Sentencing psychopaths: Is the "hospital and limitation direction" an ill-considered hybrid?

Criminal Law Review

Volumn 1998, Issue 2, 1998, Pages 93-107

  Eastman, Nigel ^a   Peay, Jill ^b  

^a ST GEORGE'S UNIVERSITY OF LONDON   (United Kingdom)

^b LONDON SCHOOL OF ECONOMICS   (United Kingdom)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 3042964079     PISSN: 0011135X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (56)

1. N. Eastman, "Psychopathic Disorder and Therapeutic Jurisprudence", in van Marie (ed.), Challenges in Forensic Psychotherapy (Jessica Kingsley Publishers, London, 1997).
2. People suffering from "psychopathic disorder" are rarely subject to civil commitment, and the absolute number of formal admissions is very low. For the year ending March 31, 1996, only 63 "psychopathic" patients (out of a total of 9,520) were on s.3 (admission for treatment orders), Department of Health (1997), In-patients formally detained in hospitals under the Mental Health Act 1983 and other legislation, England: 1990-91 to 1995-96, Statistical Bulletin 1997/4. It is, of course, possible that a personality type which often includes the characteristic of egocentric, uncaring ruthlessness is both a protective factor, where the person might otherwise be at risk of psychiatric intervention, and a recipe for entrepreneurial, if not social success, thereby partially accounting for the infrequent appearance of psychopaths in conventional psychiatric populations.
3. M. Roth, "Psychopathic (sociopathic) personality" in R. Bluglass and P. Bowden (eds), Principles and Practice of Forensic Psychiatry (Edinburgh: Churchill Livingstone, 1990), p. 449.
4. P. Bowden, "What Happens to Patients Released from Special Hospitals?" (1981) 138 British Journal of Psychiatry 340-345. Also, as regards untreated psychopaths, a major recent review, B. Dolan and J. Coid, Psychopathic and Antisocial Personality Disorders (Gaskell, London, 1993) concludes: "reports of incarceration without treatment have overwhelmingly found that recidivism rates are high in psychopaths" (p. 50).
5. P. Bowden, "What Happens to Patients Released from Special Hospitals?" (1981) 138 British Journal of Psychiatry 340-345. Also, as regards untreated psychopaths, a major recent review, B. Dolan and J. Coid, Psychopathic and Antisocial Personality Disorders (Gaskell, London, 1993) concludes: "reports of incarceration without treatment have overwhelmingly found that recidivism rates are high in psychopaths" (p. 50).
6. One distinguished forensic psychiatrist successfully sued Central Television in libel for making such an allegation against him.
7. One possible motive for introduction of the new order, or at least a politically perceived advantageous side effect, is that it may avoid, for some MDOs, the effect of the European Court of Human Rights ruling in X v. United Kingdom [1981] 4 E.H.R.R. 181. This requires judicial review of the detention of an offender patient, with the power to override any vetoing by the executive of a patient's discharge. Where a patient is detained for treatment (not punishment), discharge from detention means release. However, how the new order will, in fact, impact on patients detained for treatment who are coincidentally subject to a sentence of imprisonment is not entirely clear.
8. This ignores the provision for transfer to hospital under s.47 of the Mental Health Act 1983, whereby offenders may be moved from prison to hospital - even on the last day of their sentence - and their detention thereafter in hospital potentially continuing under a notional s.3, albeit they must remain detainable for their mental disorder in order for public protection to continue.
9. Figures compiled from those kindly supplied by Sylvia Kingaby at the Department of Health, supplementing their published statistics in Department of Health (1997) above.
10. Twenty-one orders or 10 per cent of admissions with a primary diagnosis of psychopathic disorder, Table 4 in C. Kershaw and G. Renshaw, Statistics of Mentally Disordered Offenders England and Wales 1995, Home Office Statistical Bulletin, Research Statistics Directorate, Issue 20/96. Notably, psychopaths make up a higher proportion of those patients recalled after conditional discharge (10 of 58 patients for the same period).
