APPENDIX 9
Memorandum by the Law Society
INQUIRY INTO THE GOVERNMENT'S PROPOSALS FOR
MANAGING DANGEROUS PEOPLE WITH SEVERE PERSONALITY DISORDER
1. The Law Society welcomes the opportunity
to submit evidence to the Home Affairs Committee on the Government's
proposals for policy development concerning the management of
dangerous people with severe personality disorder. In recognition
of the complex nature of this issue, and of the fundamental implications
of the Government's proposals, the Home Office and Department
of Health have allowed a lengthy period for consultation and comment
following publication of the consultation paper in July 1999[28].
The Law Society is currently engaged in detailed discussions,
both within its own membership and with other professional organisations
involved in the care and treatment of people with mental health
problems, on the issues involved. It is too early in those discussions
for the Law Society to have reached any final conclusions. This
submission therefore is limited to raising some concerns and questions
about the Government's proposals.
2. This evidence has been prepared by the
Law Society's Mental Health and Disability Committee which is
concerned with legal issues affecting people with all forms of
mental disorder and incapacity. The Committee has particular concerns,
not only for the provision of legal advice and representation
of people with mental disorder to assist them to enforce their
rights and to protect their civil liberties, but also for their
care and treatment both within the health care services and in
the prison system. The Committee's comments are based on the experience
and observations of legal practitioners who provide advice and
representation for mentally disordered people, and who are closely
involved in working at the interface between the criminal justice
system and the health and social services.
3. The Law Society supports the Government's
concern to protect the public from the risk of harm from the small
number of people with severe personality disorder who display
dangerous behaviour. The Society also agrees that the current
system has failed to provide appropriate care and treatment for
people with a diagnosis of personality disorder, whether in hospital,
prison or in the community. We therefore welcome the Government's
new commitment to develop a range of therapies and different types
of interventions to be available in new specialist settings, while
also investing in research to underpin the development of new
service approaches and to evaluate their effectiveness. In its
response to the Reed Committee's report on psychopathic disorder[29]
in 1994, the Law Society endorsed the need for such an approach
and expressed dismay at the long delay in putting it into action.
4. The Law Society agrees that the relatively
small group of people with severe personality disorder who display
serious anti-social behaviour pose significant management problems.
The Government hopes to address these problems by changing the
law to provide powers for the indeterminate detention of people
who are deemed to fall within this category. However, the Society
questions whether "The Problem" set out in Chapter 2
of the consultation paper is really a problem of law, but rather
a problem of the "culture" which currently determines
the care, treatment and management of people with severe personality
disorder. It also questions whether changes in the law can enforce
the required changes in "culture".
5. Annex A of the consultation paper acknowledges
that the debate about how the law should deal with severe personality
disorder has been going on for over 200 years. The recommendations
of various reviews, Commissions and reports have rarely been acted
upon. The Government's current sense of urgency appears to have
been generated by the media coverage and public reaction to a
number of high profile cases, in particular those involving Michael
Stone, Sidney Cooke and Robert Oliver. However, such cases are
rare, and the public perception of the exent of the problem has
been influenced by misleading press reports. It must also be recognised
that not all people who commit serious violent or sexual offences
have a severe personality disorder, and would therefore not be
covered by the Government's proposals for indeterminate detention.
The questions must therefore be posed as to why people with severe
personality disorder should be singled out for detention on the
grounds of the risk they may pose, and not other groups of non-mentally
disordered people whose behaviour may also be dangerous, anti-social
or life-threatening. Measures for the protection of the public
should also take account of recidivism in other areas of criminal
law. It must also be recognised that public safety can never be
guaranteed.
6. The Home Affairs Committee has indicated
that the prime focus of its inquiry will be on the civil liberties
issues involved and in particular:
— how far extension of the powers to
detain persons who may have committed a criminal offence is justified,
and
— what accompanying safeguards are
needed to make such an extension acceptable.
The Law Society suggests it is important first
to consider the extent of the powers available under the existing
law and why they are considered to be insufficient.
