The Law Of Mental Medicine

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Let me begin with a few facts that demonstrate the importance of the mental health and the law. A couple of years ago I found myself at a dinner at Rideau Hall in honour of recipients of the Order of Canada. I found myself seated next to a police officer who was in charge of the police precinct in a downtown area of Toronto where people were poor and crime was high.

I expected him to reply that his biggest problem were all those defense-oriented Charter rulings the Supreme Court of Canada kept handing down. But he surprised me. They were people who had committed some offence, usually minor, sometimes more major, for no other reason than the confusion in their disordered minds.

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  8. Perhaps deranged thought processes led them to perceive unfounded grievances which in turn led to abuse or assault. Perhaps irrational compulsion had led them to shoplift something of which they had no need. Perhaps in their confusion they simply found themselves in the wrong place at the wrong time, gratuitously caught up in a violent quarrel.

    Or perhaps some internal vision of horror simply made them scream or shout or create such a nuisance that they had to be removed. Whatever the reason, many such people, the officer told me, were taken into custody and brought to the police station every night. And once there, they posed further problems.

    The ordinary police processes did not fit well with their situation.

    How are the police, who are not doctors or nurses, to deal with continuing acts of derangement? How do they find them lawyers and arrange appearances before judges? In the end, where the initiating incident is not of great consequence, all that can often be done is to keep the mentally ill person for a few hours and then return him to the street, for the cycle to begin all over again.

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    Statistics tell us that one in one hundred people suffer from schizophrenia, with the normal onset for young men at the age of 19 or 20, for young women a little later. Other mental disorders are even more common. Some of these disorders are extremely prevalent among individuals involved in the criminal justice system.

    Footnote 1. So the facts are clear.

    Medicine and the Law: the Challenges of Mental Illness

    Mental health is a huge and all-too-common problem. It saps our society and our economy. It affects people from every walk of life and every social rank. It is no respecter of persons. And perhaps more than any other health problem, it engages the legal system in a host of different ways.

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    The most obvious way mental illness impacts on the law and vice versa is in the domain of the criminal law, of which I spoke a moment ago. But mental illness also raises thorny legal problems on the civil law side, relating to incapacity and consent to treatment.

    Today I would like to canvas these problems with you. As we will see, the law has moved from a position of virtually ignoring mental health to active engagement with the issues it raises. We are at the beginning of a vital and fascinating chapter in the saga of legal medicine — one that engages the major philosophical concerns of the law. One cannot go very deeply into mental health issues without encountering the big questions. When is it just to hold a person responsible for criminal acts?

    Mental Health Rights | Mental Health America

    Can the law limit the right to refuse hospitalization and medical treatment, and if so, where do the limits lie? What rights do family and society have to impose treatment? And what obligation do we, the healthy, owe to our less fortunate brothers and sisters? Before we get to these questions, however, a brief retrospective is in order. The law, as I suggested a moment ago, has not always been much concerned with mental illness. Even a brief glance at history demonstrates that mental illness, like war and poverty, has always been part of the human condition. Yet the history of the law does not show a parallel preoccupation with the rights and responsibilities of the mentally ill and of society toward them.

    Rather, until the 19th century, mental illness was associated with evil. The mentally ill person was possessed of the devil or evil spirits. The mentally ill person was a witch, consumed by Satan and devoted to his evil works. The mentally ill person was, at very least, a deviant, substandard model of the human species which for some good reason God in His justice had chosen not to endow with normal mental habits.

    In short, mental illness was largely a religious matter, which the law and medicine could safely ignore. To this general pattern of neglect there was one exception. It is difficult to draw conclusions about early legal attitudes to the mentally ill because of the lack of records and diagnosis.

    It is difficult to say with scientific accuracy whether this or that person whom the law chose to condemn to execution was mentally ill. We do know, however, that from medieval times to the 19th century, the law tried and punished, often by death, people who had done no harm, who had broken no laws, simply on grounds that they were different or strange. We also know that people whom our society regards as different or strange often suffer from an identifiable form of mental illness.

    And so we can reasonably surmise that at least some of those condemned and executed as witches or spiritual deviants were mentally ill. Consider the way the law treated Joan of Arc. I do not suggest that Joan of Arc was mentally ill. We simply cannot know. Yet certainly, judged by the standards of her time or ours, she was strange.

    She saw visions. She heard voices. She felt compelled to follow the commands of those voices. And these characteristics led her to act in a way which, judged by the standards of the time, was unthinkable for a woman. Propelled by her voices and visions, she convinced the Dauphin of France to give her an army and led that army to victory against the English oppressor.

    She became a great hero, indeed a saint in the eyes of many. But her strangeness, even in a day when visions were accepted as religious manifestations, could not go unpunished. And so medicine and the law were called in. The medical line of inquiry was premised on the assumption that no chaste woman could act as Joan of Arc acted. Therefore, she must have joined the troops to satisfy her carnal impulses. Apparently, she passed all tests without difficulty. Medical means of condemnation having failed, the heavy guns of the law were brought to bear.

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    Joan of Arc was charged with the practice of witchcraft and brought to trial. The letter of the law was followed to a tee. The trial was conducted with scrupulous attention to the law and its procedures. The proceedings were lengthy and recorded, unusual for the time. Joan of Arc mounted a valiant defence.

    Yet despite the fact that no one could show she had broken any law or harmed any person except the English, which was permissible, she was condemned and burned at the stake. Whether Joan of Arc was mentally ill or simply a spirited woman, her story tells us much about how the law and medicine treated perceived mental aberration in the 15th century. Deviation form the ordinary mental and behavioral path was regarded as inherently evil. The task of medicine, insofar as it was called in at all, was to seek out physical reasons for the deviance.