11. J. Gunn, A. Maden and M. Swinton, "Treatment Needs of Patients with Psychiatric Disorders" (1991) 303 British Medical Journal 338-341; D. Brooke, C. Taylor, J. Gunn, and A. Maden, "Point Prevalence of Mental Disorder in Unconvicted Male Prisoners in England and Wales" (1996) 313 British Medical Journal 1524-1527.
12. J. Gunn, A. Maden and M. Swinton, "Treatment Needs of Patients with Psychiatric Disorders" (1991) 303 British Medical Journal 338-341; D. Brooke, C. Taylor, J. Gunn, and A. Maden, "Point Prevalence of Mental Disorder in Unconvicted Male Prisoners in England and Wales" (1996) 313 British Medical Journal 1524-1527.
13. Other, more fundamental, clinical explanations are discussed below.
14. Department of Health and Social Security/Home Office, Offenders Suffering from Psychopathic Disorder, Joint Consultation Document (1986).
15. J. Peay, "Offenders Suffering from Psychopathic Disorder: The Rise and Demise of a Consultation Document" (1988) 28 B.J.Crim. 67.
16. J. Reed, Report of the Department of Health and Home Office Working Group on Psychopathic Disorder, London, Department of Health/Home Office (1994).
17. The Committee saw other advantages to the order, including the possibility that it might overcome the somewhat haphazard selection and placement by the courts of psychopaths between hospital and prison.
18. Home Office/Department of Health (1996) Mentally Disordered Offenders - Sentencing and Discharge Arrangements; a discussion paper on a proposed new power for the courts.
19. ibid. para. 1.4.
20. N. Eastman, "Hybrid Orders: an analysis of their likely effects on sentencing practice and on forensic psychiatric practice and services" (1996) Journal of Forensic Psychiatry 481-494; D. Chiswick, "Sentencing mentally disordered offenders. A new law to 'protect the public' will block beds in secure units" (1996) 313 British Medical Journal 1497-1498; Royal College of Psychiatrists (1996) Response to Home Office Consultation Document.
21. N. Eastman, "Hybrid Orders: an analysis of their likely effects on sentencing practice and on forensic psychiatric practice and services" (1996) Journal of Forensic Psychiatry 481-494; D. Chiswick, "Sentencing mentally disordered offenders. A new law to 'protect the public' will block beds in secure units" (1996) 313 British Medical Journal 1497-1498; Royal College of Psychiatrists (1996) Response to Home Office Consultation Document.
22. Home Office Circular 52/1997, Crime (Sentences) Act 1997, issued by the Mental Health Unit, Home Office, implementation date October 1, 1997.
23. For example, N. Eastman (1996) above argued that judges would necessarily address a possible "discount" on a "normal" finite sentence by way of the MDO's disorder and, in so doing, would be bound to turn to psychiatrists for advice; whilst the Royal College of Psychiatrists (RCP) ethically strongly opposed such direct involvement in sentencing (RCP, 1996). Relatedly, the HO and DoH have shown interest in the analogy of Dutch jurisprudence, in which proportionate responsibility is a core concept for MDO sentencing. However, sentencing there is pursued only after intensive multi-disciplinary assessment during a (usually) seven-week admission to a highly resourced specialist forensic mental health remand centre.
24. The RCP had vigorously opposed any extension of the applicability of even the Reed hybrid order beyond psychopaths, for individual clinical, aggregate service, ethical and psychiatric jurisprudential reasons.
25. The fact that the corresponding legislation for Scotland immediately made the new order available for all categories of mental disorder strongly implies likely extension in England and Wales. Indeed, the explicitly stated reason for not extending the orders immediately was merely financial concern on the part of the DoH that substitution by courts of the hospital and limitation direction for hospital and restriction orders would, by dint of longer periods of hospital detention than would be warranted solely on therapeutic grounds (particularly for the mentally ill), result in substantial added cost to the NHS through an increased need for secure hospital bed provision. The fact that this is perceived even by the new government to be the only "barrier" to extension to all MDOs in England and Wales has recently been confirmed by the Secretary of State for Scotland in writing to Dr D. Chiswick, "the Home Office plan for phased introduction (of the order in England and Wales) on numbers and resource grounds" (personal communication).
