A Valuable (and Ongoing) Study, the National Trajectory Project Addresses Many Myths about the Verdict of Not Criminally Responsible on Account of Mental Disorder

Without a doubt, politicians of whatever stripe should be permitted to determine public policy based on personal preferences and party positions. Shift tax burdens to different income groups? Change the legal age for purchase of alcohol (or marijuana)? Impose additional conditions on new, young drivers? People elected to make decisions about legislative interventions should feel free to do so based on whatever variables matter to them. What is particularly frustrating to at least some of us from a more scientific and less political background is when major policy changes occur in the absence of—and sometimes directly contrary to—what quality research has shown to be the current truth. For example, in early 2013, the federal government introduced what was then Bill C-14, amending the mental disorder provisions of the Criminal Code and the National Defence Act, specifically those provisions relating to people found not criminally responsible on account of a mental disorder (NCRMD). The changes included the introduction of a new high-risk accused category, which, when imposed by a court after a finding of NCRMD, limits that person’s access to community treatment supports and a review board’s (RB’s) discharge options. One factor, among several, to be considered by the court is the brutal nature of the act perpetrated by the accused person in the alleged offence. Passed and proclaimed (as Bill C-54 when reintroduced later in 2013), the new rules came into effect on July 11, 2014. In some ways, this legislation played into certain beliefs about NCRMD, among them the notions that most NCRMD cases involve serious personal violence, that the verdict is used far too frequently (and conveniently, as when someone wishes to fake a mental illness to avoid punishment), and that, after a brief period of hospitalization, those found NCRMD are released back to the community where they promptly reoffend. What stood out most in the debate about the bills was the near-complete lack of discussion of any data addressing the key elements of the legislation. Certainly, Latimer and Lawrence1 had, in 2006, told us that the verdict of NCRMD is actually quite rare (occurring, they said, in 1.8 per thousand criminal cases per year in Canada). Nonetheless, little was known about the types of cases in which the verdict is found, the characteristics of people found NCRMD (for example, prior mental health histories, prior criminal histories, primary diagnosis, relationship and housing status, sex, and Aboriginal status), the lengths of hospitalization and treatment in the community, and the occurrence of recidivism. Then, along came the results of the National Trajectory Project (NTP), which provided the data that underscore 5 of the papers included in this issue of The Canadian Journal of Psychiatry.2–7 Described by the thoroughly dedicated Dr Anne G Crocker and her brilliant colleagues (particularly Dr Tonia L Nicholls, Dr Michael C Seto, and Dr Gilles Cote, ably accompanied by Yanick Charette, Dr Catherine M Wilson, Leila Salem, and Dr Malijai Caulet) as the “first longitudinal cohort study comparing provincially representative samples of NCRMD–accused people”3, p 103 to have been undertaken since the 1992 changes to the mental disorder provisions of the Criminal Code, the NTP gave us (and the government, which, through Justice Canada, sought early access to the data) a detailed picture of the verdict, its people, their histories, and their outcomes. For example, we now know, from this comprehensive review of 1800 patient files in Quebec, Ontario, and British Columbia, that marked provincial differences exist in the overall rates of NCRMD cases (Quebec having proportionately many more) and in changes to those rates (with Quebec increasing and British Columbia decreasing). Additionally, we now know that a person found NCRMD in Ontario is more likely to be under RB supervision for a longer period than in Quebec and British Columbia, and is more likely to remain in hospital while under supervision. Moreover, we now also know that no statistically significant differences exist between provinces regarding the proportion of NCRMD–accused people who had a history of prior mental health hospitalizations and regarding sex distributions of NCRMD–accused people. We now know that 51% of this large sample had no prior criminal convictions before the incident giving rise to the finding of NCRMD, but that 72% had at least 1 prior mental health hospitalization (and an average of 3 hospitalizations when looking only at people who had a mental health history). We now know that while most (65%) of the underlying index offences involved acts against a person, family members of the accused person (and often the parents of the accused person) were the most common target, followed by police and mental health workers. Strangers were a relatively infrequent target (being the victims in 22.7% of those offences against a person). We now know that 3.2% of the index offences resulted in the death of the victim. Further, we now know that women accounted for 15.6% of the NCRMD population, and that Aboriginal heritage was identified in just 2.9% of cases. (In the parliamentary debates, no politician ever mentioned the potentially different needs of women and Aboriginal NCRMD–accused people.) Three-quarters of the sample group was on government assistance at the time of the index offence and 1 in 10 was homeless. We now know that the most common primary diagnosis was a psychotic spectrum disorder, with one-third of the sample having a co-occurring substance abuse problem. We now also know that there are some key sex differences that may inform treatment choices, with women being more likely (than men) to be diagnosed with a mood disorder or a personality disorder, but also being less likely to have a prior criminal history, less likely to offend against strangers, and more likely to be older at their first offence against a person. Regarding gender differences, then, women show fewer of the identified risk factors for recidivism, thus they may be at lower risk of reoffending when back in the community. However, we know that formal risk assessments occur in only a small minority (17%) of cases. And, finally, regarding recidivism, the NTP found a re-conviction rate of 16.7% during a 3-year follow-up period, with the time frame starting at the date of the NCRMD verdict. Quebec, with the lowest median offence severity, had a higher recidivism rate than the 9.5% and 9.3% figures found in British Columbia and Ontario, respectively. During the entire follow-up period, ranging up to 8 years in some cases, a total of 13 cases of severe violent reoffence were identified from the 1800-patient sample (0.7%). People whose verdict of NCRMD stemmed from a serious, violent offence actually had the lowest 3-year recidivism rate—for any type of reoffence—(6.0%) of all groups. The primary diagnosis was not found to significantly influence risk of reoffending, but substance abuse, the presence of a co-occurring personality disorder (seen in 10% of the sample), and a prior conviction or finding of NCRMD were relevant factors that enhanced risk. In short, an informed debate about the legislation would have considered that most people who are NCRMD-accused have not committed offences involving serious violence, that the brutal nature of the offence tells us nothing about the risk of recidivism, that most people found NCRMD are already known to the civil mental system and are on government financial assistance (which easily could see other forms of assistance being added on), and that, measured by recidivism rates that are lower than those seen for people being released from jails and prisons, RBs (relying on the evidence put before them by dedicated mental health professionals working with people who are NCRMD-accused) seem to be doing a very good job of determining when conditions should be altered. Given the observed differences across the 3 study provinces, we should be cautious about assuming that national statistics accurately measure local circumstances. Adding information from the Prairie and Maritime provinces could enhance our understanding of the Canadian realities around people found NCRMD. Following up to see the impact of the new legislation could be another fruitful avenue of future study. Further research is already under way with the NCRMD population, looking at positive outcomes (for example, family reunification) and protective factors, such as social support. Since time immemorial, criminal law systems have considered the simple idea that an accused person should not be convicted when their illegal behaviour stemmed from a disease of the mind. A truly safe society does not change that established principle by incarcerating people with mental disorders—or by further stigmatizing them—but, rather, ensures that procedures are in place to protect both the individual and the public. What these papers2–7 and the NTP give us is an exceptionally valuable picture of how the processes surrounding NCRMD have been working. The answers are very much worth reading.

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