Pinkney v. Canada ( Attorney General )
T-1723-97
MacKay J.
26/2/98
13 pp.
Judicial review of National Parole Board's denial of application for day parole on ground Board relied in part on assessment performed by psychologist without applicant's consent, involvement contrary to Commissioner's Directive-Applicant inmate at William Head Institution-Registered psychologist, without prior knowledge, consent of applicant completing psychiatric assessment report based entirely on psychologist's review of applicant's case management, psychology files, including prior psychological reports-Concluding applicant having "high rating on factor of psychopathy"-In written decision Board stating "You have been diagnosed as . . . a psychopath"-No evidence of even one proper diagnosis of applicant as psychopath-Corrections and Conditional Release Act, s. 147 providing offender with right to appeal from National Parole Board decision to Appeal Division of National Parole Board-In previous decisions Court declining to intervene by judicial review prior to pursuit of statutory appeal-Even if applicant time-barred from appealing decision here seeking to have reviewed, Court should not intervene unless clearly grave injustice which may not be otherwise remedied-That is not case provided administrative action now undertaken to ensure no further prejudice arising for applicant-To grant relief where no evidence of grave injustice would encourage applications for judicial review simply by delaying statutory appeal beyond time fixed by regulation-Avoiding process Parliament clearly intending should be available as simplified, speedy means for contesting Board's decision-Ordinarily Court not commenting on merits of claim declining to consider-Such comments obiter, not binding-But this case inviting comment in interests of assisting Correctional Service, National Parole Board to discharge functions while avoiding prejudice to applicant, others in his position, that may arise from processes followed herein-Diagnosis of individual with "psychopathy" requiring skill, knowledge, training at high level-While unclear whether assessment of applicant intended to be diagnosis in medical terms, Correctional Service, Board too easily relied upon it as though it was-Testing or assessing applicant's mental condition without his consent contravening Commissioner's Directive No. 803, directing that there be offender's consent for all psychiatric, psychological assessments, treatments-Psychology/psychiatric assessment report, rating applicant by PCL-R scheme, ought not to have been intended, nor should it have been relied upon, as diagnosis of applicant's medical condition-Developer of test commenting potential for considerable harm if PCL-R used incorrectly or if user not familiar with clinical, empirical literature pertaining to psychopathy-Recommending clinicians possess advanced degree in social, medical or behavioral sciences; ensure adequate training, experience in use of PCL-R; PCL-R scores of two independent raters should be averaged so as to increase reliability of assessment-Stating PCL-R assessment procedure typically consisting of interview, review of collateral information-Surprising if any qualified therapist with advanced training in clinical psychology or psychiatry, would purport to conclude diagnosis in manner this assessment made-Those responsible for direction of Service, Board should consider measures to avoid any possible prejudice to applicant, at least by filing copy of Court's reasons herein with any records of Board's hearing of matter and with applicant's psychological files-Such records would then include Court's finding no evidence applicant ever properly diagnosed as psychopath-Reasons directed to be sent to Board's Chairman, Commissioner of Correctional Service, for their consideration of appropriate steps to avoid use of questionable psychological testing-Corrections and Conditional Release Act, S.C. 1992, c. 20, s. 147.