Mental Illness and its Battle with the Legal System

One in five Canadians will suffer from a mental illness at one point in their life. In a public mental health crisis, people are more likely to encounter police than the medical help that they need. As a result, in institutions such as prisons and jails, the number of people with mental illness that get convicted is on the rise.

At the moment of arrest, those with mental illness are more likely to be convicted than those without. Once an individual with a mental illness is placed in an institution that does not have access to the proper care that they need, their illness will get worse and the probability of them getting convicted again when they are out increases.

These statistics need to change. An action plan is needed to ensure that those with mental illness get the proper care that they need during the conviction process in order to get a fair sentencing and/or keep them out of the criminal justice system in the future.

How should mental health issues be taken into account during the criminal justice process?

It may reduce the individuals blame in the offence.

In some cases, an offence is committed because of the mental illness. If there is a lack of proper care, an individual’s mental illness may impair the offender’s ability to think clearly about their behaviour. In this case, the severity of their charges should be reduced.

The illness might affect the kind of sentence (if there is one) that is imposed.

If an offender is mentally ill, likely their offence was a cause of it. This is a valid reason for either suspending/reducing an offender’s sentence and/or requiring the offender to get the necessary treatment to ensure this is not a repeat occurrence.

A person’s mental illness may result in the punishment being dealt with more harshly.

As mentioned at the beginning of this article, those with mental illness are more likely to be convicted than those without. The reason being is that some characteristics of mental illness (lashing out to others, talking loudly to themselves, causing disruption etc.) are more susceptible to arrest because they are wrongfully perceived as an offender over something that they may not be able to control (especially if they are not aware of the mental illness themselves).

Referral to proper rehabilitation should be a requirement for those with mental illness.

If it is determined that an individual committed an offence largely due to mental illness, they should be referred to proper rehabilitation. This will ensure that the offender will get the proper care that they need (and may have not had access to previously) and prevent them from getting into the criminal justice system again.

The above factors all have the end goal of mitigating a sentence to ensure that the individual with the mental illness gets the proper care needed. However, it should be recognized that these factors should only apply for mental health conditions that are considered ‘treatable’. Some examples of ‘treatable’ mental health conditions are schizophrenia, bipolar disorder, depression etc.

The above factors SHOULD NOT be applied to mental health conditions that are considered ‘untreatable’. An example of this are personality disorders and paedophilia.

What if a person with a mental illness ends up in prison?

In the case that a person with a mental illness ends up going to prison or any corrective institution, there should be several protocols put in place to ensure the safety and wellbeing of the individual and ultimately those around them.

Some of these protocols are:

  1. Ensure that all inmates go through an intensive screening process for mental health issues.
  2. Have specialized treatment (therapy, medication etc.) on hand for those with mental illness.
  3. Ensure that the mental health services are up to date and that those services continue after the offender has been released from the corrective institution.

What happens when a person with a mental illness leaves the prison system?

In jail, many individuals with mental illness will not receive the proper treatment that they need and as a consequence, end up with worsened conditions. After leaving jail, it is likely that many individuals will not have the access to needed healthcare and benefits.

To make matters worse, the criminal record that they have will make it all the more difficult to get a job or housing. This leads to the individuals having no access at all to proper healthcare and some end up being homeless. The end result is that, without treatment, they will likely become re-arrested and the process starts all over again.

Measures need to be put into place to ensure that those with mental illness are treated fairly in the justice system. If you have any concerns about individuals with mental illness and their situation with the justice system, please contact your local criminal lawyer.