By: Rebecca Smythe 

Introduction

Around the world, individuals with mental illness are overrepresented in the criminal justice system for reasons, including structural poverty, racism, trauma, and lack of access to mental health care and support. When individuals with mental illness cannot access the care and support they require, they may commit crimes or behave in unusual ways that can draw the attention of law enforcement officers, resulting in police encounters and potential downstream involvement in the criminal justice system. How these encounters progress is often a determining factor in how courts react. The nature of a given interaction with law enforcement officers, and the diagnosis or symptomatic presentation of the individual, can often set the tone for sentencing. In many cases, this results in incarceration, further isolating them from social supports and treatments (Centre for Addictions and Mental Health, 2020). 

In Canada, mental health disorders affect up to one in five individuals every year (Smetanin et al., 2011). The already overburdened health care system struggles to adequately support the growing mental health needs of the Canadian population, and community/social supports tend to be difficult to access due to time constraints, high costs, geographic sparsity, or long wait times. As a result of these intersecting components, individuals with mental illnesses remain overrepresented in the Canadian criminal justice system. 

Although this problem is growing, it is not a new issue and can be traced back to paternalistic health practices, deinstitutionalization, and recent judiciarization of mental illness. This article will examine how mental illness, and more specifically the medicalization of mental health, not only affects how we view and treat mental illness but also how it interacts with the crimino-legal sector and consequently medicalizes the process of justice. ​

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Paternalism, Deinstitutionalization, and Judiciarization

Historically, mental illnesses and their standard of care treatments have gone through many different iterations. Before the rise of psychiatric hospitals, the moral treatment movement led by Dorothea Dix brought attention to the inhuman treatment mentally ill patients received against their will in prisons. This is what prompted the rise of psychiatric hospitals aimed at exclusively treating patients with mental illness; however, their success was questionable, and albeit short-lived, due to the discovery and testing of novel treatments and psychotropic drugs during the 1950s and 1960s (Chaimowitz, 2018). These scientific discoveries supported many patients who had struggled in the community to gain independence and lead more ‘normal’ lives. 

This large influx of patients coming out of psychiatric institutions and into the community was well-intentioned, but highlighted the shortcomings of the government’s deinstitutionalization plan. The community support and agencies that were meant to support individuals outside of clinical environments never truly materialized or were not enough to support individuals appropriately in an outpatient setting (Chaimowitz, 2018). Now that resources and beds in hospitals were diminishing without follow-through on the plan put in place to support patients in the community, the needs of many individuals with mental illness were not being met, often resulting in what we know today as the ‘institutional circuit’. The institutional circuit can be defined as a consistent rotation between hospitals, jails, and the streets that many individuals with mental illness find themselves in, particularly since the closure of psychiatric hospitals brought about by the deinstitutionalization movement (Hopper et al., 1997). 

Judiciarization is another newer phenomenon defined as the extent to which people with a mental illness are involved in the judicial process (Paradis-Gagné et al., 2023). This would encapsulate involvement in the criminal justice system and civil settings, where rates have increased proportionately along with the decrease in the number of hospital beds for treatment. Deinstitutionalization and judiciarization are two phenomena that go hand in hand and are critical parts to consider when approaching how a psychiatric condition influences and impacts the likelihood and frequency that one interacts with the criminal justice system. 
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Models of Mental Illness

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​The psychopharmaceutical revolution in the 1950s brought scientific breakthroughs, including new drugs, treatments, and screening processes, which have shaped modern psychiatry. The medical model of mental health is grounded in a biological framework of disease, prioritizing evidence-based, objectively verifiable and reproducible data that has sparked optimism in our ability to strengthen understanding of mental illness, and consequently treatments to address these pathological disease states that are biological in nature (Tripathi, Das & Kar, 2019). Particularly in Western societies, the medical model of mental illness prevails. This model indicates that mental disorders are biological brain diseases, which require appropriate diagnosis while focusing on pharmaceutical approaches as treatment to target and remedy these presumed physiological defects (Deacon, 2013). This approach, particularly in today's hypermedicalized world, brings about certain benefits; namely reducing individual blame, receiving insurance coverage, use of government funded treatments, and accessing these treatments in a more timely manner. However the medical model has many negative implications as well including pessimism about recovery, increasing patient risk of sick-role behaviours, and ignoring broader factors that impact mental health such as social factors, living conditions, socioeconomic factors, trauma, and adverse life experiences (Kvaale, Haslam & Gottdiener, 2013). 

