TUESDAY 30 NOVEMBER 1999
_________
Members present:
Mr Robin Corbett, in the Chair
Mrs Janet Dean
Mr Martin Linton
Mr Marsha Singh
Mr Paul Stinchcombe
Mr David Winnick
_________
MEMORANDUM SUBMITTED BY THE HOME OFFICE
EXAMINATION OF WITNESSES
RT HON PAUL BOATENG, a Member of the House, (Minister of State), and
MR MIKE BOYLE, Head of Mental Health Unit, Home Office, examined.
Chairman
112. Good morning, Minister and Mr Boyle, welcome to this second
evidence session of managing dangerous people with severe personality
disorder. We really decided to do this, I suspect you know, largely because
of the important civil liberties issue but, of course, the medical and
resource issues. We are hoping to publish the report very early in the new
year in time for it to be taken into account when coming to a conclusion on
the consultation paper.
(Mr Boateng) Most welcome, Chairman.
Chairman: We are grateful to you for coming to help us. Mr Singh.
Mr Singh
113. Minister, if I could start with a hypothetical question - if
the Government's proposals had been in force since 1990 (and I am sure you
would have been happy to be Minister from 1990 until now) do you have any
estimate of how many individuals who have committed serious offences in the
last decade, of the nature we have been talking about, would not now be at
large?
(Mr Boateng) Mr Singh, our concern is to address a problem that has
certainly existed since 1990 of people who find themselves falling through the
fault lines of the existing system, in which they may find themselves having
completed a sentence and yet still present a real and present danger to the
public; or find themselves not deemed by the assessing psychiatrist as
treatable and, therefore, not capable of being detained under existing mental
health legislation, the 1983 Act; and, as a result, in both instances, be at
large, a risk to the public because they suffer from a severe personality
disorder, and a danger to themselves very often because they are in the grip
of a condition that not only causes them to be a risk to the public, but
causes them a degree of suffering which is not actually being attended to.
There will be a number of people in between 1990 (which is the date you chose)
and 1999 who have found themselves released in those circumstances and who are
currently at large; or who will have presented to psychiatry and to the
medical profession, either directly or indirectly through the criminal justice
system, and, as a result of the fact that the Mental Health Act does not apply
to them, will currently also be at large. We estimate that in all, at any one
time in the wider community, that there will be about 2,000 people. Would
that be right, Mr Boyle?
(Mr Boyle) Between 2,000 and 2,500.
(Mr Boateng) About 2,500 people. Between 2,000 and 2,500 people who
will fall in that category.
Mr Winnick
114. I am sorry to interrupt, Minister, but is it 2,000 or 2,500?
(Mr Boateng) Mr Winnick, we cannot know, because the state of science
is not sufficiently precise, and the state of our knowledge is not
sufficiently precise to enable us to make a judgment as to that. Certainly
in the 2,000 range. Those people will currently be at large in the community.
Some of them, as I say, will have come through the criminal justice system;
others will have failed to be picked up, either through the criminal justice
system or directly in accessing themselves to the health service.
Mr Singh
115. We do not know how many people would have been affected if
these proposals had been in force since 1990?
(Mr Boateng) We know, Mr Singh, that there are currently a number of
people - indeed, I will have written to a number of you when they presented
themselves in your constituencies - who, had these measures been in place,
subject to the diagnostic tools and the assessment tools we propose to have
been put in place, would not have been released from custody. I myself was
recently in the special unit in Durham and talked to officers there, and they
were able to identify to me one man shortly to be released who they were
absolutely convinced would offend again; was highly dangerous; who had been
in prison for a long time; whose condition remained as it was and who
presented a risk to the public. Under our proposals such a person would not
be released, having been through the various assessment and diagnostic
procedures which we envisage.
