Mental Health Courts

Policy
Mental health courts have been created in numerous jurisdictions across the United States, largely as a response to the increasing number of defendants with serious mental illnesses who are caught up in the criminal justice system. NMHA and other mental health advocacy organizations need to work to ensure that mental health courts do not lead to greater criminalization and stigma for persons living with mental illness and greater fragmentation of the mental health system.

The presence of defendants with mental illnesses in the criminal justice system imposes substantial costs on that system and substantial harm on defendants. It is difficult, if not impossible, to provide humane and just treatment to persons with mental illnesses in prisons and jails. Thus, NMHA strongly supports thoughtful efforts to reduce the number of defendants with mental illnesses in the criminal justice system and in prisons and jails. NMHA ’s diversion policy states that case. 1

To the extent that mental health courts are an effective mechanism for reducing the number of persons with mental illnesses in prisons and jails and subject to the concerns expressed in this policy, NMHA supports the creation of mental health courts. NMHA enthusiastically supports efforts to use new or existing criminal justice funding—federal, state or local--to provide community mental health services to persons with mental illnesses being diverted from prisons and jails through well-designed mental health court programs.

However, mental health courts can also be used to criminalize persons with mental illness, for “lifestyle” offenses. Mental health courts are a highly inappropriate way to treat homeless people and people with mental illness whose offenses flow from their troubled life on the street, and NMHA strongly opposes the use of mental health courts for this purpose or with this effect.

There are many other successful and innovative ways to divert persons with mental illnesses from the criminal justice system, including the creation of law enforcement-mental health liaison programs, increased training of law enforcement personnel and a general improvement in the funding and effectiveness of community mental health services. In order to prevent the misuse of mental health courts, such courts should be but one part of a coordinated community effort to reduce the number of persons with mental illnesses in the criminal justice system. The filing of actual criminal charges against persons with mental illnesses which would result in their assignment to a mental health court should be the last resort after all reasonable efforts at diversion have been exhausted.

It is critical that NMHA, Mental Health Associations and other advocates work to promote diversion from the criminal justice system as the central mission of mental health courts, wherever they exist and by whatever name they are called. Advocates need to insist on mental health court standards that assure a non-coercive and de-stigmatizing approach and leave civil commitment as the central standard for the authorization of coercion, when it is needed and justified, not the criminal courts. A criminal record should not be a cost of getting mental health treatment.

Discussion
Where they exist, NMHA advocates that mental health courts play a role in convening criminal justice, mental health, substance abuse and other relevant social service agencies to facilitate diversion from the criminal justice system. Mental health courts should not act as mandators of treatment, using criminal sanctions to coerce compliance, imposing the stigma of criminalization as a condition of access to treatment resources. They should focus instead on diversion.

It must be conceded that when diversion is not possible, mental health courts may serve to assure treatment for persons with serious mental illness convicted of crimes and divert them from incarceration, if not from conviction. This too is a valuable role. Anything that keeps people with serious mental illness out of prisons and jails should be encouraged. With good will, mental health courts can broker diversion and protect the vulnerable from being crushed in the gears of the criminal justice system. However, the risk that remains is that mental health courts actually defeat diversion in favor of a kind of endless, boundary-less criminal probation, and that more and more people with mental illness will be swept into the criminal justice system, which would be an extremely unjust outcome.

Above all, mental health courts must avoid becoming a preferential point of entry for persons who have been unable to obtain community-based treatment, thus draining resources from an already underfunded community mental health treatment system. Treatment preference should not be given to persons accused of crimes over others who have not committed a crime, but who are still unable to access services. Mental health courts should never become a way to “jump the line” and get preferential access to existing resources.

The ultimate danger is that in the hope of improving access to treatment resources, and even providing some, mental health courts will, in the end, increase coercion and stigma. There is also the risk that they will fail to effectively triage available treatment resources to achieve the best overall public health outcomes. The basic problem is that the courts cannot run the mental health system from their limited vantage point and cannot provide the resources needed to fill the gaps.

