Crown Attorney Ruth Peters Wakeham and Newfoundland Provincial Court judge David Orr in a Mental Health Court in St. John’s;  Photo by Joe Gibbons Click here to see full sized version.

The jury is still out on the value and effectiveness of mental health courts in Canada, but provinces are pushing for a verdict as they move forward to investigate – or implement – some version of this.

A few provinces, such as Ontario and New Brunswick, have mental health courts already up and running. Some provinces, like Newfoundland and Labrador, have ongoing pilot programs in place. Now they are being joined by other jurisdictions looking for ways to decrease the criminalization of the mentally ill while at the same time decreasing the growing number of individuals cramming provincial and federal jails.

Manitoba has been seriously exploring the issue since at least 2004. That year a committee was struck to assess the feasibility of establishing a court that would focus on individuals with severe and persistent mental illness. “The committee has had considerable discussion about principles behind a court, the need for a court and what improved service to mentally ill accused would look like,” said Louis Goulet, acting executive director with the Department of Justice.

“It has also had discussions with the chief judge of the provincial court about the court taking the lead on a pilot project,” he added.

In Nova Scotia, no formal investigation into the issue is underway, but the establishment of a mental health court is clearly being bandied about. The Nova Scotia Barristers’ Society devoted the most recent issue of its monthly newsletter to the topic. In that issue, Frank Hoskins, chief Crown attorney for the Halifax Region and Special Prosecutions, noted that, “Currently, Nova Scotia has an Adult Diversion Program, which is a post-charge, pre-trial option to the criminal justice system. A pre-charge option is worthy of consideration as it would create another viable alternative to deal with minor offences.

“In cases where it’s more appropriate,” he added, “this would enable specifically trained police officers to divert an accused away from the criminal justice system. More serious offences could be directed to the mental health court where judges and lawyers qualified or trained to deal with cases of this nature (and with ready access to the appropriate health professionals, which could include psychologists, psychiatrists and case workers) could develop and implement an appropriate treatment plan.”

The provincial court of Newfoundland has a Mental Health Court up and operating on a pilot project basis. The project, a joint initiative of the provincial court of Newfoundland, the Director of Public Prosecutions, the Newfoundland Legal Aid Commission, and Eastern Health has provided a judge, a courtroom with a clerk and meeting space. The Prosecution Service has provided a prosecutor. Legal Aid has secured funding for a lawyer and paralegal. Eastern Health has provided a psychiatric social worker and case manager, who make up the Court Support Team.

“The goal of the pilot project is to identify persons whose mental illness and related lifestyle issues cause them to commit offences and to provide them with supports, both to see them through the court process and to enable them to live lawfully in the community,” said Crown Attorney Ruth Peters Wakeham.

“The court currently has features of restorative justice and adult diversion, but is first and foremost a criminal court,” she added.

Despite the obvious benefits, there are concerns about mental health courts, which are still in their infancy in Canada. “The reaction to mental health courts among consumers and advocates is mixed. Many see it as a way to end the criminalization of persons with mental illness while others feel that it generates more stigma and forced treatment of persons with mental illnesses,” said Goulet.

“It is our hope that the process underway in Manitoba will bridge this gap and build a consensus approach,” he added.

When it comes to finding common ground, many provinces in Canada are looking south of the border to the U.S. where mental health courts have dotted the landscape for at least a decade – and have grown noticeably in that time. In 1997, there were only four mental health courts in the entire country. Today there are 120.

New research conducted by the Rand Corporation for the Council of State Governments Justice Center indicates they are working.  “The Rand study confirms that mental health courts make good fiscal sense,” said Sharon Keller, co-chair of the Justice Center Charter Group and a presiding judge in Texas.

“By connecting people with mental illness who have committed low-level crimes with community-based treatment, we can make better use of our jails and tax dollars, increase public safety, and make our communities healthier,” she noted.

The study found that participants in the Allegheny County Mental Health Court program, the focus of the research, received more mental health services and spent fewer days in jail than they might otherwise have if they had been sentenced in the criminal court, and fewer days in jail than they spent related to a prior arrest.

The researchers also discovered that government costs to provide additional mental health services would be mostly offset by money saved because participants under mental health court supervision spent less time in jail in the first year after sentencing.

This trend continued into the second year after sentencing when the time mental health court participants spent in jail in Allegheny County more than offset the costs to government of their continuing mental health treatment, the study concluded.

Those costs, both financial and human, are exorbitant – and growing. Research in the U.S. has found that more than 16 per cent of adults in jail have a mental illness; roughly 20 per cent of young people in the juvenile system have a serious mental health problem; and as many as 40 per cent of Americans with a mental health problem will butt up against the U.S. justice system at some time in their life.

There is little reason to believe that Canada’s situation is any less severe. “The custodial response to people with mental health problems is an historic one,” said Archie Kaiser, a professor in the Faculty of Law and Department of Psychiatry at Dalhousie University.

“To incarcerate people merely because we have failed to develop appropriate supports has always been shameful,” he added. “In 2007, this is totally unacceptable.”