APPENDIX 1
Memorandum by the Home Office
MANAGING DANGEROUS PEOPLE WITH SEVERE PERSONALITY
DISORDER
1. The Committee's Inquiry was prompted
by the publication on 19 July of the joint Home Office/Department
of Health consultation document "Managing Dangerous People
with Severe Personality Disorder". The Government understands
that the Committee's intention is to conclude its Inquiry against
a timescale which will allow its conclusions to be taken into
account when the Government reaches a final view on the future
direction of policy in this area, at the end of the consultation
period. The Government is grateful for the Committee's interest
in this work and for the approach it has adopted.
2. Since the background to this area of
policy has been set out at length in the consultation document,
together with the two options identified by the Government as
forming a possible basis for future policy development, this note
will not cover that ground in any detail. It does however offer
the Committee a brief reminder of the history of the issue and
the nature of the problem, before identifying and commenting on
what seem to the Government to be the main questions of principle
and practice it raises. The Government understands that the main
thrust of the Committee's interest is in the human rights aspects
of the present policy proposals, and it will therefore concentrate
in this note on these aspects. But it needs to stress that detention
of dangerous severely personality-disordered people for the purpose
of protecting the public is only one—albeit a very important
one—of the Government's objectives in this area. Effecting
a significant improvement in the way in which these people are
treated, and the level of threat they present reduced, is a parallel
priority. And in the long term the Government hopes that the work
being done on social exclusion and on primary and secondary prevention
of personality disorder, as described in Annex E to the consultation
document, will bring about a reduction in the numbers of people
representing such a high level of risk that they need to be detained.
History
3. Annex A to the consultation document
outlines the history of previous attempts to define this group
of people in legal terms and to establish a framework in which
they can be managed in such a way as to contain the threat they
represent to the public. For most of this century it has been
recognised that there exists a group of people who present a serious
risk to the public because of what has been seen as a form of
mental disorder, even though that disorder differs very substantially
from mental illnesses such as schizophrenia. From the time of
the passage of the Mental Deficiency Act 1913 there has been specific
provision in the law for the detention of this group, based on
two factors: (1) their mental state, and (2) the risk they present.
4. Until the latter part of the century,
psychiatric care for those with a mental disorder of any kind
was rudimentary. The question whether it was ethically acceptable
for psychiatrists to take responsibility for the detention and
care of those for whom they had little positive to offer, and
who could really only be contained, did not therefore arise. But
because it was seen that the threat from the group of people concerned
arose from their mental disorder it was regarded as a legitimate
function for the psychiatric profession to be responsible for
their care.
5. This has changed substantially in the
last 20-30 years. The arrival of the new neuroleptic drugs transformed
the ability of psychiatrists to effect real improvement in the
health of patients suffering from mental illness. But these drugs
are of little benefit to patients with a personality disorder,
and the increasing confidence of psychiatrists when dealing with
mentally ill patients came to contrast sharply with the view,
which gained increasing acceptance among psychiatrists, that personality
disorders are not "treatable" in a hospital setting
and that the management of people with personality disorders who
present a threat to the public should not be seen as a health
service issue. This view was accepted by the Butler Committee,
which argued in its report (Report of the Committee on Mentally
Abnormal Offenders, Cmnd 6244, 1975) that, except in those cases
in which there was a need for medical care holding out the prospect
of benefit to the individual, the main aim of secure containment
of convicted psychopaths could best be carried out by the Prison
Service.
6. Accordingly, this limited view of the
role of the health service in dealing with this group was reflected
in the terms of the Mental Health Act 1983. For two out of the
other three categories of mental disorder set out in the Act—mental
illness and severe mental impairment—the basis on which
a decision was to be taken as to whether detention in secure care
was needed would continue to be (1) the presence and severity
of the mental disorder and (2) the degree of risk to the public.
For those with what the 1983 Act termed "psychopathic disorder",
it added a third criterion of "treatability" (ie "for
a patient suffering from psychopathic disorder . . . that the
medical treatment is likely to alleviate or prevent a deterioration
in his condition") to be met before detention (other than
detention purely for assessment) could be permitted. (The treatability
criterion also applies to people with mental impairment, but this
presents less of a problem because the criterion is much more
readily met).
7. The addition of the treatability criterion
marked a fundamental shift away from the previously-held view
that the management and, where possible, treatment, of people
with psychopathic disorder (or, in the more modern terminology,
dangerous severely personality-disordered people) was a legitimate
function of the health service.
