APPENDIX 4
Memorandum by Mind
INQUIRY INTO THE GOVERNMENT'S PROPOSALS FOR
MANAGING DANGEROUS PEOPLE WITH SEVERE PERSONALITY DISORDER
SUMMARY
1. It is important to be clear that the
majority of people with a diagnosis of personality disorder present
no risk to the public and should not be affected by these proposals.
2. Whilst Mind accepts that the current
system for dealing with those with severe personality disorder
is not working we believe that the biggest problem is unavailability
of services and insufficient help for individuals with a diagnosis
of personality disorder whether in the community, prison or hospital.
3. There are problems over the reliability
and validity of a diagnosis of personality disorder which is often
co-morbid with a mental illness diagnosis.
4. Risk assessment is not an exact science
and detention on the basis of future risk is bound to lead to
detention of some people who may not in fact have been violent.
Depending on the assessment tool used these numbers could be quite
considerable. Whilst recognising the need to minimise the risk
of serious crimes Mind does not believe that it is acceptable
to deprive many others of their liberty in order to achieve this
goal. As the Royal College of Psychiatrists have said it might
well be necessary to detain 50 people for several years in order
to prevent five or 10 serious crimes such as homicide.
5. It is important to understand that the
definition of "medical treatment" in the Mental Health
Act 1983 is very wide and can include anything which alleviates
or prevents a deterioration of the symptoms of a mental disorder.
There is increasing evidence of successful psychological interventions
with at least some people with a personality disorder diagnosis.
6. Although the Government state that their
proposals are not in breach of the European Convention on Human
Rights this issue is not as clear cut as their paper suggests.
7. Mind accepts that indeterminate reviewable
sentences may be appropriate for those who have committed serious
criminal offences involving violence to others and who are thought
likely, on the basis of robust assessment procedures, still to
present a high risk at the end of any determinate sentence. Similar
considerations however apply to other high risk groups such as
those abusing alcohol or drugs. Any such detention should be regularly
reviewed by the courts (after the tariff period) and extension
beyond the tariff should be conditional on the best available
treatment being offered to the person. Treatment would best be
provided in a non-prison environment although prison may be appropriate
for those refusing treatment or unable to benefit from it.
8. Non-offenders with a diagnosis of DSPD
should not be subject to detention except where comprehensive
multi-disciplinary risk assessment was carried out and treatment
was available and then only following a court order reviewable
every 12 months. Risk assessment alone is not a sufficient basis
for detention of this group. There should also be much better
availability of appropriate support and services in the community
for people with a diagnosis of personality disorder.
9. Under any system there must be flexibility
between types of institution particularly because of co-morbidity.
For this reason the possibility of immediate admission to hospital
of a convicted offender should remain available although guidance
may be issued on appropriate circumstances for use of such powers.
10. Careful consideration will need to be
given to the quality of the regimes and environment in institutions
where people may expect to spend many years and in some cases
the rest of their lives. As well as access to high quality treatment
proper provision will need to be made for the whole range of work,
educational and leisure opportunities and for enhancement of social
skills.
EVIDENCE IN
FULL
1. Mind is the leading mental health charity
in England and Wales. We work for a better life for everyone with
experience of mental distress. We have a network of 220 affiliated
local Mind associations across the two nations. In addition we
have networks of service users (Mindlink) and of people from black
and minority ethnic communities (Diverse Minds). All three of
these networks have contributed to this evidence.
Policy Issues
2. Before considering in detail the options
set out by the Government we think that it is important to address
a number of key policy issues. These are:
(a) Putting the issue in perspective.
(b) Are the Government correct to believe
that current policy is not working?
(c) Can the Government be satisfied that
"dangerous people with severe personality disorder"
can be reliably identified?
(d) Can the Government be satisfied that
adequate risk assessment tools are available?
(e) Are personality disorders treatable?
(f) Will the proposals comply with the requirements
of the European Convention on Human Rights?
Putting the issue in perspective
3. Research from North America and Germany
shows that between 10 per cent and 13 per cent of people in the
community have a personality disorder. About 2-3 per cent of the
community are estimated to have an antisocial personality disorder
according to the criteria in one of the standard diagnostic manuals.
