Forensic Psychiatry: Fundamentals and Clinical Practice [1 ed.] 9781482254563, 9781315380797, 9781315321448, 9781315363103, 9781444135213

Table of contents :

Basic sciences. Clinical forensic psychiatry. Legal Aspects of Forensic Psychiatry. Assessment in forensic psychiatry. Treatment. Prisons. Victims. Civil Matters. Ethical Issues. International comparisons of forensic psychiatry.

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Forensic Psychiatry F U N D A M E N TA L S A N D CLINICAL PRACTICE

Forensic Psychiatry F U N D A M E N TA L S A N D CLINICAL PRACTICE EDITED BY

BASANT K. PURI

Hammersmith Hospital and Imperial College London, UK

IAN H. TREASADEN

West London Mental Health NHS Trust, Southall, UK

Boca Raton London New York

CRC Press is an imprint of the Taylor & Francis Group, an informa business

CRC Press Taylor & Francis Group 6000 Broken Sound Parkway NW, Suite 300 Boca Raton, FL 33487-2742 © 2018 by Taylor & Francis Group, LLC CRC Press is an imprint of Taylor & Francis Group, an Informa business No claim to original U.S. Government works Printed on acid-free paper International Standard Book Number-13: 978-1-444-13521-3 (Pack - Book + eBook) This book contains information obtained from authentic and highly regarded sources. While all reasonable efforts have been made to publish reliable data and information, neither the author[s] nor the publisher can accept any legal responsibility or liability for any errors or omissions that may be made. The publishers wish to make clear that any views or opinions expressed in this book by individual editors, authors or contributors are personal to them and do not necessarily reflect the views/opinions of the publishers. The information or guidance contained in this book is intended for use by medical, scientific or health-care professionals and is provided strictly as a supplement to the medical or other professional’s own judgement, their knowledge of the patient’s medical history, relevant manufacturer’s instructions and the appropriate best practice guidelines. Because of the rapid advances in medical science, any information or advice on dosages, procedures or diagnoses should be independently verified. The reader is strongly urged to consult the relevant national drug formulary and the drug companies’ and device or material manufacturers’ printed instructions, and their websites, before administering or utilizing any of the drugs, devices or materials mentioned in this book. This book does not indicate whether a particular treatment is appropriate or suitable for a particular individual. Ultimately it is the sole responsibility of the medical professional to make his or her own professional judgements, so as to advise and treat patients appropriately. The authors and publishers have also attempted to trace the copyright holders of all material reproduced in this publication and apologize to copyright holders if permission to publish in this form has not been obtained. If any copyright material has not been acknowledged please write and let us know so we may rectify in any future reprint. Except as permitted under U.S. Copyright Law, no part of this book may be reprinted, reproduced, transmitted, or utilized in any form by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying, microfilming, and recording, or in any information storage or retrieval system, without written permission from the publishers. For permission to photocopy or use material electronically from this work, please access www.copyright.com (http://www.copyright.com/) or contact the Copyright Clearance Center, Inc. (CCC), 222 Rosewood Drive, Danvers, MA 01923, 978-750-8400. CCC is a not-for-profit organization that provides licenses and registration for a variety of users. For organizations that have been granted a photocopy license by the CCC, a separate system of payment has been arranged. Trademark Notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. Visit the Taylor & Francis Web site at http://www.taylorandfrancis.com and the CRC Press Web site at http://www.crcpress.com

Contents

Preface xi Contributors xiii PART 1  BASIC SCIENCES

1

1

3

Functional neuroanatomy Basant K. Puri 2 Neurochemistry Basant K. Puri 3 Structural neuroimaging Basant K. Puri 4 fMRI and PET Basant K. Puri 5 Neurospectroscopy Basant K. Puri 6 Psychophysiology Yu Gao 7 Sleep science Christopher Idzikowski and Irshaad O. Ebrahim 8 Developmental psychology Nathalia L. Gjersoe and Catriona Havard 9 Psychology of memory and cognition Martin A. Conway, Mark L. Howe, and Lauren M. Knott 10 Psychology of aggression and violence Ian H. Treasaden 11 Anthropology Kalpana Elizabeth Dein and Simon Dein 12 Culture and forensic psychiatry Gurvinder S. Kalra, Dinesh Bhugra, and Nilesh Shah 13 Criminology Darrick Jolliffe and Stevie-Jade Hardy 14 Values-based practice K. W. M. (Bill) Fulford and Gwen Adshead 15 Epidemiology Basant K. Puri 16 Genetics Basant K. Puri

