McRae, Duncan J.

English

York University, Osgoode Hall Law School

Osgoode Hall Law JournalVolume 3, Number 2 (April 1965) Article 61Book Review: Detention of the MentallyDisordered, by Barry B. SwadronDuncan J. McRaeFollow this and additional works at: http://digitalcommons.osgoode.yorku.ca/ohljBook ReviewThis Book Review is brought to you for free and open access by the Journals at Osgoode Digital Commons. It has been accepted for inclusion inOsgoode Hall Law Journal by an authorized editor of Osgoode Digital Commons.Citation InformationMcRae, Duncan J.. "Book Review: Detention of the Mentally Disordered, by Barry B. Swadron." Osgoode Hall Law Journal 3.2 (1965) :417-419.http://digitalcommons.osgoode.yorku.ca/ohlj/vol3/iss2/61Book Reviewsinto a glass-panelled cabinet on which was affixed a notice: 'I am deter-mined to fast until death'. An automatic demon prodded him with afork. His threat led to his being charged with attempted suicide and,when the charge was dismissed, he was awarded £382 in damages forfalse imprisonment ....The end came on 28th July, 1937. For three weeks Davidson enteredthe lions' cage at an amusement park in Skegness. There he preachedand protested his innocence. He became more and more excited, stridingup and down, waving his arms. Stepping backwards, he trod on thelioness' tail. Her mate, Fred, reared up and pawed him, striking himdown and mauling him before the tamer, a sixteen-year-old girl namedRene Somner, could get into the cage and drag him out by the collar.Bleeding and badly lacerated, Davidson was still conscious.'What is the time?' he asked the horror-stricken crowd. When he wastold it was 3.30 p.m., he exclaimed: 'Ah, I'm in time to make the frontpages of the evening papers'-a remark which goes far to explain hisoddities.By contrast, the lawyers are a dull lot: F. J. de Verteuil-dis-barred for fraud; Patrick Marrinan-disbarred for consorting withcriminals for the purpose of obtaining their business; Ben Canter-struck from the roll as a solicitor for fabricating evidence in connec-tion with the trial of one Greech, a Maltese brothel-keeper.Only the case of one, F. H. Nye, demonstrates the dramatic retri-bution that lurks in wait for the dishonest solicitor. Nye, who waslater struck off the roll for exerting undue influence on a client toprocure a benefit under her will, was set upon by a cousin of this sameclient, Col. Alfred Wintle:Nye was debagged by Wintle, put into a corner with a dunce's cap on hishead, photographed, made to sign a document and write his name on acheque for £1,000, and thrust into the road-trouserless.One can read this little book in an hour or two. Look through itfrom first to last and you will not find a "great issue" anywhere be-tween its covers. But, after all, isn't this a first-rate recommendationto the sober-sided legal reader?H. W. ARTHURSDetention of the Mentally Disordered. By BARRY B. SWADRON. Tor-onto: Butterworths (1964). pp. 470. ($15.00)It has been said that a man should not be deprived of his libertyunless he has been given a fair hearing in accordance with the prin-ciples of fundamental justice, but all across Canada hundreds of un-fortunates are locked up every month without a hearing, never havingseen a lawyer, much less a judge. Even if they were given an oppor-tunity to see a lawyer, it is probable that he would not know whereto go to find the information required to help such clients. These are*Professor Arthurs is a member of the Bar of Ontario and is an associateprofessor at Osgoode Hall Law School.19651OSGOODE HALL LAW JOURNALpersons who have been detained as mentally disordered. Mr. Swadronhas investigated their dilemma with great insight.There have been many works written on the various incapacitiesof the mentally disabled. This is the first book, however, in which areoutlined the various methods by which those who suffer from mentalincapacities are incarcerated. For this reason Mr. Swadron's book isan important work for those who have an interest in the criminal'trial process, in civil rights, and, indeed, in the integrity of law itself.It is important that all magistrates, judges and criminal barristersunderstand the information contained in this book since it is they,through the judicial function of the court, who in many cases deter-mine whether a person will be imprisoned in a mental institution. Itis even more important that doctors and psychiatrists recognize therights and duties assigned to them by the various Provincial MentalHealth Acts which authorize them to take action to restrain the men-tally disordered. In this context, Mr. Swadron points to the case ofa young man who killed his mother and himself after having beenexamined by a doctor who would have certified him, but thought thathe was required to obtain the mother's consent before he could do so.This