Recommendations for Implementation

One way to assist defendants with mental illness in complying with conditions of pretrial diversion is to recognize that the majority also suffer from co-occurring substance abuse problems.  According to several studies, rates of both mental health and substance abuse disorders are significantly higher in criminal justice populations than in the general population.[1]  Individuals with co-occurring disorders present unique challenges that must be addressed by the mental health and substance abuse treatment communities.  Individuals with co-occurring disorders, when compared to individuals with a single disorder, have heightened psychosocial difficulty, including an increased likelihood of problems with finances, social roles, education, housing, transportation, and marital stability.[2] In addition, people with co-occurring disorders experience more psychotic symptoms, have more severe depression and suicidality, have higher rates of incarceration, have more difficulty with daily living skills, are more noncompliant with treatment regimens, and are high service utilizers.[3]

Conditions of pretrial diversion should be the least restrictive necessary and reasonably calculated to accomplish the goal of pretrial diversion, which is to reduce the likelihood that the person will recidivate.  When a defendant is currently in mental health treatment and the treatment is helpful, it should be a requirement that he or she continue treatment as a condition of diversion.  If the defendant expresses significant concern regarding the usefulness of that treatment, a mental health consultation may be needed to determine whether there are better alternatives available.  When the defendant is not currently in treatment, an assessment should be conducted by a qualified mental health professional to determine the most appropriate treatment for the defendant, and then a referral should be made to begin that treatment.  This assessment should be conducted on an outpatient basis. 

Those with co-occurring substance abuse and mental health disorders should receive integrated treatment.  Barriers to specialized treatment for this population include differing mental health and substance abuse treatment philosophies and practices, policies that exclude active substance abusers from mental health treatment, policies that exclude persons with active psychosis or other symptoms of mental illness from receiving substance abuse treatment, and separate local, state, and federal funding streams for mental health and substance abuse treatment.

Treatment providers and the criminal justice community should be aware of the complexity involved in diagnosing co-occurring disorders and adapt professional practices accordingly.  Identification of those with co-occurring disorders should be occur in the early stages of criminal justice processing.

Research indicates that an integrated model of treatment is most effective for people with co-occurring mental and substance abusedisorders.[4]  That is, both the mental disorder and substance abuse disorder are treated in the same service setting, using cross-trained staff proficient in both mental health and substance abuse disorder therapy.  Too often, co-occurring disorders are treated sequentially  -  individuals receive treatment in one system first (either mental health or substance abuse) followed by treatment in the other - or concurrently - that is, individuals receive both mental health and substance abuse treatment at the same time, but with different therapists or at different agencies.  In both of these models, the burden of coordinating or integrating treatment lies with the client. (See Policy Statement 37: Co-occurring Disorders.)

Boundary spanners - people who act as liaisons to bridge mental health, substance abuse and criminal justice systems - should be knowledgeable about both mental health and substance abuse disorders and provide such information to the courts. (See Policy Statement 26: Institutionalizing the Partnership, for more on boundary spanners.)

Example:  Drug Court, Lane County (OR)

In Lane County, a mental health specialist trained to deal with co-occurring disorders is assigned to the jurisdiction's drug court in the dual role of case manager and court liaison to assist with people with co-occurring disorders who are placed in the drug court.   

The National Association of Pretrial Services Agencies (NAPSA) has standards for pretrial diversion that should prove useful in developing compliance and termination policies for defendants with mental illness who are placed in diversion programs.[5]  Those standards state that diversion conditions should be clearly written in a service plan signed by the defendant and the diversion program representative.  "Knowing exactly what is expected will decrease the likelihood of a participant's being unsuccessful in treatment."[6] The service plan should also detail what actions could be taken in response to the participant's failure to comply with the conditions.  The diversion program representative should explore any noncompliance with diversion conditions to determine whether the violation was willful, was a symptom of the mental illness, or was an indication of the need to change the treatment plan.  It must be recognized that decompensation and other setbacks are common occurrences for people under treatment for mental illness as the attending mental health clinician seeks the most appropriate treatment.

Defendants who are terminated for unsuccessfully completing the program should have their cases returned, without prejudice, to the regular court calendar.  Defendants should also be allowed to withdraw from diversion and have the prosecution of their cases resumed without prejudice.