When an arresting officer brings a case to the prosecutor's office, a prosecutor screens the case to determine whether to file criminal charges, and, if so, which charges. ^[1]     The police report, which describes the circumstances that led to the arrest of the individual, might note any overt behaviors that are indicators of mental illness.  (See Policy Statement 5: Incident Documentation)  That report usually is made available to prosecutors very early in the life of the case - sometimes within hours of arrest.  Often, however, prosecutors may have no indication of possible mental health issues when reviewing the arrest information.  The arrestee may not have exhibited symptoms of mental illness at the time of the incident, or the officer may have believed that the person was under the influence of drugs or alcohol.  Without such information, the prosecutor cannot consider special accommodations that the defendant might need to be successful in pretrial diversion or any specialized mental health diversion program that might be appropriate.  Procedures have been implemented in some jurisdictions to gather mental health information for the pretrial diversion decision.

In this example and others like it, the defendant has given prior written consent for the release of mental health information for the purpose of determining possible placement in a pretrial diversion program. The consent should be provided only after the defendant has consulted with his or her attorney.  (See Policy Statement 7: Appointment of Counsel, for more on consent issues.)  The consent provided should be in writing and explicitly specify what information the defendant is consenting to have released, who is being authorized to make the release, the parties to whom the information will be released, and the purposes for which the information is to be used.  Finally, the release of mental health information should be consistent with all applicable confidentiality and ethical requirements, as well as conforming to the principle that the information released is the minimum necessary to make an informed pretrial diversion decision.  All information collected through this process should also be made available to the defense attorney.