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As a result of the restructuring of mental health services and
a push to develop networks to support individuals with mental illness
in the community, there is increasing interest in putting in place
strategies that will divert offenders with mental illness from entanglement
in the criminal justice system (1). A recent review of arrests of
psychiatric patients concludes that clinicians should expect 4%
to 9% of psychiatric patients to be arrested in the first year after
admission, with the rate being higher for patients having a primary
diagnosis of substance abuse (2). After arrest and detention, the
pretrial evaluation directed by the crown prosecutor represents
a key juncture for removing psychologically disturbed persons from
the prosecution process and diverting them to treatment for a defined
period.
There are no Canadian studies, and few studies in general, that
follow up and evaluate the outcome of pretrial diversion of adult
offenders with mental illness, especially in terms of compliance
with treatment and recidivism. Such studies have been carried out
in both the UK and the US. These studies involve large samples and
compassionate diversionary practices at several levels: police diversion
(3), pretrial diversion (4,5), and bail hostels (4). Some common
themes emerge from these studies:
1. Pretrial diversion rates were found to be sizable. Rates of
42% to 48% were secured for court-based procedures carried out by
psychiatrists (5) or psychiatric nurses (4), and 69% in a psychiatric
facility where assessment and treatment were carried out by a multidisciplinary
team (6). In 1 hospital-based Canadian study, where diversion was
reserved only for certifiable, seriously ill offenders, the rate
was low (13%) (7).
2. It appears that offences involving violent crime (apart from
manslaughter, murder, and rape) are not necessarily precluded from
diversion if access to treatment is secured (3–5). For such
offences, recidivism rates occurring in after-care ranged between
19% and 24% (8,9).
3. It appears that treatment compliance is difficult to achieve
after diversion has been approved but that it improves with secure
accommodation and a lengthier treatment period. In one investigation
of 65 offenders, it was found at 6 and 12 months after the diversion
award that only 14% had regular contact with social workers, and
only 13% had regular contact with a family physician (10). Those
who contacted probation officers fell from 27% to 14%. Yet only
20% were again imprisoned. Another follow-up investigation of 130
individuals diverted into hospital treatment found that only the
77% who spent 60 to 144 days hospitalized received some or marked
benefit (11). Another review of arrests among psychiatric patients
found that 45.8% of those with chronic mental illness had been arrested
while homeless (12,13). Hence, treatment mandated through community
treatment orders (14,15) could potentially be useful to secure compliance
over the long term.
The studies reported above were conducted in large metropolitan
areas with adequate resources. Rural areas may not have these advantages.
Currently, southwestern Ontario is experiencing major restructuring
of mental health services and is a “natural laboratory”
(16) for studying a new system in statu nascendi. Our study describes
diversion practices initiated in 2 Ontario justice jurisdictions,
along with the obstacles and outcomes encountered.
One diversion project operates in rural Elgin County (population
81 364), the urban hub of which is St Thomas, a small city of 32
275. The other operates in Middlesex County (population 389 616)
which has a large urban presence; that is, London, a city with a
population of 330 000. London has a robust health service industry
involving 4 major hospitals for physical and mental health care
and a provincial detention centre. By contrast, St Thomas has one
general hospital. Both cities are home to regional psychiatric hospitals
that between 1989 and 1999 have experienced a 40% to 45% reduction
in hospital beds.
Following provincial guidelines, both counties’ crown attorneys
promoted pretrial diversion programs (17).
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“Diversion is defined as a pretrial procedure where crown
counsel uses his or her discretion, on a case-by-case basis, not
to prosecute an accused. Instead, the accused is referred to a person,
service, or hospital with the intent of having the accused embark
on a treatment program to address his or her particular treatment
needs (18).”
According to the Crown Policy Manual (18), offences to be diverted
are determined using a 3-step typology. Diversion is primarily offered
for minor or Class 1 offences—for example theft, joy-riding,
and fraud (all under $5000 in damages). Class 2 offences are more
serious versions of Class 1 offences and also include graver charges,
such as uttering threats, public mischief, simple assault, break
and enter, and forgery. According to policy, diversion may be offered
for Class 2 offences in which there are extenuating circumstances
not involving violence or violence with a weapon. Diversion cannot
be recommended for objectively serious Class 3 offences—for
example murder, manslaughter, or aggravated assault. On favourable
completion of the year of rehabilitation, the criminal charge can
be permanently stayed.
Interagency Planning. In both counties, a joint protocol
for diversion was developed by the respective crown attorneys, the
directors of community services, the directors of the psychiatric
hospital outreach services, and the regional forensic service.
Police Officer Training. Limited indirect training was made
available. For the London police, a video training guide was created
on the goals and objectives of diversion, together with ways of
initiating diversion measures when laying a criminal charge. In
St Thomas, a nurse from the diversion service spent one day weekly
at the police station to advise police officers on mental health
issues that might have arisen with specific cases.
Diversion Team Composition. In Middlesex County, the diversion
service was provided by a team of 3 psychiatric nurses located at
the London Court House. In Elgin County, the diversion service consisted
of a psychiatric nurse located at the St Thomas Police Station offices
and available for consultation to other police forces in the county.
The Crisis and Relapse Prevention Service based at the Regional
Mental Health Centre provided emergency backup. In both diversion
programs, nurses had identical roles, and their activities were
coordinated by the respective crown attorney’s office. They
provided assessment, mental health history, potential linkages to
community supports, and overall clinical best advice to crown and
defence attorneys, probation officers, and police. They also interviewed
family members and helped to organize an individualized support
and supervision plan with the community services for each person
offered diversion. They assisted offenders remanded in police cells
or released on their own recognizance.
1. Requests for diversion originated from the defense counsel,
from police, from various mental health services, or from citizens.
The requests were formally initiated via an application to the court
from the defense or duty counsel.
2. These requests were then reviewed by the crown attorney and
accepted or rejected for a diversion assessment.
3. Once an offender was accepted for diversion, the nurses prepared
a report based on the interview and available police and clinical
files. At this point, the crown attorney made a second ruling on
the appropriateness of the case. He or she decided either to proceed
with charges or to request the court to stay the charges and initiate
the diversion agreement with the offender. Quarterly reports of
progress during the year of rehabilitation were filed with the crown
attorney.
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