Schizophrenia, for example, is a mental illness with a strong genetic component. Interestingly, it has also been shown that gene expression of these components are strongly influenced by environmental exposure and psychosocial factors. The risk of schizophrenia is generally modelled through the stress-diathesis model that demonstrates how genetics can provide a predisposition to certain disorders, in this case, schizophrenia, but still requires external stress as an epigenetic mechanism to activate it, underscoring the role of environment in the development and treatment of mental disorders (Xenaki et al., 2024). 

Take the biopsychosocial (BPS) model of mental health and illness as an example. This model considers the complex relationships between the biological, psychological, and social phenomena and how these combine to play a role in the development of psychiatric disorders. Compared to the medical model alone, this view takes a more holistic approach to understanding the being as a whole. Psychiatric disorders are not the result of the dichotomous medical model alone, rather they are the result of a circular model consisting of multiple causes and effects. It is thus simply not possible to explain the causation and manifestation of mental illnesses through one single avenue due to their etiological complexity (Tripathi, Das & Kar, 2019). As in the medical specialties outside of psychiatry, each patient is different with their own individual beliefs, lifestyles, wishes, and goals that drive them and influence their ability to participate in their own treatments. Why would we then ignore all these additional factors when considering the field of mental health? 

The overuse and overdependency on the medical model can not only be harmful but also dangerous. Exclusively buying into the medical model of mental illness neglects other contributors to mental wellbeing and risks granting psychiatry undue authority beyond medicine, and into the legal sphere. 
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The Diagnostic Process and the Paradox of Psychiatric Labelling 

The diagnostic process for mental illnesses usually begins with a qualified mental health professional. These experts include psychologists, psychiatric nurses, social workers, or counsellors (NIH, 2007). Certain medical subspecialties (e.g., family medicine, pediatrics) may also be trained to diagnose. Mental health professionals often assess symptoms and then may refer the patient to a psychiatrist, who is a medical doctor with additional specialized training in mental illnesses and mental health. Only psychiatrists and other doctors are able to prescribe psychopharmaceutical medications and treat mental illnesses (NIH, 2007). 

Unlike many medical conditions, mental illnesses are almost exclusively diagnosed by symptoms. In the 1970s, concerns about the reliability of psychiatric diagnoses were growing, leading to the development of usable diagnostic criteria for mental disorders (Maj, 2011). Since doctors are not able to perform a blood test or swab to establish whether a mental illness is present, the way many physical illnesses are diagnosed, symptoms are the primary focus (NIH, 2007). Assessment by these means is qualitative and subjective in nature, where doctors must perform symptom assessments through an interview with the patient themselves, and occasionally with the patient's family members or loved ones (Maj, 2011). Symptoms are then considered through the criteria specified in the Diagnostic and Statistical Manual of Mental Disorders (DSM) to make an official diagnosis. The DSM provides descriptions of symptoms for each mental illness, which psychiatrists can use to confirm diagnoses (NIH, 2007). Once confirmed, the physician will then communicate the corresponding diagnostic label to the individual and their loved ones, allowing patients to begin proper treatments (Sims et al., 2021). 

In many contexts outside of the medical system, the rigid and highly specific labels of the DSM aren’t applied traditionally, but changed to be placed under larger categories. The American Psychiatric Association defines a serious mental illness (SMI) as “a mental, behavioural, or emotional disorder resulting in serious functional impairment which substantially interferes with or limits one or more major life activities” (Parekh, 2018). The mental illnesses most commonly qualifying as an SMI often fall under one of the following categories: psychotic disorders, bipolar disorders, major depressive disorders, obsessive compulsive disorders, and post-traumatic stress disorders (Pendneault et al., 2023). 