8. In effect, this means that, for those
people in this group who commit an offence, there has been a reduction
in the prospect that a hospital bed will be made available and
that the court can make an order providing for indeterminate detention
so long as the disorder and the concomitant risk remain. Instead,
unless the individual concerned is judged to be treatable, the
courts have had no option but to send such offenders to prison.
Although this is in line with the approach advocated by the Butler
Committee, it has proved unsatisfactory for two reasons. First,
in many such cases the court only has the power to pass a determinate
sentence, with the result that the person concerned must be released
at the end of their sentence, regardless of the degree of risk
they continue to present. Secondly, while prisons are effective
in the sense that they provide short-term protection of the public
through preventing offenders from committing further offences
while they remain detained, it is difficult for prisons to provide
appropriate interventions to reduce the risk of a group of people
who are accepted as being severely mentally disordered.
9. What this means in practice is that,
depending on whether someone falling into this severely-disordered
and very high-risk group is at any one time before the courts
for sentencing for an offence, the options for their containment
and management are as follows:
(a) before the court for sentencing and
treatable: secure hospital (Ss 37 and 41 of the Mental
Health Act 1983)
(b) before the court for sentencing and
untreatable: prison (for a determinate or indeterminate
period)
(c) not before the court for sentencing
and treatable: secure hospital
(d) not before the court for sentencing
and untreatable: no detention options available
10. This group consists, by definition,
of people who present the most extreme danger to the public because
of their mental disorder. The report of the National Confidential
Inquiry into Suicide and Homicide by People with Mental Illness,
which reported earlier this year, found that in an eighteen-month
period in 1996-97 some 9 per cent of all homicides in that period
in which psychiatric reports were prepared for the court were
carried out by people with a diagnosis of personality disorder.
The Government does not consider it acceptable that there should
be situations in which (1) no action to protect the public from
the threat they represent can be taken, even when that threat
is clear and obvious, and (2) one of these individuals can be
released from detention irrespective of the risk he poses.
11. The options outlined in the Government's
consultation document therefore amount to no more than the restoration
in a more modern and up-to-date form of the position as it stood
earlier this century. They involve returning to a system based
on the two factors of the extent of an individual's mental
disorder and the degree of risk presented. The Government
is therefore proposing a system based on four core elements:
(i) new powers for the detention and continued
supervision of dangerous severely personality-disordered (DSPD)
individuals;
(ii) new processes for the initial assessment
and periodical review of DSPD individuals;
(iii) the development of specialist approaches
to the management of those detained, including up-to-date therapeutic
interventions;
(iv) a comprehensive and continuing programme
of research to inform practice in the management and treatment
of those detained.
The Key Questions
12. The consultation document identifies
11 questions relating to the implementation of the proposals it
set out, on which the views of the respondents are sought. The
debate in the media, specialist circles, and the public, since
the proposals were published, has however focussed on a different
set of more fundamental issues. These are:
(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?
(b) If indefinite detention on the basis
of risk is acceptable in principle,
(i) 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
little or no risk?
(ii) 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?
(iii) how is the group to which these powers
should apply to be defined?
(iv) 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?
(c) 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?
(d) Is the Government certain that the kind
of system it proposes will be compatible with the European Convention
on Human Rights?
13. The remainder of this note discusses these
key questions.
Detention on the basis of risk (paragraph 12(a))
14. As indicated above (paragraph 11), in
the Government's view the creation of a system based on the criteria
of an individual's mental disorder and the risk he
presents involves no new departure of principle or fundamental
extension of existing powers. These criteria applied to the detention
of all categories of people with mental disorders prior to the
1983 Act, and still apply in respect of people with mental illness
and severe mental impairment. A substantial number of mentally
disordered people are detained on this basis each year. Further,
the idea that detention can only be justified as a response to
the commission of an offence reflects the view that the purpose
of detention can only be punitive. This is not the primary purpose
of the Government's proposals. As with hospital disposals for
mentally disordered offenders under Part III of the Mental Health
Act 1983, they are based on the idea of detention for the purposes
of (a) protecting the public, and (b) providing an environment
in which the most dangerous and severely disordered people may
receive the kind of long-term therapeutic interventions they need.
15. Research evidence indicates that in
many cases those falling into this group only respond to therapeutic
interventions, if at all, over the long term. While there is positive
evidence that some forms of intervention are likely to be effective
with some groups, it is in the main not possible to assess at
the outset what interventions may be of benefit or how long it
will take before an individual can safely be discharged back into
the community, so a determinate period of detention will not provide
the safety the public needs. It follows that only an order for
indeterminate detention is adequate as a response to the risk
that individual presents, coupled with suitable arrangements for
the periodical review of whether detention continues to be necessary
and justified.
