THE SYSTEM IN THE NETHERLANDS
26. Other countries have arrangements for continued
detention of those perceived to be dangerous on completion of
their sentence. "This is an international problem. Different
countries deal with it in different ways in public policy terms
but, in scientific terms, it is an international problem ...".[29]
We are not aware of any country which detains people who have
not committed an offence but are regarded as dangerous and are
untreatable. We have looked at how these issues are dealt with
in the Netherlands. There a procedure has been in place since
the 1920s for handling people with personality disorders who commit
crimes. The legal system is different from that in the United
Kingdom—the procedure dates back to the provisions of the
Napoleonic Code. Nonetheless the principal elements of the TBS[30]
can be compared with the various provisions in the UK:
- medical
assessment process
- court order
- detention in hospital for treatment
- release into community at discretion.
27. The TBS order can be made by a court as an alternative
to either long-term imprisonment or confinement in a psychiatric
hospital. The aim is to strike a balance between security, treatment
and protection. When someone is charged with a serious criminal
offence and there are grounds for believing there is a connection
between the offence and mental disorder, the court can order them
to be detained for assessment. The results of that assessment
are made available to the court at the trial. If the person is
convicted of the offence, the court can make a TBS order. After
serving a period in prison, the individual then goes to a special
hospital where he or she receives treatment. This treatment includes
opportunities for education, workplace training, financial management
and social skills—all of which are designed to help the
patient live successfully on release. If progress is made in reducing
the risk of the patient to others, the court may permit release.
ASSESSMENT
28. The medical assessment process is applied
to those charged with serious criminal offences in the period
before trial. It involves a seven week programme in a secure clinic.
The assessment is carried out by a team including a psychiatrist,
a psychologist, a social worker and a lawyer. The ratio of staff
to patients is high, with each expert having a maximum caseload
of four patients at any one time. The focus is on the connection
between the offence and the state of mind of the individual. This
leads to advice to the court on the degree of accountability.
The process is not concerned with establishing guilt—though
in most cases it appears that the defence case is not that someone
else committed the offence. In about 50% of cases, the assessment
concludes that there was some degree of diminished responsibility
and there is a high risk of future dangerousness. If the
person is then convicted, the court can order detention under
the TBS special hospital order. There are a small number of cases
when the person is nonetheless acquitted. They then walk free,
irrespective of the outcome of the assessment.
COURT ORDERS
29. The court can order a period of imprisonment
plus the TBS special hospital order. A normal prison sentence
or committal to a mental hospital are alternatives. For TBS to
be available, there must have been a conviction for a serious
offence carrying a minimum penalty of at least four years' imprisonment
and a recommendation from the assessment clinic for TBS. Although
the period of TBS is now up to four years, it can be extended
in cases of violent crime involving other people and if an extension
is necessary for reasons of public safety. Extension of the TBS
is decided by the court and is subject to appeal. In most but
not all cases the court follows the recommendation of the TBS
hospital involved. An extension taking the TBS order over six
years requires an opinion from independent experts. TBS orders
can be for out-patient as well as in-patient treatment. A variation
on the TBS order can include setting conditions on an individual's
behaviour while they are living in the community.
HOSPITAL
30. Following the period in prison laid down by the
court, a person subject to a TBS order is moved to one of the
six main TBS hospitals. The programme there is based on community
living and a structured programme of work within a secure premises.
For each patient a step by step approach is adopted towards eventual
release into the community. That is the incentive which encourages
compliance with the regime of the hospitals. That process may
move a patient from full-time residence in the hospital to occasional
outside visits, then outside work, and later living in the community
while remaining an out-patient at the hospital. The emphasis is
on rehabilitation and the staff encourage the patients to make
the progress they need in order to qualify for release. After
an average of about six years from sentence, most patients are
fully released. The decision to release or to continue detention
is made by the court. About 10% of TBS patients are considered
too dangerous ever to be released. Of those released from the
hospital we visited, the number who re-offend in a similar way
to the original offence is about 10%.
31. The clinic we visited in Utrecht is very much
part of its local community. Its swimming pool and gym are used
by people living nearby. The extensive workshops for patients
supply local businesses. Patients who start to work outside the
clinic do so in cooperation with local organisations. The same
applies to patients who move to live in houses run by the clinic
elsewhere in the city. Within the clinic, patients live in groups
of up to ten, with their own rooms and communal living and cooking
arrangements. Great emphasis is placed on maintaining close contacts
with families and visits by spouses and partners are a normal
part of the regime. The only obvious limitation on patients' freedom
within the clinic is a restriction on access to the Internet.
The workshops provide both purposeful activity and the opportunity
to acquire skills and external qualifications. All these factors
ensure a positive incentive to comply with the programme.
IMPLICATIONS FOR THE UNITED KINGDOM
32. Both the nature of the court order and the dedicated
treatment facilities for TBS in the Netherlands are completely
different from the legal and resource arrangement in the UK. Nonetheless
the assessment process and the treatment methods are not unique.
There are frequent international exchanges between the medical
experts in this very specialised area. The TBS system bears a
strong resemblance to the proposals set out in option B in the
Government's consultation paper. There are obvious attractions
in a court order following conviction which sends the offender
first to prison for a number of years and then for treatment in
a secure clinical facility.
33. A move to a TBS-type system in the UK would not,
however, produce an immediate solution to managing dangerous
people with a severe personality disorder. The system in the Netherlands
has been operating for more than 70 years; the benefits of doing
something similar in the UK would probably not be apparent until
a decade after the legislation had been passed and the resources
made available. If a TBS law was enacted in the next year or so,
it would not apply to people in prison now and serving determinate
sentences—it would not apply retrospectively and they will
be released in the normal course of events. There would also be
an interval before the law came into effect when it would not
apply to people in psychiatric hospitals now but deemed untreatable
and likely to be released. Similarly, for those currently in the
community who have not committed a serious offence, there would
be a time lag before the assessment process was put into effect
and the facilities were made available. On the other hand, such
a change could be applied to people coming newly before the courts
as soon as the legislation was passed.
29 Q194
(Dr Eastman). Back
30 Terbeschikkingstelling-known
as a special hospital order within the criminal code. Back
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