Recommendations for Implementation

Both mental health and criminal justice officials are bound by professional codes of ethics that define the doctor-patient, lawyer-client relationship.  Communications between mental health providers and their clients, or attorneys and their clients, are protected from disclosure unless the client specifically provides written consent for the release of information.[1]  As in cases where pretrial diversion is being considered, the written consent should explicitly state what information the defendant is consenting to release, who is being authorized to make the release, the parties to whom the information will be released, and the purpose to which the information is to be used.  Recognizing that the privacy rights of the individual with a mental illness must be balanced against the needs of the court to have all the information that might be relevant to assessing the defendant's risks to public safety and of failure to appear in court, the information released should be the minimum necessary to make an informed pretrial release decision.  (See Policy Statement 25: Sharing Information, for more in-depth recommendations on information sharing.)

For the pretrial release decision, the defendant is under no obligation to provide the court with any private information, including mental health status.  In many instances, though, it is in the defendant's best interests to do so since it might facilitate his or her release and allow for the continuation of existing treatment.  Seeking consent for the release of information from an individual who may have a mental illness, however, must be done with extreme caution because the mental illness may impair the person's ability to give informed consent. 

If the individual has provided consent to the release of the information, the next step is to gain access to that information.  Jurisdictions have taken different approaches to obtaining mental health information for the pretrial release hearing. 

Example:  Connecticut Mental Health Center

Mental health staff from the Connecticut Mental Health Center receive each day a list from the court of all individuals just arrested that they cross-reference with their database to see who is currently in their system.  Staff then interview the defendant and, in coordination with the public defender's and the pretrial services offices, develop a plan for release.  This plan is then submitted to the court.

Two other issues that must be addressed in a discussion of obtaining mental health information are the ethical guidelines of mental health professionals and the timeliness of receiving that information.  Mental health clinicians are prohibited from conducting a mental health assessment before the defendant has had an attorney assigned and has consulted with the attorney.  Jurisdictions have addressed these ethical guidelines in a way that allows for a timely assessment of a defendant's mental health status. 

Example:  Public Defender's Office, Broward County (FL)

In Broward County, where mental health clinicians conduct an assessment before the pretrial release hearing, the clinicians are on the staff of the public defender's office.  This expedites the process of conducting a mental health assessment while ensuring that the client has received appropriate consultation with an attorney.

It is also important to respect established boundaries when court and mental health professionals work together in these ways.  Mental health clinicians should not make recommendations regarding whether the defendant should be released pretrial; they should limit their presentation to the court to the defendant's mental health condition, history, and needs and how those needs can be addressed. 

According to American Bar Association Standards, every jurisdiction should establish a neutral entity that gathers all the historical information that is relevant for the pretrial release decision.[2]   In many jurisdictions, there is no designated agency that conducts these functions, particularly in nonmetropolitan areas.  In those jurisdictions, the judicial officer presiding at the pretrial release hearing typically receives information directly from the defendant, from the arresting law enforcement agency, and, if present, from prosecution and defense.

In many other jurisdictions, pretrial services programs or their functional equivalent provide this information.  When these programs interview a defendant, it is standard practice to inform the defendant of the purpose of the interview, how the information will be used, and of the defendant's right to refuse to answer any or all of the questions.  The scope of services provided by these agencies, including the populations that they target, the information that they gather, and the options that they provide to the court, vary greatly across jurisdictions. 

Since jurisdictions vary so widely in the mechanisms used to obtain and disseminate information relevant to pretrial release decision making, it is not possible to recommend a single approach to providing the court with the defendant's mental health information.  However, several principles should be followed.  First, jurisdictions should have some neutral entity that provides the pretrial release decision-making officer with all the information relevant to that decision.  Second, defendants should be advised that they have the right to speak with an attorney before answering any questions, and that they have the right to refuse to answer any questions.  Third, the neutral entity should provide the judicial officer with viable options to address identified mental health issues.

