Forensic Psychiatric Services in British Columbia

International Journal of Law and Psychiatry, Vol. 23, No. 5–6, pp. 615–631, 2000 Copyright © 2000 Elsevier Science Ltd Printed in the USA. All rights reserved 0160-2527/00 $–see front matter

PII S0160-2527(00)00058-3

Forensic Psychiatric Services in British Columbia Derek Eaves,* Diane Lamb,† and George Tien‡

Introduction Canada’s legal system is derived from the English and French systems brought to North America in the 17th and 18th centuries by explorers and colonists. The country, however, came almost exclusively under English law as a result of the British victory in Quebec in 1759. Consequently, except for Quebec, where the civil law is based on the French Napoléonic Code, Canada’s criminal and civil law has its basis in English common and statutory law. In English common law, principles of law were developed gradually over time as judges decided individual cases and began to establish rules from those cases. Although Canada has its own constitution and is no longer dependent on English common law, many of our present laws have their roots in the principles that were developed over many centuries. All people in Canada—including those who are mentally ill—have a number of rights and freedoms, which are enshrined in the Charter of Rights and Freedoms (Constitution Act, 1982). These rights are important and set the limits on how much the state can interfere with Canadians and our freedom. Canada is one of the few countries in the world that explicitly extends the general rights found in our constitution to people who are mentally ill. Section 15 (1) of the Charter of Rights and Freedoms, which is known as the “Equality Rights” section provides that Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimina*Executive Commissioner , Clinical Services, Forensic Psychiatric Services Commission of British Columbia, Port Coquitlam, British Columbia, Canada. †Manager, Research and Policy, Forensic Psychiatric Services Commission of British Columbia, Port Coquitlam, British Columbia, Canada. ‡Consultant, Forensic Psychiatric Services Commission of British Columbia, Port Coquitlam, British Columbia, Canada. Address correspondence and reprint requests to Dr. Derek Eaves, Clinical Services, Forensic Psychiatric Services, Commission of British Columbia, 70 Colony Farm Road, Port Coquitlam, British Columbia, Canada V3C 5X9. 615

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tion and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. Common law is based on the decisions of judges, and is sometimes called “judge-made” law because it is a system of rules based on “precedent” (see Rose, in press). Whenever a judge makes a decision for legal enforcement, this decision becomes a precedent and establishes it as a guide for subsequent decisions in similar cases. Lower courts are bound by the precedents set by higher courts within the same jurisdiction. Other courts may rely on such decisions as illustrative or advisory. Statutory law on the other hand, is law created by Parliament or a legislature called “statutes,” “legislation,” or “acts.” When the federal Parliament or a provincial legislature passes a statute, that statute takes the place of common law dealing with the same matter. Canada is a federation made up of the union of 10 provinces and 3 territories, and has a central government with a parliament in Ottawa empowered to make laws for all of Canada, and a legislature in each province and territory to deal with local matters. Under this system, the federal government is responsible for enacting legislation governing criminal law. This is embodied in a set of statutes known as the Criminal Code of Canada. The provinces and territories, on the other hand, are each responsible for the delivery of health, and mental health, services and may enact legislation governing the treatment of mentally ill persons. In this regard, all provinces and territories have mental health legislation governing the care and treatment of mentally ill individuals (Ogloff, Olley, & Jack, 1999). Criminal Code Amendments In Canada, prior to M’Naghten’s Case,1 there was no provision in the common law for any special finding or disposition related to mentally ill accused persons. At the time M’Naghten was decided, what was to become Canada was a collection of British colonies. As a result, the English law prevailed. The result of the M’Naghten case was that accused persons were able to raise the “insanity” defense. To be successful, the defense required that, at the time of the offense, the accused did not have the capacity to understand the nature and quality of the act, or did not know that the act was wrong. An acquittal on this basis, under the not guilty by reason of insanity provision, however, meant that a person was detained until the pleasure of the Lieutenant Governor was known. This was, essentially a political process, and meant that an individual may be detained in a psychiatric facility for an indefinite period. The Criminal Code of Canada relating to cases involving mental disorder was amended in 1992 following a Supreme Court of Canada decision in the case of R. v. Swain.2 In the fall of 1983, Owen Lloyd Swain was charged with assault and aggravated assault after he attacked his wife and his two children. At trial, Mr. Swain testified that when he attacked his family, he believed his family was being attacked by devils and that he had to protect them by carry-

1M’Naghten’s 2R.

Case (1843), 10 Clark & Fin. 200, 8 E.R. 718. v. Swain [1991], 1 S.C.R. 933.

