Overview of issues - Mental health and the criminal justice system
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Societal views of mental illness over time
The Criminal Code and mental illness
Key criminal justice processes involving offenders with mental illness
Previous studies on the prevalence of individuals with mental illness in the criminal justice system
Relationship between mental illness and the criminal justice system
Mental illness is a worldwide health problem that in 2001 was estimated to impact over 450 million individuals (World Health Organization, 2001a). It is further projected that the problem will continue to grow and the World Health Organization (2001b) predicts that by the year 2020 mental and behavioural disorders will account for 15% of the global burden of disease, up from 11% in 1990. In Canada in 2002, approximately 2.6 million individuals (or 10%) reported symptoms consistent with mental health disorders, including major depression, "mania disorder",1 panic disorder, social phobia and agoraphobia,2 as well as alcohol and illicit drug dependence (Statistics Canada, 2003). In addition, it is estimated that approximately 1% of the general population has schizophrenia (Health Canada, 2002). While many individuals may be able to cope with their mental illness or compromised mental health in the community, some may display an inability to cope and require more extensive treatment in a hospitalized setting, while others may come into conflict with the law.
While mental illness is not a new concern for the criminal justice system, there has been a growing consideration about the issue of mental illness in general and about the prevalence of individuals with mental health issues and their contact with the criminal justice system. Most notably, the Standing Senate Committee on Social Affairs, Science and Technology, as part of its ongoing study on general health and health care in Canada, formed a roundtable on mental health and mental illness in 2001. A national action plan, including analysis and recommendations relating to the criminal justice system, was developed based on consultations from various stakeholders including federal and provincial departments, non-governmental organizations as well as professionals and individuals. The Committee found that Canada currently lacks national data on the status of mental health in Canada in key areas, including the criminal justice system. While the involvement of persons with mental illness in the criminal justice system has been identified as an issue, it is equally important to recognize that many individuals with mental illness do not come into contact with the criminal justice system (Public Health Agency of Canada, 2006).
Before undertaking an assessment of the possible directions in data collection regarding persons with mental health issues in the criminal justice system, this report will provide some context to the issue. This present part of the report provides a brief overview of changes in societal views of mental illness; changes in the Criminal Code's approach to mental illness; a discussion of definitional issues; an overview of key criminal justice processes involving individuals with mental illness, and; a brief summary of previous studies on the prevalence of the involvement of individuals with mental illness within the criminal justice system and the relationship between individuals with mental illness and their contact with the system.
Societal views of mental illness over time
Over time, various models have been used to explain mental illness, including those based on moral or religious beliefs and health perspectives. Prior to the late 17th century, Western countries, which were largely dominated by a Christian worldview, viewed individuals with mental illnesses as moral or spiritual deviants (Robb, 1934:235; Porter, 2002; Horwitz, 1977; McLachlin, 2004). As a result, the legal and religious authorities would often punish, exclude or eliminate individuals suffering from mental illness, regardless of whether they contravened laws (Szasz, 1970; Horwitz, 1977).3
The Western shift to a medical model of mental illness and a wide movement of institutionalization emerged in the 1700s, with a proliferation of mental institutions in the 18th and 19th century (Porter, 2002; Szasz, 1994, Fakhoury and Priebe, 2007). The first Canadian asylum was built in 1714 in Quebec City for female patients (Robb et. al., 1934). This was later followed by the construction of numerous mental asylums throughout Canada (Robb, 1934). A distinction in detention was also made between criminal offenders and offenders with mental conditions. In 1856, a Criminal Lunatic Asylum opened in Rockwood, Kingston, housing "the criminally insane" who were previously kept in the Kingston penitentiary.
In Canada, the deinstitutionalization model generally emerged in the 1960s as a result of issues related to the forcible confinement of individuals deemed mentally ill; the growing criticisms of psychiatric practices as dehumanizing and stigmatizing; and the emergence of the psychopharmacological treatment model4 (Horwitz, 1977; Szasz, 1970; Krieg, 2001; Porter, 2002). Deinstitutionalization refers to a concerted effort by the mental health system to find community-based alternatives to psychiatric hospitalization. Treatments for mental illness were seen as possible in the community through alternative care and with appropriate medication (Hartford et. al., 2003; Fakhoury and Priebe, 2007; Szasz, 1994).
