Examination of witnesses (Questions 140
- 164)
TUESDAY 30 NOVEMBER 1999
RT HON
PAUL BOATENG
and MR MIKE
BOYLE
140. Yes, well you would say that, would you
not? Obviously you would tell us that you are satisfied, it would
be an odd situation if you came and told us the opposite. Of course,
as far as mental institutions are concerned, some abuses have
come to light long after the Victorian and Edwardian periods,
as obviously you are aware. What I would like to ask you, Minister,
is how often will the review take place? If someone is detained
suffering from severe personality disorder, if there has been
no tribunal, the person has been detained for the reasons that
the Government has outlined and you have explained today, how
soon would the first review take place?
(Mr Boateng) I am going to ask Mr Boyle to draw on
his wider international experience in responding to your question
but let me just respond, if I may, in terms of how I perceive
it. It seems to me that we would need to look at periodic reviews
in any event, that is full reviews that will take place anyway,
but there also needs to be built into the system a capacity at
a shorter period for the individual to require a peer review.
Do you follow me? Those two things need to be working together
in order to produce the appropriate safeguards. Mr Boyle?
(Mr Boyle) I think what the Minister has said is very
much the key to what may be the solution in this area. The issue
as to frequency of formal reviews is really quite a difficult
one where there is a delicate balance to strike. In many respects
natural justice would appear to indicate that the more frequently
those reviews take place the better. We do have information also,
indications from those who have worked with this group, that very
often effective intervention with them to bring them to the point
where they may be safe to be discharged into the community can
take two years or more. Now, if you have a formal process of review
every year there is a real problem about getting people to engage
in a two year programme of therapeutic interventions because there
are clear indications under the present mental health system,
where people are entitled to apply to a mental health review tribunal
on an annual basis, that some individuals take it as a sign that
if they say "Yes, I will engage with treatment now",
that is tantamount to an admission that they are not going to
be safe to be discharged within two years and, therefore, they
need not bother making an application to a tribunal so they are
very reluctant to engage in two year processes of therapy. That
might argue for the longer period but there may well be a judgment
made that two years between reviews is actually rather longer
than is safe. The kind of process the Minister has outlined of
perhaps two years between large scale formal reviews with an interim
ability by the detainee to challenge the process might be something
we would be looking to think about, but this is one of the issues
that we are wanting to take professional advice on and trying
to get the balance between the competing interests.
141. And legal representation, if I can just
ask you, Minister, because obviously with your legal background
you will know even more than myself as a layman how important
all that is, will the person have legal representatives?
(Mr Boateng) My view is that where people are being
detained indefinitely under the procedures that we envisage here,
it would be important to ensure that there was access to legal
advice, assistance and representation. It is important also to
bear in mind, of course, that there will be a category of persons,
and is under the Dutch system, who may be detained because of
the nature of their offending for a period first that amounts
effectively to a sentence. Now if that is the case, clearly if
someone is being sentenced as a result of a crime, their need
to have access to a review with the regularity of somebody who
is being held indefinitely because of the risk they pose to the
public would vary, if you follow me. So it would always be important
to bear in mind that what triggers the right to regular review
and to legal advice and representation is the fact that you are
being held indefinitely under special procedures rather than the
fact that you are being detained. It is the indefinite nature
of the detention that triggers the particular response that we
envisage in terms of conformity with the European Convention of
Human Rights.
142. Liberty accepted that what is proposed
is not in defiance of the rulings of the European Court of Human
Rights. It was not their case that what is being proposed by the
British Government goes against the ECHR, but will a standard
of proof less than "beyond reasonable doubt" satisfy
the European Court of Human Rights?
(Mr Boateng) Yes, because it must be said, and we
are not here determining guilt or innocence, we are determining
issues in relation to soundness of mind and risk and, therefore,
that is why my response to the earlier question was that it is
our view that the current Mental Health Act approach would be
the appropriate one. That is completely in conformity with the
European Convention on Human Rights. Our advice has been that
the civil standard is, in fact, the adequate and appropriate one.
143. Can I ask you finally. There is a good
deal of concern, not simply from Liberty but, if you like, other
professional organisations concerned with those who are mentally
unwell and arrested and we will be hearing evidence very shortly.
