Mental health court and therapeutic jurisprudence

We welcome a diversion option in the justice system for people to access support for their needs rather than face imprisonment or other punitive measures. 

In the last few years there has been interest in the idea of setting up a mental health court to serve as an alternative to a regular court which can divert people to health support and rehabilitation taking into account any mental health related issues. 

And while we agree with the idea of a mental health court to properly serve the needs of people who end up in the criminal justice system, there needs to be careful consideration about sending the message that there is a link between mental disorder and offending behaviours or harmful behaviours. 

It is important to note that while there might be a correlation between a diagnosed mental illness and criminal behaviour, this doesn’t imply that anyone who has an experience of psychological distress is therefore more likely to commit a crime. There are many complex factors in play, and many of the factors associated with crime are the same as those that are associated with a mental health disorder like socio-economic status, substance abuse, poor social supports, and the effects of poverty and deprivation. 

There is a fine line that exists between the ‘criminalisation’ of the mentally ill and the ‘psychiatrisation’ of criminals, which may play a part in our overestimation of the relationship between mental health and criminal behaviour. 

A large study looking at the relationship between offending and mental disorder Germany clearly documented significant correlations between having a diagnosable mental illness and violent offences and then, famously, concluded that “if we define the dangerousness of the mentally abnormal as the relative probability of their committing a violent crime, then our findings show that this does not exceed the dangerousness of the legally responsible adult population as a whole”. 

It’s also important to consider the severity of the crime as well. In people where the offending is not seriously damaging to others there are huge benefits for having opportunities for diverting people who need mental health support away from the criminal justice system and into health services. This is particularly important as some argue that people with mental illness are being preferentially selected into the new prison populations.  

This could reflect a greater willingness to imprison certain groups of offenders that are over represented (e.g. public nuisance, social security fraud and repeat thefts). 

With a therapeutic jurisprudence – like the proposed mental health court – courts look to find solutions to underlying psychosocial causes of offending and are used to promote healthy behaviours and ultimately reduce recidivism. There are currently over 20 solution focused courts addressing significant social problems facing New Zealand, including drug and alcohol issues, family violence, homelessness, and offending by youth. It is for this reason that we are in favour of mental health courts – if we as a society are wanting to use our justice system to support people with the view of eventual rehabilitation into the community, then taking a holistic approach in the courts is imperative.