16. If it is agreed that detention based
on risk is acceptable in principle, it is in logic irrelevant
whether someone assessed as highly dangerous and needing to be
detained should have committed any previous offence. The real
question to ask becomes the essentially pragmatic one of whether
sufficiently reliable indicators of future behaviour can be found
to allow the risk an individual presents to be assessed and a
decision taken on whether they need to be detained. At an instinctive
level the detention for a potentially indefinite period of someone
who has never committed any offence appears unfair and excessive.
But as indicated above this stems from an assumption that there
is a connection between detention and punishment. Where there
is no such connection, and detention is for the purposes of protection
of the public and treatment of the individual, the argument of
unfairness becomes much weaker. In fact, as will be discussed
below, the public and media focus on the scope for people who
have genuinely never offended to be drawn within the compass of
the Government's proposals is based on a serious misunderstanding
of the way they will work. It is most unlikely indeed—to
put it at its highest—that the system will ever involve
detaining more than a very few people with other than an extensive
and increasingly serious record of offending behaviour.
17. In any case, there is an important distinction
to be drawn between whether someone has committed an offence and
whether they have been convicted. If the application of the proposed
new system were to be limited only to those who have actually
been convicted of an offence (whether they were currently before
the court for sentencing or, as some have argued, that it should
be sufficient that they should have had some kind of conviction
in the past), the effect would be to eliminate from the scope
of the system a number of people who should on any sensible reckoning
come within it. This would apply in instances in which an individual
confessed to a serious offence, and this was backed up by supporting
evidence, but where for some reason—perhaps for the protection
of very young victims or vulnerable witnesses—charges were
never brought or the case did not come to court.
Fair and accurate procedures (pargraph 12(b)(i))
18. The crucial question is then whether
the future system can be made to operate fairly. By this is meant:
(i) can procedures be devised for applying
the new detention provisions which ensure to a sufficiently high
degree of probability that only those who genuinely present a
serious danger to the public because of their disordered personality
will be detained? And
(ii) recognising that there will be some
cases in which people are detained but who actually present only
a lower level of risk, can safeguards and review mechanisms be
devised which will provide an adequate safety-net for such people?
19. The first point to be made on these
questions is that neither presents a new issue. The problem of
ensuring that only those who present a sufficiently high risk
because of their mental disorder are detained is already a familiar
one from the operation of existing mental health legislation.
And the issue of how to construct workable safeguards against
errors in the use of powers to order detention is already well-known
in both the criminal justice system and the mental health system.
20. As far as detention under mental health
legislation is concerned, under s.37 of the Mental Health Act
1983 the only relevant requirement to be satisfied, when the Crown
Court considers authorising the detention in hospital of a convicted
person, is that the court should have written or oral evidence
from two registered medical practitioners as to the offender's
mental condition and the availability of a bed. The Act sets out
no detailed requirements as to the means by which the two medical
practitioners should have obtained the information needed to allow
them to form a judgement. There is provision in s.38 of the Act
for the court to make an interim hospital order authorising an
offender's detention in hospital for assessment for a period of
up to 12 months, but in the majority of cases clinicians do not
find it necessary to rely on this provision before reaching a
view on an offender's mental state. In practice, it may be sufficient
for the clinicians to rely on what they learn from an interview
with the offender while he is on remand.
21. The Government's proposals for the envisaged
future DSPD system involve a far more sophisticated set of procedures.
The detail is yet to be finalised, but some 70 experts from across
the health and criminal justice systems are engaged in a project
being run jointly by the Home Office and the Department of Health
aimed at devising a comprehensive battery of assessment tests
to be applied at all stages of an individual's progress through
the system. Those who come to attention as possible candidates
for detention will first undergo an initial brief screening process.
Only where this process results in confirmation that there may
be cause for serious concern will the individual concerned then
undergo full assessment. Central to the full assessment process
is likely to be the establishment of a number of specialist centres
in which, on a residential basis and over a period of some 6-7
weeks, individuals will be subject to an intensive process of
observation and assessment carried out by a multi-disciplinary
team, including psychiatrists, psychologists, nurses, social workers
and others. The resulting report—to which the individual
being assessed will have access, and which he will be able to
challenge—will go to the court (or other form of medico-legal
tribunal set up in civil cases). It will then be for the court
to decide whether the criteria for detention are met.
