human rights and legislation who resource book on mental health

15. Legislative provisions relating to mentally ill offenders
Legislative provisions relating to mentally ill offenders are a highly complex area covering both
the criminal justice <strong>and</strong> forensic mental health systems. There are wide variations in policy <strong>and</strong>
practice in different countries, <strong>and</strong> forensic mental health is often part of the criminal code (or
criminal procedure) rather than of mental health law.
The criminal justice system is charged with protecting the public, punishing criminals, <strong>and</strong>
administering the laws in a fair <strong>and</strong> just manner. Police, prosecutors <strong>and</strong> the courts should
conduct themselves in a way that protects the <strong>rights</strong>, not only of the victims of crime but also of
particularly vulnerable populations, including persons with mental disorders. One important goal
of the criminal justice system should be to ensure that no one with a mental disorder is
inappropriately held in police custody or in a prison. At present, this goal is not often achieved.
Far too many people with mental disorders are prosecuted <strong>and</strong> imprisoned, often for relatively
minor offences. There is increasing worldwide concern about people with mental disorders being
incarcerated in prisons, rather than being cared for in mental health facilities. In some countries,
there are as many individuals with schizophrenia in prison as there are in all the hospitals (Torrey,
1995).
The large numbers of persons with mental disorders incarcerated in prisons is a by-product of,
among other things, unavailability or reduced availability of public mental health facilities,
implementation of laws criminalizing nuisance behaviour, the widespread misconception that all
people with mental disorders are dangerous, <strong>and</strong> an intolerance in society of difficult or
disturbing behaviour. Furthermore, some countries lack legal traditions that promote treatment
(as opposed to punishment) for offenders with a mental disorder.
Prisons are the wrong place for people in need of mental health treatment, since the criminal
justice system emphasizes deterrence <strong>and</strong> punishment rather than treatment <strong>and</strong> care. Where
correctional facilities do emphasize rehabilitation, they are usually inappropriately equipped to
assist people with mental disorders. Unfortunately, prisons have become de facto mental
hospitals in a number of countries. Prisoners with severe mental disorders are often victimized,
intentionally or unintentionally.
Mental health <strong>legislation</strong> can help to prevent <strong>and</strong> reverse this trend by diverting people with
mental disorders from the criminal justice system to the mental health care system. Legislation
should allow for such a diversion at all stages of the criminal proceedings – from the time a
person is first arrested <strong>and</strong> detained by the police, throughout the course of the criminal
investigations <strong>and</strong> proceedings, <strong>and</strong> even after the person has begun serving a sentence for a
criminal offence.
Legislation can play an important role at various stages of the criminal proceedings. As
mentioned earlier (section 14 above), where minor “crimes” such as public disturbance are
committed by people suspected of having a mental disorder, it is preferable for the police to
immediately take such persons to treatment centres rather than have them subject to criminal
proceedings.
Laws governing mentally ill offenders – often part of criminal procedure rather than mental health
<strong>legislation</strong> – vary considerably among countries. The following section should thus be read in
close conjunction with existing legal processes in a country, <strong>and</strong> be adapted <strong>and</strong> adopted
accordingly. What never varies, however, is the principle that people with mental disorders
should be in appropriate facilities where suitable treatment is available.
The following are the different “stages” at which an arrested person can be diverted towards
mental health admission <strong>and</strong> treatment as found in different legislative statutes.
• Pre-trial stage
• Trial stage
• Post-trial (sentencing) stage
• Post-sentencing (serving sentence in prison) stage
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