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ing out certain acts. After he was arrested, he was transferred to a psychiatric hospital where he remained for almost 2 months. Mr. Swain was treated with antipsychotic medication and he was released into the community. For the next 6 months he was out on bail, and he continued to see a psychiatrist and take his medication. At his trial, the Crown (prosecution) raised the issue of insanity over the objections of Mr. Swain and his lawyer. The Crown argued that Mr. Swain was legally insane at the time of the attacks against his wife and children. He was found not guilty by reason of insanity (NGRI). At that time in Canada, being found NGRI resulted in the accused being detained in a secure hospital automatically for an indeterminate period of time. Mr. Swain eventually appealed to the Ontario Court of Appeal and later to the Supreme Court of Canada, arguing that it was a violation of the Charter of Rights and Freedoms for the Crown to raise the issue of insanity. In addition, Mr. Swain argued that the automatic and indefinite detention of a person found either unfit to stand trial (unfit) or NGRI violated his Charter Rights. In May 1991, the Supreme Court of Canada upheld Mr. Swain’s appeal, which led to sweeping reforms of the insanity defense. The effect of the Court’s decision in Swain was to strike down the existing sections of the Criminal Code of Canada dealing with mental disorder. This prompted the government of Canada to introduce Bill C-30, An Act to amend the Criminal Code of Canada (mental disorder). The Bill was proclaimed into force in February 1992. The resulting statute has had a major impact on the manner in which cases involving mental illness are dealt with by the judiciary. The Criminal Code now specifies strict time lines for assessments, with the presumption of out of custody assessments, as well as the least onerous restrictions on the liberty of mentally ill offenders or accused persons. Review Boards are now mandated in each province to have jurisdiction over mentally ill persons in conflict with the law, and are required to review cases on an annual basis. Furthermore, unless the Board can affirm that the accused poses a significant risk to the safety of the public, the Board must grant an absolute discharge. The provinces have grappled with the impacts of the new legislation. Where, prior to 1992, the majority of mentally ill persons found NGRI were detained in secure mental hospitals, following the amendments provinces had to deal with the movement of persons found “not criminally responsible on account of mental disorder” (NCRMD) and unfit from secure hospital settings into the community. This has placed a burden on the sparse community services available to this group of often difficult to manage and difficult to house individuals. On a more positive note, this sudden influx of individuals into the community has prompted mental health agencies, social services agencies, and correctional agencies to work more closely together to ensure that mentally ill accused persons and mentally ill offenders receive the services to which they are entitled. Key Features of the Criminal Code Amendments

New Nomenclature One of the key amendments to the Criminal Code mental disorder section is in the nomenclature for a person deemed mentally ill at the time of the of-

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fense. The original nomenclature of “not guilty by reason of insanity” was changed to “not criminally responsible on account of mental disorder.” That is, the court can now find the accused guilty of the act or omission but the accused is, nonetheless, exempt from criminal responsibility because the said accused was suffering from a mental disorder at the time of the offense.

Psychiatric Assessment and Treatment A second key feature relates to psychiatric assessments. The amended Criminal Code defines the circumstances and procedure, as well as imposes strict time lines on the ordering of an assessment of the mental condition of the accused. The court may only order an assessment to assist it in determining: • Whether the accused is fit to stand trial; whether the accused was suffering from a mental illness at the time of the offense so as to be exempt from criminal responsibility; • Whether the mind of a female person accused of infanticide was disturbed at the time of the offense; • The appropriate disposition to be made where a finding of unfit or NCRMD has been made; • Whether an accused should be detained under section 736.11 (as yet unproclaimed section) in hospital as the initial part of sentence where the accused has been convicted of the offense (a hospital order). Moreover, there is a presumption against custody for the purposes of carrying out the assessment, except where custody is deemed necessary. No assessment order may direct that any treatment be carried out on the accused. In fact, the sole provision in the Criminal Code for ordering treatment can be invoked only after a finding of unfit to stand trial is made. The court may order treatment for a maximum of 60 days, and only where it is considered likely that the accused will return to a state of fit to stand trial within that time frame. In the Canadian legal system, the authority to treat mentally ill individuals is a provincial matter, and each province has its own mental health legislation. The provisions of such legislation and how these provision interface with the Criminal Code varies from province to province.

Review Boards The Criminal Code amendments established provincial Review Boards to make or review dispositions concerning persons found unfit to stand trial or NCRMD. Review Boards are quasi-judicial in nature and must consist of not less than five members, one of whom must be a psychiatrist, with a chairperson who is a judge or a person who is qualified to be a judge. The Criminal Code provide clear guidelines to Review Boards concerning both the timing of reviews and the nature of the disposition it is allowed to make. In this regard, while the court may make a disposition with respect to the accused, if it does not, the Review Board must hold a hearing within 45 days. If the court does make a disposition, other than an absolute discharge, the Review Board must

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hold a hearing no later than 90 days. Annual case reviews are now a requirement and dispositions must be the least onerous on the accused. The dispositions that can be made are clearly delineated and require that the court or Review Board take into account the need to protect the public from dangerous persons, the mental condition of the accused, the reintegration of the accused into society and the other needs of the accused. With that in mind, the following are the three possible dispositions that may be made: 1. Detained in custody in a hospital; 2. Discharged subject to conditions: In which case the person continues to appear before the Review Board at least once per year; and 3. Discharged absolutely (for NCRMD cases only), when the court or Review Board is satisfied that the person no longer poses a significant threat to the safety of the public. Working with the New Legislation

