APPENDIX 3
Memorandum by Liberty
THE MANAGEMENT OF PEOPLE WITH SEVERE PERSONALITY
DISORDER: ADDRESSING THE HUMAN RIGHTS IMPLICATIONS
1. INTRODUCTION
2. THE PROPOSALS
2.1 Option A: maintaining the existing legislative
framework with modifications
2.2 Option B: the creation of a separate
system
2.3 The persons at whom the Government's
proposals are aimed
3. CURRENT PROVISIONS
AUTHORISING THE
DETENTION OF
INDIVIDUALS
3.1 Article 5(1) grounds applicable to untreatable
DSPD persons
3.2 Psychiatric certainty in relation to
the diagnosis
3.3 Article 5(1)(e) and the detention of
untreatable persons of unsound mind
3.4 Protection of the public
3.5 Conclusion
4. PROCEDURAL
SAFEGUARDS
4.1 Medical evidence
4.2 Burden and standard of proof
4.3 The test of dangerousness
4.4 Place for detention
4.5 Reviews of detention
5. PRACTICAL
CONCERNS
6. CONCLUSION
INTRODUCTION
Liberty (The National Council for Civil Liberties)
is one of the UK's leading civil liberties and human rights organisations.
Liberty works to promote human rights and protect civil liberties
through a combination of test case litigation, lobbying, campaigning
and research. It is the largest organisation of its kind in Europe
and is democratically run.
Liberty welcomes the opportunity to comment
on the Government's consultation paper Managing Dangerous People
with Severe Personality Disorder: Proposals for Policy Development.
Our preliminary views on the civil liberties and human rights
implications of the proposals are set out below[1].
Liberty recognises the concern caused to the
public by the dangerous behaviour of a small number of personality
disordered individuals, and the Government's desire to protect
the public from serious risk from this group. However, we believe
it is wrong as a matter of principle that preventative detention
should be used for those who have not committed an offence.
We consider that, as a matter of principle,
detention should only be authorised for individuals with severe
personality disorder (SPD) either because they have committed
an offence, or because treatment of their psychopathic disorder
may alleviate their condition. The attached statement[2]
by Liberty and other organisations outlines our concerns.
The Government's proposals, however, seek to
detain individuals with SPD, who may be untreatable and
who may have committed no offence.
In its consultation paper the Government accepts
that there is a divergence in psychiatric opinion in the diagnosis
of SPD. Furthermore, risk assessment is a notoriously difficult
undertaking and there is no accurate way of determining dangerousness.
In our view these two matters are insufficiently certain to warrant
detention, potentially for a long period of time.
We also have concerns about the practical effects
of these proposals. SPD is as notoriously difficult to manage
and treat as it is to define, and the mismanagement of this condition
has given rise to critical reports. The most recent of these is
the Fallon Inquiry into Ashworth Hospital[3],
which found:
"insular, closed institutions whose predominantly
custodial and therapeutically pessimistic culture had isolated
them from the mainstream of forensic psychiatry [and where] recruitment
of adequate numbers of high quality managerial and clinical staff
had therefore proved almost impossible."
In light of the report's recommendation that
Ashworth Hospital be closed we have serious concerns about the
proper management and care of individuals under a new regime proposed
in the consultation.
Individuals with dangerous severe personality
disorder (DSPD) are already stigmatised and suffer discrimination[4].
We are concerned that these proposals will increase this, thus
deterring not only those with DSPD but other mentally vulnerable
people from seeking help and access to professionals.
It is highly likely that individuals subject
to these procedures will be detained for long periods. Such potential
infringements on personal liberty should only occur where there
is greater clarity regarding risk, diagnosis and treatment than
the Government's proposals can offer.
3 HUMAN RIGHTS
ACT IMPLICATIONS
The detention of an individual is provided for
under Article 5 of the European Convention on Human Rights (ECHR)[5].
The current relevant authorisation for the detention of individuals
with DSPD, the group at whom these proposals are aimed, is either
that they have committed an offence (Article 5(1) (c) or that
they are suffering from a mental illness (Article 5(1) (e)).
