The Intersection of Mental Health and the Law - Education and Collaboration as Tools to Success

Since arriving at law school, it has baffled me that our classes do not teach us about the types of clients we may be interacting with (save for some clinical experiences if one is lucky enough to participate). The emphasis has always been on the law, which I can appreciate, however when we practice, so much of our job will be about how we convey that law to the general public when assisting them to navigate their issues. How can we effectively we do that if no one is reminding us of the types of clients we are likely to face? The “reasonable person” we are so often told about in the law will likely not be the person sitting across the table in a position of vulnerability.

While the focus of this post will mostly surround the intersection of mental health and criminal law, it is relevant to all practices. Clients with mental health or related cognitive issues are not absent in other areas of the law. For example, capacity issues are regularly at issue in wills and estate litigation.

The heart of this post stems from the Criminal Law Group and Mental Health Group hosting a panel discussion on February 14, 2019 to bring light to this issue. On this day, we had the privilege of hearing from leading voices from various perspectives. This panel included: Tony Kavanagh (Defence Lawyer at Kavawood), Nancy Fazenda (Manitoba Prosecutions), Graham Wyllie (Executive Director of FASD Life’s Journey), and Dr. Hygiea Casiano (Forensic Psychiatrist). Bringing these individuals into the same space to discuss the prevalence of mental health in criminal law quickly became clear that 2 hours was just not enough time to unpack the issues.

It should come as no surprise that there is an overrepresentation of individuals with mental illness in the justice system. (1) Generally, by the time an individual interacts with the justice system, there have already been a number of other system failures along the way. Data has been available and is gradually being interpreted through the Manitoba Centre for Health Policy. (2) This data confirms that there are many of the same individuals who experience mental illness, who are involved in the justice system, and have also been victims. This is alarming and shows we need to start paying attention to why this may be.

Fortunately, there are various models that have developed to try and combat this overrepresentation. The therapeutic court model in Manitoba includes the Drug Treatment Court, Mental Health Court, and the new FASD Court. There is a huge overlap however in these issues for these individuals. For instance, it is common for individuals with mental illness to self-medicate by using various street drugs. This can result in especially unpredictable behaviour. Sometimes those charges negate individuals from being eligible for either court system and has been coined “too mad for Drug Treatment Court; too bad for Mental Health Court”. (3)

Our job as defence lawyers is to advise, take instructions from our clients, and zealously advocate for their interests. The question then becomes, are we being prepared to identify if those instructions are meaningful? Furthermore, what do we do once we know they are not?

In the time we did have for the panel discussion, we were able to focus on the importance of understanding the different types of roles within the system. How communication and collaboration between the different parties is essential when working with an individual who presents with mental health concerns. The best bail or sentencing plan requires contribution and support. This requires input from the Crown and community support systems (if available). This requires reaching out to request psychiatric reports if needed.

These conversations have also reminded me how different our youth and adult systems are. In the youth sphere, this form of collaboration would be automatic and expected. The various stakeholders in a youth’s life are part of the conversation and work together to reach a resolution that is in the best interests of all involved (including the Crown and accused). The adult system has not been designed to function the same way, but there is no reason why we cannot demand better of it.

So how do we help? I think it starts by asking more questions of ourselves and of our clients. If something seems off, it probably is. I’m tired of hearing people say that “they aren’t social workers” and therefore “this isn’t their job”. Dr. Casiano used the example of there being a fire and that her being a doctor may walk by and see people on the ground, stop and try to assist them, but it does not change the fact that the fire exists. This is what individuals with mental illness face and we cannot keep turning a blind eye to it. We can deal with the issues we are trained to deal with while also calling in additional resources to assist on the issues we do not have specific training for.

As possible resolutions, I believe the development of course material discussing these issues in more depth would be particularly helpful for future students. Being able to identify whether there is a mental illness or cognitive disorder at play, then understanding the types of resources available and being able to attempt to connect those individuals with those resources will go a long way. Then we need to work to reform our adult legal system to better serve the individuals who are repeat users of it. It is clear the system was never designed to accommodate nor anticipate that the majority of those who interact with it will have such specific needs that the justice system is rather ill equipped to handle. We need to be in active pursuit of changing the system to make sense for this majority of the population that use it.

1. Allison D Redlich et al, “The use of mental health court appearances in supervision” (2010) 33:4 Int J Law Psychiatry at 272.

2. Gregory Finlayson et al, “The Whole is Greater than the Sum of the Parts: Using Data Linkage and cohort designs to create data synergy at MHCP” (2011) 6 Health Care Policy.

3. Richard D Schneider, Hy Bloom & Mark Heerema, Mental Health Courts: Decriminalizing the Mentally Ill (Toronto, ON: Irwin Law, 2007)