However, it has also been argued that the deinstitutionalization movement has not led to adequate growth in community resources for individuals with mental illness (Sealy and Whitehead, 2004; Roesch, 1997). According to some researchers, many mentally ill persons lack supervision, access to adequate medication and services, and guidance to acquire basic skills for daily activities (Fakhoury and Priebe, 2007; McEwan, 2001).
The Criminal Code and mental illness
Along with a shift in the approach to treating the mentally ill in the general population, the Criminal Code treatment of individuals with mental illness has recently evolved. From 1892 to 1992, the provisions of the Criminal Code related to Mentally Disordered Accused gave powers to the Lieutenant Governor for the detention of persons found not guilty by reason of insanity. Persons could be held for an unspecified period of time.
Changes to this Lieutenant Governor's Warrant system were precipitated by the review of the Law Reform Commission of Canada in the mid-1970s, the findings of the Mental Disorder Project, and the Supreme Court of Canada ruling in R. v. Swain. The Law Reform Commission review found that persons who had been found "not guilty by reason of insanity" could be detained for a longer period of time than were persons found guilty (Law Reform Commission of Canada, 1976). The Mental Disorder Project, initiated by the Department of Justice in response to the review, stated in 1985 that the mental disorder provisions of the Criminal Code were in conflict with the Charter of Rights and Freedoms. Draft code amendments were circulated in 1986 (Pilon, 2001).
This Charter finding was confirmed with the Supreme Court of Canada ruling in R. v. Swain in 1991, which declared that the automatic detention of persons found not guilty by reason of insanity without a hearing to determine dangerousness or an appropriate disposition, was in conflict with the Charter. The government was given six months to pass remedial legislation.
Bill C-30 was subsequently proclaimed in 1992 to end the Lieutenant Governor's Warrant system and to change the verdict of "not guilty by reason of insanity" to "not criminally responsible on account of mental disorder" (NCRMD). Review Boards were also created as legal bodies to oversee persons found to be NCRMD, as well as persons found unfit to stand trial (UST).
In 1999, the Supreme Court of Canada clarified when detention was warranted in the case of R. v. Winko. The Court found that detention was only warranted if the accused presented a significant threat to the public that is criminal in nature. If the person is not considered a threat, then an absolute discharge must be issued.
In 2005, further Criminal Code amendments were introduced with Bill C-10 following the Standing Committee on Justice and Human Rights' review of the mental disorder provisions of the Criminal Code. These amendments included a number of reforms, such as expanding the powers of Review Boards, allowing victim impact statements to be read by the victim at Review Board hearings, authorizing courts under certain conditions to order a stay of proceedings for accused deemed UST, and repealing unproclaimed provisions from the 1992 reforms (Department of Justice, News Release, May 19, 2005). This represented the last set of legislative amendments relating NCRMD and UST.
Defining what constitutes mental illness is a significant challenge. Substantial variation exists on which behaviours and conditions should fall under the umbrella of mental illness, depending on the disciplines and mandates of the respective organizations or agencies. This is especially true within the criminal justice system.
Although no consistent definition exists across police services, the Canadian National Committee for Police/Mental Health Liaison (CNCPMHL), a subcommittee of the Canadian Association of Chiefs of Police, takes a broad view of mental illness. According to this group, individuals suffering from mental illness "refer to individuals who are out of touch with reality and who may need help to keep themselves or others safe" (CNCPMHL, Accessed June 16, 2008). Since the police are often the first responders to situations involving individuals with mental illness and must react to situations, their own observations as well as observations and information from family, friends and neighbours are often used, rather than official psychiatric assessments or diagnosis. Policing decisions, however, must be in keeping with the Criminal Code and the relevant provincial/territorial mental health acts.
