Mental Health Courts as a Way to Provide Treatment to Violent Persons With Severe Mental Illness

While the great majority of persons with severe mental illness (eg, schizophrenia, schizoaffective disorder, bipolar disorder, major depressive disorder, and other psychotic disorders) are not violent, there is a small minority who may become aggressive when stressed.¹ For instance, in a US national study of persons with schizophrenia and violent behavior, the prevalence of serious violent behavior in the past 6 months was 3.6%.² Many persons with severe mental illness and a history of violence reside in jails and prisons. As an example, a recent study in a large US metropolitan jail found that 72% of persons with severe mental illness had a history of arrests for a violent offense.³ In this Commentary we discuss how mental health courts could divert violent persons with severe mental illness from the criminal justice system to the mental health system and ensure that they receive needed treatment.

Why does this minority of persons with severe mental illness become violent when under stress or pressure? Individuals with severe mental illness who are psychotic are more likely to become violent if they do not adhere to their treatment regimens.⁴ Substance abuse also has been shown to increase the risk of violent behavior in persons with severe mental illness.²

Moreover, some individuals with mental illness have anosognosia, a biologically based inability to recognize that one has a mental illness.⁵ In recent decades, there has been a growing literature on anosognosia in which researchers have identified various parts of the brain (such as the ventricles, frontal and temporal lobe subregions, medial temporal and inferior parietal regions, and subcortical structures) in which pathology is associated with anosognosia. This biologically based lack of insight of having a severe mental illness may be one of the predictors of violence in persons with schizophrenia; thus, demonstrating a relationship between poor insight and violent behavior.⁵

Since the latter part of the 20th century, there has been an increase in the number of persons with severe mental illness who have been placed in US jails and prisons. As of December 2006, using estimated percentages from the US National Commission on Correctional Health Care,⁶ at least 341 000 severely mentally ill persons were incarcerated representing a substantial proportion of the total jail and prison population of 2.3 million.⁷ These include many who have a history of violence. Despite this, there is a shortage of mental health treatment resources in jails and prisons.⁸

The large-scale criminalization of persons with severe mental illness has stimulated a variety of modalities to reduce the risk of violence for individuals with severe mental illness. One approach is to divert these persons from jails and prisons into treatment in the mental health system. A means for accomplishing this is through special courts called mental health courts.⁹

At first, these courts were established to hear cases of persons with mental illness who were typically charged with misdemeanors. In recent years, these courts extended their purview to serve persons with mental illness charged with nonviolent felonies. Some courts now consider cases of mentally ill persons who are charged with violent felonies.¹⁰

Ideally, in mental health courts all courtroom personnel (ie, judge, prosecutor, defense counsel, and other relevant professionals) have experience and training in mental health issues and available community resources. These courts are characterized by hearing specialized cases involving defendants with mental illness, using a nonadversarial team of professionals (eg, judge, attorneys, mental health clinician), and using some way to monitor adherence that may involve sanctions by the court. In addition, mental health courts have links to the mental health system that can provide treatment as well as needed services and support after discharge from jail to help enable the persons to successfully reenter their communities. By diverting persons with serious mental illnesses charged with crimes into programs designed to address their treatment and service needs, mental health courts can provide access to mental health treatment that may prevent further acts of violence, rather than simply incarcerating them with their treatment needs being neglected.

An underlying concept of mental health courts is the principle of therapeutic jurisprudence, which emphasizes that the law should be used, whenever possible, to promote the mental and physical well-being of the individuals as they are affected by the law.⁹ The concept of therapeutic jurisprudence is based on the belief that the application of the law can have therapeutic consequences. Therapeutic jurisprudence, however, does not diminish the importance of public safety, which is fully considered by the court. Therefore, if the intent of therapeutic jurisprudence is to be accomplished regarding persons with severe mental illness who have a history of violence, both their needs for treatment and society's need for safety must be taken into account.

While many persons with severe mental illness can be treated at community mental health clinics after their release from jails and prisons, this is generally not the case for the minority of persons with severe mental illness who have a history of violence. Placing such persons in a traditional community clinic can lead to exacerbations of their illness and acts of violence, which may result in rehospitalization or reincarceration.¹¹ For these patients, it is important to have special highly structured clinics staffed by professionals who understand dangerous mentally ill persons and their treatment. Moreover, adequate security and protection for staff in these clinics are essential.¹²

Community mental health facilities have generally been unwilling to treat persons who have been violent. Staff members of these facilities may be reluctant to assume responsibility for persons whom they fear may commit another violent or serious crime. They may be concerned that violent acts by their patients may put their program in jeopardy with the surrounding community. In addition, staff may fear for their own personal safety. Staff members of other community resources, such as housing and supportive living facilities, also may have this fear and reluctance.