Mental health courts risk inappropriate intervention of the criminal justice system, with no real improvement in treatment outcomes. At best, they may effectively determine individual needs and advocate for good individual treatment. At worst, they risk further criminalizing people with mental illness and fragmenting the mental health and criminal justice systems. Mental health courts are functioning all over the country now, and their implementation concerns all mental health advocates. It is a time for advocacy.

NMHA believes that advocates must remain skeptical of mental health courts and attentive to their evolution. Mental health courts inherently risk further criminalization of persons with mental illness and may compete with diversion programs unless they embrace diversion as their own focus. NMHA believes that eventually, all mental health courts should satisfy the guidelines established in this policy.

Background
Mental Health Courts – While there is no accepted definition, mental health courts have been created by local initiatives, often adapting the model of drug courts, and focusing initially on dually diagnosed substance abuse and mental illness, to obtain mental health treatment for persons with mental illness accused of crimes. Currently, some mental health courts involve using the authority of the court to impose treatment compliance as a condition of release from jail or bail. Failure to comply may result in sanctions being imposed, up to and including incarceration.

Diversion – There are two basic models of diversion. Under the predominate model, a person is assigned to a treatment program and criminal charges are suspended or dropped. Any program that provides for dismissal of charges or deferred prosecution, even after arraignment, is considered to be “meaningful diversion.” Programs under which persons are assigned to probation after a plea of guilty are sometimes referred to as diversion. However, these programs are only a diversion from incarceration and not diversion from the criminal justice system.

The concept of mental health courts has been promoted in order to respond to the increasing number of people with mental illness caught up in the criminal justice system. The failure of American society to make good on the promise of community-based care is one of the reasons for this increase. America has never committed the resources necessary to provide adequate community mental health services for people who are at risk of commitment to or being discharged from institutions (including hospitals, prisons and jails). Additionally, lack of education contributes to the prejudice, stigma and discrimination against persons with psychiatric disabilities. Increased enforcement, especially of misdemeanor “lifestyle” offenses, has criminalized symptoms of mental illness and co-occurring substance abuse disorders.

One of the primary concerns which NMHA has about mental health courts is that they may be used inappropriately as tools to coerce treatment. Since mental health courts are relatively new, there is not a great deal of research about the level of coercion involved in such courts. The research which has been conducted, however, is encouraging. A recent study of the Broward County Mental Health Court found that "the mean score on a self-report perceived coercion measure (0.69) was low in an absolute sense and...lower than almost any score on a comparable measure of perceived coercion previously reported in the literature."2 This study emphasized that a key element affecting the perceived lack of coercion was the fact that participants could opt out and be returned to the courts which heard cases involving defendants who were not identified as having a mental illness. Additionally, the study emphasized the importance of insuring that defendants were aware of this option.

Similarly, mental health courts were much less apt to use jails as a sanction for failure to comply with court-ordered treatment than were the drug courts after which they are modeled. 3

Given the wide variation among the designs of mental health courts, these studies do not demonstrate that mental health courts are non-coercive. But they do demonstrate that it is possible to design a mental health court with minimal coercion. NMHA urges jurisdictions which chose to create a mental health court to follow those models which use minimal coercion.

In 2000, the United States Congress authorized a mental health court demonstration program (P.L. 106-515). In doing so, Congress identified mental health courts as having the potential to address the criminalization of people with mental illness. Mental health courts are here to stay. NMHA is concerned that communities may rush to implementation without considering all of the components of an effective system to respond to the needs of persons with mental illness involved in the criminal justice system. In the absence of a framework of values to guide the development of mental health courts, the needs and rights of people with mental illness may be ignored and threatened. This policy seeks to provide such a framework

Principles
Minimizing the use of coercion is fundamental to effective mental healthcare and treatment and recovery from mental illness, and the most coercive entry point for mental health treatment is the criminal justice system. The United States already incarcerates people at the highest rate in the western world, and we have effectively institutionalized many persons with mental illness in correctional facilities.