At the court level, non-specialized criminal courts rely on the provisions within the Criminal Codeof Canada relating to fitness to stand trial and not criminally responsible on account of mental disorder (NCRMD), which view mental disorder as a "disease of the mind". An offender is declared unfit to stand trial when it is determined by the court that he or she is:
unable on account of mental disorder to conduct a defence at any stage of proceedings before a verdict is rendered or to instruct counsel to do so, and, in particular, unable on account of mental disorder to (a) understand the nature or object of the proceedings, (b) understand the possible consequences of the proceedings, or (c) communicate with counsel. (Criminal Code, Section 2)
A verdict of NCRMD is based on psychiatric assessment by a court expert. There must be a mental abnormality causing impairment. This excludes voluntary intoxication or fleeting mental conditions, such as a concussion (Hucker, 2005). The individual must also not be able to appreciate the criminal act. Case law has found that the presence of mental disorder does not always result in a determination of NCRMD. For instance, criminal offences stemming from compulsive urges, such as sexual paraphilias or atypical sexual interests, will often not be considered NCRMD (Hucker, 2005).
At the correctional level, custodial facilities and community services view mental illness in terms of protection of self and others, re-offending and treatment needs. The determination of an offender's mental illness may be based on psychiatric assessments or diagnosis. For long-term offenders under the responsibility of the Correctional Service of Canada, the definition of mental illness is on the basis of the requirement to provide essential health care and "reasonable access to non-essential mental health care that will contribute to the inmate's rehabilitation and successful reintegration into the community" (Corrections and Conditional Release Act).
Similarly, provincial/territorial correctional services, which are responsible for accused persons remanded to custody, offenders sentenced to custody for less than 2 years and offenders sentenced to the community or conditionally released into the community, approach the mental health of individuals based on risks and needs. Forensic assessments to determine risks of re-offending and treatment needs of the offender are conducted in collaboration with forensic experts, mental health courts, community mental health services and substance abuse programs. Mental health needs are then addressed within the programs of offender rehabilitation and reintegration into community.
From a health perspective, there is some agreement that mental illness can be defined as a behavioural, psychological or biological dysfunction that impairs the person's ability to function with the everyday demands of life (Davidson & Manion, 2008; provincial mental health acts of Prince Edward Island, Nova Scotia, New Brunswick, Saskatchewan, Alberta, British Columbia). However, the extent of impairment varies widely depending on the type of mental illness, as well as on the individual's social support network and socio-economic situation (Public Health Agency of Canada, 2006). In Canada, the classification of mental illnesses is based on the Diagnostic and Statistical Manual of Mental Disorders (DSM) or the International Classification of Diseases (ICD) Mental Health Section. DSM is developed and published by the American Psychiatric Association and covers the diagnostic criteria for all mental disorders, while the ICD is published by the World Health Organization and is the international diagnostic classification for diseases and health problems.
While defining the term mental illness is critical to understanding the relationship between mental illness and criminal justice system involvement, it is equally important to recognize that many individuals with mental illness do not come into contact with the criminal justice system and are able to cope with the illness with treatment and appropriate supports (Canadian Mental Health Association, 2004). Individuals with appropriate treatment for their mental illness who do not display any symptoms would often be considered in good mental health. Mental health is defined by the World Health Organization as a "state of well-being in which every individual realizes his or her own potential, can cope with the normal stresses of life, can work productively and fruitfully, and is able to make a contribution to her or his community" (World Health Organization, Accessed June 19, 2008).
Key criminal justice processes involving individuals with mental illness
An individual with mental illness may come into contact with police (for either a criminal or non-criminal incident), courts or corrections as an accused, victim or witness to a crime. As an accused, the person may move through the three levels of the criminal justice system, namely police, courts, and corrections, or they may only enter one or two levels of the justice system. The process for adults and youth may be lengthy and complex. The following section highlights the key processes for police, courts, and corrections.
Police respond to a variety of incidents, both criminal and non-criminal. When an incident involves a person with suspected mental health issues, the options for police often depend on whether a federal (including the Criminal Code), provincial/territorial, or municipal statute has been violated (See Appendix 1, Diagram 1). If no violation is suspected, the police will decide on an appropriate course of action that may include apprehending the mentally ill individual according to the provincial/territorial mental health acts, referring the individual to community or family resources, or taking no further action.
When it is suspected that an offence has occurred, the police may choose to charge or informally divert the individual out of the criminal justice system. It has been suggested that an officer may be more likely to charge if violence has occurred, if the individual has been arrested before, or if there is an outstanding warrant due to the person's failure to appear in court for another offence (Alderman, 2003). Police may sometimes charge the individual with the offence if resources in the community cannot be found (Wilson-Bates, 2008; Arboleda-Florez and Holley 1988; Hartford et. al., 2005). However, even once charged, the accused can still be informally diverted, diverted to mental health intervention, or sent for psychiatric assessment. In other cases, charged individuals will proceed to court, with or without pre-trial detention (e.g., remand).
