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July 31, 2016 | by  | in Features | [ssba]

Therapeutic Justice: The case for Mental Health Courts

In 2013 Amanda Bynes was accused of drunk driving whilst in the middle of a somewhat public mental breakdown. Her erratic behavior, which included throwing a bong out of a 36th floor window and tweeting that she wanted Drake to “murder my vagina,” were all symptoms of untreated bipolar disorder and schizophrenia. Since she was being tried on the DUI charge in California and she was referred to the mental health division of the Los Angeles Superior Court, where it was up to a judge to decide whether or not she was fit to stand trial.

What would have happened to Bynes had she been in New Zealand? Not being a lawyer, I can only speculate. She would have gone to the District Court. If she pleaded not guilty there is a chance she could have escaped conviction. If she had been found—or pleaded—guilty, she would be sentenced to disqualification from driving or a short prison sentence. What is missing from the hypothetical New Zealand approach to Amanda Bynes’ drunk driving escapades is any formal acknowledgement, prior to sentencing, from the Court that she is mentally ill and that this may have affected her decisions. As it stands, this goes for all offences unless there is a plea of insanity.

Does New Zealand do enough to address the role of mental illness in offending? A Radio New Zealand report in 2015 said no, New Zealand does not. The Bar Association was quoted as saying that New Zealand’s current justice system “recycles” the mentally ill through it. They offend, they get punished, the punishment ends, and then they go right back to committing another crime.

New Zealand does have some support for the mentally ill going through the justice system. There are nurses placed in police stations to assess anyone who appears to be experiencing mental health problems. In Auckland around two people per day are taken to Auckland Hospital and treated for mental health issues, rather than being detained in a jail cell. Most courts have forensic nurses in house. It is their job to establish if someone going through the court system has a mental health issue, and to refer them on to appropriate mental health services. There is also the forensic mental health units, where people already convicted and sentenced go to receive specialized care. But is this enough?

Judging by the estimated amount of mentally ill people who currently interact with the justice system on a daily basis, it is not enough. In 2012, the Mental Health Commission released Blueprint II: Improving Mental Health and Wellbeing for All New Zealanders. The report identified the prevalence of mental disorders among prisoners. 40–50 per cent of prisoners have depression. 15 per cent of male prisoners have schizophrenia. 45 per cent of prisoners have post-traumatic stress disorder. 90 per cent of prisoners are dealing with some kind of substance abuse or addiction. A 2010 report by the National Health Commission indicated that 20 per cent of inmates had “thought a lot about suicide.” In 2008, the Auditor General identified that prisoners were not getting timely access to mental health services. Last year Radio New Zealand reported that some prisoners are unable to get antipsychotic medication while in prison, with doctors being unavailable to give them the doses they need. Auckland University law lecturer Khylee Quince said that lawyers had shared stories over a number of years about clients who were unable to obtain medicine. It seems mentally ill people in prison are viewed as criminals, rather than criminals and patients, though Corrections would try to deny this.

There is a particular problem with mental health among young people. 65 per cent of the young people seen by Child, Youth and Family Services (CYFS) have a diagnosable mental condition. Only seven per cent have used mental health services. People who have been dealt with by CYFS at some stage in their lives make up 80 per cent of the prison population under 20. While it cannot be denied that the Youth Court is stepping in to help young people, perhaps they would benefit from more specialized mental health care.

In 2013, JustSpeak published an article in 2013 claiming that New Zealand prisons are not up the the standard outlined by the United Nations Minimum Standard Rule for the Treatment of Prisoners (1990). This standard is reflected in section 75 of the Corrections Act 2004, which states that all prisoners are entitled to receive all “reasonably necessary”  medical treatment. The Act also states that medical treatment in prison must be “reasonably equivalent to the standard of healthcare available to the general public.” This standard is not being met when it comes to mental healthcare, as shown in the Ombudsman’s 2011 report on mental healthcare in prisons.