POWERS AVAILABLE
UNDER THE
MENTAL HEALTH
ACT 1983
7. Annex B of the consultation paper sets
out the relevant aspects of the current law as they may apply
to people considered to have a severe personality disorder. In
particular, it sets out the grounds of readmission for treatment
in hosiptal (under section 3) or in criminal proceedings (under
section 37), as follows:
— the patient is suffering from one
or more of the four forms of mental disorder set out in Part I
of the Act, and
— the mental disorder must be of a
nature or degree which makes it appropriate for the patient to
receive medical treatment in hospital and for a patient suffering
from psychopathic disorder . . . that the medical treatment is
likely to alleviate or prevent a deterioration in his condition;
and
— it must be necessary for the health
or safety of the patient or for the protection of others that
he should receive this treatment, and it cannot be provided unless
he is detained.
It is therefore worrying that in the text of
the consultation document, the so-called "treatability"
test in the grounds for detention has been truncated and summarised
to suggest a requirement that the patient "is likely to benefit
from hospital treatment" (see paras 13 and 14(d)) and must
be discharged "if the disorder is no longer considered to
be treatable in hospital" (see para 19). These statements
give a misleading and inaccurate interpretation of the current
law.
8. In 1998, the House of Lords ruled that
treatment (as defined in section 145 of the Act) and by implication,
treatability should be interpreted very broadly to include in
the words of Lord Hope, "all manner of treatment . . . which
may extend from cure to containment", for example the provision
of nursing care, and that the treatability test was satisfied
in respect of a patient whose anger management was improved because
of the supervision he received within a structured environment[30].
Earlier cases had confirmed that it can be appropriate for a patient
to be detained in hospital for treatment when there is no evidence
that the treatment being provided is either alleviating or preventing
a deterioration of his or her condition. The test could therefore
be satisfied if the "treatment" is only that the patient
is nursed or cared for in conditions of high security (R v Mersey
MHRT ex p Dillion, Times, 13 April 1987) or in hospital (R v St
Thames MHRT ex p Ryan Times 30 June 1987).
9. It would therefore appear that it is
not the existence of the "treatability test" which places
restrictions on the admission and detention in hospital of people
with personality disorder, but rather the way in which it is interpreted
and applied. However, in another case in Scotland, the Court of
Appeal discharged a patient from detention, despite the risk of
persistent dangerous behaviour, on the grounds that no effective
treatment could be provided (Ruddle v Secretary of State for Scotland).
It appears that the failure of treatment provision was through
lack of resources, not through the patient's untreatability.
10. Amendments to the Mental Health Act
1983 implemented under the Crime (Sentences) Act 1997 made provision
for Hospital and Limitation Directions, a type of "hybrid
order" combining an order for hospital treatment with a sentence
of imprisonment for people with personality disorder convicted
of a criminal offence. In its response to the Reed Working Group's
report in 1994, the Law Society gave qualified support to the
proposal for a "hybrid order" for psychopathic disordered
offenders, where there was substantial doubt at the time of sentencing
whether hospital treatment would be beneficial. It was felt that
this option would be helpful for those defendants who have previously
been "written off" as untreatable and therefore inappropriately
placed in the prison system, only to pose a later risk to public
safety through being released with their condition untreated.
However, those for whom treatment proved unsuccessful, or who
refused to co-operate with the treatment plan could be transferred
back to prison to complete their sentence.
11. However, the provisions contained in
the Crime (Sentences) Act were not so much concerned with treatment
and treatability, but were instead intended to introduce a punitive
element into the court's sentencing powers in dealing with mentally
disordered offenders. The Law Society criticised the conflicting
and confusing messages conveyed to psychopathic disordered offenders
subject to a Hospital and Limitation Direction, through initially
being given treatment for their mental disorder and then being
punished for suffering from it. Yet having introduced these wide-ranging
powers the Government has not allowed sufficient time to test
their effectiveness before proposing yet more stringent powers
in the unattainable quest to eliminate risk to the public.