22. This model replicates processes already
operating successfully in other countries, particularly Holland
and Sweden. It ensures that there will be suitable legal oversight
over the process of detention, and minimises the risk that one
assessor's judgement may have an excessive impact on the final
recommendation to the court. It also ensures the application of
a consistent approach to the high standards to be met before detention
is recommended, bearing in mind that this system is intended by
definition for only the most dangerous and disordered people.
In particular, a centralised process of this kind will ensure
that there is no danger of individuals being "dumped"
in the new system by clinicians who are reluctant to work with
them or who are uncertain as to the nature of their mental disorder,
as some have feared.
23. The assessment tool to be used in this
process is being developed by an expert working group chaired
by Dr David Thornton, Head of the Offending Behaviour Programmes
Unit in the Prison Service and an internationally-recognised expert
in this field. A second working group, chaired by Professor Jeremy
Coid, is conducting research into assessment methodologies and
will carry out an independent evaluation of the assessment tool
developed by Dr Thornton's group when it is finalised. A third
group, chaired by Professor Don Grubin, is developing proposals
for the precise operation of the assessment processes under the
new system. This work reflects the Government's determination
that the assessment processes operated should be as accurate as
they can be. There is every reason to believe that the processes
will be at least as good as those which operate at the moment,
and much reason for optimism that they will be better.
24. The work being done on these tools is
at the forefront of research in this area. These tools will of
course need to be tested and refined over time. However, they
are developments of the existing assessment tools currently used
to support a diagnosis of personality disorder or psychopathic
disorder. There are no plans to detain on the basis of a set of
completely untried and untested assessment procedures.
25. It is also important to understand the
typical background of those who will undergo assessment under
these arrangements, reflecting what is known about the factors
which influence the development of personality disorder. This
is covered in some detail in Annex C to the consultation document.
To the information set out there, though, it may be helpful to
add something of the definition of personality disorder, as set
out in the International Classification of Diseases (ICD-10, World
Health Organisation 1992), one of the two major international
classifications in use. The ICD-10 defines personality disorders
in the following terms:
"Deeply ingrained and enduring patterns,
manifesting themselves as inflexible responses to a broad range
of social situations. They represent either extreme or significant
deviations from the way the average individual or a given culture
perceives, thinks, feels and particularly relates to others. .
. they are developmental conditions, which appear in childhood
or adolescence and continue into adulthood. They are not secondary
to another mental disorder or brain disease, although they may
proceed and coexist with other disorders."
The Diagnostic and Statistical Manual IV (DSM-IV),
the other internationally recognised diagnostic manual, descibes
anti-social personality disorder, the most common form of personality
disorder, as being marked by "a pervasive pattern of disregard
for and violation of the rights of others occurring since age
15 years".
26. It needs to be remembered too that those
with whom this policy is concerned are at the very extreme of
the spectrum of personality disorders, combining severe disorder
and serious danger to the public. They will often come from a
socially deprived background with a history of childhood physical
abuse and cruelty. They will usually have demonstrated challenging
behaviour during their childhood, graduating into petty offending
in early adolescence and then into more serious offending as their
teenage years progress, with a developing tendency towards violent
or sexual offending. They will often have abused substances of
different kinds. In the great majority of cases they will be very
well known to the local police, probation, health and social services,
and to the education and housing services.
27. There is continuing debate about the
difficulty of establishing a reliable diagnosis of personality
disorder. However, that debate is much less sharply focussed at
the extreme end of personality disorder, ie those likely to come
within the provisions of legislation under the Government's present
proposals. These are not concerned with people who demonstrate
a mild degree of divergence from what would be accepted as "normal"
behaviour. Rather they are concerned with people where, as a consequence
of their personality disorder, there is a serious risk that an
individual may kill or maim or sexually assault another person.
Wherever a threshold is drawn there will of course always be individuals
who fall just on either side of the threshold, and there will
always be debate about such cases, but in the majority of cases
the presence of "severe personality disorder" is unlikely
to be particularly contentious.
28. Given all this, what is known about
the factors which appear to influence the development of personality
disorder, and the work the Government is doing to develop new
and more accurate assessment processes, the prospect that anyone
with only a low degree of personality disorder and who does not
represent a danger of any kind would ever be identified as a candidate
for assessment must be regarded as remote. And even if such a
person were ever to come to attention, the prospect that they
would be identified by any assessment process as representing
such a risk as to merit detention under the new system would be
tiny. This is because the risk assessment tool to be used at this
stage in the process will necessarily depend to a considerable
extent on what are known as "static" factors, that is,
what is known about the individual's past life. Research has shown
that these are the most reliable indicators as to future behaviour.