Delegation of Authority Like all legislation, not all the implications of the Criminal Code provisions can be anticipated. Consequently since 1991 a number of key clarifications have been made through common law “precedents.” A case in point relates to the issue of the delegation of authority by the Review Board. The Criminal Code allows that, while the Review Board may delegate authority, the delegation is limited to that of being able to increase or decrease the liberty of the accused whether in custody or discharged into the community. However, where the liberty of the accused has been restricted for more than 7 days, the Review Board must be notified and a review hearing held. Dawn Margaret Johnson appealed her disposition order under such a ruling.3 The question asked of the British Columbia Court of Appeal was whether a conditional discharge might contain conditions that have the effect of confining the accused to the psychiatric facility. This issue arose when the Review Board delegated discretion to the Director of the hospital (a provision allowed under certain circumstances in the amended Criminal Code) to decide when the accused could be granted community access and to what extent the accused should remain in hospital. When the case came before the appeal court, the Honorable Mr. Justice Wood noted that, . . . the discretion which may be delegated . . . is an important vehicle through which the Review Board can achieve its mandated purpose. It was not intended to, and must not, be used as a means by which the Director can circumvent a conditional discharge order and keep an accused detained in hospital as though a custody order had been made. . . . Nor must it be used as a means by which the Review Board can delegate to the Director its paramount responsibility for ensuring that a proper balance is maintained between the liberty interests of an accused and the safety interests of the public. (at ¶ 53) 3British

Columbia (Forensic Psychiatric Institute) v. Johnson, [1995], B.C.C.J. No. 2247 (QL).

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Thus, the order was ruled “bad in law” and the ruling effectively clarified for Review Boards and provincial mental health directors, in no uncertain terms, that conditional discharge means living outside of an inpatient facility and in the community. The Review Board must retain jurisdiction over the accused until an absolute discharge is made, or, in the case of those found unfit to stand trial, until the Review Board finds the accused fit to stand trial and returns the accused to court. The code also has a provision for persons found unfit that, every 2 years, the crown must satisfy the court that it has sufficient evidence to bring the person to trial.

Granting of Absolute Discharge In deciding whether a mentally disordered accused should be granted an absolute discharge, Review Boards have been guided by two distinct cases. Interestingly, these cases also fell within the jurisdiction of the British Columbia court of appeal. In Orlowski v. British Columbia (Attorney General),4 chief Justice McEachern described the approach to take when considering whether to grant an absolute discharge, considering that “the legislative objective is to decide what disposition should be made that is the least onerous and least restrictive on the accused. . . .” Justice McEachern went on to say “The language . . . does not require the board to reach a conclusion, “yes” or “no,” as to whether the accused is not a significant threat. . . . If the board does not have that opinion then it need not order an absolute discharge.” The ruling stated further that the Review Board must be able to say affirmatively that the accused is not a significant threat before an absolute discharge may be ordered. Thus, if, for example, the Board felt that the accused may not pose a significant threat at the moment, but might pose such a threat if he were to be noncompliant with medication in the future, or, if the Board is undecided as to whether the accused poses a significant threat, then the Board can continue to make either custody or conditional discharge orders, and is not obliged to order an absolute discharge. This ruling guided the absolute discharge proceedings until 1999 when three separate appeals, by Orlowski,5 Bese,6 and Winko,7 challenged this view as being in violation of the Canadian Charter of Rights and Freedoms. Their submission maintained that placing the onus on the accused to prove that he was not a significant threat to the safety of the public violated the Canadian Charter of Rights and Freedoms and that this placed an unjustifiable burden on the accused. In this matter, the Supreme Court of Canada noted that the section dealing with dispositions “does not create a presumption of dangerousness and does not, in its effect, impose a burden of proving lack of dangerousness on the NCR accused.”8 Therefore, “restrictions on his or her liberty can only 4Orlowski

v. British Columbia (Attorney General) [1992], 75 C.C.C. (3d) 138. v. British Columbia (Forensic Psychiatric Institute), [1999] 2 S.C.R. 625. 6Bese v. British Columbia (Forensic Psychiatric Institute), [1999] 2 S.C.R. 722. 7Winko v. British Columbia (Forensic Psychiatric Institute), [1999], 2 S.C.R. 625. 8Id. 5Orlowski

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be justified if, at the time of the hearing, the evidence before the court or Review Board shows that the NCR accused actually constitutes such a threat.” The court thus reversed the prior approach to dealing with absolute discharge. Unless the court or Review Board can decide with certainty that the accused does in fact pose a significant threat to the safety of the public, then it must order an absolute discharge. Mental Health Legislation The amended Criminal Code, together with decisions such as that concerning absolute discharge, had a significant impact on the manner in which mentally disordered offenders are dealt with by the courts and Review Boards, and signals the increasing reliance on mental health professionals to assist them in making determinations about risk, and about the granting of liberty as well as for assessment and treatment.

Mental Health Act In the Canadian federal system, each province is responsible for the delivery of mental health services and for enacting provincial legislation in order to authorize treatment of the mentally ill persons, including those who have been found unfit or NCRMD. In British Columbia, the Mental Health Act provides for the treatment of such persons by ordering they be detained in a provincial mental health facility. Their care and treatment is authorized by the director and such treatment is deemed to be given with the consent of the patient. Unfortunately, there is no provision for treating persons who are not ordered to be detained in custody, even though they have been found NCRMD or unfit under the Criminal Code of Canada. This right to refuse treatment was upheld in 1990 by the British Columbia Court of Appeal in R. v. Rogers.9 Where the accused had originally been ordered to seek and take whatever psychiatric assessment and treatment was recommended, the order was revised so that the accused was only required to attend the place of treatment but was not required to submit to any treatment.