SENTENCING PROVISIONS
UNDER THE
CRIMINAL JUSTICE
SYSTEM
12. Annex B also summarises the sentencing
powers available to the criminal courts in imposing on offenders
who have committe serious violent or sexual crimes longer than
normal custodial sentences, discretionary life sentences, extended
sentences, post-release supervision and recall arrangements, and
sex offender orders. These power were strengthened under the Crime
(Sentences) Act 1997, which imposed automatic life sentences for
people convicted of a second serious violent or sexual offence
and mandatory prison sentences for certain persistent offenders.
13. In imposing longer than normal custodial
sentences, the courts are already entitled to take account of
evidence of unstable or aggressive behaviour[31]
and in relation to discretionary life sentences, the Court of
Appeal has held that the existence of a serious personality disorder
is sufficient evidence of unstable character or mental instability,
such that the person is likely to re-offend and present a risk
to the public[32].
14. It would therefore appear that wide-ranging
powers are already available, but are not used under current sentencing
practices. For example, the consultation paper records that the
courts give discretionary life sentences in less than 2 per cent
of cases where it is available (para 18). The Law Society is unaware
of any research into the reasons for this. This would also seem
to suggest that changes in the law to provide greater powers of
detention may not be the solution.
WHO ARE
THE GOVERNMENT'S
PROPOSALS AIMED
AT?
15. Given the existence of widespread powers
under the existing law for the detention and treatment of people
with personality disorder, further consideration must be given
to the particular group of people that the Government's proposals
are aimed at. It would appear that the Government is mainly concerned
with:
(a) prisoners who are released at the end
of a determinate sentence;
(b) patients in psychiatric hospital discharged
from detention under the MHA by the Responsible Medical Officer
or the MHRT;
(c) people in the community who have not
been detained under the Mental Health Act or come before the courts
in criminal proceedings.
Within the above groups, the problem remains
as to whether "severe personality disorder" can be accurately
diagnosed, and whether the risk posed by such people can be accurately
assessed in order to predict whether or not they are likely to
be "dangerous" and pose a grave risk to public safety.
16. The Law Society does not intend to repeat
the well-documented arguments about the controversial nature and
unreliability of the diagnosis of personality disorder. The Fallon
report[33]
documents the lack of consensus about the nature, diagnosis and
existence of personality disorder as a medical condition, the
validity of existing classifications, as well as the problems
caused by the circularity of the definition (a diagnosis of personality
disorder is based on evidence of violent behaviour which is caused
by the personality disorder) and by the common co-morbidity with
other types of mental disorder.
17. If people are to be deprived of their
liberty, whether temporarily or indefinitely, because they are
deemed to be in a particular category, that category must be clearly
defined in the statute. It is insufficient to define it by setting
out a range of characteristics, many of which may be found amongst
the general population. Without a clear statutory definition,
people who have been diagnosed as having a personality disorder
of some kind will be alarmed that the adjectives "severe"
and "dangerous" may be applied to their diagnosis, through
assessment procedures which are intrusive and demanding, resulting
in their being subject to indeterminate detention. When the Government's
proposals were first announced, solicitors reported being contacted
by clients who had been diagnosed as having a personality disorder,
seeking advice as to whether the new measures could be applied
to them. Some clients indicated they would rather withdraw from
contact with the health and social services than run the risk
of being detained indefinitely.
18. The Law Society is concerned that the
terminology "DSPD" (dangerous severe personality disorder)
is already entering common usage, thus giving credence to the
notion that such a condition exists and is readily identifiable.
The consultation paper itself admits that "the development
of robust methods of identifying and assessing risk will be crucial
to implementing the new arrangements" (para 11). Yet according
to Professor Jeremy Coid, even the most sophisticated methods
of risk assessment have only proved to be accurate in predicting
dangerous behaviour in seven out of 10 cases, and in six out of
10 predictions that a person with personality disorder is no longer
dangerous[34].
The Government must be satisfied that accurate and workable methods
of identifying and assessing risk are in place before introducing
legislation which depends for its effectiveness on their accuracy.
