When a case reaches a point where a judge is considering a dispositional alternative, it is likely that some information about the defendant's mental health status will be available in the case file.  This might include observations of the arresting officer as recorded in the police report and the information provided for the pretrial release/detention hearing.  If the defendant's competency was called into question, there may be a report in the file from a mental health clinician on the defendant's mental health status.  Several states have statutes that specifically allow for the disclosure of mental health records in court.  In Georgia, records can be disclosed in response to a valid subpoena.  In Illinois, a statute allows for the disclosure of mental health records once the recipient of mental health services introduces his or her mental condition as an element of the claim or defense.

Since a dispositional alternative will in many cases be a favorable outcome for the defendant, the defense attorney should carefully discuss with the defendant the advantages and disadvantages of the possible alternative before the defendant agrees to the release of any additional mental health information to the court.  In some cases, the defense attorney may find it advantageous to request an assessment of the defendant and provide the full results to the court to facilitate a decision to offer a dispositional alternative.  In these cases, release of the information would be with the consent of the defendant. (See Policy Statement 25: Sharing Information.)