Like any accused, when an adult or youth with mental illness is charged, a bail hearing will take place. The accused can either be released on bail or detained in either custody or a mental health facility for assessment.
Recently, mental health courts have emerged to address the issue of accused with mental health issues. These specialized courts involve mental health and legal professionals to accommodate the needs of people with mental illness charged with minor criminal offences. By integrating traditional criminal justice principles and the philosophy of providing treatment and help, the overarching goal is to minimize offenders' re-contact with the criminal justice system (McGuire, 2000). This is accomplished by making use of psychiatric, legal and community resources, notably diversion programs. For example, upon discharge into the community, these courts provide accused persons with information and contacts to facilitate access to accommodations, community psychiatric facilities, social assistance, and clothing (Ontario Court of Justice, 2006).
If fitness to stand trial is raised during court proceedings in traditional criminal courts or specialized mental health courts, a fitness hearing will be held. An accused may be found unfit to stand trial (UST) when it is recognized that he or she is not fully capable of instructing counsel or is not capable of understanding the nature and consequences of a trial (Steller, 2003). If the person is fit to stand trial and is found guilty, but mental illness is raised as a possible criminal defence, then the court must determine if the accused is not criminally responsible on account of a mental disorder (NCRMD). The two criminal court considerations, fitness to stand trial and not criminally responsible on account of mental disorder, are described below (Also see Appendix 1, Diagram 2).
Fitness to stand trial5
Where the accused is found UST, the judge can issue a disposition for either detention in hospital or conditional discharge.6 An absolute discharge can not be issued. However, as of 2006, a stay of proceedings can be issued if the accused is not likely to become fit, the accused does not pose a significant threat to public safety and a stay is in the interests of the administration of justice.7 If a stay of proceedings is not authorized by the court, the accused is assessed for fitness within 45 days by a forensic expert. In some cases, the accused may return to court once they are determined to be fit (e.g., with proper treatment or medication, they are able to understand the court proceedings and instruct their counsel). If the accused remains unfit after 90 days, the accused appears before a Review Board for assessment and disposition.
If the accused is still UST after the initial 90 days, the Review Board reviews the case on an annual basis. In these circumstances, the prosecutor is required to prove that there is enough evidence to bring the case to trial (referred to as prima facie) every two years for adults and every year for youths, and at any time the accused requests the proceeding. In cases where the court determines that there is no longer sufficient evidence to prosecute the accused, the case is dropped and an acquittal is entered.
When the accused is found to be fit, the trial may resume. The accused may be found UST again at any point before the verdict is reached.
Not criminally responsible on account of a mental disorder8
If the trial resumes, mental illness may be raised as an issue for defence, whether or not a fitness to stand trial was raised. According to the Criminal Code, the accused had to be suffering from a "disease of the mind" that prevented the accused from understanding the consequences of his or her actions at the time of the offence or of knowing they were wrong.
A verdict of not criminally responsible on account of mental disorder (NCRMD) is established through an assessment ordered by the court. The issue can only be raised by the prosecution after it has been established that the accused did commit the crime or after the accused has raised his or her mental capacity as an issue.
A verdict of NCRMD is not synonymous with a finding of guilt or a conviction. Rather, the verdict means that the court has ruled that the accused was not criminally responsible for his or her actions at the time the offence was committed.
After a verdict of NCRMD, the court may either give a disposition or defer the action to a Review Board. However, if either the prosecutor or the accused apply for the court to give the disposition itself, and if the court is able to do so, it must comply. The court may give the following dispositions:
- Detention in-hospital;
- Conditional discharge; and,
- Absolute discharge.
In cases where no disposition is made by the court, the accused person is referred to the provincial or territorial Review Board, where the Board will give a disposition within 45 days of the verdict. Dispositions given by the court, with the exception of absolute discharge, are reviewed by the Review Boards within 90 days and may be altered at that juncture.
For accused who receive dispositions for detention in-hospital, they are not required to submit to treatment while in-hospital. The disposition is intended to detain the accused in an environment where appropriate medical and psychiatric care is available to them. However, in cases where the accused refuses treatment that may be necessary to maintain good mental health, treatment may be deemed necessary. In these cases, treatment is administered in accordance with respective provincial/territorial mental health acts.