19. All of these uncertainties call into
question the accuracy of the Government's estimates for the numbers
of people who may fall into its rather vague definition (see paragraphs
3-4). Of particular concern are the 300-600 men (no information
is given as to the basis of this estimate) in the community who
might "potentially fall into the DSPD group" (paragraph
4).
THE GOVERNMENT'S
PROPOSALS
20. The consulation paper puts forward two
approaches to policy development (Options A and B in Part 3) and
requests comments on which is preferable, or if neither, then
what alternative model could be proposed. The Law Society is not
yet in a position to reach conclusions, but has some comments
and questions on the Government's proposed options.
21. Option A involves amendment to the Criminal
Justice Acts and the Mental Health Act combined with attempts
to change court sentencing practices to "facilitate greater
use of the discretionary life sentence, for example by improving
the quality of information available to the courts and extending
its availability to a wider range of offences" (paragraph
14 (a)), but no indication is given as to what type of offences
would be included. Option B proposes a "new legal framework"
involving broad new powers of indeterminate, but reviewable detention,
and the development of a new specialist service and facilities
for the assessment and containment of dangerous people with severe
personality disorder. Each of the Options involve changes in "criminal
justice legislation" and in "proceedings in civil legislation".
Criminal justice legislation
22. Common to both Options A and B is the
proposal to remove the power available to the courts in criminal
proceedings to make a Hospital Order under section 37 of the Mental
Health Act in cases where the offender is suffering from a personality
disorder (it must be assumed that this means any personality
disorder, since no reference is made to "severe" or
"dangerous"). This will prevent the court from considering
whether compulsory detention and medical treatment in hospital
under the Mental Health Act, with or without restrictions, may
be appropriate, and instead will require the court to impose a
sentence of imprisonment where someone with a personality disorder
(of any degree) is convicted of an imprisonable offence.
23. This proposal represents a significant
change in the policy set out by the previous Government[35],
and endorsed by the present Government, that "those suffering
from mental disorder who require specialist medical treatment
or social support should receive it from the health and social
services...". This was supported by the view that "Detention
in prison is likely to be damaging to the mental health of a mentally
disordered person and the Prison Service is not equipped to provide
treatment equivalent to that available in hospital..."[36].
No explanation is offered in the consultation paper for this significant
change of policy, nor are reasons given for denying offenders
with personality disorder the possiblity of treatment in hospital
for a condition which may have caused them to offend in the first
place.
24. Option A offers no alternative to a
Hospital Order but a prison sentence. Option B holds out the possiblity
of referral for assessment by the new specialist service, but
only for "DSPD individuals". Both Options allow continuation
of the Secretary of State's power to order transfer from prison
to hospital, but only in cases where the prisoner is found to
have another mental disorder. There are considerable delays
in arranging such transfers, often resulting in deterioration
of the prisoner's condition, making treatment more difficult and
perhaps less effective.
25. The Law Society sees little sense in
removing the Court's power to make a mental health disposal for
offenders with personality disorder. Under Option A, offenders
with personality disorder will be released into the community
at the end of their prison sentence with their condition untreated
(except through better services in prison, but then only for DSPD
individuals) with some supervision but limited provision for after-care
and support services on release.
26. A previous attempt was made under the
Crime (Sentences) Bill to abolish the court's power to make Hospital
Orders for all mentally disordered offenders in lieu of mandatory
prison sentences. However, as a result of concerns raised by the
Law Society and the Royal College of Psychiatrists, the Government
placed its own amendment to the Bill restoring the Court's flexibility
to make mental health disposals in all cases except those where
mandatory life sentences are imposed. The Government should be
asked to explain its reasons for seeking to deny this flexibilty
for offenders whose personality disorder may be neither severe
nor cause them to be dangerous.
Proceedings in civil legislation
27. Both Options include proposals for "proceedings
in civil legislation" yet it is unclear what is meant by
this heading. Under Option A this would appear to retain the same
administrative procedures for the civil admission of patients
to compulsory detention in hospital, but with the removal of the
current requirement that "medical treatment is likely to
alleviate or prevent a deterioration" in the patient's condition.