Although the DSM, and other forms of diagnostic categorization, are tremendously useful tools for mental health professionals and patients, many professionals have expressed concern that there exist significant intrinsic social biases in these labelling systems and question overreliance on them (Cooksey & Brown, 1998). The current edition used is the DSM-5, which was published in 2013, and was the first major revision done since the DSM-4 in 1994. The creation of the DSM-5 was a highly multi-disciplinary process with the contribution of 400+ experts from 13 countries from psychiatry, psychology, neurology, primary care, epidemiology, statistics, research methodology, and pediatrics. It is important to consider what drives the creation of these ‘diagnostic categories’ and understand that they do not exist in a vacuum, independent of social and political influences. These revisions are often made as a reflection of advances in scientific evidence and breakthroughs, but can also be influenced by societal views and implications. With each revision, changes are made that include altering borders of diagnostic categories, changing symptoms and presentations, and adding or removing entire disorders all together (Regier, Kuhl & Kupfer, 2013). 
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For some individuals, being at the receiving end of this process and having a diagnosis can be a positive experience. Receiving a mental health label can validate one's health concerns, provide increased accessibility to interventions, and help them receive the support needed to thrive in their daily lives. Although some may find being labelled into a diagnostic category a positive experience, others may not. Some may actually experience increased psychological distress, greater sick role behaviour, negative identity formation, and restriction of independence, among other consequences. Despite the risk of negative consequences from a psychiatric label, or perhaps that a label may be unwanted altogether by the patient, many resources and services require a diagnosis. Insurance companies, for instance, may withhold benefits or payouts for treatments or therapy sessions unless an official diagnosis is provided by a medical doctor (Sims et al., 2021). Institutional reliance on official diagnoses does not stop there, at the correctional level, the identification of the presence of a mental illness in an offender is regularly based on psychiatric assessments and diagnosis, despite it being commonly known that active symptom presentation and external observations (those from family, friends, and neighbours) are more important considerations than diagnosis alone (Statistics Canada, 2009). 

The complexities of mental illnesses make them difficult to categorize, resulting in many misdiagnoses, overdiagnoses, and underdiagnoses all at once. Rather than viewing them in a rigid biomedical model, it is important to consider a wide variety of factors and how these factors interact to understand the individuals behaviours, thoughts, and feelings as a whole. Overmedicalization of mental health and the overreliance and use of diagnostic labels, unfortunately, extend far beyond the healthcare system and pervades into the legal system as well.
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How Does Medicalization of Mental Illness Come Into Play in the Legal System? 

From the first point of contact with the legal system, individuals with serious mental illnesses are more likely to encounter police officers and be arrested for relatively minor offences when compared to the general population. (Charette et al., 2013; Hoch et al., 2009). Police officers in Canada receive at least some form of mental health training and have been directed to divert individuals with mental illnesses from the legal system altogether to help combat their overrepresentation. Their training should help guide them to make appropriate decisions while diverting, and know how to recognize signs and symptoms of mental illness. This redirection can vary according to the law enforcement officer's discretion, but some alternative options include escorting the individual to a hospital emergency department, connecting them with community-based mental health services, bringing them home (if applicable), and referring them to a local diversion program. In some regions across Canada, specialized response teams have been initiated to respond to crisis situations involving individuals with severe mental illnesses and consist of specially trained police officers and mental health professionals. The responding officer is able to request the deployment of these teams to address both the mental health needs of the individual while prioritizing the safety and security of all those involved (Pedneault et al., 2023). 