Consideration of mental illness at sentencing
Even when the accused person is found fit to stand trial and is found criminally responsible for the criminal incident, the courts may consider their mental health condition during sentencing. For both adults and youths, conditions can be attached to a non-custodial sanction, such as probation and for youth, intensive support and supervision orders. One of these conditions can be to attend a mental health treatment program.
In addition, under the Youth Criminal Justice Act(YCJA), courts can sentence serious violent young offenders suffering from mental or psychological disorders to a specialized custodial sanction. Known as the Intensive Rehabilitative Custody and Supervision order (IRCS), the court must also ensure that an individualized treatment plan has been developed for the young person.
Correctional services include both custody and community services. Adult offenders sentenced to custody for two years or more fall under the federal penitentiary system. Sentences to custody of less than two years and community-based sanctions, such as probation and conditional sentences, are the responsibility of the provinces and territories. In addition, provinces and territories are responsible for adults who are ordered to be held in custody before or during their trial (i.e., remand, or pre-trial detention) and other forms of temporary detention (e.g., immigration holds).
Youth correctional supervision programs include sentenced custody (both secure and open), remand (pre-trial detention) and community supervision, which are administered under the authority of the provincial/territorial agencies responsible for youth corrections.
When an accused with mental illness is admitted to custody, the provincial/territorial or federal facility will determine if the offender needs special accommodation, such as a treatment centre or unit, and if the individual needs psychiatric care, such as psycho-tropic medication and ongoing one-on-one psychiatric treatment (See Appendix 1, Diagram 3). Recently, the Correctional Service of Canada, which is responsible for federally incarcerated offenders, has adopted a number of strategies to improve the assessment of an offender's mental health upon admission. Assessments are undertaken to "establish treatment plans, facility placement, and data collection for future planning" and to provide successful transfer of care upon releasing offenders (Standing Senate Committee on Social Affairs, Science and Technology, 2006).
Previous studies on the prevalence of individuals with mental illness in the criminal justice system
Measuring the prevalence and nature of the criminal justice contact of individuals with mental illness is challenging given differences in definitions of mental illness and variations in data collection techniques (e.g., interviews, administrative records, etc.) across and even within criminal justice sectors. The lack of conformity in definitions and data collection instruments prevents comparison between studies.
This section highlights key Canadian studies that have attempted to document the extent and nature of mental illness in the criminal justice system. These studies are examined by the criminal justice sector, namely police, courts/Review Boards, and corrections. To date, most studies have focused on the corrections sector.
In general, studies on the interaction between individuals with mental illness and the police have examined the frequency and nature of these interactions. While the approaches have varied, the most common data collection tool has been specially designed survey tools, as opposed to existing and ongoing data collection methods.
Most recently, Crocker et al. analyzed six years of administrative data from the London Police Service and examined the rates, patterns, and types of police contacts among men and women with and without serious mental illness (Crocker et al., 2009). The study used a specially designed algorithm to extract records based from the police service's records management system. The algorithm extracted records based on police caution flags, addresses and key words indicative of mental illness. The study found that men and women with a serious mental illness represented less than 1% of individuals who had contact with the police service, but that they were involved in 3% of interactions. Individuals with serious mental illness were more likely than those without mental illness to be in contact with police as suspected offenders, to have a greater number of offences, to reoffend more quickly, and to be formally charged for a suspected offence.
The Vancouver Police Department conducted a prevalence study on patrol officers' contact with persons exhibiting mental health issues (Wilson-Bates, 2008). Over a sixteen-day period, two police officers from each squad were asked to complete a card to indicate calls where poor mental health was considered a factor in the call. Of the 1,154 calls, police identified 31% of all persons to be displaying poor mental health. These calls may include non-criminal activities.
Re-contact has also been examined. One study using administrative police records showed that persons with mental illness were twice as likely to be at risk of re-involvement with the criminal justice system compared to other offenders (Hartford et al., 2005).