(Mr Boyle) Might I add a comment. Just for clarification of what the
Minister says, we ought to be clear that when he refers to about 2,500 in the
wider community, what he is meaning is the total population that we think we
are dealing with - of whom, as the consultation paper makes clear, we think
at any one time we now have about 1,400 in the sentenced male population in
prisons and 400 as restricted patients with a primary diagnosis of
psychopathic disorder in the hospital system. The number who are actually out
living at large in the community is in the order, we think, of something like
300-600, and we are doing further research to try to clarify those numbers
precisely. On your particular point, I think there is a technical issue
around the numbers involved here. We have done some modelling of the system;
it is a cost and flows model of the criminal justice system. For the
significant proportion of the target population we are concerned with, a
significant proportion currently receive determinate prison sentences and it
is possible to show on a broad population basis (but without reference to
specific individuals) what the rough impact of the introduction of these
proposals would be over a period of time. Of the proportion of our population
who are currently serving determinate sentences in prison it amounts to
something of the order of 1,000 or so out of the 1,400 who are in prison at
the moment. Since those people are all serving determinate sentences and,
from memory, the average sentence these people are getting at the moment is
of the order of five years, it is possible to say that over the period since
1990 that group would, by and large, have emerged from prison at the end of
a prison sentence; and, assuming that they have their propensity to re-offend,
there is a possibility they will be in the process of coming out into the
community, re-offending and going back in again. If the current proposals had
been in place in 1990 it is possible, I think, to say a fair proportion of
that group would still be in detention - subject, of course, to the more
effective treatment they would have been receiving which would have allowed
them to be discharged safely.
116. Is there any estimate of the number of serious offences that
have been committed by dangerous people with severe personality disorders in
recent years?
(Mr Boateng) It would depend how many years and the nature of the
offending. Given the numbers Mr Boyle has indicated to you - a thousand in
the course of the 1990-1999 period - if each one of them committed one offence
that would be a thousand offences. What we know is that a number of these
people commit multiple offences; and they are offences of a very grave and
very severe nature, with grave and severe consequences not simply for the
public at large but also for the individual in terms of the distress and
damage that they indicate the individuals themselves experience.
117. In our hearing last week we heard that there are a number of
new powers, or powers which are coming into effect gradually, which are now
available - for example, automatic life sentences under the Crime (Sentences)
Act 1997, a recent Court of Appeal ruling encouraging the greater use of
discretionary life sentences, the effects of the 1991 Criminal Justice Act and
the 1998 Crime and Disorder Act. What effects will these have, especially in
new automatic life sentences, on the number of people with severe personality
disorders leaving prison but still considered dangerous?
(Mr Boateng) Those are all measures that we have brought into effect
as a result of our determination to ensure that the system affords better
public protection. They will undoubtedly have, over a period of time, a
beneficial effect. They are dependent on the judiciary being prepared to
impose such sentences. There is, as you will be aware, Chairman, and has been
some degree of reluctance on the part of the judiciary to use the sentencing
powers at their disposal to the full; but they will make some difference,
undoubtedly. We have added to that, as you know, a range of measures that we
have taken ourselves better to support the thrust of policy to protect the
public from dangerous people: the multi-agency we have issued; the early
warning system when dangerous people are about to be released which, as you
know, we involve Members of Parliament with; the creation of a central support
group to assist it within the Home Office, drawing on the skills of the
Department of Health as well in order better to assist in particularly
intractable cases. We know about 20 cases a month are notified to the
Home Office under the new early warning system which we have established since
April. We believe the measures we propose are necessary, because we are
anxious to put in place a system that not only ensures we do not have to rely
on the vagaries and, at times, the lottery of the current system, not simply
in terms of the sentencing process but also in terms of the response of the
psychiatric profession to particular individuals as they are presented to
them, but also better to ensure that within a range of settings (both a prison
custodial setting and a hospital setting) we better address and manage the
problems that this particular group of people present; and that we improve the
service currently available to cause them, through various therapeutic
interventions, to address their offending behaviour and to prepare for a time
when it is appropriate they are released in circumstances that better protect
the public and secure their safe integration into the community. At the
moment their integration, whilst we do our best, is not safe; and we believe
it is necessary to ensure that they are only released when they are safe.