Forensic Psychiatry Act In addition to the Mental Health Act, British Columbia has additional legislation that deals with mentally disordered offenders who are under the jurisdiction of the court or the Review Board. The government of the day recognized the special circumstance of mentally disordered offenders and in 1974 enacted new legislation (the Forensic Psychiatry Act) and established an independent body, the Forensic Psychiatric Services Commission (FPSC or the Commission) to operate at arm’s length from the Government. The framers of the legislation reasoned that, as an independent body, the Commission is able to speak impartially regarding the mental status and treatment needs of the accused. It can express its professional opinions regarding the balance between the rights 9R.

v. Rogers [1991], 2 C.R. (4th) 192.

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of the accused to have access to appropriate treatment and the need to protect the public. An independent Commission is able to do this without placing the government in a conflict of interest situation regarding the prosecution of a case with due vigor, on the one hand, and the protection of the rights of the accused to receive treatment, on the other. This relative independence of the Commission from the government is a key feature of the 1974 legislation. The Forensic Psychiatry Act gave the Commission a broad mandate to deliver forensic psychiatric services to the courts; to provide forensic psychiatric services for persons remanded for psychiatric examination or held under the Criminal Code of Canada or the Mental Health Act; and to plan, organize, and conduct research and education with respect to forensic psychiatric cases. Over time, the Commission made it possible for forensic psychiatric services to be delivered equitably in all regions of the province, in metropolitan as well as rural areas. In this respect, British Columbia is unique among the provinces.

Delivery of Services in Canada As indicated previously, health services in Canada are the responsibility of the provinces. Each of the 10 provinces approaches the delivery of forensic psychiatric services in different ways. The British Columbia model is regarded as unique and delivering high-quality assessment and treatment, and other provinces have considered adopting the British Columbia model, but none have done so to the present time. In British Columbia, mental health and forensic psychiatric services have operated quite separately, although, recently, attempts have been made to improve the coordination of services between the two branches. Alberta has a Mental Health Board, which oversees four programs: forensic, general psychiatry, geriatrics, and brain injury. In 1998, a Provincial Forensic Program Council was established to develop a fully integrated province-wide program. The main hospital site is in Edmonton, with a subsidiary unit in Calgary supporting the needs of the southern part of the province. The most secure facility, the Helen Hanley Pavilion of Alberta Hospital-Edmonton, provides remand assessment, treatment for persons found not criminally responsible, rehabilitation for those capable of re-entering the community, and connection with the local community-based service, the Forensic Assessment and Community Services (FACS), which serves the whole of northern Alberta. In addition to assessment and treatment, FACS provides consultation and educational services to allied professionals in criminal justice, mental health, and social services. The Phoenix Program of the Alberta Hospital provides assessment and treatment for sex offenders in a medium-security setting. Referrals are made from both federal and provincial corrections systems and the average stay is 11 months, which means that with limited beds, only a small proportion of inmates can be treated annually in a hospital setting. A Step-Out component provides a gradual re-entry into the community over a period of 6 months. Ontario has considered a Commission (British Columbia) model, but has not yet implemented it. Instead it utilizes an informal, unstructured, loosely coordinated system of 10 forensic programs, 8 located in provincial psychiatric hospitals and 2 (Ottawa and Toronto) in university-affiliated hospitals. The only

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maximum-security unit is located in the Penetanguishene Mental Health CentreOak Ridge, north of Toronto, providing care only to males. Patients requiring maximum security are treated in the Oak Ridge unit, then transferred to the medium-security units serving the areas in which the patients live. In contrast to Ontario, Nova Scotia, with a much smaller population, has only one centralized, medium-security unit, although a more secure unit to be co-located with a correctional center is in the planning stages. The inpatient unit has no formal connection to community services, although a committee reporting to the Departments of Health and Justice discusses areas of joint interest. In Canada, there are two systems of corrections. Persons serving sentences of less than 2 years are accommodated in the provincial prison system, and those serving 2 years or more are housed in federal correctional centers, which extend across the whole country and provide maximum-, medium- and minimum-security settings. Generally speaking, the needs of mentally ill offenders are served by the two separate systems, though some overlaps occur. The federal government operates several regional health centers that provide an array of psychiatric and psychological services to prisoners. The Regional Psychiatric Centre in Saskatoon is a purpose-built complex serving the needs of both provincial and federal mentally ill persons, with a remand capacity to assess fitness and mental capacity at the time of an alleged offence. In Quebec, the Philippe Pinel Institute, which is operated by the province, provides services for seriously mentally ill prisoners from both the federal and provincial prison systems. In British Columbia, the federally operated Regional Health Centre at Matsqui provides services only to male federal prisoners. It has, as well as conventional treatment programs for psychotic and other seriously mentally ill prisoners, modular programs directed at the most serious sexual offenders, and also a Violent Offender program for persons without mental illness but including those with personality disorders. The Delivery of Forensic Psychiatric Services in British Columbia The population of British Columbia is approximately 4 million, with half the population in Greater Vancouver and a sparse population in the northern and interior parts of a large province bigger than most European countries. The forensic system consists of a 202-bed inpatient hospital, the Forensic Psychiatric Institute, and six multidisciplinary community clinics located in the major urban centers, which, by serving their local areas, provide a comprehensive service to the whole of the province. These clinics are located in Victoria and Nanaimo (both on Vancouver Island), Vancouver, Surrey, Kamloops (Interior), and Prince George (North), and there is also a contracted clinic in Kelowna (Interior). The Forensic Psychiatric Institute (FPI) was built in 1997 to accommodate 180 persons, men and women. Ninety beds are maximum security, but 22 minimum-security beds have been added to bring the total complement to 202 beds. Since the 1992 changes to the Criminal Code there have been significant increases in the numbers of persons found NCRMD and also an increase in discharges of such persons to the community. A significant increase in demand for court-ordered assessment cases led to the establishment of a separate Fo-

