APPENDIX 2
Memorandum by JUSTICE
DANGEROUS SEVERE PERSONALITY DISORDERS
The definition of personality disorder is in
itself questionable, and ignores the ongoing dispute over the
diagnosis and scope of such disorders within the psychiatric profession.
These proposals appear—in some ways at least—to bypass
the professionals in talking simply about "risk": an
uncharted approach that may lead to over-prediction in the current
climate of blame. Within the human rights context we discerned
two broad areas of particular concern: the identification of personality
disorder sufferers, and procedural questions relating to the making
of orders and their review. These are especially important in
the context of the group who have not committed offences.
HUMAN RIGHTS
The definition of personality disorders may
be a medical and legal matter; but the approach of the ECHR will
be to examine the underlying reality of these orders and how they
work. The essential inclusion of safeguards and review procedures
has characterised successive ECHR judgements dealing with prisoners
and mental patients; and will be crucial in this context too.
In particular, reviews must be very regular, and must be conducted
fairly and judicially, with disclosure of reports and access to
legal representation.
Article 5(1)(e), which authorises the detention
of persons of unsound mind, is not necessarily breached when the
detention is for the protection of others, as opposed to the good
of the subject: at least in the light of ECHR jurisprudence to
date. It is possible that English judges (post Human Rights Act)
may have a more liberal approach. The recent Court decision in
Osman v UK stresses the State's prositive obligation to protect
citizens, and this must be counter-balanced with the right of
the individual to liberty. However, if detention is to result,
the incorporation of appropriate safeguards will be fundamental
to human rights compliance.
IDENTIFICATION
Diagnosis is a controversial matter in itself.
Moreover, Annex C does not make clear what may be included in
a personality disorder finding, suggesting that it is close to
one of psychopathic disorder.
The fact that these proposals are being made
in advance of research evidence, and that it is still unclear
what treatment works with this group is an additional difficulty.
It raises quesitons about how, once an order is made, it can be
discharged in the absence of the requirement for treatability.
REVIEW
It these proposals are adopted the need for
objective medical expertise must be recognised. This will be essential
for the provision of independent opinions, as opposed to relying
on those from the settings in which people are detained and assessed.
Both the standard of proof and the quality of evidence should
be high, as once an order is made it will not be easily undone,
and lifelong detention may result.
While the need for public protection cannot
be ignored, we are of the firm view that where the consequences
of an order may be so serious, the standard of proof should be
the criminal one of beyond reasonable doubt. This is necessary
not only to satisfy the requirements of proportionality; but also
as an essential safeguard in an area where mistakes are likely
because of the difficulties surrounding risk assessment and the
uncertainty of diagnosis. For an order to be made it should therefore
be established beyond reasonable doubt that a serious offence
such as rape or murder is likely to be imminently committed.
The two psychiatric opinions necessary for the
making of an order should be obtained from consultant forensic
psychiatrists with relevant expertise who are nothing to do with
the assessment. Assessments will mainly involve the collection
of data, while predictions must be a matter for independent psychiatric
opinion.
PREVENTIVE DETENTION
The three different categories of people discussed
are: those whom the courts know are a long term risk, and for
whom the use of discretionary life sentences could be expanded
(recent case law dispenses with the need for psychiatric evidence
in this context); those who are considered dangerous on completion
of their (determinate) sentences and whom it is proposed should
be further detained by means of an SPD order; and those who have
committed no offence but whose behaviour may be dangerous. It
is proposed that this category, too, may be detained by SPD orders.
The last group inevitably prompts the greatest
degree of concern. The underlying difficulties of diagnosis, risk
assessment, lack of research and training impact hardest here.
The proportionality requirements will be strictest and the risk
of arbitrariness most acute. In the absence of any evidence that
the individual will benefit from treatement the arguments for
social protection will have to be strong in order to strike an
acceptable balance between the right of the individual to liberty
and the right of the public to protection. Although such a measure
may not technically be in violation of Article 5 it poses an unacceptable
threat to civil liberties in the form currently envisaged.
Those who have committed offences and are in
prison have been sentenced to a proportionate term. On its completion
they must be as entitled to protections and safeguards as those
who have not committed offences. Furthermore, it is unfair to
spring the prospect of further detention on someone about to be
freed. It is equally unfair to detain someone who is disordered
(but not able to be admitted to mental hospital) in prison.
In practical terms there are particular difficulties
in assessing risk within the artificial environment of prison;
and there are plenty of examples to date of life sentence prisoners
who feel that what they have said in therapy in prison has been
used against them, and this has prejudiced co-operation and progress.
These problems are likely to affect the subjective and uncertain
process of risk assessment. It may be that ethnic minorities,
already over-represented in prison, suffer disproportionately
in this context too.
A number of other countries do provide for the
continued detention of those perceived to be dangerous on completion
of their sentences. Generally the State must prove dangerousness
and there will be regular reviews. Once someone is preventively
detained a prison setting will not be appropriate or acceptable,
and their conditions and treatment must be of a higher quality
and a different order. Management rules would need to reflect
this; and the resulting effect on people's lives is in our view
more important than which Government department is in overall
control.
Expanding the use of the discretionary life
sentence, already considerably extended by recent authority dispensing
with the need for psychiatric input, does appear to us to be objectionable
where the defendant's mental condition does not relate to the
offence. If it can be shown that a personality disorder led to
the commission of the offence it is less objectionable. But what
this proposal aims at is the abolition of the criterion than an
offence should be sufficiently grave before a discretionary life
sentence may be imposed. This makes sentencing an exercise in
risk assessment, and therefore subject to the problems already
identified.
TREATABILITY
The proposed abandoning of the treatability
criterion enshrined in the 1983 Mental Health Act may have the
effect of compounding the pitfalls in diagnosis. It raises the
fundamental question of what detention will provide, how it may
be assessed, and by what criteria progress may be judged.
20 October 1999
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