Finally, a few studies have considered the nature of police criminal contact with mentally ill persons. A 1984 study in southern Alberta examined the socio-demographic, offending and incarceration characteristics of offenders displaying mild to severe disturbed behaviour (e.g., incoherent speech, delusions) and offenders not displaying abnormal behaviour (Arboleda-Florez and Holley, 1988). Using a survey form designed by the police, police officers scored the level of disturbing behaviour on a scale of 1 to 7. The results of the study showed that disturbed mentally ill persons did not have greater number of serious crimes than offenders with no mental health problems. No significant differences existed between the groups with respect to demographic characteristics, employment, alcohol/drug use, number of prior offences, rate of detention and length of stay in custody.
Canadian studies on the policing sector have suggested that police work often involves encounters with individuals with mental illness. However, these interactions are not necessarily criminal in nature and when they are criminal, they do not differ in seriousness from interactions with accused persons with no mental illness.
Courts and Review Boards
Available Canadian studies on the criminal courts tend to focus on fitness hearings and cases involving individuals not criminally responsible on account of mental disorder, rather than the number of individuals with symptoms of mental illness who have appeared in criminal courts. As indicated earlier, not all individuals with mental illness would be found unfit to stand trial or not criminally responsible on account of mental disorder.
Review Boards were created in 1992 to oversee individuals who were not criminally responsible on account of their mental disorder or were found unfit to stand trial. A Department of Justice study of administrative Review Board files from seven provinces and territories found that the rate of court cases referred to Review Boards increased 50% between 1994/1995 and 2003/2004 (Latimer and Lawrence, 2006). This report indicated that this increase in admissions to Review Boards "is clearly not the result of more accused appearing in adult criminal court. Rather it is an indication that the courts were more likely to find an accused NCRMD/UST or that the issue of mental disorder was raised more often in court" (Latimer, and Lawrence, 2006). The study also indicated that 57% of those admitted for NCRMD/UST had prior criminal convictions.
Much of the research on the prevalence of mental illness among correctional populations has focused on adult offenders in custody (Canadian Institute on Health Information, 2008).
A study of Alberta's provincial correctional population was based on clinical interviews using the Diagnostic and Statistical Manual of Mental Disorders-II-R (DSM-III-R) and data from legal, criminological and medical records of inmates admitted to Calgary Remand and Detention Centre (CRDC) (Arboleda-Florez et al., 1995). The 1995 study found a higher prevalence of mental illness among remanded persons than in the general non-incarcerated population. Other findings included a higher prevalence among men and Aboriginal people, as well as differences in types of mental illness depending on the offender's age.
The Correctional Service of Canada collects information on the mental health of federally incarcerated inmates. This information is captured at the point of admission. According to the "Corrections and Conditional Release Statistical Overview", 10% of the federal inmates in 2006/2007 were diagnosed as having mental illness at time of admission (Public Safety Canada Portfolio Corrections Statistics Committee, 2007). The report also shows an increase in the proportion of offenders using prescribed medication for mental health issues, from 10% to 21% between 1997/1998 and 2006/2007.
There is some evidence to suggest that the prevalence of mental illness among federally incarcerated offenders has increased since the 1960s, the decade when deinstitutionalization commenced. In the final report of the Standing Senate Committee on Social Affairs, Science and Technology (2006), Howard Sapers, the Correctional Investigator of Canada, noted that the number of offenders with mental disorders admitted to federal institutions in 2004 was 60% higher compared to 1967 (57% for men and 65% for women). When substance abuse was included, the total increase was 84%.
Criminal histories between mentally ill incarcerated offenders and non-mentally ill incarcerated offenders have been examined. One national study found that both mentally ill individuals and those without mental illness in long-term custody such as federal prisons have "equivalent criminal history" outside and inside their current institutions (Porporino and Motiuk, 1995). This research included a sample of 72 Canadian federal inmates in long-term custody and data were collected from various sources of the Correctional Services of Canada (CSC) and the Canadian Police Information Center. One group (36 inmates) consisted of mentally disordered offenders. The other group comprised non-disordered offenders with matching characteristics, including age at the time of survey, type of offence and length of sentence. The study showed that 67% of the "disordered-offender" group and 64% of those without any disorder were "first time federal offenders" (Porporino, 1995, p. 35).