Criminal courts rarely address mental health issues in sentencing decisions. Corrections systems are assigned the classification/diagnosis as well as the treatment responsibility, once there has been a criminal conviction, with deferred sentences and probation after a plea as a gray area of court involvement. However, probation and other forms of post-conviction court involvement, including deferred sentences contingent on mental health treatment, are really only alternatives to incarceration, not alternatives to the use of criminal sanctions.

Communities must develop services that meet the comprehensive needs of mental health consumers. It is essential that any mental health court program bring additional treatment resources to the community, rather than depleting already limited existing resources. In addition to significant increases in public investment, services must be integrated across public and private agencies to address the full range of consumer needs. Individual treatment plans should be focused on consumer recovery and choice and should include: mental and physical healthcare, case management, housing, supportive education, substance abuse treatment, and psychosocial services in the least restrictive environment possible.

Mental health courts may act as a catalyst in developing this comprehensive, community-based mental health system because state and local corrections are often only minimally involved and unable to pay more attention. As a convener, mental health courts may be able to get the attention of other agencies that they do not control, to promote real and enduring systems change. In this capacity, the court convenes criminal justice, mental health, substance abuse and other social service agencies and community resources to respond to the needs of those persons before the court. However, that convening role requires real commitment from the judiciary and entails substantial risks.

Concerns
The greatest danger is that mental health courts will assume a coercive role, both in allocating scarce treatment resources and in further criminalizing and stigmatizing persons with mental illness who get caught up in the criminal justice system. Secondarily, there is a risk of fragmentation, both of the struggling community-based mental health treatment system, and of the already-fragmented criminal justice system.

At the extreme, mental health courts may become a preferred means of access, with mental health judges granting treatment preference to persons accused of crimes over others. In addition, unless citizens are vigilant in monitoring the development and implementation of mental health courts, court processes may lead to even greater criminalization, stigma and fragmentation. Already, people with mental illness stay in jail two to three times longer than others charged with the same offenses.

Guidelines
State and local Mental Health Associations are in a strategic position in their communities to influence and guide the development and implementation of mental health courts in ways that safeguard the needs and rights of consumers. In order to avoid potential risks in establishing mental health courts, NMHA advocates that state and local Mental Health Associations be involved in the development and implementation of mental health courts from very early on. To assist in this effort, the following guidelines have been developed to support mental health advocates and justice systems in shaping new mental health court initiatives and holding mental health courts accountable where they currently exist.

