"Getting away with it": misconceptions about the mentally ill in the criminal law context

We’ve all seen movies or TV shows where the brilliant psychopath escapes criminal liability by using the “insanity defence.” On the steps of the courthouse, he or she would smile deviously and walk out free as a bird, thrilled to have successfully flouted the legal system.

The reality, of course, is nothing like that at all. But some remnant of this Hollywoodized version of mental health law appears to have stuck in the imaginations of many Canadian citizens, and high profile cases are often reported and discussed through this fictitious lens. There is a notion that people found Not Criminally Responsible on Account of Mental Disorder (NCRMD) for often serious crimes “got away with it.” 

In the years I’ve been acting as an advocate for accused found NCRMD, I’ve become aware of many misconceptions of the forensic psychiatric system, my clients, and the British Columbia Review Board (the “Board”) that oversees their liberty interests.  I write to dispel some of these misconceptions.

Misconception 1: the forensic system is “easier” than prison or jail

In giving his evidence to the court for an NCRMD finding, a prominent forensic psychiatrist described having a psychotic episode as like being in a dream or nightmare. Now imagine waking up from that nightmare and being locked on a secure unit of a forensic hospital. While most accused found NCRMD did not commit a violent crime, some did. They may have even hurt someone they care about, like a family member.

The forensic psychiatric system is not intended to be punishment, but it has many of the hallmarks of a penal system. Unlike a prison sentence that has a definite end, people found NCRMD are in the forensic system indefinitely, until the system deems it safe for them to be discharged. You have a little room with cinder block walls. You can’t have a television, an IPod, or the internet. And you can’t go out on your own, or even go to different parts of the hospital without staff accompanying you.

Many of my clients have no memory of the crime they committed, or a faint, incomplete memory, as if what happened really was only a nightmare. And most of them spend considerable time locked up in the hospital, constantly watched and questioned, with notes and reports written about their actions, words, and thoughts. Some of them will spend their life there, because they have an incurable, serious mental illness.

Misconception 2: my clients fooled everyone in the system and got away with it

While the depiction of the evil villain who gets away with a violent crime by feigning insanity is a common narrative, it would be extremely difficult for an accused person in the forensic system to fool everyone into believing they have a mental disorder in order to escape criminal responsibility in the long term.

Most of my clients are living in a locked facility where they are constantly under surveillance. Unit staff watch them and make medical records about what they observe. An accused is assigned an experienced case manager and forensic psychiatrist who also make observations and write reports that go to the Board to help them make decisions about whether the accused should remain detained. Keeping up a charade of mental illness in this environment would be next to impossible.

As noted above, the forensic system is a system of rehabilitation and not punishment, but that doesn’t mean the accused got away with anything. Forensic oversight can go on indefinitely, even for minor offences. Clients end up locked in the forensic hospital for years because their illness is refractory and doesn’t respond to treatment.

Misconception 3: the Review Board puts the liberty interests of the accused before the safety of the public

In my experience advocating for my clients, the Board has without exception put the safety of the public first, as they are mandated to do. A panel representing the Board is made up of a lawyer, a psychiatrist, and a community member. Their decisions are by majority rule. They are in the best position to make the decision about the accused’s liberty because they are specialized and bring their shared experience to the table.

The Board is tough and generally conservative in its decisions, and unwilling to grant additional liberties or discharge an accused if there is any reasonable likelihood that person would be a danger to the community.

Misconception 4: a person with a mental illness who commits a violent crime will always be a danger to the public

One of the great aspects of my job is witnessing the system when it works. An accused comes into the hospital very ill – psychotic, delusional, their thoughts disorganized and bizarre – but after time and treatment for illnesses such as schizophrenia, the transformation can be astonishing. Some of my clients are unrecognizable when they exit the system.

Prior to coming to the hospital, many of them fell through the cracks of the civil mental health system. They were living in poverty, perhaps homeless, self-medicating with illegal drugs. At the hospital, they are treated with medications, offered education on mental health issues and programs and counselling for drug addiction. They are given opportunities to finish their high school diploma. Before an accused can be discharged, a discharge plan is put together that includes stable housing and being set up with a forensic treatment team in the community.

Long story short, change is possible. I strongly believe that some of my clients are saved by the forensic system. Next time you hear about a high profile accused, think about the other less sensational people living with mental illness, detained and treated in a system geared towards improving their health with a strong emphasis on safety. These people didn’t “get away with it”;  they are fighting a life-long battle for mental health.