The Mentally Ill: How They Became Enmeshed in the Criminal Justice System and How We Might Get Them Out

2. The Manufacturing of a Forensic Patient

[Definition: An individual with mental illness charged with, or convicted of, a criminal offence. And, in particular, those who have obtained verdicts of “unfit to stand trial” (Unfit) or “not criminally responsible” (NCR) on account of mental disorder.]

Here is a fictitious but very realistic example of how the mentally ill can become enmeshed in the criminal justice system – how they become “forensic patients”:

You and your family have been extremely frustrated because you can’t get your 18 year-old son any help. He hasn’t been taking his medications again. He continues to refuse medication because its poison. He has been holed-up in his room, making weird noises. He has become nocturnal. He has stopped bathing. He hears voices from the Martians. While he looks menacing, he has not actually been violent or overtly threatened violence. Your family physician is noticeably nervous when you ask that he be involuntarily hospitalized under the provincial Mental Health Act. You suspect that your physician is worried about his liability. You have tried to convince a Justice of the Peace that your son satisfies the criteria of the Mental Health Act but have been turned away because there is no clear evidence that he is dangerous to himself or others. You are exasperated with the civil mental health system. All you want is some help for your son. You say that the Mental Health Act has no teeth and that there are so few resources that even if he is admitted he will be discharged as soon as he can barely satisfy the Mental Health Act criteria. When he is admitted to hospital your son is discharged before he is stable. His condition deteriorates rapidly upon discharge.

But, recently the news has improved. He has been charged with a criminal offence. Yes, he punched a police officer who came to the house at your request. He has been charged with assaulting the police officer. The really good news is that he was so disorganized at the time he appeared in the bail court that the Crown Attorney had serious doubts about his fitness to stand trial. You took perverse delight in the fact that he had been charged with a criminal offence because now, in the criminal justice system, he can get a comprehensive psychiatric assessment. The court did indeed order an assessment to determine his fitness. The assessment indicated that your son was, as you knew, schizophrenic, and unfit to stand trial. You were ecstatic. Ecstatic, because the court, with his new status of unfit to stand trial, was able to order that he receive involuntary treatment in a hospital for a period of 60 days. None of this had ever been accomplished with the civil mental health system. From your perspective things just kept getting better. He was eventually found fit to stand trial. But the court ordered that he be kept in a hospital until his trial had concluded so that he wouldn’t stop taking his medication and become unfit again. This was the longest time he had ever spent in a hospital and you were thrilled. Eventually, he had his trial and he was found to have been “not criminally responsible” on account of mental disorder. As a result, he is now being supervised by the Ontario Review Board. After spending a little bit of time in the hospital the Review Board sent him back home to live with you but his case is still reviewed by the Review Board at least once a year. You feel much more comfortable because the Review Board is watching over him.

The Provincial and Territorial Review Boards, operating pursuant to the provisions of the Criminal Code, look after all accused like your son who have been found by the criminal justice system to be either unfit to stand trial or not criminally responsible on account of mental disorder.

Unfortunately, however, the greater percentage of individuals suffering from a mental disorder who, as a result, come into conflict with the law end up in jails or correctional settings. With this their prognoses worsen, their probability of re-offending increases, and, as discussed later, at a greater cost. All of the above might have been captured with much less expensive intervention at first instance engaging civil mental health care.