Summation
Mental Health Court - A Bad Idea for Nova Scotia?
Note: The opinions expressed in the following article are those of the author and do not necessarily
reflect the opinion of his colleagues on the bench or the position of the Nova Scotia Provincial
Court.
by Judge D. William MacDonald
Nova Scotia Provincial Court
The creation of a mental health court in Nova Scotia may be a bad idea.
Among those with mental disorders currently in the criminal justice system are some who should
not be there. If a mental health court is established, even more of these individuals will end up there
instead of having their needs met through mental health facilities and community programs. Society
needs to find better ways to help those with mental disorders; ways which do not involve charging
them with criminal offences. If they are charged, they should be diverted out of the criminal justice
system at the earliest possible point.
Hospital and community-based programs are the first place to look when contemplating
improvements, not the justice system. Individuals with mental disorders may not have a place to live,
may not have a means of support, may not have the means to pay for prescribed medication, may
have addictions, may have other health issues, may have related or unrelated anger problems, and
any number of other challenges. If there were enough hospital and community-based programs to
promptly and adequately address their needs, fewer of them would enter the criminal justice system
in the first place.
Currently, when a person with a mental disorder is in crisis and immediate intervention is required,
police are usually called in. But police involvement does not necessarily mean the person is put on a
track which leads only to the justice system. Under Section 38 of the Hospitals Act, police have the
authority to detain a person for mental examination. Where the person is a danger to his or her own
safety or the safety of others, the Hospitals Act provides for involuntary hospital admission. Some
are not admitted at all. Others are released within a very short time, sometimes as short as 24 hours
or less.
The law sets strict conditions and time limits for holding persons against their will. It might be
prudent to consider adjusting the balance between the “liberty” of the individual on the one hand,
and the need to detain a person until his or her needs are addressed, on the other. If more
individuals are to be detained in hospital, there will need to be more available beds and staff.
The possible creation of a mental health court is not the only development which could direct more
persons (who don’t belong there) into the justice system. Another one is the new Involuntary
Psychiatric Treatment Act, enacted in 2005 but yet to be proclaimed. It changes the criteria for
involuntary admission.
The new Act also replaces one-day, three-day and seven-day assessment requirements in the
Hospitals Act with a one-month period, and a provision for renewals. This could be a positive
change, if the resources are there to provide the service.
The key part of the new involuntary admission test under this Act will be whether the person, as a
result of a mental disorder:
1. Is threatening or attempting to cause serious harm to himself or herself, or has recently done so;
has recently caused serious harm to himself or herself, is seriously harming or is threatening serious
harm towards another person, or has recently done so; or
2. Is likely to suffer serious physical impairment or serious mental deterioration, or both.
Under the new Act police will continue to be authorized to detain persons for medical examinations
if there are reasonable and probable grounds to believe the admission criteria are present.
There is one aspect of the Involuntary Psychiatric Treatment Act which causes me concern. If,
notwithstanding his or her mental disorder, the person has the capacity to make admission and
treatment decisions, that person – regardless of the fact that he or she has caused, attempted or
threatened to cause bodily harm to him/herself or another as a result of a mental disorder - cannot
be held against his or her will.
It is a significant change from the current law. This means that people who currently can be dealt
with by the health care system under the Hospitals Act may end up in the criminal justice system.
Allowing situations involving persons with mental disorders to deteriorate into a crisis is also more
likely to bring them into the justice system. I have seen situations where family members or friends
have called police because they have tried everything they can think of and they have run out of
options. In cases like this the facts often provide legal grounds for a criminal charge, such as threats,
assault, or property damage.
Sometimes, criminal charges may be pursued in the hope that the person in crisis will be detained
for a longer period than allowed for under the Hospitals Act. The Criminal Code provides for an
assessment, on reasonable grounds, to determine if a person is mentally fit to stand trial, or to
determine if the person meets the standard of criminal responsibility for their actions. The person is
often held in custody at a forensic psychiatric facility for between fourteen and thirty days while
being assessed. But it can also be done on an out-patient basis.
Those persons with mental disorders who should not be in the criminal justice system should be
diverted as early in the process as possible. Can we divert them before plea?
We already have guidelines for diverting first-time offenders charged with minor offences from the
criminal process. There is an agency which meets with the defendant and designs a means by which
the defendant can make amends. If the defendant successfully completes this process, the criminal
charge is withdrawn before plea. A set of similar diversion guidelines, specific to the needs of
mentally disordered persons, could be put in place.
But, if we can’t divert them before plea, are there sentencing options?
If a treatment plan is presented at the time of sentencing, it can be incorporated into a probation
order. Sentencing is a very challenging part of a judge’s job and judges are pleased when presented
with viable and reasonable options. All courts can give effect to treatment plans. The key is in
preparing a detailed treatment plan and ensuring the required services are available on a timely basis.
Nothing is achieved if a probation order contemplates delivery of services which are not available to
the probationer.
Neither sentencing options, nor the diverting of people before plea, require the creation of a mental
health court.
And finally, some of the support for a mental health court may be founded upon the expectation
that the Court will force persons with mental disorders to take medication or submit to other forms
of medical treatment. It cannot be done. A criminal court cannot order persons to take treatment to
which they do not consent.
A new mental health court, by itself, will not help society deal with persons with mental disorders.
More mental health facilities, community programs, and staff would also be needed. If these
additional resources were to be made available, fewer such people would end up in the Courts. And,
for those few who still do, the existing court structures and procedures would suffice.