1. Comprehensive mental health outreach – Access to community-based mental health treatment services for all people needs to be improved, and should not depend on the existence of mental health courts. Equally effective services should be assured for the treatment needs of persons not accused of crimes. This requires an investment in outreach services to promote voluntary treatment as an essential complement to any mental health court program.
2. Maximum diversion – Pre-booking diversion should be assured for all persons accused of crimes for whom a voluntary mental health treatment plan is a reasonable alternative to the use of criminal sanctions. Timely and accurate mental health screening and evaluation is the single most critical element in a successful diversion program. Mental health courts may be helpful in assuring such diversion, but should never be the only way, or even the primary way, that it can occur.
3. Meaningful diversion – Meaningful diversion would require that when appropriate, no charges would be filed, and the individual is diverted directly to treatment without entering the criminal justice system. In the alternative, when charges must be filed, criminal proceedings should be deferred for a set period, usually not exceeding a year. Dismissal of criminal charges would then be guaranteed after a set period of successful treatment participation.
4. No requirement for a guilty plea – A guilty plea should not be required to enter a mental health court program. This requirement precludes diversion from the criminal justice system at the earliest possible point in time and further criminalizes a person because of his or her mental illness. As indicated above, the preferred method is to hold charges in abeyance until the successful completion of the treatment program.
5. Voluntary/Non-coercive – While the threat of criminal charges influences any decision, participation in any mental health diversion program should involve the same level of voluntary choice required of a criminal plea. No one should have to decide whether or not to accept diversion until the terms and the nature of the proposed treatment plan have been fully discussed and documented.
6. Least restrictive alternative. – All persons participating in diversion programs should be treated in the least restrictive alternative manner available, and all unnecessary institutionalization should be avoided. Jails are generally an inappropriate place for persons waiting for diversion as jail experiences tend to exacerbate underlying symptoms of mental illness. Long jail stays should be avoided in all diversion cases.
7. Right to refuse treatment – The qualified4 right of a person with mental illness accused of a crime to refuse a particular treatment, including a particular medication, should be protected in a manner at least as protective of the consumer as the civil commitment process. A process should be established to review treatment refusals of persons diverted from the criminal justice system so that any decision to reinstate charges is made in an informed manner after all reasonable alternatives have been exhausted.
8. Advocate/Counselor – In addition to competent legal counsel in any criminal case, an experienced counselor, who may be a peer or other non-lawyer counselor, independent of any treatment facility, should be available to help the accused person to reach an informed decision. This person should also serve as an advocate to ensure that necessary services that have been mandated as part of a treatment plan are provided in a timely and appropriate manner. Mental Health Associations and other consumer advocacy groups may take on this important role.
9. Confidentiality – Networking to find an appropriate treatment setting, without safeguards, could compromise client confidentiality. Systems must be put in place to ensure confidentiality from the time that a person enters a mental health program.
10. Cultural competence – Cultural competence is essential to treatment success. NMHA believes that services must be tailored to the specific needs of communities and individuals in order to effectively address public health problems.
11. Community coalitions – The development of community coalitions, including partnerships between criminal justice, mental health and substance abuse treatment agencies, is essential to successful diversion programs. Such coalitions also should be involved in the creation and oversight of mental health courts. Consumers of mental health services and family members affected by mental illness need to be included in all such coalitions to assure that they address the real barriers to effective mental health treatment in that community.
12. Comprehensive outreach and training – Community coalitions need to reach out to all criminal justice system personnel and ensure that training is provided at all levels to deal with issues of mental illness, wherever and whenever they occur.
13. Co-occurring disorders – In addition, persons with co-occurring disorders, and especially substance abuse, must be treated in an integrated way, so that substance abuse is not an impediment to diversion.
14. Convening role – The focus of mental health courts should be on convening prosecution, probation, treatment and social services agencies to promote interagency collaboration in the interest of the individual. The focus should not be on the use of criminal sanctions to compel treatment.
15. Consolidation and coordination of cases – Cases should be consolidated to assure that the individual is the focus rather than the case. Centralized, coordinated case management and a single treatment plan are needed to avoid fragmentation, with or without a mental health court.
16. Handling relapses in the court setting – Relapses are inevitable during the recovery process. As such, an individual’s time under jurisdiction of the mental health court should not be extended as a result of these relapses.
17. Evaluation – Timely monitoring of court processes, waiting lists, and consumer outcomes are essential to ensure that mental health courts are responding appropriately to persons with mental illness, that waiting lists are kept to a minimum, and that treatment providers are held accountable for consumer outcomes.

National Mental Health Association
2000 North Beauregard Street, 6th Floor
Alexandria, VA 22311

1. NMHA Policy Number 50 (Issued 2002), “In Support of Maximum Diversion of Persons with Serious Mental Illness from the Criminal Justice System.”
2. (The score was compared to the scores of both voluntary and involuntary inpatients and involuntary outpatients.) Poythress, N. et al, "Perceived Coercion and Procedural Justice in the Broward County Mental Health Court," 25 Int. J. of L. & Psych. 517 (2002)
3. Griffin, et al, "The Use of Criminal Charges as Sanctions in Mental Health Courts," 53 Psych. Services 1285 (Oct. 2002
4. Washington v. Harper, 494 U.S. 210