Are the Government's proposals more or less set in concrete or
are you willing to reconsider some of the proposals in view of
the representations that may well be made to you? I happen to
believe that what the Government is doing may well be justified
bearing in mind all the circumstances and certain matters which
obviously cannot be mentioned because of sub judice.
(Mr Boateng) Quite so.
144. Nevertheless, Minister, I wonder how far
you and your colleagues are willing to look again at some proposals?
(Mr Boateng) Mr Winnick, this is a consultation document
but we have come to the conclusion that no change is not an option.
A number of those who expressed concerns in this area seem wedded
one way or the other to the continuance of the existing system
and are unwilling to recognise, as we have recognised, the need
to take action, whose foremost consideration is the protection
of the public and which involves indefinite detention until such
time as risk is assessed to be at such a level that release could
be justified. That is what a number of the opponents of these
measures balk at, they cannot accept that the protection of the
public should be the foremost consideration. They cannot accept
that indefinite detention, until such time as risk has been ameliorated
to a sufficient degree, is an acceptable approach. It is our view
that we have to put the public's protection at the heart of what
we do and that there has to be a system which in effect creates
indefinite detention until such time as risk has been ameliorated
to a degree that makes release, albeit itself release under close
supervision, safe. That is our view, Mr Winnick.
145. That does not mean, I take it, that you
are not willing to reconsider some aspects, although in outline
obviously you are going to continue?
(Mr Boateng) It is a consultation document but within
the context of Option A and Option B we believe that the existing
situation is simply not tenable and that we must have the power
to introduce a system that involves indefinite detention, management
of dangerous people in the grip of severe personality disorder,
in a way that enables us to address the risk they pose and to
hold them until such time as that risk has been reduced to an
acceptable level. That is our bottom line.
Chairman
146. Thank you. We are a bit pressed for time,
Minister. I just want to ask a few questions about assessment
of risk because it is really at the nub of these proposals. It
is quite interesting, as the Royal College of Nursing has pointed
out, there is no definition in the consultation paper of "severe
personality disorder". The nearest we come is a footnote
on page five to a definition of personality disorder. I am not
playing with words but words in this context do have particular
significance I think. It is interesting as well that in the document
there is no attempt at the definition of "dangerousness"
either, as the Royal College of Nursing points out. Why is that?
(Mr Boateng) With very good reason. There are no universally
agreed definitions in this area. We do not intend to tie ourselves
to any one of them. There are a number, which I will be happy
to draw to the Committee's attention for your consideration, and
they certainly have influenced us. The International Classification
of Diseases, which sees personality disorder in its various forms
and different types, which is one of the dangers in relation to
seeking to tie oneself down to a particular definition, refers
to it as embracing "a severe disturbance in the characterological
constitution and behavioural tendencies of the individuals usually
involving several areas of personality and nearly always associated
with considerable personal and social disruption." Then the
Mental Health Act of 1983 refers to psychopathic disorder as being
"a persistent disorder or a disability of the mind (whether
or not including significant impairment of intelligence which
results in abnormally aggressive or seriously irresponsible conduct
on the part of the person concerned)". Then it is helpful
to look at anti-social personality disorder as—and this
again is the International Classification of Diseases -"indicating
a gross disparity between behaviour and the prevailing social
norms".
147. Is that the same as severe personality
disorder?
(Mr Boateng) Well, it is not the same as severe personality
disorder. It is a branch of and associated with that condition,
typical traits of which are callous unconcern for the feelings
of others, gross and persistent irresponsibility, very low thresholds
for frustration and aggression, an incapacity to experience guilt
and profit from experience, particularly punishment, and a marked
proneness to blame others for the behaviour that has brought the
patient into conflict with society. Now all of those are of some
assistance. They are not of themselves definitive. They are a
wide range of personality disorders. These particular proposals
are only geared towards severe personality disorders. Not all
personality disordered people by any means are dangerous.
148. That is right.
(Mr Boateng) It is important to stress that. We have
in our evidence to you, Chairman, given you two specific case
studies which you may find of assistance but I would not pretend
for one moment that anyone has all the answers in relation to
this particular condition; we do not.
