What is the California Mental Health Services Act (2005)?

Introduction

On November 2004, voters in the US state of California passed Proposition 63, the Mental Health Services Act (MHSA), which has been designed to expand and transform California’s county mental health service systems.

The MHSA is funded by imposing an additional one percent (1%) tax on individual, but not corporate, taxable income in excess of one million dollars. In becoming law on January 2005, the MHSA represents the latest in a Californian legislative movement, begun in the 1990s, to provide better coordinated and more comprehensive care to those with serious mental illness, particularly in underserved populations. Its claim of successes thus far, such as with the development of innovative and integrated Full Service Partnerships (FSPs), are not without detractors who highlight many problems but especially a lack of oversight, large amount of unspent funds, poor transparency, lack of engagement in some communities, and a lack of adherence to required reporting as challenges MHSA implementation must overcome to fulfil the law’s widely touted potential.

Background

At one time, California was known for having a strong mental health system. Treatment was available for Medi-Cal recipients with few limitations on care. Legislators and voters have acknowledged the inadequacy of California’s historically underfunded mental health system to care for the state’s residents, especially those with serious mental illness, over the past few decades. In 1991, to build a more community- and county-based system of care, the California legislature instituted realignment, a delegation of the control over mental health funds and care delivery from state to county. This was followed by a succession of legislation targeted towards marginalised populations with high documented rates of mental illness, such as the homeless (AB 2034, in 1999) and the potentially violent mentally ill (Laura’s Law, in 2002). However, with the passage of Proposition 63 in 2004, California voters acted upon a widespread perception that state and county mental health systems were still in disrepair, underfunded, and requiring a systematic, organizational overhaul. This perception echoed a nationwide perspective, with the President’s New Freedom Commission on Mental Health in 2003 calling for fundamental transformation of the historically fragmented mental health system. The MHSA is California’s attempt to lead the way in accomplishing such systemic reform.

In the end, voter consciences were pricked by the well-organised and -funded campaign that displayed both the need (50,000 mentally ill homeless people, according to the National Alliance on Mental Illness) and the promise (successes of past mental health initiatives) of increased funding for the mental health system. Then-Assemblyman Darrell Steinberg and Rusty Selix, executive director of the Mental Health Association in California, led the initiative by collecting at minimum 373,816 signatures, along with financial ($4.3 million) and vocal support from stakeholders. Though Governor Arnold Schwarzenegger and the business community were opposed to Proposition 63 because of the tax it would impose on millionaires, the opposition raised only $17,500. On 02 November 2004, Proposition 63 passed with 53.8% of the vote, with 6,183,119 voting for and 5,330,052 voting against the bill.

Overview

The voter-approved MHSA initiative provides for developing, through an extensive stakeholder process, a comprehensive approach to providing community based mental health services and supports for California residents. Approximately 51,000 taxpayers in California will be helping to fund the MHSA through an estimated $750 million in tax revenue during fiscal year 2005-2006.

The MHSA was an unprecedented piece of legislation in California for several reasons:

  • Its funding source, quantity, and allocation is dedicated for mental health services, including times of budget cuts to many other public programmes
  • It was intended to engage communities in prioritising which service elements would be funded.
  • It was focused on developing preventive and innovative programmes to help transform the mental health care system in California.

To accomplish its objectives, the MHSA applies a specific portion of its funds to each of six system-building components:

  • Community programme planning and administration (10%).
  • Community services and supports (45%).
  • Capital (buildings) and information technology (IT) (10%).
  • Education and training (human resources) (10%).
  • Prevention and early intervention (20%).
  • Innovation (5%).

Notably, none of the funds were to be used for programmes with existing fund allocations, unless it was for a new element or expansion in those existing programmes. 51% of the funds have to be spent on children’s service.

The MHSA stipulates that the California State Department of Mental Health (DMH) will contract with county mental health departments (plus two cities) to develop and manage the implementation of its provisions. Oversight responsibility for MHSA implementation was handed over to the sixteen member Mental Health Services Oversight and Accountability Commission (MHSOAC) on July 7, 2005, when the commission first met.

