| Michael Travis BA/LLB (Hons) February 2002, University of Auckland Law School Please notify the author if you wish to cite this paper, or use extracts in your work. A PDF (inlcuding Appendices) is also available via Google Drive. Abstract
There is a greater
anxiety worldwide as to perceptions of dangerous behaviour, which governments
are seeking to assuage with new preventive measures. These measures are known
by various descriptions, but effectively constitute “anticipatory containment”
because they seek to incarcerate a would-be offender before he offends.
This preventive
approach can be applied to any type of behaviour which is perceived as
‘dangerous’, so anticipatory containment measures are being considered to deal
with anything from terrorists to mentally ill people.
However, preventive
measures run contrary to the rule of law upon which our legal systems are built
– that is, people should not be punished unless they have committed a crime –
and indefinite detention surely amounts to a form of punishment.
Furthermore, there
is a real risk that in targeting ‘dangerous’ behaviour, anticipatory
containment legislation will be over-inclusive. In any event, the concept of
‘dangerousness’ is itself alarmingly vague when we consider the risk it poses
to civil liberties.
These problems
become even more apparent when legislators attempt to employ anticipatory
containment systems in the mental health arena. Afterall, mentally disordered
individuals are perceived as dangerous because they are unpredictable, but the
risk they pose to society has been greatly inflated by the media.
In particular,
individuals suffering from ‘personality disorder’ are increasingly associated
with dangerous and violent behaviour. Much anticipatory containment legislation
is therefore aimed at this group. However, neither the legal or medical
communities are agreed as to what exactly constitutes a personality disorder,
and there is even less agreement as to who in this group should be considered
dangerous (techniques designed to assess risk in sufferers are inconsistent).
Detention seems to
be the preferred option for those personality-disordered individuals considered
dangerous, because the condition is seemingly untreatable. But before we
support such preventive measures we should consider whether they are
unconstitutional and offensive to our democratic system, and whether there are
preferable alternatives.
“The reasonable man
adapts himself to the world, the unreasonable man wishes the world to adapt
itself to him.”
- George Bernard
Shaw
INTRODUCTION
1
An introduction to the concept of “anticipatory containment”
1.1
What is anticipatory containment?
“Anticipatory
Containment” refers to the policy of pre-emptively detaining persons who are
considered to be dangerous – in other words it uses criminal potentiality as
its sole justification for detention.
As a preventive,
not reactive policy, it does not require any objectively harmful actions that
might otherwise justify a criminal prosecution. Also, in contrast to
traditional Mental Health legislation it is not motivated by paternal
instincts, as a detainee need not suffer from a treatable mental illness, and
may be perfectly capable of looking after themselves.
Essentially it
reflects a concern for public safety that outweighs considerations of
individual rights. Via this justification, it can be equally applied to people
with “Dangerous Severe Personality Disorder” (DSPD) as to potential terrorists.
However, for the purpose of my dissertation I will focus on the issue of
targeting personality disorders with preventive legislation.
1.2
The Issues
Firstly, as
citizens of a democracy we should be wary any time the state chooses to
circumvent civil liberties. This is especially so in the case of anticipatory
containment, which seems to be a policy developed largely in response to
inciting media attention on individual cases, while empirical support remains
non-existent.
Secondly, in the
event that there is in fact a problem worth addressing, any new legislation
must be well justified: “The real danger is that the legislation will instead
be used coercively to manage small groups of ostensibly dangerous individuals
while the real systemic and causal issues are ignored”. [1]
Thirdly, the basic
concept of pre-emptive incarceration is an obvious breach of the rule of law –
nullum crimen sine lege – that no one can be penalized by the state without
breaching a previously declared law. Arguably, in the case of personality
disorders, anticipatory containment effectively punishes people for their
thoughts.
Fourthly, the
actual methods used to assess risk are inconsistent in their results. Thus the
high-water mark demanded by civil rights is not satisfied by the inaccurate
techniques currently employed.
Finally, there may
be infinitely preferable alternatives to the rather drastic state action of
incarceration, such as therapeutic procedures for treatment.
CLINICAL ISSUES
2
Mental Illness
2.1
An Introduction to Abnormal Psychology
The study of
abnormal psychology is able to provide useful training to many people over a
wide variety of professions – it contributes most obviously to psychiatry and
psychology, but is also valuable to social workers, teachers, ministers, law
reformers, politicians and so on. What these fields share in common is the need
for their practitioners to understand people and their troubles, and to be able
to distinguish between social conflicts and private dilemmas.
However, there will
be occasions when the source of a person’s troubles may be traced back to a
mental illness. In these circumstances a practitioner is asked to recognise
this unique source of conflict and respond appropriately, which may be difficult
if we consider the peculiarities of abnormal personality to be “exaggerations
of what is to be found in every human being”. [2]
The basic problem
then in identifying mental illness, and behaviour that stems from it, is that
it is not always easy to define. Mechanic complains that “attempts to define
mental illness in some precise fashion have been disappointing. Although it is
usually defined in terms of some deviation from normality, defining normality
is not a simple matter”. [3] In any event, relatively
few people will attain the ‘ideal’ standard of mental stability, such as
suggested by the American National Committee for Mental Health. [4]
There are various
signs of disorder, though, which mental health professionals are willing to
recognise as departures from ‘normality’. These are generally reactions to
circumstances that lack any utility in response, such as “behaviour that is
strikingly discordant with [a person’s] social circumstances and life situation
… [or is] so bizarre and difficult to interpret that we infer illness”. [5]
White describes
these as personal reactions that are “so little warranted by external
circumstance, or so poorly designed to achieve desired results, that we cannot
avoid considering them disordered”. [6] In making such assessments
the context of the behaviour is obviously crucial.
It is an inference
of causation that links abnormal behaviour to abnormal psychology: [7]
Although mental
illness is identified by aberrant acts and expressions,
the definition
extends beyond these acts to implicate the person’s
entire identity and
personality. When we define such behaviour, we not
only say that the
person is behaving in a manner discordant with
circumstances, but
also that he or she is mentally ill or suffering from a
mental disorder.
While “mental
health professionals differ considerably in viewing mental illnesses primarily
as disease, as disturbances in the functioning of the personality, or as
problems in living”, [8] various categories of
identification have been established to aid classification and treatment.
The official
American classification is provided by the American Psychiatric Association’s
“Diagnostic and Statistical Manual of Mental Disorders” (DSM) who’s latest
edition was released in 1994 (DSM-IV), with a text revision in 2000
(DSM-IV-TR).
Likewise, a
European standard has been established by the World Health Organization in
Geneva, and is contained in “The International Statistical Classification of
Diseases and Related Health Problems, 10th Revision” (ICD-10). This
was last updated in 1993, and will be updated again next year.
These standards
will be discussed in more detail later (Section 4).
2.2
Mental Illness and Competing Ideologies
Having introduced
the study of abnormal psychology as a clinical field, it is also important to
recognise that even medical studies are shaped by ideological and policy
issues. As our attitudes change, so can our approach to supposedly empirical
and objective investigations.
Mechanic pinpoints
this nexus between discipline and policy, where “uncertainty … allows
ideological beliefs to play a major role [in medical sciences] since how mental
illness is viewed has implications for social reform efforts and for concepts
of personal change and autonomy”. [9]
He follows the
modern medical ideological debate to its most divisive period during the
decades of the 1960s and 1970s; a period: [10]
[C]haracterised by
optimism about the potential of social reform and strong advocacy for civil
rights and civil liberties. Those who believed strongly in human betterment
through environmental manipulation resisted biological and genetic explanations
because they feared that if mental illness was seen as biologically caused
there would be less sympathy for social efforts to improve people’s lives.
Concepts of mental
illness are therefore placed between arguments of biology and sociology, while
a second ideological dimension is provided by the conflict between liberty
interests in contrast to therapeutic ones. Where libertarians “believe in
maintaining and protecting the rights of individuals to live as they wish
without interference from the state …. those with a therapeutic ethic believe
that intervention should override individual liberties if the person is
mentally ill and in need of treatment”. [11]
Public interest
lawyers from civil rights movements often championed 1960s liberty interests.
Thomas Szasz (a Professor of psychiatry and psychoanalysis) argued that “mental
illness was a myth and that the standards by which patients are defined as sick
are psychosocial, ethical, and legal but not medical … [that] most symptoms
designated as mental illness are not the result of brain lesions or biological
dysfunctions but rather are deviations in behaviour or thinking”. [12]
The flaw in this
‘myth’ theory is that, whatever truth it may contain, logic suggests that some
illnesses are nonetheless medical in nature: [13]
The diagnostic
disease approach is a tool used for identifying, studying and treating persons
with particular types of problems … Differential diagnosis is a technique the
doctor uses to identify the specific nature of the problem and what medical
knowledge may have to offer.
These arguments are
particularly relevant to the field of personality disorder, which are
themselves the subject of a biology versus sociology debate. What we define as
the ‘personality’ is no doubt influenced by our psychosocial leanings.
3
Personality Disorders
Since most new
legislation worldwide is targeting “dangerous” people with “severe” personality
disorders it is important for us to consider what constitutes the rather
nebulous concept of a ‘personality disorder’, let alone how to satisfy the
criteria for ‘dangerousness’. There are in fact various types of personality
disorders, and we should encourage accuracy in identifying which types ought to
be targeted by new legislation – if any at all.
3.1
Theories of Personality Development
We recognise mental
illness in behaviour that seems to be a bizarre extension of what we would
consider normal. In other words: [14]
A basic assumption
… is that disturbed behaviour is part of the same continuum as normal behaviour
and is explained by the same theories that govern our understanding of normal
personality development and social functioning. If disturbed behaviour is a form
of adaptation of the personality in response to particular situations and
social stresses, then it is logical to study such behaviour from the same
perspectives and orientations as those from which we study any other kinds of
behaviour.
This is the approach
taken by psychodynamics, an alternative to the disease perspective, which
attempts to reconstruct a developmental picture of the patient’s personality.
Thus those who view mental illnesses as disturbances of the personality
“conceive of such problems as repertoires of behaviour and patterns of feeling
that have their origin in childhood social development and persist through
time, even though they are inappropriate to effective social functioning and
personal comfort”. [15]
“[T]he failure of
persons to adjust adequately to their social surroundings or to fit into a
recognised social group” can therefore be recognised as a sign of mental
illness [16]
and so the purpose of a psychiatric examination must be to “discover the origin
and evolution of such personality disorders as may be interfering with the
happiness, satisfactions, efficiency, or social adjustment of the patient”. [17]
The difficulty with
personality disorders lies in the inherent uncertainty about the moral status
of the condition – whether a sufferer is ‘mad or bad’ – and also where to draw
the line between inappropriate behaviour and behaviour which is the inevitable
result of poor socialisation: [18]
In applying a
psychiatric viewpoint to deviance in general, we often fail to appreciate the
extent to which nonconforming behaviour is a consequence of learning processes
whereby persons within particular subgroups and social settings normally
develop attitudes, values, and behaviour patterns that are illegal or
disapproved of within the larger society. No doubt, some deviants suffer from
particular biological propensities and profound psychological disorders but it
is irresponsible to label all disapproved of behaviour as being ‘sick’.
3.2
An Attempt at Definition
In summary then, a
personality disorder is “a severe disturbance in the characterological
constitution and behavioural tendencies of an individual, usually involving
several areas of the personality, and nearly always associated with
considerable personal and social disruption”. [19]
Where ‘normal’
personality refers to personality traits “present to a broadly normal extent,
neither to gross excess nor extreme deficiency”, an abnormal personality by
contrast is therefore “a variation upon the accepted, yet broadly conceived,
range of personality”. [20]
The unique aspect
of personality disorder is that this diagnosis does not depend on any condition
that is attributable to gross brain damage or disease, or to another
psychiatric disorder. In other words, a personality disorder is not the product
of a mental illness per se, but of poor socialisation.