15 21 29 37 39 45 51 63 71 77 87 99 105 111 115

PART 2  CLINICAL FORENSIC PSYCHIATRY

123

17

125

History of forensic psychiatry and mental health law Ian H. Treasaden and Basant K. Puri

v

vi Contents

18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45

Relationship between mental disorder and crime: An overview Ian H. Treasaden Organic mental disorder Basant K. Puri Psychosis and violence Tom Clark Mood disorders Camilla Haw Substance abuse Basant K. Puri and Ian H. Treasaden Gambling Sanju George and Henrietta Bowden-Jones Personality disorders Ian H. Treasaden Psychopathy Basant K. Puri Adjustment disorders Patricia Casey Malingering and factitious disorder James L. Knoll and Phillip J. Resnick Learning disability Mike Isweran Asperger’s syndrome David Murphy Forensic aspects of ADHD Susan Young and Rafael A. González Homicide Ian H. Treasaden National confidential inquiry into homicide Mohammad Shaiyan Rahman and Jenny Shaw Serial/spree/mass killings Jack Levin Violence toward spouse or intimate partner Ian H. Treasaden Violence toward children Ian H. Treasaden Violence toward older adults Susan Mary Benbow and Paul Kingston Violence in the workplace Ian H. Treasaden Road rage Christine M. Wickens, Robert E. Mann, Jennifer Butters, Reginald G. Smart, and Gina Stoduto Transsexualism James Barrett Transvestism Anne A. Lawrence Paraphilias Ian H. Treasaden Rape Ross M. Bartels, Anthony R. Beech, and Leigh Harkins Pornography Heather Wood Fire setting (arson) and criminal damage Geoffrey L. Dickens and Philip Sugarman Habit and impulse-control disorders, shoplifting, and other forms of acquisitive offending Ian H. Treasaden

135 143 153 159 165 173 181 197 203 209 217 225 231 237 245 251 255 261 265 271 277 281 285 291 309 315 321 327

Contents vii

46 47 48 49 50 51 52 53 54 55 56 57 58 59 60

Hostage taking David A. Alexander Terrorism Simon Dein Morbid jealousy Preeti Chhabra Erotomania Robin P. D. Menzies Stalking David V. James and Rachel D. MacKenzie Munchausen syndrome John D. Sheehan Munchausen syndrome by proxy Thomas A. Roesler and Carole Jenny Juvenile delinquency Sharon Davies and Claire Dimond Adolescent sex offenders James Rokop and Douglas P. Boer The clinical care of women in secure hospital services Annie Bartlett Elderly offenders Graeme A. Yorston Ethnic minority offenders David Ndegwa Deaf offenders with mental health needs Simon Gibbon, Amy Izycky, and Manjit Gahir Military psychiatry Martin Deahl Asylum seekers Heather McKee and Ian H. Treasaden

PART 3  LEGAL ASPECTS OF FORENSIC PSYCHIATRY 61 62 63 64 65 66 67 68

69 70 71

339 347 353 359 365 371 375 381 387 393 399 405 411 415 421

427

The criminal justice system of England and Wales 429 Natalie Wortley Police and Criminal Evidence Act 435 Kevin Kerrigan Mentally disordered detainees at the police station 441 Frank Farnham and David V. James Court diversion and liaison 445 John A. Dent Criminal proceedings and sentencing 451 Ian H. Treasaden Forensic social work and safeguarding adults at risk of harm 463 Ian H. Treasaden The parole board 465 Claire Barkley National Probation Service, National Offender Management Service, and Multi-Agency Public Protection Arrangements 471 Ian H. Treasaden Fitness to plead 477 Tim Exworthy and Penelope Brown Not guilty by reason of insanity (McNaughten rules) 483 Rafiq Memon Diminished responsibility 487 Ian H. Treasaden

viii Contents

72 73 74 75 76 77 78 79 80 81 82

The defense of loss of control Raana Din Infanticide Michael C. Craig Automatism Irshaad O. Ebrahim and Christopher Idzikowski Amnesia Natalie Pyszora and Michael Kopelman Mutism Basant K. Puri and Ian H. Treasaden False confessions and suggestibility Gisli H. Gudjonsson Psychiatric aspects of miscarriages of justice Adrian Grounds Mental Capacity Act 2005 Robert Brown Mental Health Act 1983 Robert Brown Mental health tribunals Carole Burrell Care Quality Commission Robert Brown

