Mental Health Courts and Diversion

• Author: Richard D. Schneider
• Pages: 155-177

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CHAPTER 9

Mental Health Courts and Diversion

Richard D. Schneider

I. INTRODUCTION

In a perfect world we would not need mental health courts, let alone literature about them. But we do.

Realistically, in a less than perfect world, we should perhaps aspire to see mental health courts as part

of our future, but not as the full answer to the problem, as they are currently seen in some circles. e

“problem” is that, over the past een to twenty years, the criminal courts have had to contend with

increasing numbers of mentally disordered individuals. is chapter describes the basics of how the

problem arose, mental health courts and how they operate, and examines how and why these courts have

become an integral part of both the criminal justice and mental health care systems.

A. Background

e provision of mental health care services in most western European and North American commun-

ities has witnessed a steady decline over the past number of decades. Beginning with the deinstitutional-

ization movement occurring in the latter half of the t wentieth century, adequate civil mental health care

services became increasingly scarce and/or dicult to access. e reality today is no dierent: mental

health care systems are generally underfunded and overextended. ere has been a movement toward

community-based treatment of major mental illness, which in many instances appears to be insucient.

And, despite what was promised, the money saved with the closure of hospitals has typically not been

reinvested in community treatment. At the same time, while it is acknowledged that community-based

mental health care is an important component of any mental health care system, it cannot address the

needs of many of the more seriously aicted individuals.

It goes without saying that a decrease in mental health care services does not lessen the needs of

those members of our society who rely on such services. For these individuals, closed doors and long

waiting lists have oered little. Regrettably, those unable to receive adequate services oen nd them-

selves attracting the attention of the criminal justice system, leaving that system to address the problems.

e eects of our emaciated mental health care system are varied; however, a site where it has had a

particularly acute impact has been the criminal justice system. Being the social safety net of last resort,

the criminal justice system has swelled with mentally disordered accused and has struggled to meet

the rising demands placed upon it. In some jurisdictions, the number of mentally disordered accused

entering the criminal justice system has increased at a rate in excess of 10 percent per year over the past

dozen years (Schneider, 2000). Unfortunately, the criminal justice system has become a surrogate men-

tal health care provider in most societies. A criminalization of mental illness has occurred: a shiing

of responsibility onto the criminal justice system for the provision of basic mental health care services

(Schneider, 2008; Wortzel et al., 2007).

Understandably, the criminal justice system has not been capable of providing adequately for those

with mental health problems. e criminal justice system was neither designed nor intended to address

Richard D. Schneider

society’s responsibility to the mentally disordered individual. Even a basic familiarity with the trad-

itional criminal justice system will reveal that it is no substitute for a comprehensive civil mental health

system; undoubtedly, it is worse. ere are at present ve times as many mentally ill people in American

prisons as there are in American hospitals and, while the data are not available for Canada, there is little

reason to believe that the percentages are much dierent. However, we do know that in Canada a signi-

cant number of individuals in correctional facilities suer from mental disorder. For example, Corrado

and colleagues (2000) have found prevalence rates of 15.6 percent. Accused who have mental disorders

languish in detention centres and correctional facilities. ey oen fail to receive much needed treat-

ment, typically feel alienated and marginalized, and generally have a dicult time regaining normal

functioning once enmeshed in the system. e regression in treatment and rehabilitation, along with an

over-reliance on warehousing the mentally ill in penal settings, is a deplorable anachronism that harkens

back to before the development of asylum care. Ironically, we nd ourselves where we were two hundred

years ago, trying to get the mentally ill out of the prisons and the criminal justice system. We have come

full circle.

II. MENTAL HEALTH COURTS: A RESPONSE

Mental health courts have been a response to this dilemma. Recognizing the criminalization process

that has occurred, these courts have sought to reverse the misplaced responsibility for the provision of

mental health care services. Despite sharing similar objectives, there are many models that claim the

label of a “mental health court” (e.g., Redlich et al., 2006; Erickson et al., 2006). Accordingly, when con-

sidering these courts, it is important to gain an appreciation for the scope of what is being referred to.

Nevertheless, very generally speaking, mental health courts are all attempting a rehabilitative response

to what would otherwise have been criminally penalized behaviour. ese courts have various objectives,

which include the targeting of accused with mental disorders, and have as their mandate one or more of

the following objectives:

• “diversion” of accused who have been charged with minor to moderately serious criminal oences

and oering them an alternative

• expediting the pre-trial processes of assessing tness to stand trial

• treatment of the operative mental disorders

• a slowing of the so-called revolving door

rough successful participation in a treatment program overseen by a mental health court team,

some accused can avoid conviction and sentence, as they are “diverted” back into the civil mental health

care system. is model is based upon the established drug courts. e court intervenes at a discrete

point in time along the criminal justice continuum. Some jurisdictions have included diversion as a

component of their mental health court, but have attempted also to intervene at multiple post-arrest

junctures and to include a much larger population of mentally disordered accused.

A. Diversion at Various Junctures

While the present chapter deals primarily with court-based diversion, it should be noted that pre-book-

ing and jail-based diversion schemes are also in place in various jurisdictions, and should be seen as

important complementary programs.

As its name implies, pre-booking diversion typically involves a Crisis Intervention Team, Commun-

ity Service Ocer, or Mobile Crisis Unit responding to a situation before charges are laid (or instead of

charges being laid) so as to avert prosecution altogether. Oen these teams are comprised of a plain-