4 Classifications of Personality Disorder
4.1
DSM-IV-TR
The DSM-IV-TR
provides general diagnostic criteria for identifying personality disorders, and
it also subcategorises the forms that such disorders can take. However, it also
recognises that professionals may not always be able to identify distinct
personality disorders that will nonetheless be fit for general classification.
The DSM-IV-TR
describes personality disorder as “an enduring pattern of inner experience and
behaviour that deviates markedly from the expectations of the individual’s
culture”. [21]
This pattern must be manifested in two or more areas, such as cognition,
affectivity, interpersonal functioning or impulse control.
Further, the
enduring pattern is “inflexible and pervasive across a broad range of personal
and social situations”, “leads to clinically significant distress or impairment
in social, occupational, or other important areas of functioning”, and is
“stable and of long duration and its onset can be traced back at least to
adolescence or early adulthood”. [22]
Finally, it must
not be “better accounted for as a manifestation or consequence of another
mental disorder” (e.g. schizophrenia) nor be caused by “direct physiological
effects” (e.g. drugs) or a “general medical condition” (e.g. head trauma).
An important
feature of the DSM-IV-TR classification system is that each type of disorder
must meet a “polythetic criteria” – in other words, must satisfy a given number
of listed items in order to trigger a diagnosis. While this may lack a degree
of specificity, it counters a criticism levelled at the ICD-10 standard; that
the ICD-10 fails to indicate the necessary degree of severity required to
trigger a diagnosis. [23]
The subcategories
of DSM-IV-TR personality disorder are:
i) Cluster A: Paranoid, Schizoid,
and Schizotypal
ii) Cluster B: Antisocial,
Borderline, Histrionic and Narcissistic
iii) Cluster C: Avoidant, Dependent
and Obsessive-Compulsive
iv) Those “Not Otherwise Specified”
4.1.1
Cluster A Disorders
The Paranoid
personality disorder is characterised by a “pervasive distrust and
suspiciousness of others” whereby motives are automatically interpreted as
being malevolent. It has its roots in early adulthood and should be present in
four or more contexts such as unwarrantedly suspecting infidelity,
exploitation, harm or deception by others; doubting the loyalty,
trustworthiness and confidence of friends; “persistently” bearing grudges; and
interpreting threats, insults or attacks on character in benign events. [24]
Individuals with a
Schizoid personality show a “pervasive pattern of detachment from social
relationships and a restricted range of expression of emotions in interpersonal
settings” which has its roots in early adulthood. This is exhibited in four or
more contexts such as: preferring solitude, not desiring inclusion in close or
sexual relationships, friendships, or family, “indifference to the praise or
criticism of others” and emotional coldness or “flattened affectivity” (i.e. in
the range, intensity and appropriateness of emotional response). [25]
Schizotypal
personality disorders are similar to schizoid personalities in their “pervasive
pattern of social and interpersonal deficits marked by acute discomfort with,
and reduced capacity for, close relationships” but also exhibit “cognitive or
perceptual distortions and eccentricities of behaviour” such as bodily
illusions, delusions of reference, odd beliefs, paranoid ideation and
“excessive social anxiety” undiminished by familiarity. [26]
4.1.2
Cluster B Disorders
Antisocial
personality disorder is found in those age 18 and up, who have a history of
conduct disorder prior to age 15, and who show a “pervasive pattern of
disregard for and violation of the rights of others” as indicated by
aggression, impulsiveness, deceit, recklessness, “consistent irresponsibility”
such as “repeated failure to sustain consistent work behaviour or honour
financial obligations”, and who contravene social norms and the law. They also exhibit
a lack of remorse “by being indifferent to or rationalising having hurt,
mistreated, or stolen from another”. It is this group that most closely
resembles what we call sociopathy, or psychopathy. [27]
Borderline
personality disorders refers to a pattern of impulsivity, and instability of
interpersonal relationships and self-image. This may be manifested through
“frantic efforts to avoid real or imagined abandonment”, alternation between
extremes of idealisation or devaluation in interpersonal relationships,
identity disturbance, self-damaging impulsivity (such as in spending, sex,
substance abuse etc), intense episodic dysphoria (i.e. unstable and reactive
moods), intense anger, paranoia and “recurrent suicidal behaviour” or
self-mutilation. [28]
Individuals with
Histrionic personality disorder display “excessive emotionality” and are
attention seeking to such a degree that they are uncomfortable when they are
not the focus of any such attention. Their interaction with others is “often
characterised by inappropriate sexually seductive or provocative behaviour” and
they may exhibit shallow expressions of emotions, self-dramatisation, and be
very suggestible. [29]
The final Cluster B
disorder, Narcissism, is found in people with a pattern of grandiosity, who desire
admiration but have a lack of subsequent empathy. They may have an inflated
sense of self-importance (for example, they may expect to be “recognised as
superior without commensurate achievements”), with unreasonable expectations of
entitlement, and be preoccupied with ideal fantasies of success, power etc. [30]
4.1.3
Cluster C Disorders
Those who suffer
from Avoidant personality disorder show a pattern of “social inhibition,
feelings of inadequacy, and hypersensitivity to negative evaluation” displayed
in such contexts as avoiding interpersonal contact for fear of criticism,
rejection, disapproval, embarrassment, shame or ridicule, and through a low
self-esteem, viewing themselves as inadequate, inept or inferior etc. [31]
Individuals who
have an “excessive need to be taken care of that leads to submissive and
clinging behaviour and fears of separation” present a Dependent personality
disorder, and who have difficulty assuming responsibility for major areas of
their life. The may also feel helpless when alone, and seek constant nurturing
from others. [32]
The
Obsessive-Compulsive personality disorder is defined by a pattern of
“preoccupation with orderliness, perfectionism and mental and interpersonal
control, at the expense of flexibility, openness and efficiency”. A sufferer
may be preoccupied with details, rules and lists “to the extent that the major
point of [an] activity is lost”, or is perfectionist to such a degree that they
are unable to actually complete a project. Other signs are the inability to throw
out worthless or not useful objects (which have no sentimental value),
reluctance to delegate tasks, overconscientious and inflexible in ethics and
values, a miserly attitude towards money, and general stubbornness.
4.1.4
A Note on DSM-IV-TR
The “dramatic”
middle Cluster that includes disorders prone to violence and substance abuse
(including sociopathy) is the most relevant to anticipatory containment
legislation. In general terms it is obviously violent and criminal individuals
suffering from personality disorders who will be targeted by the criminal law. [33]
4.2
ICD-10
The ICD-10
describes personality disorders as: [34]
[D]eeply ingrained
and enduring behaviour patterns, manifested as inflexible responses to a broad
range of personal and social situations. They represent extreme or significant
deviations from the way in which the average individual in a given culture
perceives, thinks, feels and particularly, relates to others. Such behaviour
patterns tend to be stable and to encompass multiple domains of behaviour and
psychological functioning. They are frequently, but not always, associated with
various degrees of subjective distress and problems of social performance.
This is very much
in keeping with the American Psychiatric Association’s definition, and contains
the same caveat that no personality disorder applies if these conditions are
directly attributable to brain damage, disease, or to any other psychiatric
disorder (such as schizophrenia).
The European
standard does, however, differ in its range of required criteria; it lists
several triggers (all of which must be met) but does not discuss the degree of
severity necessary to warrant a diagnosis. The ICD-10 criteria requires
“markedly disharmonious attitudes and behaviour”, an enduring pattern of
abnormal behaviour “not limited to episodes of mental illness” and which is
“pervasive and clearly maladaptive” to personal and social situations, and
“considerable personal distress” which may include “significant problems in
occupational and social performance”. [35]
4.2.1
Dissocial (Antisocial) Personality Disorder
The most relevant
ICD-10 classification is F60.2, which deals with Dissocial personality
disorders, a “gross disparity between behaviour and the prevailing social
norms” as characterised by “callous unconcern for the feelings of others”,
irresponsibility and disregard towards societal norms, rules and obligations,
“incapacity to maintain enduring relationships” but with no difficulty in
establishing them, “very low tolerance to frustration and a low threshold for
discharge of aggression, including violence”, lack of guilt, and “marked
proneness” to blame others for or to rationalise behaviour which has brought
the individual into conflict with society. [36]
This category
includes the following disorders: amoral, antisocial, asocial, psychopathic and
sociopathic personalities – but excludes conduct disorders, and emotionally
unstable personalities.
5.
Psychopathy
An English
Psychiatrist, Prichard, introduced the concept of psychopathy in 1835. He
described a “form of mental derangement” in which the individual’s “power of
self-government” was weak or absent, but there was no evidence of accompanying
intellectual impairment. Nonetheless, the individual was so incapacitated by
their lack of self-control that they could not conduct themselves with “decency
and propriety in the business of life”. He labelled these patients “morally
insane” or “morally imbecile”.
We can recognise
the common traits of personality disorder in Prichard’s statements, and since
his time the psychiatric community has conceived of psychopathy as “a defect in
the realm of socialised behaviour [with] an innate weakness lying behind it”. [37]
In clinical and
public usage though, the term ‘psychopathy’ has been wielded inconsistently. To
psychiatrists it refers to a specific diagnosis subset of personality disorder,
but has also been used generally as a catchall term for unspecified maladaptive
traits, and often as synonymous with antisocial personality disorder, dyssocial
personality disorder and sociopathic disorder. That the term is used as a
‘wastebasket’ is due to the application of “symptomatic criteria and social
evaluation as well as personality dynamics” [38] in the various attempts
to understand the disorder.
In recent years
though, ‘psychopathy’ has undergone a clinical revival and has concreted its
meaning as a separate clinical diagnosis. As a subset of personality disorder,
it shares a definition by exclusion; “it is applied to long-standing social
maladjustments which do not belong under the headings of defective
intelligence, psychosis or neurosis”. [39]
The public,
however, is unlikely to be sympathetic towards the concept of psychopathy as
illness. In the public sphere the term does hold some recognition of psychiatric
meaning, but is used generically to refer to people who are unconscientiously
violent, or else anti-social. It is also used as a stigmatic label for any type
of mental disorder or illness that manifests itself in ways perceived as
dangerous. [40]
Afterall: [41]
[T]he public groups
the individual with antisocial personality disorder into the category of
dangerous and bad people, failing to differentiate him from the dangerous
paranoid individual, the socialised career criminal, or the driven sexual
assault. Second, the public does not see the psychopath as having an illness.
Third, the public is frightened by antisocial individuals and feels cheated and
helpless in the face of their seeming ubiquity. Finally, the public perceives
the antisocial person as different, as powerful, as unstoppable, and as not
answerable or entitle to rehabilitative resources.
This sentiment is
shared by some psychiatrists who criticise DSM-IV-TR and other established
definitions of psychopathy as diagnoses which “present a pseudo-scientific
façade for value judgments” – psychopathy being no more than someone’s warped
“philosophy of life”. [42]
Nonetheless, given
the evidence, psychopathy now seems to be a recognised, if extreme, form of
personality disorder and is thus a logical target for anxious governments
worldwide.
WORLD SITUATION
While the United
States does have preventive systems in place, there are not the same levels of
similarities that can be found across the United Kingdom and New Zealand.
Consequently I have confined my discussion to the analogous legislation and
proposals of Scotland, England, Wales and New Zealand.
6 Scotland
6.1
History
In 1992 Noel Ruddle was convicted of
culpable homicide – he was a diagnosed paranoid schizophrenic (a diagnosis
which was later revised to personality disorder). In the following years Ruddle
successfully appealed his conviction, and was granted an absolute discharge
from the State Hospital on the basis that he did not meet the s17 criteria for
continued detention under the Mental Health (Scotland) Act 1984 – that those
suffering ‘persistent mental disorder’ cannot be detained unless treatment is
likely to alleviate their condition.
Because of the
negative publicity that was aroused by his discharge, an emergency measure was
passed in response [43] – the Mental Health
(Public Safety and Appeals) (Scotland) Act 1999, which amended s64 of the 1984
Mental Health Act. The new Act contained the following proviso:
[W]here an appeal
to the sheriff is made by a restricted patient who is subject to a restriction
order, the sheriff shall refuse the appeal if satisfied that the patient is, at
the time of the hearing of the appeal, suffering from a mental disorder the
effect of which is such that it is necessary, in order to protect the public from
serious harm, that the patient continue to be detained in a hospital, whether
for medical treatment or not.