But where someone's past shows no, or only very little, evidence
of the kind of background described in Annex C to the consultation
document or paragraph 26 above, there is correspondingly little
chance that they will be identified as meeting the very stringent
criteria for detention.
29. The Government recognises nevertheless
the need to incorporate into the planned procedures for the new
system a range of safeguards and review mechanisms allowing those
who have been detained for the purpose of assessment, those who
have been assessed, and those who have been made subject to indeterminate
detention, to challenge what is said about them. As indicated
above, the detailed planning for the operation of the new system
has yet to be completed; and much will in any case depend on which
of the main policy options outlined in the consultation document
is eventually selected. But in broad terms it is possible to say
that the Government accepts the need for those going through the
assessement process to have the right to see and challenge what
is said about them by the assessors at all stages, to have legal
representation while the process is under way, and to have the
right to appeal against the making of an order providing for their
detention. It is no part of the Government's intentions to seek
to detain individuals without real need. It will welcome any views
the Committee may wish to express as to the nature of the safeguards
which should be built into the system to this end.
Detention of other dangerous people? (paragraph
12(b)(ii))
30. Some commentators have asked what is
it that marks the DSPD group out from other people in such a way
as to justify detaining them. This issue was crystallised at the
launch of the consultation document by one questioner, who asked:
"What I want to know is what is the principle
which singles out this group of dangerous people as against other
dangerous people, for instance people with potentially terrorist
sympathies, people with unpopular political opinions. Where's
the line to be drawn to defend our civil liberties?"
31. In the Government's view the distinguishing
factor about this group is that the risk they present is a direct
result of the fact that they have a recognised mental disorder.
While the vast majority of people with a personality disorder,
or indeed a mental disorder of any kind, present no danger to
the public, it has long been recognised that detaining people
who present a threat to the public because of their mental state
may be justified. This is acknowledged in Article 5.1(e) of the
European Convention on Human Rights. The difference between this
group and those listed above is that, in the case of people with
unpopular political opinions, there is no serious suggestion that
their mental state is disordered at all; and even in the case
of those with potentially terrorist sympathies it would not be
generally accepted that their mental state was so disordered as
to amount to being of unsound mind. Where that is the case, as
with people with severe personality disorders or other severe
mental disorders, it is generally accepted that it would be wrong
to allow that individual the freedom to act in a way it can be
assumed they would not behave were it not for their mental disorder.
This is a matter both of public protection and of safeguarding
the interests of the individual concerned, given the distress
experienced by very many mentally disordered offenders when they
appreciate the nature of their actions while in an acutely disordered
state.
32. It follows that there is no "slippery
slope" with these proposals. They can, by definition, only
apply in circumstances where people are at risk of acting in a
dangerous manner, prompted by a mental disorder of such severity
that they may be said to be of unsound mind.
How is this group to be defined (paragraph 12(b)(iii)?
33. The consultation document describes
the group of people with whom these proposals are concerned as
"people who have an identifiable personality disorder to
a severe degree, who pose a high risk to other people because
of serious antisocial behaviour resulting from their disorder"
(Part 2, paragraph 1). Annex C to the consultation document discusses
the concept of personality disorder, its causes and manifestations.
As the document makes clear, those to be detained will need to
be both suffering from one or more recognised personality disorder
and to represent a serious threat to the public because of that
disorder. In practical terms whether these criteria are met in
any one case will need to be identified on a case-by-case basis,
in the light of the circumstances of each case. But Annex A to
this note sets out some typical case histories, modelled on actual
cases. These case histories may give a useful indication of the
kind of people these proposals are directed towards.
34. The Committee will also have noted that
Annex C to the consultation document describes the means used
so far to calculate the number of people falling into this group
and who are currently in prison. This involved using the primary
risk factors which have been identified in a meta-analysis of
about 60 world-wide studies. For the purpose of the calculation,
it was assessed that anyone with a recognised personality disorder
plus six or more of the following factors might fall into the
group:
— Extent of criminal history;
— Use of a weapon in the index offence;
— Previous juvenile delinquency;
— History of violent behaviour;
— Previous psychiatric admissions;
— Previous sexual offending;
— Level of victim injury;
— Failure on prior conditional discharge.
Given the need for six or more of these risk factors
to be present, as indicated in paragraph 28 above the chance that
anyone who genuinely represents little or no threat to the public
will in fact be drawn into the system is mimimal in the extreme.
