If an accused person with mental health issues is in jail, can they be released from jail to go to a hospital for a psychiatric assessment?

Yes, they can.

Sometimes an accused person with mental health issues can be released on bail with conditions to address mental health concerns, or with a Form 1 or Form 2 order already in place. For example, there may be conditions such as:

  • A condition requiring a psychiatric assessment to take place at a hospital or other mental health facility;
  • A condition requiring an accused to see their family doctor (usually for a referral to a psychiatrist);
  • A condition to take medication prescribed by a doctor. However, it can be difficult for the lawyer (or duty counsel) representing an accused with mental health issues to put a plan in place to get them released on bail.

Because of this, an accused with mental health issues may remain in custody—either in a jail or in a secure psychiatric hospital—while they are being assessed. Often an accused that is ordered to be assessed has not had a bail hearing yet, so they remain in custody while they are being assessed. An in‑custody assessment can occur in a jail, but usually occurs at a secure psychiatric hospital. If a judge believes that an accused is unfit to stand trial, an assessment is almost always ordered before an accused has had a bail hearing. This is why most “fitness to stand trial assessments” occur while the accused is in custody, even though there is a presumption in the Criminal Code against doing in‑custody assessments.