6.2
The Revised Act
The s64
‘treatability’ test was thus modified into a ‘public safety’ test, as described
above. In operation this test is: [44]
[P]aramount in all
cases concerning restricted patients, superseding questions as to whether the
patient would benefit from medical treatment. It is only if the patient does
not fall foul of the public safety test that the [authorities] … go on to
address whether the normal criteria for detention of ‘dangerousness’,
‘necessity’ and (where applicable) ‘treatability’ are met.
Also amended was s1
of the 1984 Act, which now includes ‘personality disorder’ in its definition of
mental illness. This definition is subsequently broad enough to affect the
civil procedure provisions, though the Scottish Executive “stated during the
debates on the legislation that it was not its intention to broaden the range
of people who might in future be admitted compulsorily to hospital”. [45]
Note that an
offender may also be transferred to hospital under subsections 71 and 72 of the
Mental Health (Scotland) Act 1984, and returned again under s74(2). Similarly,
a hospital direction may be made under s59A of the Criminal Procedure
(Scotland) Act 1995 whereby a prison sentence is passed alongside the order.
When treatment is complete the offender is remanded to prison to complete their
sentence, and can be transferred back again whenever necessary.
6.3
The MacLean Committee
In March 1999 the
Scottish Executive established the MacLean Committee to report on the state of
violent and sexual repeat offenders, and to make recommendations as to how to
deal with them. Essentially the Committee encouraged the formation of a new
system whereby ‘high risk’ offenders could be proactively contained via
indefinite, or life sentencing.
There were no
requirements that such ‘high risk’ offenders suffer from mental disorders, but
it was suggested that the present system of detaining dangerous disordered
individuals in hospital be changed. Their suggestion: that untreatable persons
be detained in prison instead.
The Report begins
with a discussion of judicial sentencing, because “there is an apprehension
that courts, when imposing sentences, have not always recognised the potential
for some offenders seriously to recidivate". [46] In particular, there is a
target group of offenders who (as described in the Committee’s terms of
reference) present a “continuing danger to the public”. [47]
The Report, therefore,
seeks to create a new sentence whose “fundamental aspect” is that these
offenders “should not be released into the community until they have served an
adequate period of time in prison to meet the requirements of punishment, and
do not present an unacceptable risk to public safety”. [48]
6.3.1
Risk Assessment
Since the Report is
aimed at ‘serious violent and sexual offenders’ its preferred definition of
risk assessment is that of a “process of evaluating individuals to characterise
the likelihood they will commit acts of violence and develop interventions to
reduce that likelihood". [49] The Report states that: [50]
This definition is
particularly helpful because it does not view risk assessment as an end in
itself but links it to positive action to manage and reduce risk. The term risk
is preferred to 'dangerousness', because
[that] implies a dispositional trait, inherent in an individual that
compels [them] to engage in a range of violent behaviour across a range of settings.
That approach fails to take into account the complex interaction of
psychological characteristics and situational factors in the production of
violent acts.
The Report follows
this with a detailed investigation into a variety of risk assessment
procedures, which notes that any process (even the best) “creates significant
numbers of 'false positives' (people assessed as high risk who do not offend)
and 'false negatives' (people assessed as low risk who do offend)”. [51]
But despite
recognising these limitations, the report uses an irrelevant comparison to wave
aside whatever criticisms are levelled at risk assessment procedures. Afterall,
risk prediction in the offender populace is at least better "than that
achieved in other important human decisions; for example, the likelihood of
cardiac bypass surgery improving mortality rates”! [52]
In effect, the
Report recognises the uncertainties of risk assessment but is willing to accept
the odds, and assumes that such systems will only improve with time as
psychological sciences develop.
6.3.2
Sentencing options
In Scotland, there
is little in the way of mandatory sentencing, and judicial discretion is often
exercised. In order to understand what makes judges impose a discretionary life
sentence as opposed to a determinate one, the MacLean Committee ordered a study
of all adult discretionary life sentences between 1994 and 1998.
They found that all
offences were within the Committee's "terms of reference" and that
the main justification given for such sentences was "the level of
continuing risk presented by the offender". [53] The research also found
that the existence of a personality disorder was never a determining factor for
the judiciary.
The Report
concluded that the "basis" of the Scottish system of evaluating
dangerousness and imposing indeterminate sentences was "sound" but
that "more needs to be done to make the assessment of risk an overt and
transparent part of that system". [54] In particular they
recognise that “the current sentencing provisions are deficient since they do
not require the courts to impose on exceptional individuals an
exceptional sentence which both marks the gravity of what they have done and
provides an appropriate level of public protection, having regard to the risk
that such individuals pose”. [55]
In response to this
conclusion, the Committee next considered, and rejected the following reform
options: mandatory life imprisonment for crimes other than murder, longer
determinate sentences, more extended sentences and alteration of the law on
supervised release orders. A further two other options were being handled by
alternative committees: alteration of the legislation on sex offenders (Lady
Cosgrove's Expert Panel on Sex Offenders) and on stalking and harassment (the
Stalking and Harassment Consultation Paper).
Instead the
Committee chose to make a few concurrent proposals for new provisions and
pre-sentence risk assessment. These entail state control via custodial sentence
(i.e. prison) until "it is thought that the offender can be released with
safety to live in the community under appropriate measures of
supervision". [56]
Exactly how an
indeterminate detention in prison is going to be therapeutic enough to improve
anyone’s condition (to a level where they become fit for release) is not
discussed.
6.3.3
A New Sentence
The Report
recommends the creation of a new sentence called "An Order for Lifelong
Restriction" (OLR), which can be made following a conviction. The Crown
should have the power to apply for a full risk assessment in Court where
"there is a pattern of behaviour which justifies" such an order. [57]
Consequently, an
Order would only be available “in cases where the High Court was satisfied that
there are reasonable grounds for believing that the offender presents a
substantial and continuing risk to the safety of the public such as requires
his lifelong restriction”. [58]
In determining risk
the Report recommends the Courts have access to and consider "information
about the offender's personal and family relationships, employment history,
financial circumstances, personality traits and characteristics, physical and
mental health and any history of substance abuse". [59] Also available for
consideration are unproven allegations of criminal behaviour "so long as
these allegations are admitted by the offender or, if challenged, established
by the leading of evidence". [60]
Implied in the
Committee’s approach is that any failings inherent in risk assessment will be
marginalised to such a degree that they no longer pose a problem. Thus the
sentencing process “should be informed by a formalised, multi-disciplinary risk
assessment based on the circumstances of the current case and much fuller
information regarding the antecedents of the offender and the nature of any
previous offences". [61]
6.3.4
Mental disorders
Chapter 7 of the
Report deals with high-risk offenders who suffer from a mental disorder and are
"likely to pose particular difficulties in terms of safeguarding the
public". [62]
In summary, the Report finds that the placing of offenders with untreatable
disorders into hospital, indefinitely, to be an inappropriate measure. However,
it is not the choice of sentence that the Committee takes exception to, but the
choice of location.
While the revised
Mental Health (Public Safety and Appeals) (Scotland) Act 1999 enabled the
continued detention of patients "irrespective of the need for medical
treatment in hospital", the MacLean Report is of the opinion that patients
should only remain in hospital where "there is a requirement for medical
treatment" as defined in the Act. [63]
From now on, for
"those high risk offenders where the mental disorder is solely one of
personality disorder” the Committee ‘anticipates’ that “the sentence will
normally be an [Order for Lifelong Restriction] rather than a psychiatric
disposal”. [64]
Their sentencing should not be undertaken "hastily", but any
"high risk offender who also suffers from a mental disorder that meets the
criteria for compulsory detention in hospital should receive an OLR together
with a hospital direction. This should be the only sentence permitted in
respect of such offenders”. [65]
In other words, s1
of the 1999 Act should no longer apply. Instead, "[t]he sentence would
begin with admission to, and treatment in, the State Hospital", and once
medical treatment is no longer appropriate the offender should be transferred
to prison. [66]
As the Report states further, “[f]or this particular category of offender” the
Committee does “not think it is necessary that public safety ... is an
appropriate determining factor for continued detention in hospital. The
offender patient will not in any case be returning to the public at this stage
but will be transferred to prison”. [67]
Curiously, the
Committee does not advocate the previous strategy in the case of pre-sentenced
assessments (though it does not rule it out). While sufficient to severely
curtail the rights of convicted individuals, presumably the Committee does not
think risk assessment is advanced enough to locate future offenders amongst the
unconvicted mentally disordered population: [68]
It is of course a
very restrictive disposal. Indeed the combination of indeterminacy of prison
sentence and mandatory committal to hospital is probably the most restrictive
type of sentence available to Scottish courts. It is therefore proper that [it]
should be reserved solely for those whom it is intended, and that it should not
be imposed unless there has been the fullest type of pre-sentence assessment.
6.3.5
Personality Disorder
Section 3 of the
Report deals specifically with personality disorders, as one of the Committee
requirements is to "[c]ompare practice, diagnosis and treatment with that
elsewhere, to build on current expertise and research to inform the development
of a medical protocol to respond to the needs of personality disordered offenders".
[69]
Personality
disordered individuals do form part of the ‘high risk’ group but the Committee
declares their preference in focusing on the "identification and
management of the risk" presented to society rather than by "the
presence or absence of any particular psychological or medical condition".
[70] Their data states that
approximately 50% of male Scottish prisoners suffer from antisocial personality
disorder, and that 8% is considered severe. Also, in 1997, 13 patients were in
the State Hospital with a principal clinical diagnosis of personality disorder.
[71]
Having established
that personality disordered offenders are a significant enough group, the
Committee attempts to fit them into its novel regime. They found no support for
a move towards preventive detention, and that existing offenders could not be
subject to a new order as “[t]he retrospective imposition of a prison sentence
appears … to present formidable human rights objections”. [72]
However, for
patients “whose continued detention at the State Hospital arises solely from
the need to protect the public from serious harm” the Committee recommends
harmonising their risk assessments with the procedures outlined previously for
general offenders. [73]
Personality
disorder does remain a unique category though, because the Committee strives to
give it more options to reflect its peculiar problems. Thus the “sentencing
options for a high risk offender who suffers from a personality disorder” can
be either an Order for Lifelong Restriction, or “such an order combined with a
hospital direction … according to the individual circumstances of the case”. [74]
6.3.6
Conclusion
The MacLean
Committee Report is hard to lock down – it is often negative about the results
of risk assessment systems, but it nonetheless recommends them as a desired
management mechanism. It raises the “formidable human rights objections” that
can be levelled against indeterminate sentences based on risk assessments
rather than actual offences, yet systemically recommends its euphemistic “Lifelong
Restriction” orders.
It tries to argue
that "[t]he term indeterminate sentence should not be seen as synonymous
with indeterminate incarceration” because: [75]
Where the risk
assessment indicates that it is appropriate, and where the comprehensive risk
management plan is in place, offenders will continue their sentence in the
community ... subject to life-long supervision, specified conditions of release
appropriate to the individual, and sanctions and restrictions including recall
to custody.
While this defence
sounds good on paper, it remains to be seen whether these rehabilitative aims
would be pursued effectively in practice.
6.4
Subsequent developments
The Millan
Committee (who began their review of the 1984 Mental Health (Scotland) Act in
1999) submitted their Report, “New Directions” to the Scottish Executive in
January 2001. The report contains over 400 recommendations, aimed largely at
combining mental health legislation and incapacity legislation into a new
Mental Health Act.
