The Operation of a Mental Health Court

AuthorRichard D. Schneider - Hy Bloom - Mark Heerema
Pages68-110
68
chapter four
The Operation of a Mental Health Court
A. INTRODUCTION
Buoyed by therapeutic jurisprudence and the steadily growing problem-solv-
ing court movement, mental health courts have gathered momentum as
mentally disordered individuals continue to f‌lood the criminal justice sys-
tem.
Stepping from theory to practice, this chapter focuses on the day-to-day
operation of a mental health court and on some of the issues that are typi-
cally encountered. It is important to recognize that describing the operation
of mental health courts is more challenging than may be expected. As a de-
scriptor, “mental health court” implies homogeneity, that is, that all men-
tal health courts f‌it easily within a very narrow and well-def‌ined subset of
criminal courts. While in many ways this is true, in more ways it is not. The
operation of mental health courts varies greatly among courts. Further, there
is variation within each court as the actual interventions prescribed for men-
tally disordered accused vary from individual to individual. Accordingly, for
the remainder of this chapter we explore the various means and methods by
which “mental health courts” across North America and the world function.
In commencing this chapter, we begin with a discussion of diversion
programs. Diversion programs for mentally disordered accused and other
individuals aim to steer them away from the machinery of the criminal jus-
tice system and place them in the care of the mental health-care system. As
mental health courts may include diversion programs as a component or
subset, it is important to take a broad-based look at the intentions of these
programs. After examining diversion programs, we focus on some of the
Chapter Four: The Operation of a Mental Health Court 69
specif‌ic factors that are relevant to all mental health courts. We then examine
the mental health court in Toronto, Ontario as a case study of a mental health
court in operation. Finally, to illustrate the diversity of mental health courts
that currently exist, we end with a general discussion of mental health-court
models as they have developed in various jurisdictions around the world.
B. DIVERSION PROGRAMS
Diversion programs are a particular sort of mental health court that may
exist as a stand-alone court or as a component of a broader based multi-inter-
vention mental health court. In Canada, “diversion” is a term of art that, to
date, refers to a particular program, as opposed to the general objective of all
mental health courts to “divert” or put individuals back into the civil mental
health-care system.1 Diversion does not require a specialty court.
It is trite to observe that all communities or jurisdictions have the capac-
ity to divert individuals out of the criminal justice system either through
police discretion on the street or by redirecting the accused after arrest, yet
most do not even consider such an option.
The objective of all diversion programs, regardless of their format, is to
redirect individuals from the criminal justice and correctional systems to
appropriate mental health-care services and supports where possible, while
considering the safety and security of the person and the public.2
In Toronto, Ontario, the “Diversion of Mentally Disordered Accused”
program, contained in the Crown Policy Manual, employs yet a different
model. Here, participation is voluntary and begins after an individual has
been charged with an offence. It is a postcharge diversion program rather
than a specialty court. Indeed, the program is conducted in many jurisdic-
tions where there is no mental health court. Neither a previous diversion nor
a criminal record disqualif‌ies an accused from diversion. The accused is not
1 For a basic def‌inition of this overarching term and how it relates to individuals with mental
disorders, see, for example, Pamela K. Lattimore et al., “A Comparison of Prebooking and
Postbooking Diversion for Mentally Ill Substance-Using Individuals with Justice Involve-
ment” (2003) 19(1) Journal of Contemporary Criminal Justice 30 at 32:
Diversion programs are organized efforts to identify persons with serious mental ill-
ness, including those persons with co-occurring substance-abuse disorders, and to
divert them from traditional criminal justice pathways to mental health and substance-
abuse treatment systems. The following two general diversion categories have been
identif‌ied: prebooking and postbooking.
2 Court Support/Diversion Working Group, Diversion & Court Support:Def‌ining the Junctures
(Ontario: Ministry of Health and Long-Term Care, 13 June 2005).
70 MENTAL HEALTH COURTS
arraigned and need not admit responsibility for the alleged offence. Nor, is it
a requirement that the accused be f‌it to stand trial.3 A complete description
of the program is set out in Appendix B.
While the typical diversion model is described as “postcharge,” examples
of diversion at other junctures (see below) are appearing at the “crime pre-
vention,” “precharge,” and “postsentence” stages. It is suggested that a more
interesting look at the various modes of intervention should focus on the
point of intervention in the criminal process and the type of intervention plan
that is put in place, viewing intervention as a continuum with numerous
distinct opportunities. For the purposes of this discussion it is more eff‌icient
to refer to all of the various plans as “mental health courts,” recognizing
that many jurisdictions do not employ that label or have “diversion” as well
as “mental health courts.” It is submitted that one of the more important
differentiators among the schemes of mental health courts has to do with
(1) where along the continuum the court intervenes (this may be at multiple
junctures) and (2) what group of mentally disordered accused is captured by
the court.
1) Crime Prevention
Intervention at the level of crime prevention is about as far “upstream” as an
intervention can occur. This model, which is implicitly the mandate of many
Assertive Community Treatment (ACT) teams, attempts to work with the in-
dividual who, by virtue of her circumstances, is at high risk of offending.4 We
know that individuals who are homeless, unmedicated, without social assist-
ance, without identif‌ication, et cetera, have a very high risk of interacting with
police. Models of crime prevention attempt to identify high-risk individuals
and mandate intervention prior to any police involvement. Unfortunately,
until the recent emergence of ACT teams, and similar programs, arrest of
the accused was seen as a “positive” event in that it unlocked a number of
3 While most accused are not suitable to participate in diversion until rendered “f‌it,” f‌itness
is not a precondition to participation in diversion. Where the accused is so disorganized
that compliance with any type of diversion program would be impossible, that option is
presented later in the process. Some accused, for example those suffering from intellectual
disabilities, head injuries, or other neurological conditions, will never become f‌it yet they
are excellent candidates for diversion. Fitness to stand trial incorporates a much broader
set of competencies than the simple capacity (assisted by counsel) to agree to comply with
a diversion plan.
4 See, for example, J. Steven Lamberti, Robert Weisman, & Dara I. Faden, “Forensic Asser-
tive Community Treatment: Preventing Incarceration of Adults with Severe Mental Ill-
ness” (2004) 55(11) Psychiatr. Serv. 1285.

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