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rensic Assessment Unit, established in the Vancouver Pre-Trial Centre, a correctional remand facility, in 1999. FPI is responsible for the following: 1. Assessment of persons facing charges to determine their mental state at the time of an alleged offense. 2. Fitness (competence) to stand trial examinations. 3. Treatment of persons found NCRMD or unfit. 4. The treatment of mentally ill persons, certified under provincial mental health legislation, transferred from prisons. 5. Persons held under the Federal Immigration Act, pending hearing or deportation, who are mentally ill and certified under provincial legislation, and require treatment. (Uncommon). 6. Persons assessed under the Dangerous Offender (i.e., facing indeterminate sentences) provisions of the Criminal Code. Such persons are actually assessed in the provincial jails by psychiatrists or psychologists, but FPI coordinates the assessment process and provides some of the staff for the assessments. All the services, inpatient and outpatient, are coordinated by a unified administration jointly headed by a clinician and an administrator. FPI at one time admitted high-risk persons on bail, probation, and parole who were mentally ill and certifiable, but these are now excluded by reason of limited bed capacity. Plans are being developed to build regional medium-security inpatient units (Kamloops and Victoria) to serve this group of patients and also to provide similar services to the FPI. Draft protocols have been written to ensure the safe use of the medium-security facilities and transfer of patients when needed to the maximum-security section of FPI. The Forensic Psychiatric Community Services (Clinics) provide a wider array of services than the FPI: 1. Court ordered NCRMD and fitness assessments. 2. Pre-sentence assessments of persons suspected of mental disorder, sex offenders, and persons charged with spousal assault. 3. Community management of persons found NCRMD and unfit. 4. Community management of mentally disordered persons on bail, parole, and probation. 5. Community treatment for sex offenders. Under the provincial British Columbia Mental Health Plan (1998) it was envisaged that forensic and general mental health programs would be better coordinated. Protocols between different ministries (Health, Attorney General, Social Services) already exist (Ministry of Health, 1992), but are in need of revision. There has been a significant increase in demand for forensic services in recent years. Many persons found NCRMD are charged with relatively minor, nonviolent offenses and do not need the specialized resources of the forensic system. Because all such persons are held pursuant to the provincial Review Board, and Forensic Psychiatric Services provides annual assessments and re-

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ports to the Board, it has now become more common for nonforensic community services to provide care for such persons, with the Forensic Clinics retaining case management and ultimate responsibility. In this way, forensic patients can access community facilities and housing that was previously difficult for them to access. Under the Mental Health Plan, a variety of community housing and residential facilities have become available to forensic clients and the bias against them (i.e., “mad and bad”) is beginning to assuage. Increasingly, FPSC is providing services for “high-risk” individuals and community mental health for “low-risk” persons. Assessment techniques to determine the level of risk have improved dramatically (see later in this article).

Corrections Although FPSC is mandated to provide services in Correctional Facilities, in actual practice the provision of services has been shared by Forensic and Correctional personnel, mostly because of resource/budgetary reasons. Most of the major correctional centers in the province are located in urban centers where the Clinics are also located, and this facilitates the role of the Clinics in providing consultation/treatment services. Corrections is committed to providing mental health screening throughout the province pursuant to a successful pilot at Surrey Pre-Trial Centre (Ogloff, Tien, Roesch, & Eaves, 1991), and they also provide psychologists in each center to provide services to the less seriously disturbed. The Clinics provide psychiatric and nursing staff to the major correctional centers. A model mental health service has been developed at Surrey. Forensic Psychiatric Services provides a team comprising psychologists, a nurse, a psychiatrist, a social worker, and support staff, Corrections provides the screening and general health service, and Simon Fraser University and the Commission provide an evaluation team. The model incorporates the views of Steadman, McCarty, and Morrissey (1989), that jails are an extension of the community and that treatment services should always be community focused. A Steering Committee of senior Corrections/Commission/Government staff and a monthly working group ensures that there is optimum inter-agency cooperation and communication. Inter-agency committees now operate in most of the correctional centers, linking them with the community. The provincial Corrections Branch has two specialized facilities in the province. Stave Lake Correctional Centre provides services to sex offenders. Corrections provides the security and support and rehabilitation services to the Camp, with a great emphasis on staff being part of the treatment team rather than “guards,” so that the whole Camp functions as an integrated therapeutic unit. FPSC provides the treatment services, comprising contracted psychologists and psychology assistants. An academic connection is being considered through affiliation with Simon Fraser University. Ford Mountain Correctional Centre is a medium-security prison providing specialized services to “mentally disordered offenders,” with an emphasis on integrating such persons into the community. Again, Correctional staff are expected to provide a therapeutic milieu rather than a punitive atmosphere. The Forensic Clinics provide aftercare groups for sex offenders released from prison, as well as offenders given community dispositions. The Clinics

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provide, through contracts, educational programs for spousal assault offenders serving prison terms. Vancouver Clinic has also sponsored the Delta Project, which is a coordinated program to monitor and treat spousal assault offenders identified through the Delta Court System (Bond & Eaves, 1996). Corrections provides counseling for spousal assault offenders in all other areas of the province.