In its interview with the defendant, the neutral entity should ask whether the defendant has any mental health problems and whether he or she has ever been treated, either inpatient or outpatient, for a mental health problem.  The entity should recognize, however, that a history of mental health treatment is not necessarily an indicator of higher risk of failure to appear or rearrest.  For example, if a defendant reported having received mental health counseling after a traumatic event in the past, this information may not be relevant to the pretrial release decision and the interviewer should use discretion in recording that information.  The interviewer should note behavior, such as the defendant seeing things or hearing voices that are not apparent to the interviewer.

In some instances, the pretrial interviewer will be unable to conduct an interview with the defendant because the defendant's mental condition precludes communication.  This situation often can be resolved quickly once the defendant is reconnected with his or her mental health caseworker.

Example:  Data Link Project, Maricopa County (AZ)

As part of the Maricopa County Data Link Project, the local behavioral health authority receives an automated list of every person booked into the local jail.  The computer at the health authority seeks matches from the jail list with the list of more than 12,000 clients who receive mental health services in the area.  When a match is found, the person's caseworker is notified and can intervene quickly to see that the person is receiving proper medications while in jail and to assist in discharge planning.

The discussion thus far makes an assumption about people who have been referred to the courts by law enforcement and who have been identified - by observations of third parties, from the results of a mental health screen, or by the person's own statements - as possibly suffering from mental illness.  The assumption is that the person has a history with the mental health system and will direct court officials to the source of information about that history.  In many cases, however, the incident that led to the instant arrest may have been the first manifestation of a mental illness.  In other cases, the person may have had a history with the mental health system, but either out of mental impairment, deliberate deception, or a simple refusal to respond did not divulge that history when asked about it.  

A particular problem arises for the pretrial release decision maker when a person is arrested on a charge that involves violence  -  even if just a simple assault  -  and there are clear indications that the person may be suffering from a mental illness, but the person denies any current or past mental health treatment.  The person might also have no prior record of arrests or convictions that could guide the pretrial release decision maker, who is required to weigh risk of future violence in making a release decision.  The best course of action may be to have the court order a mental health assessment by a qualified mental health professional.   That assessment should confirm whether there are mental health issues, including past police contacts with the defendant, that resulted in referrals to mental health facilities in lieu of arrest. 

Example:  Pretrial Program, Hamilton County (OH)

In Hamilton County, pretrial program staff team up with mental health professionals to have an assessment completed by a mental health clinician prior to the initial pretrial release hearing.  All defendants who are identified by the pretrial services program during its early morning interviews as having possible mental health issues are then placed on an afternoon calendar for their pretrial release hearing.  The program alerts the court's Psychiatric Clinic, and a clinician from that office conducts the assessment before the afternoon hearing.  This approach provides an assessment by a trained mental health clinician with the results reported to the pretrial release decision maker without having to continue the case to another day. 

This issue was described in the discussion earlier of pretrial diversion, and that discussion applies here.  It is of even more importance, though, that screening by pretrial services staff for co-occurring disorders be conducted for the pretrial release/detention decision.  While pretrial diversion may be offered to only a small percentage of persons with mental illness who have been arrested, all of them must have a pretrial release/detention hearing. (See Policy Statement 10: Modification of Pretrial Diversion Conditions and Policy Statement 37: Co-occurring Disorders.)

Inherent in this recommendation is the support for the American Bar Association's call for defense to be present at the initial appearance of all defendants.   The initial appearance is a critical juncture in all cases for all defendants.  As stated by the American Bar Association, "[D]eterminations made in the course of first-appearance proceedings are the most important in the criminal process for many defendants."  But the circumstances are hardly ideal:  "Regrettably, these vital decisions often are reached under circumstances that would not be tolerated at trial.  Courtrooms often are noisy and overcrowded, cases are…treated hurriedly, and the entire process is motivated by the single aim of 'moving the calendar."  And as for the defendants, "…they are likely to be confused, exhausted, and frightened, particularly if they have had no earlier experience with the criminal justice system."[3]  Some defense attorneys have taken steps to be prepared.