The Government proposals include both these
sets, in addition to those diagnosed as suffering from SPD who
are untreatable and therefore currently cannot be detained under
the Mental Health Acts and have committed no crime.
The preventative detention of an individual
with DSPD who has not committed an offence could not be authorised
under Article 5(1) (c)
There are difficulties in assessing whether
the detention of an individual with untreatable DSPD could be
authorised under Article 5(1) (e).
To date the European Court of Human Rights has
not been asked to consider the questions which these proposals
raise.
For detention to be authorised under Article
5(1) (e) there must be sufficient certainty in diagnosis for the
detention not to be arbitrary. The consultation paper acknowledges
the divergence in medical opinion in respect of SPD and the difficulties
with risk assessment. A court may say that there was sufficient
certainty in medical opinion to comply with Article 5 (1) (e)
in respect of medical certainty of the diagnosis of SPD.
However, stringent safeguards would need to
be in place for such a detention not to be arbitrary or disproportionate
under the European Convention on Human Rights. There would need
to be evidence beyond reasonable doubt both that the individual
was suffering from SPD and that they presented a serious
and immediate risk. Both of these would be highly problematic
to prove, bearing in mind the lack of medical consensus regarding
SPD, and the difficulties of risk assessment, especially where
there is no offence.
The European Court of Human Rights (ECtHR) has
not dealt specifically with the issue as to whether treatment
is a requirement of Article 5 (1) (e) and therefore whether it
can authorise the detention of those who are considered untreatable.
However, it does establish that those detained under Article 5
(1) (e) must be detained in a suitable therapeutic environment.Thus
detention of DSPD individuals under these proposals in a prison
environment would not comply.
ECHR jurisprudence is developing towards recognition
of a State's positive obligations to protect the lives of those
known to be at immediate serious risk. These rights have to be
balanced against an individual's Article 5(1) (e) rights. It is
possible that the ECtHR will recognise that in some circumstances
detention under Article 5(1) (e) can be authorised for an individual
with DSPD who can be shown to present a serious and immediate
risk to others.
However, the Government would have to demonstrate
a pressing social need, that such an individual could not be dealt
with by other means and that such measures were proportionate.
We question whether this could be shown, in light of the facts
of previous cases, and the lack of any similar measures in other
jurisdictions, either European or elsewhere.
2. THE PROPOSALS
The consultation paper suggests two possible
models for introducing the new powers of indeterminate detention
and the re-organisation of services for individuals with DSPD.
The first model (Option A) is based on the existing
legislative framework but with significant changes. The second
model (Option B) would create a separate system for the indeterminate
detention of people with DSPD.
2.1 Option A: maintaining the existing legislative
framework with modifications
In addition to amending the current criminal
justice legislation, Option A also proposes changes to the civil
admission procedures under the Mental Health Act 1983 ("the
Act"). One of the conditions which must be met under the
Act before a person diagnosed as suffering from psychopathic disorder
can be detained in hospital is that treatment "is likely
to alleviate or prevent a deterioration" of the person's
condition (the "treatability test"). The consultation
paper proposes that the Act should be amended so that:
— The "treatability test"
be removed from the conditions for the detention of DSPD individuals
under the Act;
— New powers for compulsory supervision
and recall of DSPD individuals follow discharge from detention
under civil proceedings.
Thus DSPD individuals could be detained whether
or not they are "treatable".
2.2 Option B: the creation of a separate system
Under this option new powers would be introduced
in both criminal and civil proceedings to provide for the indeterminate
detention of DSPD individuals, as well as powers for supervision
and recall following release from detention. Those subject to
the new orders would be detained in services managed separately
from mainstream prison and health service provision.
In addition to introducing extensive changes
to the criminal justice system Option B proposes:
- The introduction of the "DSPD order".
This order would be available on the basis of evidence that the
individual was suffering from a severe personality disorder and
as a consequence presented a serious risk to the public. The order
would be subject to appeal and periodic review.