118. What are you doing, Minister, to encourage the courts to make
greater use of discretionary life sentences?
(Mr Boateng) We are engaged in a dialogue, obviously, with the
judiciary on these matters and with sentencing; but, of course, it is a matter
for judicial discretion and not a matter for the ministers; but the judiciary
are aware of the concerns of ministers and they are increasingly aware of the
concern of the wider public. They have these powers and it is expected that
they will use them.
119. Are there any examples of offences to which this question of
a life sentence might be extended?
(Mr Boateng) As you know, there is a fairly wide range already.
Undoubtedly indecent assault, in my experience, is an offence which can
manifest itself in a way that demonstrates a very wide breadth of severity;
and at the upper end, in my view, it would be appropriate to consider an
extension of indefinite detention - a life sentence.
120. How would you defend yourself against a charge that there are
sufficient existing powers to tackle this problem and that you are taking a
sledgehammer to crack a nut?
(Mr Boateng) They manifestly are not, because people are currently
being released who are a present danger to the public. Manifestly, also, they
are people who present themselves at police stations and will say, "I am going
to do something terrible. Help me". They are people who present themselves
at hospitals and say, "I am going to do something terrible. Help me".
Nothing within the existing law can be done, unless those people have a mental
condition that psychiatrists say is treatable, and that is not always the
case. Although we know, from the point of view of the European Convention on
Human Rights, (because the suggestion is sometimes made we are acting in a way
that might be contrary to the Convention), the test there under the Convention
is not treatability, it is whether or not there is a soundness of mind and a
danger to the public. These people manifestly have a condition that indicates
an unsound mind and we believe we have currently both the diagnostic tools to
demonstrate that and the assessment tools to demonstrate that they present a
sufficient degree of risk to the public as to justify their indefinite
detention.
Mr Stinchcombe
121. In one of the earlier answers you gave to Mr Singh you said
that some of these people could respond to therapeutic interventions so as to
be released when they were safe. If that is the case, why are they not
treatable and, therefore, why do existing powers not cover them?
(Mr Boateng) Mr Stinchcombe, that is a question I have often asked not
only of myself and officials, that is a question we have put on numerous
occasions to psychiatrists; but the current state of psychiatric opinion (and
it is something you will no doubt wish to address to others who give evidence
before you, or consider other evidence in the light of your proper concerns,
in my respectful submission) is by no means clear or uniform as to personality
disorder and the extent to which it may or may not be treatable. We know from
work that has been carried out in this country, in Canada, in Holland, in the
United States and in Germany, that they do respond to some therapeutic
intervention; that they do respond to some forms of behaviourial therapy in
a way that is positive. I have seen some of this myself at the Van Den Hoven
Clinic in Utrecht, which the Committee may well be aware of, where they deal
with some very, very dangerous and damaged people indeed; and where they do
manage, through a range of vigorous and focused interventions, to get some of
them to a state in which it is proper for them to be gradually, and subject
to extensive supervision, re-integrated within the community. Some however,
and they will tell you, can and will never be able to be released because they
will continue to present a threat to the public. They can be managed and
contained in a decent and therapeutic environment where their condition can
be properly and humanely addressed.
122. Is it the state of the law, so far as you have been advised,
that people who can respond to therapeutic intervention so as to become safe,
that they are normally included within the definition of treatable?
(Mr Boateng) It is a lottery. You can appear before some psychiatrists
who will find your condition treatable; another psychiatrist will say it is
not treatable. In one instance you can be held under the Mental Health Act,
in another you cannot. That is what is so profoundly unsatisfactory.
123. Why can we not simply amend existing legislation so as to
include within the definition of treatable those cases where the relevant
person would respond to therapeutic intervention? Would that not deal with
the problem?