The MHSA specifies requirements for service delivery and supports for children, youths, adults and older adults with serious emotional disturbances and/or severe mental illnesses. MHSA funding will be made annually to counties to:

  • Define serious mental illness among children, adults and seniors as a condition deserving priority attention, including prevention and early intervention services and medical and supportive care
  • Reduce the long-term adverse impact on individuals, families and State and local budgets resulting from untreated serious mental illness.
  • Expand the kinds of successful, innovative service programs for children, adults and seniors already established in California, including culturally and linguistically competent approaches for underserved population.
  • Provide State and local funds to adequately meet the needs of all children and adults who can be identified and enrolled in programmes under this measure.
  • Ensure all funds are expended in the most cost-effective manner and services are provided in accordance with recommended best practices, subject to local and State oversight to ensure accountability to taxpayers and to the public.

Implementation

Starting from enactment, implementation of the MHSA was intended to take six months; in reality, the process of obtaining stakeholder input for administrative rules extended this period by several months. By August 2005, 12 meetings and 13 conference calls involving stakeholders across the state resulted in the final draft of rules by which counties would submit their three-year plans for approval.

Counties are required to develop their own three-year plan, consistent with the requirements outlined in the act, in order to receive funding under the MHSA. Counties are obliged to collaborate with citizens and stakeholders to develop plans that will accomplish desired results through the meaningful use of time and capabilities, including things such as employment, vocational training, education, and social and community activities. Also required will be annual updates by the counties, along with a public review process. County proposals will be evaluated for their contribution to achieving the following goals:

  • Safe and adequate housing, including safe living environments, with family for children and youths.
  • Reduction in homelessness.
  • A network of supportive relationships.
  • Timely access to needed help, including times of crisis.
  • Reduction in incarceration in jails and juvenile halls.
  • Reduction in involuntary services, including reduction in institutionalisation and out-of-home placements.

MHSA specifies three stages of local funding, to fulfil initial plans, three year plans, and long term strategies. No services would be funded in the first year of implementation. The DMH approved the first county plan in January 2006. Allocations for each category of funding were planned to be granted annually, based upon detailed plans with prior approval. However, an amendment to the MHSA, AB 100, which passed in March 2011, serves to streamline the DMH approval and feedback process to the counties, ostensibly to relieve the DMH of some of its administrative burden.

Roles & Responsibilities

While the county mental health departments are involved in the actual implementation of MHSA programmes, the MHSA mandates that several entities support or oversee the counties. These include the State Department of Mental Health (DMH) and the Mental Health Services Oversight and Accountability Commission (MHSOAC).

California State Department of Mental Health (DMH)

In accordance with realignment, the DMH approves county three-year implementation plans, upon comment from the MHSOAC, and passes programmatic responsibilities to the counties. In the first few months immediately following its passage, the DMH has:

  • Obtained federal approvals and Medi-Cal waivers, State authority, additional resources and technical assistance in areas related to implementation.
  • Established detailed requirements for the content of local three year expenditure plans.
  • Developed criteria and procedures for reporting of county and state performance outcomes.
  • Defined requirements for the maintenance of current State and local efforts to protect against supplanting existing programmes and their funding streams.
  • Developed formulas for how funding will be divided or distributed among counties.
  • Determined how funding will flow to counties and set up the mechanics of distribution.
  • Established a 16-member Mental Health Services Oversight and Accountability Commission (MHSOAC), composed of elected State officials and Governor appointees, along with procedures for MHSOAC review of county planning efforts and oversight of DMH implementation.
  • Developed and published regulations and provide preliminary training to all counties on plan development and implementation requirements.

The DMH has directed all counties to develop plans incorporating five essential concepts:

  • Community collaboration.
  • Cultural competence.
  • Client/family-driven mental health system for older adults, adults and transition age youth and family-driven system of care for children and youth.
  • Wellness focus, which includes the concepts of recovery and resilience.
  • Integrated service experiences for clients and their families throughout their interactions with the mental health system.

The DMH, in assuming and asserting its primacy over MHSA implementation, has dictated requirements for service delivery and supports as follows:

  • Full Service Partnership (FSP) Funds: Funds to provide necessary services and supports for initial populations.
  • General System Development Funds: Funds to improve services and infrastructure.
  • Outreach and Engagement Funding: Funds for those populations that are currently receiving little or no service.

Mental Health Services Oversight and Accountability Commission (MHSOAC)

The authors of the MHSA created the MHSOAC to reflect the consumer-oriented focus of the law, mandating at least two appointees with severe mental illness, two other family members of individuals with severe mental illness, and various other community representatives. This diverse commission holds the responsibility of approving county implementation plans, helping develop mental illness stigma-relieving strategies, and recommending service delivery improvements to the state on an as-needed basis. Whenever the commission identifies a critical issue related to the performance of a county mental health programme, it may refer the issue to the DMH.

The first meeting of the MHSOAC was held July 7, 2005, at which time Proposition 63 author Darrell Steinberg was selected unanimously by fellow commissioners as chairman, without comment or discussion. After accepting the gavel, Steinberg was roundly praised for devising Proposition 63’s ‘creative financing’ scheme. Steinberg then said, “We must focus on the big picture,” and stated his priorities with regard to the implementation of the MHSA:

  • Prioritise prevention and early intervention, without falling into the trap of fail first service provision;
  • Address “the plight of those at risk of falling off the edge,”; and
  • Advocate for mental health services from his “bully pulpit.”

MHSOAC Commissioners

In accordance with MHSA requirements, the Commission shall consist of 16 voting members as follows:

  • The Attorney General or his or her designee.
  • The Superintendent of Public Instruction or his or her designee.
  • The Chairperson of the Senate Health and Human Services Committee or another member of the Senate selected by the President pro Tempore of the Senate.
  • The Chairperson of the Assembly Health Committee or another member of the Assembly selected by the Speaker of the Assembly.
  • Twelve appointees of the Governor, who shall seek individuals who have had personal or family experience with mental illness, to include:
    • Two persons with a severe mental illness.
    • A family member of an adult or senior with a severe mental illness.
    • A family member of a child who has or has had a severe mental illness.
    • A physician specialising in alcohol and drug treatment.
    • A mental health professional.
    • A county Sheriff.
    • A Superintendent of a school district.
    • A representative of a labour organisation.
    • A representative of an employer with less than 500 employees.
    • A representative of an employer with more than 500 employees.
    • A representative of a health care services plan or insurer.

State Government Appointees

The initial government officials and designee appointed:

  • Senator Wesley Chesbro (Democrat), of Arcata, chair of the Senate Budget and Fiscal Review Committee and the Senate Select Committee on Developmental Disabilities and Mental Health.
  • Assemblyman Mark Ridley-Thomas (Dem), of Los Angeles, a member of the Assembly Health committee and former L.A. city councilman.
  • Attorney General Bill Lockyer, of Hayward, a former State Senator and Assemblyman.
  • Darrell Steinberg (Dem), of Sacramento, an attorney, the author of Proposition 63, former Assemblyman. Steinberg is the appointee of the Superintendent of Public Instruction.