Mind is pleased to note the acknowledgement on page 5 of the Government's
consultation paper that the majority of people with a diagnosis
of personality disorder "do not pose a risk to the public
and live reasonably ordered, crime free, lives". We are concerned
that focussing on diagnosis will stigmatise the large numbers
of people with that broad diagnosis most of whom present no risk
to anyone. On the day of publication of the consultation paper
Mind's advice line was flooded with calls from people either currently
or previously diagnosed as having a personality disorder who feared
that they were about to be locked up for life. We would urge all
those involved with this issue to continue to be clear about the
very small numbers who will be affected.
Is the current policy working?
4. Mind accepts that the current system
for dealing with those with severe personality disorder who present
a high risk to others is not working. We understand the Government's
concern to protect the public from dangerous behaviour by the
small number of people who pose a serious risk to others. In our
view however the biggest problem of the current system is lack
of appropriate services for individuals with a personality disorder
diagnosis whether in the community, prison or hospital.
5. In relation to high secure hospitals
there is compelling evidence from the Ashworth Inquiry[6]
of the lack of effective treatment even for those willing to co-operate.
Nine patients from the Personality Disorder Unit (PDU) at Ashworth
gave evidence to the Ashworth Inquiry. Two of them (patients B
and E) were generally positive about the treatment Ashworth had
offered them. The remaining seven were more critical. Patient
A (who had a history of manic depression but was currently diagnosed
as psychopathic) described his treatment as "minimal".
He pointed out the well-known reluctance of medium secure units
(MSUs) to take personality disordered patients which meant that
a move on to medium security was very difficult to arrange, leaving
him with no idea of when he might leave the hospital.
Patient C though that the lack of treatment
options in Ashworth left people deteriorating.
Patient D has been in the high secure system
since 1963. In his view he had received no active treatment whatsoever
since his transfer to Ashworth in 1981.
Patient F felt that he had benefited from his
treatment at Broadmoor but not at Ashworth where he said that
no full assessement had ever been carried out and he was not attending
any groups or receiving any psychology input.
Patient G had been at Ashworth since 1996. Since
admission he had received little active treatment, save for a
session with a psychologist once every week or so and psychosexual
treatment. In 1997 he had been recommended for a neuropsychological
assessment, cognitive skills work and further psychological interventions.
None of these had commenced and he had been told that there was
a two-year waiting list for the neuropsychological assessment.
He passed his time sleeping on the ward if he was not working.
6. The majority of those with severe personality
disorder are in prison rather than high secure hospitals. The
position there, as also documented in the Ashworth Inquiry report,
is even worse. The Inquiry team noted that:
(a) Services within the prison service for
individuals with personality disorder are very limited and in
no way meet the existing potential demand.
(b) The therapeutic centres within the prison
service have insufficient status and autonomy to do their job
properly.
(c) Whilst the Close Supervision Centre (CSC)
which they visited at Woodhill offered "a very useful safety
valve for the Prison System by taking the most disruptive prisoners
out of circulation"[7]
it was too early to comment on how effective its therapeutic side
would be. Mind is aware that there are concerns that the regime
there is actually damaging to those with mental health problems.
7. Within the community many people find
that the label "personality disorder" is used as a reason
for excluding them from services. We are aware for example that
in 1997 North Essex Health Authority stated that there would be
"No further inpatient treatment for Personality Disorder
unless ordered by Courts employing mental health legislation"
(a policy now no longer in force). Or again one of the Local Mind
Associations contributing to this response commented: "People
with (or diagnosed as having) personality disorders often find
it hard to get treatment . . . I know of two people who have had
to resort to legal action in order to get any appropriate help."
8. Epidemiological research conducted over
the past 20 years[8]
has shown that people with personality disorders (particularly
those with an antisocial personality disorder) 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
and other problems—in particular, substance abuse, eating
disorders, depression and anxiety.
— Worse outcome for the treatment of
mental and physical illness leading to high service utilisation
and the "revolving door phenomenon".