Evaluation studies have also been conducted on the effect of the change in legislation regarding mentally disordered offenders on correctional services (Roesch et al., 1997; Laberge et al. 1995). Based on administrative data from British Columbia between 1992/1993 and 1993/1994, researchers found that the Canadian Criminal Code changes had a direct impact on the number of mentally disordered individuals sent to remand (Roesch et al., 1997). The findings suggest an increase in the number of people remanded for pre-trial evaluation for such cases.
With respect to mental health issues among youth in custody, two Canadian studies examining populations in British Columbia and Toronto have looked at prevalence (The McCreary Centre Society, 2005; Ulzen and Hamilton, 1998). The studies provide prevalence rates for disorders such as depression, attention deficit hyperactivity, substance abuse, fetal alcohol spectrum disorder, post-traumatic stress disorder and schizophrenia. In their analysis, the Canadian Institute for Health Information (2005) suggests that prevalence of these disorders may be higher among incarcerated youth than in the general population.
Relationship between mental illness and the criminal justice system
Research literature offers some suggestions on the relationship between individuals with mental illness and their contact with the criminal justice, including the increased visibility of individuals with mental illness in the community, and; mental illness as a risk factor for criminal involvement.
Increased visibility of individuals with mental illness
One school of thought suggests that the increased visibility of mentally ill persons outside the mental health care system has manifested itself in increased interaction with the criminal justice system (Holley & Arboleda-Florez, 1988; Adler, 1986; Menzies, 1987; Teplin, 1984). In other words, the argument made is that there are no predisposing factors of mental illness that inherently increase the propensity for criminal activity. The argument stems from the position that "insufficient and under-funded local mental health services" in the wake of the deinstitutionalization policy have contributed to the excessive visibility of persons with mental illness in the community, and thus to their increasing interaction with the police (Hartford et al., 2005, p. 8; Riordan, 2004, Canadian Mental Health Association, 2004).
The Canadian Mental Health Association (2004) further argues that persons with mental illness are susceptible "to detection and arrest for nuisance offences (e.g. trespassing, disorderly conduct)" and "more likely to be remanded in custody for these minor offences". A similar pattern in criminal justice system contact has been also been noted by Canadian and American researchers (Porporino, 1995; Adler 1986; Teplin, 1984; Teplin, 1990).
It has been argued that stigma and discrimination tend to increase the visibility of mentally ill persons, as it can cause difficulties in accessing accommodations, treatment and services (Link and Stueve, 1995). A report by the Public Health Agency of Canada (2006) states that "stigma and discrimination attached to mental illnesses are among the most tragic realities facing people with mental illness in Canada…[promoting] stereotyping, fear, embarrassment, anger and avoidance behaviours" (p. 21).
One indicator of the visibility argument for the association between persons with mental illness and the criminal justice system is the co-existence of homelessness and mental health problems. According to a 1998 study within the City of Toronto, "approximately 66% of homeless persons have a lifetime diagnosis of mental illness. This is 2 to 3 times the rate in the general population" (Riordan, 2004; see also Canadian Institute for Health Information, 2007). In light of this, some researchers argue that mentally ill persons who are also homeless tend to have greater visibility and are more likely to "be arrested at a disproportionately higher rate compared to non-mentally disturbed offenders" (Arboleda-Florez et al., 1996, p. 19 to 21) and are more frequently sent to remand due to inability to pay bail or find legal representation (Davis, 1992).
Many argue that persons with mental illness who offend enter a cycle of criminalization where they are more likely to return to the criminal justice system than those who are not mentally ill. Specifically, the 2006 final report of the Standing Senate Committee on Social Affairs, Science and Technology reports that a cycle is perpetuated by the absence of an adequate transition from correctional services to community-based treatment or support programs. It was stated that the "lack of continuity" often puts offenders, particularly released offenders, at risk of experiencing a number of problems. According to the report, not only do many released offenders with mental disorder come into (re) contact with the criminal justice system, they also tend to look for other means to alleviate their problems, such as self-medication with illegal drugs. This is particularly the case in the absence of sufficient treatment and adequate access to community support and constant stigma and discrimination.
Mental illness as a risk factor for criminal involvement
Other researchers have suggested that individuals with mental illness are at higher risk of committing crime and violence than individuals in the general population (Modestin, 1998; Paterson et al., 2004). As a whole, the body of academic literature tends to support some type of association between mental illness and violence; however, the argument of an association is tempered by the following:
- the association is often significant but small;
- the co-morbidity with substance abuse increases the risk;
- socio-demographic factors play a role in the association;
- active symptoms are more important than a diagnosis; and,
- the direction of causality is not fully understood (Mulvey, 1997).