495 501 507 511 517 519 523 529 533 539 549

PART 4 ASSESSMENT IN FORENSIC PSYCHIATRY

553

83

555

84 85 86 87 88 89 90 91 92 93 94 95

Clinical assessment Ian H. Treasaden Psychological testing Derek Perkins and Daz Bishopp Malingering Hannah Crisford and Hayley Dare Drug screening Basant K. Puri and Ian H. Treasaden Electroencephalography John Lumsden Neuroimaging Basant K. Puri Risk assessment: An overview Ian H. Treasaden Violence assessment over the short term Johann Brink, Christopher D. Webster, Tonia L. Nicholls, Sarah L. Desmarais, and Mary-Lou Martin Sexual violence Derek Perkins and Anisah Ebrahimjee Report writing for the criminal court John O’Grady Practical aspects of psychiatric report writing for the criminal courts Ian H. Treasaden Report writing for the First-tier Tribunal Joan Rutherford Report writing for the coroner’s court Lorna M. Tagliavini

559 567 573 577 583 587 597 603 613 619 627 635

PART 5  GIVING EVIDENCE

637

96

639

Expert evidence in criminal and civil courts Ian H. Treasaden

Contents ix

97 98 99

Giving evidence for the First-tier Tribunal Joan Rutherford Giving evidence for the coroner’s court Lorna M. Tagliavini Capital punishment Clarence Watson, Gregory B. Leong, and Spencer Eth

645 651 653

PART 6 TREATMENT

659

100 High-security hospitals: Ashworth, Broadmoor, and Rampton Kevin Murray 101 Medium secure units Ian H. Treasaden 102 Low-security and intensive care units Stephen Dye, Roland Dix, and Faisil Sethi 103 The UK private sector in forensic psychiatry Piyal Sen and Philip Sugarman 104 DSPD units in the hospital Geoffrey Ijomah 105 Personality disorder units in prison Malcolm Ramsay 106 Forensic mental health nursing Anne Aiyegbusi 107 Management of forensic psychiatry facilities Nicholas Broughton 108 Community forensic psychiatry Ramneesh Puri and Jeremy Kenney-Herbert 109 Managing personality disorder in the community Conor Duggan 110 Psychopharmacology: Some medicolegal aspects Malcolm Lader 111 Cognitive behavior therapy Clive R. Hollin 112 Dialectical behavior therapy in forensic settings André Ivanoff and Henry Schmidt III 113 Forensic individual psychotherapy Ronald Doctor and Leah Bruer Henen 114 Group psychotherapy John Gordon and Gabriel Kirtchuk 115 Interpersonal dynamics in forensic psychiatry Gabriel Kirtchuk, David Reiss, and Lakshmiramana Alla 116 Family therapy Jo Bownas 117 Sex offender treatment programs Jackie Craissati and Caoimhe McAnena 118 Reasoning and rehabilitation and enhanced thinking skills Estelle Moore, Catherine Farr, James Tapp, and Gareth Hopkin 119 Aggression management Kelly Reynolds and Niamh O’dwyer

661 667 673 679 683 693 697 703 709 715 721 727 733 739 743 757 765 771 777 783

PART 7 PRISONS

789

120 Types of prisons and security Ian Cumming 121 Prevalence of psychiatric disorder in prisons Basant K. Puri

791 797

x Contents

122 Suicide in prisons Amanda E. Perry 123 Disability in prisons Colin Goble and Sally French 124 Women in prisons Annie Bartlett and Nadia Somers 125 Psychiatric treatment in prison Ian Cumming 126 HMP Grendon Mark Morris 127 TBS in the Netherlands Corine de Ruiter and John Petrila

