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The criminalization of people who suffer from serious mental illness

Too many people with serious mental illness are ending up incarcerated in Canadian jails. The Coalition for Appropriate Care and treatment (CFACT) has developed this article to provide an overview of the issue with an explanation of its nature and history, causes, consequences and possible solutions. If you have questions or suggestions you can contact us at   HYPERLINK "mailto:info@cfact.ca" info@cfact.ca

Historical Background

Following the industrial revolution many individuals with serious mental illness found themselves adrift in cities without the support of their families and tight-knit rural communities. Many of these individuals ended up in poorhouses. Others were jailed for minor infractions such as stealing or being a public nuisance. Dorothea Dix, a advocate for the mentally ill in the U.S. spent most of her life working to free people with mental illness for jails. She realized that these individuals were ill and in need of help and her campaign led to the establishment of a number of “asylums” were people with mental illness could be looked after in a humanitarian environment. 

The first of these asylums were established in the U.S. in the 1840s. At the time there was no effective treatment for serious mental illness: indeed it would be almost 100 years before chlorpromazine the first effective treatment of mental illness was discovered. The asylum system rapidly expanded and the conditions in these hospitals rapidly deteriorated because of overcrowding and under funding and often only provided basic custodial care.

The identification of the antipsychotic effects of the drug chlorpromazine in 1952 meant that for the first time it was possible to effectively treat many individuals with psychotic illness and discharge them back to the community. The arrival of chlorpromazine and other effective medications coupled with an increasing focus on individual rights in the late 1950s led to the massive deinstitutionalization of the mentally ill which continues to this day. In some jurisdictions more than 95% of beds for treating mental illness in provincial or state hospitals have closed. While the reasons are contentious, few disagree that deinstitutionalization has been a major policy failure that has resulted in large numbers of people with mental illness being made homeless or incarcerated in jails. In part this failure is the result of a reluctance to pay for the services needed to provide treatment and support in the community.  But there has also been a failure to recognize the extent of the functional deficits caused by serious mental illness and a consequent failure to provide appropriate types of services to prevent people from relapsing. The result is that many individuals run foul of the law - often because of minor crimes. With so few hospital beds available to provide secure treatment these individuals end up in jail. The irony is that 160 years after Dorothea Dix’s efforts many individuals with severe mental illness are back where Dix found them – in our jails.

The Nature of the problem

It is important to understand that there are different types of mental illness. Psychotic disorders such as schizophrenia and bipolar disorder (sometimes called manic depressive illness) are often referred to as serious mental disorders in contrast to anxiety or depression. Serious mental disorders are characterized by a prominent deterioration in function, persistence over time and association with impairment insight – the person does not recognize that they have an illness. This combination of factors, especially the lack of insight, often renders these individuals unwilling or ineffective at seeking help for their problem. While people with anxiety or depression also experience distress and may be disabled by their symptoms they retain insight and are able to seek and accept help.

Hallucinations and delusions (firmly held false beliefs that are often bizarre) are common symptoms in individuals with serious mental illness. These symptoms are often the direct cause of the individuals legal problems. For example, a person may hear voices telling him or her to shout out in a shopping mall or may threaten staff at a radio station because of the believe that the station is beaming messages into the person’s brain. In most cases hallucination and delusions will stop or be greatly reduced in frequency and intensity when a person takes an antipsychotic medications.

As we will discuss below individuals with serious mental illness make up a disproportionate percentage of the prison population in Canadian jails. However, other types of mental illness are also over-represented in jail populations. People who abuse alcohol or drugs run foul of the law because:  of behaviour while intoxicated, of charges related to procession and dealing, or of crime undertaken to fund the drug use.  Another group over-represented in the prison population are individuals who have personality disorders especially antisocial personality disorder. People with antisocial personality disorder, by definition, do not follow rules, have little interest in other people rights, and seek immediate gratification. These are individuals who possess little conscience whom most people would label as “bad” rather than “mad.”

