H. Archibald Kaiser, Professor Schulich School of Law and Department of Psychiatry, Dalhousie University

1. Canadian Congress on Criminal JusticeOctober 30, 2009Panel # 22: Mental Health CourtsReasons To Be Skeptical AboutCreating, Cautious About Implementingand Vigilant About MonitoringMental Health Courts H. Archibald Kaiser, Professor Schulich School of Law and Department of Psychiatry, Dalhousie University

2. Jurisdictions considering establishing mental health courts • Should not jump on the bandwagon • Should consider alternative responses to the criminalization of persons with mental health problems • Should carefully assess all the available evidence before creating mental health courts • Jurisdictions that have decided to create mental health courts should be cautious as they implement this policy • Examine successes and disappointments elsewhere • Establish the policy framework and service supports to assist in avoiding pitfalls • Jurisdictions that have well-established mental health courts should be vigilant about monitoring them • Independent research is necessary to assess efficacy and shortcomings, based on non-discriminatory criteria • Any evaluation should be mindful of the broader issues surrounding the criminalization of persons with mental health problems • and consider policy alternatives

3. There is a tendency, in proposing mental health courts, to oversimplify the complex reasons that bring persons with mental health problems into conflict with the law, including: • previous failure to provide appropriate supports and services • poor collaboration between health and justice systems • the association between poverty, mental health crises and crime • “The substantial gaps in effective community services are the root of the problem and addressing them must be the first step towards its solution” (Bazelon Center, “The Role of Mental Health Courts in System Reform”, 28)

4. 2. The creation of mental health courts arises out of the stigma surrounding mental illness and propagates the same stigmatizing forces. • stigma is widely acknowledged as the “largest barrier to change” (2004 Senate Report) • stigma involves, among other things, the embrace of “misconceptions and negative stereotypes about mental illness (WHO Fact Sheet 218) • there is a double stigma surrounding persons with mental health problems who are in conflict with the law • a response to the criminalization of people with mental health problems that, in effect, says they are a special population requiring extraordinary institutions and controls, amplifies the pre-existing stigma

5. 3. Lawmakers, lawyers and judges often demonstrate “sanism”, as does the rest of the population. • “assumptions about people ... which reflect societal fears and apprehensions ... inspired by ... irrational, bias-driven stereotypes and prejudices” (Perlin, Mental Disability Law: Civil and Criminal) • these sanist assumptions lead to a thirst for expedient decisions about mental health consumers, thus prompting calls for mental health courts • as opposed to finding strategies that will reduce discrimination and support social inclusion

6. 4. Mental health courts have a diversionary effect. • discouraging investment in more propitious and effective community-based supports and services for people with mental health problems • and creating the illusion that something positive is being done: • “not a panacea for addressing the needs of a growing number of people with mental illnesses who come into contact with the criminal justice system” • (Bazelon Center, 29) • Although speaking of Community Treatment Orders, there is a close parallel in this critique: • “Aside from … the risks to individual liberty, such initiatives give the impression that legislators are addressing the needs of patients and carers while actually doing very little at all.” • (Steven Kisely et al, “Compulsory community and involuntary outpatient treatment for people with severe mental disorders”, Cochrane Collaboration, 10)

7. 5. Expectations for mental health courts are often centred on the use of coercive powers to order consumers to take medication. • mental health consumers’ valid objections to the use of medications may be silenced • the broader range of supports and services that people may require may be obscured • people with mental health problems may be increasingly perceived as requiring medication, rather than as persons whose participation as citizens should be encouraged

8. 6. The creation of mental health courts may encourage the charging of people with mental health problems and the use of the courts rather than pursuing other options such as not laying an information against the individual or finding other diversionary alternatives. • police and prosecutorial discretion must be structured, whether or not there are mental health courts, to provide strong diversion policies for people with mental health problems • people may be arrested to be brought to mental health courts with a view to securing services for them, which should be available anyway • “ …. There are many other types of court programs that may prove to be as or more effective” (Council of State Governments, Mental Health Courts, A Guide to Research-Informed Policy and Practice, 2009, at 3)