35. The focus of this note is principally
on how mechanisms can be devised to ensure that the new system
envisaged in the consultation document can be operated with due
regard for individuals' human rights. In practice, the concern
of many commentators has understandably been on the risk that
people who represent a lower level of risk may be drawn into detention.
There is however another aspect to the human rights dimension
of this issue. In a recently-published discussion paper ("Should
Psychiatrists Treat Personality Disorders?", Maudsley Discussion
Paper No 7, Institute of Psychiatry), Dr Paul Moran points out
that epidemiological research over the past 20 years has shown
that people with personality disorders have a wide range of psychosocial
problems which include:
— Early unnatural death through higher
rates of suicide and accidents;
— High rates of associated mental illness—in
particular, substance abuse, eating disorders, depression and
anxiety;
— Worse outcome for the treatment of
mental and physical illness;
— High rates of family disharmony and
violence;
— High rates of unemployment and homelessness.
To address the totality of the challenge presented
by personality disorder, it is therefore necessary to see the
Government's proposals in respect of dangerous people with severe
personality disorder in the wider context of the work being done
on social exclusion, substance abuse etc, as set out in Annex
E to the consultation document.
How can those people detained ever prove that
they are safe to be released (paragraph 12(b)(iv)?
36. It is certainly true that if someone
is identified as being a high risk in certain circumstances, and
is therefore removed from those circumstances and placed in detention,
it may be hard for them to prove that they are no longer a risk
unless they are again exposed to the problematical circumstances.
But the situation in this respect faced by those detained under
the Government's proposals will be no different from those who
at present are given a life sentence or a hospital order with
restrictions by the courts. In both those cases the test as to
whether release/discharge is warranted is based on the continuing
risk the individual presents, even though that risk has necessarily
to be assessed in an environment very different from the one to
which the prisoner/patient would be returning.
37. The Government does not therefore believe
this is a serious obstacle in the way of its proposals. It is,
nevertheless, taking action to ensure that the pre-discharge assessment
processes under the new system are as reliable, and as fair to
the individual detainee, as possible. The assessment processes
being devised by the working group chaired by Dr David Thornton
(see paragraph 23 above) will include a specific tool for use
in the pre-discharge stage. At that point it will not be reliable
to use the static factors which form the best measure of risk
at the entry stage. This is because there is nothing the individual
can do to alter those factors—they are a part of his background,
and even if he has responded well to treatment and now represents
much less of a risk to the public this will not show up in an
assessment measurement based solely on these factors. Instead,
once someone has been in detention for a considerable time and
the issue has become whether they can safely be discharged, the
need becomes to have a tool which will measure the so-called "dynamic"
factors, that is the extent to which the individual has changed
while in detention.
38. In practice, the method by which anyone
detained under the Government's proposals will be able to show
they are ready to be returned to the community will be similar
to the process which already applies in respect of restricted
patients under the Mental Health Act 1983. In these cases, patients
are tested out in conditions of increasing freedom, over an extended
period. Initially a patient may be granted limited freedom of
movement within the hospital grounds. If this goes well, an application
can be made to the Home Secretary for consent to the grant of
escorted leave outside the hospital. Such leave forms part of
a planned process, is only granted on the basis that a full risk
assessment has been carried out and risk management arrangements
put in place, and is followed by a full assessment of the therapeutic
benefit to the patient. Gradually this can lead on to the grant
of unescorted leave, initially for brief periods but later, as
the patient confirms his ability to cope safely in the community
and is getting near to the point of discharge, overnight absences
may be approved. This process has proved to be a reliable means
of assessing whether a restricted patient is ready to return to
the community. It provides the patient with an opportunity to
demonstrate that he is no longer a risk. Coupled with the use
of risk assessment tools based on dynamic factors, such a process
provides an adequate means by which someone detained under the
Government's proposals might demonstrate that they are ready for
discharge from detention.
Identification of those DSPD people living in
the community (paragraph 12(c))
39. Those who will in future come within
the ambit of the proposed new system will fall into one of four
categories:
(i) those who are before the court for sentencing
for an offence, having been convicted;
(ii) those who are already in prison or secure
hospital, some of whom will be serving determinate sentences and
will therefore have to be released at the end of those sentences;
(iii) those who have previously been in prison
or hospital but who have either reached the end of a determinate
sentence or have been discharged from hospital on the ground of
their untreatability, but who remain a serious risk;
(iv) those who have not previously been detained
in prison or hospital following conviction, but who are assessed
nevertheless as presenting a serious risk to others.
