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

6. Criminal Code is the Mental Health Act of Last Resort

The Criminal Code of Canada has emerged as the Mental Health Act of last resort. The provisions of the Criminal Code appear to be robust enough to provide a comprehensive system of care and supervision for the mentally disordered individuals who are entering the system at a disproportionate rate. The most pressing problem is that unless the forensic psychiatric system is adequately resourced our legislative mandate cannot be implemented.

How to return the mentally disordered accused to the status of “patient”? Arguably, if the system had worked optimally for him at first instance, he would never have lost patient status.

In North America, American Express markets its credit card with a concept called “Front of the Line”. Consumers wanting to either get the service quickly, or the best spot, at a theatre or similar such entertainment event, can use their American Express card to get to the “front of the line”. That is, in fact, what the forensic system does. It moves people to the front of the line, to ensure that they are being monitored and supervised by some form of case manager or case management team. Entry into the community from the forensic system occurs only after the patient, who in the Criminal Code system we refer to as “the accused”, has managed previous passes and liberties successfully. The scheme ultimately provides careful and gradual transition into the community with minimal risk to all. But it should be understood that although the forensic system ensures services, it is not cost effective. I do not know the figures, but one learned colleague suggested that up to 20 civil patients would have been accommodated and treated in the bed space time allocated to a single forensic patient.

The development and expansion of the forensic system, while meeting a legitimate need, is a tribute to the saying “necessity is the mother of invention”. The disempowerment of the civil mental health care system necessarily led to the forensic system’s growth. There developed an inverse relationship; as the Civil System became progressively de-energized, sacrificing in particular, the custodial and social components of mental health care, the forensic system increased in strength and volume. The formula can be expressed this way. The mentally disordered offender, formerly known as a patient, forfeited his liberty in exchange for the certainty of better mental health care, and the public’s greater assuredness that its safety interests would be met. The civil system under the MHA had been originally constructed as a safety net for patients and the public, but the net needed repair and rather than fixing it, a second net – the forensic system – was put in place - it is therefore the net under the net, or, the net further downstream.