26. In contrast to hospital and restriction orders the 1997 Act permits a hospital direction to be used only in combination with a limitation direction (having a comparable effect to a transfer direction with a restriction direction). Thus, the hospital direction (according to HO Circular 52/1997, para. 7) cannot be used in isolation (thereby taking it, in practice, "up tariff"). Although this was clearly the intention, the implementation by the parliamentary draftsman seems at first sight to suggest that the hospital direction could be applied separately (see s.45A(3)); moreover, the repeated use of the combined term "hospital and limitation direction" is clearly redundant if only one order is envisaged. Finally, s.45B(2), which explains the effect of "hospital and limitation directions" (again, implying plurality) states that "(a) a hospital direction shall have effect as a transfer direction; and (b) a limitation direction shall have effect as a restriction direction"; yet this is clearly not the case. Under the 1983 Act a transfer direction can (and frequently does) apply in the absence of a restriction direction; in fact, the hospital and limitation direction is to have effect as a transfer direction with a restriction direction (i.e. s.47/49 of the 1983 Act).
27. For example, treatment for psychopathic disorder under s.3, s.37, s.41 and s.47 requires the "treatability" criterion to be satisfied.
28. There is, however, guidance on when hospital orders (with or without restriction) are appropriate; Birch (1989) 90 Cr.App.R. 78; Gardiner [1967] 1 W.L.R. 464; McFarlane (1975) 60 Cr.App.R. 320.
29. There is, however, guidance on when hospital orders (with or without restriction) are appropriate; Birch (1989) 90 Cr.App.R. 78; Gardiner [1967] 1 W.L.R. 464; McFarlane (1975) 60 Cr.App.R. 320.
30. There is, however, guidance on when hospital orders (with or without restriction) are appropriate; Birch (1989) 90 Cr.App.R. 78; Gardiner [1967] 1 W.L.R. 464; McFarlane (1975) 60 Cr.App.R. 320.
31. The phrase emphasised in the text does not reflect Home Office Circular 66/90 "Provision for Mentally Disordered Offenders" which, for example, requires the offender's mental state notably to take precedence over any decision to prosecute - see para. 2.
32. Of all "mitigating" factors, mental disorder is potentially amongst the most persuasive since it goes beyond social and other circumstances and to the heart of notions of "intentionality", "voluntariness" and, therefore, ultimately "responsibility" and "culpability".
33. The "exceptional circumstances" provisions under s.2(2) are not intended, per se, to include mental disorder. However, in determining that it would not be appropriate to impose the "mandatory" life sentence under s.2, the court "shall have regard to the circumstances relating to either of the offences or to the offender" s.1(2).
34. In the context of the decision in R. v. Cannon's Park MHRT, ex parte A [1994] 3 W.L.R. 630, this does not seem so anomalous; in that case the CA held it lawful to continue to detain an "unbeatable" psychopath.
35. "(Legal) psychopathic disorder" is sufficiently broadly defined to encompass a wide range of (psychiatric) "personality disorders", all representing disordered development and personality structures of varying types but only some amounting to (psychiatric) "psychopathy", that is, "dissocial personality disorder" (World Health Organisation, International Classification of Diseases, Edition 10), and "anti-social personality disorder" (American Psychiatric Association, Diagnostic and Statistical Manual, Edition IV). 31 A. Grounds, "Detention of Psychopathic Disorder Patients' in Special Hospitals: Critical Issues" (1987) 151 British Journal of Psychiatry 540-548.
36. R. Blackburn cited in H. Prins, "Is Psychopathic Disorder a Useful Clinical Concept? A Perspective from England and Wales" (1991) 35 International Journal of Offender Therapy and Comparative Criminology 119-125 at 119.
37. A recent review of the literature concluded para. 6.10 "that there (was) no convincing evidence whether people with psychopathic disorder could or could not be successfully treated" DoH/HO (1994) Report of the Working Group on Psychopathic Disorder (based largely on the work of B. Dolan and J. Coid).