This paper is exclusively concerned with the incarceration of individuals who have serious mental illness. Most of these individuals should not spend time in jail as they are not responsible for their behaviour. Moreover, there is a much better option – treatment in a hospital.

The Extent of the Problem

Several studies have looked at the numbers of people with mental illness in Canadian jails. Bland reported that inmates of a provincial run jail in Edmonton, Alberta were 4 to 5 times more likely to have schizophrenia and 5 time more likely to have had a manic episode than the general population (Bland 1990).  Numbers vary somewhat depending on whether incarceration is in a provincial or federal facility. Overall the numbers reveal that people with serious mental illness are over-represented by a factor of about 5 in Canadian jails (Allodi 1977, Gingell 1991).

Consequences of Jailing People with Mental Illness

People with mental illness do not fare well when they are involved in the criminal justice system. Many are traumatized when arrested and held in police cells. Many suffer from paranoid delusions that are exacerbated by the experiences of being arrested, appearing in court or being confinement in a prison. The behaviour of individuals with serious mental illness makes them stand out. They tend not to be street-wise and are soon ostracized and victimized both physically and sexually. Sometimes, victimization is a direct result of illness driven behaviour such as shouting out at night, which prevents other inmates sleeping. Prison guards are not trained health professionals and often have difficulty distinguishing “mad from bad.” Individuals with serious mental illness may be punished for aggressive behaviour or verbal outbursts that are simply the result of psychotic symptomatology. Many inmates, with florid psychotic symptoms, are never seen by a doctor. Those who are seen may refuse to take treatment and jails lack the authority to insist that a person accept treatment in these circumstances even though it is desperately needed.


The criminalization of people with mental illness is a systemic problem and there are opportunities to intervene at several points in the system to prevent or ameliorate the consequences of criminalization.

Establishing appropriate services in the community. Criminalization of individuals with serious mental illness would be minimal if Canadian jurisdictions provided the appropriate types and quantity of services necessary to enable these vulnerable individuals to live safely in our communities. Unfortunately, mental health reform in many Canadian jurisdictions has been based on ideologically approaches rather than on practical considerations. One consequence of the ideological approach to reform has been the continued drive, in the absence of support from research studies, to reduce hospital-based psychiatric care. Furthermore, mental health reform has failed to invest in the types of community services that have been shown to keep individuals with serious mental illness both safe and well. Simply put the result of these failures has been to abandon the seriously mentally ill to their own devices. The mental ill have been forced to live on the streets or in run-down flop-house accommodation. Most neglectful has been the failure to provide individuals who lack insight with the necessary assistance to take the treatment required to prevent relapse. Previously this failure resulted in the revolving door syndrome with repeated admissions to hospital for treatment. Now, with a scarcity of hospital beds, it is leads to incarceration in jail, often without any provision of treatment. We need to re-evaluate the tenets upon which much of our mental health planning is based. Policy that results in patients with mental illness not receiving hospital care but as a result being incarcerated in jail (or living on the streets) is unacceptable. Moreover, in keeping with the increasing evidence based approach to all aspects of health care, we must pay more attention to what has been shown to be effective rather than basing our decisions on philosophical biases.

Diversion. Diversion is the term used to describe the decision not to lay or proceed with charges against an individual but to transfer the person to the mental health care system for appropriate treatment and support. Diversion can occur at a number of different decision points when a person with mental illness has run afoul of the law.

Pre-booking diversion occurs when the police decide to bring an individual, who has committed a minor crime, to a hospital emergency room for psychiatric assessment (and possible treatment) as an alternative to charging the person. It may occur on an informal basis or formally where the police partner with a mental health crisis team.

No-Plea Diversion occurs when an individual is charged but not required to enter a plea. Instead, the individual is directed to hospital or out-patient mental health services. This type of diversion is typically reserved for relatively minor offences such as property crimes or public nuisance. While the Crown stays the charge against the individual there is the potential to reinstate the charge if the person does follow through with the recommended treatment program. The mental health court in Toronto, Ontario is an example of no-plea diversion.

