Mental Health Courts: A Crazy Idea that Might Just Work

by Kate E. Murphy:

In examining the issues and costs associated with mental illness in the criminal justice system, mental health courts may strike the best balance between protecting the public safety and preserving individual freedoms.

Scales of JusticeJails have become this country’s largest mental health care provider, partly because mentally ill inmates have higher recidivism rates. To reduce recidivism (and decrease correctional costs) some argue that conditions of parole or probation should include taking necessary mental health medications—an argument that raises many important questions about the right to refuse medical treatment and the state’s interest in protecting public order.

Most would agree that helping the mentally ill receive necessary treatment would benefit society. However, the right to refuse medical treatment is a carefully guarded right ingrained in the concept of fundamental liberty.  This right arises from a person’s interest in autonomy, self-determination, bodily integrity, freedom from battery, the right to privacy, and the doctrine of informed consent.

Courts and philosophers generally agree that protecting individual dignity is so important that the right to refuse treatment should exist for all persons in all circumstances, even if most would consider certain choices unwise or foolish.

Although people generally have the right to refuse medical treatment, once someone has been convicted of a crime their rights—even fundamental rights—are limited. In Washington v. Harper, the Washington Supreme Court decided whether antipsychotic medicine could be administered against a non-consenting inmate. The court determined the administration of antipsychotic medication would be justified if it were both necessary and effective for furthering a compelling state interest. The court recognized the inmate’s fundamental liberty interest in refusing medical treatment. But the court held that the prison’s interest in diagnosing and treating inmates so they can function in a normal prison environment justified the limitation on liberty.

Similarly, the right to refuse treatment could also be limited as a condition of probation or parole. The conditions of probation and parole are generally set to help inmates safely reintegrate into society. Requiring medication would not only help inmates return to their communities without recidivating but also help ensure public safety. These state interests would likely be compelling enough to justify an encroachment on liberty.

Although an encroachment on liberty may be justified, some like Elyn Saks argue strongly against forced treatment. Saks is a law and psychology professor at the University of Southern California Law School. Saks is also a person with severe schizophrenia. She resisted treatment for years believing if she could survive without medicine, she was not actually mentally ill. She now receives excellent treatment and is thriving in a supportive environment.

Through her personal experiences, she has come to believe forced treatment is terrible and ineffective. She recognizes that inadequate treatment has resulted in jails becoming a revolving door for the mentally ill. Her goal is to remove the stigma attached to mental illness through research and education. If the stigma is removed, she believes more people will seek and accept treatment. She believes the humanity we all share is more important than the mental illness we may not, and that humanity should be taken into consideration in any solution.

The goal of parole and probation is to give convicted persons their best chance for successful reintegration into society. Balancing the need to treat the mentally ill and the desire to preserve and protect as much individual freedom as possible will always be a substantial challenge for the correctional system.

Although not presently in place in most counties, mental health courts might strike the best balance. Participation in mental health courts would be voluntary and would follow a method similar to the drug court method, which has effectively reduced recidivism and costs throughout the nation. Like drug courts, mental health courts would create a forum for offenders to confront their illness and repair damage done as a result.

The voluntary nature of participation in mental health court would preserve each participant’s interest in autonomy, self-determination, and bodily integrity while still helping the participants receive necessary treatment, thereby reducing recidivism and saving taxpayer dollars.


Kate E. Murphy is the Hogg Mental Health Policy Fellow contributing to the centers for Effective Justice and Health Care at the Texas Public Policy Foundation. She earned her law degree from Texas Tech University School of Law. 

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