(Mr Boateng) Because it is debatable in the minds of psychiatrists
whether they are or are not responding.
(Mr Boyle) I think in effect that is the approach psychiatrists take at
the moment. Their assessment when they are judging someone who they diagnose
as having a severe personality disorder, if their judgment is that that person
will respond to the sort of interventions they are able to offer based on the
current state of knowledge, those are the people they assess as being
treatable and who constitute a large part of the 400 or so group of the
population we are concerned with who are the restricted patient population in
secure hospitals.
124. Those persons to whom the Minister referred as being capable
of responding to therapeutic interventions are already detained, they are not
in the community - or are already capable of being detained?
(Mr Boateng) Some of those people will be identified by psychiatrists
at the outset as being capable of responding. Others, it will be said by
psychiatrists, are not capable of responding. In cases where people are held
in these managed environments - the Van Den Hoven Clinic, Moose Lake
Psychopathic Offenders Treatment Centre, the Mendota Mental Health Centre, our
own special hospitals in some instances - there is some evidence to show that
over a period of time there is some improvement. In others there is very
little or no improvement. The difficulty, with the current state of
psychiatry and the current state of the law, is in being able to safeguard the
interests of the public and to better protect the public when there will be
some people who will fall within those stools. They will not have committed
an offence, or they will have come to the end of a determinate sentence, not
be found to be treatable under the Mental Health Act and, as a result, be at
large. That is profoundly unsatisfactory.
(Mr Boyle) I think a very considerable proportion of the group of people
we are concerned with never actually get a formal psychiatric assessment of
any kind. They are regarded and treated as ordinary criminals, and simply go
into the Prison Service where they may be very disruptive, they may be
difficult to manage, and they may receive no effective treatment for their
condition because that condition is not recognised. They then emerge at the
end of the sentence and return to the community where they may present the
equivalent degree of danger that they ever did. Could I also add another
brief comment, which is that our system at the moment depends upon assessment
by psychiatrists, and psychiatrists themselves have said that they as a group
of people, as a professional body, do not currently feel equipped to provide
the kind of treatment that this group needs where they are treatable. Because
of that, the judgment as to an individual's treatability tends to vary as
between one psychiatrist and another. Also it is not a once-and-for-all
judgment. Issues of treatability for this group varies over time. What the
Government is concerned to do is to put in place a system which allows for the
assessment to be carried out at different periods of time, and allows for the
incorporation into the decision-making process of a whole range of other
professional opinions - psychologists, therapists of different kinds and so
on; so that that decision can be taken on a more rounded view than is
presently the case.
Chairman
125. Bearing in mind the recent House of Lords' judgment on
treatment, which is much wider and has got away from the narrow more medical
aspects of that, does that not really argue for a change in the definition of
treatability under the Mental Health Act? You are proposing to withdraw that
treatability test under the Mental Health Act, is that partly to recognise
what the House of Lords said, or for other reasons?
(Mr Boateng) Option A envisages removal of treatability, seeing that
as an obstacle to access to the system. The House of Lords' judgment
reflects, I believe, a growing concern amongst the public and the judiciary
about the extent to which the current culture within psychiatry can be an
obstacle to these people accessing appropriate interventions that are capable
of protecting the public. What we know, however, is that psychologists,
nurses, probation officers, the police, the Prison Service with their
expertise at managing a secure environment, also have a contribution to make
to creating the sort of environment, and delivering the sort of interventions
that are likely to have a positive and beneficial impact on this particular
group. So there is value and merit in an approach that is not solely led by
and dominated by psychiatry, because there is a strong element within
psychiatry who have washed their hands, as Mr Stinchcombe has alighted upon,
of this group completely.
Mr Stinchcombe
126. One final question in respect of this. Thus far, you seem to
be arguing for better practices within the existing law or a minor amendment
to the term "treatability". What I want to know is, of the 2,000-2,500
people, how many are estimated not to be treatable at all, to be completely
unresponsive to the kind of therapeutic intervention you talked about -
because those are clearly going to be caught anew by proposals we are putting
forward?
