Forensic Psychiatry

• Author: Hy Bloom and Richard D. Schneider
• Pages: 669-718

669

CHAPTER 19

Forensic Psychiatry1

Hy Bloom and Richard D. Schneider

A. OVERVIEW

Forensic psychiatry is a subspecialty within the f‌ield of psychiatry that ad-

dresses mental health issues that may arise in a criminal or civil law context.

The discipline subsumes correctional psychiatry and often overlaps with oc-

cupational and organizational psychiatry, as forensic assessment skills are

generally an asset in conducting assessments in workplace contexts. The

creation of forensic psychiatry in Canada was brought about by necessity.

Courts, lawyers, and agencies turned to psychiatrists interested in the ap-

plication of psychiatry to legal scenarios for specif‌ic expertise in conducting

a variety of assessments, including those relating to criminal responsibility,

violence risk, sexual of‌fences, and malingering.

In the Canadian context, Court et al. reference the important early role

played by Dr. Joseph Workman in providing forensic psychiatric expertise

to the courts as superintendent of the newly established Provincial Luna-

tic Asylum, which was established in 1850.2 Dr. Workman and his succes-

sor asylum heads were among the f‌irst physicians to venture outside their

1 This chapter is a modif‌ied and updated version of a previous writing on similar sub-

ject matter. See Alan Gold & Hy Bloom, “Giving Evidence as an Expert Witness” in

Hy Bloom & Richard D. Schneider, eds., Law and Mental Disorder: A Comprehensive and

Practical Approach (Toronto: Irwin Law, 2013) 59.

2 John P.M. Court et al., “Contesting Mad versus Bad: The Evolution of Forensic Men-

tal Health Services and Law at Toronto” (2014) 21 Psychiatry, Psychology and Law 918.

670 6 Hy Bloom and Richard D. Schneider

traditional institutional and treatment roles, and provided forensic psychi-

atric expertise in the courtroom decades before forensic psychiatry became

an area of clinical and academic interest at university-based departments

of medicine and psychiatry, and more than 150 years before forensic psych-

iatry was of‌f‌icially recognized as a distinct subspecialty in Canada.3

In reviewing the evolution of forensic psychiatry in Toronto, Court

et al. go on to describe the writings of Professor Daniel Clark who, in his

f‌irst-ever Canadian psychiatric textbook for medical students, included

four chapters on topics within forensic psychiatry;4 the content is remark-

ably similar to subjects covered in current forensic psychiatry textbooks.

By the early twentieth century, the Province of Ontario recognized its

responsibilities for patients found either unf‌it to stand trial or not guilty

by reason of insanity (as it was then called) held under Lieutenant Gov-

ernor’s Warrants and, by 1926, clinicians at the new Toronto Psychiatric

Hospital’s (TPH) Forensic Clinic were assessing criminally accused per-

sons pursuant to court-ordered remands.5

Along with the establishment of a dedicated forensic psychiatric as-

sessment program at the TPH and later, at Metropolitan Forensic Service

(METFORS), program directors recognized the need for assiduous gath-

ering of demographic information and research. Academic and clinical in-

terest in areas of social concern (e.g., poverty and criminality) became the

focus of considerable attention in the second half of the twentieth century.

This spawned research into sexual behaviour and of‌fending, assessment

and treatment of of‌fenders, dangerousness and violence risk assessment,

criminal responsibility, f‌itness to stand trial, and malingering, to name

a few areas. Research in these areas has been maintained to the present

day. METFORS and the University of Toronto established relationships

with forensic programs at the Pinel Institute in Montreal and the Forensic

Psychiatric Services Commission in British Columbia. Ef‌forts were under-

taken in Ontario to create collaborative relationships between profession-

als working in courts, corrections, and academia (e.g., the criminology

program at the University of Toronto).6

3 Forensic psychiatry was of‌f‌icially recognized as a designated subspecialty within

psychiatry by the Royal College of Physicians and Surgeons of Canada in September

2013.

4 Daniel Clark, Mental Diseases: A Synopsis of Twelve Lectures (Toronto: William Briggs,

1895).

5 Ibid.

6 Ibid.

Forensic Psychiatry 6 671

A detailed review of the history of forensic psychiatry in Canada is

well beyond both the scope and purpose of this chapter. Suf‌f‌ice it to say

that the f‌ield has grown considerably, owing in part to legislative chang-

es that have made it easier for accused to extricate themselves from the

jurisdiction of provincial or territorial review boards.7 The f‌ield has also

grown as result of necessity and creativity, creating an ever-expanding

list of uses for mental health expertise in both the criminal and civil law

arenas. The Royal College of Physicians and Surgeons of Canada only re-

cently approved forensic psychiatry as a subspecialty within psychiatry in

September 2013. At present, there are approximately 140 to 150 designated

forensic psychiatrists in Canada.

This chapter deals with the nature, role, and pitfalls of the psychiatrist

in the expert role, both as a consultant to lawyers and in court. This chap-

ter will focus on what psychiatric experts working principally within the

criminal context need to do to ensure the quality of their assessment and

the integrity of their opinions. Among other things, this involves a thor-

ough approach, guided by adherence to medical and psychiatric guidelines

and ethics, a solid grasp of the legal issues and context, and a healthy level

of skepticism about the veracity and potentially self-serving nature of the

evaluee’s information.8 Experts must also be ever-mindful and self-aware

of the potential for bias (as should lawyers) and take deliberate steps to

manage it from the inception of the case to its conclusion.

B. THE SCIENCE OF FORENSIC PSYCHIATRY

1) Forensic Psychiatric Expertise in Criminal Proceedings

The last twenty to thirty years has seen a considerable evolution of jurispru-

dence touching on topics within the forensic psychiatry sphere (e.g., crim-

inal responsibility, dangerousness, and the limits of psychiatric expertise)

7 R. v. Swain, [1991] 1 S.C.R. 933, played a pivotal role in modifying the justice system’s

view of mentally disordered of‌fenders and, more importantly, led to Bill C-30 (An

Act to amend the Criminal Code (mental disorder) and to amend the National Defence Act

and the Young Of‌fenders Act in consequence thereof, S.C. 1991, c. 43) which resulted in

severing changes to the Criminal Code, R.S.C. 1985, c. C-46), namely Part XX.1 of the

Criminal Code, which sets out the rules governing detention of mentally ill accused

found unf‌it or not criminally responsible, the test for their release and derestriction,

and procedural safeguards in their management.

8 Hy Bloom, “Insuring the Integrity of Psychiatric Assessments” (26 April 2013) The

Lawyers Weekly 15–16.