The Committee
recommends that individuals be not made subject to long term compulsory
measures unless the treatment “is likely to provide a benefit for the patient,
by alleviating or preventing deterioration in the patient's mental disorder, or
associated symptoms of that disorder”. [76]
The Committee is
approving in tone of the MacLean Report (Chapter 27) and suggests that their
recommendations “in respect of offenders with mental disorders can be
accommodated within [the] proposed framework for a new Mental Health Act”. [77] (For example, the Risk
Management Authority “should be given responsibility for those aspects of
Ministers' responsibility for restricted patients which are currently delegated
to officials”. [78])
The new Act has not
yet been passed. But meanwhile (perhaps in anticipation), the Privy Council
have held that detaining restricted patients in hospital to safeguard the
public, when those patients are unable to benefit from treatment, is not a
breach of Article 5 of the European Convention on Human Rights. [79]
7 England and Wales
7.1
History
“Persistent
dangerous recidivists” have been an “intractable problem” for England since the
turn of the 20th Century, [80] with attempts by the
legislation to target them proving ultimately unpopular. In 1908 the Prevention
of Crime Act was introduced to allow the Courts to add between 5 and 10 years
of preventive detention to the end of a prison sentence in the case of habitual
offenders.
However, few such
orders were made (less than 20 per year from 1937) and the system was changed
by the Criminal Justice Act 1948. Here preventive detention from 5 to 14 years
could be ordered as a substitute for the ordinary prison sentence. This was
still unpopular and was only awarded in 13% of cases where the formal
requirements had been met. The 1967 Criminal Justice Act revoked preventive
detention.
On the psychiatric
front, the Mental Health Act 1959 had defined “psychopathic disorder” with the
assumption that it was treatable, thus justifying compulsory committal to
hospital for such individuals. However, as it became clear that not all cases
could be treated, the Mental Health Act 1983 was adapted to prevent
hospitalisation unless psychiatrists gave evidence that an individual would
indeed benefit from treatment.
Consequently, untreatable
offenders suffering from psychopathy were instead given determinate prison
sentences followed by release and periods of supervision. The courts rarely
handed down discretionary life sentences, presumably in recognition of the
diminished moral responsibility of personality disordered offenders.
The Crime
(Sentences) Act 1997 did remove some of the leeway for discretion for
subsequent “serious offences”, but judges then tended to make short minimum
periods of detention with the Parole Board to set release dates.
Other proposals
were also made during this period, highlighting the changing opinions towards
personality disorders. The 1975 Butler Committee recommendation was for a
discretionary “reviewable” sentence, which could be extended every two years;
but only for “offenders who had inflicted grave harm on others and had already
been convicted of a life-carrying offence of this kind”. [81]
Similarly, the 1981
Floud Report [82]
recommended a discretionary determinate sentence, but whose length was unrestricted
by the tariff, for “offenders with previous convictions for grave personal
harm”. [83] The same sentence could
be issued under s2(2)(b) of the Criminal Justice Act 1991, but without any
requirement for a previous offence.
These evolved again
into the 1999 Fallon Report [84] recommending a reviewable
sentence based on the tariff, but indeterminately extendable by periods of 2
years, unrestricted to offenders with previous convictions, but subject to
assessment by a specialised team.
7.2
Recent Developments
In 1997 a convicted
paedophile named Robert Oliver was released from prison having served 10 years
of a 15 year sentence for murdering runaway teenage Jason Swift. He was
diagnosed as personality disordered, but the court was unable to order a risk
assessment before his release.
In 1998 Michael
Stone was sentenced for the murders of Lyn Russell and her six-year-old
daughter, Megan. Five days previously he had complained to a nurse about his
violent and murderous fantasies, and had requested hospital admittance (which
was refused). Although suffering from a psychopathic personality disorder, he
was sent to prison because his condition was deemed ‘untreatable’.
In July 1999 the
Home Office (after a joint inquiry with the Department of Health Review)
released a consultation paper with a view to developing a policy targeting
people with antisocial (dissocial) personality disorder. It stated that there
were 400 dangerous psychopaths currently incarcerated in secure hospitals, with
another 1,400 in the prison system, and an estimated 300 to 600 in the
community.
The report
suggested a special detention order should be available “in civil proceedings
subject to appeal and periodic review … on the basis of evidence that the
individual [is] suffering from a severe personality disorder and as a
consequence … present[s] a serious risk to the public”. [85]
With a core policy
of public protection, the avowed intention is to create new services that are a
hybrid of prisons and hospitals, directed by law that allows preventive
detention even of non-offenders. [86] This comprises two
options: widening the use of discretionary life sentences for those convicted
of criminal offences, or creating new indeterminate orders (as suggested
above).
Many writers were
sympathetic to the aims contained in the report. Professor Nigel Walker, a
member of both the Butler and Floud Committees, was unembarrassed to
acknowledge that prevention is “better than cure … where the genesis of
psychopathy is concerned”. [87] Moreover he adds: [88]
What we can do is
make detention more humane. Indeed we are under a moral obligation to make it
as tolerable as security allows when a person is being detained not for what he
has done but for what he might do. When that is the case his welfare is being sacrificed
to the safety of others without his consent, and something is owed in exchange.
The Home
Secretary’s argument was that it was “wrong that public safety depended on the
current beliefs of the psychiatric profession” and that the “first civil right
of a human being had to be the right to life”. [89]
However, an
editorial from the British Medical Journal shows the greater medical
profession’s strong opposition to the proposals, and is backed up by comments
from the Royal College of Psychiatry and other medical and civil rights groups.
Mullen asks why the medical profession should be opposed to a system that
finally takes notice of an under-funded and largely ignored problem, and then
provides the following answer: [90]
If dangerousness
was really a characteristic of some personality disordered individuals rather
than a characteristic of some acts by some of them; if the proposed special
centres, with their multidisciplinary teams armed with ‘batteries of
standardised procedures’ could reliably recognise dangerous severe personality
disorder; if these proposals were really about providing care and treatment for
the personality disordered; and if health professional were really judges and
jailers charge with maintaining public order, then perhaps these proposals
would be worth taking seriously. But none of these assumptions holds true.
7.3
The Dangerous People with Severe Personality Disorder Bill
On the 15th
March 2000 the House of Commons released the Dangerous People with Severe
Personality Disorder Bill, which would base its detention orders on the risk
represented by the individual, and their therapeutic needs, rather than on
convictions.
Clause 1 of the
Bill allows the court to make a person subject to a “Dangerous Severe
Personality Disorder Order” where that person has been referred to the court
and is “suffering from a severe personality disorder” and presents “a danger to
the public as a result of the disorder”.
Clause 2 allows
applications for such an order to be made by various groups, depending on
circumstances. In the case of a violent or sexual offence the prosecution,
defence and court may request an order to be made against the defendant. Under
the Sex Offenders Act 1997 a Chief Constable of Police or any local authority
officer can request an order, and finally any county court can refer a person
for assessment “where the behaviour of that person has given reasonable grounds
to believe that he may fulfil the conditions” set out in Clause 1.
Assessments, then,
are to be carried out by an Assessment Panel as described in Clause 3. While
the composition of such a panel is not specified in the Bill, the Secretary of
State (England) and the National Assembly for Wales (Wales) can make
regulations as to the size of the panel, the required qualifications, their
powers and their procedures. This undisclosed mechanism is a source of concern
for the psychiatric profession, many of who don’t wish to be made tools of a
criminal procedure – that is, “too involved in the punitive sentencing
process”. [91]
Any therapeutic overtures made by the Bill are probably only superficial, and
in any event give way to the ‘management’ aspects of the Bill.
The order itself is
discussed in Clause 4. Detention facilities must provide “a reasonable level of
security for the public from the person detained” and “services for the
management and treatment of the person’s disorder”. And what of the
untreatable? “[F]or the avoidance of doubt it is … not a condition for the
imposition of [an order] that such treatment is likely to alleviate or prevent
a deterioration in the persons’ condition.”
Clause 4 therefore
allows the incarceration of an individual where there is no therapeutic gain
and no available or useful treatment; and indeed even where incarceration will
only accelerate the deterioration of that person’s condition.
Review procedures
are outlined in Clause 5. The panel must review continued detention at least
once every 12 months, and if that person “no longer presents a danger to the
public” they may be released, subject to a court licence. This licence may
restrict their freedom of movement, and apply other such “reasonable
conditions” to their “future conduct”. Any breach of the licence will
constitute an offence. The panel, and a Chief Constable of Police may also
revoke any release or local authority officer may request such a revocation
(through a review).
7.4
The European Convention on Human Rights
The United Kingdom
is tied to the European Convention on Human Rights via their Human Rights Act
1998. Persons of “unsound mind” may be detained under Article 5(1)(e) of the
Convention, but only where objective medical opinion can establish a true
mental disorder that warrants compulsory confinement – while persistency of the
disorder is also required for continued detention. [92] Furthermore, the House of
Lords have previously interpreted the Convention as requiring treatability. [93]
Consequently, the
UK proposals have been criticised as attempting to “circumvent the European
Convention on Human Rights … With their promises of new money and research
funding, they hope to bribe doctors into complicity in the indefinite detention
of certain selected offenders. Discussion of the ethical dilemmas that these
proposals present for health professionals is absent, presumably because they
are ethically and professionally indefensible”. [94]
However, in a
recent Privy Council decision [95], various appellants
challenged the validity of Scotland’s Mental Health (Public Safety and Appeals)
Act – namely that holding restricted patients in hospital to safeguard the
public, when those patients would not respond to treatment, was inconsistent
with Article 5(1)(e) (i.e. the same complaint levelled against English
measures).
The Privy Council
held that there was no express reference to treatment as an essential feature
of dealing with persons of “unsound mind” in Article 5(1)(e): “In principle, it
could not be right that the public peace and safety should be subordinated to
the liberty of persons whose mental states rendered them dangerous to society”.
[96]
7.5
Criticism
There has been
widespread condemnation of the proposals by the medical community, and in
particular the British Medical Association. Dr Mullen’s complaints in the
British Medical Journal are a savaging indictment, accusing the Government of
abandoning mental health services in favour of draconian legislation: [97]
There is a crying
need for mental health services for severely personality disordered
individuals. Such services would decrease the morbidity and staggering
mortality associated with these conditions … [and] would contribute to
community safety. [However, the] British government’s proposals largely ignore
this central issue of developing appropriate treatment services in favour of
creating a system for locking up [people] who frighten officials … On first
reading [their proposals] created both disappointment and foreboding. On more
careful consideration it became dear that the contradictions were so glaring,
the deceptions so open and palpable, and the agenda so obvious, that these
proposals can surely not have any chance of influencing reality.
Rather than
continue to present the more general arguments which can be levelled at
anticipatory containment itself (dealt with in Section 10 onwards), I would
like to note one final comment from Mason which I believe sums up the irony of
the current British situation: [98]
Surely here is a
paradigm example of administrative knee-jerk reaction [to media and public
outcry] leaving us with a paradox: in this case, that the ‘treatability’ test
is being abandoned both North and South of the Border only moments after it has
been given the widest interpretation by the highest courts. [99]
8
New Zealand
8.1
History
Under the Mental
Health Act 1969 it was not clear whether personality disorders fit into the
definition of “mental disorder” as given. The definition covered people
“suffering from a psychiatric or other disorder, whether continuous or
episodic, that substantially impair[ed] mental health” such that they were
classed “mentally ill”, or “requiring care and treatment for mental illness”.
Of course,
untreatable conditions such as personality disorders were always going to be
problematic for our legislation, as they had been in the United Kingdom.
However, in dealing with this definitional problem, one particular case
foreshadows the modern approach and attitude toward personality disordered
individuals.
In R v M [100] the applicant had been
diagnosed with paranoid personality disorder, and was appealing against a
reception order that had placed him in psychiatric institutions for eight
years. During the review of his compulsory status it became crucial to
determine whether his personality disorder amounted to a “mental disorder”
under the 1969 Act.
The judge at the
first enquiry held that “it would take some persuasion” for him to be satisfied
that M was mentally disordered. [101] Nonetheless his
interpretation of s73(13) of the 1969 Act was that the question of disorder was
less important than an evaluation of ‘the patient’s own good or public
interest’, and allowed M’s continued committal.