149. Have we not really ended up from the treatability
point where you want to remove treatability because apparently
no two psychiatrists can agree on what it is, rather like economists
I suppose in that sense, for reasons which everybody understands,
and yet you are saying that the definition in this area of the
actual condition itself is open to a range of definitions?
(Mr Boateng) It is because the psychiatric profession
cannot agree a definition. The state of knowledge is imperfect.
There are various tools, there are various risk indicators.
150. Yes.
(Mr Boateng) If it would be of assistance Mr Boyle
will take you through those.
151. There is a very useful checklist in that
very helpful evidence.
(Mr Boateng) Yes.
Mr Winnick
152. Being unmarried is that also a factor?
(Mr Boateng) No.
153. It is mentioned as one of the factors.
(Mr Boateng) It is a factor that is included in the
psychopathy check list, if my memory serves me well. Is it that
one? It is there because it is believed that a permanent relationship—
I know this is something which has exercised the Committee's mind
so far.
Chairman
154. It is loneliness really I think you mean.
(Mr Boateng) It has some assistance in giving people
the sorts of ties and relationships with others—
Mr Winnick
155. It could be put more precisely than "unmarried".
(Mr Boateng) Mr Winnick, you would not be susceptible
to that particular tick anyway.
156. No, I am divorced as a matter of fact.
(Mr Boateng) That is an example, the example you have
taken from that list, of a range of tools that are used as a means
of assisting assessment.
Chairman
157. All these definitions that are available
around this area, and I think we understand the point you make
about them, they really do underline the critical importance of
that initial assessment, but really the assessments through the
whole period of the proposed detention and not least when somebody
believes that he or she is ready now to be released, absolutely
critical. So the definitions are not written down?
(Mr Boateng) They are not fixed.
158. The point I want to make, Mr Boateng, is
this, does that not therefore cry out for some truly independent
psychiatric assessment? Certainly during the review periods, if
somebody is in an institution and detained, he or she is going
to learn the language and the behaviour, as people do in these
circumstances, in the way they present themselves and what earns
good points and gets bad ones, as it were. There is some risk,
to put it no higher, that the psychiatrists and others involved
will in a sense be over-familiar with an individual. Can you tell
us whether there will be access there for truly independent people
to come in?
(Mr Boateng) If I may say so, Chairman, that is a
very important point which is why when this process is undertaken
in Holland—and we had sight of this at the Pieter Baan Centre
again in Utrecht—the initial assessment, which lasts six
or seven weeks, is a multi-disciplinary one. Their work is in
turn—and occurs over a period of time in a variety of secure
settings within the centre—then assessed by somebody who
has not met the individual concerned.
159. I think you have persuaded us, Minister,
that we ought to go to Utrecht. I do not know whether you have
got a short background note.
(Mr Boateng) Certainly we will be happy to provide
one to the Committee.
160. That is very kind, thank you.
(Mr Boateng) It was extremely helpful certainly to
us. There is a system of checking the checklist to make sure that
it is an objective view, an objective assessment, and one that
draws on a variety of skills and disciplines. In my view, speaking
as somebody who before this current incarnation was a practising
barrister, what I always found extremely unsatisfactory was that
we were obliged in a court room context, when we were looking
at issues of treatability, to rely usually on reports and assessments
that had come from a two and a half hour, three hour interview,
if you were lucky, with a couple of psychiatrists. On the basis
of that, never mind the lottery in terms of the particular approach
of the psychiatrists, you were determining whether or not they
should go to a special hospital or a prison. What is attractive
about the methods that have been developed under the specialised
TBS system is that it involves a lengthy diagnosis, one which
is multi-disciplinary and one which is checked objectively. I
do commend that approach. That is the approach we will be seeking.
161. Finally, Mr Boateng, can I just ask you,
your helpful memo explains the three groups working on the development
of the assessment tool.
(Mr Boateng) Yes.
162. Have you got some proposals to trial that,
to test its validity before it is applied in the circumstances
which are envisaged in this consultation document?
(Mr Boyle) We will be intending to do that. We are
having discussions with the prison service to see if it is possible
to identify a particular venue where we could trial that.
163. Presumably that will entail also outside
external evaluation?
(Mr Boyle) Yes. That must be so.
164. I am most grateful to you, Mr Boateng,
and Mr Boyle, for your help.
(Mr Boateng) Thank you.
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