Psychiatry: The Science
1.1 Legal Definition of Forensic Psychiatry
Forensic psychiatry is narrowly defined as a subspecialty concerned with the application of psychiatry to law, including criminal responsibility and fitness to stand trial . More broadly defined, forensic psychiatry is an area of specialization that, with respect to criminal law, involves the assessment and treatment of those who suffer from a mental disorder and whose behaviour has or may lead to offending. At the behest of the courts, a forensic psychiatrist provides services to help facilitate the adjudicative process, including assessing criminal responsibility and/or determining an accused’s fitness to stand trial .
In accordance with s. 672.11 of the Criminal Code, a court may order a psychiatric assessment of an accused if it has reasonable grounds to believe that such evidence is necessary to determine (a)whether the accused is unfit to stand trial; (b) whether the accused was, at the time of commission of the alleged offence, suffering from a mental disorder so as to be exempt from criminal responsibility; (c)the appropriate disposition to be made where the accused has been found unfit to stand trial or not criminally responsible on account of mental disorder; or (d) whether an order should be made to stay proceedings where the accused has been found unfit to stand trial . Pursuant to s. 672.12 of the Criminal Code, a court may make an assessment order at any time during the proceedings either of its own motion, on application of the accused, or on application of the prosecutor .
1.2 Basic Terminology and Classification
A verdict of not criminally responsible – or NCR – means that an accused is not responsible for committing a criminal act or omission while suffering from a mental disorder, as this would have rendered him or her incapable of appreciating the nature and quality of the criminal act or omission, or of knowing that it was wrong . This verdict may be sought using the defence of mental disorder found under s. 16 of the Criminal Code .
As defined in s. 2 of the Criminal Code, where an accused is found unfit to stand trial, this means that he or she, on account of mental disorder, is unable to conduct a defence at any stage of the proceedings before a verdict is rendered or to instruct counsel to do so. Essentially, the unfit individual must be unable to communicate with counsel or understand the nature or object of the proceedings and the possible consequences of the proceedings .
Forensic psychiatrists may also assist courts with establishing offender designations, includingDangerous Offender or Long-Term Offender status. An individual convicted of a particularly violent or sexual crime may be designated a dangerous offender during sentencing if the court is satisfied that the he or she is a threat to the life, safety, or physical or mental well-being of the public. Where an individual is designated a dangerous offender, he or she may be sentenced to an indeterminate period of imprisonment .
Long-Term Offender status was developed to address sexual and violent offenders who require specific attention but do not meet the criteria for a dangerous offender designation. This status is given to those who are convicted of serious personal injury offences and are likely to reoffend. Unlike dangerous offenders, however, it is believed that long-term offenders can be managed through a regular prison sentence and a term of federal supervision in the community after release, which can run as long as 10 years .
2.0 Fitness to Stand Trial
2.1 Fitness Interview Test-Revised
Structured clinical guides allow forensic psychiatrists to consider several variables when assessing risk, mental disorder, and fitness. This type of assessment is based on the idea that much has been learned over time about the factors that should be taken into account when conducting risk, fitness and other assessments. Structured clinical guides typically define terms, list questions to ask during the assessment, and suggest methods of scoring .
The Fitness Interview Test-Revised, or FIT-R, is a structured clinical interview and the leading procedure used by forensic psychiatrists and other mental health professionals to evaluate fitness to stand trial. It is meant to distinguish defendants who are clearly fit to stand trial from those who are not. The interview takes approximately 30 minutes, and it is divided into the following three sections: (a)understanding the nature and object of the proceedings (ie. factual knowledge of criminal procedure);(b) understanding the consequences of the proceedings (ie. appreciation for one’s personal involvement in and importance of the proceedings); and (c) the ability to communicate with counsel .