Plea-based Diversion occurs when the accused first pleads guilty. The person is then directed to take a judicially monitored treatment program. The mental health court in St. John, New Brunswick follows this model.  Mental health courts often use a single judge, and crown attorney and have on-site or other ready access to psychiatric assessment. This enables the court to assess what is in the individual’s best interest and to negotiate with the patient’s lawyer for a non-custodial resolution of their charges: often involving the provision of appropriate levels of care and treatment.

Court findings of Not Criminally Responsible and Lack of Fitness. As is the case in almost all developed countries the Criminal Code of Canada recognizes than an individual may not be criminally responsible for a crime in certain circumstances. The principles outlining the circumstances were first enunciated in the famous McNaughton Rule which states that a man is not guilty of crime if because of a disease of the mind he did not know the nature and quality of his act or did not know it was wrong. The McNaughton rules have been modified only slightly in the Criminal Code of Canada. Section 16 defines an individual as insane when “he is in a state of natural imbecility or has disease of the mind to an extent that renders him incapable of appreciating the nature and quality of an act or omission or of knowing that an act or omission were wrong.” The terms “appreciate,” “disease,” and “wrong” have received judicial interpretation.

A person found not criminally responsible by reason of insanity is usually sent to a psychiatric hospital often to a secure forensic unit. In almost all cases the person receives the psychiatric treatment that is medically indicated (in some jurisdictions a small number of individuals who are found not criminally responsible may be judged capable of refusing treatment). A specially appointed board monitors the duration of the individual’s stay in the hospital and conditions for visiting or living in the community.

A finding that a person is unfit to stand trial is based on the person’ ability to understand the purpose and function of the court and roles of the judge, jury, crown and defending counsel. The person must be able to instruct his lawyer and maintain decorum in court. A person who does not understand the process of the court is believed to be disadvantaged and unable to defend himself adequately (even with counsel) and a judge can send him to a psychiatric hospital for a course of treatment in an attempt to return him to a level of capacity where he is fit to stand trial. If the person does not regain this capacity he may be detained in the hospital and further decisions regarding return to the community monitored by the same review board that supervises individuals who have been found not criminally responsible.

Access to appropriate psychiatric treatment in jail. In spite of the best efforts to prevent people with mental illness going to jail many do and will continue to end up there. Too often these individuals do not receive the psychiatric treatment that they require. There are many reasons for this. Mental illness, even serious mental illness, often goes recognized by prison staff. Even when recognized few prison services have sufficient psychiatrists and nurses. Finally, when prison inmates refuse treatment because of a lack the capacity to recognize their need for treatment there is no mechanism to administer that treatment without admission to a psychiatric hospital. The result is that many prisoners with serious mental illnesses languish in jails in a psychotic state placing their own safety and the safety of others at risk. 

Clearly prison services need to provide excellent quality psychiatric services in sufficient amounts to meet the needs of the high numbers of inmates with mental illness reported in the studies cited here. Inmates with behavioural problems should be assessed by mental health professionals who have the skills to diagnose and treat serious illness. People with severe mental illness in jails should have an equal opportunity compared to other non-hospitalized individuals living in the community to be placed on forms of mandatory treatment, such as a community treatment order. Finally, it is essential that when individuals with serious mental illnesses are released from jail that there is a plan in place for them to receive the necessary psychiatric help and support. As many of these individuals will already have been disadvantaged by having been sent to a correctional rather than a therapeutic institution they should receive priority if these is a scarcity of services.

Allodi F, Kedward HB, Robertson M. Insane but guilty: psychiatric patients in jail. Canada’s Mental Health. 1977;25:3-7.

Bland RC, Newman SC, Dyck RJ, Orn H. Prevalence of psychiatric disorders and suicide attempts in a prison population. Canadian Journal of Psychiatry 1990;35:407-413.

Gingell CR. The criminalization of the mentally ill: an examination of the hypothesis. PhD dissertation, Burnaby, BC: Simon Fraser University.