The need for this proposed change has already been discussed in
paras 7-9 above.
28. Of more serious concern is the proposal
under Option B that, in civil proceedings people with severe personality
disorder who have not been convicted of a criminal offence could
be made subject to indefinite detention under a DSPD order, based
on the risk they are deemed to present. This clearly raises questions
as to the nature of the proposed "civil proceedings",
the ability to test the evidence on which an assessment of risk
has been made, and the standard of proof to be imposed, none of
which are addressed in the consultation paper.
29. In criminal proceedings, the standard
of proof resulting in conviction (and possible subsequent loss
of liberty) is "beyond reasonable doubt". The standard
of proof in civil proceedings of "a balance of probability"
would appear insufficient when the result is indeterminate detention.
Yet as Professor Nigel Walker has pointed out ". . . when
the question is whether the personality disorder will cause an
individual to inflict serious harm on someone at sometime in the
future, the answer can never be "beyond reasonable doubt".
especially if the individual has not yet shown himself capable
of such harm.[37]
EUROPEAN CONVENTION
ON HUMAN
RIGHTS
30. Pending implementation of the Human
Rights Act 1998 in October 2000, Ministers must ensure that all
new and proposed legislation is compatible with the European Convention
on Human Rights (ECHR), and make a statement before Parliament
about compatibility of new legislation with the Convention rights[38].
Although the consultation paper states that the Government's proposals
are not in breach of the ECHR, this is far from clear. This will
depend partly on the grounds for deprivation of liberty, and whether
dentention follows conviction for a criminal offence (dealt with
under Article 5(1)(a) and Article 6) or a finding of unsound mind
on the basis of objective medical expertise (Article 5(1)(e)).
31. The summary in Annex B of the relevant
provisions of the ECHR makes only a fleeting reference to the
relevance of Article 3 (freedom from inhuman or degrading treatment
or punishment). While it was established in Winterwerp[39]
that detention under Article 5(1)(e) carries with it no implied
right to treatment, Article 3 imposes an obligation to provide
adequate medical treatment (including psychiatric care) for persons
under detention.
32. The summary also fails to mention the
relevance of the case of Aertz v Belgium[40],
where it was held that persons detained on grounds of unsoundness
of mind should be cared for in a therapeutic rather than punitive
environment. It is questionable whether specialist units within
prison grounds would meet this requirement.
33. It is argued in the consultation paper
that Article 5(4) (right to review by a court of the legality
of detention) would be satisfied by allowing rights of appeal
and periodic review of DSPD detentions. However no detail is given
as to how the appeal and review procedures will operate. Key questions
remain—about the criteria for detention and discharge from
detention; the length of period between reviews; whether the onus
of proof will rest on the detaining authority to establish the
need for detention (based on the assessment of risk) or on the
detained person to show that detention is no longer required;
and not least, the standard of proof to be applied (see para 29
above). It is difficult to see how people diagnosed as having
severe personality disorder, who have also been deemed to pose
a risk of dangerous behaviour, will ever be able to show they
no longer pose a threat to public safety, particularly as they
will be unable to rely on any clinical intervention to bring about
an improvement in their condition. Unless there is an effective
way to challenge a DSPD order, and a means of bringing it to an
end, compliance with Article 5(4) remains questionable. It is
assumed that there will be a right to publicly funded legal advice
and representation at appeal/review hearings (required under Article
6) even though no mention is made of this in the consultation
paper.
34. Both Options A and B propose new powers
for compulsory supervision and recall of DSPD individuals following
discharge from detention. If detention had been on grounds of
unsoundness of mind, this raises questions about the power to
recall people thought to pose a risk, but for whom there is no
longer evidence of the existence of mental disorder. The cases
referred to in Annex B deal with those convicted of imprisonable
offences, who are recalled to prison. No mention is made of the
case of Kay v United Kingdom, which held that there must be recent
evidence of mental disorder to warrant recall to hospital.[41].