— High rates of family disharmony and
violence.
— High rates of unemployment and homelessness.
9. It is in the interests of both society
and people with personality disorder for better solutions to be
found to the whole range of these issues.
Can severe personality disorder be accurately
diagnosed?
"The diagnosis is unreliable, lacks validity
and is often merely used as a way of describing people whom the
doctor dislikes"[9]
10. Personality disorder is one of the most
controversial psychiatric diagnoses. Psychiatric manuals identify
a number of categories of personality disorder which cover a wide
range of attitudes and behaviour from ruthless exploitativeness
to fear of other people and social withdrawal. The American Psychiatric
Associaton's Diagnostic and Statistical Manual of Mental Disorders
(DSM-IV) distinguishes ten personality disorders including paranoid,
schizoid, borderline, histrionic, obsessive-compulsive and antisocial
personality disorder (APD). About 10 per cent of the general population
is thought to have a personality disorder[10].
This rises to 75 per cent of those on remand and 66 per cent of
sentenced male prisoners[11].
Clearly therefore personality disorder alone is not a sufficient
basis on which to found a system of preventive detention. It is
APD (also referred to as psychopathy—this is the term used
in the Mental Health Act 1983) which is most closely linked with
adult criminal behaviour and seems likely to be the main target
of the government's proposals. But there are also problems over
this definition. The diagnostic criteria in DSMIV are "a
pervasive pattern of disregard for and violation of the rights
of others occurring since the age of 15 years", as indicated
by three or more of failure to conform to social norms, deceitfulness,
impulsivity, irritability and aggressiveness, reckless disregard
for safety, consistent irresponsbility and lack of remorse. Many
of these are characteristics found in many members of the population
and assessment of them is hardly value-free.
11. As Moran points out, when using a diagnosis
one should be confident that a similarly competent doctor would
come to the same conclusion about the patient, ie that the diagnosis
can be made reliably. However, studies of the reliability of the
clinical assessment of personality disorder have shown that the
agreement between clinicians' diagnoses of personality disorder
is often no better than chance[12],
although use of a standardised instrument does improve the situation.
There is, however, poor agreement beween various instruments even
when they are measuring the same diagnostic criteria.
12. There is also evidence to suggest that
a personality disorder label is applied to patients whom doctors
dislike. In a study published in 1988[13]
a sample of psychiatrists was asked to read a case vignette and
indicate likely management and attitudes to the patient. Patients
given a previous diagnosis of personality disorder (PD) were seen
as more difficult and less deserving of care compared with control
subjects who were not. The PD cases were regarded as manipulative,
attention-seeking, annoying, and in control of their suicidal
urges and debts. The authors of the study concluded "that
psychiatrists form pejorative, judgmental, and rejecting attitudes
towards those who have been given a diagnosis of personality disorder."
13. There are also problems of circularity
in the definition. A person is labelled as having APD because
they engage in violent behaviour and the reason they engage in
violent behavour is because they have APD. There seems to be a
risk that the definition will be stretched to include whoever
the Government or public opinion thinks at any particular point
in time ought to be preventively detained. It is interesting that
in his February statement the Home Secretary claimed that those
with a propensity to commit the most serious sexual and violent
acts "are plainly suffering from what the public would understand
as the most serious personality disorder". The Mental Health
Act already leaves undefined the concept of mental illness and
the courts have held that the term should be interpreted in the
way that "ordinary sensible people" would interpret
it[14].
This has subsequently been described as "the-man-must-be-mad
test"[15].
It seems that this is now to be joined by the "person-must-be-personality-disordered
test"! If the diagnosis is merely to be stretched to cover
any dangerous person it seems necessary to detain, what does the
reference to "severe personality disorder" add in real
terms? If it is a real test then will there not be people who
present just as serious risk to the public who will remain at
large?
