Mental Health Diversion Eligibility

Pretrial Diversion for those Experiencing Mental Health Disorders

Penal Code 1001.36 allows for courts to establish a mental health diversion program for offenders suffering from a qualified mental disorder.  Qualifying mental disorders include those identified in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders.  According to the Penal Code, offenders with a recent diagnosis of bipolar disorder, schizophrenia, schizoaffective disorder or post-traumatic stress disorder may be eligible for the program along with a number of other qualified mental health disorders.  People suffering from antisocial personality disorder, borderline personality and pedophilia are not eligible for this pretrial diversion.

The defense must present evidence of the offender’s mental disorder.  Evidence must include a “recent diagnosis by a qualified mental health expert.”  The court must also be satisfied that the offender’s disorder “substantially contributed to the defendant’s involvement in the commission of the offense.”  The court must find that the offender would respond to mental health treatment and could be successfully treated in the community without posing a risk to the safety of others.

A defendant must waive their right to a speedy trial and substantially comply with all requirements of treatment.  Treatment can be in the form of an inpatient or outpatient program that the court finds will “meet the specialized mental health treatment needs of the defendant.”  Failure to substantially comply with the requirements of the treatment program can result in removal from diversion.

A defendant must provide the court regular reports of their compliance in treatment.  Diversion can be granted for up to two years.  Each Court is able to establish their own diversion program within the parameters set forth under Penal Code 1001.36.