(Mr Boateng) Mr Boyle can deal with the figures. Could I just make the
point that these proposals are not just designed for that group - they
represent a new approach to the treatment and management of this relatively
small number of people: that puts public protection first; that is rooted in
a determination to develop the tools of diagnosis and risk assessment that
will enable us better to work with this group. It has got to be seen in its
entirety. It is a question of delivering a system of treatment, containment
and management of this group that is better able to protect the public;
because even at this time that number who are "treated" within the special
hospitals are ultimately released into the system, and a proportion of them
go on to offend again. It is not as if at the moment, either in the prison
system or in the special system, we are within the existing law and the
existing regimes able to protect the public to the degree which we as a
government seek to do. I would not want you to think this was just designed
to get a little bit better at managing a small proportion of an already small
proportion. It is designed to overhaul fundamentally the way in which we
protect the public from this group of people.
(Mr Boyle) In relation to the numbers point, as I mentioned a moment
ago, a significant proportion of the population we are concerned with never
undergo any formal assessment at all. If you take a snapshot of that group
now it is simply not possible to say how many of them would be judged to be
untreatable on present approaches if they were to be assessed. There is
evidence from overseas which shows that about 10-15 per cent. of the
population they have been concerned with have been initially assessed as
untreatable. Even there over time, for what can be a multitude of reasons,
there appears to be some gradual process of amelioration which takes place.
127. 10-15 per cent. of the 300 that are estimated to be in the
community is about 30-40 people?
(Mr Boyle) Yes. If that 10-15 per cent. is right then that would be
applying to the whole population we are concerned with, whether in detention
or not.
128. It means only 30-40 people in the community are at stake?
All the rest could be treated under a revamped system under existing laws?
(Mr Boyle) That may well be so. That is why, as the Minister says, a
significant part of the current proposals are not simply about providing
measures to authorise detention - and that is a very important part of it -
but it is about devising a range of new approaches to the therapeutic
intervention with this group to actually try to drive down as far as possible
that 10-15 per cent. If we could reduce it well below that level that is what
we are seeking to do, and to try to do so as quickly as possible.
Mr Linton
129. I am going to ask about Option A and Option B but before I do
that, could I be absolutely clear you are not saying the problem is that some
people are treatable and some are not, but that some psychiatrists think some
people are treatable and some are not? In other words, the problem is to some
extent a byproduct of professional disagreements within the psychiatric
profession?
(Mr Boateng) The situation would not have reached the degree of gravity
that it has if the psychiatric profession were uniform in their approach as
to the issue of treatability. The situation currently is that it remains a
lottery to a very large extent as to whether or not the psychiatrist who
assesses you will find that your condition is or is not treatable. I would
not want and I would be concerned if the view were to develop in the Committee
that all will be well if only we were able to knock the heads of the
psychiatric profession together. Things might be a bit better -----
Chairman
130. We should do that anyway, in other words.
(Mr Boateng) ----- but we have a problem in how you manage this
particular group in a way that enables you better to protect the public. We
have gaps in our capacity, which we are working on, to develop appropriate
diagnostic tools and tools of assessment. There are gaps in our knowledge as
to appropriate regimes for this particular group of individuals, and we are
working on all of this. Therefore, Mr Linton, when you look at Option A and
Option B, what we would be concerned to do, when we consider the inputs into
the consultative process, is how best to deliver a whole package, not simply
how best to ensure that people do not fall within the fault lines. Because
at the moment, neither in prisons nor in special hospitals, are we coping with
this particular group in a way that, in our view, best enables us to protect
the public.
Mr Linton
131. You have given us a very good question to ask the Royal
College of Psychiatrists when they come. Can I put to you something they
said, that some elements of these proposals so compromise civil rights in
favour of public safety that they become little more than a Public Order Act.
