Date: 20030711
Docket: T-1725-02
Citation: 2003 FC 870
Vancouver, British Columbia, July 11, 2003
Present: The Honourable Madam Justice Danièle Tremblay-Lamer
BETWEEN:
INMATE WELFARE COMMITTEE
WILLIAM HEAD INSTITUTION
Applicant
and
ATTORNEY GENERAL FOR CANADA
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision of the Commissioner of Corrections, Correctional Service of Canada, (the "Commissioner") dated September 3, 2002 in which an amendment was authorized to Commissioner's Directive ("CD") 803, Consent to Health Services Assessment, Treatment and Release of Information.
[2] Subsection 2(b) of CD 803 provides that the consent of the offender must be obtained for all mental health procedures, including psychiatric and psychological assessment and treatment.
[3] On September 3, 2002, the Commissioner authorized an amendment to CD 803, that added section 3. Sections 2 and 3 now provide:
| 2. The consent of the offender must be obtained for:
a. all medical procedures;
b. all mental health procedures, including psychiatric and psychological assessment and treatment;
c. involvement or participation in any form of research, and
d. the sharing of health care information, except as provided for in this directive and in relevant legislation.
3. Notwithstanding paragraph 2b, even if an offender refuses to consent to an assessment, in the interest of public safety, a risk assessment will be done based on available information.
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2. Le consentement du délinquant doit être obtenu pour :
a. tous les actes médicaux;
b. tous les actes qui ont trait à la santé mentale, y compris les évaluations et les traitements psychiatriques et psychologiques;
c. toute participation à une forme quelconque de recherche;
d. la communication de renseignements de nature médicale, sauf selon les dispositions de la présente directive et des lois pertinentes.
3. Nonobstant le paragraphe 2b, si un délinquant refuse de donner son consentement pour une évaluation nécessaire dans l'intérêt de la sécurité publique, on procédera à une évaluation du risque en se fondant sur les renseignements disponibles. |
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[4] The applicant argues that risk assessments cannot be done without the offender's consent. The change to CD 803 strips away an inmate's consent rights, as they pertain to psychological testing and assessments. The applicant submits that the amendment to section 3 is contrary to common law principles, and violates section 7 of the Charter of Rights and Freedoms and subsection 1(a) of the Canadian Bill of Rights. As such, it should be struck down.
[5] The respondent submits that CD 803 was amended to reflect the fact that employees of the Correctional Service of Canada ("CSC") must undertake risk assessments, including psychological assessments, regardless of an offender's consent, in order to fulfill CSC's legislative mandate of protecting the public. It would not be possible to fulfill this mandate if an offender's consent were required prior to his or her risk being assessed as the consent could often be withheld.
ANALYSIS
[6] The Commissioner has the authority to make and implement rules, pursuant to section 97 of the Act, and to designate as Commissioner's Directives any of these rules pursuant to section 98 of the Act:
| 97. Subject to this Part and the regulations, the Commissioner may make rules
(a) for the management of the Service;
(b) for the matters described in section 4; and
(c) generally for carrying out the purposes and provisions of this Part and the regulations.
98. (1) The Commissioner may designate as Commissioner's Directives any or all rules made under section 97.
(2) The Commissioner's Directives shall be accessible to offenders, staff members and the public. |
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97. Sous réserve de la présente partie et de ses règlements, le commissaire peut établir des règles concernant :
a) la gestion du Service;
b) les questions énumérées à l'article 4;
c) toute autre mesure d'application de cette partie et des règlements.
98. (1) Les règles établies en application de l'article 97 peuvent faire l'objet de directives du commissaire.
(2) Les directives doivent être accessibles et peuvent être consultées par les délinquants, les agents et le public. |
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[7] While the Directives have no force of law, they set out such things as policy objectives, time frames and procedures that are meant to provide fairness and uniformity within the federal prison system (Hickey v. Kent Institution, [2003] BCCA 23).
[8] The protection of society is the paramount concern in the corrections process, pursuant to section 4(a) of the Act:
| 4. The principles that shall guide the Service in achieving the purpose referred to in section 3 are
(a) that the protection of society be the paramount consideration in the corrections process; |
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4. Le Service est guidé, dans l'exécution de ce mandat, par les principes qui suivent :
a) la protection de la société est le critère prépondérant lors de l'application du processus correctionnel; |
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[9] One of the ways to achieve this objective is through risk assessments. Employees of CSC must assess the risk that an offender poses while incarcerated and prior to release in order to protect the public and to achieve the statutory objectives of the Act.
[10] There is an important distinction that needs to be drawn between medical and
psychological assessments that are done for the benefit of the offender or to establish a diagnosis (mental health procedures), and risk assessments that are done for the protection of the public.
[11] On the one hand, CSC has an obligation to administer health care for the benefit of inmates. This obligation is found in sections 85 to 88 of the Act. Anything that CSC does pertaining to health care, including psychological assessment, diagnosis, or treatment that is done for the benefit of an inmate requires informed consent.
[12] On the other hand, CSC has a legislative mandate to assess risk in order to protect the public. Risk assessments do not require informed consent. Such a requirement would make it impossible for CSC to fulfill its legislative mandate of protecting the public as the consent could often be withheld.