A new specialist service
35. The Law Society welcomes the proposal
to develop a new specialist service with improved facilities for
the assessment and management of dangerous people with severe
personality disorder. However, it is important that the development
of new facilities for this small group of people should not result
in any reduction of services for people with other forms of mental
disorder.
36. The Society has some concerns that the
new specialist service is intended to be independent of both the
NHS and the prison service. It must be remembered that many of
the problems identified in the paper stem from the fact that people
with personality disorders often "fall through the gap"
in provision between the health and the prison services. Setting
up a third service, independent of the other two, provides another
"gap" through which people with severe personality disorder
may fall. Further details on the proposed arrangements may help
to alleviate our concerns.
37. The consultation paper stresses the
need to recruit an appropriate number of suitably qualified staff,
in order to "develop capacity to manage the full range of
security and management needs" (as well as provide a therapeutic
environment). However, it fails to mention that the professional
staff required would have to be recruited largely from the NHS
and the Prison Service, to the detriment of both. There are already
severe shortages of medical, nursing and other professional staff
in psychiatric hospitals, particularly the High Security hospitals.
The stressful and demanding nature of working with people with
severe personality disorder who display dangerous and violent
behaviour, is likely to increase when those people are aware that
their detention is likely to be "for life". It is therefore
difficult to see how the new service will be able to recruit and
maintain suitably qualified and experienced staff, in particular
to ensure continuity of care.
CIVIL LIBERTIES
38. It appears to the Law Society that,
in order to ensure that its proposals for the management of dangerous
people with severe personality disorder achieve the correct balance
between protecting the public and respecting the civil liberties
of the individuals involved, the Government must address the following
questions:
(i) Regardless of small numbers involved,
is it acceptable to deprive people of their liberty on the basis
of what they might do, rather than what they have done, unless
that is necessary for the purpose of providing treatment for mental
disorder?
(ii) If such deprivation of liberty is considered
acceptable, what clearly defined criteria should be used to determine
who these measures should be applied to, and what standard of
proof will be required?
(iii) If detention is to be imposed on people
on the basis of the risk they may present, what justification
is there to limit this only to people with a diagnosis of severe
personality disorder, if not to provide treatment for that disorder?
Why discriminate on the grounds of diagnosis and disability, rather
than on the basis of risk presented by all dangerous people, disordered
or not?
39. Further detail is needed to address
these key questions, which are crucial in deciding the best way
forward for the management of dangerous people with severe personality
disorder. The promise of better facilities in itself is insufficient.
40. The Law Society would welcome more detailed
information from the Government, in particular to address the
questions raised in this submission, to assist us to reach final
conclusions in responding to the consultation paper. We will continue
to work on our response, and would be pleased to send the final
version to the Home Affairs Committee once it has been approved
by the Society's Executive Committee and Council.
19 October 1999
28 Home Office and Department of Health, Managing
Dangerous People with Severe Personality Disorder: Proposals for
Policy Development, July 1999. Back
29
Reed Committee, Report of the Department of Health and Home Office
Working Group on Psychopathic Disorder (1994). Back
30
Reid v Secretary of State for Scotland (1998) 1 All ER 481. Back
31
Weeks v UK (1987) 10 EHRR 293. Back
32
Hatch (1997) 1 Cr App R 2.2. Back
33
Peter Fallon et al, Report of the Committee of Inquiry into the
Personality Disorder Unit, Ashworth Special Hospital (1999), TSO,
Chapter 8. Back
34
Presentation by Professor Jeremy Coid at the launch of the consultation
paper on 19 July 1999. Back
35
Home Office Circular 66/90. Back
36
Home Office/Department of Health Mentally Disordered Offenders:
Inter-Agency Working Guidance accompanying Home Office Circular
12/95. Back
37
Professor Nigel Walker "Legislating for DSPD", New Law
Journal, 13th August 1999. Back
38
Section 19, Human Rights Act 1998. Back
39
Winterwerp v The Netherlands [1979] 2 EHRR 387. Back
40
Aertz v Belgium [1998] EHRR 777. Back
41
Kay v United Kingdom [1998] 40 BMLR 20. Back
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