Reasonable Doubt: What do we do about mental illness?

On November 20, the CBC broke a story about escaped patients and assaults on staff at Colony Farms, a forensic psychiatric hospital in Coquitlam B.C. That facility treats some 190 persons with mental illness who have been found “not criminally responsible” for their crimes by reason of a mental disorder.

I am not going to get into an entire treatise about the history of how the criminal justice system has treated people with mental illness in this article, but I thought it might be useful to look at some of the issues raised by the story.

Being found not criminally responsible by reason of mental disorder (“NCRMD”) is not a free pass to commit crimes. In many cases, mentally ill defendants actually want to be found outright guilty of a crime because their sentence will be less severe.

Once a person is found NCRMD, that person is under the jurisdiction of the Mental Health Review Board until the Board is convinced that the person no longer poses a significant risk to the public. That might mean many, many years in a facility like Colony Farms, followed by very restrictive conditions akin to house arrest in the community for a crime that would otherwise net the person a few weeks or months in prison.

The starting point is for the reader to ask his or herself: how do we, personally and as a society, want to treat people with mental illness? Before you start thinking about lobotomies (in line with One Flew over the Cuckoo’s Nest), I beg that you give it more thought. Not because you are necessarily wrong, but because it is no small coincidence that the overwhelming majority of people who are touched by mental illness and take the time to understand it tend to advocate for compassion and treatment to the greatest extent possible (yes, even the victims).

To that end, it is useful to put the CBC’s coverage in perspective. The CBC reported that five patients from Colony Farms did not return from day passes in 2012; 17 the previous year, and 20 in 2010. Dr. Johan Brink, the facility’s director, pointed out that 19,000 day passes had been issued in that period.

That means that 0.22 percent of patients do not return from a day pass at the end of the prescribed period. What we do not know is when they come back or what proportion of patients reoffends while on the loose. I suspect a large number return almost right away: the CBC reported that only one of the 42 missing in the last three years has not been located. Furthermore, although I know of a few historical cases, I am not aware of any recent cases involving those on day passes reoffending.

Our law places huge emphasis on personal liberty. This is something deeply engrained in our legal and social traditions, going back to the days when the tax collector was just the biggest guy in town or when the king used to throw his detractors in London Tower for indeterminate periods. For that reason, psychiatric treatment teams endeavour to treat a patient with a view to returning that person to the community, so long as there is minimal risk to the public. Most psychiatric professionals will say that gradual reintegration through the use of day passes (whether escorted or unescorted) is an important part of the process.

The question we need to ask ourselves is whether the risk posed by those 42 patients being at large (keeping in mind that the absences seem to be short term and there is little apparent risk among the 42 of crimes being committed) outweighs the interest of 99.78 percent of patients to receive effective treatment and having their liberty extended as much as possible without undue risk to the public.

To bring this back to where I started out: how do we want to treat people with mental illness? As liabilities who need to be strapped to their beds to minimize even the most trivial risk or as people who, with treatment, can cease burdening the public purse and resume living, in most cases, a dignified and meaningful life?

The fact is that we can manage the risk posed by mentally ill patients and balance that risk against the same rights to freedom to which everyone is entitled. We make decisions each day that balance risks against desired outcomes. Treating the mentally ill should be no different. It is not an all-or-nothing decision, but one we need to make after considering the probability and serious of possible harm against the humanity of allowing otherwise regular people to live the dignified life that any person would hope for.

Michael McCubbin operates a busy litigation practice in downtown Vancouver, focusing on criminal, constitutional, and administrative law. Reasonable Doubt appears on Straight.com on Fridays. You can send your questions for the column to its writers at straight.reasonable.doubt@gmail.com.

A word of caution: Don’t take this column as personal legal advice, because it’s not. It is intended for general information and entertainment purposes only.