[13] There are many examples in the Act illustrating the necessity for employees of CSC to perform a risk assessment in order to make a decision that affects the safety of the public. These include decisions involving the authorization of unescorted temporary absences in the community, the granting of work release, the conditional release of offenders, and the granting of parole to offenders.
[14] Contrary to the applicant's submissions, a risk assessment is not the same thing as a PCL-R (Psychological Checklist-Revised) assessment. The PCL-R assessment was developed by Dr. Hare and is used to assess psychopathic personality disorders in offenders. This information can be used to predict recidivism which in turn, can be used to measure the degree of risk that an offender poses to society. The PCL-R rating is just one type of rating or scale which may be referred to in a risk assessment. Risk assessments can encompass many other ratings or scales, and need not contain any reference to a PCL-R rating.
[15] In summary, risk assessments by CSC are not health care, treatment, or psychological assessments conducted in order to establish a diagnosis or to ascertain whether an offender requires health care or treatment. Risk assessments are a means to determine an offender's likelihood of recidivism and potential danger to the offender, other inmates, staff members and the public. It would be impossible to fulfill this mandate if an offender's consent were required prior to his or her risk being assessed as the consent could often be withheld.
[16] Section 3 of CD 803 states that if an offender does not consent to an assessment, a risk assessment will be done based on available information. This information can be derived from a review of an offender's file, observation of an offender's conduct and consideration of collateral information.
[17] I am satisfied that it was within the jurisdiction of the Commissioner to make such an amendment in order to allow CSC to fulfill its legislative mandate of protecting the public.
[18] With regard to the applicant's constitutional challenge of the validity of the Commissioner's amended Directive, as stated above, the Directive has no force of law. The applicant has not challenged the validity of any disposition of the Act. Therefore, this argument is without merit.
[19] The applicant has also submitted the affidavit of Steven Lynn in support of his argument that the non-consensual PCL-R assessment completed on Mr. Lynn is an example of the abuses that can occur when PCL- R risk assessments are conducted without the consent of the offender. However, a psychological risk assessment was completed on Mr. Lynn, not a PCL-R risk assessment. This psychological risk assessment was prepared following 40 counselling sessions with Mr. Lynn, as well as a full review of the 5 volumes of his case management file, as well as his psychology file. I am of the view that the psychological risk assessment completed on Mr. Lynn was proper and does not constitute abuse on the part of CSC.
[20] Finally, the applicant seeks an order of mandamus, directing CSC to cease using non-Ph.D Psychologists and staff to conduct PCL-R assessments, contrary to Dr. Hare's cited protocols and stated criteria.
[21] In Pinkney v. Canada (Attorney General) (1998), 145 F.T.R. 311, MacKay J. quoted the following excerpts from Dr. Hare's book:
Uses and Users Clinical Settings
In clinical settings, the PCL-R is used for psychodiagnostic purposes. Because an individual's scores may have important consequences for his or her future, the absolute value is of critical importance. The potential for harm is considerable if the PCL-R is used incorrectly, or if the user is not familiar with the clinical and empirical literature pertaining to psychopathy. Clinicians should:
a. Possess an advanced degree in the social, medical, or behavioral sciences, such as a Ph.D., D.Ed. or M.D. ... e. Insure that they have adequate training and experience in the use of the PCL-R (see below). We further recommend that, wherever possible, the PCL-R scores of two independent raters should be averaged so as to increase the reliability of the assessment.
Research Settings
In research settings individual PCL-R scores typically are kept confidential and are not made available to correctional or institutional staff, parole boards, and so forth. User qualifications are not as stringent as they are if the assessments have direct or indirect implications for inmates or patients.
Researchers (or, if currently enrolled in a graduate training program or medical school, their supervisors) should:
a. Possess an advanced degree in social, medical, or behavioural sciences, such as M.A., M.Ed., Ph.D., D.Ed or M.D. degree. ...
Assessment Procedure
The PCL-R assessment procedure typically consists of an interview and a review of available collateral information...
[22] Paragraph 42(2)(b) of the Bylaws of the College of Psychologists of British Columbia provides that a person who has a master's degree in psychology and who is registered as a registered psychological associate is entitled to use the title psychological associate or registered psychological associate.
[23] In my opinion, it will always be better to follow the guidelines as established by Dr. Hare when conducting PCL-R assessments. However, given the fact that a person with a Master's degree is eligible for registration to provide psychological services in British Columbia, this Court is satisfied that such a person has the qualifications that are necessary to conduct PCL-R assessments.
[24] For all these reasons, this application for judicial review is dismissed.
ORDER
THIS COURT ORDERS THAT the application for judicial review is dismissed.
(Sgd.) "Danièle Tremblay-Lamer"
J.F.C.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1725-02
STYLE OF CAUSE: Inmate Welfare Committee William Head Institution v.
Attorney General of Canada
PLACE OF HEARING: Vancouver, B.C.
DATE OF HEARING: July 9, 2003
REASONS FOR ORDER AND ORDER: Tremblay-Lamer, J.
DATED: July 11, 2003
APPEARANCES:
Mr. John R. Pinkney FOR APPLICANT
(Representative)
Mr. Malcolm Palmer FOR RESPONDENT
SOLICITORS OF RECORD:
Mr. John R. Pinkney FOR APPLICANT
Vancouver, B.C. (Representative)
Mr. Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada