12.1 Our Committee began its work after the decision by the House of Lords in Reid v Secretary of State for Scotland29 and in the wake of public concern about a number of cases in which the detention of serious offenders designated as 'personality disordered' was an issue. Some months after we began our work the sheriff's decision in Ruddle v Secretary of State for Scotland30 was delivered. This was followed by the Scottish Parliament's enactment of emergency legislation in the form of the Mental Health (Public Safety and Appeals) (Scotland) Act 1999.
Mental Health (Public Safety and Appeals) (Scotland) Act 1999
12.2 When the Mental Health (Public Safety and Appeals) (Scotland) Act 1999 was debated in the Scottish Parliament, Scottish Ministers stated their intention to review the legislation in light of our recommendations and those of the Millan Committee. We have therefore given particular consideration to restricted patients now at the State Hospital who might reasonably be regarded as high risk offenders with a mental disorder.
12.3 We recognise that there may be some patients (no specific number or details have been established) at the State Hospital who, as a result of the 1999 Act, remain detained even though the mental disorder from which they suffer may not be one that is appropriate for treatment in a hospital. Their situation, as a consequence of the 1999 Act, is that they are detained on the basis of the need to protect the public from serious harm. After lengthy consideration, we do not feel there is any recommendation we can reasonably make that would alter the existing situation for these patients. The compulsory transfer of this group of patients to prison is not permissible by law nor would it be proper on civil rights grounds; we discuss this further below. Some, if not all, of the patients to whom we refer may have a personality disorder. Our Committee hopes that effective treatments will develop for such patients but we cannot make any recommendation in this regard.
12.4 We recognise that the key factor preventing the transfer of these patients to less secure facilities within health services, or their conditional discharge to the community, is the perceived level of risk they present for management in less secure settings. While we are unable to make any recommendation with regard to the situation of these patients, we note that the assessment of risk and its management are the crucial factors in determining their continued detention and in assessing their suitability for transfer to less secure facilities. It is therefore essential that the assessment of that risk is carried out to the highest standards.
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RECOMMENDATION 51 For patients whose continued detention at the State Hospital arises solely from the need to protect the public from serious harm, the procedures for assessing the risk they present should be consistent with those recommended elsewhere in this report for the assessment and management of risk. |
Detainees with personality disorder: alternative approaches
12.5 We considered suggestions put to us, and examples from other jurisdictions, of alternative approaches to the problems presented by detainees with personality disorders deemed untreatable (or no longer requiring treatment) yet who are considered to present a serious risk to public safety. The issue was at the heart of the cases of Reid and Ruddle (cited above). Somewhat similar issues arise in relation to the release from prison of prisoners at the expiry of their sentence, who are, commonly described as having personality disorders, and who are considered to present a serious risk to public safety.
12.6 In relation to State Hospital patients it was suggested to us by some agencies that the provisions of the Mental Health (Public Safety and Appeals) (Scotland) Act 1999 be replaced by a procedure that would enable patients who had originally received a hospital order, later found to be inappropriate, to be returned to court in order that a prison sentence may be imposed. The perceived advantage of this approach is that it would remove the element of non-judicial preventive detention that some critics have argued is contained within the 'public safety' test introduced by the 1999 Act.
12.7 We are unable to support this proposal. The retrospective imposition of a prison sentence appears to us to present formidable human rights objections, especially where the offender has already spent what may be a substantial period in hospital. Furthermore, it would be highly undesirable if all those mentally disordered offenders who, quite appropriately, receive a hospital order were to face the prospect of re-sentencing should their mental disorder no longer require hospital treatment. We do not think we can make any legislative recommendation that would alter the situation for any current patients detained at the State Hospital solely on public safety grounds by virtue of the 1999 Act. Our recommendations in Section 2 are framed, in part, to prevent this insoluble conflict between public protection and inappropriate hospitalisation arising in the future.
12.8 On the matter of the release of prisoners who remain a risk to public safety, our Committee considered some major legislative developments in North America and elsewhere. These are the introduction of a new form of detention applied at some stage - in practice many years - after sentence has been passed. In essence this is civil detention imposed prior to the end of sentence on the grounds of a mental condition. Presence of an identifiable mental condition is crucial in order to satisfy requirements for civil detention in North America, as it would be in the UK were it to be introduced. To be compatible with Article 5.1(e) of the European Convention on Human Rights, detention is only permitted where the detainee is of 'unsound mind'. In other words, a mental condition is identified in order to legitimise civil detention beyond the date when the original sentence of the court would terminate. In our view, and that of many others in the field, detention is driven by the goal of public protection and not really by the expectation of treatment for a mental condition. The latter however is presented as the means of achieving the former.
12.9 This is the approach that has been adopted by several states in the US, in their 'sexually violent predator' or 'sexually violent person' legislation and representatives of our Committee visited such States. A detailed account of the basis of this legislation can be found in the literature review commissioned by us (See Annex 3). In essence, the legislation empowers the State to seek to commit an individual to indefinite detention (with the possibility of supervised release), at the expiry of a determinate prison sentence. This detention is on the basis of the presence of mental disorder and risk to the public. Detention must be in a health facility and treatment must be offered. The detainee, now a 'patient', acquires all the legal rights of a detained mental patient; these are significantly more liberal than those of prisoners - a factor that was causing significant problems for management in one facility visited by our Committee
12.10 Despite these requirements, our clear impression was that this legislation amounted to preventive detention under the guise of mental health treatment. The mental condition that formed the basis of the detention included (indeed almost always consisted of) personality disorder, often in association with a disorder of sexual preference. The assessment of risk is usually based on actuarial methods that rely heavily on evidence of past offences. One psychologist confirmed that it was effectively possible to establish both mental disorder and high risk purely on the basis of the individual having committed certain types of offence, particularly those of a paedophilic type.
12.11 Were such a system to be introduced in Scotland, it would be necessary either to send such individuals to existing mental health services, such as the State Hospital, or to develop completely new specialised services. It was clear from the services we visited that placement of this highly dangerous group alongside individuals with conventional mental illnesses was unsafe. In the States we visited, new specialist services had been hastily developed and more were under development. These had usually been improvised in response to hastily passed legislation, following an individual and often high profile case.
12.12 The essence of this legislation was, in our view, an attempt to 'put right' mistakes made during the original sentencing process, when sentences were passed which did not properly reflect the risk posed by the offenders. We saw no evidence that the decision to designate someone as a 'sexually violent predator' was based on information that could not have been considered at the time of the original sentencing.
12.13 Our Committee also visited The Netherlands (see Annex 4). The Dutch TBS system provides for a period of detention in special clinics for those offenders deemed to be of 'partial responsibility'. After serving a period of imprisonment sufficient to reflect the 'punishment' part of the sentence, the prisoner is transferred to a special mental health facility for treatment. This differs from the US system in that the disposal is imposed at the time of the original sentence. Although the disposal is potentially indefinite, and includes treatment, it is separate from the conventional mental health system.
12.14 Our Committee believes that the Dutch system, which is long-established, and based on different psychiatric and legal traditions from those of the UK, has a number of positive features . Nevertheless, the model of disposal is not one that we would recommend. Where treatment is felt to be appropriate, it seems to us wrong that the offender should spend a number of years in prison before such treatment is started. As with other specialist services for personality disorder, the evidence of treatment benefit remains equivocal. It could not be adopted in Scotland without a wholesale revision of the criminal law with regard to the pivotal issue of responsibility. This option does not seem feasible for use in Scotland, and does not seem to offer any significant advantages, as a sentencing disposal, over our proposals for sentencing high risk offenders described in Section Two.
High risk offenders with personality disorder: sentencing
12.15 We have sought throughout this report to emphasise that protection of the public through the sentencing of serious violent or sexual offenders should be driven by the careful and considered assessment and management of risk. We regard this as more logical and more likely to be effective than seeking to identify any particular form of personality disorder. Our specific recommendations for sentencing high risk serious violent or sexual offenders are set out in Section Two of this report. We have made, also in Section Two, separate recommendations for offenders in this category who have a mental disorder (see Chapter 7).
12.16 We have considered whether we should make recommendations in those cases where the mental disorder is in clinical terms a personality disorder and in legal terms a persistent disorder manifested only by abnormally aggressive or seriously irresponsible conduct.
12.17 The current situation is that where a personality disorder satisfies the legal criteria for detention and the 'treatability' test31 , the reporting psychiatrist has the option of recommending a mental health disposal. This recommendation can be accepted or rejected by the sentencer. Thus it is currently possible for the court to make a hospital order, restriction order or hospital direction if all the necessary criteria are satisfied. These matters are all discretionary. Under our proposals, however, we suggest new mandatory arrangements for the post-conviction assessment and disposal of those high risk offenders who have a mental disorder, namely an interim hospital order followed by an OLR and hospital direction (see para 7.14). Should any specific and mandatory arrangement beyond this be included if the mental disorder is a personality disorder? We do not think it should, for the following reasons.
12.18 First, the general principle of mandatory measures on the basis of a specific category of mental disorder runs counter to our general approach to the problem. We have consistently emphasised that the degree of risk, and not any particular type of mental condition, should be the crucial determinant in sentencing. Second, we have doubts that the assessment of personality disorder is a task that can be accomplished with sufficient robustness to form the basis for a sentencing decision. Third, there is the matter of clinical judgement of individual cases in an area that contains so much variability. The human condition, and individual circumstances, are so diverse that it does not seem right to us that the diagnosis of a personality disorder (with all the variability of that condition) should require one particular sentencing path - and no other - to be followed. Some high risk offenders with personality disorder may appropriately receive the OLR; for others the OLR combined with a hospital direction would be proper. We do not think a statutory requirement for the same disposal in every case is either feasible or advisable. Finally, this is an area in which diagnostic and therapeutic developments are anticipated and it would therefore be imprudent to tie the hands of sentencers and psychiatrists at this stage.
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RECOMMENDATION 52 The sentencing options for a high risk offender who suffers from |