Moreover, professionals in the criminal justice system, such as prosecutors, probation officers, and judges, are hesitant and often unwilling to release severely mentally ill individuals, who pose a risk of violence, into the community. These professionals may be concerned that such persons will not be monitored and treated adequately outside a locked setting and could very well become a danger to others.

Among individuals with mental illness, violent behavior is often associated with substance abuse or dependence.² A large number of persons with severe mental illness meet Diagnostic and Statistical Manual of Mental Disorders (Fourth Edition) criteria for abuse or dependence of alcohol, other drugs, or both.¹³ Therefore, if treatment after release from jail is to be successful, both the mental illness and substance abuse must be addressed. In the community, this treatment should be integrated; it is generally held that the same clinical personnel should provide and coordinate both mental health and substance abuse treatments.¹³

Persons with severe mental illness and a history of violence who are known to have resisted psychiatric treatment, including psychiatric medications, before their involvement with the criminal justice system present a further challenge for mental health courts.¹⁰ Consequently, the mental health court should ensure that these individuals accept referral, keep appointments, be adherent with psychoactive medications, and agree to appropriate housing placements. When a court maintains jurisdiction over persons with severe mental illness and has them return to court for periodic appearances with treatment progress reports, many of those persons with mental illness achieve good outcomes as defined by the absence of psychiatric hospitalization, arrests, violence against persons, and homelessness.¹⁴

Treatment mandated by mental health courts for persons with severe mental illness should include a close liaison between treatment staff and the court, the district attorney's office, the departments of probation and parole, and the person's defense attorney. In addition, input from the patients is an important element for successful treatment planning for community mental health services. However, some individuals require hospitalization or are simply too dangerous to be treated as outpatients, and therefore require treatment in secure, closely supervised facilities.¹²

An essential part of the treatment plan formulated by the mental health court is case management, which may be under the jurisdiction of either the mental health or criminal justice system.¹⁵ The case manager formulates an individualized treatment and rehabilitation plan with the patient's participation. Persons with severe mental illness who are suspected of being at risk to become violent when stressed may benefit greatly from having structure added to their lives; case management helps to provide this structure. The case manager monitors the patient's progress to determine if he or she is receiving treatment, has an appropriately structured living situation, has adequate funds, and has access to vocational rehabilitation. In addition, the case manager provides outreach services to the patient wherever he or she is living, whether alone, with family, in a board-and-care home, or in another residential setting. Because case managers coordinate and monitor all these services, they are in a position to keep the court informed about the patient's progress.

Control of symptoms with antipsychotic medications and medications for bipolar and depressive disorders is critical for persons with severe mental illness and a history of violence when under stress. Because many of these individuals may not have been adherent to their psychotropic regimens in the past, it is crucial to take appropriate measures to ensure adherence. For some of these patients, intramuscular medications may be needed. In addition, behavioral and cognitive techniques emphasizing anger management have been widely used and have been successful in the treatment and management of violence.¹²

The available evidence suggests that persons with severe mental illness who are involved in treatment have a lowered risk of arrest and violence because of the reduction of their psychiatric symptoms and substance abuse.² However, in general, many of the individuals most in need of psychiatric treatment are least likely to believe they need it and adhere to it.⁴ Therefore, if the incidence of violence in incarcerated persons with severe mental illness is to be reduced, a means must be found to involve them in treatment.

Mental health courts can provide access to treatment and the necessary coercion to ensure that violent, mentally ill offenders adhere to therapy and consequently reduce their risk of future violence. These courts can require treatment, including medications, structured housing, and substance abuse treatment. Such modalities may enhance the structure in these persons' lives. Enforcement of treatment regimens applied by mental health courts can increase adherence to therapy.¹⁴ This may be accomplished by having case managers monitor the treatment plan and by having the mentally ill offenders return to court for periodic review. Mental health courts can be a powerful force to reduce violence and recidivism. By applying the principles of therapeutic jurisprudence, these courts can protect society and improve the lives of mentally ill offenders who have been violent.