805

PART 8 VICTIMS

839

128 Assessment of psychological sequelae Nuri Gene-Cos 129 Post-traumatic stress disorder Laura Pratchett and Rachel Yehuda 130 Victims of torture Marianne Kastrup

841

811 815 823 829 833

847 853

PART 9  CIVIL MATTERS

857

131 Civil aspects of forensic psychiatry Ian H. Treasaden 132 Termination of pregnancy Patricia Casey 133 Negligence Lars Davidsson 134 Coroner’s court and inquests Lorna M. Tagliavini 135 The General Medical Council: Fitness to practice procedures and panels Eilish Gilvarry 136 Euthanasia Basant K. Puri

859 867 875 881 885 889

PART 10  ETHICAL ISSUES

891

137

893

Consent Lars Davidsson 138 Confidentiality Lynn Hagger 139 Duty to warn Colin Gavaghan 40 Human Rights Act of 1998 1 Helen Fenwick and Daniel Fenwick

897 903 909

PART 11  INTERNATIONAL COMPARISONS OF FORENSIC PSYCHIATRY

915

141

917

International comparisons Basant K. Puri

Index 923

Preface

In recent years, the sub-speciality of forensic psychiatry has rapidly developed and its focus has increasingly moved from institutions to the community. An essential element of forensic psychiatry is the interface between psychiatry and the criminal justice system and associated criminal and mental health legislation. Among the many demands made on clinicians is keeping up to date with the ever increasing pace of developments in forensic psychiatry knowledge in the biological and psychosocial spheres, including in criminology and clinical and forensic psychology, as well as developments in law, ethics and the criminal justice system. The usual cautionary legal principle that the reader should always refer to the latest primary legislation is rarely realistic in day-to-day practice. In particular, the basic sciences, including psychology, neuroanatomy, neurophysiology, neuroimaging, genetics, biochemistry, pharmacology, neuroscience and epidemiology, have led to a better understanding of the basic mechanisms underlying clinical disorders seen in forensic psychiatry. This book, in particular, emphasises these developments, which are often missing from previous forensic psychiatry texts, as well as the legal basis of forensic psychiatry, which has changed with new mental health and criminal legislation and developing case law. The aim of this volume is to provide an up-to-date solid evidence-based, or at least informed, text. We have sought to strike a balance between being over inclusive and the need to produce a relatively concise book with key references, containing practical guidance on the assessment, including risk assessment, and management of offenders with mental disorder. Many of the contributors are acknowledged international leaders in their respective fields and have been centrally involved in the forefront of shaping forensic psychiatry research and practice. Forensic psychiatrists, who increasingly work in multidisciplinary teams and whose practice is increasingly challenged by other professionals, managers and, indeed, patients and their legal representatives, now have to be able to defend the evidence base to their practice, if they are to maintain their medical leadership role. Clinicians are under pressure to deliver high-quality, cost-effective, patientfocused care based on the best evidence available. In this book, we aim comprehensively to describe the relevant basic sciences, criminal and mental health legislation and clinical disorders and their treatment, including

all topics covered in the UK MRCPsych syllabus for forensic psychiatry, including the forensic aspects of child and adolescent psychiatry, old age psychiatry and disorders of intellectual development. Reference is made, in particular, to legislation in England and Wales, which underpins much mental health legislation worldwide. The clinical disorders described are, of course, universal. We believe that the book will not only cater to the needs of those working or training in forensic or other sub-specialities of psychiatry but also provide a valuable resource for other professionals working within forensic psychiatry, forensic psychology or the criminal justice system. To facilitate the aim of this project, the book is divided into major sections and chapters in a carefully considered order. Chapters have been standardised and cross-referenced and include important up-to-date references and generous use of tables, figures, boxes and pictures. While the book strives to provide an integrated overview of current knowledge, chapters are also designed to stand alone, which inevitably implies some overlap in content between them, which we hope has been kept to an acceptable minimum. We hope this book will achieve wide acceptance through its succinct, user-friendly and practical approach. While a textbook alone does not make a good forensic psychiatrist, we hope this will provide a sound foundation of theoretical knowledge required for competent practice by clinicians today. As editors, we would like to acknowledge the input and patience of our contributors and their willingness to update their contributions with the passage of time. We would also like to thank David Cochrane, Head of Forensic Social Work at West London Mental Health NHS Trust, for his advice regarding the chapters on forensic social work and MAPPA, although any errors are our own. We are also most grateful to our original commissioning editor, Caroline Makepeace, and our subsequent commissioning editors, Lance Wobus and George Zimmer, as well as Suzanne Lassandro, Production Manager, and Viswanath Prasanna, Senior Project Manager. We would also like to thank Elizabeth Stapf and Lynda Townsend for their extensive secretarial support. Basant K. Puri Ian H. Treasaden xi