Governor’s Appointees

On 21 June 2005, then Governor Schwarzenegger announced his appointment of twelve appointees to the MHSOAC:

  • MHOAC Vice Chairman Linford Gayle (declined to state party), 46, of Pacifica, a mental health program specialist at San Mateo County Mental Health Services.
  • Karen Henry (Republican), 61, of Granite Bay, a labour attorney and a board member of California National Alliance for the Mentally Ill (NAMI). Henry is afflicted by ‘rapid cycling’ bipolar disorder, has a son who has autism, and another son with a mental illness.
  • William Kolender (Rep), 70, of San Diego, the San Diego County Sheriff and president of the State Sheriffs Association, a member of the State Board of Corrections, and was for three years the director of the California Youth Authority (CYA). Kolender’s wife died as a result of mental illness, and he has a son with a mental disorder.
  • Kelvin Lee, Ed.D. (Rep), 58, of Roseville, a superintendent of the Dry Creek Joint Elementary School District.
  • Andrew Poat (Rep), 45, of San Diego, former director of the government relations department for the City of San Diego, a member of the public policy committee for the San Diego Gay and Lesbian Centre, and a former deputy director of the United States Office of Consumer Affairs. Poat represented employers of more than 500 workers on the commission, and says he will use his experience building multimillion-dollar programs to bring together mental health advocates.
  • Darlene Prettyman (Rep), 71, of Bakersfield, is a psychiatric nurse, a board member and past president of NAMI California, and a past chairman and a member of the California Mental Health Planning Council. Her son has schizophrenia, and her stated priority is to enhance provision of housing for mental health service clients.
  • Carmen Diaz (Dem), 53, of Los Angeles, a family advocate coordinator with the L.A. County Department of Mental Health and a board member of United Advocates for Children of California. Diaz has a family member with a severe mental illness.
  • F. Jerome Doyle (Dem), 64, of Los Gatos, is chief executive officer of EMQ (a provider of mental health services for children and youth), a board member and past president of the California Council of Community Mental Health Agencies, and a board member of California Mental Health Advocates for Children.
  • Saul Feldman DPA, (Dem), 75, of San Francisco, is chairman and CEO of United Behavioural Health, a member of the American Psychological Association, the founder and former president of the American College of Mental Health Administration, and a former president and CEO of Health America Corporation of California. Feldman was appointed as a health care plan insurer.
  • Gary Jaeger, M.D. (Dem), 62, of Harbour City, is currently the chief of addiction medicine at Kaiser Foundation Hospital, South Bay, a member and former chair of the Behavioural Health Advisory Board of the California Healthcare Association, and former medical director of family recovery services at St. Joseph Hospital in Eureka. He says members of his family have an “80 percent rate of drug and alcohol abuse.”
  • Mary Hayashi (Dem), 38, of Castro Valley, president of the Iris Alliance Fund and a board member for Planned Parenthood Golden Gate and member of the Board of Registered Nursing. Hayashi’s concerns include transportation access for clients and paratransit services, and represents employers with 500 or fewer workers.
  • Patrick Henning (Dem), 32, of West Sacramento, is the legislative advocate for the California Council of Laborers. He was previously the Assistant Secretary at the Labour and Workforce Development Agency (An Agency that he helped create), deputy director for the Department of Industrial Relations and Prior to his State service Special Advisor and Congressional Liaison to President Bill Clinton. Henning is a member of the Career Technical Education Standards and Framework Advisory Group and the California Assembly Speaker’s Commission on Labour Education. He represents labour.

Current Progress

One unqualified success story from the MHSA thus far involves the implementation of Full Service Partnerships (FSPs) demonstrating the “whatever it takes” commitment to assist in individualised recovery – whether it is housing, “integrated services, flexible funding [such as for childcare], intensive case management, [or] 24 h access to care.” FSP interventions are based upon evidence from such programs as Assertive community treatment (ACT), which has effectively reduced homelessness and hospitalisations while bettering outcomes. But the FSP model looks more like that of the also-popular MHA Village in Long Beach, which is a centre that offers more comprehensive services besides those specifically mental health-related. Beyond these guiding principles, however, there has not been much consensus over unifying strategies to define and implement an FSP – resulting in varying FSP structures across counties.

Overall, though, the Petris Centre, funded by the DMH and California HealthCare Foundation to evaluate the MHSA, has reported quantifiable improvements in many areas:

  • Homelessness rates.
  • Entry rates into the criminal justice system.
  • Suffering from illness.
  • Daily functioning.
  • Education rates.
  • Employment rates.
  • General satisfaction with FSPs.