JustSpeak’s article identifies the problematic way that at-risk prisoners are dealt with. Currently, if a prisoner is seen to be at risk of suicide they are placed in an “at-risk unit.” These units are camera monitored 24/7, the cell has limited fixtures, and the prisoner is given limited clothing and bedsheets to minimise the risk of them harming themselves. People are only meant to stay in them for up to a week. A National Health Commission report found that some prisoners were kept there for months at a time. Prisoners in the unit are not allowed shoes and are given a single square of fabric for their clothing. They are isolated, not allowed fresh air, and do not receive human contact. Ti Lamusse, No Pride in Prisons spokesperson, said that based on the statistics the group received from the Department of Corrections, it appeared that people in prison commit suicide at a rate six times higher than the general population.

All of this paints an incredibly concerning picture. People do not just go into prison and stay there forever, forgotten about. There will come a time in which the majority of people in prison will be released and have to reintegrate into society.

What would mental health courts do to support people going through the prison system? In their essence, mental health courts focus on bringing the offender out of the cycle of the justice system. Currently the role mental health plays in a person’s offending is dealt with at sentencing. A person’s mental health can be taken into account by a judge, resulting in them receiving a lesser sentence or receiving compulsory treatment instead of a sentence. At this point, however, the damage is already done. The mentally ill person is taken into the criminal justice system, where they are likely to experience a long waiting period before being seen by mental health services.

A mental health court would identify people with mental health issues at the beginning of the justice process. They would be dealt with in a separate court to regular offenders. This would ensure they were dealing with mental heath services from the outset, rather than waiting until they are already imprisoned before they can get access to help. Several jurisdictions in the US, such as Florida and California, have established mental health courts. They aim to reduce the number of people with mental health issues in the criminal justice system, stopping them from becoming further stigmatized by having a criminal conviction. Many people enter a treatment program as a result of being in the mental health court, which lasts for about a year. A judge can impose legal punishments if a person failed to comply, making the person more accountable if they do not follow the program. Instead of being punished, a person learns to deal with their illness while being monitored by people within corrections.

In the US there are criteria as to who can be seen by such a court. Usually it is people charged with misdemeanor crimes (which are usually punishable by up to one year in prison). They must have no history of violent crimes and be diagnosed with an illness under the Diagnostic and Statistical Manual of Mental Disorders V. People who commit more severe crime can be seen as beyond help. However some of the more recent mental health courts, such as that in Brooklyn, NY, have started to accept people charged with felonies (punishable by more than one year in prison) into their system.

There is the obvious question as to whether or not a mental health court would actually work. Some may argue that this is just shifting the blame off of a person who has committed a crime, that it’s providing them with an excuse to escape conviction. But mental illness can be seen as a root cause, the symptom being offending. What is the point of treating only the symptom, when the root cause can be addressed at the same time? If a more holistic approach is taken to address why someone committed a crime, and then supporting that person to overcome the why, it seems logical that they are less likely to reoffend.

There is also the criticism that the reason so many mentally ill people appear in the justice system is a result of underfunding in the mental health system. Unfortunately, this may be true.

Across the US,mental health courts seem to have had positive effects. Wasatch Mental Health, a facility in Utah, conducted a study into mental health courts. They found that it cost around $60,000 USD less to treat a person with mental illness than to keep them in jail for three and a half years, because people were far less likely to reoffend after completing a mental health court program. This model is being called “therapeutic justice.” Around 95 per cent of people in this study became compliant and continued to take their medication after their treatment was over.

There are plenty of other specialist courts in the country. There is no reason why a mental health court cannot be as successful in dealing with the mentally ill as the Youth Court has been in dealing with young people. Possibly the biggest hurdle towards establishing anything like this in New Zealand would be funding. With suicide rates at a record high last year, there is frankly not enough money going into mental health as it is. It is unclear whether our government would be willing to foot the bill to get a mental health court up and running.

Thanks to court ordered mental health treatment Amanda Bynes is now doing much better. There are many other people in New Zealand, however, that are not. While the mental health system within the criminal justice system may not yet be failing, it seems to be pretty close. Prisoners across the country are not getting the help they need. The fact that some of them are even prisoners in the first place indicates that we may have left it too late, and these people are now destined to go in and out of the system. Mental health courts have the power to make a real difference and the Government has to be willing to put some money into it. There are many people in New Zealand like Amanda Bynes who will not receive the help they need. New Zealand does a little to help the mentally ill in prison, but not nearly enough.


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