Even at this early
stage we can see the original therapeutic impetus behind traditional mental
health legislation being waived aside in favour of public safety. If M was
untreatable but destined to remain incarcerated, this effectively amounts to a
form of containment like preventive detention. Arguably this decision “muddied
the distinction between mental health and criminal justice goals”. [102]
In any case, the
decision was approved in 1986 [103] and would have stayed
such if it were not for a 1992 review by Judge McElrea [104]. In that review the
Judge opted to consider the New Zealand Bill of Rights Act 1990, and found that
detaining a patient for a disorder, when the patient was no longer disordered,
amounted to an arbitrary detention.
As it turned out,
other reviews established that M suffered from more than mere personality
disorder, and consequent unanimity amongst psychiatric opinion allowed for his
continued detention. The earlier decisions, however, do provide evidence that
evaluations of dangerousness “may affect psychiatric diagnosis, court rulings
and statutory interpretation”. [105]
8.1.1
The Mason Committee
In 1988 the Mason
Committee considered the questions raised by the M cases – whether personality
disorder was a “mental disorder”, and whether sufferers could be compulsorily
detained. [106]
Concerns were raised that “mental disorder” was being given an “overly rigorous
interpretation” and that prisons would “become a dumping ground for those
difficult [mental health] cases [which] other institutions or organisations in
society [were] unwilling to deal with”. [107]
The Mason Committee
found that “under conditions of extreme stress, an individual with personality
disorder may demonstrate clear symptoms of mental disorder” as defined in the
Act, under which circumstance “committal would be appropriate”. [108] The Committee also noted
that voluntary committal was acceptable.
8.1.2
The Mental Health (Compulsory Assessment and Treatment) Act 1992
This Act was passed
to “redefine the circumstances … and the conditions under which persons may be
subjected to compulsory psychiatric assessment and treatment” [109] as evidenced by a new
definition of “mental disorder” which establishes the modern threshold for
compulsory treatment.
This new definition
“involves a shift in emphasis from the idea of care and protection to the
notion of dangerousness as an indicator of mental disorder” [110], and is more in line
with developments in other jurisdictions. A mental disorder is now defined as: [111]
… an abnormal state
of mind (whether of a continuous or an intermittent nature), characterised by
delusions, or by disorders of mood or perception or volition or cognition, of
such a degree that it –
(a) Poses a serious
danger to the health or safety of that person or of
others; or
(b) Seriously
diminishes the capacity of that person to take care of himself…
But does this cover
personality disorder? The inclusion of disorders of volition and cognition has
been criticised as allowing “idiosyncratic and pragmatic manipulation” of the
definition, “particularly where there is no real evidence of a mental illness
but there are other more pressing reasons to detain an individual such as …
threatening behaviour”. [112] If we are discussing
‘dangerous people with personality disorders’ then it may be that they are
included in this catchall.
Essentially, each
case must be considered on its own merits – and antisocial personality
disorders may satisfy the definition. [113] Likewise, Brookbanks
states that the new definition “may be taken to include psychopaths … This has
important implications for treating clinicians who may argue that such persons
are untreatable and ought not to be detained in psychiatric institutions”. [114]
8.1.3
Case law
Subsequent case law
has failed to determine the matter beyond doubt. In Re J [115] the patient had twice
stood trial for murders and been acquitted on the ground of insanity. Recent
psychiatric assessments had concluded that J suffered from a psychopathic
personality disorder, characterised by his intellectual level and lack of
remorse, and which could amount to a “disorder of volition” in certain
circumstances. Namely, J’s “extreme … response to stress or crisis”. [116]
The Act’s use of
“volition” sets it apart from psychiatric diagnosis, and allows it to avoid “a
descent into abstruse academic debate and argument as to whether or not a
person suffering from a personality disorder should or does come within the
terms of the Act”. [117] But this also sounds
like the Act excuses the Tribunal from making a specifically medical
declaration, and allows a pragmatic ruling on the question of personality
disorder.
This suspicion is
supported by the conclusion of the Review Tribunal in Re J – J was a
“time bomb” and the danger he posed to the public was “not a mere possibility”
but “a real likelihood”. [118] Consequently the Act is
read to be inclusive of his condition: [119]
[H]is eventual
release would not only have posed a direct threat, but is likely to have caused
significant public outcry and concern on issues of public safety. It is not
surprising, therefore, that clinicians and the Tribunal strenuously sought to
include personality disorder within the new Act’s definition of mental
disorder. Indeed, it could rather cynically be proposed that J’s quasi-diagnosis
… was in fact that of ‘dangerousness’ and that the finding of mental disorder
was simply made to ensure compliance with the statute.
While personality
disorder may be validly construed as a disorder of volition, Re J seems
to be a decision based on community safety policy rather than on a legitimate
determination of mental health. Unsurprisingly then, a later decision appears
to be inconsistent with the legal grounds of Re J precisely because it
follows the submerged policy which decided that case.
In Re AG [120] a female patient
suffering from a borderline personality disorder had made various attempts at
self-harm, ostensibly because of her hospitalisation and its associated
deprivation of autonomy. Following the ratio of Re J her personality
disorder would probably be sufficient evidence of disordered volition to
justify her continued detention.
However, unlike the
patient in Re J this woman posed no risk to the public, and in actual
fact was the only possible victim. Since community safety policy did not apply
to her, the Tribunal was willing to find that her personality disorder did not
satisfy the Act’s definition of mental disorder and subsequently they ordered
her discharge. For these reasons “and as a matter of convenience for hospital
staff, the argument that personality disorder did not meet the criteria in the
Act was employed to assure her release”. [121]
A more balanced,
and thus positive decision is presented by Re T [122] in which a
self-mutilating personality disordered individual sought to be released from
compulsory status. His plight was considered by the Review Tribunal in
appropriate therapeutic terms, with his compulsory detention viewed as one step
on the road to rehabilitation – because “imprisonment is seen to be an inhumane
option”. [123]
It is possible, however, that T’s sympathetic treatment by the Tribunal was
also granted because he posed no risk to the community.
Finally, in order
to provide judicial guidance as to the determination of “mental disorder”
versus personality disorders, a detailed judgment was released by Judge Inglis.
In the matter of H [124] emphasises the legal
aspect of the definition as a “convenient term to describe a combination of
threshold characteristics” which must be satisfied for a compulsory order. [125] Thus psychiatric
difficulties in identifying a particular mental illness, or in satisfying the
statute’s terms are irrelevant. Consequently, H’s bulimia revealed a disordered
volition (though this may not be so easily determined in other cases with
different facts).
However,
commentators warn that an over legalistic approach will lead to inconsistencies
in application where no meaningful definitions are provided, and that such an
approach tends to deny the “inter-disciplinary nature of the mental health arena
and the therapeutic objectives in the Act”. [126]
It is at this
point, with the case law tending towards coercive paternalistic powers, that
various new proposals for managing mentally abnormal ‘dangerous’ individuals
begin to emerge.
8.2
The New Psychiatric Preventive Detention
In 1993 concurrent
events precipitated the drafting of an Amendment Bill to the Mental Health
(Compulsory Assessment and Treatment) Act. In that year, 37 potentially
dangerous psychiatric patients were released into the community – eliciting
significant media attention. Within a month of his release from Lake Alice
Psychiatric Hospital, former patient Lloyd McIntosh was charged for three
separate, and extremely horrific, paedophilic sexual crimes. It later surfaced
that Lake Alice staff were aware of McIntosh’s openly admitted urges but that
their concerns had been ignored.
Obviously the 1992
Act came under fire, and the Bill was introduced to alleviate public concerns
over community safety. The solution: to create a “new form of preventive
detention” for dangerous, mentally abnormal people “whose secure confinement
may not be authorised at present”. [127] This would be done via a
“Compulsory Care Order” for people with specific conditions likely to commit
specific offences.
The Bill would have
applied to patients in psychiatric care following the commission of an offence,
but could also apply to non-offending patients admitted under the 1992
Mental Health Act – they could be reclassified as ‘forensic’ patients. The
“specific conditions” which would be targeted were any “state of arrested or
incomplete development of mind involving severe impairment of intelligence and
social functioning” and “persistent disorder or disability of mind (whether or
not involving significant impairment of intelligence)” – where either are
“associated with abnormally aggressive or seriously irresponsible conduct”. [128]
However, the Bill
was never enacted. It would have entailed major changes to the “principles,
procedures and standards which have defined the responsibilities of our mental
health and criminal justice systems” as well as acting “prospectively” and
“retrospectively” while curtailing the civil liberties of its target group. [129] It is circuitous [130] and the “regime it
creates is grossly overcomplicated” and would have been extremely difficult to
administer. [131]
8.3
The Intellectual Disability (Compulsory Care) Bill 1999
The most recent
development is the emergence of a new Bill intended to provide a separate
legislative avenue for dealing with dangerous intellectually disabled
individuals. Intellectual disability has traditionally been dealt with as an
exception to mental disorders, and was consequently not covered by the 1992
Mental Health Act.
However, the new
Act would introduce an assessment and management process modelled on the 1992
Act, but dealing specifically with intellectually disabled persons who are a
danger to themselves, or to others. Originally the legislation intended to deal
with both offenders (for imprisonable offences) and non-offenders (in a
separate section) but this has since been narrowed to offenders only.
There is also a new
proposed title for the Bill, the Intellectual
Disability (Compulsory Care and Rehabilitation) Bill, which is supposed to
reflect both its rehabilitative and compulsory aspects. Having been reported
back to the House of Representatives by the Health Committee, the reviewed
purposes of the bill are to: [132]
[P]rovide
courts with appropriate compulsory care and rehabilitation
options
for people who have an intellectual disability and who are charged
with,
or convicted or, an imprisonable offence; and recognise and safeguard the
special rights of people subject to this Bill; and provide for the appropriate
use of different levels of care.
The new Act would extend
coverage under the 1992 Mental Health Act to persons with intellectual
disability or acquired brain injury, and would establish two new types of
orders. First there are “Compulsory Care Orders” which allow for detention
between 3 months and 6 years in supported, supervised or secure environments
(this would have been the only order available to non-offenders.)
Secondly, there are
“Special Care Orders” which can be of indefinite length but are subject to
biannual reviews. These orders are to be handled via a proposed amendment to
the Criminal Justice Act.
There is no
specific reference to personality disorders in the Bill, but in any event its
passage into law would constitute a grave widening of the State’s powers to
incapacitate – which in itself would have serious implications for personality
disordered people.
8.3.1
Opposition to the Bill
New Zealand’s
national assembly for people with disabilities was one of the groups who
successfully lobbied the select committee to remove non-offenders from the
Bill. Their view is that “people with intellectual disabilities should not be
subjected to discriminatory treatment out of ignorance and fear at behaviour
perceived to be different”. [133]
Also opposing the
Bill is the Human Rights Committee. Human Rights Commissioner Ross Brereton
claims that the Bill breaches both the New Zealand Bill of Rights Act 1990 and
international law through its focus on mandatory institutional care: [134]
Placing those who
have not done any wrong, but are considered to be a potential danger to
themselves or others, into compulsory care amounts to systemic discrimination
against people with disabilities … This could turn the clock back to a time
when large numbers of people with disabilities were permanently housed in
asylums.
8.3.2
Conclusion
At this stage the
future of the Bill is uncertain. It faces definite opposition from the medical
profession, and the likelihood is that the New Zealand Government will continue
to watch the unfolding of parallel legislation in the United Kingdom before
acting locally. However, it does represent the most recent of several attempts
to pass coercive and restrictive measures against perceived ‘threat’ groups.
Consequently, it
seems all too possible that preventive legislation will be passed in the mental
health field, eventually. This can only be made easier by any similar
preventive developments motivated by New Zealand’s recent involvement in the
Western world’s “war against terrorism”.
COMMUNITY AND LAW
9
The Public and the Individual
It is no easy task
to find a satisfactory balance between the rights of the individual and the
rights of the community, or between civil liberties and state powers. Yet this
balance is exactly what all mental health law is required to strike. Thus the
restrictive legislation contemplated in the UK and here in New Zealand is
arguably ethically minded – it seeks to protect the public, and simply places
that goal higher than the treatment of the individual.