14. Finally, there is the issue of co-morbidity.
This is important because any proposals will need to ensure that
all treatment needs can be met under any new system. Professor
Blackburn in his evidence to the Ashworth Inquiry observed that
recent research, including his own, indicates that pure disorders
are very rare and co-morbidity is common. Many people with personality
disorders have other mental disorders as well and similarly many
of those in the mental illness category have concurring personality
disorders . . . . Coid (1992)[16],
by way of example, found that 80 per cent of legal psychopaths
had suffered from some form of psychiatric disorder during their
lives. Mbatia and Tyrer (1988)[17]
found that 56 per cent of a sample of mentally ill patients at
Rampton met the criteria for personality disorder.
Are there adequate procedures for assessing risk?
"Dangerousness is very difficult to predict.
It might well be necessary to detain 50 people for several years
in order to prevent five or 10 serious crimes such as homicide"
(Royal College of Psychiatrists 1999).
15. The government themselves admit (consultation
paper—page 13) that the "development of robust methods
for identifying and assessing risk will be crucial to implementing
the new arrangements". They propose an intensive multi-disciplinary
assessment process lasting several weeks which will be an improvement
on current procedures. Unfortunately no details of this proposed
process are given in the paper. Moreover the new intensive procedures
will only apply after a decision has been taken that a person
should be compulsorily detained for this purpose. It is worth
noting that the Govenment themselves accept (consultation paper—page
19 paragraph 41) that experience of a somewhat similar system
in the Netherlands suggests that the number of people referred
for assessment is about twice the number who are found to require
detention on a specialist order. In the case of those on trial
for serious offences the trigger for the initial assessement will
be preliminary reports plus the serious offending behaviour. Given
that they are likely to be remanded in custody in any event there
will be no additional major deprivation of liberty during the
assessment period. However, for non-offenders otherwise within
the community the six week assessment itself will be a major deprivation
of their civil rights. What robust procedures will be in place
to ensure that referral for assessment is justifiable in these
cases?
16. In considering this topic it is important
to guard against the danger of "hindsight bias".
"When looking back at the history of
someone who has committed a serious offence we selectively focus
on the factors that seem to have contributed to the outcome. This
can make an event that is statistically unlikely—an offence
with a low base rate—look highly probable or even inevitable.
This in turn can lead us to overestimate future dangerousness."[18]
17. Hard empirical data on the performance
of professional risk assessors does not inspire confidence. The
National Confidential Inquiry into Suicide and Homicide by People
with a Mental Illness aims to collect detailed clinical data on
people who die by suicide or commit homicide and who have been
in contact with mental health services and to make recommendations
on clinical practice and policy that will reduce the risk of suicide
and homicide by people under mental health care. One of the issues
dealt with in their comprehensive report issued earlier this year[19]
was the risk assessment at last contact of homicide cases who
had been in contact with services in the 12 months prior to the
homicide. None had been estimated to be at high risk of committing
violence. Only three patients (6 per cent) were estimated to be
at moderate risk of committing a violent act. Ninety four per
cent were assessed as either "no risk" or presenting
a low risk. Sixty one per cent of the professionals involved in
the last contact had received training in risk assessment. (page
74).
Again in a review of five major studies on risk
assessments, Monahan noted that:
Psychiatrists and psychologists are accurate
in no more than one out of three predictions of violent behaviour
over a several-year period among institutionalised populations
that had both committed violence in the past (and thus had high
base rates for it) and who were diagnosed as mentally ill[20]
18. There are two broad approaches to risk
assessment. The classic approach was a clinical one—prediction
derived from knowledge of the individual, the present circumstances
and what is known about their disorder. However, increasing prominence
is being given to the contribution actuarial or statistical techniques
can make to risk assessment. This approach is based on the assumption
that a person coming from a population in which a particular behaviour
is common is especially likely to exhibit that behaviour in future.
