Defending the Mentally Ill Client in Criminal Matters: Ethics, Advocacy, and Responsibility
MELODY MARTIN
ABSTRACT
Substantial incentives currently exist to channel mentally ill persons into the criminal justice system, particularly under the auspices of the fitness criterion. For every mentally ill accused person there is at least one criminal defence lawyer, but ethical guidance for counsel acting in these difficult ethical circumstances is sparse. The author asserts that professional conduct codes, secondary source literature, Criminal Code provisions and related substantive case law are insufficient, standing alone, to respond to the unique issues and dilemmas raised by the mentally ill client. The author turns to a diverse set of sources, including civil mental health legislation, principles of biomedical ethics, and key civil and criminal cases, to develop a set of Guiding Principles to assist defence counsel in resolving ethical dilemmas. These Principles are founded on the concept that the lawyer's role must be adapted to meet the special needs of the mentally ill client, and it is asserted that many of the rules and conventions that govern the lawyer's relationship with the "ordinary" client must be modified or reinterpreted if the mentally ill client's interests are to be protected adequately in the criminal process. In particular, the Principles propose that the lawyer take "reasonable steps" to assist the accused in finding appropriate counsel, even when the lawyer has not been retained, or has withdrawn or been discharged; that "capacity," "consent," and "substitute judgment" tests be applied to clients whose fitness has not been tried, or whose unfitness has been judicially determined; and that the lawyer follow specified criteria when deciding whether or when to raise the fitness issue, whether to arrange a guilty plea or the withdrawal of charges, and whether to consider herself constrained in the conduct of the defence by the mentally ill client's confession.
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Citation: (1994) 52(1) U.T. Fac. L. Rev. 73.
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