- Compulsory assessment. The DSPD order could
only be made following a period of compulsory assessment in a
specialist facility.
Option B creates a new legal framework for the
detention of all dangerous severely personality disordered individuals,
which will be based on the risk that they present rather than
whether they have been convicted of an offence. This option would
also require the creation of new facilities separate from the
prison and health service.
2.3 The persons at whom the Government's proposals
are aimed.
The Government's proposals are directed towards
securing the detention of all individuals with DSPD, whether or
not they are treatable. As the Government has noted, most of these
individuals are already detained either in hospitals or prisons
and their detention is authorised either under Article 5(1)(a)
or 5(1)(e).
What the Government is seeking to achieve is
a mechanism for the detention of such persons who are currently
in the community or will at some point return to the community,
and who are deemed to be untreatable and thus not subject to detention
under the Mental Health Act 1983. It is possible to conceive of
a spectrum of individuals to whom such a new power might extend:
(a) A determinate sentence prisoner reaching
the end of his sentence who was convicted for an offence for which
the life sentence was not available;
(b) A determinate sentence prisoner convicted
of an offence for which a life sentence was available but where,
for one reason or another, a life sentence was not imposed;
(c) A person in the community who has a string
of convictions for violence or sexual offences, but is not currently
before the court, and who is not considered by psychiatrists who
have assessed him to be treatable.
(d) A person in the community who has not
been convicted of any serious offences and is not considered treatable.
3. CURRENT PROVISIONS
AUTHORISING THE
DETENTION OF
INDIVIDUALS
The main provision under the ECHR which authorises
the detention of individuals is Article 5, which states:
Everyone has the right to liberty and security
of the person. No one shall be deprived of his liberty save in
the following cases and in accordance with a procedure prescribed
by law:
(a) the lawful detention of a person after
conviction by a competent court;
(b) the lawful arrest or detention of a person
for non-compliance with the lawful order of a court in order to
secure the fulfilment of any obligation prescribed by law;
(c) the lawful arrest or detention of a person
effected for the purpose of bringing him before a competent legal
authority on reasonable suspicion of having committed an offence
or when reasonably considered necessary to prevent his committing
an offence or fleeing after having done so;
(d) the detention of a minor by lawful order
for the purpose of educational supervision or his lawful detention
for the purpose of bringing him before the competent legal authority;
(e) the lawful detention of persons for the prevention
of the spreading of infectious diseases, of persons of unsound
mind, alcoholics or drug addicts or vagrants;
(f) the lawful arrest or detention of a person
to prevent his effecting an unauthorised entry into the country
or of a person against what action is being taken with a view
to deportation or extradition.
Decisions by the ECtHR have established the
following principles;
Under the Convention the detention of any person
is permitted only if it falls within one of the exceptions contained
in Article 5(1). The Court has consistently held that those exceptions
call for a narrow interpretation, for example Engles v The
Netherlands 1 EHRR 647; Winterwerp v Netherlands (1979)
2 EHRR 387.
In Guzzardi v Italy 3 EHRR 367 the Court
stated in respect of 5(1)(c) that it is not directed towards a
policy of general prevention against an individual or a category
of individuals who present a danger on account of their countinuing
propensity to crime: it does no more than afford the contracting
States a means of preventing a concrete and specific offence.
It is a further fundamental Convention principle
that the detention must not be arbitrary. In any particular case,
it must actually be shown to serve the Article 5(1) purpose that
is relied upon: see eg Winterwerp v Netherlands (1979)
2 EHRR 387.
In Stanley Johnson v the UK (1997) the
Court stated:
(d) "the Court stresses, however, that
the lawfulness of the applicant's continued detention under domestic
law is not itself decisive. it must also be established that his
detention after 15 June was in comformity with the purpose of
Article 5(1), which is to prevent persons from being deprived
of their liberty in an arbitrary fashion"
3.1 Article 5(1) grounds applicable to untreatable
DSPD individuals
Article 5(1)(c) authorises, among other things,
the detention of an individual when it is reasonably considered
necessary to prevent his committing an offence. The provision
has been given a restrictive interpretation by the Court which
has held that that it is not directed towards a policy of general
prevention, directed against an individual or category of individuals
who present a danger on account of their continuing propensity
to crime. The provision affords a means of preventing a concrete
and specified offence: see eg Guzzardi v Italy 3 EHRR 367
above. Given this construction, the detention of untreatable DSPD
persons does not fall wihin the scope of Article 5(1)(c).