If diversion is unsuccessful or escalation is in order, there are two main provisions in the Canadian criminal code that may apply to individuals with an SMI who have been charged with a criminal offence. The first provision is unfit to stand trial, which is based on the individual's ability to understand and appreciate the proceedings of a trial and the various legal consequences they face, their communication with their lawyer, and the ability to participate in their own defense. If the court believes that an individual may be unfit to stand trial, they may order a mental health assessment of the accused, and if they are found unfit to stand trial they will be admitted into a forensic hospital where they will receive treatment for their illness until they are found to be fit at which point the legal proceedings will resume. Forensic hospitals are essentially responsible for executing court-ordered assessments and providing treatments to individuals who are found either unfit or, bringing us to the next provision, Not Criminally Responsible on account of Mental Disorder (NCRMD) (Pedneault et al., 2023). 

Section 16 of the Canadian Criminal Code defines the verdict of NCRMD as “no person is criminally responsible for an act committed or an omission made while suffering from a mental disorder that rendered the person incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong”. The process of finding someone NCRMD often includes review boards that act as independent tribunals established to determine dispositions of accused. When presenting these cases during sentencing, psychopathological diagnoses are not typically indicated using the standard diagnostic criteria from the DSM. Rather than using these typical descriptors in courtrooms, they often use broad categories: psychosis, mood, organic (e.g., dementia), anxiety, substance use, personality, other (e.g., autism spectrum disorders or intellectual disabilities), and ‘none’ for when the report indicates that there is no formal diagnosis (Crocker et al., 2015). If a person is ultimately found NCRMD, they may receive an absolute charge, a conditional charge, or detention in a forensic hospital (Pedneault et al., 2023). NCRMD verdicts are exceptionally rare with most accused individuals eventually being able to stand trial, however with such specialized needs within the court system and many avenues of sentencing, specialized approaches are useful to better address the holistic needs of individuals with SMI within the criminal justice system. 

In Canada, specialized courts can be used to provide problem-solving foci on specific types of offences. An interdisciplinary roundtable is formed, focused on addressing the underlying causes that brought the accused into contact with the criminal legal system. Drug treatment courts and Mental Health and Wellness/Community courts are among these and are offered across all provinces and territories. Mental Health courts are specific to serving individuals who struggle with their mental health. These courts offer services designed to facilitate more compassionate and effective responses for those who engage with the system due to their mental health struggles, or to address issues presented by repeat offenders struggling to reintegrate into society due to their mental illness. There are also specialized Drug Treatment Courts aimed at reducing criminal recidivism specifically associated with substance use by offering qualifying adults with diagnosed substance use disorder the option to complete a court-monitored drug treatment program instead of a finding of guilt or incarceration (Government of Canada, 2024). Overall, these proceedings are less formal; however, eligibility criteria for these courts can vary widely. Some courts only accept individuals with minor offences, while others will accept those accused of summary or indictable offenses (Pedneault et al., 2023). It is of important note that very few mental health courts accept those accused of violent offences, however, research showcases that of the few accused with felony offenses who had trial in mental health courts, they were less likely to reoffend than non-participants one year following their index offence (Anestis & Carbonell, 2014). Despite the benefits mental health courts appear to display, there could be consideration of expanding their eligibility to include a wider range of cases. 

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Mental Health Labels and Legal Outcomes 

Despite best efforts to keep individuals with SMIs out of correctional facilities, they remain overrepresented and often lack adequate care in these facilities. Current estimates suggest that in federal correctional institutions, mental illnesses are up to three times more common than in the general population. A national study across Canada has found that about 12% of all newly admitted men in federal correctional facilities meet the diagnostic criteria for an SMI. Particularly among men incarcerated in Canada, current findings show that 2-5% have a psychotic disorder, 6-14% have a major depressive disorder, 4% have a bipolar disorder, and 16% have borderline personality disorder. Most federally sentenced individuals with an SMI tend to experience high rates of comorbidity, with multiple concurrent diagnoses, which is a significant consideration since these individuals generally experience worse outcomes than those with a single diagnosis (Pendneault et al., 2023).