Contributors

Gwen Adshead Formerly Consultant Forensic Psychotherapist Broadmoor Hospital; Currently Locum Consultant Forensic Psychiatrist Ravenswood House Hants, UK Anne Aiyegbusi Director and Consultant Nurse Psychological Approaches CIC Honorary Psychotherapist East London NHS Foundation Trust Visiting Fellow, Buckinghamshire New University David A. Alexander MA(Hons) C Psychol PhD FRSM FBPS (Hon)FRCPsych Emeritus Professor of Mental Health Robert Gordon University Former Director Aberdeen Centre for Trauma Research Consultant to the Scottish Police Service Visiting Lecturer Scottish Police College Aberdeen, UK Lakshmiramana Alla Consultant Forensic Psychiatry Stockton Hall Hospital Partnerships in Care York, UK Claire Barkley MBChB MSc MHSM FRCPsych Consultant Forensic Psychiatrist Medical Director South Staffordshire and Shropshire Healthcare NHS Foundation Trust Psychiatrist Member Parole Board for England and Wales (2001–2011) Member of GMC Fitness to Practice Panel (2011–present) James Barrett BSc MSc FRCPsych Consultant Psychiatrist and Lead Clinician National Gender Identity Clinic London, UK Ross M. Bartels Senior Lecturer in Psychology School of Psychology University of Lincoln Lincoln, UK

Annie Bartlett Professor of Forensic Psychiatry SGUL and CNWL Foundation Trust IMBE St. George’s University of London London, UK Anthony R. Beech DPhil FBPsS Professor in Criminological Psychology Centre for Forensic and Criminological Psychology School of Psychology University of Birmingham Birmingham, UK Susan Mary Benbow MB ChB(Hons) MSc PGDip(Family Therapy) FRCPsych PhD

Visiting Professor of Mental Health and Ageing Centre for Ageing Studies Faculty of Health and Social Care University of Chester Riverside Campus Chester, UK Dinesh Bhugra CBE Emeritus Professor of Mental Health and Cultural Diversity Health Service and Population Research Department Institute of Psychiatry King’s College London London, UK Daz Bishopp PhD Forensic Psychology at the School of Psychology University of Birmingham Birmingham, UK Douglas P. Boer PhD Professor of Clinical Psychology Centre for Applied Psychology Faculty of Health University of Canberra Canberra, Australia Henrietta Bowden-Jones Consultant Psychiatrist and Lead Clinician National Problem Gambling Clinic Honorary Senior Lecturer Imperial College London, UK xiii

xiv Contributors

Jo Bownas Consultant Systemic Family Therapist West London Mental Health Trust Forensic Service London, UK

Martin A. Conway Centre for Memory and Law Department of Psychology City University London London, UK

Johann Brink MBChB FRCPC Department of Psychiatry University of British Columbia Forensic Psychiatric Services Commission Provincial Mental Health and Substance Use Vancouver, British Columbia, Canada

Michael C. Craig PhD FRCOG FRCPsych Clinical Senior Lecturer Department of Forensic and Neurodevelopmental Sciences Institute of Psychiatry, Psychology and Neuroscience Kings College London London, UK