The only other provison which, on the face of
it, might encompass an order for the detention of untreatable
DSPDs is Article 5(1)(e) which authorises the detention of a person
of unsound mind. In respect of the DSPD at whom the Government's
proposals are aimed, two issues that must be satisfied before
Article 5(1)(e) can be said to authorise the detention of DSPD
persons:
(a) There must be sufficient certainty within
the psychiatric community as to whether the diagnosis is a proper
one so as to bring it within the meaning of "unsound mind".
(b) Article 5(1)(e) must be able to authorise
the detention of persons who, though of unsound mind, are not
treatable.
3.2 Psychiatric certainty in relation to the
diagnosis
The ECHR does not state what is meant by "persons
of unsound mind". The ECtHR has declined to define the term
on the ground that its meaning is continually evolving. As research
in psychiatry progresses, an increasing flexibility in treatment
is developing and society's attitudes to mental illness change
so that a greater understanding of the problems of mental patients
becomes more widespread (Winterwerp v Netherlands
(1979) 2 EHRR 387 (para 37)).
In Winterwerp the court noted that the
ECHR does not define "persons of unsound mind". While
commenting that a definitive definition cannot be given to this
term the Court noted that Article 5(1)(e):
"obviously cannot be taken as permitting
the detention of a person simply because his views or behaviour
deviate from the norms prevailing in a particular society."
The Court considered that to hold otherwise
would:
— be irreconcilable with the exhaustive
list of exceptions in aritcle 5(1)(e) which call for a narrow
interpretation;
— fail to conform with the object and
purpose of article 5(1)—to ensure that no one should be
dispossessed of his liberty in an arbitrary fashion;
— disregard the importance of the right
to liberty in a democratic society.
The Court held that for detention to be lawful
under Article 5(1)(e) the following conditions must be met (except
in an emergency):
— objective medical opinion to establish
a true mental disorder;
— the mental disorder must be of a
kind or degree warranting compulsory confinement;
— the validity of continued detention
depends on the persistency of the mental disorder;
The Court has given no definition of the term
"unsound mind" and in Winterwerp noted that this
is a term whose meaning is continually evolving as research in
psychiatry progresses.
In the consultation document the Government
expressly recognises that there is no consensus in the psychiatric
community on the nature of personality disorder, how it should
be managed or the extent of the role health professionals should
be expected to play in dealing with those personality disordered
people judged to be unlikely to respond to treatment (para 15,
p.7). Plainly, it is a matter for the psychiatric community to
determine whether there is a psychiatric condition that can be
properly labelled as severe personality disorder, that is whether
such a condition exists and whether a person who is suffering
from it can be described as a person of unsound mind. There is
some room for argument that at present there is insufficient agreement
within the community for the condition which is labelled SPD to
constitute unsoundness of mind. No challenge has ever been made
to this diagnosis on the ground that it does not constitute unsoundness
of mind. It may be that the condition would be treated as being
sufficiently recognised by the psychiatric community to bring
it within the scope of Article 5(1)(e). However this is a different
issue from whether any particular individual can be proved to
be suffering from SPD with a sufficient degree of certainty.
3.3 Article 5(1)(e) and the detention of untreatable
persons of unsound mind
There is no case law which expressly deals with
the question of whether the detention of persons of unsound mind
who are not treatable is permissible under Article 5(1)(e). In
Winterwerp, the Court held that the provision was not concerned
with the appropriateness of a particular form of treatment that
the patient was receiving. Such an issue would appear to fall
within Article 3.
