APPENDIX 11
Memorandum by NACRO
MANAGING DANGEROUS PEOPLE WITH SEVERE PERSONALITY
DISORDER
1. In Risks and Rights (published last year),
NACRO proposed a new jurisdiction providing new powers for the
courts to detain indefinitely dangerous individuals with a psychopathic
disorder convicted of a serious violent or sexual offence.
2. In Risks and Rights, we made many of
the points which are included in the Government's consultation
paper and we therefore welcome many aspects of those proposals.
In our detailed, formal response, we shall be urging the development
of those aspects we considered essential to the new jurisdiction.
These include:
— constructive therapeutic and educational
regimes in the proposed new secure establishments;
— continuing well funded research into
what works in terms of therapeutic interventions;
— staffing arrangements that attract
able and committed psychiatrists and other professionals.
3. The key issue on which the consultation
document goes beyond the proposals in Risks and Rights is that
it proposes a framework which would deal with "all DSPD (dangerous
severely personality disordered) individuals based on the risk
they present and their therapeutic needs, rather than whether
they have been convicted of any offence". While a logical
rationale can be advanced for this proposal, on the grounds that
detention should be based on the risk which an individual presents
to others, rather than on whether or not he or she has been convicted
of an offence, there are important issues of principle and practice
raised by the proposal.
4. It could be argued that if the proposals
are limited to dealing with those who have been convicted of an
offence, dangerous people who do pose perhaps a very serious risk
to the public, but have not so far been convicted of any offence,
might be missed. There would be the likelihood that attention
would be paid mainly to those who had been convicted in relation
to a serious violent or sexual crime. The most robust recent research
(the MacArthur study in the US) shows that people with SPD tend
to follow a path where a less serious offence or offences are
the precursor to a very serious offence. However, it would be
unusual for a person who could reliably be diagnosed as dangerous
to have committed no offences.
5. We would expect the proposed new powers
to be available to the courts in respect of any relevant offence.
Clearly this has implications for the criteria that judges are
given and for their training in terms of deciding which cases
warrant an initial assessment and in the actual use of the powers
post-assessment.
6. There is a precedent, in terms of existing
mental health legislation, for detaining persons who have not
committed any offence on the grounds that they present a risk
to themselves or others. However, there are two problems with
this. First, there is a strong consensus that recognises that
current assessment tools for SPD produce valid and reliable diagnoses
in around 70 per cent of cases. While this might be considered
reasonable for such a complex condition and shows a steadily improving
trend, we could not endorse a system which, as well as missing
suitable candidates, would almost certainly result in a number
of people being wrongly detained.
7. In practice, it would almost certainly
be impossible for anyone to be diagnosed as SPD in the absence
of robust verifiable information about previous anti-social behaviour.
This is a requirement for the diagnosis of anti-social or dissocial
personality disorder in both the internationally accepted manuals
used by psychiatrists for diagnosing mental disorder. Previous
convictions are almost always the only legitimate evidence of
such behaviour. It would be difficult to predict dangerousness
reliably in the absence of previous offences against the person.
8. The second problem, is that the psychiatric
profession is divided over whether dealing with SPD individuals
is something that psychiatrists can and should do. On the one
hand are those who say there are no effective treatments. Those
who disagree point to therapies which work and to current research
which holds the promise of much more effective interventions.
Our view is that rehabilitative regimes should be applied to this
group. We would have more confidence if this were done in a separate
and new system of establishments than if it were done in the wings
of penal establishments.
9. Against this background, NACRO has adopted
what we consider to be the safest position at this time in terms
of public protection and in maintaining the civil liberties of
those individuals to whom the new powers may be applied. NACRO
recognises that a logical case can be advanced in theory for seeing
a previous conviction as being unnecessary for qualifying people
to be dealt with under the new arrangements. However, given the
concerns about current assessment tools and treatment options,
we think that it is right to retain this qualification in the
present circumstances—particularly as, in practice, those
who pose the greatest risk are likely to have come to notice for
relevant offences to which a new discretionary indeterminate sentence
could be applied.
10. We believe the emphasis for the proposed
new service must be on finding ways of identifying dangerous SPD
people in which we can all have very high confidence and on ensuring
that much more effective ways of responding constructively to
those people who are to be detained are found and put into practice.
October 1999
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