There is of course
a legitimate fear that the motivations behind new legislation (public opinion)
means the proposals are pushing too hard, but one cannot blame legislators for
their desire to protect the community – even if their approach is misguided.
But this is an old conflict. Afterall, it is the community itself that must
“determine the conditions under which exposing the mentally ill person to
involuntary procedures violates rights and humanitarian principles. It must
define when a person is to be regarded as mentally incompetent or when a person
accused of a crime should be excused from responsibility because of mental
illness”. [135]
However, there are
obvious difficulties in establishing coherent policies since issues of
identification and aetiology are “cloudy”, and “[a]lthough one may for legal
purposes arbitrarily attempt to define mental illness, mental competence,
dangerous behaviour, and fitness to stand trial, if the behavioural knowledge
underlying such concepts is deficient, the application of these labels
inevitably tends to be ambiguous and inconsistent”. [136]
In the fight to
influence legislators and judges, we find civil libertarians and parens patriae
advocates pushing opposing views. It is not always clear how best to resolve
this tension: [137]
At one extreme …
[are] civil liberties advocates who believe that our rights are so precious and
mental health criteria so uncertain that there is never any justification for
depriving persons of their rights, even when they are believed to be dangerous
to themselves or others … [and at] the other extreme are many psychiatrists who
believe that the greatest value is the treatment of mentally ill patients,
whether they recognise the nee for such treatment or not, and that the law
should provide the professional with appropriate latitude.
The majority
opinion of the modern public seems to be that civil rights ought to give way to
group rights. This is perhaps an inevitable result of blossoming population
rates in which the individual becomes absorbed into a group structure. But
weakened civil rights can lead to a weakening of group rights – especially if
some of the arguments presented by mental health advocates are to be believed:
namely, that treatment and therapeutic alternatives are more likely to reduce
offending by mentally disordered individuals than aggravating forms of
anticipatory incarceration.
OBJECTIONS TO ANTICIPATORY CONTAINMENT
Having already
encountered objections to anticipatory containment schemes from commentators
like the British Medical Community and assorted psychiatric groups, it is important
to further understand why the legal community and general public should object
to a preventive system. While no one can disapprove of attempts to remove the
threat of dangerous disordered people from our communities, we must make sure
that this does not take place at the expense of important civil liberties, nor
at the expense of preferable alternatives.
10 Policy and Ethics
Government
proposals to introduce anticipatory containment legislation in Scotland,
England and New Zealand share a common approach in stressing the practical
aspects of management (i.e. to whom does it apply, what facilities will be
provided etc), while neglecting to discuss the ethical aspects of such
procedures.
Brookbanks notes
that “[i]ssues of ethical and wider philosophical concern are not the concern
of policy-makers”, and warns against complacency in the face of government
action: [138]
The view, no doubt,
is that Parliament is sovereign and has both the responsibility and authority
to decide where and how the boundaries of criminal regulation should be drawn.
While the later proposition is a truism, it also disguises the fact that
legislation to regulate criminal activity is notoriously fickle, precisely
because it is often enacted without due reflection and under the pressure of
political agendas … For this reason it should be subject to greater rather than
less scrutiny and not be permitted to proceed unless there exists a clear and
sufficient mandate.
Such scrutiny ought
to reveal the sacrifice of individual autonomy in favour of collective or
community safety. But it is an extreme form of consequentialist ethics that can
justify the elimination of persons solely on their supposed capacity, or
potential to offend. Even on a basic level one can ask: to what extent should
such a system define potentiality? Every one of us has the capacity, and thus
the potential to offend. So everyone can be considered a subject of containment
proposals.
But even when we
draw up a standard as to exactly who is covered (e.g. ‘high risk’ persons as
singled out by risk assessments) it still leaves us to deal with the philosophy
behind that standard. Essentially, it is a utilitarian way of looking at
morality when: [139]
[M]oral demands are
made by society on individuals, and their basic purpose is not directly the
good of those on whom they are made, but some other good, such as the
well-being of people other than the obligated agent, or some larger good, such
as the greatest happiness of all, in which I as an obligated agent participate
not so much from fulfilling my obligations but from others fulfilling like
obligations toward me.
In other words, we
are all subject to the greatest good of the greatest number. But while
utilitarianism has its popular uses, it does not form the basis of our legal
model that has traditionally preferred the autonomy of the individual and the
Kantian dessert-based (reciprocity) concept of justice.
In Western society,
autonomy [140]
is something we’re taught to value, [141] and such devaluation in
human dignity as is presented by preventive detention is something that offends
our constitutional models. The reason why this is not more offensive to the
public is because they perceive any action being taken as against the ‘other’ –
i.e. the disturbed, the psychologically damaged.
Personality
disordered individuals are given lesser value; hence their further devaluation
is considered insignificant and inoffensive. However, we must remember that not
all illness sufferers are offenders – a fact noted in New Zealand by the furore
with which the initial Intellectual Disability (Compulsory Care) Bill was
received. [142]
In conclusion, when
“the utilitarian and teleological character of [anticipatory legislation] is
insufficiently addressed in public debate” and the legislation itself is
“barely justified by an appeal to broader public concerns … which bear only on
public interests, and never the interests of those directly affected by it”, [143] we should proceed
cautiously. At the very least we should consider the alternatives – a general
level of prudence that has been markedly absent from international preventive
systems.
11 Media incitement
With all the
negative attention personality disorders are receiving at the moment, it begs
one to ask: why? Studies by Peter Bartlett into the perceived failures of
community care reveals that homicide rates related to mental health problems
are actually falling in the United Kingdom, and are anyway relatively
insignificant. Homicides involving mentally ill offenders have dropped from 536
between 1976 and 1980 (an average of 107 per year) to 377 between 1991 and 1995
(an average of 75 per year). [144]
Bartlett suggests
that editorial opportunism is to blame for the accelerated fear of homicides by
mentally ill offenders – newspapers (and other media) exploit these occurrences
to sensationalise their news, and increase their profit margins as a result.
All of the Scottish law changes were prompted by the actions of only one
individual, and further studies show that stories about mentally ill offenders
double all other stories about mental illness in total. [145]
New legislation
should be considered in response to actual social needs, not in response to
perceived needs that exist only through the hyperbole of media rhetoric: [146]
If it is necessary
to craft coercive legislation to preventively detain persons who present a
substantial risk to public health or safety, then this should be done on the
basis of sound legal principles, clear empirical evidence and only after a
process of widespread professional and public consultation. Even then such
legislation should only be considered as a last resort after all other options
have proven to be impracticable or unattainable. Without such a clear mandate
there is always the risk that the net result of the law reform process will be
a further marginalisation of the mentally ill without good cause, the
perpetuation of discrimination and erosion of the rule of law.
12 Issues of Legality
The principle of
legality implies that State powers to penalize are “dependent upon the
expression of a previously declared law”, [147] thus defining punishment
in terms of a breach of the law. The corollary, therefore, is that no person
can be punished for a crime that has not yet been expressed (i.e. to safeguard
against retrospective offending) – that is, “nullum crimen sine lege”.
However,
anticipatory containment legislation is proactive in that it targets
‘potential’ offenders – an action justified by the police powers of the state,
but which certainly does not satisfy the rule of law. Indeed, such a system is
“corrosive of established legal principles”. [148]
12.1
Proportionality
One of the
implications of anticipatory containment is that custodial sentences will
become disproportionate to the offence with which a person is being charged [149] – an issue that is
exacerbated exponentially in the case of non-offenders. This particular issue
has been raised by the judiciary in New Zealand, and should be considered both
as a matter of policy, and of legality.
In 1985, Ellis J of
the High Court made the following statement about the relationship between
sentencing for an offence, and sentencing for public safety: [150]
I am of the view
that detention over a period of eight years is quite disproportionate to the
criminality involved in what Mr M did, and while it could be said that his
detention was in the public interest in that it would effectively prevent
further offending against young women … I am to countenance his continued
detention.
Similarly, the
comments of Thorp J in In Re AT: [151]
I myself should
have no reservation about accepting first the detention ordered in the public
interest must be reasonably proportionate to the totality of proven criminal
conduct and the degree of risk to the public involved in a discharge and,
secondly, that it would be contrary to reason and justice to treat a risk of
re-offending as the equivalent of the actual commission of an offence … It
would be an absurdity if the risk of future offending, a matter seldom, if ever
capable of accurate assessment, could result in a greater limitation of liberty
than the commission of an offence.
When considering
how to respond to “horrific” tragedies enacted by personality disordered
individuals, Mason asks whether steps to reasonably avoid such occurrences
should be made “at all costs”. Afterall, “[o]ne has to ask how often do they
occur and whether the quantum leap in restriction of liberties inherent in
[such preventive Acts are] … justified on the grounds of proportionality”. [152]
Brookbanks notes
that there is some resistance amongst medical professionals to consider
proportionality as part of psychiatric ethics, but that few professionals would
really support the State’s powers of detention where “undertaken without any
regard to the relationship between the gravity of the alleged conduct and the
loss of liberty”. [153]
12.2
Equality
Another cornerstone
of our legal system is the principle of equality, which is guaranteed in
article 14(1) of the International Covenant on Civil and Political Rights [154] and has an independent
life in case law. The rule of law “means … equality before the law or the equal
subjection of all classes to the ordinary law of the land administered by the
ordinary courts”, [155] and can only be
curtailed by the legislature where rational and proportionate.
However, to single
people out for detention on the basis of their mental state (especially when
applied to non-offenders) is disproportionate to the problem to be addressed:
namely, how to prevent offending by mentally disordered individuals. At best it
can be argued that application to an offender populace is rational and
proportionate, but any such legislation must be narrowly drafted to avoid
over-inclusion or it fails the test of constitutionality. It is unlikely that
proposed legislation will meet this criterion, built as it often is, on
uncertain risk assessment procedures.
12.3
Medical opinion as subverting law
Another issue of
constitutional relevance is the fear that medical opinions will be allowed to
subvert the process of law. If questions of psychiatry become too complex for
the judiciary (e.g. whether or not personality disorder is a mental illness) it
is possible that judges will ‘give way’ to experts and allow a medical ruling,
as opposed to a legal one.
While consultation
with experts is itself to be encouraged, it must be remembered that judges are
dealing with legal, not medical, definitions, and that the “court has a duty to
see that trial by judge and jury according to law is not subordinated to
medical theories”. [156]
Note also that
“giving someone an initial sentence and then extending it on the basis of
medical opinion is contrary to due process of law and approximates double
jeopardy”. [157]
12.4
Uncertainty of legal standards
Another aspect of
the rule of law is that the law be accessible to the public, and that a degree
of prediction should be possible. In other words, the public ought to be able
to determine what is legal and what is not, in order that it remains law
abiding.
While this is not
always the case, and while we accept a necessary degree of uncertainty,
systemic definitional weakness is unacceptable. At present one can already
question what defines a “mental illness”, and whether personality disorders are
included – but anticipatory containment legislation will ask the question: what
is dangerousness?
The UK Home
Secretary admits that determining such new questions is not a “counsel of
perfection”, [158]
and risk assessments (evaluated in Section 12) only aid us in degrees. But the
ultimate problem is that anticipatory containment law cannot “provide a clear
and certain definition of the ‘magic ingredient’ which transforms the ordinary
wicked offender into a prisoner against whom the public must be given special
protection”. [159]
13 Risk Assessment
In one empirical
study on the UK judiciary’s use of s80(2)(b) Powers of Criminal Courts
(Sentencing) Act 2000 (which allows for the extension of a “normal sentence” in
order to protect the public from “serious harm” by the offender), it was found
that there was a “paucity” in application of the section. [160] It was also suggested
that “its judicial neglect is due in no uncertain measure to judicial unease
with the considerable burden of having to decide essentially non-legal issues
relating to predicted risk and harm with such profound consequences for the
deprivation of individual liberty”. [161]
The trepidation
which a British judge will bring to such an assessment indicates the real
difficulty in making any such assessment, and highlights the inherent problems
in ‘risk assessment’ per se.