In Ashingdane v United Kingdom (1985)
7 EHRR 528 the court accepted that there must be some relationship
between the grounds of detention and the place and conditions
of detention. In principle this should be in a clinic, hospital
or other appropriate institution. The court would not concern
itself with the suitability of treatment or conditions, providing
they were such as a accompany the reason for the detention.
It is clear, therefore, that persons who are
detained on grounds of mental disorder must be detained in an
institution which is appropriate for the provision of treatment
for that disorder. It is arguable that if the provision of treatment
is an integral and essential component of their detention, then
unless the person of unsound mind is, in principle, treatable
their detention is arbitrary. Further support for such a case
may be derived from the case of Guzzardi v Italy 3 EHRR
367 where it was held that:
"the reason why the Convention allows [persons
of unsound mind, alcoholics and drug addicts], all of whom are
socially maladjusted, to be deprived of their liberty is not only
that they have to be considered as occasionally dangerous for
public safety but also that their own interests may necessitate
their detention. One cannot therefore deduce from the fact that
Article 5 authorises the detention of vagrants that the same or
even stronger reasons apply to anyone who may be regarded as still
more dangerous" (para 98).
3.4 Protection of the public
Both Guzzardi and Ashingdane were
decided before there had been any significant development in Convention
jurisprudence of the concept of the State's positive obligations.
In our view, in assessing the scope of Article 5(1)(e) today the
Court would seek to strike a balance between the rights of the
person who is to be deprived of his liberty and the State's positive
obligations under the Convention to protect persons from an infringement
by others of their Convention rights. In relation to Article 2
(right to life) and Article 3 (torture etc), the Court has held
that the State may be obliged actively to take measures to prevent
the breach by one person of these rights as enjoyed by another.
The provision of remedies after the event is not sufficient, see
for example Osman v United Kingdom (1999) 1 FLR 198. In
Osman the Court held that such obligations arise where it can
be established that:
"the authorities knew or ought to have known
at the time of the existence of a real or immediate risk to the
life of an identified individual or individuals from the criminal
acts of a third party and that they failed to take measures within
the scope of their powers which, judged reasonably, might have
been expected to avoid that risk."
At present the detention of a DSPD individual
who has not committed an offence and is not deemed treatable would
not fall with the scope of the State's powers, and their failure
to detain would not amount to a violation under Article2.
However, the Court is bound to consider Articles
2 and 3 and ask itself what measures are available to a State
in the discharge of their duties, when assessing whether the scope
of Article 5(1)(e) is broad enough to authorise the detention
of untreatable DSPD persons. The point made by the Government
in the consultation paper is that in relation to the group of
300-600 persons identified, there are no other effective protective
measures that it is currently able to take.
This as a matter of factual evidence we would
dispute—the wide definition of treatment allows for the
detention of most SPD individuals, and a failure to detain has
often been a failure of the relevant services, linked to lack
of resources, rather than a shortcoming in the law. However, there
may be a few DSPD persons who have committed an offence and who
are not treatable, who currently cannot be detained.
It may be possible, although we think it unlikely,
to envisage a situation where there were near absolute certainty
as to the diagnosis of a particular individual and his propensity
for fatal violence, in which the State would be powerless to prevent
his going on to kill. In this unlikely situation the Court might
develop the jurisprudence under Article 5(1)(e) in a manner that
provides the State with the legal mechanisms necessary to protect
the interests of others under Articles 2 and 3. It is possible
therefore, that the detention of untreatable DSPD persons could
potentially fall within Article 5(1)(e).
3.5 Conclusion
We consider that if the Government were to introduce
legislation creating mechanisms to secure the detention of those
300-600 untreatable DSPD persons whom it is thought are currently
in the community, it would not automatically violate the Convention.
However, we discuss below a number of procedural safeguards that
any such mechanism must incorporate if compliance is to be assured.
4. PROCEDURAL
SAFEGUARDS
4.1 Medical evidence
The Government has already taken on board the
need to comply with Article 5(4). It is clear that any order for
the detention of DSPD persons would have to be made by a court.