The interview begins with four background questions (ie. Do you have a lawyer?). This is proceeded by a chain of 70 questions grouped under the headings listed above. An outline of the questions asked as well as the general structure of the interview is produced below:
Section I: Understanding the Nature or Object of the Proceedings
- Understanding of Arrest Process (5 questions)
- Understanding of the Nature and Severity of Current Charges (5 questions)
- Understanding of the Role of Key Participants (9 questions)
- Understanding of the Legal Process (4 questions)
- Understanding of Pleas (8 questions)
- Understanding of Court Procedure (5 questions)
Section II: Understanding the Possible Consequences of the Proceedings
- Appreciation of the Range and Nature of Possible Penalties (4 questions)
- Appraisal and Understanding of Available Legal Defences (3 questions)
- Appraisal of Likely Outcome (3 questions)
Section III: Communicate with Counsel
- Capacity to Communicate Facts with Lawyer (3 questions)
- Capacity to Relate to Lawyer (5 questions)
- Capacity to Plan Legal Strategy (6 questions)
- Capacity to Engage in Own Defence (3 questions)
- Capacity to Challenge Prosecution Witness (2 questions)
- Capacity to Testify Relevantly (2 questions)
- Capacity to Manage Courtroom Behaviour (3 questions) 
When the interview is finished, examiners rate each response on a scale of 0-2, with 0 indicating little or no impairment of ability, 1 indicating moderate impairment of ability, and 2 indicating severe impairment of ability. The examiner then forms an overall judgment of fitness and indicates whether the individual is (a) fit; (b) questionable; or (c) unfit. The FIT-R system does not provide any formulas or guidelines for arriving at a final judgment, making the process more subjective than objective .
3.0 Defence of Mental Disorder
3.1 Diagnostic and Statistical Manual of Mental Disorders IV
Actuarial instruments are used to assess mental disorder with reference to empirical research between historical data and diagnosis. These instruments are based on the idea that if accurately predicting a patient’s disorder is the most important factor, then it is best to examine how members of a comparable group of individuals and patients have conducted themselves over time. This is achieved by performing comprehensive research on a particular group over a set duration. A key aspect of actuarial instruments is that a patient’s results can be compared with mass statistical reference data . This actuarial, or statistical method is very objective, as the human judge is eliminated and conclusions rest solely on empirically established relations between data and the person of interest. Actuarial instruments allow mental health professionals to predict mental disorder and violent behaviour with better than chance accuracy, though they are not perfectly reliable .
The Diagnostic and Statistical Manual of Mental Disorders, 4th edition, or DSM-IV, is the leading actuarial method used by psychologists and psychiatrists to diagnose mental disorder. It is a manual published by the American Psychiatric Association, and it covers all categories of mental health disorders in both adults and children . The DSM-IV details more than 250 disorders, and each is accompanied by a set of diagnostic criteria and text containing information about the disorder, such as associated features, prevalence, familial patterns, age, culture, gender specific features, and differential diagnosis. The manual is non-theoretical and focuses on describing symptoms, providing statistics, and highlighting common treatments. Mental health providers and experts use the DSM-IV as a tool for assessing and diagnosing disorders as well as better understanding the patient’s needs .
The DSM-IV uses a multi-axial system of classification, which means that diagnoses are made on several different axes or dimensions. The DSM-IV has five different axes. This multi-axial approach allows mental health experts to make a comprehensive evaluation of a patient’s level of functioning, as mental illness will usually impact on many areas of life .
Axis I focuses on the patient’s primary diagnosis. This section of the manual provides detailed information and statistics on mental disorders, and it describes clinical symptoms that may cause significant impairment. Disorders are grouped into different categories, including adjustment disorders, anxiety disorders, and pervasive developmental disorders.
Axis II concentrates on any long-standing personality problems and/or mental retardation. This stage of the assessment addresses long-term issues that are sometimes overlooked in the presence of Axis I disorders. Personality disorders may cause significant problems in how a patient relates to the world, and such disorders include antisocial personality disorder and histrionic personality disorder. Mental retardation is characterized by intellectual impairment and deficits in other areas such as self-care and interpersonal skills.
Axis III takes note of any medical conditions that might affect the patient psychologically. These include physical and mental conditions that may influence or worsen Axis I and Axis II disorders. Such conditions may include HIV/AIDS and past or present brain injuries.
Axis IV focuses on any significant psychosocial or environmental problems experienced by the patient, specifically those that may worsen Axis I or Axis II disorders. These problems may include such things as unemployment, relocation, divorce, or the death of a loved one.