William Bingley has drawn attention to the ethical dilemmas such
an approach may pose particularly in relation to sexual or racial
stereotyping:
"The ethical dilemmas implicit within
such an approach are not too difficult to determine. For example,
it is said that between 40 and 50 per cent of violent crime in
the US is committed by black people, and 80 to 90 per cent by
males. As a consequence a practitioner might feel confident in
labelling a black man as more likely to be dangerous than a white
woman."[21]
19. Moreover, it is important to look at
the actual numbers affected by likely errors of prediction. At
first hearing an assessment tool said to be 90 or 95 per cent.
accurate (probably better than most existing tools could claim
to be) may sound reasonably good. But what does this really imply
in terms of false negatives (those wrongly assessed as low risk)
and false positives (those wrongly assessed as high risk)? The
ideal assessment is one with high sensitivty [those mentally ill
who are violent are correctly identified by the assessment] and
high specificity [those mentally ill who are not violent are also
correctly identified]. An assessment tool to predict future violence
with a sensitivity of 90 per cent. and specificity of 95 per cent.
applied to a population of 100 people which contains 10 people
who go on to be violent will correctly identify 9 of them, missing
one, and will incorrectly predict five non-violent individuals.
One can apply this model to the sort of population the Government
estimate will be affected by their proposals. Assuming 2000 individuals
20 per cent (400 of whom) will go on to commit further serious
violent offences (based on the recidivism rate in the Dutch TBS
system) a tool with identical sensitivity and specificity to the
example above will successfully identify 360 people who go on
to be violent, missing 40, and will incorrectly predict 100 non-violent
individuals. Is it reasonable to expect those 100 individuals
to pay such a high price?
20. It is also important to acknowledge
that the usefulness of any assessment tool may depend on the population
on which it is used. For example, the "violent mentally ill"
are far more common in a special hospital than in general practice
or even in general adult psychiatry. A tool which proved useful
in a special hospital setting may therefore not be appropriate
or accurate in a wider community setting. A single tool will not
suffice for the range of circumstances covered by the Government's
proposals.
21. Much of the work done on developing
risk assessment and risk management processes is about trying
to be more specific about exactly who is "safe" and
who is potentially dangerous. However, most practitioners would
claim that, at best, such processes might enable them to put mental
health service users into categories of higher and lower risk.
It does not allow for predicting with certainty in any individual
case. The key question is "how many false positives is society
prepared to accept in pursuit of a social goal?[22]
Treatability
22. The question of treatment is relevant
because of the requirement in sections 3 and 37 of the Mental
Health Act 1983 that for a person to be detained on grounds of
psychopathic disorder:
(a) it must be appropriate for him to receive
medical treatment in a hospital; and
(b) such treatment must be likely to alleviate
or prevent a deterioration of his condition.
One of the Government's complaints is that the
doctors reject people with a p.d. diagnosis on the grounds of
untreatability whereas they treat people with physical illnesses
who are untreatable in the sense of incurable. In considering
this issue however it is essential to bear in mind the wide meaning
given to "treatability" in section 145 of the Act which
includes "management" as well as "treatment"
in the narrow sense. Section 145 defines medical treatment as
including "nursing and also . . . care, habilitation and
rehabilitation under medical supervision." The interpretation
of treatment has also recently been considered by the House of
Lords in the case of Reid v Secretary of State for Scotland[23].
They pointed out the wide definition of treatment which could
cover treatment which alleviates or prevents a deterioration of
the symptoms of the mental disorder rather than the disorder itself.
It was therefore possible for a Tribunal to conclude that the
"treatability" test was satisfied in respect of a patient
whose anger management was improved because of the supervision
that he received within the structured setting of a State Hospital.
Per Lord Clyde at 505 "Views have evidently differed in the
past as to the extent to which [patients suffering from psychopathic
disorder] can benefit from medical treatment, although the hope
must continue to be that medical science will progress to a greater
understanding of the condition and the developing of ways of alleviating
or resolving it. Moreover, it may well be that generalisations
cannot readily be made in regard to this difficult condition.
While further study and research is continuing it may be the more
difficult to affirm with confidence that the conditon in any particular
case is truly unresponsive to treatment or that no alleviation
or stabilisation can be achieved in the secure environment of
a hospital."