However, it has said relatively little about the procedure to
be adopted and the evidence that must be adduced before such an
order can be made. These are both matters that directly engage
the Convention.
The ECtHR has held that, except in emergency
cases, the individual concerned should not be deprived of his
liberty unless he has reliably been shown to be of unsound mind.
"The very nature of what has to be established
before the competent national authority—that is, a true
mental disorder—calls for objective medical expertise. Further,
the mental disorder must be of a kind or degree warranting compulsory
confinement. What is more, the validity of continued confinement
depends upon the persistence of such disorder".
The Government proposes (at para 10, p.13) that
in the case of individuals who are not currently before the criminal
courts an order can only be made following referral for specialist
assessment. Such referrals will be made in civil proceedings,
eg by a medico-legal tribunal, and will be subject to appeal.
Referral will only be available on the basis of prior psychiatric
reports together with evidence of probable risk. Evidence of risk
will be provided from reports from the police, probation or prison
service. The Government envisages that over time such evidence
will most often come from the local multi-agency public protection
panels and risk panels. The proceedings envisaged are currently
subject to the ongoing review of the Mental Health Act.
Once a referral has been ordered assessment
will be undertaken over a period of several weeks, perhaps longer
in exceptional cases, by a multi-disciplinary team—including
professionals with specialist training drawn from the probation
health, prison and social services. It will need to include an
intensive process of systematic observation, formal assessment,
and history taking using a battery of standardised procedures
so that at the end of the period the team can produce a report
on whether the individual has a personality disorder. If the person
being assessed is found to be personality disordered, comments
can be included in the report on the nature and severity of the
disorder and the associated risk to the public. The assessment
report will inform the court's decisions on initial detention
made in either civil or criminal proceedings: see paras 38-9,
pp.18-19).
Medical evidence is required at two stages:
first, in order to found the basis for making an order for assessment.
In view of the preliminary and temporary nature of any detention
for the purposes of assessment we consider a scheme operating
under the Mental Health Act 1983 whereby detention may be based
upon the evidence of two registered medical practitioners, one
at least of whom is approved under s. 12 of that Act is adequate
to safeguard an individual's rights under 5(1)(e). This is particularly
so where the decision to make an order is placed with a medico-legal
tribunal where the medical member of the panel has a specialist
expertise in personality disorders.
However, when it comes to the medical evidence
necessary to support the making of an order, greater safeguards
are needed in view of the uncertainty as to diagnosis, together
with the indeterminate period of detention that will be authorised.
At this stage the person must be reliably shown to be suffering
from a personality disorder. It would appear that the Government
envisages that the report from the assessment centre will form
a sufficient evidential basis upon which to make the order.
Though the establishment of specialist assessment
centres is a welcome safeguard against mistaken diagnoses, it
is to be assumed that the psychiatrists working in those centres
and who will be responsible for the preparation of such reports
will be drawn from the psychiatric community where, currently,
no consensus about the existence of the disorder exists. It is
also to be assumed that the psychiatrists working in the centres
will be sympathetic to the view that the diagnosis is a medically
proper one. We consider that, at the very least, in order to safeguard
against the risk of mistaken diagnoses, there must be at least
one other independent report from a consultant forensic psychiatrist
with specialist expertise in personality disorders. Two such reports
would be preferable.
4.2 Burden and standard of proof
The burden must rest upon the State to prove
that the conditions justifying detention apply. The standard of
proof should in our view be the criminal standard to cater both
for the uncertainties that are associated with diagnosis and risk
assessment. The Government has not been forthcoming about the
subjective and uncertain nature of risk assessment. This is a
notoriously difficult exercise and not one which members of the
police, probation and prison service are necessarily any more
equipped to conduct than anyone else. What these services can
provide is relevant information about the individual concerned.
However, the interpretation of that information is a matter of
opinion and judgement. There is a great deal of room for error
and a high standard of proof will offer an important safeguard
against mistakes. Such a standard also adequately recognises the
draconian nature of the order, which potentially authorises life
long detention. That prospect is a very real one for DSPD persons
who are considered to be untreatable.
