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What Happens Inside the Forensic Mental Health System?

What Happens Inside the Forensic Mental Health System?

The Forensic Mental Health System in Ontario: An Information Guide

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The Criminal Code of Canada and the Mental Health Act

The rules for Canada's criminal justice system are set out in the Criminal Code of Canada. The mental health system in Ontario must also obey the Mental Health Act.

People working in the forensic mental health system must balance the rights and needs of an accused person with the rights and needs of the public. And they must obey the laws of Canada and Ontario.

At every stage, from assessment to release, people working in the forensic mental health system must balance: your needs and rights and the public's need for safety.

How do people enter the forensic mental health system?

Police make the community safe and enforce the law. When someone calls the police because of something you did, the police must decide what to do:

  • charge you with an offence and take you to jail
  • take you to the hospital to be assessed
  • release you without charges.

In choosing what to do, the police will talk to you and others involved to find out what happened. They will then:

  • decide if they think you have committed a crime
  • decide if they think you have a serious mental illness
  • think about the safety of the community.

If the police think that you have a mental illness, they may take you to a hospital. You may still be charged with a crime.

Some people do not want to stay in the hospital. The Mental Health Act has strict rules about when people can be hospitalized against their will. If the rules are not met, you cannot be forced to stay in the hospital.

If you do not wish to stay in the hospital, and the rules of the Mental Health Act do not apply to you, the police must decide what to do next. If the police believe you have committed a crime, they may arrest you and take you to a jail or detention centre.

What happens after a person is arrested?

If you are arrested, you should contact a lawyer as soon as you can. To find a lawyer privately, look in the phone book under "Lawyers," or call the Law Society of Upper Canada's Lawyer Referral Service at 1 900 565-4577. There is a small fee for this service.

Legal Aid

If you do not have the money to pay for a lawyer, you can apply for Legal Aid. Legal Aid is a program sponsored by the government of Ontario. It ensures that people who do not have money can still have a lawyer. Based on your financial situation, you may not have to pay anything, or you may have to pay only a small part of the cost of Legal Aid.

You have to apply for Legal Aid. If you are not in jail or in the hospital, you have to apply in person at a Legal Aid clinic. If you are in the hospital, contact the Patient Advocate or Rights Adviser to get help applying for Legal Aid. Applying involves filling out an application form and giving some financial information. If you are approved for Legal Aid, you will get what is called a Legal Aid certificate. You can then contact a lawyer of your choice as long as that lawyer will accept Legal Aid certificates.

For information about applying for Legal Aid:

  • call 416 598-0200 in Toronto, or
  • call 1 800 668-8258 outside the greater Toronto area, or
  • visit the Legal Aid Web site at www.legalaid.on.ca.

Read the section "Patient Advocates and Rights Advisers" for information about contacting a Patient Advocate.

Being held in the hospital

If you go to the hospital (either with police, with family or friends, or by yourself), a doctor will assess you. If the doctor thinks that you need a longer inpatient psychiatric assessment, the doctor will fill out a Form 1. This form is called "Application by Physician for Psychiatric Assessment."

A doctor can only fill out a Form 1 under strict conditions set out in the Ontario Mental Health Act. Find out more about these conditions from a lawyer, a Patient Advocate or a Rights Adviser.

If a doctor fills out a Form 1, you can be kept in the hospital for up to 72 hours, even if it is against your will. This is called involuntary admission. You must have another psychiatric assessment within 72 hours after a Form 1 is filled out. The doctor must decide if you still meet the conditions for involuntary admission.

If the doctor believes that you do not meet the conditions, you can no longer be held in the hospital without your consent. If the police have charged you with a crime, you may be brought to jail or to court. If the doctor believes that you still meet the criteria for involuntary admission, the doctor will fill out a Form 3. This form is called "Certificate of Involuntary Admission." A person can be held in the hospital on a Form 3 for up to two weeks. If the doctor believes that you still meet the criteria for involuntary admission, a Form 4 "Certificate of Renewal" will be used. A Form 4 can be used for as long as you continue to meet the criteria for involuntary admission.

Getting a forensic assessment

If your lawyer, Crown counsel or the judge believes that mental illness was a factor in the crime you are accused of, that person will ask for a forensic assessment. This assessment is designed to answer specific questions, which are set out in the Criminal Code of Canada.

You cannot be sent for a forensic assessment just because you seem to be ill. Evidence must be given to the court to support an order for a forensic assessment.

Most often, the forensic assessment is ordered to find out:

  • whether you are Fit to Stand Trial, or
  • whether you are criminally responsible for your actions.

Other special types of forensic assessment include pre-sentence assessments and dangerous or long-term offender assessments.

Determining Fitness to Stand Trial

Your lawyer, Crown counsel or the judge will ask for a forensic assessment if they think that mental illness might prevent you from taking part in the court proceedings. The court proceedings include hearings, trials and any other part of the legal process. People who are able to take part in the proceedings are referred to as "Fit." People who are not able to take part are referred to as "Unfit." The issue of fitness can be raised at any time from arrest to sentencing.

The Criminal Code of Canada states that you are Unfit if, because of a mental illness:

you cannot understand the nature, object or consequences of what happens in court,

OR

you are unable to communicate with and instruct your lawyer.

Having a mental illness does not necessarily mean that you are Unfit to Stand Trial. The court decides whether you are Fit or Unfit. Psychiatrists and other mental health professionals do forensic assessments to help the court make this decision.