23. There has recently been concern in Scotland
following the Court of Appeal ruling in the case of Noel Ruddle
who despite being an acknowledged danger to the public was discharged
on the grounds that he was untreatable. It should be pointed out
however that a treatment plan had been devised back in 1994 but
had never been implemented because of the chronic lack of resources
at the hospital. Nevertheless, the Mental Health (Public Safety
and Appeals) (Scotland) Act 1999 recently rushed through by the
Scottish Parliament allows a patient to continue to be detained
under the Mental Health (Scotland) Act 1984 on grounds of public
safety "whether for medical treatment or not". Such
a decision is made by the Sheriff initially with Appeal to the
Court of Session.
24. Mind does not accept that a diagnosis
of personality disorder does confer untreatability. Dialectical
behaviour therapy (DBT) is emerging as a potentially powerful
intervention particularly in relation to patients with a borderline
personality disorder[24].
There is also a long history of benefit from therapeutic communities
including Grendon Prison. There are therefore psychological interventions
which can benefit some people although treatment is likely to
be long-term and expensive. The label should not be used as a
means of writing people off—there should be rights to assessment,
treatment and support from an early stage. Where a person is detained
under the proposed powers they should be entitled to the best
available assistance to enable them to return to the community.
This requires ways to engage people and to develop the skills
they need to curb their anti-social behaviour.
The European Convention
25. The precise relevance of the European
Convention on Human Rights will depend partly on the grounds for
deprivation of liberty and whether detention follows conviction
(dealt with by Article 5(1)(a)) or a finding of unsound mind (Article
5(1)(e)). In relation to Article 5(1)(e) the leading case is Winterwerp
v Netherlands[25].
This does not import a requirement of treatability although there
has to be objective medical evidence of the person being of unsound
mind. However, failure to provide medical treatment could be a
breach of Article 3 (freedom from inhuman or degrading treatment
or punishment). Under this Article there is an obligation to provide
adequate medical treatment (including psychiatric care) for persons
in detention.
26. There also has to be a proper relationship
between the ground of detention relied on and the conditions of
detention. Thus in the case of detention of a person on grounds
of unsoundness of mind the environment has to be therapeutic rather
than punitive. This was considered in the case of Aerts v Belgium
(1998) EHRLR 777 which concerned the case of a man who was
detained following an assault with a hammer on his ex-wife. He
was assessed as needing help for his mental health problems and
was detained for several months in the psychiatric wing of a prison.
The court held unanimously that there had been a breach of Article
5(1)(e) of the Convention since the psychiatric wing was not an
appropriate therapeutic institution and indeed the treatment the
applicant had received there had done him harm. They ruled that
there should be some relationship between the ground of permitted
deprivation of liberty relied on and the place and conditions
of detention.
27. There may also be issues over recalling
to detention a person conditionally discharged who is thought
to pose a risk but who is not thought any longer to have a mental
disorder. The cases referred to in Annex B of the Government's
paper deal with those convicted of an imprisonable offence who
are recalled to prison after release on licence. But if a person
has not committed a criminal offence then their detention could
only be lawful if it met the criteria set out in the Winterwerp
case which include the persistency of a mental disorder whose
existence is supported by objective medical opinion.
The Government's proposals
28. The Government intend their proposals
to apply to all those who:
(a) have a diagnosis of severe personality
disorder; and
(b) pose a high risk to other people because
of serious anti-social behaviour resulting from their disorder.
regardless of whether they have committed any criminal
offence or whether there is thought to be any treatment available
which will lead to an improvement in their condition and the prospect
of release.
29. Mind accepts that where a person has
committed a serious criminal offence then it is appropriate for
future risk and the grounds for such risk to be considered in
sentencing. Provided that appropriate specialist facilities were
available to provide opportunities for change then we would not
object (subject to satisfactory risk assessment procedures and
appropriate safeguards) to a regime of indeterminate detention
followed by supervised conditional discharge for this group. We
fail to see however why such a regime should be applied only to
those with a particular psychiatric diagnosis rather than to all
who continue to present a high risk of re-offending. As far as
we are aware, there is no evidence that those with such a diagnosis
present a greater risk to the public than other repeat serious
offenders. On the contrary, there is evidence that one of the
highest risk factors is addiction to alcohol or drugs which, on
its own, would not meet the s.p.d. definition. This was raised
for example in the recent report of the National Confidential
Inquiry into Suicide and Homicide by People with Mental Illness.