(Mr Boateng) I make no apology, the Government makes no apology, for
putting the protection of the public at the forefront of our concerns in this
area. It must be said, one of the reasons why we ourselves believe that the
multidisciplinary/multi-agency approach is a preferable one to one led by
psychiatry, is precisely because we can in that way ensure appropriate inputs
from police, probation and the Prison Service; because we do believe that this
is an issue of public protection. It is not simply a health issue. It is
right that other agencies, who have public protection at the forefront of
their concerns, should play a part in the development and management of a new
service.
132. One of the things Mind said to us last week was the really
fundamental problem was one of staffing; that there was a lack of people both
in prisons and in hospitals prepared to work with people who were severely
personality disordered. From your experience, and I believe you have visited
Brixton recently and you have experience of working in the Department of
Health, what would you say was the current shortfall of medical, nursing and
other professional staff working in this area in terms of resources?
(Mr Boateng) I would say there is a problem across mental health in
terms of staffing; but there is a particular problem in terms of the special
hospitals and the prison health care system, and for differing reasons. If
I can deal with special hospitals and the prison health care system first,
although there are differences between the two. In relation to the specials,
one of the problems has been that they have grown up in a culture of
professional isolation; and, therefore, working in a special hospital has
become, for very many people, something of a profession cul-de-sac, and it has
not been an environment that has enabled them to develop professionally. The
same can be said of the prison health care system. Within each of those
fields too there are real pressures on staff because of the demanding nature
of the particular group with whom they are working. These are deeply damaged,
distressed and, at times, dangerous, dangerous people. Within that group,
within that patient/prisoner group, those working with people who have severe
personality disorders face an additional obstacle because the nature of the
disorder is such that it makes people highly manipulative - indeed, that is
one of the symptoms, as it were - manipulative and divisive. A very difficult
group of people to work with. What our proposals seek to address, through a
multidisciplinary approach and also through the work we are doing both in
terms of internet links and in terms of wider professional links with Holland,
Canada, Germany and the United States, is to make it less of a professional
dead end; rather to build on the commitment and the expertise of those people
who do actively seek work in this area; because although it is demanding and
challenging, it is also both intellectually and professionally stimulating and
satisfying. The development of a third service will carry with it the
advantage of being able to draw not only on psychiatric and psychotherapeutic
skills, but also on social work, prison management and probation skills, and
get them to work in a way that is likely to prove much more attractive than
the existing service - either within a prison context or an NHS context, which
can be seen as somewhat of a dead end.
133. You say that Option B, the special units approach, would be
more attractive to professionals than Option A, which is a continuation of
hospitals and prisons?
(Mr Boateng) One of the strengths of Option B, and there are pros and
cons for each, is that it does enable people to work together in new ways,
within a new service developed incrementally, and potentially both in health
and prison sites - but that is one of the strengths.
(Mr Boyle) Might I just add a comment from a personal perspective, it is
in relation to the claimed unattractiveness of working with this group and the
difficulty of staffing any specialist facilities, whether under Option A or
Option B. During the consultation period I have been participating in quite
a number of conferences and seminars around the country and it has been really
quite striking the indications I have had from professions in all the clinical
disciplines who have come and said how gratified they are to see that this
initiative has been taken. They have expressed to me their frustration at
having to work within the context of two systems with their wider pressures,
where the specific needs of this particular group cannot be met; where the
systems are designed to respond to other groups and not this one; that the
prospect of working within specialist facilities designed to offer the best
possible management and treatment for this group is one that quite a number
of clinicians, psychologists, nurses and Prison Service staff have said to me
they find quite exciting and are very keen to work with. That said, under
either of the options, the Government is very clear on the need to proceed
carefully and slowly in terms of the roll-out of these facilities; because
this is a difficult to manage group and we need to be sure we are getting the
culture, the organisation and the procedures for their management right. So
we start slowly and move forward.
134. What about a financial comparison between the two options, is
there any kind of analysis on the capital and running costs between the two?