4.3 The test of dangerousness
Two very important issues that engage the ECHR
concept of proportionality have been given scant attention by
the Government. The first concerns the nature of the danger that
is capable of justifying the imposition of an order and the second,
the level of risk that the individual must be proven to present
of behaving in such a dangerous manner.
The principle of proportionality, a governing
principle in ECHR jurisprudence, requires that a fair balance
is struck between the protection of individual rights and the
interests of the community at large by securing that the restrictions
on individual rights are strictly proportionate to the legitimate
aim they pursue.
As indicated the Government's proposals are
drastic measures. They will authorise the lifelong detention of
persons who are not currently before the criminal court charged
with an offence, who may never have committed any serious offences
in the past, and who themselves will gain no benefit from their
detention. A very serious competing interest will be required
to justify as proportionate such an extreme interference with
the right to liberty.
We earlier indicated that the State is under
a positive obligation to safeguard the rights enjoyed by others
under Articles 2 and 3. To the extent that such an order were
to be aimed at preventing the commission of offences that would
involve the violation of such rights, we consider that it would
be found to be proportionate. Such offences are those which endanger
life or limb or involve the commission of serious sexual offences
and in respect of which life sentences may be imposed. We do not
consider that the measure would be found to be proportionate in
respect of lesser offences. Indeed the fact that the life sentence
is not available for any person convicted of such offences conclusively
demonstrates that the Government does not consider that such stringent
measures are required to protect the public against their commission.
The drastic nature of the measure also calls
for a high level of risk to be proven. In our view nothing less
than proof that the individual is highly likely, or virtually
certain, to commit such offences will justify the imposition of
the order on grounds of proportionality.
4.4 Place for detention
Wherever an individual's detention is based
solely upon the ground that he is suffering from a severe personality
disorder, he must be detained in an institution the object of
which is to provide treatment for that disorder (Ashingdane
v UK). The detention of such a person in a prison is not,
in our view, compatible with Article 5(1)(e). Under the Government's
second proposal the creation of such institutions is envisaged.
4.5 Reviews of detention
The Government recognises that Article 5(4)
of the ECHR requires that there be regular reviews by a court
of continued detention. The scope of such reviews is not closely
defined. However, the nature of Article 5(1)(e) detention requires
discharge if the reviewing court is satisfied either that the
individual is no longer suffering from SPD or, if he is so suffering,
he no longer meets the dangerousness test. For detention to be
lawful the review must be effective. There are fundamental difficulties
as to how this can happen, and in particular how a DSPD person
can "get better", if there are no formal treatment criteria.
It is not made clear how frequently such reviews
are to take place. In view of the susceptibility of the condition
to change over time reviews are required at least annually. The
review process under s. 28 of Crime (Sentences) Act 1997 in respect
of post-tariff discretionary lifers and HMP detainees, which provide
for reviews only once very two years, should not be used as a
model. Such an interval pays insufficient regard to the possibility
of change and carries with it the prospect of arbitrary detention.
During the review process the burden must remain
on the State to prove beyond reasonable doubt that the detained
person both continues to suffer a severe personality disorder
and that the risk of his committing offences dangerous to life
or limb, of serious sexual offences, remains very high.
The Government appears to envisage that discharge
will always be conditional in that DSPD persons will at all times
be subject to recall (p.17 para 24 (h)). In our view the Court
must have the power to order absolute discharge in the event that
the conditions of detention are no longer satisfied and it is
not appropriate for the individual to remain liable to recall.
This mirrors the powers that the Mental Health Review Tribunals
have under s. 73 of the Mental Health Act 1983. There is no basis
for distinguishing between the two situations. A power of absolute
discharge ensures that liability to recall does not persist when
court considers that such a power is arbitrary.
5. PRACTICAL
CONCERNS
Definition, detention and treatment of SPD individuals
has proved extremely problematic. There has been a string of inquiries
following concerns over the apparent mismanagement and breakdown
of services for this group. Most recently the Fallon Report was
extremely critical of Ashworth Hospital, especially regarding
the operation of the severe personality disorder ward.