Continued Challenges

According to the UCLA Centre for Health Policy Research, the 2007 and 2009 California Health Interview Surveys (CHIS) demonstrate continued mental health needs of almost two million Californians, about half of which were unmet in 2011. In spite of steady tax revenue ($7.4 billion raised as of September 2011) earmarked for the MHSA, the unremittingly high numbers of mentally ill who lack treatment contrast starkly with the implementation of new programs like the FSPs, which may cost tens of thousands of dollars annually per person. The MHA Village programme, for example, averages around $18,000 annually per person. One of the major growing concerns regarding MHSA implementation is its unintentional but worrying tendency to create silos of care. As directed by the DMH, counties search for “unserved” mentally ill or at-risk individuals to enrol in their new programmes, while keeping existing and perhaps underserved clients in old programs that are usually underfunded, but cannot take MHSA funds. Ironically, while the MHSA was established in part to address racial/ethnic disparities in health care, it may be perpetuating the disparity in services delivery between underfunded and well-funded, new programmes.

A possible solution to this issue highlights another challenge for the MHSA: the need for more comprehensive evaluation, oversight, and advisory mechanisms. Though there is an accountability commission, the MHSOAC, its oversight and regulatory responsibilities are not well-defined. However, it is a relatively new entity, having been created by the MHSA in 2004, and has yet to fully delineate its role in the MHSA. With time, the MHSOAC will hopefully continue to develop towards its stated function. Objective and expert evaluation of the MHSA will also be necessary to achieve the kind of longstanding system-wide improvement that then becomes a model for others.

What is the Bazelon Centre for Mental Health Law?

Introduction

The Bazelon Centre for Mental Health Law is a national legal-advocacy organisation representing people with mental disabilities in the US (Washington, D.C.).

Originally known as The Mental Health Law Project, the Centre was founded as a national public-interest organization in 1972 by a group of specialised attorneys and mental disability professionals who were working to help the court define a constitutional right to treatment in terms of specific standards for services and protections.

In 1993, the organisation changed its name to the Judge David L. Bazelon Centre for Mental Health Law to honour the legacy of Judge David L. Bazelon, whose decisions as Chief Judge of the United States Court of Appeals for the District of Columbia Circuit had pioneered the field of mental health law.

Refer to the Treatment Advocacy Centre.

Litigation

The Centre’s precedent-setting litigation has established important civil rights for people with mental illnesses or developmental disabilities. These include the right to treatment in Wyatt v. Stickney (decided in 1971 and successfully concluded in 1999), and the Supreme Court’s 1999 Olmstead v. L.C. ex rel. Zimring decision affirming the right of people with disabilities to receive public services in the most integrated setting consistent with their needs.

Federal Policy

The Centre also engages in federal policy advocacy, working with Congress and the administrative agencies to ensure, for example, that people with mental disabilities are included under the protections of the Americans with Disabilities Act and amendments to the federal Fair Housing Act, and to generate resources such as Supplemental Security Income and Medicaid that can enable them to live and thrive in the community. In 2009, a major thrust was the integration of mental health in healthcare reform.

Publications

The Bazelon Centre’s publications include reports; issue papers; law, regulation, and policy analyses; advocacy manuals; and consumer-friendly guides to legal rights. These are available for free download from the centre’s website, or print copies may be ordered by postal mail, telephone, or email.

Funding

During the 2015 fiscal year, most of the Bazelon Centre’s revenue came from contributions, gifts, and grants. Notable organisations providing grant support to the Bazelon Centre include the Open Society Foundations and the MacArthur Foundation. Beginning in 1978, the MacArthur Foundation has awarded multiple grants to the Bazelon Centre, totalling $14,035,000 as of 2016.

What is Forensic Psychiatry?

Introduction

Forensic psychiatry is a subspeciality of psychiatry and is related to criminology. It encompasses the interface between law and psychiatry.