9. 7. There is “presently little empirical support for the efficacy of mental health courts” (Schneider et al, Mental Health Courts, 217), certainly not enough to justify their advancement, compared to other proven alternatives. • assertive community treatment, supportive housing, homecare, advance health care directives, peer counselling, employment opportunities and other initiatives may provide better outcomes, with a more reliable empirical base • although there have been “some positive results”, “there are many unanswered questions” and “much more research is needed” (Council of State Governments, at 27 and 2) • see Kaiser, “The Criminalization of People with Mental Health Problems: A Brief Overview of the Problems and Possible Responses” for a more comprehensive discussion (copy distributed at Congress)

10. 8. Mental health courts are likely to be used as yet another form of community treatment order or outpatient commitment. • as such, the courts will become just another cog in the wheels of coercion used against mental health consumers • The resort to mental health courts may be an expression in the criminal context of the swing of the pendulum towards intervention and paternalism represented by broadened standards for involuntary assessment and hospitalization in Mental Health Acts • “ … a mental health court may function as a coercive agent in many ways similar to the controversial intervention of outpatient commitment, compelling an individual to participate in treatment under threat of court sanctions” (Bazelon Center, 13)

11. 9. Mental health courts may “include practices that are unnecessarily burdensome to defendants, that make it harder for them to reintegrate into the communityand that may compromise their rights” (Bazelon Centre, 3) • mental health courts may be “more coercive than a standard criminal court and more damaging to a defendant’s future prospects” (Ibid.) • in that sense, mental health courts may become the antithesis of the least onerous, least restrictive and least intrusive alternative

12. 10.Mental health courts’ supervision may be unduly long: “significantly exceed the possible length of incarceration or probation for the offence” (Ibid., 13) • the mental health court may replicate the problems created through the Criminal Code and Review Board supervision over not criminally responsible accuseds • where there are no statutory caps on dispositions • and where Review Boards may retain control over accuseds for longer than the index offence would commend

13. 11. Mental health courts will not be able to order or control the quality and appropriateness of services ordered or facilitated by the courts. • the jurisdiction of the Provincial Court is not expanded merely by the creation of Mental Health Courts • thereby, accuseds may be set up for failure and the court’s work may be futile

14. 12. Mental health courts are ultimately “but one part of the solution. A broader effort at system reform is needed; indeed without such broader efforts courts can have only limited success.” (Ibid., 16) • There are many broader reforms in the justice, health and community services systems that can help reduce criminalization • How often is there any evidence of such “broader efforts” before mental health courts are created?

15. 13. There are more contemporary positive outlooks on the use of law in general as it relates to citizens with mental health problems, e.g. • The new U.N. Convention on the Rights of Persons with Disabilities recognizes that “disability resides in society, not in the person” (Bernadette McSherry, “International Trends Mental Health Law”, 5) and which requires parties to protect rights to live in the community, and provide support services and an adequate standard of living. • Scotland has created a statutory obligation to deliver “services which are designed to promote the well-being and social development of persons with a mental disorder” (Mental Health Act, s. 26) and the Scottish Recovery Indicator (SRI) to provide a tool to assess practices which support social inclusion • The Council of Europe has developed a checklist “to protect the dignity and human rights of persons with mental disorder” • The Mental Health Commission of Canada in its new National Strategy gives heightened recognition to the need for “employing the least intrusive and least restrictive interventions possible” and emphasizes the need to address “structural barriers related to housing, income, education, access to services.”

16. 14. The pendulum can swing in a new direction: • Reducing or eliminating the silo effect currently dividing mental health supports in the community and the criminal justice system • Providing for a richer range of community-based supports for people with mental health problems • Reducing the likelihood of crises and the felt need for coercion and intervention, whether through mental health law or the criminal justice system • “reason does play a role in public attitudes and political pendulums that swing right can also swing left …. perhaps hope will triumph over experience” (John Gunn, “Future directions for treatment in forensic psychiatry”, B.J. Psychiatry 2000)