Where Do We Go From Here? Trajectories of Individuals Deemed Not Criminally Responsible

Jeremy Cheng; Department of Psychology, University of Saskatchewan, Saskatoon, Canada

Mark E. Olver; Department of Psychology, University of Saskatchewan, Saskatoon, Canada

Andrew M. Haag; Forensic Psychiatry, Alberta Hospital Edmonton, Edmonton, Canada; Department of Psychiatry, University of Alberta, Edmonton, Canada; Department of Psychology, University of Alberta, Edmonton, Canada

J. Stephen Wormith; Department of Psychology, University of Saskatchewan, Saskatoon, Canada

Canadians adjudicated Not Criminally Responsible on Account of Mental Disorder (NCR) are detained in forensic psychiatric hospitals under a jurisdictional review board (RB) governed by the Canadian Criminal Code. The custody and management of NCR populations are administered independently across jurisdictions despite being federally legislated, and research is limited on how RBs may vary in their efforts to balance public safety and social reintegration across cases, settings, and provinces. To this end, the trajectories and out- comes were investigated in one understudied Canadian RB system on a sample of NCR individuals (n1⁄4109) and compared to other provincial practices. A retrospective longitudinal design was employed to track an NCR cohort between 2005 and 2010 until 2015. Results demonstrated that the provincial RB aligned their operational and management practices with federal legislation, but unique deviations contributed to novel NCR trajectories and outcomes under RB supervision that were conservative relative to provincial partners. Dispositions varied as a function of risk level and were informed by clinician recommendations. Detention length differences were observed between ancestral lines, as the White ancestral group spent an average of three years less in custody than the Nonwhite ancestral group despite limited differences in demographic, clinical, and criminogenic profiles. Further research is required on NCR trajectories and outcomes across other understudied provinces and the role of forensic risk instruments in assisting with the consistent application of federal law.

Forensic mental health; not criminally responsible on account of mental disorder; mental disorder; Canadian review board; recidivism

“In Canada, Not Criminally Responsible on Account of Mental Disorder (NCR) is a legal verdict given to defendants who satisfy section 16 of the Canadian Criminal Code (CCC; Criminal Code, 1985)…NCR individuals are commonly detained in forensic psychiatric hospitals under the supervision of jurisdictional review boards (RBs). RBs are tasked with the responsibility to enact one of three dispositions reviewed annually during the supervision period of NCR individuals: (1) detention in hospital, (2) conditional discharge, and (3) absolute discharge…An investigation of interprovincial disparities in the application of federal law first requires an examination of the trajectories and outcomes of NCR individuals across Canadian RB systems. If RBs operate in synchrony with their provincial partners, then it follows that there should be limited statistical deviation in how NCR individuals are processed while under RB supervision…Overall, research is in its preliminary stages on the trajectories and outcomes of Canadian NCR individuals and the governing RB practices…” (p. 399-400).

“…Therefore, this research tracked the trajectories and outcomes of NCR individuals through one understudied provincial RB system to build upon the tradition of NTP [National Trajectory Project] studies…The primary research questions were fourfold and supplemented by a series of adjunct analyses: 1) Is detention length associated with risk or legislatively (i.e., public safety, treatment) relevant factors? 2) What is the association between RB dispositions, and their corresponding privileges (i.e., grounds, community pass, community accommodations) and conditions (i.e., treatment orders, no victim contact) in terms of restrictiveness? 3) How long do NCR individuals spend detained in custody versus living in the community while under warrant, and what is the likelihood of release (i.e., conditional discharge or absolute discharge)? 4) What is the association between clinician recommendations and dispositions assigned?” (p. 401).

“A cohort of 109 participants was sampled based on all consecutive NCR admissions (n = 114) that entered the provincial RB system during the study’s five-year catchment timeframe (i.e., 2005-2010)…Overall, it was found that the ARB [Alberta RB] aligned their practices with federal legislation but also deviated in unique and conservative ways compared to other jurisdictions. Detention length was associated with risk and legislatively relevant (i.e., criminal history), and unrelated (i.e., index offense severity), information…Although release rates from detention were not linear, NCR individuals in Alberta were gradually transitioned into the community over time with approximately half of the sample still under supervision after 10 years. Furthermore, NCR individuals spent the majority of their warrant detained in [a] hospital instead of in the community…Notably, the proportion of individuals supervised by the ARB after five-years in the current study was the highest among provinces examined. Together, results suggest that Alberta possessed distinct management practices that shaped the trajectories and outcomes of NCR individuals, and showcased conservative practices that resembled those in ON after the first year of oversight. After five years, however, Alberta demonstrated a focus on community rehabilitation similar to BC [British Columbia] but uniquely extended time under supervision to the longest duration observed among provinces” (p. 401-407).

“Further to ARB practice, there was a difference in detention length between individuals of White and Nonwhite ancestry as White persons spent an average of three years detained despite no substantive between-groups differences in demographic, clinical, and criminogenic profiles…Ancestry may also function as a proxy for systemic barriers to recovery that extend detention length such as low socioeconomic status and fewer social services owing to racial disparities in access to resources. These factors were not explicitly explored in the current study but may offer some rationale for the findings. Still, the overall findings provide evidence of systemic discrimination against marginalized populations in Canadian forensic mental healthcare – a trend observed in other arms of the Canadian forensic system…” (p. 408).

“From an operational standpoint, evidence supported the ARB in their interpretation and application of federal law in keeping with research on Canadian RBs…The ARB may be attuned to their responsibility to oversee mental health treatment, as individuals with psychotic disorders were less likely to be released and more likely to have longer detention lengths than those with mood disorders…Consistent with other studies…there was strong agreement between clinician and ARB recommendations which illustrated the reliance of the ARB on the expertise of forensic specialists…” (p. 408).

“...The reasons were unclear behind these results; however, latent decision-making biases may have entered determinations of dangerousness…As such, the importance of using decision-making aids (i.e., forensic risk instruments) that guard against bias is particularly germane to experts providing testimony to RBs and RBs themselves…Structured decision-making aids have been specifically developed for RBs to meet this need…” (p. 408).

“…replication will be required on RB practices across understudied provinces given the growing evidence of interprovincial disparities that obscure the generalizability of the current findings. Second, the current research found a difference in detention length between ancestral groups, but reasons were unclear behind this finding, even after an investigation of demographic, clinical, and criminogenic factors. As such, future studies may consider examinations of latent RB decision-making biases around perceived dangerousness…barriers to successful rehabilitation…and other socio-psychological and systemic factors not identified in this study. For instance, severity of mental illness, family support, and access to healthcare or legal resources are factors that may shed light on detention length differences aside from bias…Third, an investigation into the predictors of RB decision-making would build upon the limitations of this study and provide insight into the underlying processes and factors deemed essential to release and detention decisions…” (p. 409).

 “…Although Indigenous representation in the current study was consistent with the national average, it was underrepresented relative to provincial statistics and traditional correctional justice settings. Limited research is available to explain these discrepancies; however, Latimer and Lawrence (2006) suggested that the issue of mental disorder may be seldom raised for cases that involve Indigenous individuals, and less likely to satisfy the legal test for the NCR defense if proposed. Systemic racism in the forensic system is a well-studied phenomenon, and the current findings on longer detention lengths among minoritized ethno-cultural groups parallel those found internationally in traditional correctional settings…” (p. 408).

Stigma in the Law and the Impact on the Forensic Mental Health Evaluation

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