book is divided into two main parts. The first part considersthe admission, detention and release of those who are neither chargedwith, nor convicted of, a criminal offence. The second part considersthe admission, detention and release of those who have become in-volved with the criminal law. Very little has been written in this field,and, accordingly, most of this book is original research. It is mainlya comparison of the various legislative enactments in Canada andGreat Britain, with reference to the United States Draft Code whereapplicable.Few people realize how varied the legislative enactments are inthe field of mental health across our country and how few legal safe-guards are afforded in the majority of the provinces. One comes tothe conclusion that this is an area where uniform legislation wouldbe valuable. Mr. Swadron presents model sections which, he believes,would overcome the weaknesses in some parts of present legislation.Mr. Swadron's basic premise is that depriving the inmate of amental hospital of his freedom is contrary to our fundamental legalprinciples unless accompanied by sufficient safeguards. It is againstthis background that the author discusses the problems involved incertification of the non-criminal. In Ontario the medical practitioneris given tremendous powers, but doctors often disagree on the re-quired elements for certification in borderline cases. In many prov-inces there is no procedure for a general review of each patient'scase at any stated time after committal and there is no appeal fromthe decision of the certifying physicians or from that of the hospitalsuperintendent who has refused to release a patient. The courts will[VOL. 3:405Book Reviewsnot often take jurisdiction to determine the rights of people who arein mental hospitals, since it is generally considered that the medicalcertificates are a good answer to a writ of habeas corpus.In the second part of the book, dealing with the insanity problemwhen an element of crime is involved, Mr. Swadron discusses thevarious methods by which a person may reach a mental hospitalother than through voluntary admission or certification. At the sametime he investigates the issues of fitness to stand trial and criminalresponsibility. He points out that the test of criminal responsibilityin Canada is not the M'Naghten Rule. Our test is fully discussed asare the consequences of the verdict "acquitted on account of insan-ity". He does not investigate the question of whether or not our testis the most satisfactory, for, as he points out, the question is all butspent. The final chapter deals with the inmate of a penal institutionwho becomes mentally disabled while under sentence and who requiresaid that would be impractical to administer in the penal institution.Unfortunately no answers can be given to some of the questionsthat Mr. Swadron raises, but it is to be hoped that when he finisheshis present research work with the Study Project on Mental HealthLegislation for the Province of Ontario, he will be able to present uswith some recommendations for the solution of many of the problemsin this important field. It is hoped that we will see more of Mr.Swadron's recommendations in the near future and that publicationof this work will be the cause of a more enlightened attitude on thepart of the various authorities towards the problems involved in thedetention of the mentally disordered.One serious problem not treated by this book, is the difficultyand frustration experienced by doctors and lawyers in discussingmental disorder in relation to law. The difficulty has its roots in thefact that they are speaking different languages, are seeking thesolutions to different problems, and believe different facts to be sig-nificant. To a large extent this can only be overcome by a union ofthe medical and legal definitions of insanity. It would be of service,however, if a book were written containing, for the benefit of lawyers,a definition of the various types of mental disorder with the symp-toms and usual medical treatment of each. It might also include adiscussion of criminal responsibility in terms to which a doctor couldattach some consequence. Such a book would go far towards obviat-ing the difficulties which doctors and lawyers presently find in dealingwith each other, and would be a valuable sequel to Mr. Swadron'spresent book.DuNcAN J. MCRAE**Mr. McRae is a third year student at Osgoode Hall Law School and isa graduate of the University of Western Ontario.1965] 419

Book Review: Detention of the Mentally Disordered, by Barry B. Swadron

https://digitalcommons.osgoode.yorku.ca/cgi/viewcontent.cgi?article=2718&amp;context=ohlj

Book Review: Detention of the Mentally Disordered, by Barry B. Swadron

Abstract

Similar works

Full text

Available Versions

York University, Osgoode Hall Law School