Man, 89, confused and threatening — what to do?

The accused is an old man. He turns 90 in a couple of weeks. Still, when he made threats — something involving a knife — against the daughter and son-inlaw with whom he lived, they called the cops. What else could they do?

They were, in fact, relieved to let the courts deal with him, assuming that would result in him getting the help he needs.

No, that’s not how it works. “We are a criminal justice system,” says Tom Morino. “We are not a mental-health system.”

Morino was the in-custody duty counsel — the defence lawyer who is the court’s equivalent of the on-call doctor in the hospital emergency room — who caught the old man’s case when he was brought in a couple of weeks ago.

The circumstances were exceptional. The accused was not only elderly but spoke no English. Nor did he have money or identification when brought into cells.

A capable and empathetic Cantonese interpreter was enlisted. From the old man’s confused, odd answers, it soon became apparent that he could be suffering from dementia.

That left Judge Carmen Rogers in a quandary, Morino says. Her only real options were to remand the accused in custody or release him — but where would he go? The complainants were unwilling to take him back, so sending him home was out of the question. So was booting him onto the street and letting him fend for himself — not a confused 90-year-old with no English, no money, no ID. The shelters used by street people weren’t appropriate. Neither was the notion of locking him up again.

“The judge didn’t want him in custody,” Morino says. “No one wanted him in custody.”

So the judge, defence and Crown all began looking for an alternative. “To the credit of the Crown prosecutor, Paula Donnachie, she phoned every agency imaginable,” Morino says. None was able to help, at least not on short notice.

Everyone agreed that the old man needed to be checked out at a hospital, but the strange thing was there was no mechanism to get him there. The courts can, under certain circumstances, order an accused shipped off in custody for a forensic psychiatric assessment, but that’s a pretty heavy sledgehammer. The police have Mental Health Act powers to apprehend someone and take him to hospital, but they had already done their part, handing the old man to the court system. It’s beyond the mandate of the sheriffs to act as a hospital shuttle service.

A plan was finally worked out where the judge would release the accused on the understanding that Morino — who really had no relationship with the old man — would volunteer to hang around after court and drive him to the emergency department at Royal Jubilee Hospital.

“Otherwise, the judge may have been forced, against her will, to hold him in custody until other arrangements could be made,” Morino says. “There’s just nowhere for him to go. We simply don’t have the resources.”

So, at 5:30 that afternoon, Morino drove the old man from the courthouse to the hospital, where they were joined by the helpful interpreter.

An impressively speedy response by the Royal Jubilee staff resulted in the man being admitted for a geriatric assessment within a couple of hours. Last week, when the old man was to reappear in court, the judge was told he was still in hospital.

It came down to a rare combination of circumstances — at least, rare enough that there aren’t contingencies to deal with it. Morino compared it to Victoria snowstorm planning: Mostly we just play the odds, hoping it doesn’t happen.

But even if the old man’s story was relatively rare, the disconnect between the court and health systems — orbits that do, in fact, frequently intersect — has come up before.

In March, Victoria Judge Ernie Quantz threatened to retire if an offender with schizophrenia wasn’t admitted to hospital for treatment. In that case, the accused had been held in custody for a court-ordered assessment, the result of which was a Mental Health Act order requiring police to take the man to hospital. Quantz’s fear was that the hospital would simply spin the man out the door again.

Also in March, another example of disconnect arose: When courts order drug or alcohol treatment for inmates, there’s no way to get them from prisons to the treatment centres, which are often on the mainland. It’s left to someone like Rev. Al Tysick to drive them.

“We were never designed or equipped to deal with people who have serious medical issues,” Morino says.