They noted that "in homicides as a whole, as well as in the
Inquiry sample [homicides involving a person with a mental health
history], there was a striking prominence of alcohol and drug
misuse. Any pubic health strategy for preventing homicide would
have to focus on alcohol and drugs at least as much as on mental
illness."[26]
Focussing on diagnosis may also miss some high risk offenders—such
as possibly the paedophiles Robert Oliver or Sidney Cooke—who
do not meet the spd. criteria.
30. In relation to offenders we would want
to see the scheme limited to more serious offences. The somewhat
similar scheme in the Netherlands (known as TBS) is, we understand,
limited to those convicted of a crime which carries a minimum
sentence of four years prison or falls under a list of acts which
have a personal and public safety dimension.
31. In relation to non-offenders we have
grave doubts about the Government's proposals. Under the Government
scheme a person would be liable to civil detention on the basis
of a DSPD diagnosis where:
(a) A determinate prison sentence had come
to an end but the person was still thought to present a high risk.
(b) A person had been tried but acquitted
for an offence but was thought to present a high risk.
(c) A person had had no contact with the
criminal justice system but was nevertheless thought to present
a high risk.
Mind believes that people in these categories
should be entitled to be offered the opportunity for assistance
and support to enable them to live safely in the community. We
accept that people in this group can be difficult to work with
but this should not be used as an excuse for failing to provide
services. Under a social disability model "a person needs
help from services if they are unable to live up to the standards
they expect of themselves and that others expect of them irrespective
of their diagnosis . . . They may not benefit from medication,
but there are many other social and psychological supports and
interventions which can help"[27].
Where a person is not prepared to co-operate with treatment in
a wide sense and they are assessed as posing a high risk to others
then compulsory detention in an appropriate specialist facility
should only be possible where treatment to reduce the risk posed
was available. To do otherwise would in our view be discriminatory—since
such preventive detention would not apply to other groups who
posed as great if not a greater risk—and be open to abuse.
It seems to us that the Government have to choose between making
the proposals depend on a psychiatric diagnosis in which case
there has to be some reciprocal benefit of possible treatment
or on risk alone in which case a particular diagnosis becomes
irrelevant.
32. In all cases we would want the burden
of proof to rest on those wanting to detain and not on the person
themselves to prove lack of a diagnosis or of dangerousness.
33. In relation to the location of those
detained the Government put forward two options. Under both options
a convicted offender could no longer be given a hospital order.
Under Option A offenders would go to prison and non-offenders
to hospital. Under Option B both offenders and non-offenders would
go to a specialist facility.
34. Mind believes that it is important to
preserve maximum flexilibity in the system given that each person's
needs will be different and especially given the problem of co-morbidity.
There may be occasional cases where there is immediate need for
hospital treatment for a convicted offender—for example
a person who has an underlying personality disorder but at this
particular time is floridly psychotic. We would therefore like
to see the possibility of hospital orders or at least hospital
directions preserved for appropriate cases (presumably usually
with a restriction order attached). Guidelines could be issued
on the use of such orders to try and avoid inappropriate use.
35. We believe that for offenders there
should be flexibility between prison and a specialist treatment
facility. If the offender is willing to co-operate with treatment
then he should be given the opportunity to do so in an appropriate
environment. In most cases we do not believe that this can be
provided in a prison where overall priorities will be different.
If however a person either refuses to co-operate with treatment
or no known treatment is effective then they should be able to
be returned to prison.
36. For non-offenders there should be a
specialist treatment facility which should generally not mix those
with a primary diagnosis of personality disorder with those with
a primary diagnosis of mental illness. This is because of the
very different treatment needs of the two groups. However there
would need to be flexibility between the two because of the problem
of co-morbidity. As recommended by the Ashworth Inquiry we believe
that these specialist units should be small. The Inquiry recommended
units of 50 places divided up into wards or sub-units of eight
to 12 beds.