Axis V provides a global assessment of the patient’s level of functioning. This axis allows the mental health expert to rate the patient’s overall level of functioning. Based on this assessment, mental health providers and experts can better understand how the other four axes are interacting and the effect this is having on the individual’s life .
Diagnostic criteria provides a common language for clinical communication, and its use has been shown to increase diagnostic agreement between medical health providers and experts. Moreover, the manual describes mental disorders strictly in terms of patterns of symptoms that tend to cluster together. These symptoms can be observed by medical experts or reported by the patient or family members. Because it focuses on manifest symptoms and less on theory, experts with vastly differing views may use the DSM-IV. That said, it is important to understand that only those who have received specialized training and possess sufficient experience are qualified to diagnose and treat mental illness .
4.0 Dangerous Offender Designation
4.1 Historical, Clinical, Risk Management-20
The Historical, Clinical, Risk Management-20, or HCR-20, is an evaluation that combines semi-structured interviews with the offender, reviews of collateral file information, and interviews with other persons such as probation officers, psychologists, and family members to help mental health professionals estimate a person’s probability of future violence. This assessment tool also helps professionals determine how to treat and manage potentially violent, mentally disordered individuals, including parolees and forensic mental health patients . For example, if an individual is standing trial for a serious personal injury offence, a judge might order that assessments such as the HCR-20 be performed. The results of the evaluation may be used to establish the offender’s potential to commit future violence, how a court should proceed, and what kind of facility the individual might require.
The HCR-20 consists of 20 probing questions about the person being evaluated for violence. The mental health professional gathers qualitative information about the person being assessed, and the results are used to make treatment and management decisions. The evaluation consists of three main areas:historical, clinical, and risk management. The HCR-20 rates the findings in each area on a scale of 0-2, with a rating of 0 suggesting that the individual is not a risk; a rating of 1 suggesting that the individual is a possible but less serious risk; and a rating of 2 suggesting that the individual is a definite and serious risk .
The historical section of the evaluation focuses on the offender’s past and requires that the test administrator do an exhaustive review of background documents, interview persons who know the individual being assessed, and complete the Hare Psychopathy Checklist, which is a diagnostic tool used to rate a person’s psychopathic or antisocial tendencies. The historical section is the crux of the evaluation and includes the following 10 focus areas:
- previous violence by the offender;
- young age at first violent incident;
- problems with substance use/abuse;
- relationship instability suffered by the offender;
- employment problems encountered by the offender;
- major mental illness, such as schizophrenia or bipolar disorder;
- psychopathy, defined as personality traits that deviate from social norms;
- early maladjustment or exposure to family and social disruptions during childhood;
- personality disorders the offender might suffer from, including paranoia; and
- failure to respond to or comply with previous clinical supervision or treatment .
The clinical section of the evaluation records current symptoms and requires a clinical interview between the person being assessed and the mental health professional, wherein the professional also exercises some judgment. The clinical section consists of 5 focus areas:
- negative attitudes;
- unresponsiveness to treatment;
- active symptoms of major mental illness; and
- lack of insight, or difficulty understanding cause and effect .
Lastly, the risk management section of the evaluation takes into account the results of the previous sections and addresses the possibility of release, potential treatment plans, and necessary services and support. The risk management section contains 5 focus areas:
- stress endured by the offender;
- lack of personal support for the offender;
- the offender’s own recovery plans lack feasibility;
- refusal to attend counseling sessions or take medications; and
- exposure to destabilizers (drugs, alcohol, lack of family and social support, etc.) 
The HCR-20 does not allow for a definite prediction of violence. Predictions are based on the likelihood of violence and should be presented in terms of a low, moderate, or high probability of violence. Probability levels must be considered in relation to relevant factors the individual may encounter, including factors that may aggravate or help mitigate the risk of violence. Consideration of these factors may aid in reporting the type and the extent of risk presented and in selecting an appropriate risk management plan. Ultimately, the HCR-20 is intended to provide information to decision makers so that criminal and mental health decisions can be based on the best available assessments of violence and dangerousness .
The most common instruments used by forensic psychiatrists to assess risk of violence and dangerousness are the Historical, Clinical, Risk-20 (HCR-20) described above, the Hare Psycopathy Checklist Revised (PCL-R), and the Violent Risk Appraisal Guide (VRAG).