(Mr Boyle) It is not possible to say at this stage. We do have a
working group between ourselves, the Department of Health, the Prison Service
and the Treasury doing detailed work on the comparative costings. A huge
amount of the costings depends upon assumptions you make about the speed of
roll-out, the extent to which you assume you will be taking over existing
facilities, or you will be involved in new build. There is a whole range of
assumptions you have to make.
(Mr Boateng) The point I would stress is, whether it is Option A or
Option B, the development does need to be incremental. The fact also that one
is developing a new distinct service, which is Option B, should not of itself
lead one to believe that there will therefore be a need for new plant; any
more than the fact that in Option A you are working with two existing services
should lead you to believe there will not be a need for new plant. The
desire, in relation to both Option A and Option B, is to use existing
facilities better and to develop existing facilities. Neither rules in nor
rules out a new build.
135. There is very little flesh on the bones of Option B at the
moment. It is not clear to me, for instance, whether it would involve more
intensive treatment or less intensive treatment because some of these people
are supposed to be untreatable; and also to what extend Option B and the
special units would try to create an environment where these people can work
and have contact with the outside world. Some of them are not sick in the
normal sense of the word, and they might benefit from a lot of contact.
(Mr Boateng) I wonder, Chairman, if it would be appropriate for me to
commend to the Committee particularly highly sight of or some experience of,
either through correspondence, through the internet or through a visit, the
Van Den Hoven Clinic in Utrecht. I have visited a number of units and
institutes both in this country and elsewhere and there you have, I think, the
most helpful example of how the issues that Mr Linton touches upon are
addressed; because there you do have (and our service, whether Option A or
Option B, will need to embrace this) very important opportunities for work.
You have opportunities for living within therapeutic communities. You have
vigorous and focused monitoring, using CCTV and personnel, of all activity so
every moment of the day is strictly controlled, monitored and evaluated at the
end of each section of it. For very many of the people there, there may come
a time when there is gradual and very closely monitored integration and
opportunities for social integration with a wider world, including that of
work: but also for very many of them, there will never be a time when they
will be released into the wider world, and yet they do have a capacity for
social interaction and for work; because that is very important when you are
envisaging, as they are in the TPS system in Holland and as we would envisage
in our system, indefinite detention. If, as a democratic and civilised
society, you are to justify that sort of indefinite detention, then you do
have to be able to demonstrate - even for this dangerous and damaged group who
have committed, in some instances, the most appalling acts or present, in some
other cases, the most terrible danger - that you can create an environment in
which it is possible to lead a life which embraces opportunities for work and
social interaction.
Mr Linton: Thank you very much. I was about to ask about international
comparisons but you have answered that.
Chairman
136. Could I ask how much your company is spending on the research
set out in Annex D of the consultation document?
(Mr Boyle) The specific research programme which is being funded is
about a million. One thing I should add, that is only a very small part of
the research work nationally that is underway in this area. One of the
strands of activity we have been engaged on in recent months is to try to get
a better picture broadly of all the research that is being done. What is
emerging very clearly is that there are large numbers of professionals around
the criminal justice system and the health system who are engaged, if you
like, in part-time research - research which is very relevant to this area and
which, as long as we can capture the information that comes out of it, will
be enormously helpful but which has not been the subject of separate bids for
funding from a central source; and therefore the system simply has not
captured that up until now. We are looking to pull that together. I cannot
give you a figure for the total amount of centrally funded research because
that is work we are still engaged in doing. At the moment it is a million,
and we are engaged on trying to pull that together. Of course, there is
specific work being done within the Prison Service as part of its normal work
in terms of the development of the offending behaviour programmes, the
development of the new programmes to apply to people who score very highly on
one particular mechanism of assessing, the Hare psychotic checklist; where,
as part of the ordinary work of the service, there is a specific effort being
made to develop particular programmes for intervening more effectively with
this group.