37. Safeguards will be required for orders
imposed on both offenders and non-offenders. In relation to offenders
the initial order will of course be imposed by a court in the
light of appropriate reports and an intensive assessment. There
will then need to be provision for regular review once the tariff
period of any sentence has passed. The person concerned should
have the right to be present and legally represented at such reviews
and to produce their own independent expert evidence.
38. For non-offenders the Government document
is very unclear about the process involved. Under the current
Mental Health Act an initial decision about civil detention is
an administrative one taken by an ASW and two doctors. The person
concerned then has the right to challenge their detention by an
application to a Mental Health Review Tribunal (MHRT). It can
often take 12 weeks for a hearing to take place. In our view this
procedure would be totally inappropriate for DSPD orders which
should only be able to be imposed by a court when the person concerned
is entitled to be represented and produce their own expert evidence.Non-means
tested legal aid should be available for such hearings as it is
for MHRTs.
39. Consideration will also need to be given
to the quality of regimes at units where people may generally
be expected to spend a considerable length of time and, in some
cases, the rest of their life. There will need to be facilities
for the treatment of physical health problems comparable to those
available on the NHS. It is also essential in our view that proper
provision is made for the whole range of work, educational and
leisure opportunities including physical exercise. Opportunities
also need to be available for personal and social skill development.
Steps will need to be taken to preserve contact with the outside
world to guard against institutionalisation.
Mind
October 1999
6 Fallon P et al (1999) Report of the Committee
of Inquiry into the Personality Disorder Unit, Ashworth Special
Hospital. Volume 1 London HMSO. Back
7
Op.cit paragraph 1.35.13. Back
8
Moran P (1999a) Antisocial Personality Disorder: an epidemiliogical
perspective. London: Gaskell. Back
9
Moran (1999b) Should Psychiatrists Treat Personality Disorder?
Institute of Psychiatry, London. Page 1. Back
10
Fallon P et al (1999) op. cit. Page 374. Back
11
Singleton N Meltzer H Gatward R with Coid J and Deasy D (1998)
Psychiatric morbidity among prisoners. Office of National Statistics
(The Stationery Office). Back
12
Mellsop G, Varghese FTN, Joshua S and Hicks A (1982) Reliability
of Axis II of DSM-III. American Journal of Psychiatry 139,
1360-1361. Back
13
Glyn Lewis and Louis Appleby "Personality disorder: The Patients
Psychiatrists Dislike" BJP (1998) 153, 44-49. Back
14
W v L [1974] QB 711, 719, CA. Back
15
Hoggett B (1996) Mental Health Law Sweet and Maxwell, London.
Page 32. Back
16
Coid J (1992) DSMIII Diagnosis of criminal psychopaths: a way
forward. Criminal Behaviour and Mental Health 2
78-94. Back
17
Mbatia J and Tyrer P (1988) Personality status of dangerous
patients in a special hospital in Tyrer, P (ed) Personality
disorders: diagnosis, management and course. Pp 105-111. Wright,
London. Back
18
Blom-Cooper L, Helly, H and Murphy E (1995) The Falling shadow:
One patient's mental health care 1978-1993 Duckworth, London. Back
19
National Confidential Inquiry into Suicide and Homicide by People
with Mental Illness (1999) Safer Services Department of
Health. Figure 35. Back
20
Monahan J (1981) Predicting Violent Behaviour Beverley
Hills, Sage pages 47-9. Back
21
Bingley, 1997 "Assessing Dangerousness: protecting the
interests of patients. British Journal Of Psychiatry 170,
Supplement 32 pages 28-29. Back
22
Bingley (1997) op cit, page 28. Back
23
[1999] 1 AllER 481. Back
24
Moran, P (1999b) op.cit page 10. Back
25
[1979] EHRR 2 page 387. Back
26
National Confidential Inquiry into Suicide and Homicide by People
with Mental Illness (1999) op. cit. page 80. Back
27
Repper J and Perkins R (1996) Working Alongside People with
Long Term Mental Health Problems London Chapman and Hall p
179. Back
| 