Example:  Public Defender's Office, Honolulu (HI)

In Honolulu, by the time a defendant with mental illness appears in court at the initial hearing, usually the morning after arrest, the public defender will have discussed a release plan with the defendant and the mental health staff who work out of the jail. 

One important issue that should be addressed in the context of the pretrial release decision is the release status of defendants who have been ordered to undergo a competency examination.  The American Bar Association recommends that a defendant "otherwise entitled to pretrial release" should not be detained solely for the purpose of conducting the competency examination.  According to the ABA, confinement for competency evaluation and pretrial release are two separate issues that courts should consider and rule on separately.[4]

Mental health information is relevant to the pretrial release decision.[5]   Therefore, a defendant's mental health status should be reported to the judicial officer making a pretrial release decision  -  with the consent of the defendant.  It is sufficient in most cases to report the information that there are mental health issues.

Example:  Connecticut Department of Mental Health and Addiction Services

Under a program run by the Connecticut Department of Mental Health and Addiction Services, mental health clinicians conduct assessments of defendants with mental illness prior to the initial appearance in court.  These clinicians are employed by the Department of Mental Health, and not the courts.  The only information that they provide to the court is a treatment plan.  The nature of the illness and any diagnoses are kept confidential.  If the client agrees to allow the clinician to share more information with the court, it is sometimes easier to prepare a treatment plan.

Providing judicial officers with a defendant's mental health information at the pretrial release/detention hearing without presenting options to address the mental health needs of defendants would likely lead to more unnecessary pretrial detention of those with mental illness.  Information and options must go hand-in-hand.  Options that might be used include assertive community treatment or intensive case management; a rehabilitation program that offers assistance in finding, getting, and keeping housing, employment, and benefits; crisis residential services; and inpatient treatment.   For the reasons noted earlier in the pretrial diversion discussion, it is also important that pretrial release options include a range of integrated services, including housing, financial assistance, transportation assistance, and employment counseling, and address the needs of defendants with co-occurring substance abuse and mental health disorders.

A specialized mental health program that is designed to meet the needs of people with serious mental illness who have come in contact with the criminal justice system can address this broad array of options.

Example:  Community Support Program, Milwaukee (WI)

In Milwaukee, the Community Support Program (CSP) of the Wisconsin Correctional Service screens defendants identified at the pretrial release hearing as having possible mental health problems.  If released with conditions, CSP develops an individualized treatment plan and assigns a caseworker to monitor the day-to-day implementation of the plan.  Within CSP there are housing specialists available to assist those with housing needs, and medical and pharmacy services to prescribe and administer medications.  The program also has the capability to offer financial services to help clients obtain and maintain both private and public health benefits.

It is also important to ensure that the treatment resources are available in the jurisdiction whenever needed.

Example:  Pretrial Services, Tulsa County (OK)

In Tulsa County, the Tulsa Pretrial Services works closely with the local mental hospital, which is next door to the jail, to ensure that both inpatient and outpatient treatment is available.

An important principle that should be followed in imposing conditions of pretrial release, particularly on the population of those suffering from mental illness, is that the conditions be the least restrictive necessary to ensure the safety of the public and appearance in court.  Overburdening defendants with mental illness with extraneous conditions of release raises the possibility that they will be unable to handle them and will fail to meet their requirements.

Many pretrial services practitioners in rural jurisdictions admit that the typical action taken at a pretrial release hearing involving a defendant with mental illness is that a money bond is set.  Few, if any, options exist for those requiring attention to their mental illness, and judges believe that they have no alternatives but to set a money bond.  Most often that bond is unattainable for the defendant, who then spends the next several weeks or months in jail while the case is adjudicated.  This is an outcome that satisfies no one - judge, prosecution, defense, or defendant.  In fact, the person with mental illness in all likelihood will decompensate quickly.  As noted in the discussion of expanding pretrial diversion options in rural areas, a possible approach to expanding mental health resources may be with the use of mobile units and telemedicine. (See Policy Statement 18: Development of Treatment Plans, Assignment to Programs, and Classification / Housing Decisions, for more on telemedicine.)