40. Public and media comment on the Government's
proposals has centred on the inclusion of this last group. Given
the background and typical characteristics of the group of people
with whom these proposals are concerned, as set out above, in
the consultation document and in Annex A to this note, the concerns
that the present proposals may lead to the wrongful detention
of innocent people at a whim of a clinician or police officer
may be seen to be unfounded. It may nevertheless be helpful to
the Committee to have an idea of the mechanisms the Government
presently has in mind to set up to identify those who fall into
the groups at (iii) and (iv) above.
41. As has already been indicated, anyone
who meets the criteria for detention under these proposals but
who has not already committed a very serious offence will almost
certainly have an extensive track-record of difficult and challenging
behaviour. They will be well-known to local services, who may
have found it impossible to cope with their chaotic behaviour
and to meet their needs. In the case of the group at (iii) above,
of course, their history will be a matter of record. In dealing
with both these groups, it seems to the Government that there
is a key role to be played by the multi-agency risk panels and
public protection panels now in place around the country. The
Government has it in mind to look to local panels to build on
their existing work by monitoring the cases of individuals who
appear likely to present the degree of serious risk to the public
necessary to bring them within the DSPD category. The agencies
represented on panels will between them have a great deal of information
about individuals who are causing serious concern in this way.
Where such individuals' behaviour reached a point that the panel
concluded that the safety of the public might be seriously at
risk, the panel might have the power to apply to a new form of
medico-legal tribunal for the individual concerned to be detained
for the purpose of assessment. The individual would of course
have the right to challenge any such application, as well as a
right of appeal against any eventual detention order made by the
tribunal at the end of the assessment process.
42. It seems to the Government that arrangements
of this kind would ensure that individuals living in the community
were not arbitrarily detained, even just for assessment, as only
the local multi-agency panel would have the ability to trigger
an application to the tribunal for authority to detain. It would
however value the comments of the Committee on this approach.
ECHR compatibility (paragraph 12(d))
43. The consultation paper sets out the
current legal provisions under which dangerous severely personality
disordered individuals may currently be detained. It also discusses
the key ECHR provisions that impact on the policy and refers to
specific European Court judgements that clarify the interpretation
of the convention rights in this area.
44. Detention on the basis of "unsound
mind" is allowed under Article 5.1(e) of the Convention.
Unsound mind is not defined in the ECHR, but on the basis of existing
European case law the Government believes that "severe personality
disorder" falls within the meaning of the term. In principle,
therefore, people with such a disorder may in the Government's
view be detained without violation of their convention rights.
Case law also however establishes a number of practical conditions
which must be met to ensure that detention on the basis of "unsound
mind" is legal. These are:
— the individual must be "reliably
shown" by "objective medical expertise" to be of
"unsound mind";
— the individual's disorder must be
of the kind or degree to warrant compulsory confinement; and
— the disorder must persist throughout
the period of detention.
45. The assessment procedures to be applied
at all stages of an individual's contact with the DSPD system,
including the provisions for challenge and appeal which are being
designed into them, are intended to meet these requirements in
full. If the Government eventually decides to adopt option A as
set out in the consultation paper then the processes for challenging
detention would be those that are currently in place to challenge
detention either through the criminal or civil systems (that is,
appeal against sentence in the case of offenders, or appeal to
a Mental Health Tribunal in civil detention cases). If however,
the decision is made to proceed with option B then there will
be a need for a new mechanism. There are separate discussions
under way to determine the form this might take, and its final
shape is not yet clear. The Government has however undertaken
that the powers to detain will only be available to the courts
or other, quasi-judicial bodies, and not to the Executive, and
only on the basis of a clinical recommendation as is required
now for detention under the Mental Health Act.
46. The final issue to be considered under
this heading concerns the detained individual's right to treatment.
The narrow wording of the ECHR confers no such right on individuals
detained on the basis of "unsound mind". However, given
the serious implications of potentially indefinite detention,
and the possibility that treatment may in some cases reduce the
risk posed by an individual, the Government is committed to offering
as effective treatment as possible to all those detained under
its proposals. It is in the interests of both the public as a
whole and of the detained individuals themselves that they should
be given every possible help to reduce the risk they present and
so help them to return to the community when this can be done
in safety. It is for this reason that best practice in both the
Prison Service and secure mental health setting are being researched
to examine their effectiveness in the treatment and management
of this group of individuals.