To decide that you are Fit to Stand Trial, the judge must believe that you are able to do the following:

  • You must be able to describe the roles of the people in a courtroom, such as the Crown counsel, the defence counsel (your lawyer) and the judge.
  • You must have a general understanding of what happens in court. For instance, you must understand what the possible verdicts (or outcomes) are and what an oath is.
  • You must be able to instruct your lawyer and take part in your own defence.

Fitness to Stand Trial and Treatment Order

If you are Unfit to Stand Trial, a judge might order you to be treated with medication to make you Fit. This is called a Treatment Order. If you are under a Treatment Order and you refuse to take medication, it may be given to you in an injectable (needle) or other form.

If you are under a Treatment Order, you will stay in the hospital. The order usually lasts up to 60 days. If you are Fit by the time the order expires, you will go back to court to face your charges. If you are still Unfit when the order expires, you will likely be placed under the authority of the Ontario Review Board (ORB).

Determining Criminal Responsibility

Your lawyer, Crown counsel or the judge will ask for a forensic assessment if any one of them thinks that mental illness might have affected your actions at the time you committed a crime. If you did not understand what you were doing or did not know it was wrong because of mental illness, you could be found "Not Criminally Responsible" (NCR).

Having a mental illness does not necessarily mean that you are NCR. The court decides whether you are NCR. Psychiatrists and other mental health professionals do forensic assessments to help the court make this decision.

The Criminal Code of Canada states that you are "Not Criminally Responsible" (NCR) for an offence if a mental disorder prevents you from:

appreciating the nature of your actions

OR

knowing that your actions were wrong.

If you are found NCR, it means that the court believes you did do something illegal. However, because of your mental illness, the court finds that you should not be held responsible under the law. NCR used to be called "Not Guilty by Reason of Insanity." You may have heard people talking about the "insanity defence" or "pleading insanity" on television and in the movies. In Canada, we now call this "Not Criminally Responsible."

NCR refers to your mental state only at the time an offence occurred.

What Happens During a Forensic Assessment?

You might be assessed by a forensic psychiatrist in jail, at the courthouse or in a hospital. Usually, a forensic psychiatrist will talk to you and ask questions. The forensic psychiatrist may also interview members of your family and support network. There may also be medical and psychological testing.

Some assessments (usually for Fitness) occur right in the courthouse. Some cities have a Mental Health Court that deals only with cases where mental illness is a factor.

Some courthouses have a Court Support Program. If your offence is considered minor you may be eligible for "diversion" out of the criminal justice system. The program will help you find support and treatment in the community.

Assessments in the forensic unit of a psychiatric hospital are called inpatient assessments. If you are in a jail or detention centre and the court orders an inpatient assessment for you, you will be transferred directly from the detention centre. You will still be "in custody," that is, under the control of the court, during the assessment. You will be returned to the detention centre or go directly to court when the assessment is done.

During the assessment, you might see psychiatrists, nurses, social workers, recreation therapists and psychologists. They are your assessors.

After the assessment is done, the forensic psychiatrist will usually write a report for the court. The psychiatrist or any other assessor might also testify in court.

A psychiatrist who is doing a forensic assessment is working for the court to help answer questions about your mental condition. The psychiatrist is not for or against you. Forensic psychiatrists simply try to find out all they can, so that they can give an informed opinion to the court.

Whatever you tell a forensic psychiatrist and the other professionals assessing you is not confidential. The assessors can report any information that you give them to the court.

Refusing to take part in a forensic assessment

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. Any information they do give could also be used in court. In some cases, family members decide to contact the assessors on their own. They do this if they feel they have information that will help the assessors understand your situation better.

Even if you decide not to take part in the assessment, the forensic psychiatrist must still report to the court. He or she must respond to the question the court has asked. For example, "Is this person Fit to Stand Trial?" or "Is this person criminally responsible?"

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.

The Court's Decision

Based on the forensic assessment, the judge will make a decision. If the court finds that you are Fit to Stand Trial, you will continue to face your charges in court.

If the court decides that you are Unfit or “Not Criminally Responsible” (NCR), the court may hold a disposition hearing to determine what will happen to you next. If the court does not hold a disposition hearing, you will be placed under the authority of the Ontario Review Board (ORB), who will then be responsible for holding the disposition hearing.

If you have been found NCR by the court, you will then be given one of the following three orders at your disposition hearing:

  • an absolute discharge
  • a conditional discharge
  • a detention order.

(All of these terms are described in Chapter 4.)

If you have been found Unfit by the court, you may be given a conditional discharge or a detention order at your disposition hearing, but you will not be able to get an absolute discharge.

If you are given a conditional discharge or a detention order at your disposition hearing the ORB will make longer-term decisions about what level of security and types of privileges you will be given. You will continue to have disposition hearings with the ORB once a year as long as you are under the authority of the ORB. We will talk more about this in the section called “The Ontario Review Board.”

The Forensic Mental Health System in Ontario: An Information Guide

  1. Introduction
  2. Who works in the forensic mental health system?
  3. What happens inside the forensic mental health system?
  4. The Ontario Review Board (ORB)
  5. Accepting or refusing treatment in the forensic mental health system
  6. Living in a forensic mental health setting
  7. Family, friends and the forensic mental health system
  8. Leaving the forensic mental health system

Conclusion

Glossary

Where to go for more information

CAMH Switchboard 416-535-8501
CAMH General Information Toronto: 416-595-6111 Toll Free: 1-800-463-6273
Connex Ontario Help Lines
Queen St.
1001 Queen St. W
Toronto, ON
M6J 1H4
Russell St.
33 Russell St.
Toronto, ON
M5S 2S1
College St.
250 College St.
Toronto, ON
M5T 1R8
Nine offices across Ontario