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CJS and human service agencies is providing detailed descriptions and analyses of the pathways by which people with mental health and particularly complex disorders enter, move through, exit and return to the CJS. Early insights from the study indicate the importance of an integrated conceptualisation of justice, social and health involvements that moves beyond previous compartmentalised, analytic approaches. It recognizes corrections, courts, police and the community as part of a fluid or porous and looped continuum for these persons. This conceptualisation provides a new understanding of how these persons are moved into the CJS, maintained there and rendered invisible in the broader social and body politic.

Judith Mosoff.  Law, University of British Columbia

Mental Health Courts in the Criminal Justice System: Substantive Equality, Coercion or Paternalism

This paper looks at the tension between therapeutic jurisprudence and the social model of disability in the context of mental health courts in the criminal justice system. Beginning in the U.S .in 1989 with courts for drug addicts, specialty courts now exist in the U.S. and Canada for a wide variety of populations and offences, including courts specifically geared for persons with psychiatric disabilities.  Unlike typical courts characterized by the adversarial system and a focus on the determination of guilt, these “problem-solving” courts use a team approach to address an underlying problem that has led to criminal behaviour.  Largely motivated by American drug policy, the new approach may be problematic in other contexts, and in other jurisdictions.  Underpinning the new courts is therapeutic jurisprudence, a set of ideas suggesting that law has an inevitable effect on participants in legal matters, and where possible, therapeutic opportunities should be used for their benefit.  In the area of disability these new legal institutions may solve some problems, but certainly raise others.  For example, the team model, historically paternalistic or coercive, eclipses the usual adversarial criminal process.  Other concerns include the muted role of defence counsel, allowing access to scarce mental health resources only for criminal behaviour, and frequently, an explicit requirement of a guilty plea in order to participate. In a variety of ways, these courts represent a triumph of the medical model: pathology is affixed to the individual, the mandate of the court is to encourage treatment and the opinions of medical professionals are usually decisive.  On the other hand, the accused with a psychiatric disability does very poorly in the conventional criminal justice.  In this paper I suggest that an equality lens be used to evaluate the wisdom of establishing specialized mental health courts in the criminal justice system.

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