38. J. Coid, "Psychopathic Disorders" (1989) 2 Current Opinion in Psychiatry 750-756 at 755.
39. See for example the case of Carr, convicted of a triple homicide; G. Richardson, D. Chiswick and I. Nutting (1997) Report of the Inquiry into the Treatment and Care of Darren Carr. Report Commissioned by Berkshire Health Authority, Berkshire County Council, Oxfordshire Health Authority and Oxfordshire County Council at para. 17.2.6.
40. R. Cope, "A survey of forensic psychiatrists' views on psychopathic disorder" (1993) 4 Journal of Forensic Psychiatry 215-235 at 226.
41. L. Birmingham, D. Mason and D. Grubin, "Prevalence of Mental Disorder in Remand Prisoners: Consecutive Case Study" (1996) 313 British Medical Journal 1521-1524.
42. The potential for such "diagnostic games" is emphasised by comparative figures of 31 patients admitted to high security hospitals with a diagnosis of psychopathic disorder with a further 17 having mixed diagnoses of either mental illness and psychopathic disorder or mental impairment and psychopathic disorder (for year ending March 31, 1996 - see DoH (1997) above). Some doctors may, therefore, "drop" the psychopathic label from defendants in order to avoid the new order.
43. See R. Mackay, Mental Condition Defences in the Criminal Law (Oxford, 1995).
44. s.49(1) of the Crime (Sentences) Act 1997 amending s.38 of the 1983 Act.
45. See Hansard (Lords) February 27, 1997, 1361, where Baroness Blatch adverted to the advantages of the extended interim order as a means of addressing uncertain treatability.
46. Hospital direction orders will not only imply ethical problems for psychiatrists by involving them directly in the (now non-explicit) issue of "partial responsibility" at the sentencing stage, making their role arguably that of "state agent" of punishment, but will also result in similar problems at an earlier stage; namely, in assessing a patient for the court with a view to advising on their suitability for a therapeutic option, or not. Such ethical dilemmas might only be resolved by the psychiatrist giving the defendant the equivalent of the "right to silence" warning! See variously, J. Peay (1997) "Surviving Psychiatry in an Era of 'Popular Punitiveness'", paper presented at the Berzelius Symposium XXXVII on Human Rights in Psychiatric Care - an International Perspective, Stockholm; Eastman (1997) Psychiatrists and the Death Penalty; Ethical Principles and Analogies, Journal of Forensic Psychiatry (in press); B. Solomka, "The Role of Psychiatric Evidence in Passing 'longer than normal' Sentences" (1996) 7 Journal of Forensic Psychiatry 239-255; and A. Stone, "Revisiting the Parable: Truth Without Consequences" (1994) 17 International Journal of Law and Psychiatry 79-97.
47. Hospital direction orders will not only imply ethical problems for psychiatrists by involving them directly in the (now non-explicit) issue of "partial responsibility" at the sentencing stage, making their role arguably that of "state agent" of punishment, but will also result in similar problems at an earlier stage; namely, in assessing a patient for the court with a view to advising on their suitability for a therapeutic option, or not. Such ethical dilemmas might only be resolved by the psychiatrist giving the defendant the equivalent of the "right to silence" warning! See variously, J. Peay (1997) "Surviving Psychiatry in an Era of 'Popular Punitiveness'", paper presented at the Berzelius Symposium XXXVII on Human Rights in Psychiatric Care - an International Perspective, Stockholm; Eastman (1997) Psychiatrists and the Death Penalty; Ethical Principles and Analogies, Journal of Forensic Psychiatry (in press); B. Solomka, "The Role of Psychiatric Evidence in Passing 'longer than normal' Sentences" (1996) 7 Journal of Forensic Psychiatry 239-255; and A. Stone, "Revisiting the Parable: Truth Without Consequences" (1994) 17 International Journal of Law and Psychiatry 79-97.
