The Role of a Mental Health Practitioner in a Mental Health Court

• Author: Richard D. Schneider - Hy Bloom - Mark Heerema
• Pages: 111-165

111

chapter five

The Role of a Mental Health Practitioner

in a Mental Health Court

A. INTRODUCTION

The irony of the role played by psychiatrists (and other mental health-care

workers) in a mental health court is inescapable. Indeed, the very presence

of any mental health-care worker within a courtroom dedicated to men-

tally disordered accused is, to some extent, a testament to the fact that the

mental health-care system in which psychiatrists, psychologists, and other

mental health-care professionals were trained has failed the patient/accused

— otherwise he would not be there. A mental health court presents a second

chance to peel off as many layers of criminalization as possible that have

attached to the accused over the years he has been stumbling through the re-

volving doors of the criminal justice system and reroute him to mainstream

mental health care. In the most ideal sense, psychiatrists and other mental

health-care providers who work in mental health courts can be seen as re-

deemers of sorts — alleviating suffering by returning accused to the system

for which they are best suited, protecting their rights and civil liberties, and

helping the justice system deal more equitably with individuals whom the

common law recognized hundreds of years ago as deserving of special con-

sideration and treatment.

As well intended as mental health courts and the mental health practitio-

ners that work within them may be, the value of a mental health court will

prove to be a f‌iction, and mentally ill accused will continue to fall through

the cracks of the civil mental health-care system, unless the communities

112 MENTAL HEALTH COURTS

in which these courts are situated have what the Bazelon Center refers to as

“three critical elements in place”:1

x Resources, such as psychiatric treatment, social services, case man-

agement, and housing are available in the community in which the

court operates;2

x Diversion programs are available to redirect offenders (who meet the

criteria for diversion) out of the criminal prosecution circuit and into

the appropriate community treatment or resource; and

x There is a recognition of the fact that a mental health court (or as it

may otherwise be known in some U.S. jurisdictions, diversion pro-

gram) is the preferred means of redirecting consenting and willing

accused to treatment and care, and it is not a means of compelling

treatment the accused had the right to reject while living in the com-

munity.3

Whether from the legal or mental health domain, most professionals

and other personnel who have a true appreciation of both the potential and

limitations of a mental health court share a similar sentiment: the mental

health court is not a panacea for solving all the problems associated with

criminalization of the mentally ill or of mentally disordered accused gener-

ally. The twentieth century has seen more than one panacea in the mental

health arena, perhaps the best known being the advent of antipsychotics and

deinstitutionalization, that have wreaked havoc when the cure wore off. As

for mental health courts, Bernstein and Seltzer capture the concern well in

the following comment: “Mental health courts may provide immediate relief

to criminal justice institutions, but alone they cannot solve the underlying

systemic problems that cause people with mental illnesses to be arrested and

incarcerated in disproportionate numbers.”4

1 Judge David L. Bazelon Center for Mental Health Law, Criminalization of People with

Mental Illnesses: The Role of Mental Health Courts in System Reform (Washington, DC: The

Center, January 2003).

2 See, for example, Leroy L. Kondo, “Advocacy of the Establishment of Mental Health

Specialty Courts in the Provision of Therapeutic Justice for Mentally Ill Offenders”

(2000–01) 24 Seattle U.L. Rev. 373, where at 419 the author quotes Dr. E. Fuller Torrey:

“the most sobering side of jail diversion . . . is the [often incorrect] assumption that there

are public psychiatric services to which mentally ill individuals can be diverted.”

3 Of course, in Canada there is a limited window of time within which the court can order

involuntary treatment for the purposes of rendering the accused f‌it to stand trial.

4 Robert Bernstein & Tammy Seltzer, “Criminalization of People with Mental Illnesses:

The Role of Mental Health Courts in System Reform” (2003) 7 D.C.L. Rev. 143 at 148.

Chapter Five: The Role of a Mental Health Practitioner in a Mental Health Court 113

A review of the historical antecedents of the criminalization of the men-

tally ill is beyond the scope of this chapter (but see Abramson;5 see also Chap-

ter 2 for a complete evolutionary depiction of the legal and social landscape

from which the mental health court arose), as is an in-depth discussion of the

epidemiology of that population in both the community and penal system.

The inordinate number of mentally disordered accused in penal facilities,

however, which in the American context exceeds the number of psychiatric

patients occupying state hospital beds,6 speaks to the scope of the problem

and the potential role a mental health court can play7 as a powerful conduit

for redirection. Tables 18 and 29 below provide a sense of the extent to which

mentally disordered accused are represented in Canadian and American

jails.

Table1. Mentally Disordered Offenders in

Canadian Penal Facilities

Table2. Mentally Disordered Offenders in U.S.

Penal Facilities

•61% of accused (1,200) admitted to a

Calgary remand centre had a principal

diagnosis on either Axis I or Axis II[1]

•47% of males and 36% of females had

substance-abuse disorders[2]

•11.1% of federal offenders have a

diagnosis of a mental disorder on

admission[3]

•By 2004, the proportion of new

admissions on psychotropic medication

was 18.5%[4]

•The number of inmates with mental

illness in federal penitentiaries has

doubled over the last year.[5]

•16% (250,000 people) of state prison

and jail population suffer from a mental

illness[6] (700,000 of 10 million adults

booked into jails each year)

•L.A. County Jail —3,500 psychiatric

inpatients[7]

•Ryker’s Island — New York — 2,800

psychiatric inpatients[8]

•1976 N.Y.P.D.takes 1,000 “emotionally

disturbed persons” to hospital; in 1998,

f‌igure increases to 24,787[9]

•1994–1999 — L.A. police shoot 37 (and

kill 25) emotionally disturbed persons

•In U.S. cities with a population of more

than 100,000, about 7% of all police

contacts involve a person believed to

have a mental illness.[10]

5 Marc F. Abramson,“The Criminalization of Mentally Disordered Behaviour: Possible

Side Effects of a New Mental Health Law” (1972)23 Hospital and Community Psychiatry

101.

6 Chris Sigurdson, “The Mad, the Bad and the Abandoned: The Mentally Ill in Prisons and

Jails” (2000) 62 Corrections Today 70.

7 Alina Perez, Steven Leifman, & Ana Estrada, “Reversing the Criminalization of Mental

Illness” (2003) 49 Crime & Delinquency 62.

8 Hy Bloom & Richard D. Schneider, The Mentally Disordered Offender: An Electronic Bench-

book (Ottawa: National Judicial Institute, 2005) [reproduced with permission].

9Ibid.