13.1
Defining ‘dangerousness’
Firstly, “[t]he
concept of dangerousness is inherent in many judgments concerning civil and
criminal commitments, but the concept itself, despite continuing efforts to
provide clarification, is extraordinarily fuzzy.” [162]
While the judiciary
may often have to consider the question of dangerousness, it usually alongside
other matters, and is rarely the sole focus of investigation. Anticipatory
containment on the other hand, makes risk assessments of primary importance.
Thus, because of their important role, we must take them more seriously than
perhaps otherwise, and judicial discretion or ‘gut instinct’ should give way to
expert testimony.
But whose testimony
should be considered ‘expert’? Afterall, even the psychiatrist is unable to
solve this problem since “[v]ery little systematic knowledge allows
psychiatrists to predict realistically when a patient is dangerous. They must
depend on their clinical judgment and a variety of clinical impressions.” [163]
Secondly: [164]
Contrary to public
conceptions, studies suggest that in the aggregate mental patients are no more
dangerous than others [165] or if they are, the
differences are very small allowing little success in prediction … It seems
reasonably clear why the general public views the mentally ill as more
dangerous that objective studies indicate. The bizarre behaviour of many
mentally ill is difficult to understand and appears unpredictable and
uncontrollable. Moreover, the news media give prominence to the
former-mental-patient statues of those who commit serious crimes.”
Jeremy Coid, a
senior psychiatrist at St Bartholomew’s and the Royal London School of Medicine
and a director of forensic psychiatry research, emphasises the imprecision of
risk assessment systems. His claim that “no system could guarantee” freedom
from wrongful detention or release, provides a clearly negative view, as do his
suggested estimates – that even the best system would yield 3 out of 10
wrongful incarcerations, where 4 out of 10 being released may still be dangerous:
“I do feel it’s important that people’s expectations are realistic. The public
and the media must accept that risk assessment is not an exact science”. [166]
Likewise the Royal
College of Psychiatrists was clearly in opposition to the proposed English
system: [167]
“Dangerousness is very difficult to predict. The College is strongly opposed to
changing the present Mental Health Act to make it legal to detain people with
‘psychopathic disorder’ in hospital against their wishes if they are deemed to
be untreatable”.
13.2
Comparing systems
Despite these
indicators, there are various systems that are designed to make risk
assessments, and these should be evaluated on their relative merits. In
relation to future violent behaviour, the three approaches are: clinical,
actuarial and structured clinical judgment. [168]
13.2.1
Clinical Systems
This is widespread
in clinical settings (hospitals etc) as well as non-clinical (e.g. probation
and parole). It is an “informal, ‘in the head’ impressionistic, subjective conclusion,
reached (somehow) by a human clinical judge” [169] Thus it appears to be
the least reliable, even in the hands of the most practiced assessors. While an
experienced assessor may be able to make a valuable contribution to a risk
assessment, the uncertainties associated with this system means it is
completely unfit for a legal system of assessment. Afterall, the “unstructured
clinical approach can amount to little more than an assertion by a clinician as
to the level of risk, often set against a competing assertion by another
clinician, with little basis for [a] court to decide between them”. [170]
13.2.2
Actuarial Systems
These are formal,
and supposedly objective algorithmic procedures for determining risk, and are
the preferred assessment in the United States. The most widespread actuarial
scale for the prediction of violence is the “Violence Risk Assessment Guide”
(VRAG) developed in Canada using data from secure hospital patients between
1965 and 1980. Previous hospital records were researched, and subsequent
violent behaviour was monitored through the Canadian Mounted Police.
The outcome of this
research was a table of 12 variables which all had a statistical basis as
indicators of future violence: see Appendix 1. [171]
Additional
variables can be added to the VRAG to give predictive rates for recidivism in
sexual offenders (the Sex Offender Risk Appraisal) - these are the number of
previous convictions for sex offences, history of sexual offences against male
victims, and a phallometrically determined sexual deviance score.
The system is
algorithmic because certain variables are weighted differently with regard to
the overall score. This is then used to assign individuals to one of nine risk
categories, each with a different likelihood of re-offending within seven years
(e.g. category 1 is zero percent, category 5 is 33 percent up to category 9
with 100 percent recidivism).
Other systems
include the Rapid Risk Assessment for Sex Offence Recidivism, and the
Static-99, each with similar variables: see Appendix 2. [172]
While useful
indicator, the limitations of the VRAG (et al) are clear enough. They do
nothing to describe the nature or severity of predicted future violence, and a
percentage probability, given over a period of years, is not helpful for making
a determination about how to manage a patient.
13.2.3
The Structured Clinical Judgment
This system
attempts to combine the positive aspects of the previous systems – in other
words using the empirical origin of actuarial systems while allowing for theoretically
meaningful data to be included. It is a multi-disciplinary approach and was
developed to meet the requirements of practical application. [173]
The best-known tool
for this approach is the HCR-20, which “shows considerable promise for the
prediction of future violence and the management of those who pose a risk of
violence”. [174]
(The features of HCR-20 are outlined in Appendix 3. [175])
Of course, it is
easy for the MacLean Committee to be enthusiastic about this novel approach to
risk assessment, as they have adopted it into their proposed regime. However,
it still bears the stigma of uncertainty common to all assessment procedures
(such as are revealed below).
13.3
American studies on predicting dangerousness
American
investigations into the validity of clinical assessments of dangerousness have
revealed the weakness of current evaluation systems. The following cases
provide evidence that those evaluated as dangerous are not more so than those
deemed safe, and that there is no significant difference between the two groups
in terms of violent behaviour or re-offending. [176]
Baxtrom
v Herald [177] highlighted a study of
246 insane criminals over a four-year period after their discharge from
custody, of which only 26 re-offended or were returned to secure hospitals
because of violent behaviour. Only two of the 98 released into the community
re-offended. Similarly, in Dixon [178] only 14 percent of
former patients “engaged in behaviour injurious to another person” within four
years of their release. [179]
In other studies of
protective sentencing, “[b]etween half and two-thirds of the judgments of
dangerousness that were put to the test were not borne out by subsequent
harmful behaviour within the period of the investigations”. [180]
Finally, a 1998
comparative study of the United States, New Zealand and the United Kingdom held
that pre-emptive incapacitation “draws in vastly more offenders than ever go on
to commit serious offences and yet paradoxically fails to identify correctly
the small number of offenders who pose a genuine threat to the community”. [181]
14 Conclusions
Any system of
anticipatory containment will suffer from difficult accusations of
unconstitutionality, and unreliability (in terms of risk assessment). It will
most likely lack conformity with established international standards of rights
(such as the European Convention on Human Rights) and with local mechanisms
(such as the New Zealand Bill of Rights).
Such systems look
to “substantially [breach] normal due process requirements” [182] and should be perceived as
threatening by anyone who values their civil liberties.
While laudable in
their aims (to protect the community) they are often misguided in their
approach. Incapacitative sentences will create practical difficulties – they
will “increase an already strained prison population and require the allotment
of expensive prison space to offenders who are well past their peak ages of
criminality”. [183]
Forced detention
will also do further psychological damage to those already impaired, while
individuals who are sentenced without crime, or who face no release, will have
no incentive to conform to the regime.
Ultimately,
anticipatory containment seems to a brute strength way of dealing with a
misunderstood and unpredictable group of citizens. It is difficult to suggest
viable alternatives when even psychiatrists are divided as to the efficacies of
treatment – but my suggestion is that any alternatives to exercising police
powers are likely to be preferable.
SUGGESTED ALTERNATIVES
15 Civil procedures
If we approve of
the social theory underlying the protectionist response to the problem of
dangerous disordered people, it may be that we should simply contemplate
raising the standards for preventive sentencing or else adapt our legal system
to meet the new legalism: [184]
Legal theory needs
to be sufficiently flexible to accommodate solutions to pressing problems. If
it is accepted that detention beyond the [sentenced period for] … an individual
posing a sufficiently grave threat to the community is necessary, then theories
of punishment and sentencing need to be adapted to accommodate this
requirement.
Further, it has
been suggested that: [185]
[I]n recognition of
the seriousness of the proceedings and the fact that the individual stands to
be deprived of his liberty for a substantial period of time, the better
approach would be to deal with the matter under the aegis of the civil courts
applying a higher standard of proof commensurate with the seriousness of the
proceedings.
Afterall, in civil
cases “the degree of cogency required of evidence can vary from case to case
according to the seriousness of the allegations made and the potential
consequences of the decision for the parties to the proceedings in question”. [186]
If anticipatory
containment legislation is to be pursued at all, it should be to these higher
standards, and should always emphasise treatment options and the eventual
rehabilitation of the patient/prisoner back into the community. Promises of
assimilation must be more than mere lip service to civil rights idealists.
16
Therapeutic jurisprudence
Therapeutic
jurisprudence looks for ways in which mental health information can be used by
the law to “improve therapeutic functioning without impinging on justice
concerns”. [187]
Such as by obtaining informed consent to improve clinical gains in the
treatment of a patient via their active participation in treatment decisions. [188]
One “possible
avenue for development” is to establish a novel therapeutic environment” in
which any “power to detain should be balanced by action to ensure that, once in
detention, those concerned are given the best possible chance of a safe return
to the community through appropriate care and treatment”. For example, special
hybrid facilities that are neither prisons nor hospitals. [189]
Such a new
environment should provide “a positive regime based on education, psychological
input and rehabilitation. This would be the best way to protect the public
while ensuring that those who are mentally disturbed are not written off or
dumped in institutions without hope”. [190]
McAlinden writes
that research supports specialist therapeutic community treatment for severely
personality disordered people, and has proven to produce positive results. [191] If this is truly the
case, specialist therapeutic communities must be infinitely preferred to the
“incomparably more severe and cruel” penal system envisaged by anticipatory
containment. [192]
In any case, when
we choose between the alternatives, we should be mindful of Dostoevsky’s
warning that “[a] society can be judged by how it treats its prisoners”.
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[1] Brookbanks W, “Public
Policy, Moral Panics and the Lure of Anticipatory Containment” (A paper
presented to the 21st Annual Congress of the Australia and New
Zealand Association of Psychiatry, Psychology and Law 2001) 1.
[2] White R, The Abnormal
Personality (2nd ed, 1956) 1.
[3] Mechanic D, Mental
Health and Social Policy (3rd ed, 1989) 2.
[4] “Mental Health clearly
means that an individual has found a reasonable measure of peace within himself
and with his environment – it means that an individual is able to pursue
reasonable purposeful goals; may use his capacities and talents fruitfully;
experiences a sense of security, of belonging, of being respected … liked or
loved and wanted; has self-respect and self-reliance; has a sense of achievement”
etc. The National Health Assembly, America’s Health (1949) 302.
[5] Supra 3.
[6] Supra 2, at 5.
[7] Supra 3, at 2.
[8] Ibid 4.
[9] Ibid 25.
[10] Ibid.
[11] Ibid.
[12] Ibid 26.
[13] Ibid.
[14] Ibid 31.
[15] Ibid 4.
[16] Ibid 5.
[17] Kolb L, Modern
Clinical Psychiatry (9th ed, 1977) 197.
[18] Supra 3, at 5.
[19] Long P, “Antisocial
Personality Disorder: European Description” [2001] Internet Mental Health
(www.mentalhealth.com).
[20] Trethowan & Sim, Psychiatry
(5th ed, 1983) 225.
[21] American Psychiatric
Association, Diagnostic and Statistical Manual of Mental Disorders (4th
ed, Text Revision, 2000). From BehaveNet Clinical Capsules (www.behavenet.com).
[22] Ibid.
[23] Shepard & Sartorius,
“Personality Disorder and the International Classification of Diseases” [1974]
4 Psychological Medicine 142.
[24] Supra 21, classification
301.0.
[25] Ibid, classification
301.2.
[26] Ibid, classification
301.22.
