Recommendations for Implementation

Judges who are able to recognize the symptoms of mental illness and understand the treatments and services available in the mental health system will be better equipped to deal with defendants with mental illness.  It is important that support for such judicial education come from the jurisdiction's highest appellate tribunal or its judicial supervisory authority with responsibility for continuing judicial education. Judges should also be aware of the prevalence and interaction of co-occurring substance abuse and mental health disorders.  This can be accomplished through direct training for judicial officers, or by identifying court liaisons available to court officers when individuals with mental illness are before the court.

Example:  Course on Co-Occurring Disorders, The National Judicial College

The National Judicial College has a course that helps judges become better informed about co-occurring substance abuse and mental health disorders.  The course is intended to help judges recognize the signs of a substance abuse or mental health disorder, select the appropriate judicial strategies for the treatment and monitoring of such individuals, and design a plan for the implementation of systems or ideas to address co-occurring disorders in their own jurisdiction.

Example:  Mental Health Liaison, Texas Judicial System

The state of Texas has created a mental health liaison to provide technical assistance to judges and attorneys in the pretrial and presentence phases.  The state is also developing a bench manual for judges, which provides guidelines on sentencing and alternatives.  A separate section of this manual will deal specifically with persons with mental illness.

It is crucial for defense attorneys and prosecutors to develop a basic understanding of mental illness and the mental health system.  Training topics can include information about the major mental illnesses, the high potential for recovery with proper diagnoses and treatment, and the prevalence and effects of substance abuse among individuals with mental illness (especially those involved in the criminal justice system).[2]In addition, prosecutors and defense attorneys should be trained to understand how mental illness can be a contributing factor to criminal behavior.

Some courts, such as Washington State's King County Mental Health Court, that focus exclusively on cases involving mental illness have used the expertise of mental health partners to help defense attorneys and prosecutors develop this awareness. Mental health service providers can offer brief in-service training sessions about different diagnoses, medications, service needs, and the components and contours of the mental health system.  These sessions also can provide an excellent opportunity for court personnel to educate personnel from the mental health system on the functions, concerns, and procedures of the courts. Successful collaboration depends on criminal justice and mental health partners who understand each other's missions and methodologies.

Prosecutors who are interested in pursuing alternatives to incarceration for defendants with mental illness should have a comprehensive understanding of the mental health treatment opportunities in their community.  Again, this goal can best be pursued through collaborative cross-training with local mental health providers.  The goal here is not just to develop awareness for prosecutors but to help representatives of both systems understand the needs and concerns of their counterparts.

The primary goal of defense attorneys - protecting the best interests of their clients - similarly requires that counsel should have a base of knowledge about mental illness as well as an up-to-date understanding of the types of mental health services available in the community, their individual requirements, and their experience working in the justice system. It may be especially helpful to have consumers and family members participate in these trainings to help assist defense attorneys in understanding the concerns of defendants who have mental illness.[3] Defense attorneys who will be specializing in cases involving defendants with mental illness, such as commitment hearings, should receive more in-depth training.

Example: Mental Health Litigation Unit, Massachusetts Committee for Public Counsel Services

The Mental Health Litigation Unit (MHLU) of the Massachusetts Committee for Public Counsel Services provides training for defense attorneys who represent individuals with mental illness in civil and criminal cases.  The MHLU offers a mandatory two-part training program for attorneys in Massachusetts who wish to accept assignments in mental health proceedings (e.g., civil commitment cases, involuntary treatment cases).  The first part of the training offers a comprehensive two-day review of mental health law and procedural rules applicable in mental health proceedings, with an emphasis on litigation technique and strategy.  The day-long second part of the training also provides an overview of the diagnoses and treatment of mental illness, emphasizing the issues typically raised in mental health proceedings (e.g., the prediction of dangerousness, medication).  The MHLU also offers training on mental health issues to public defenders and private attorneys who will be appointed in criminal proceedings.

