The legal system was not designed to address the issue of mental illness. Instead, our system of laws was developed to retain social order and civility, punish wrongdoing and protect the rights of those who lived within appropriate societal boundaries. However, a number of factors have stretched that system and forced it to contend with mental illness in every level.
The history of mental illness in America is an extensive subject that will not be fully addressed here, but a brief account is helpful in developing an understanding of how we arrived where we are today. Throughout American history (and well before in other nations), the mentally ill have been considered a burden on society. As such, they were often cast away into institutions where they were forgotten and considered social outcasts. This trend dominated for many years, with large institutions burgeoning to the point of bursting. They were usually understaffed and poorly resourced, which invariably led to harsh and dangerous conditions for patients.
Beginning in the 1960s and continuing through the early 1980s, the process known as “deinstitutionalization” was underway. The hope was to address the longstanding issue of needless long term hospitalization by moving patients who could function outside of an institution into the community. The recent discovery of a psychiatric medication that mitigated some of the symptoms of mental illness encouraged these moves and facilitated the hope that mentally ill people could perhaps live semi-independently, if not completely on their own. Over the span of about 20 years, the numbers of institutionalized mentally ill in the US reduced from about 500,000 to around 100,000.
Although the concept of a less restrictive treatment option and a significant decrease in hospitalized people may have seemed initially encouraging, the passage of time showed the sad reality of deinstitutionalization. As the numbers of hospitalized individuals declined, the numbers of homeless and incarcerated mentally ill rose at a similar rate. There are many reasons for the failure to adequately transition these individuals from long term institutions to communities. Nonetheless, those problems and failures have persisted for nearly 60 years with little reason to hope improvements are forthcoming.
One of the most obvious and persistent side effects of the deinstitutionalization failure is the lack of adequate community resources to provide for seriously mentally ill patients. Community mental health systems are often difficult to navigate, if one is able to find them at all. This results in a significant number of untreated (or under-treated) individuals. Although the mentally ill are not inherently at higher risk to commit violent behaviors than others, untreated mental illness makes one more likely to come to the attention of law enforcement for various reasons. For example, an acutely mentally ill person may be loitering, panhandling, a nuisance to the community, homeless, or simply putting themselves in harm’s way. At times, they may also commit criminal acts ranging from minor infractions to violent crimes. In each of these instances, the person is likely to interact with the legal system.
Once a mentally ill person is identified by the system, their situation potentially becomes much more complex.
Law Enforcement : Police have not historically enjoyed a very good reputation in their interactions with the mentally ill. They also had not been well trained to recognize and interact with mental illness, resulting in poor outcomes. Among these were mentally ill individuals being injured or killed. In addition, the mentally ill may be seen as resisting arrest or being disagreeable with police instructions. Fortunately, many law enforcement agencies have responded well to the growing numbers of mentally ill suspects by providing specialized training (see Crisis Intervention Teams as an example) to officers and dispatching them when mental illness is suspected. Additionally, departments are making concerted efforts to become more aware of local resources and attempt to divert obviously mentally ill individuals away from incarceration and into treatment when possible.
Jail: When a mentally ill individual must be arrested and taken to jail, they are at higher risk for victimization. In some cases, other inmates may prey upon them or may misunderstand odd behaviors and respond aggressively. Additionally, correctional officers may have an incomplete understanding of mental illness and similarly misinterpret symptoms as acts of willful defiance. Such behavior may be punished by using administrative segregation, which may exacerbate symptoms. For reasons explained in the next section, the mentally ill may experience long periods of incarceration while they await court hearings. These long stays, along with the inadequate treatment options of many facilities, may complicate their illness.
Court proceedings: Navigating the court system is complex and long-suffering for anyone, but even more for the mentally ill. The process of working through a court case often involves many hearings, minor and major decisions, waiting to hear from attorneys, wading through evidence, legal maneuvering and many other components. The complexities of an ordinary legal case may be confusing and overwhelming to a mentally ill person, but they also potentially face additional complications that can delay resolution and result in longer jail stays. Among these complications are concerns or doubts about competence/fitness to stand trial, criminal responsibility (insanity), capacity to fire or serve as one’s own attorney, ability to decline treatment and others. Each of these is multi-faceted, complex and has been the subject of writings and analysis by many scholars; nonetheless, they remain nebulous and not fully understood. Forensic mental health experts are often involved in assisting the court in understanding these matters and helping them make informed decisions about how/if to proceed.
Prison/Probation: At times, despite the presence of their illness, mentally ill individuals are convicted and sentenced. Prisons and jails share many of the same risks (noted above); however, prison sentences are usually much longer, which creates unique risk factors. Prisons often have more treatment options available also. When an inmate leaves prison, they may be required to be on parole or they may have been sentenced directly to probation. In both cases, the person will have a number of requirements to meet, including making contact with a probation/parole officer, refraining from drug/alcohol use, and perhaps attending court-ordered treatment services. As identified above, the mentally ill person may be confused or overwhelmed by these instructions. Additionally, mental health services can be difficult to find, access and afford. As with others, if the mentally ill person fails at their probation/parole requirements, they may be subject to incarceration. Similarly to the response of law enforcement noted above, probation and parole agencies have become more attuned to their mentally ill offenders and have developed specialized services to maximize their success.
In addition to the criminal justice system, the patient may also be confronted with civil law processes, which include involuntary hospitalization and/or medication. Any issue that includes restricting one’s civil rights is wrought with risks and potential problems. The threshold to put a patient in the hospital against their will is very high and requires a court order, which is only issued after the court has considered the evidence and determined the high threshold has been met. Even in these cases, the person may only be held for a limited time, as prescribed by law.
A related issue that occasionally arises in this context is risk assessment. Civil (and criminal) courts are often interested in knowing what, if any, risks a mentally ill person poses to themselves or the community. This is frequently the core issue civil courts consider during involuntary commitment hearings. As outlined above, courts often use forensic mental health experts to help them navigate this highly complex issue.
A final, albeit no less complicated, intersection of mental health and the law relates to the disclosure of personal health information (e.g. patient medical records). For many reasons, medical records may be required in court proceedings, but such records are tightly guarded. Attorneys and others may find the process of acquiring the needed records frustrating and cumbersome due to laws and professional codes of ethics that govern their protection. Having this information formally entered into a legal case can be helpful at times, but it also has the potential to do unanticipated harm. In most cases, a court order is required to assure the release of these records unless the patient is willing to voluntarily release them.
Regarding mental illness and the legal system, it is only a question of when (not if) the two will intersect. The above is a simple overview of some of the complex interactions. Having a working knowledge of the legal system can be very beneficial to a mentally ill person and/or their family if they find themselves entangled in it. Similarly, having a working knowledge of mental illness, its manifestations, and how it can complicate legal cases is vital for attorneys and other court personnel. In addition, they should know the legal options available for their client, as well as when a forensic mental health professional should be consulted.
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