Psychiatrist shortage leaves court-ordered mental health assessments to languish

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This article was published 20/03/2022 (1621 days ago), so information in it may no longer be current.

Long wait times for psychiatric assessments to determine criminal responsibility are continuing to bog down criminal court cases.

Defence lawyers say it’s further hobbling the justice system as it struggles to deal with pandemic-related delays.

“As of February, there were continuing to be delays, particularly with respect to not criminally responsible assessments,” said Lisa LaBossiere, who is on the executive of the Criminal Defence Lawyers Association of Manitoba. “I can tell you of cases that have waited up to a year for an actual NCR assessment to happen, which is extremely concerning.”

Under the Criminal Code, court-ordered criminal responsibility assessments are required to be completed within 30 days, plus a 30-day extension, if necessary. If the report isn’t done in that time period, a new application must be made to the court.

“I’ve had to reorder reports three times (for one client) because the deadlines kept lapsing,” said one frustrated lawyer, who expressed what has become a common refrain among the defence bar.

“When reports are ordered, none of them are coming in fast. It’s an expectation at this stage that it is going to take forever,” said defence lawyers association president Gerri Wiebe.

“I had one recently that we had to renew three times,” she said. “By the time I was on my third order, the judge was (annoyed), saying: ‘What’s the point of ordering one if it’s not going to get respected?”

The report was completed in time for trial, but “it put a lot of pressure on because I had to get a followup psych report based on that report, and beg and plead with the psychiatrist I hired to get it done in time,” Wiebe said.

The problem, lawyers say, is a shortage of psychiatrists available to complete the assessments, and a shortage of beds at PX3, the locked psychiatric ward at Health Sciences Centre, where in-custody offenders must stay to undergo an assessment. A spokesperson for Shared Health could not confirm how many beds are in the unit or the number of psychiatric staff. As of last summer, there were 15 beds in the unit.

“If you are out of custody, you can get (the assessments) done fairly quickly, I think,” said lawyer Scott Newman.

“I had one (client) who we were waiting and waiting and waiting because he was in custody, and then one of his charges got dropped and we got him bail. We got the report done in a week,” he said.

For in-custody clients, the assessments must be done in a secure medical setting, Newman said.

Psychiatrists “won’t just come down to the jail and talk to them,” he said. “They put them in the ward at PX3, nurses are observing them and they can monitor their medication, monitor their behaviour: are they talking to themselves, how are they acting when they don’t think anyone else is watching.”

The irony, Newman said, is that clients who remain in custody are in greater need of a speedy assessment.

“The people who have a bail plan and can be in the community, probably have some supports,” he said. “People who are sitting in jail are arguably the people who need to be assessed faster because… they are the ones who are the most vulnerable.”

The longer it takes to complete an assessment, the less likely the court will have a clear picture of a client’s true mental state at the time of an alleged offence, said lawyer Ethan Pollock.

“When you meet with a guy almost four months later, we have accuracy concerns,” Pollock said. “We want people to be seen immediately. It’s difficult to ascertain if there were mental issues at play at the time of the offence.

“We don’t want people who may be schizophrenic or bipolar sitting in (jail) in general population waiting for an assessment,” he said. “It’s inherently dangerous for the subject, but also for other inmates.”

Jails are no place for the mentally ill, LaBossiere said.

“Jails aren’t hospitals. They are not therapeutic environments,” she said. Staff “are not trained or equipped to deal with mental illness, to help (prevent) mental illness from being exacerbated. That is not compatible with someone with a very serious mental health issue that may have impacted on the offending.”

Labossiere said lawsuits in the U.S. over similar issues have resulted in mandatory injunctions that require the government “do what it needed to do to get (the assessments) done.”

“When you have someone who may eventually be found not criminally responsible waiting in jail for a year, I think it’s potentially a charter of rights and freedoms issue,” she said.

“Maybe somebody has to bring a court challenge for Shared Health, the government, (Manitoba) Justice, ultimately whoever shares this responsibility to come up with some coin to get this moving.”

dean.pritchard@freepress.mb.ca