48. Hospital direction orders will not only imply ethical problems for psychiatrists by involving them directly in the (now non-explicit) issue of "partial responsibility" at the sentencing stage, making their role arguably that of "state agent" of punishment, but will also result in similar problems at an earlier stage; namely, in assessing a patient for the court with a view to advising on their suitability for a therapeutic option, or not. Such ethical dilemmas might only be resolved by the psychiatrist giving the defendant the equivalent of the "right to silence" warning! See variously, J. Peay (1997) "Surviving Psychiatry in an Era of 'Popular Punitiveness'", paper presented at the Berzelius Symposium XXXVII on Human Rights in Psychiatric Care - an International Perspective, Stockholm; Eastman (1997) Psychiatrists and the Death Penalty; Ethical Principles and Analogies, Journal of Forensic Psychiatry (in press); B. Solomka, "The Role of Psychiatric Evidence in Passing 'longer than normal' Sentences" (1996) 7 Journal of Forensic Psychiatry 239-255; and A. Stone, "Revisiting the Parable: Truth Without Consequences" (1994) 17 International Journal of Law and Psychiatry 79-97.
49. Hospital direction orders will not only imply ethical problems for psychiatrists by involving them directly in the (now non-explicit) issue of "partial responsibility" at the sentencing stage, making their role arguably that of "state agent" of punishment, but will also result in similar problems at an earlier stage; namely, in assessing a patient for the court with a view to advising on their suitability for a therapeutic option, or not. Such ethical dilemmas might only be resolved by the psychiatrist giving the defendant the equivalent of the "right to silence" warning! See variously, J. Peay (1997) "Surviving Psychiatry in an Era of 'Popular Punitiveness'", paper presented at the Berzelius Symposium XXXVII on Human Rights in Psychiatric Care - an International Perspective, Stockholm; Eastman (1997) Psychiatrists and the Death Penalty; Ethical Principles and Analogies, Journal of Forensic Psychiatry (in press); B. Solomka, "The Role of Psychiatric Evidence in Passing 'longer than normal' Sentences" (1996) 7 Journal of Forensic Psychiatry 239-255; and A. Stone, "Revisiting the Parable: Truth Without Consequences" (1994) 17 International Journal of Law and Psychiatry 79-97.
50. This is not to say that the orders are "a good thing". Even if there is logic to the orders, in terms of common sense for the NHS they may, overall, be a "bad thing" (for example, because of the cost of increased secure care, through NHS purchasers buying beds in the context of no health need and through likely changes in the culture of forensic mental health care away from the therapeutic and towards the custodial); see Eastman 1996, above.
51. See above.
52. L. Blom Cooper, H. Hally and E. Murphy, The Falling Shadow: One Patient's Mental Health Care, 1978-1993 (Duckworth, 1995).
53. These have related to all the mentally disordered, not merely offender patients, and have . been directed at shoring up, or appearing to shore up, community care. They include introduction of the "supervised discharge order" under the Mental Health (Patients in the Community) Act 1995 and introduction of "supervision registers" of patients at substantial risk of serious harm to themselves or others or at risk of serious self-neglect. In a different way DoH guidance on "untoward incidents" in mental health care, making mandatory an independent inquiry into cases of homicide by psychiatric patients in recent contact with mental health care services, is aimed at least partly at buttressing community care, by reinforcing the perception of responsibility on the part of mental health professionals; see J. Peay (ed.), Inquiries After Homicide (Duckworth, 1996).
54. The Committee on Psychopaths (see above) represented only one small part of a major programme of policy work conducted by Reed in the early 1990s for the HO/DoH. The main tenet of its recommendations, fully accepted by government, was that any detainable MDO should be diverted from the criminal justice to the mental health care system. See also HO Circular 66/1990.
55. Royal College of Psychiatrists, responses to DoH/HO document. Note also, by way of analogy, Bowden's (see above 1981) conclusion that psychopaths (and other MDOs) released directly into the community by MHRTs reoffend at a higher rate than do patients discharged into the community in a structured and staged way.
56. A position notably preserved by s.38(3) of the Crime (Sentences) Act.