4.2 Sexual Violence Risk-20
Incidences of sexually violent offences have increased over the previous decade, and the long-term management of sex offenders has become a primary goal of the criminal justice system. Sex offenders are 10 times more likely to be re-arrested for another violent sexual crime than individuals convicted of other crimes. Forensic psychiatrists are often asked to evaluate individuals accused or convicted of violent sexual offences for several reasons, including the assessment of dangerousness, risk for recidivism, involuntary commitment, inclusion in a provincial sex offender registry, competency, and criminal responsibility .
Like most forensic evaluations, the assessment of sexual offenders involves performing comprehensive psychiatric evaluations, reviewing available police reports and criminal history, and contacting collateral sources to verify information provided by the accused. In addition, the accurate assessment of individuals involved in sexual crimes requires a detailed sexual history and careful evaluation for deviant sexual arousal patterns. Sexual assessment manuals and questionnaires are usually used as a guide to assist in the clinical assessment of sexual history, behavioural patterns, and future risk of sexual violence .
The Sexual Violence Risk-20, or SVR-20, is a checklist of risk factors for sexual violence identified through a review of the literature on sex offenders. It was developed to improve the accuracy of risk assessments, and it provides professionals with a structured evaluation for estimating risk of sexual violence and determining risk management plans. The SVR-20 was designed to (a) make risk assessments more systematic; (b) increase agreement among evaluators; (c) provide detailed guidelines grounded in scientific literature; (d) assist in the planning and delivery of interventions; and (e) objectively evaluate the adequacy of risk assessments. The SVR-20 is also rooted in the following principles:
- the importance of gathering a depth of information about the examinee’s personal, social, occupational, mental health, illegal, and other relevant behaviour;
- the importance of gathering information using a variety of sources and methods, including record reviews, interviews, and psychological and medical techniques;
- the importance of gathering information from the examinee, his or her relatives and acquaintances, the victim(s), professionals who have interacted with the examinee, and any other sources likely to yield useful information;
- the importance of considering the examinee’s history and exposure to risk factors;
- the importance of critically weighing the accuracy, credibility and applicability of the data that has been gathered about the examinee; and
- the importance of ongoing and regular risk assessments for examinees .
Developed as an assessment tool for use in criminal forensic contexts, the SVR-20 is commonly relied on in cases where an individual has committed, or is alleged to have committed, an act of sexual violence. The manual specifies which risk factors should be considered and how assessment should be conducted. There are 20 factors in total, and they fall into three major sections: psychosocial adjustment, history of sexual offences, and future plans. The psychosocial adjustment section includes 11 risk factors to consider:
- sexual deviation;
- victim of child abuse;
- major mental illness;
- substance use problems;
- suicidal/homicidal ideas;
- relationship problems;
- employment problems;
- past non-sexual violence offences;
- past non-violent offences; and
- past supervision failure .
The sexual offences section includes seven risk factors:
- high-density sex offences;
- multiple sex offence types;
- physical harm to victims in sex offences;
- escalation in frequency and severity of sex offences;
- extreme minimization or denial of sex offences; and
- attitudes that support or condone sex offences 
The future plans section consists of two factors:
- the offender lacks realistic plans; and
- the offender has negative attitude towards intervention .
Now, the SVR-20 does not allow for the definite prediction of sexual violence. Risk of sexual violence depends on the combination of risk factors present in a specific case. The mental health professional must determine the presence or absence of each factor and issue a summary judgment of the level of risk using a rating of low, moderate, or high. Although authors did not provide guidelines for deciding on an appropriate rating, they did recommend five questions to consider in determining the degree of risk. Normally, answers to these questions are fashioned in the form of a report to be sent to those responsible for making decisions about the examinee. The recommended questions are produced below:
- What is the likelihood that the individual will engage in sexual violence, if no efforts are made to manage the risk?
- What is the probable nature, frequency, and severity of any future sexual violence?
- Who are the likely victims of any future sexual violence?
- What steps could be taken to manage the individual’s risk for sexual violence?
- What circumstances might exacerbate the individual’s risk for sexual violence? 