Supervision While Forensic Psychiatric Services has provided assessment and treatment services to persons found NCRMD and unfit, discussions with the Review Board and legal consultation led to the appreciation that the Commission has a wider duty to its patients. Supervision is defined as “activities undertaken by staff that are directed toward the community integration of the patient on conditional release.” These activities include ensuring access to available effective treatments while minimizing the risk to the public. This duty is similar in some ways to that provided to Forensic clients on bail or probation by officers of the court, but with persons found NCRMD there is no probation service to provide this function. The Commission has developed detailed guidelines for supervision (Forensic Psychiatric Services Commission of British Columbia, 1999). It involves monitoring mental state, community functioning, monitoring compliance with medication, monitoring compliance with the Review Board conditions for community living and undertaking actions if there is an increased perception of risk to the public or the patient. Principles of supervision include: • Balancing individual rights versus the risk to the public; • Intervening in the least restrictive way, subject to need and risk assessment; • Creating a level of support and supervision proportionate to the risk; • Involving patients in decision making; • Utilizing family support whenever possible; and • Accessing all appropriate community supports generally available to the mentally ill. Development of the Supervision Guidelines has led to a better coordinated transition between the FPI and the community, attention to the development of a detailed management/treatment strategy tailored to each individual, and the movement from office-based to community-based staffing. Community visits and community monitoring are expected in all cases. Assertive case management, effective in general mental health care, has become an appropriate model for forensic community care (Wilson, Tien, & Eaves, 1995).

Inter-agency Collaboration A follow-up study of clients discharged from the forensic system showed how forensic clients migrate into other systems of care or detention—prison, city lockups, detoxification centers, mental health centers, hospitals, etc. (Tien & Lamb, 1989). This knowledge led to the development of the most significant

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policy development in British Columbia concerning forensic clients, the Mentally Disordered Offender (MDO) Protocols written in 1992 and re-affirmed in 1995. The Protocols describe the different stages that MDOs move through when they enter the criminal justice system—point of arrest, arrival at the detention point, first appearance in court, referral for fitness evaluation, competency evaluation, trial, pre-sentence report, imprisonment, and discharge to the community. For each point in the system the protocol describes how decisions are made and the responsibilities of each agency involved. The intent was to achieve optimum coordination of management and care, to ensure minimal slippage “through the cracks.” The Protocols envisaged the establishment of inter-ministerial MDO committees in every prison and every community in the province. Many were established, but the success of the Protocols was limited by the fact that no new resources were introduced to deal with an increased workload. A major achievement of the British Columbia Forensic Psychiatric Services Commission has been to emphasize the increasing number and complex needs of the mentally ill caught up in the criminal justice system. The provincial Mental Health Plan acknowledged this issue, and a strategy was developed to divert vulnerable mentally ill persons away from the criminal justice system to the community whenever possible. To effect this and improve coordination, a key initiative of the Mental Health Plan was to recruit 30 forensic liaison workers and distribute them around the province, operating under the direction of the regional Clinics. Their main areas of activity are: • To act as liaison between the court system and community agencies and hospital; • To assist mentally ill offenders to develop realistic release plans as they leave prison; and • To ensure “bridging” support when they leave prison. The establishment of the positions has led to a re-emphasis on the Protocols and the establishment of more active MDO committees. In general, the community has accepted the role of the liaison officers with enthusiasm. A detailed evaluation plan will monitor the success of the program, whether recidivism rates will be lowered, whether the length of community tenure of MDOs will be extended, whether better access to general services will be achieved, etc.

Academic Activity The Forensic Psychiatry Act describes the expected role of the Commission in education, research, and training. The Commission has formal affiliation with the University of British Columbia (UBC) and with Simon Fraser University (SFU), and many staff have cross-appointments. The Commission has played a prominent role in linking academia, government services, and the community together, forging connections between empirical research and policy development and program planning. In 1990, the Commission played the lead role in developing the British Columbia Institute Against Family Violence, an agency that has played an increasingly significant role in combating

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different aspects of family violence, child abuse, and abuse of the elderly. In 1994, the Commission again played a lead role in the establishment of the Mental Health, Law, and Policy Institute at SFU, an interdisciplinary body now widely known for the quality of its research and training initiatives in the forensic areas. Most of the members of UBC Division of Forensic Psychiatry are staff or contractors of the Commission. The Commission now has postdoctoral training programs in psychiatry and psychology.