According to the American Academy of Psychiatry and the Law, it is defined as “a subspecialty of psychiatry in which scientific and clinical expertise is applied in legal contexts involving civil, criminal, correctional, regulatory, or legislative matters, and in specialized clinical consultations in areas such as risk assessment or employment.”

A forensic psychiatrist provides services – such as determination of competency to stand trial – to a court of law to facilitate the adjudicative process and provide treatment, such as medications and psychotherapy, to criminals.

Court Work

Forensic psychiatrists work with courts in evaluating an individual’s competency to stand trial, defences based on mental disorders (e.g. the insanity defence), and sentencing recommendations. The two major areas of criminal evaluations in forensic psychiatry are competency to stand trial (CST) and mental state at the time of the offense (MSO).

Competency to Stand Trial

Competency to stand trial (CST) is the competency evaluation to determine that defendants have the mental capacity to understand the charges and assist their attorneys. In the United States, this is seated in the Fifth Amendment to the United States Constitution, which ensures the right to be present at one’s trial, to face one’s accusers, and to have help from an attorney. CST, sometimes referred to as adjudicative competency, serves three purposes: “preserving the dignity of the criminal process, reducing the risk of erroneous convictions, and protecting defendants’ decision-making autonomy”.

In 1960, the Supreme Court of the United States in Dusky v. United States established the standard for federal courts, ruling that “the test must be whether the defendant has sufficient present ability to consult with his attorney with a reasonable degree of rational understanding and a rational as well as factual understanding of proceedings against him.” The evaluations must assess a defendant’s ability to assist their legal counsel, meaning that they understand the legal charges against them, the implications of being a defendant, and the adversarial nature of the proceedings, including the roles played by defence counsel, prosecutors, judges, and the jury. They must be able to communicate relevant information to their attorney, and understand information provided by their attorney. Finally, they must be competent to make important decisions, such as whether or not to accept a plea agreement.

In England, Wales, Scotland, and Ireland, a similar legal concept is that of “fitness to plead”.

As an Expert Witness

Forensic psychiatrists are often called to be expert witnesses in both criminal and civil proceedings. Expert witnesses give their opinions about a specific issue. Often, the psychiatrist will have prepared a detailed report before testifying. The primary duty of the expert witness is to provide an independent opinion to the court. An expert is allowed to testify in court with respect to matters of opinion only when the matters in question are not ordinarily understandable to the finders of fact, be they judge or jury. As such, prominent leaders in the field of forensic psychiatry, from Thomas Gutheil (2009) to Robert Simon and Liza Gold (2010) and Sadoff (2011) have identified teaching as a critical dimension in the role of expert witness. The expert will be asked to form an opinion and to testify about that opinion, but in so doing will explain the basis for that opinion, which will include important concepts, approaches, and methods used in psychiatry.

Mental State Opinion

Mental state opinion (MSO) gives the court an opinion, and only an opinion, as to whether a defendant was able to understand what he/she was doing at the time of the crime. This is worded differently in many states, and has been rejected altogether in some, but in every setting, the intent to do a criminal act and the understanding of the criminal nature of the act bear on the final disposition of the case. Much of forensic psychiatry is guided by significant court rulings or laws that bear on this area which include these three standards:

  • M’Naghten rules: Excuses a defendant who, by virtue of a defect of reason or disease of the mind, does not know the nature and quality of the act, or, if he or she does, does not know that the act is indeed wrong.
  • Durham rule: Excuses a defendant whose conduct is the product of mental disorder.
  • ALI test: Excuses a defendant who, because of a mental disease or defect, lacks substantial capacity to appreciate the criminality (wrongfulness) of his or her conduct or to conform his conduct to the requirements of law.

“Not guilty by reason of insanity” (NGRI) is one potential outcome in this type of trial. Importantly, insanity is a legal and not a medical term. Often, psychiatrists may be testifying for both the defence and the prosecution.