In general, researchers have relied on four methodological approaches to test an association between mental illness and criminality. These methods have included examining mental illness among the offender population, criminal behaviour among individuals with mental illness, community studies examining mental illness and criminality separately and then analyzing the relationship, and longitudinal birth cohort studies (Modestin, 1998; Paterson et al., 2004).
Proponents of the increased risk of criminality among individuals with mental illness warn that many studies on this topic are flawed in their methodology, sampling and design (Sirotich, 2008; Paterson et al. 2004, Arboleda-Florez et al. 1996; Link & Stueve, 1995). It has been argued that studies are often non-comparable and/or inaccurate due to differences in the subjects studied, absence of standardization, lack of control for confounding variables, and lack of proper techniques to determine whether mental disorder precedes criminality or vice versa (Sirotich, 2008; Paterson et al. 2004, Arboleda-Florez et al. 1996; Link & Stueve, 1995).
The involvement of individuals with mental illness in the criminal justice system is receiving increasing attention, coinciding with a larger movement to study and respond to the mental health of Canadians. In 2003, the Standing Senate Committee on Social Affairs, Science and Technology under the leadership of Senator Michael Kirby, undertook a national study of mental health, mental illness and addiction. The results of this study were a set of recommendations, including the creation of the Mental Health Commission of Canada in March 2007.
In response to a demand from the justice community, this current report has focused on issues related to mentally ill individuals who come into contact with the criminal justice system through calls for service to the police, or as accused or offenders in the criminal court and correctional systems. It does not examine issues involving persons with mental illness who are victims of crime.
The perception and treatment of persons with mental illness has changed over time, including key developments in the criminal justice system. Since 1992, amendments to the Criminal Code have increased the rights of offenders found not criminally responsible by moving away from the prerogative to hold persons for an indeterminate period of time.
Each criminal justice sector approaches the issue of mental illness based on their particular roles and their legislated obligations. As such, there are often differences in the way mental illness is defined, ranging from observational and reportable behaviours to official diagnoses. For an accused person, contact in the criminal justice system may involve all three levels of the criminal justice system, namely police, courts and corrections, or contact may be limited to one or two levels of the justice system.
Assessing the prevalence of mental illness within these sectors has been attempted by a number of researchers, but these studies have been generally restricted to samples that were not nationally representative. Researchers' explanation of the relationships between mental health and the criminal justice system was also discussed in this report, including two leading explanations: the increasing visibility of mentally ill individuals, as well as the heightened propensity to commit crime.
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- The Canadian Community Health Survey - Mental Health and Well-being defines mania as a period of a week or days with exaggerated feelings of well-being, energy, and confidence in which a person can lose touch with reality (Statistics Canada, 2003).
- The Canadian Community Health Survey - Mental Health and Well-being defines agoraphobia as the fear and avoidance of being in places or situations from which escape might be difficult or in which help may not be available (Statistics Canada, 2003).
- These views still pervade many parts of the world. According to the World Health Organization (2006), in some cultures mental illness is still perceived as an affliction of an evil spirit. Mentally ill persons are widely neglected, often confined to psychiatric institutions, subjected to "inadequate, degrading and harmful care and treatment as well as unhygienic and inhuman living conditions" (World Health Organization, 2006).
- Psychopharmacological treatment model refers to the use of medication to modify behaviour.
- Adapted from Steller, S. 2003. Special Study on Mentally Disordered Accused in the Criminal Justice System. Catalogue no. 85-559-X. Ottawa, Canadian Center for Justice Statistics, Statistics Canada.
- The court or Review Board can direct the accused be discharged subject to conditions as the court or the Review Board considers appropriate (C.C.C. 672.54 (c)).
- Bill C-10, An Act to amend the Criminal code (mental disorder) and to make consequential amendments to other Acts, 1st session, 38th Parliament (assented May 19, 2005), Statutes of Canada 2005, c 22.
- Adapted from Steller, S. 2003. Special Study on Mentally Disordered Accused in the Criminal Justice System. Catalogue no. 85-559-X. Ottawa, Canadian Center for Justice Statistics, Statistics Canada.
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