Other evaluations include the Sex Offender Risk Appraisal Guide (SORAG), the Sex Offender Needs Assessment Rating (SONAR), the Static-99, and the Rapid Risk Assessment for Sex Offence Recidivism (RRASOR).
4.3 Penile Plethysmograph
Given the obvious motivation to hide true arousal patterns when an individual commits a sexual offence, forensic psychiatrists are increasingly turning towards objective measures of determining sexual arousal in an attempt to improve the accuracy of sexual arousal assessments .
These measures include psychophysiological assessment techniques like penile plethysmography, which provides a means of determining sexual arousal by measuring increases in penile volume or circumference in response to visual cues (slides) or auditory cues (stories). The technique is commonly used in North America, where it has largely been limited to hospitals and prisons in the context of sex offender treatments .
Penile plethysmography test results are commonly used to characterize patterns of deviant sexual arousal, develop treatment plans, and monitor the effectiveness of treatment. Its use, however, has been criticized for its lack of standardized testing and scoring methods, as well as its vulnerability to manipulation. Suppressing penile arousal or initiating erections to normal sexual stimuli can be problematic, as manipulation of true arousal patterns compromises the evaluation and may result in inaccurate risk assessments. Despite its limitations, penile plethysmography is generally considered by medical health professionals to be the most accurate and objective measure of sexual arousal patterns .
In R v J-LJ , the Supreme Court of Canada held that penile plethysmography is still novel science, and that testing is still evolving. Penile plethysmography has been used more as a therapeutic tool than a forensic tool in Canada, and so courts must subject it to special scrutiny. That penile plethysmography has proven useful during therapy sessions and in determining treatment plans does not make it sufficiently reliable to be used in a court of law when identifying or excluding a person as a potentially dangerous offender. A case-by-case evaluation is therefore necessary in light of constantly evolving scientific knowledge .
5.0 Long-Term Offender Designation
5.1 Risk of Recidivism
While prior convictions are not vital to a long-term offender designation, most long-term offenders have a criminal record . As a result, experts from the Correctional Service of Canada (the “CSC”) are usually asked to provide information to courts with respect to an offender’s previous treatment participation and behaviour while incarcerated. CSC staff may be subpoenaed to courts to discuss the contents of an offender’s file and provide information on treatment and programs undergone by the offender. The CSC assesses the risk posed by every offender who receives a custodial sentence at a federal institution . Many tools are used by corrections workers to assess risk, specifically the Offender Intake Assessment process and the Statistical Information on Recidivism scale.
In addition, CSC members are given risk assessment training, and they are kept informed about recent developments in risk research and assessment tools. The training carries a social-psychology perspective and attributes behaviour to a mix of environmental and personal factors. Assessments are made by examining such things as the offender’s behavioural history, immediate situation, outlook on life, and social supports in the community. The CSC sometimes turns to forensic psychiatrists for recommendations .
The Offender Intake Assessment, or OIA, is an information gathering tool used to predict the risk of recidivism, as well the treatment and program needs of the offender. The OIA adopts a multi-disciplinary approach and integrates information gathered from a variety of sources. At the beginning of an offender’s sentencing hearing, case managers compile all relevant information about the offender from numerous sources, including police officers, courts, victims, family members, and corrections workers . The OIA helps predict the risk of recidivism by assessing six areas with respect to the offender:
- post-sentence community assessment (gathering information about the offender from friends, family, employers, and other members of his or her community);
- initial assessment (screening for immediate physical and mental health issues);
- criminal risk assessment (offence severity, sex offender history, criminal record);
- case needs identification (focuses on the presence or absence of employment, marital and family support, social interaction, substance abuse, positive attitude and response to treatments, and community involvement in the offender’s life);
- psychological assessment (cognitive functioning, personality disorder, etc.) ; and
- supplementary assessments (educational, substance abuse, etc.) 
The presence or absence of these factors may aggravate or mitigate risk of recidivism. The end product of the OIA is a summary report about the offender. The report contains an overall rating of reintegration potential ranging from low to high, a custody rating designation ranging from minimum to maximum security, a complete social history, and recommendations for treatment plans . These reports may be provided to courts overseeing an application for long-term offender status.