Forensic psychiatrists are also involved in the care of prisoners, both in jails and prisons, and in the care of the mentally ill who have committed criminal acts (such as those who have been found not guilty by reason of insanity).

Risk Management

Many past offenders against other people, and suspected or potential future offenders with mental health problems or an intellectual or developmental disability, are supervised in the community by forensic psychiatric teams made up of a variety of professionals, including psychiatrists, psychologists, nurses, and care workers. These teams have dual responsibilities: to promote both the welfare of their clients and the safety of the public. The aim is not so much to predict as to prevent violence, by means of risk management.

Risk assessment and management is a growth area in the forensic field, with much Canadian academic work being done in Ontario and British Columbia. This began with the attempt to predict the likelihood of a particular kind of offense being repeated, by combining “static” indicators from personal history and offense details in actuarial instruments such as the RRASOR and Static-99, which were shown to be more accurate than unaided professional judgment. More recently, use is being made also of “dynamic” risk factors, such as attitudes, impulsivity, mental state, family and social circumstances, substance use, and the availability and acceptance of support, to make a “structured professional judgment.” The aim of this is to move away from prediction to prevention, by identifying and then managing risk factors. This may entail monitoring, treatment, rehabilitation, supervision, and victim safety planning and depends on the availability of funding and legal powers. These schemes may be based on published assessments such as the HCR-20 (which incorporates 10 Historical, 5 Clinical and 5 Risk Management factors) and the risk of sexual violence protocol from Simon Fraser University, BC.

United Kingdom

In the UK, most forensic psychiatrists work for the National Health Service, in specialist secure units caring for mentally ill offenders (as well as people whose behaviour has made them impossible to manage in other hospitals). These can be either medium secure units (of which there are many throughout the country) or high secure hospitals (also known as special hospitals), of which three are in England and one in Scotland (the State Hospital, Carstairs), the best known of which is Broadmoor Hospital. The other ‘specials’ are Ashworth hospital in Maghull, Liverpool, and Rampton hospital in Nottinghamshire. Also, a number of private-sector medium secure units sell their beds exclusively to the NHS, as not enough secure beds are available in the NHS system.

Forensic psychiatrists often also do prison inreach work, in which they go into prisons and assess and treat people suspected of having mental disorders; much of the day-to-day work of these psychiatrists comprises care of very seriously mentally ill patients, especially those suffering from schizophrenia. Some units also treat people with severe personality disorder or learning disabilities. The areas of assessment for courts are also somewhat different in Britain, because of differing mental health law. Fitness to plead and mental state at the time of the offence are indeed issues given consideration, but the mental state at the time of trial is also a major issue, and this assessment most commonly leads to the use of mental health legislation to detain people in hospitals, as opposed to their getting a prison sentence.

Learning-disabled offenders who are a continuing risk to others may be detained in learning-disability hospitals (or specialised community-based units with a similar regimen, as the hospitals have mostly been closed). This includes those who commit serious crimes of violence, including sexual violence, and fire-setting. They would be cared for by learning disability psychiatrists and registered learning disability nurses. Some psychiatrists doing this work have dual training in learning disability and forensic psychiatry or learning disability and adolescent psychiatry. Some nurses would have training in mental health, also.

Court work (medicolegal work) is generally undertaken as private work by psychiatrists (most often forensic psychiatrists), as well as forensic and clinical psychologists, who usually also work within the NHS. This work is generally funded by the Legal Services Commission (used to be called Legal Aid).

Canada

Criminal Law Framework

In Canada, certain credentialed medical practitioners may, at their discretion, make state-sanctioned investigations into and diagnosis of mental illness. Appropriate use of the DSM-IV-TR is discussed in its section entitled “Use of the DSM-IV-TR in Forensic Settings”.

Concerns have been expressed that the Canadian criminal justice system discriminates based on DSM IV diagnosis within the context of Part XX of the Criminal Code. This part sets out provisions for, among other things, court ordered attempts at “treatment” before individuals receive a trial as described in section 672.58 of the Criminal Code. Also provided for are court ordered “psychiatric assessments”. Critics have also expressed concerns that use of the DSM-IV-TR may conflict with section 2(b) of the Canadian Charter of Rights and Freedoms, which guarantees the fundamental freedom of “thought, belief, opinion, and expression”.

