)
- Member-at-large – Marie-Frédérique Allard (Shawinigan)
CAPL-Quebec members also continue to make up the majority membership of the Association des médecins psychiatres du Québec (AMPQ, our provincial psychiatric association) medico-legal committee. We continue to advocate for better remuneration of forensic psychiatrists (particularly those who work with Review Board clients in chronic inpatient settings) in order to improve the ability to recruit the next generation of colleagues.
We are also helping our general psychiatry colleagues more recently with some significant changes to the implementation of civil commitment legislation on the heels of some recent decisions by the Québec Court of Appeal. This has had the effect of limiting parens patriae powers of the state by making it even more procedurally difficult to place individuals exhibiting a risk of harm to themselves or others on an involuntary certificate. The degree of imminence of risk meeting the threshold for involuntary hospitalization may also have been altered according to some legal authorities, making it even harder to hospitalize unstable mentally ill individuals. This is all very new and it is hard to predict whether there will be an increase in applications for civil treatment orders or an increase in the criminalization of the mentally ill in the province as a result of these court decisions.
We look forward to having the CAPL Annual Conference back in Québec, this time in Montréal from Apr. 28 – May 1, 2019. We look forward to sharing this vibrant and cosmopolitan city with everyone. You will not be disappointed by the numbers and quality of fantastic restaurants and cultural activities in both official languages!
Dr. Derek Eaves and the Origins of the Canadian Academy of Psychiatry and the Law
John M. W. Bradford, MBChB, DPM, FFPsych, MRCPsych, DABPN, DABFP, FRCPC, CM
Emeritus Professor, University of Ottawa; Full Professor (Clinical), McMaster University; Scientist, Royal Institute of Mental Health Research; Psychiatrist, St. Joseph’s Healthcare Hamilton
Graham D. Glancy, MBChB, FRCPsych, FRCPC
Associate Professor and Co-Head Forensic Psychiatry, University of Toronto
Acknowledgements: Dr. Dominique Bourget and Dr. Gary Chaimowitz
Dr. Eaves passed away Jun. 16, 2017 at his home in Vancouver, British Columbia, surrounded by his family. Dr. Eaves was born Jan. 5, 1942 in Nelson, Lancashire, England. Dr. Eaves graduated from Liverpool University in Medicine in 1966 and went on to specialize in psychiatry. He immigrated to Canada in 1973, and in 1979, joined the Forensic Services Commission of British Columbia. Dr. Eaves subsequently became the Executive Director of the Commission and was in that position for 20 years. Dr. Eaves was a clinical professor of psychiatry at the University of British Columbia, but early on formed a strong alliance with Simon Fraser University. Over his career he worked with many of the researchers in forensic psychology from Simon Fraser. In recognition of the excellent work that he completed with Simon Fraser University, he was granted the Chancellor’s Award. He ended his professional career as the Vice-President of Medicine and Research at Riverview Hospital.
Dr. Eaves was part of the early foundations towards the recognition of forensic psychiatry in Canada. In 1989, Dr. John Bradford petitioned the Executive Council of the American Academy of Psychiatry and the Law (AAPL) for the creation of the Canadian Academy of Psychiatry and the Law, a chapter of APPL1. Dr. Bradford then worked with Dr. Derek Eaves, who was then the Executive Director of the Forensic Services Commission, and Dr. Lionel Beliveau, who was the President of the Institut Philippe-Pinel in Montréal, to gain acceptance as to this approach towards the recognition of forensic psychiatry in Canada as a subspecialty.
Dr. Bradford co-chaired the Canadian chapter with Dr. Eaves for the first year of its existence1. Subsequently, Dr. Bradford continued to chair the chapter with Dr. Graham Glancy, who was also a vice chair of the chapter. Dr. Glancy took over as chair of the Canadian chapter thereafter. Dr. Eaves remained involved with the Canadian chapter, but with the passage of time decided to put his efforts into the International Academy of Forensic Mental Health Services.
From 1989 until 1997 Canadian forensic psychiatric fellowships were accredited by the Accreditation Council on Fellowships in Forensic Psychiatry (ACFFP), which was part of AAPL. In 1997, the Accreditation Council for Graduate Medical Education (ACGME) assumed responsibility for accrediting all graduate medical education programs in the U.S., which meant that Canadian programs could no longer be accredited by this method1. In 1997, the Canadian Psychiatric Association (CPA) supported the formation of subspecialties in Canada. The administrative structure of the CPA included three academies: the Canadian Academy of Psychiatry and the Law, the Canadian Academy of Child and Adolescent Psychiatry, and the Canadian Academy of Geriatric Psychiatry. With the assistance of the CPA, the three academies worked collaboratively to promote and obtain formal recognition of subspecialties in psychiatry from the Royal College of Physicians and Surgeons of Canada.
This brief history is to celebrate Dr. Derek Eaves and recognize his contribution to the development of CAPL and to the evolution of forensic psychiatry in Canada as a subspecialty.
- Bourget D, Chaimowitz G. Forensic psychiatry in Canada: a journey on the road to specialty. J Am Acad Psychiatry Law. 2010;38(2):158-162.
It’s Membership Renewal Time
Annual dues notices were issued to CAPL members on Jun. 7: please check your mail for yours if you’ve not already done so. CAPL now accepts payments by Visa or Mastercard in addition to personal cheque. To renew by phone, call Julie Lambert at 1 800 267-1555 ext. 231 with your card number and expiry date.
Please note that the legislation under which CAPL is incorporated restricts voting at the Annual General Meeting (AGM) to members in the Full, Life and Member-in-Training categories who renew within three months of their invoice date (i.e., by Sept. 7, 2018). Avoid disappointment at the AGM and renew today!