The Fallon Inquiry noted that such institutions
were inclined to become closed and isolated, vulnerable to control
by often extremely dangerous and devious patients. Therapeutic
imput was minimal, the regime being predominately custodial. In
particular there were difficulties with recruitment of adequate
numbers of trained staff. At Ashworth the project for patients
with personality disorders has been underused for a year because
of the absence of an overseeing consultant psychiatrist. The Mental
Health Act Commission Biennial Report 1997-9 drew attention to
the difficulties of staffing the high security hospitals. We are
concerned that any institutions under these proposals would have
similar difficulties in attracting the appropriate calibre of
staff.
Individuals with mental health problems—and
in particular SPD patients—are already stigmatised within
society. We are concerned that individuals who these proposals
are aimed at will be labelled and further stigmatised. In particular
we are concerned that by virtue of being subject to these orders
they may attract extreme adverse publicity which in turn may lead
to vigilante type attacks, similar to those following the recent
release of Robert Oliver. The practical effect of this may make
their release into the community, should their condition warrant
it, difficult to achieve. This difficulty has been found recently
in America, where states which have detained offenders under draconian
sex offenders legislation passed in response to public demand
now wish to release offenders no longer considered to be a risk.
We are also concerned regarding the "chill
effect" these proposals may have in deterring not only those
suffering from SPD, but other individuals with mental health problems,
from seeking the professional help and intervention which may
prevent escalation of their condition if sought at an early stage.
Finally we note that the Government has expressed
its commitment to tackling all forms of discrimination. Mental
health sufferers, and in particular those with SPD, already face
severe discrimination in many areas. We consider these proposals
will increase this discrimination, both in how these groups are
perceived, and in the actual measures in place for them. Similar
draconian preventative powers are not being considered for other
dangerous groups of people, for example reckless drivers.
6. CONCLUSION
Liberty remains deeply concerned about the human
rights implications of the Government's proposals. We accept that
in theory the proposals could be compliant with the European Convention
on Human Rights, especially bearing in mind the potential development
of jurisprudence in respect of the State's positive obligations
to protect life under Article 2.
However, to be compliant the proposals would
have to be strictly proportionate and strict safeguards would
be essential. These would require the establishment beyond reasonable
doubt on objective evidence that an individual was suffering from
SPD and that they were an immediate and serious risk. Bearing
in mind the lack of certainty in psychiatric opinion and the degree
or difficulty there is with risk assessment, we consider this
would be difficult to establish—particularly in cases where
no serious offence has been committed.
Conversely we consider the consequences to an
individual of incorrect detention under these proposals to be
extremely serious. The experience of the operation of similar
provisions, albeit in respect of those convicted of serious offences,
in other jurisdictions, and the lessons from inquiries such as
the Fallon Inquiry, cause us concern as to how such a system would
work in practice, and the effect this would have on the rights
of the individuals detained under such provisions.
In theory we accept that these proposals—with
the necessary strict safeguards—may be in compliance with
the European Convention on Human Rights. In practice the risk
which they pose to the civil liberties of those they will affect
is too great for Liberty to support them.
October 1999
1 Liberty would like to thank Ed Fitzgerald QC, Ben
Emmerson and Phillippa Kaufmann, all of Doughty Street Chambers,
for their assistance in the preparation of this submission. Back
2
Not printed. Back
3
Report of the Committee of Inquiry into the Personality Disorder
Unit, Ashworth Special Hospital, Cm 4194-II. Back
4
The consultation paper defines individuals with Dangerous Severe
Personality Disorder (DSPD) as "people who have an identifiable
personality disorder to a severe degree, who pose a high risk
to other people because of serious anti-social behaviour resulting
from their disorder. It does not, by definition, include anybody
under the age of 18." Back
5
The European Convention on Human Rights has been incorporated
into domestic law by the Human Rights Act 1998, which comes into
effect on October 2 2000. Back
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