Similarly, the Statistical Information on Recidivism scale, or SIR, is an actuarial and information gathering tool used by the CSC to facilitate the evaluation of risk. The SIR pioneered the use of actuarial risk instruments in Canada and is used to conduct extensive review of an individual’s background based on 15 risk-related items, including:
- the offender’s current offence (severity of the offence, number of offences, etc.);
- age at admission (age of the offender upon being incarcerated for the offence);
- previous incarceration (refers to a custodial sentence previously carried out);
- revocation or forfeiture (revocation of day parole or full parole decisions);
- act of escape (escape or attempted escape from a correctional facility, court, etc.);
- security classification (minimum security, maximum security, etc.);
- age at first adult conviction;
- previous convictions for assault;
- marital status at most recent admission (includes same-sex and common law);
- interval at risk since last offence (length between release and re-incarceration);
- number of dependants at most recent admission (focuses on children);
- current total aggregate sentence;
- previous convictions for sex offences;
- previous convictions for break and enter; and
- employment status at arrest (includes full-time or part-time employment) 
The SIR is meant to provide probability estimates of reoffending within 3 years of an offender’s release. Each item above is scored in accordance with statistical guidelines that accompany the SIR checklist. Scores range from -27 (high-risk) to +30 (low-risk) .
Though the SIR is useful in predicting general recidivism, it is not sufficient to accurately gauge the risk of violent or sexual reoffending, as it was designed for assessing general recidivism and not violent recidivism. Moreover, the SIR scale was originally developed with reference to research on male offenders, calling into question its applicability to female offenders. Because of its limitations, the SIR scale is not typically used in isolation, but rather as subset of the OIA process . This increases the accuracy of risk predictions.
Lastly, the Community Risk/Needs Management scale combines criminal history and risk of recidivism with a comprehensive assessment of the offender’s specific case needs. This provides CSC parole officers with a tool for assessing needs and risk on an ongoing basis . Assessment areas include employment, family supports, positive associations, behavioural and emotional stability, and drug or alcohol use. For each area, the officer provides a rating of low, moderate, or high risk based on knowledge of the offender through interviews and careful readings of his or her case file. The offender is then given an overall rating on the likelihood of recidivism, normally with the help of the SIR scale .
1 Julio Arboleda-Florez, “Forensic Psychiatry: Contemporary Scope, Challenges, and Controversies” (2006) 5:2 World Psychiatry 87-91
3 Criminal Code, RSC 1985, c C-46 s 672.11 [Criminal Code]
4 Ibid @s 672.12
5 Stephen Hucker, Criminal Responsibility: Forensic Psychiatry
6 Criminal Code, supra note 3 @s 16
7 Stephen Hucker, Fitness to Stand Trial: Forensic Psychiatry
8 “Long-Term Offender Designation”: Public Safety Canada
9 “Dangerous Offender Designation”: Public Safety Canada
10 Stephen Hucker, Risk Instruments, Forensic Psychiatry
11 Barry Rosenfeld and Steven Penrod, Research Methods in Forensic Psychology (New Jersey: John Wiley and Sons Incorporated, 2011) @p 167
12 Thomas Grisso, Assessing Competencies: Forensic Assessments and Instruments 2d ed (New York: Plenum Publishers, 2003) @p 101-107
14 supra note 10
16 “DSM: Frequently Asked Questions”: American Psychiatric Association
17 Kendra Cherry, What is the Diagnostic and Statistical Manual (DSM)?,
19 Ibid (same source used to describe all axes)
20 supra note 16
21 “Historical, Clinical, Risk Management-20”: Encyclopedia of Mental Disorders
27 Vladimir Coric et al, “Assessing Sex Offenders” (2005) 2:11 Psychiatry (Edgmont) 26-29
29 “Sexual Violence Risk-20”: Encyclopedia of Mental Disorders
34 supra note 27
35 Harvey Gordon and Don Grubin, “Psychiatric aspects of the assessment and treatment of sex offenders” (2004) 10 Advances in Psychiatric Treatment 73-80
36 supra note 27
37 R v JLJ, 2000 SCC 51
41 “Offender Risk Assessment”: John Howard Society of Alberta
43 Dr. Laurence Motiuk, “Offender Risk Assessment: A Critical Role”: International Centre for Criminal Law Reform and Criminal Justice Policy
46 supra note 86