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Recommendations for Implementation
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a.
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Streamline administrative procedures to ensure that federal and state benefits are reinstated immediately after a
person with mental illness is released from jail.
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People with mental illness who are unable to afford
private insurance to help pay for treatment costs may be eligible for
Medicaid. (See Policy Statement 13:
Intake at County / Municipal Detention Facility, for more on detainees'
Medicaid and Social Security eligibility.)
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b.
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Develop
guidelines on compliance and termination policies regarding defendants with
pretrial release conditions.
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Placing court-ordered mental health conditions of pretrial
release on those with mental illness must be accompanied by the ability to
monitor compliance with those conditions.
The judge and the defense attorney should make clear to the defendant
the consequences for violating release conditions. The responses to condition violations should reflect the nature
of the violation and should, unless the violations are severe, gradually
escalate before imposition of the ultimate response - revocation of release.
It is important to have a written understanding regarding
compliance and termination policies.
When a court orders a defendant to enroll in or maintain treatment,
whether it be for a mental illness, or for drug or alcohol abuse, deference
must be paid to the treating clinician regarding the status of the person in
treatment. Decompensation itself should
not be considered a violation and the first response to noncompliance should be
an attempt to adjust the treatment. Thus, the clinician or treatment program
must assess the client's compliance with the order to participate in treatment
on a case-by-case basis. However, the
treatment program should provide the court and the referring agency with
written guidelines outlining its general policy for determining whether a
client is in compliance and when it is time to both successfully and
unsuccessfully terminate a client from treatment.
When a violation of a pretrial release condition has been
alleged, the court should hold a hearing looking into the circumstances of the
alleged violation before taking action on the violation. Such circumstances should include attempts
by the defendant to comply; reasons cited for noncompliance; and the nature of
the violation. The court should
consider that people with mental illness commonly experience relapses while in
treatment, and that finding the most appropriate treatment is often a matter of
trial and error for the treating clinician.
Before imposing punitive sanctions for noncompliance, the court should
conclude that the defendant was capable of complying but chose not to.
Given the difficulties that defendants with mental illness
may have in complying with conditions of pretrial release, it may be beneficial
to have specially trained staff from pretrial release and diversion programs be
responsible for supervising defendants with mental illness.
Example:
Pretrial Services Program, Bernalillo County (NM)
In Bernalillo County, New Mexico, a team of three
specialists from the pretrial services program supervises defendants with a
mental health condition of release.
These specialists work closely with a Forensic Case Manager who
facilitates client treatment and acts as liaison between treatment services and
the criminal justice system.
To protect the therapeutic/treatment relationship, mental
health treatment programs should not report compliance and terminations
directly to the court, but through the referring court entity - the pretrial
services program or the pretrial diversion program. In most cases, it would be sufficient to provide compliance
information in summary form. An
exception would be if staff of the treatment program became aware of a specific
threat that the client may pose. In
that instance, the professional guidelines of the clinician should dictate the
most appropriate method of response.
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