Confidentiality

The position of the Canadian Psychiatric Association holds, “in recent years, serious incursions have been made by governments, powerful commercial interests, law enforcement agencies, and the courts on the rights of persons to their privacy.” It goes on to state, “breaches or potential breaches of confidentiality in the context of therapy seriously jeopardize the quality of the information communicated between patient and psychiatrist and also compromise the mutual trust and confidence necessary for effective therapy to occur.”

An outline of the forensic psychiatric process as it occurs in the province of Ontario is presented in the publication The Forensic Mental Health System In Ontario: An Information Guide published by the Centre for Addiction and Mental Health in Toronto. The Guide states: “Whatever you tell a forensic psychiatrist and the other professionals assessing you is not confidential.” The Guide further states: “The forensic psychiatrist will report to the court using any available information, such as: police and hospital records, information given by your friends, family or co-workers, observations of you in the hospital.” Also according to the Guide: “You have the right to refuse to take part in some or all of the assessment. Sometimes your friends or family members will be asked for information about you. They have the right to refuse to answer questions, too.”

Of note, the emphasis in the guide is on the right to refuse participation. This may seem unusual given that a result of a verdict of “Not Criminally Responsible by reason of Mental Disorder” is often portrayed as desirable to the defence, similar to the insanity defence in the United States. A verdict of “Not Criminally Responsible” is referred to as a “defence” by the Criminal Code. However, the issue of the accused’s mental state can also be raised by the Crown or by the court itself, rather than solely by the defence counsel, differentiating it from many other legal defences.

Treatment/Assessment Conflict

In Ontario, a court-ordered inpatient forensic assessment for criminal responsibility typically involves both treatment and assessment being performed with the accused in the custody of a single multidisciplinary team over a 30- or 60-day period. Concerns have been expressed that an accused may feel compelled on ethical, medical, or legal grounds to divulge information, medical, or otherwise, to assessors in an attempt to allow for and ensure safe and appropriate treatment during that period of custody.

Some Internet references address treatment/assessment conflict as it relates to various justice systems, particularly civil litigation in other jurisdictions. The American Academy Of Psychiatry and the Law states in its ethics guidelines, “when a treatment relationship exists, such as in correctional settings, the usual physician-patient duties apply”, which may be seen as contradiction.

South Africa

In South Africa, patients are referred for observation for a period of 30 days by the courts if questions exist as to CST and MSO. Serious crimes require a panel, which may include two or more psychiatrists. Should the courts find the defendant not criminally responsible, the defendant may become a state patient and be admitted in a forensic psychiatric hospital. They are referred to receive treatment for an indefinite period, but most were back in the community after three years.

Training Standards

Some practitioners of forensic psychiatry have taken extra training in that specific area. In the United States, one-year fellowships are offered in this field to psychiatrists who have completed their general psychiatry training. Such psychiatrists may then be eligible to sit for a board certification examination in forensic psychiatry. In Britain, one is required to complete a three-year subspeciality training in forensic psychiatry, after completing one’s general psychiatry training, before receiving a Certificate of Completion of Training as a forensic psychiatrist. In some countries, general psychiatrists can practice forensic psychiatry, as well. However, other countries, such as Japan, require a specific certification from the government to do this type of work.

References

Gutheil, T.G. (2009) The Psychiatrist as Expert Witness. 2nd Ed. Washington: American Psychiatric Publishing.

Robert, S. & Gold, L. (Eds). (2010) American Psychiatric Textbook of Forensic Psychiatry. Washington: American Psychiatric Publishing.

Sadoff, R.L. (2011). Ethical Issues in Forensic Psychiatry: Minimizing Harm. New Jersey: Wiley-Blackwall.