Conclusion
47. As indicated in the consultation document,
the Government is well aware of the complexities involved in seeking
to tackle the issues raised in this area. Questions of law, clinical
practice, ethics, definitions and organisational structures are
all involved. On the basis of past experience when the problem
of how best to manage dangerous severely personality-disordered
people has been raised, it will be surprising if the present consultation
exercise actually identifies any general consensus as to the preferred
approach for the future.
48. Despite the difficulties involved, the
Government is determined to respond to the challenge of seeking
to put in place a system for the future which recognises the need
to get the proper balance between the right of the public to be
protected from this group of dangerous people, and the right of
individuals not to be arbitrarily detained. In developing its
published proposals it has sought to get this balance right, but
it will welcome any suggestions the Committee may have as to further
improvements which might be included in the future system.
Home Office
September 1999
Annex A
CASE HISTORIES
Case 1
James was abandoned as a small child, when his
mother went off with another man. She subsequently had four further
children by two different fathers, and is known to have had convictions
for shoplifting and alcohol-related offences. James' father could
not cope with the responsibilities of bringing James up single-handed—he
had several spells in prison during James' childhood—and
is thought to have neglected and at times physically abused him.
James had several periods in children's homes
and in foster care, but all attempts at adoption or fostering
failed because of his poor behaviour. His criminal history began
at the age of eight years. During late childhood and adolescence
he frequently truanted from school, ran away from his children's
homes, and abused solvents and alcohol. By this time his offending
was taking the form of burglaries and thefts of cars, and from
the age of 16 he spent increasing periods in custody. From this
time onwards he began to commit violent offences, including at
different times the malicious wounding of a girlfriend and, during
one of his periods in prison, the attempted murder of another
prisoner. Between the ages of 16 and 30 he never spent more than
14 months out of custody. He has lived with two different women,
and believes that he has four children by three different mothers.
All of his relationships with women have been marked by violence
and repeated separations, often in the context of unfounded jealousy
of his partners and with violence exacerbated by his heavy drinking.
During a prison sentence served in his early
20s James was admitted to a high-security hospital under the legal
category of "psychopathic disorder", but was returned
to prison after he wrecked the patients' social club, requiring
restraint by nurses armed with riot shields.
At the age of 26 James was given a 12-year sentence
for armed robbery and possession of a firearm. During this time
he was described by staff as "an arrogant, self-centred bully
who enjoys the status of `hard man', and who is suspected of intimidating
weaker individuals for tobacco and possibly sexual favours".
He has now been released into the community at the end of his
sentence.
Comment: This case illustrates well many
of the social and environmental factors familiar in cases of severe
personality disorder, as well as a typical pattern of developing
offending behaviour and substance abuse. It also illustrates one
of the deficiencies in the present system, in that having been
found to be beyond treatment in hospital James had to be released
at the end of his sentence, although there remained little doubt
about his continuing dangerousness.
Case 2
David's mother died while he was a small child,
and he and his sister had two unsuccessful foster placements.
He claims that he and his sister were both ill-treated in the
placements. He returned briefly to live with his father, before
being placed in the care of an aunt.
At school he was a loner, with few friends.
He did not show serious conduct disorder, but was not trusted
by his teachers, and had two early convictions for minor offences
of dishonesty. After leaving school with no qualifications he
was not able to find a job, and remained unemployed. At the age
of 18 he began a relationship with his first girlfriend. A year
later he was arrested and convicted of manslaughter following
the killing of his girlfriend. The body had been found gagged
and bound on his aunt's bed and strangled with a silk scarf. She
was also dressed in certain articles of his aunt's clothing. Forensic
examination indicated that he had masturbated over the body after
death.
Following David's arrest, pornographic material
was found among his belongings of women in bondage poses and fantasy
accounts he had written involving the tying-up and strangulation
of girls in his neighbourhood. After conviction he was admitted
to a high-security hospital in the category of "psychopathic
disorder", and admitted then that sadistic masturbatory fantasies
has preoccupied him for much of his waking life since his early
teens. In hospital he became involved in homosexual liaisons with
older patients.
To begin with, David made little progress in
hospital, but by his late thirties the use of interpretive psychotherapy
appeared to have given him an increased degree of insight into
his behaviour. At this stage it became possible to transfer him
to conditions of lesser security in preparation for possible eventual
discharge, although this still appears some way off.
Comment: As with Case 1, this case involves
the kind of disrupted upbringing which is common in many cases
of severely personality-disordered people. More positively, it
also illustrates the potential for positive change in some DSPD
people, even though it may in many cases take a very long time
before treatment can be seen to be bringing any benefits.
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