[27] Ibid, classification
301.7.
[28] Ibid, classification
301.83.
[29] Ibid, classification
301.50.
[30] Ibid, classification
301.81.
[31] Ibid, classification
301.82.
[32] Ibid, classification
301.6.
[33] Dietz P, “Mentally
Disordered Offenders: Patterns in the Relationship Between Mental Disorder and
Crime” [1992] 15 Clinical Forensic Psychiatry 539.
[34] World Health
Organisation, International Statistical Classification of Diseases and Related
Health Problems (10th ed, 1992).
[35] Supra 19.
[36] Ibid.
[37] Supra 2, at 395.
[38] Weinberg S, Society
and Personality Disorders (1952) 295.
[39] Supra 2, at 395.
[40] One need only think of
the movie “Psycho”, whose protagonist probably suffers from hallucinatory schizophrenia
rather than true dyssocial personality disorder. .
[41] Reid W, “The Antisocial
Personality: A Review” [1985] 36 Hosp and Community Psychiatry 834.
[42] Weinstock & Nair,
“Antisocial Personality – Diagnosis or Moral Judgment?” [1984] Journal of Forensic
Sciences 558.
[43] The Act was an interim
measure pending consideration of the MacLean and Millan Reports.
[44] Scottish Executive,
“Report on the Review of the Mental Health (Scotland) Act 1984” [1999] 33.
[45] Ibid.
[46] Scottish Executive,
“Report of the Committee on Serious Violent and Sexual Offenders” [June 2000]
SE/2000/68 1. (“The MacLean Report”)
[47] Ibid 3.
[48] Ibid 2.
[49] Hart S, “The Role of
psychopathy in assessing risk for violence” [1998] 3 Legal and Criminological
Psychology 137.
[50] Supra 46, at 7.
[51] Ibid 8.
[52] Ibid.
[53] Ibid 27.
[54] Ibid 28.
[55] Ibid 34.
[56] Ibid.
[57] Ibid 36.
[58] Ibid 41.
[59] Ibid 38.
[60] Ibid 39.
[61] Ibid.
[62] Ibid 46.
[63] Ibid 47.
[64] Ibid 46.
[65] Ibid 49.
[66] Ibid.
[67] Ibid.
[68] Ibid.
[69] Ibid 63.
[70] Ibid.
[71] Ibid 66.
[72] Ibid 78.
[73] Ibid 77.
[74] Ibid 81.
[75] Ibid 58.
[76] Scottish Executive, “New
Directions: Report on the Review of the Mental Health (Scotland) Act 1984”
[January 2001] SE/2001/56, at Section 2 Chapter 5.
[77] Ibid, Section 6 Chapter
27 at 14.
[78] Ibid, Section 6 Chapter
7 Recommendation 27.3
[79] Anderson v The Scottish
Ministers [2001] UKPC, from the Privy Council (www.privy-council.org.uk).
[80] McAlinden A,
“Indeterminate Sentences for the Severely Personality Disordered” [2001]
Criminal Law Review.
[81] Walker N, “Legislating
for DSPD” [1999] New Law Journal 1247.
[82] Floud & Young, Dangerousness
and Criminal Justice (1981).
[83] Supra 81.
[84] Fallon P (QC), “Report
of the Committee of Inquiry into the Personality Disorder Unit, Ashworth
Special Hospital” [1999] Cm 1492-II.
[85] UK Home Office,
“Managing Dangerous People with Severe Personality Disorder” [July 1999].
[86] This contrasts with the
Fallon report’s proposal to build specialised personality disorder units in
prisons and hospitals.
[87] Supra 81, at 1248.
[88] Ibid.
[89] Dean M, “Preventive
detention for people with personality disorders” [1999] Vol 354 Issue 9176 The
Lancet 403.
[90] Mullen P, “Dangerous
people with severe personality disorder” [1999] Vol 319 Issue 7218 British
Medical Journal 1146.
[91] Eastman N, “Public
health psychiatry or crime prevention?” [1999] Vol 318 Issue 7183 British
Medical Journal 550.
[92] Winterwerp v
Netherlands (1979 – 1980) 2 E.H.R.R. 387.
[93] Hutchinson Reid v
Secretary of State for Scotland and Another (1990) 1 All ER 481, HL.
[94] Supra 90, at 1147.
[95] Anderson v The
Scottish Ministers (October 15, 2001).
[96] “Public safety has
priority over liberty of dangerous patients” The Times United Kingdom,
29 October 2001.
[97] Supra 90, at 1147.
[98] Mason J, “Implications
of Risk Assessment” [2000] 8 Medical Law Review 84.
[99] Mason is referring to
the decision of the Scottish House of Lords in Reid v Secretary of State for
Scotland (1999) S.C.L.R. 74 – in which discharge criteria were interpreted
by reference to detention criteria. In other words, where a response to medical
treatment is unlikely then discharge is inevitable.
[100] [1992] 1 NZLR 29.
[101] [1992] 1 NZLR 33.
[102] McDowell M, Personality
Disorder and Community Safety: A Legal Perspective (1997) (unpublished
Master of Laws thesis, University of Auckland) 93.
[103] Re M (unreported)
HC Wellington, 21 April 1986, M 716/85, Grieg J.
[104] Re M (unreported)
DC Auckland, 5 August 1992, MA 326/92, Judge McElrea.
[105] Supra 102, at 95.
[106] “Report of the Committee
of Inquiry into Procedures used in Certain Psychiatric Hospitals in Relation to
Admission, Discharge or Release on Leave of Certain Classes of Patients”
[1988]. (“The Mason Report”)
[107] Department of Justice,
“Submission to the Committee of Inquiry into Procedures used in Certain
Psychiatric Hospitals in Relation to Admission, Discharge or Release on Leave
of Certain Classes of Patients” [1987] 11 – 12.
[108] Supra 106, at 109.
[109] Mental Health
(Compulsory Assessment and Treatment) Act 1992, Long Title.
[110] Brookbanks, The
Mental Health Act [1993] Vol 3 Trapski’s Family Law MHIntro.03 (2).
[111] Mental Health
(Compulsory Assessment and Treatment) Act 1992, s2.
[112] Bell S, “Defining Mental
Disorder” [1996] Psychiatry and the Law: Clinical and Legal Issues 79.
[113] In the matter of MJB
(1993) SRT 69/93.
[114] Supra 11, MHIntro.03
(3).
[115] Review Tribunal - SRT
28/93.
[116] Supra 115, at 8.
[117] Ibid 15.
[118] Ibid 30.
[119] Supra 102, at 111.
[120] NRT 334/95.
[121] Supra 102, at 116.
[122] NRT 425/96.
[123] Ibid 2.
[124] Unreported, Family
Court, Palmerston North, 24 July 1996, CAT 054 030 95, Judge Inglis QC.
[125] Ibid 4.
[126] Supra 102, at 121.
[127] Dawson J, “The New
Psychiatric Preventive Detention: Mental Health (CA&T) Bill” [1994]
Submissions to the Social Services Select Committee 1.
[128] Mental Health
(Compulsory Assessment and Treatment) Amendment Bill (1994).
[129] Supra 127, at 2.
[130] “The man is mentally
disordered because he offends. He offends because he is mentally disordered. He
should be detained indefinitely.” Ibid 6.
[131] Ibid 8.
[132] Ministry of Health,
“Intellectual Disability Compulsory Care Bill information sheet” [2001]
(www.moh.govt.nz).
[133] As at 29 January 2002,
(www.dpa.org.nz).
[134] June 2000, (www.hrc.co.nz).
[135] Supra 3, at 213.
[136] Ibid 214.
[137] Ibid 217 – 218.
[138] Supra 1, at 4.
[139] Wood W, O’Neil
Memorial Lectures: The Idea of Autonomy in Kant (1999) Yale University (presented in March 1999 at the University of
New Mexico) 6.
[140] As “the
duty to maximize the individual's right to make his or her own decisions”, St
Edwards University (www.stedwards.edu).
[141] Thus Henry Patrick’s
famous cry of “give me liberty or give me death”.
[142] That it applied to
non-offenders as well as offenders.
[143] Supra 1, at 7.
[144] Bartlett P, “The Mental
Health Act” from Law and Medicine – Current Legal Issues Vol 3 (2000)
547.
[145] Philo G, “Media Content”
from Media and Mental Distress (1996) 48.
[146] Supra 1, at 4.
[147] Ibid 10.
[148] Ibid.
[149] As Thomas puts it, “a
crushingly long period of custody which is totally out of proportion to the
gravity of the offence and the risk presented by the offender”. From “Dangerous
Offenders” [1999] 3 Sentencing News 10.
[150] In Re PM (HC,
Auckland, M 1419/85, 1985, Ellis J).
[151] In Re AT (HC,
Auckland, M 2/87, April 1987, Thorp J).
[152] Mason J, Implications
of Risk Assessment [2000] 8 Medical Law Review 83.
[153] Supra 1, at 8.
[154] Ratified by New Zealand
in 1978.
[155] Dicey A, Introduction
to the Study of the Law of the Constitution (10th ed 1959(.
[156] Carraher v H.M.Adv.
(1946) S.C. 108, Lord Norman L.J.-G. at 117.
[157] Supra 80, at 116.
[158] Jack Straw, Hansard
(Commons), February 15, 1999 at 611.
[159] Baker E, ”Taking
European Criminal Law Seriously” [1998] Criminal Law Reports 540.
[160] Henham R, “Sentencing
Dangerous Offenders: Policy and Practice in the Crown Court” [2001] Criminal
Law Review 707.
[161] Ibid.
[162] Supra 3, at 228.
[163] Ibid.
[164] Ibid 229.
[165] Such as Rappeport
1967.
[166] Supra 89.
[167] Ibid.
[168] Supra 46, at 9.
[169] Grove & Meehl,
“Comparative efficiencies of informal (subjective, impressionistic) and formal
(mechanical, algorithmic) prediction procedures: the clinical-statistical
controversy” [2000] 2 Psychology, Public Policy and the Law 293 – 323.
[170] Supra 46, at 10.
[171] Ibid, at 151 (Annex 6).
[172] Ibid, at 153 (Annex 6).
[173] This is the system of
risk assessment that was preferred by the MacLean Committee in Scotland,
[174] Supra 46, at 11.
[175] Ibid, at 155 (Annex 6).
[176] The conclusion of
Cocozza & Steadman, “The failure of psychiatric predictions of
dangerousness: clear and convincing evidence” [1976] 19/5 Rutgers Law Review
1081.
[177] (1966) 388 U.S. 107.
[178] Dixon v Attorney
General of Commonwealth of Pennsylvania (1971) 225 F. Supp. 966.
[179] Cited by McAlinden.
Supra 80, at 119.
[180] Ibid, citing Kozol &
others, “The diagnosis and treatment of dangerousness” [1972] 18/4 Crime and
Delinquency 371.
[181] Ibid, citing Brown M,
“Serious Violence and Dilemmas of Sentencing: A Comparison of Three
Incapacitation Policies” [1998] Criminal Law Reports 710.
[182] Supra 1, at 12.
[183] Supra 80. at 120.
[184] Williams C,
“Psychopathy, Mental Illness and Preventive Detention” [1990] Monash ULR 183.
[185] Supra 80, at 116 - 117.
[186] Ibid A 117.
[187] Wexler D, “Therapeutic
Jurisprudence and the Culture of Critique” in Wexler & Winick (eds) Law
in a Therapeutic Way: Developments in Therapeutic Jurisprudence (1996) 454.
[188] Behnke & Saks,
“Therapeutic Jurisprudence: Informed Consent as a Clinical Indication for the
Chronically Suicidal Patient with Borderline Personality Disorder” [1998] 31
Loy.L.A. Law Review 946.
[189] This is the “third way”
contemplated in the United Kingdom.
[190] Supra 80, at 122.
[191] Ibid 122.
[192] Sorokin P, Social and
Cultural Dynamics (1957) 434.
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Saturday 16 February 2002
Anticipatory Containment Legislation: Targeting Personality Disorders
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