OPINION OF THE COMMITTEE
77. The consultation paper poses eleven questions
on policy options, service provision, assessment procedures, outcomes
and prevention.[75]
They are perfectly reasonable questions to ask professionals,
charities and interest groups operating in this field. The Home
Office's subsequent memorandum to this Committee acknowledges
that debate on the consultation paper has focussed on seven fundamental
issues. It is these issues of civil liberty, resources and medical
ethics which we have heard about in evidence. We set out below
our response to the questions the Home Office has posed.
(a) Is it acceptable, as a matter of principle,
for the detention of someone with severe personality disorder,
for possibly an indefinite period, to be based on an assessment
of the risk they present, rather than as a response to an offence
they have committed? In particular, is it acceptable for someone
who has never been convicted of an offence of any kind to be liable
for detention under these proposals?
78. We understand that most dangerous people with
a severe personality disorder will have been known, possibly over
lengthy periods, to those working in the mental health field as
well as to the police. Many will have either committed, or been
convicted of, a serious criminal offence. The most effective way
to reduce risk to the public is for an adequate investment in
mental health provision to try to treat the condition before it
becomes severe personality disorder.
79. When those with severe personality disorder are
charged with a serious criminal offence, the court should order
a proper assessment of the risk they present prior to sentence.
At the end of their sentence, if they are assessed as continuing
to present a serious risk to the public - a decision to be taken
by a quasi-judicial body—they should not be released into
the community. There may be extreme cases where someone never
convicted of a serious offence is assessed to be sufficiently
dangerous to justify detention. Nevertheless, in the absence of
a previous conviction, we think it will prove exceptionally difficult
in individual cases to establish that the necessary level of danger
exists to justify further detention.
(b) Can procedures be devised which will ensure
that detention powers are only applied to those who genuinely
merit them and to the exclusion of those who in reality present
no or little risk?
80. We note that the Government is devising legal
and medical procedures for deciding on indefinite detention on
the basis of assessed risk. Fears have been expressed that the
law might race ahead of the science in these regards and it is
imperative that this does not occur. The evidence we have seen
in Utrecht suggest there is a sufficiently robust scientific foundation
for action. Nevertheless we fear it is inevitable that such procedures
will miss some dangerous people and detain some who present little
risk. This will require continuing investment in research to improve
and refine assessment methods.
(c) Why should such an approach apply only to
those whose risk is caused by their personality disorder, and
not to others, such as dangerous drivers?
81. We are satisfied that the Government's proposals
for public protection in this area are directed solely at dangerous
people with severe personality disorder who have been assessed
as being dangerous.
(d) How is the group to which these powers should
apply to be defined?
82. There is a recognisable medical diagnosis of
anti-social or psychopathic personality disorder. Many people
currently in prison or hospital who are dangerous do not yet have
such a diagnosis. It will be much harder to tell which individuals
with such a diagnosis are dangerous to the point they ought to
be detained.
83. We recommend that the proposals should be
applied to individuals only when an assessment predicts it is
almost certain that they will commit a very serious criminal offence.
(e) How are those placed in detention ever to
be able to establish that they are fit for discharge, given the
difficulty of proving that they are no longer a serious risk?
84. We recommend that continued detention should
be subject to regular review by a judicial body at stated intervals—on
the basis of multi-disciplinary assessment and subject to independent
medical opinion.
85. The onus of proof should always remain on the
authorities to justify continued detention. The therapeutic environment
in which individuals are detained should be designed to provide
opportunities for suitability for release to be tested. This will
need to be matched, in cases where person is released, by adequate
and continuing rehabilitation and support.
(f) How are the group of people falling into the
scope of these proposals and who are living in the community to
be identified? What arrangements and safeguards are to be put
in place to ensure that they receive fair treatment and are not
drawn arbitrarily into detention?
86. Legal changes, described in paragraph 24 above,
already coming into effect will mean that most of the people affected
by these proposals will not be living in the community—they
will already be in prison or hospital or be coming before the
courts for sentencing. The recently established local panels will
be the right bodies to identify individuals for assessment. We
recognise the great difficulties in achieving an accurate and
reliable assessment of risk. Where a well-founded assessment is
corroborated by an independent medical opinion, a judicial—rather
than governmental—body will be the appropriate forum for
making a decision on detention and retention. We do not see a
risk of people being drawn arbitrarily into detention. Some people
who are not dangerous will be detained and some people who are
dangerous will remain in the community.
(g) Is the Government certain that the kind of
system it proposes will be compatible
with the European Convention of Human Rights?
87. Courts do not make judgments under the Human
Rights Act 1998 and the European Convention of Human Rights on
hypothetical proposals. There are no past cases directly bearing
on these proposals. There can be no guarantee that the proposals
will not attract litigation under the ECHR. The risk of successful
cases against the UK will be reduced if the most stringent safeguards
are applied to these proposals.
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