Research Much of the forensic research in British Columbia has been conducted through collaboration between FPSC and Simon Fraser University. The main focus has been on risk assessment, fitness to stand trial, jail mental health issues, and studies related to persons assessed or held under the Criminal Code mental disorder provisions. Fitness to Stand Trial. This is a substantial issue in Canada because each year many persons are found unfit to stand trial. Following an analysis of fit versus unfit defendants in an early study (Roesch, Eaves, Sollner, Normandin, & Glackman, 1981), a Canadian guide for evaluators of fitness was developed (Roesch, Webster, & Eaves, 1984). Several studies examined the reliability and utility of this instrument, but the 1992 Criminal Code changes necessitated a revision to the guide, the Fitness Interview Test (revised edition) (FIT; Roesch, Zapf, Eaves, & Webster, 1998). The Code now defines fitness as: • Unfit to stand trial means unable on account of mental disorder to conduct a defense at any stage of the proceedings before a verdict is rendered or to instruct counsel to do so, and in particular, unable on account of mental disorder to: • Understand the nature and object of the proceedings; • Understand the possible consequences of the proceedings, or • Communicate with counsel. The FIT manual comprises three sections that cover these areas, namely Factual Knowledge of Criminal Procedure, Appreciation of Personal Involvement in and Importance of the Proceedings, and Ability to Participate in Defense. The results of recent research using the FIT have indicated its excellent utility as a screening instrument. In a study by Zapf and Roesch (1997), the authors compared decisions about fitness made by the FIT with decisions made by FPI clinicians. In a series of 57 patients, they found that it could efficiently screen out persons who are clearly fit to stand trial, thus offering the possibility that such persons might avoid being remanded to an inpatient facility. The FIT made no false negative errors in this study, that is, it did not identify as unfit, persons who would be then inappropriately sent to trial. Further research is under way to investigate the reliability and validity of the FIT. Risk Assessment. The Criminal Code changes precipitated the need to develop risk assessment procedures. The Hare Checklist Revised-20 (HCR-20)

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(Webster, Eaves, Douglas, & Wintrup, 1995) was originally designed to assist psychiatrists in formulating assessments of risk for patients appearing before the Review Board, but it is now seen as a broad-band violence risk assessment instrument with potential applicability in a variety of settings. Version Two (Webster, Douglas, Eaves, & Hart, 1997) has redefined the risk markers into past, present, and future groupings, with 10 Historical items, 5 Clinical (dynamic) items, and 5 Risk Management or situational items. A review by Borum (1996) suggested that it was conceptually sound, being based on empirical studies, and likely to be very practical in clinical usage. It has now been translated into several languages and numerous studies have been completed or are in progress in North America and Europe. It has been used now in forensic psychiatric populations (e.g., Belfrage, 1998), in correctional populations (Douglas & Webster, 1999), and civil populations (Douglas, Ogloff, Nicholls, & Grant, 1999; Ross, Hart, & Webster, 1998), with acceptable interrater reliability. Ross and her colleagues showed that the HCR-20 was useful in predicting inpatient aggression as well as community aggression, and in the latter case the HCR-20 total score correlated better than the Psychopathy Checklist: Screening Version (PCL: SV; Hart, Cox, & Hare, 1995) with violent crime in the community. Until now the Psychopathy Checklist-Revised (Hare, 1991) has been regarded as the “gold standard’ among prediction instruments, although it was not originally envisaged as a risk prediction instrument. Douglas et al. (1999) found recently that the HCR-20 was effective at predicting violence in a population of involuntarily hospitalized psychiatric patients who were discharged to the community. The results showed that while the HCR-20 and PCL: SV were effective at predicting violence, the HCR-20 was generally more effective for this population. The Spousal Assault Risk Assessment Guide (SARA) was developed by Kropp, Hart, Webster, and Eaves (1999), a coordinated effort between the British Columbia Institute Against Family Violence, FPSC, and SFU. While not a test or scale in the usual sense of these terms, it is rather a checklist of risk factors for spousal assault, nevertheless norms for Canadian adult offenders on probation and in prison have been compiled on representative samples, and SARA norms for offenders in Sweden and the United States should be available in the near future. The manual describes the impressive inter-rater reliability and ability to discriminate between men who did and did not recidivate following assessment and referral to a group treatment program for spousal abusers. Several studies on the validity of the SARA are underway in Canada and the United States.

Recent and Future Developments In British Columbia, FPSC provides a comprehensive array of services for mentally disordered offenders. In 1997, following further changes to the Criminal Code, an assessment service to the courts was developed to provide objective evidence to the courts to aid their definition of long term and dangerous offenders. The revisions prescribe indefinite incarceration for designated dangerous offenders and long-term supervision (up to 10 years) for long-term offenders, following a definite period of incarceration. The fact that FPSC as-

