Considering Mental Health Courts for South Africa: Lessons from Canada and the United States of America

Under the South African criminal justice system, mentally ill persons in conflict with the law spend long periods awaiting forensic assessment, owing to resource shortages (staff and available beds). Accused persons awaiting forensic assessment are often kept in correctional facilities where mental health care services are lacking. This leaves many accused individuals who are mentally ill at risk of falling between the proverbial cracks of the system. The diversion of the accused with mental illness from the criminal justice system into a treatment programme could address this problem. Currently no such formal diversion option exists in South Africa. Mental health courts as a formal diversion option are gaining popularity in jurisdictions such as Canada and the United States of America, where delays with forensic assessments and, in particular, pre-trial fitness assessments are rife. These courts employ therapeutic jurisprudence to deliver justice. This contribution explores the nature of a mental health court and looks at such courts in Canada and the United States of America and considers whether South Africa could benefit from such a court and whether it would be viable within the South African legislative framework.