(Mr Boateng) Chairman, on the issue of costs and staff development, to
go back to the point raised earlier, we are investing this year œ3 million in
the special hospitals specifically on staff development and training, and next
year that rises to œ6 million to improve both those aspects of the staffing
situation in the special hospitals. I stress that because, similarly in
relation to the Prison Service (and you asked about Brixton), we are taking
steps there to recruit new staff and to raise the level of staffing on the
wings; and that is something we will be having to replicate throughout the
Prison Service. They are costs that are currently being met and embraced
within existing budgets that arise from work in this area.
Mr Winnick
137. I want to deal, Minister, basically with safeguards. When
Liberty gave evidence last week I asked if they had a meeting with you, be it
you or one of the ministers in the Home Office, presumably yourself, and the
response from the Director was that there had been a debate. Do you recall
meeting with Liberty?
(Mr Boateng) I have met with the Director on numerous occasions.
Whenever I meet with him we have a vigorous debate.
138. You will, I am sure, appreciate the concern that people could
be contained without justification, or detained far longer than they should
be -so, as far as the standard of proof is concerned, would it be the same
standard of proof applying a) to the continued detention of those who have
completed determinate sentences, and b) the detention of those who have not
been convicted of any offence?
(Mr Boateng) My own view is that I cannot see any reason why we should
not follow the model that currently applies under the Mental Health Act.
Under the Act the question of whether or not an individual is suffering from
a mental disorder and is a serious risk to himself, herself or others depends
on the professional judgment of the clinical or, in this instance, the
multidisciplinary team involved, and an evaluation of that judgment by a
judicial or quasi-judicial body, a judge or the relevant Mental Health Act
tribunal. That seems to me to get the balance right. It would be important
throughout the whole process that there would be periodic review, which would
enable the individual to have their case tested in that way, and access to
independent expert opinion and legal advice, assistance and representation.
All of that we envisage as being included within the procedures we envisage
to underpin this proposal.
139. Minister, when the exchanges took place on the floor in the
Chamber when the Home Secretary made a statement some time ago I intervened
and said, "Is there not a possibility that some people under the proposed
regulations could be detained for years on end?" Bearing in mind what has
happened, say, in mental institutions in the past, if not now, where it has
been discovered that someone has been detained for 30 or 40 years, all their
adult life, should there not be some concern that that could happen?
(Mr Boateng) I do not believe it could or would happen. I do not
believe it could or would happen, one, because if you look at the past in
terms of the history of our mental institutions, the large Victorian asylums,
we know that people were put in those institutions because they offended
against the norms of the day in some way, they had a child out of wedlock or
whatever, and we know they became institutionalised. We envisage a rigorous
diagnostic and risk assessment system subject to appeal and subsequent review.
We know that at the severe end of personality disorder the risk assessment
tools and the accuracy of diagnostic assessment is, in fact, quite high. We
are not here operating in totally uncharted territory and we would have in
place all the safeguards I have outlined in order to make sure that there is
an appropriate review process. All of that in turn would be subject to the
usual judicial oversight through the prerogative writs. So it is a very
different system we are proposing from that which pertained in Victorian and
Edwardian England. If I may say so, Mr Winnick, you are absolutely right and
we all need to be vigilant to ensure that our proposals are ECHR compatible.
This was, after all, the Government which introduced the Human Rights Act. I
was co-author with my right hon. friend, the hon. Member for Blackburn, the
Home Secretary, in opposition of the paper which led to our incorporation of
the European Convention into our domestic law. So we are peculiarly and
particularly sensitive of the need to make sure that these proposals are in
conformity with ECHR. We are quite satisfied that they will be. Indeed, the
Dutch experience and the German experience, and the conditions and
circumstances in which people are held there, strengthens us in the view that
our proposals are consistent with ECHR.
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 cataleptological constitution and
behavioral 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 which again typically
traits 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 progress 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 certainly 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 Peter Barnes 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.