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sesses all potentially dangerous offenders in the province places it in an ideal circumstance to study dangerous offenders. An assessment guide has just been completed (Eaves, Douglas, Webster, Ogloff, & Hart, 2000). It reviews the utility of various risk assessment instruments that have been developed in British Columbia, Canada, and elsewhere, and their application in particular to sex offenders who are mostly targeted by the Dangerous Offender legislation. FPSC is considering an assessment service within a dedicated “mental disorder court” in Vancouver to facilitate the diversion and appropriate referral of low-risk mentally ill offenders to community services from the court system. It should facilitate the role of the court liaison workers, and if the pilot proves effective it could be introduced to other major centers in the province, where numbers justify a separate court process for the mentally ill. Further research on risk assessment is envisaged, but the emphasis will switch from assessment to risk management, with a draft manual, the HCR-20 Management Version, already underway. It is hoped that such a manual will facilitate the role of clinicians and the new forensic liaison workers in returning mentally disordered offenders safely into the community. References Belfrage, H. (1998). Implementing the HCR-20 scheme for risk assessment in a forensic psychiatric hospital: Integrating research and clinical practice. Journal of Forensic Psychiatry, 9, 328–338. Bond, L. D., & Eaves, D. (1996). Protecting victims of spousal assault: The Delta Project in stopping the violence. In M. Russell, J. Hightower, & G. Gutman (Eds.), Changing families, changing futures (pp. 185– 200). Vancouver: British Columbia Institute Against Family Violence. Borum, R. (1996). Improving the clinical practice of violence risk assessment: Technology, guidelines, and training. American Psychologist, 51, 945–956. Douglas, K. S., Ogloff, J. R. P., Nicholls, T., & Grant, I. (1999). Assessing risk for violence among psychiatric patients: The HCR-20 Violence Risk Assessment Scheme and the Psychopathy Checklist: Screening Version. Journal of Consulting and Clinical Psychology, 67, 917–930. Douglas, K. S., & Webster, C. D. (1999). The HCR-20 Violence Risk Assessment Scheme: Concurrent validity in a sample of incarcerated offenders. Criminal Justice and Behaviour, 26, 3–19. Eaves, D., Douglas, K. S., Webster, C. D., Ogloff, J. R. P., & Hart, S. D. (2000). Dangerous and long term offenders: An assessment guide. Burnaby, BC: Mental Health, Law and Policy Institute, Simon Fraser University. Forensic Psychiatric Services Commission of British Columbia. (1999). Supervision: definition, principles and guidelines. Port Coquitlam, B.C. Hare, R. D. (1991). The Hare Psychopathy Checklist-Revised. Toronto: Multi-Health Systems, Inc. Hart, S. D., Cox, D. N., & Hare R. D. (1995). Hare Psychopathy Checklist: Screening version. Toronto: Multi-Health Systems, Inc. Kropp, R. K., Hart, S. D., Webster, C. D., & Eaves, D. (1999). Spousal assault risk assessment guide. Toronto: Multi-Health Systems, Inc. Ministry of Health. (1992). Protocols for the inter-ministerial coordination of services for persons with a mental disorder or mental handicap involved in the criminal justice system. Victoria, BC. Ogloff, J. R. P., Olley, M. C., & Jack, L. A. (1999). Mental health law and ethics. In W. Marshall & P. Firestone (Eds.), Abnormal psychology (pp. 446–460). Toronto: Prentice Hall Allyn & Bacon. Ogloff, J. R. P., Tien, G., Roesch, R., & Eaves, D. (1991). A model for the provision of joint mental health services: An integrative community-based approach. Journal of Mental Health Administration, 18, 209– 222. Roesch, R., Eaves, D., Sollner, R., Normandin, M., & Glackman, W. (1981). Evaluating fitness to stand trial: A comparative analysis of fit and unfit defendants. International Journal of Law and Psychiatry, 4, 145–157. Roesch, R., Webster, C. D., & Eaves, D. (1984). The Fitness Interview Test: A method for assessing fitness to stand trial. Toronto: University of Toronto Centre of Criminology.

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Roesch, R., Zapf, P. A., Eaves, D., & Webster, C. D. (1998). Fitness Interview Test. Burnaby, BC: Mental Health, Law, and Policy Institute, Simon Fraser University. Rose, V. G. (in press). An introduction to law and the Canadian legal system. In R. Schuller & J. R. P. Ogloff (Eds.), Law and psychology: Canadian perspectives. Toronto: University of Toronto Press. Ross, D. J., Hart S. D., & Webster, C. D. (1998). Aggression in psychiatric patients: Using the HCR-20 to assess risk for violence in hospital and in the community. Port Coquitlam, B.C.: Riverview Hospital. Steadman, H. J., McCarty, D. W., & Morrissey, J. P. (1989). The mentally ill in jail: Planning for essential services. New York: Guilford Press. Tien, G., & Lamb, D. (1989). Report on the Project to Determine the Impact of Deinstitutionalization on the Criminal Justice System. Report to the Assistant Deputy Ministers Committee of British Columbia. Webster, C. D., Eaves, D., Douglas, K. S., & Wintrup, A. (1995). The HCR-20 Scheme: The assessment of dangerousness and risk. Vancouver: Simon Fraser University and British Columbia Forensic Psychiatric Services Commission. Webster, C. D., Douglas, K. S., Eaves, D., & Hart, S. D. (1997). HCR-20 Assessing Risk for Violence, Version 2. Burnaby: Mental Health Law and Policy Institute, Simon Fraser University. Wilson, D., Tien, G., & Eaves, D. (1995). Increasing the community tenure of mentally disordered offenders. International Journal of Law and Psychiatry, 18, 61–69. Zapf, P. A., & Roesch, R. (1997). Assessing fitness to stand trial: A comparison of institution-based evaluations and a brief screening interview. Canadian Journal of Community Mental Health, 16, 53–66.