Despite increasing efforts to combat stigma, it is naive to assume that stigma and societal discourse do not influence decision-making in mental health courts. Stigmatizing thoughts and attitudes vary according to different mental health diagnoses (Crisp et al., 2000; Parle, 2012). For instance, the most stigmatized mental illness often coincides with the SMIs, including Schizophrenia and Borderline Personality Disorder (Read et al., 2006; Catthoor et al., 2015). The negative beliefs perpetuating the stigma towards these conditions often surround thoughts of dangerousness, unpredictability, and violence, which are often included in media and pop culture portrayals of such conditions. When combined with the stigma often associated with offenders overall (those without mental illness), the effects of joint stigma are likely to exacerbate negative beliefs and may contribute to the overrepresentation of individuals with SMIs in the crimino-legal system. Some mental health disorders, such as psychotic disorders, are more highly correlated with crime collectively, which results in higher chances of conviction simply by virtue of having a psychotic disorder (Tremlin, 2021). Jurors and members of round tables are not immune to structural stigma, with the possibility of unconscious biases taking hold and affecting the sentencing process of individuals with SMIs. 

As explored earlier in this paper, overrepresentation of individuals with mental illness, and particularly SMIs such as psychotic disorders, in the crimino-legal system may be due to institutional and historical challenges, but this doesn’t stop the potential of reaffirming stigmatizing views against these populations and thus relating mental illnesses to violence and criminality, rendering it a never-ending loop. 

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Broader Implications of the Medicalization of Justice 

The process of medicalization is not novel, it is a historical process by which behavioral, personal, and social issues are increasingly viewed through a biomedical lens to be diagnosed and treated as individual pathologies and problems by medical practitioners. Health, including mental health, has irrefutable ties to medicine and the medical field as a whole. However, to over-emphasize medicines' role in mental and physical wellbeing would be to neglect the multitude of other avenues for promoting, maintaining, and building wellbeing (Lantz, Goldberg & Gollust, 2023). 

In legal contexts, medicalization alters, in a way, the lens through which we interpret criminal behaviour. Rather than viewing it through the more or less classic lens of moral failing or dysfunction, we take the lens of mental illness instead, which we also happen to view through the lens of a medical model. Does this pervasive overmedicalization truly extend across times and professions, and does it put too much power, control and trust into the hands of the medical field in the first place? The legal system and other systems, requiring a diagnostic label, inherently place power in the hands of medical doctors since, as we have seen earlier in this article, they make up the majority of those who are able to diagnose and treat mental illnesses. If we are putting this power into the hands of medical professionals, particularly with the lack of objective evidence outside of symptom assessments, how can we ensure the accuracy of diagnostic practices across practitioners? Questionable diagnostic practices in the field of psychiatry are not unheard of; in fact, racial and ethnic disparities in the diagnosis and treatment of mental illnesses are thought to be propelled by unwarranted judgments being passed by practitioners and program administrators (Snowden, 2003). Biased views can be held unknowingly, of course, and can result in unnecessary action or failure to act (Snowden, 2003). This example of practitioner bias is just one example of the kinds of concerns that many professionals have regarding the reliability and necessity, of diagnostic labelling. 

Returning to the issue of medicalization, there is genuine fear that we have begun medicalizing everyday life. With such a focus on mental health labels over experiences and symptoms, is it possible that we may be medicalizing regular life experiences and calling them mental illnesses simply to access the resources, supports, and facilities needed for support? Certain experiences evoke strong feelings or even prolonged periods of heightened emotional distress. When we require a diagnostic label not only to receive support in a legal context, but to access financial compensation from insurance companies or referrals to mental health support services, are we really able to distinguish between normal reactions to some of life’s circumstances and mental health challenges? If this distinction cannot be accurately and reliably made, how can we then allow such distinctions to be made within the legal system to the point of affecting sentencing and personal responsibility? 

Concluding Remarks 

Law is generally concerned with justice, blame, and separating right from wrong (Asokan, 2016). Medicine, however, is concerned with the treatment of illnesses and individual well-being. Does medicalizing mental illness risk reshaping justice so far that law loses its fundamental concerns? Perhaps it is time to move away from the medical model of mental health and take on a more holistic approach, not only for the well-being of all individuals, but also to ensure that integrity in the legal system is not lost through the medicalization of mental illnesses, law, and everyday life.​

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