The federal program of deinstitutionalizing psychiatric facilities has resulted in a well documented, ever-increasing mentally ill population in the nation's prisons and jails. Historically, the criminal justice system has maintained a laissez-faire attitude toward the mentally ill, and only became involved with the mentally ill when a crime had been committed. As such, the President's Mental Health and Criminal Justice Consensus Project was developed to explore ways that the two systems could work together to address the growing problem of the mentally ill offender. However, challenges arise because the criminal justice system has typically been viewed as a loosely coupled, fragmented system that is unwilling or unable to address the social issue of the mentally ill offender. The concept of coupling between agencies has serious ramifications for the ability of agencies to successfully collaborate. Theoretical foundations for collaboration between mental health and criminal justice agencies lie partly in labeling theory and the drive to avoid the negative stigmatization of the mentally ill by the formal criminal justice system. A second theoretical foundation is found in developmental theories, which seek to explain the development of organizational knowledge and skills, in handling mentally ill offenders, through interaction between the mental health and criminal justice systems. In this study, it is asserted that agencies that are appropriately coupled and have experience with collaboration will perceive greater benefits from the collaborative exchange. Furthermore, this leads to the main hypothesis of the current study that agency coupling and collaborative experience will increase the perception of benefits of collaboration and support of collaborative efforts that deal with mentally ill offenders. To assess the main hypothesis of the current study, a modified Dillman methodology was utilized. The research population consisted of a complete enumeration of the 20 Florida State's Attorneys Offices, the 66 County Sheriffs, the 54 Probation Office Managers, and the 313 municipal law enforcement agencies for a total study population of 453 possible respondents, of which 49% responded. Overall, the findings of the current study illustrate a willingness of agencies to couple with outside agencies to address the phenomenon of the mentally ill offender. The results provide theoretical support for the need to reduce the negative stigma of a mentally ill individual being additionally labeled a criminal offender. The results additionally bolster the belief that the knowledge and skills to do this can best be accomplished through interaction with outside agencies.

Mental illness that affects an accused’s fitness to stand trial is an ill-explored topic in the South African criminal justice system. The necessity to explore this topic is motivated by the increasing number of persons with mental illness moving into the criminal justice systems in South Africa, Canada, and the United States of America. An accused’s fitness to stand trial is assessed once concern about his ability to follow the proceedings, or give proper instructions to his legal representative, is in doubt. The assessment is conducted in the forensic system where the vastly different fields of law and psychiatry meet. The South African forensic system is plagued with resources and skills shortages. These inadequacies cause delays in resolving pre-trial issues for an accused in respect of whom fitness is at issue. The accused is oftentimes detained in a correctional facility awaiting fitness assessment for anything between three months to two years. Generally, detention in a correctional facility has a negative effect on the mental state of a person with a mental illness. The logistics of fitness assessments differ between the three jurisdictions referred to above. However, the threshold for fitness in these jurisdictions is relatively low, with the result that the majority of accused persons sent for fitness assessments are found fit to stand trial. Such a finding does not imply that the accused is not mentally ill; it simply means that the illness does not affect his understanding of the court proceedings and that it does not influence his ability to communicate with his legal representative. An accused with a serious mental illness such as schizophrenia or major depression can, for example, be found fit to stand trial. After a fitness assessment, a court may either find an accused fit to stand trial or unfit to stand trial. The fact that many persons found fit to stand trial have a mental illness suggests that there is a third category on the fitness continuum that must be acknowledged, namely, fit but mentally ill accused persons. No alternatives to traditional prosecution currently exist in South Africa for this third group of accused persons despite the fact that their situation in the criminal justice system calls for a therapeutic response. The South African legislative framework that regulates fitness assessments and the processes associated therewith are not without challenges. The assessment practices have recently been under scrutiny by the Constitutional court, which judgment changed the position for the accused found unfit to stand trial. The position of the fit but mentally ill accused remains unregulated. The Canadian and American criminal justice systems have implemented diversion programmes for fit but mentally ill accused persons in the form of Mental Health Courts. The underlying principle of a Mental Health Court is therapeutic jurisprudence. Therapeutic jurisprudence evaluates the impact of the law on those in conflict with it. It promotes the inclusion of expertise from other disciplines to improve the effectiveness of the law in a particular set of circumstances. Many South African scholars acknowledge the need for mental health expertise in the criminal justice system, and suggestions have been made for the diversion of mentally ill accused persons charged with minor offences. Those above notwithstanding, no formal diversion programmes exist in South Africa for the fit but mentally ill accused. This research investigates the Mental Health Court as a therapeutic response to the mentally ill accused in the South African criminal justice system. The Mental Health Court models as employed in Canada and the United States of America are studied to identify elements thereof that can be employed in the South African context to provide an effective alternative to traditional prosecution for the mentally ill accused. The Toronto Mental Health Court is studied in the Canadian context as a court that is not a diversion programme as such but has a diversion component attached to it. Diversion in Canada is reserved for those charged with less serious offences, and only these accused persons are allowed into the diversion component of the Mental Health Court. However, the Canadian Mental Health Court assists those who do not qualify for diversion but who need the specialised skills of the Mental Health Court for purposes of, for example, a bail application. The Brooklyn Mental Health Court in the United States of America is investigated as a model that constitutes a complete diversion programme and considers diversion of accused persons charged with more serious offences. The unique structure and procedure of each of these Mental Health Courts are investigated with due consideration to the eligibility criteria of each and the sanctions employed for non-compliance of the court-monitored treatment programmes. Further, the successes and challenges of each model are highlighted. Finally, a proposal is made for a Mental Health Court model mindful of the uniquely South African factors that have to be taken into account when building such a model. Amendments to the existing legislative framework are proposed to incorporate a Mental Health Court as a therapeutic response to mentally ill accused persons in the South African criminal justice system. / Criminal and Procedural Law