There are two critical points in the criminal justice process where decisions as to an arrestee's interests are at stake: at the initial appearance before a judicial officer when the decision as to release or detention is made, and at sentencing, when the judicial officer decides for those convicted of a crime whether the offender should be incarcerated or supervised in the community for his conviction.  In both instances the judicial officer has available a neutral agency, whose role is to provide the decision maker with all information about the individual that is relevant to the decision.  For the pretrial release decision the agency - pretrial services - identifies and provides all information that might be indicative of the arrestee's likelihood to return to court as required and remain arrest free pending disposition.  For the sentencing decision, the assisting agency - probation - looks more broadly at the issues of rehabilitation, punishment, deterrence, and other legitimate concerns. In both instances it is critical that the officers be sensitive to the possibility that the arrestee suffers from mental illness.  It is not suggested that either agency attempt to become mental health diagnosticians; rather, both should be adequately trained to be able to refer (or recommend that a judge refer) people who may suffer from mental illness to trained mental health clinicians for a complete mental health assessment.  Furthermore, both agencies should be trained on confidentiality issues - the importance of obtaining consent for the release of mental health information, when and to whom information can be released, and the principle of conveying the least information necessary.

Example:  Handbook and Training for Working with Mentally Disordered Defendants, Federal Judicial Center

The Federal Judicial Center, the research and education agency of the federal judicial system, has developed a handbook and training program for federal probation and pretrial service officers regarding working with individuals with mental illness.  The handbook and training program cover a variety of issues, including basic information about different mental disorders and treatments; a discussion of how to identify the potential that an individual may have a mental health disorder or co-occurring substance abuse disorders; and supervision issues that may arise for individuals with a mental illness, such as issues of treatment, safety, and the potential for suicide.

Example:  Pretrial Services Training, Hamilton County (OH)

The Hamilton County Pretrial Services Program offers training for staff on a variety of issues surrounding clients with mental illness.  Staff members receive basic training on the variety of mental illness diagnoses, medications, symptoms, and co-occurring disorders.  In addition, pretrial staff members receive training on interview techniques, referral procedures, and confidentiality regulations.  The program provides both in-service trainings and outside training opportunities offered through a combination of in-house staff, independent contractors and workshops, and county-offered classes.

The American Bar Association (ABA) recommends that education about mental illness be incorporated into law school curricula.  There are a variety of legal education topics relevant to mental illness that are appropriate for law school classes, including mental health law, disability law, confidentiality rights, civil commitment proceedings, treatment rights, competency proceedings, among many others.  Some of these topics are already covered widely in law school courses around the country.  Some law schools, such as Virginia, Arizona, Nebraska, and Villanova have taken a more focused look at mental health and legal issues.

Example:  University of VirginiaInstitute of Law, Psychiatry, and Public Policy

The Institute of Law, Psychiatry, and Public Policy is an interdisciplinary program in mental health law, forensic psychiatry, and forensic psychology.  The institute offers academic offerings on a wide array of topics in mental health law, including ethical issues in mental health services, the interaction between psychological science and law, civil commitment proceedings, and many others.  The institute also provides training for medical students on relevant criminal justice issues.

Continuing legal education provides an opportunity for attorneys to improve their knowledge and skills regarding mental health issues.  The American Bar Association standards suggest that "bar associations, law schools, and other organizations having responsibility for providing continuing legal education" incorporate programs about mental health law and participation by mental health professionals in the criminal process into their curricula.  Furthermore, the ABA recommends that prosecutors, public defenders, and other attorneys who specialize in criminal law should participate in these programs.  Continuing legal education for defense attorneys and prosecutors can include basic information about mental illness (e.g., diagnoses, symptoms, treatment) as well as more specific material concerning mental health in the courts, such as different dispositional options, appropriate charging, and proper information sharing procedures.

To encourage the development of and participation in programs concerning mental illness and the courts, some state bar associations have made education about mental illness part of the CLE requirements.  This designation can help raise awareness about the importance of this type of education, but requires the development of curricula and educational opportunities to ensure that lawyers have the opportunity to become educated about this important issue.  Any organization providing or coordinating training programs concerning mental health and legal issues should make sure to obtain CLE certification, or credit toward professional certification, from the appropriate agency within the jurisdiction.  This will provide added incentive for lawyers and other court personnel to take advantage of these training opportunities.

Example:  Continuing Legal Education Requirements, Florida Bar

In February 2001, the Florida Supreme Court unanimously approved an amendment to the Continuing Legal Education (CLE) Requirements of the Florida Bar to include education on mental illness among the mandatory categories of continuing legal education. Florida Bar members are required to undergo 30 hours of CLE every three years, five hours of which must be in one of four mandatory categories (professionalism, ethics, substance abuse, and, now, mental illness).