Nicholas Broughton MB BChir(Cantab) FRCPsych Chief Executive and Consultant in Forensic Psychiatrist Somerset Partnership NHS Foundation Trust Bridgewater, Somerset, UK and Formerly Medical Director West London Mental Health NHS Trust, London, UK Penelope Brown BSc (Hons) BMBCh LLM MRCPsych Clinical Research Fellow in Forensic Psychiatry South London and Maudsley NHS Foundation Trust and Institute of Psychiatry Kings College London London, UK Robert Brown Social Worker Visiting Fellow at Bournemouth University Poole, UK Jennifer Butters PhD Owner, JB Editing Consulting Services Toronto, Ontario, Canada Carole Burrell Solicitor Senior Lecturer School of Law Northumbria University Newcastle upon Tyne, UK Patricia Casey Consultant Psychiatrist Mater Misericordiae University Hospital and Emeritus Professor of Psychiatry University College Dublin, Ireland Tom Clark Consultant Forensic Psychiatrist and Honorary Senior Clinical Lecturer in Forensic Psychiatry Birmingham and Solihull Mental Health NHS Foundation Trust and University of Birmingham Reaside Clinic, Birmingham Great Park Birmingham, UK Preeti Chhabra MA (Cantab) MBBS MRCPsych MSc Consultant Forensic Psychiatrist West London Forensic Services West London Mental Health Trust London, UK

Jackie Craissati Oxleas NHS Foundation Trust London, UK Hannah Crisford Clinical Psychologist Men’s Forensic Directorate West London Mental Health Trust London, UK Ian Cumming South London and Maudsley NHS Foundation Trust Institute of Psychiatry Kings College London London, UK Hayley Dare Consultant Clinical Psychologist Clinical Lead Women’s Forensic Directorate West London Mental Health Trust London, UK Lars Davidsson MRCPsych MEWI Consultant Psychiatrist Medical Director Prittlewell House Essex, UK Sharon Davies Consultant Child and Adolescent Psychiatrist City and Hackney Specialist CAMHS East London NHS Foundation Trust London, UK Martin Deahl TD MA MPhil FRCPsych Colonel (TA) RAMC(V) Consultant Psychiatrist South Staffordshire and Shropshire Partnership Healthcare NHS Foundation Trust Staffordshire, UK Kalpana Elizabeth Dein MBBS MRCPsych MSc Consultant Forensic Psychiatrist London, UK Simon Dein FRCPsych PhD Academic Department of Psychiatry University College London Medical School London, UK

Contributors xv

John A. Dent MBBChir MRCPSych Consultant Psychiatrist West London Mental Health NHS Trust, London, UK Sarah L. Desmarais PhD Department of Psychology North Carolina State University Raleigh, North Carolina Geoffrey L. Dickens RMN PhD Abertay University Dundee, UK Claire Dimond Consultant Child and Adolescent Forensic Psychiatrist Wells Unit Adolescent Forensic Service Raana Din Consultant Forensic Psychiatrist Kneesworth House Hospital Royston, Hertfordshire, UK Roland Dix The Montpellier Unit Wotton Lawn Hospital Gloucester, UK Ronald Doctor Consultant Psychiatrist Medical Psychotherapy & Forensic Psychotherapy West London Mental Health NHS Trust and Lakeside Mental Health Unit West Middlesex Hospital London, UK Conor Duggan MD PhD FRCPsych OBE Emeritus Professor University of Nottingham University Park Nottingham, UK Stephen Dye Consultant Inpatient Psychiatrist, Woodlands Norfolk and Suffolk NHS Foundation Trust Ipswich Hospital Site Irshaad O. Ebrahim FRCPsych The London Sleep Centre London, UK Anisah Ebrahimjee MSc Maastricht University and Broadmoor Hospital Hertfordshire, UK Spencer Eth MD Professor and Director of Forensic Psychiatry Fellowship Program Department of Psychiatry University of Miami Miller School of Medicine Chief of Mental Health, Miami, VA Healthcare System, Miami, Florida

Tim Exworthy MBBS LLM FRCPsych DFP Clinical Director and Consultant Forensic Psychiatrist St. Andrew’s Hospital Northampton NN1 5DG Visiting Senior Lecturer in Forensic Psychiatry Institute of Psychiatry Psychology and Neuroscience Kings College London London, UK Frank Farnham BSc MBBS FRCPsych Consultant Forensic Psychiatrist North London Forensic Service Clinical Lead National Stalking Clinic Clinical Lead Fixated Threat Assessment Centre Catherine Farr CPsychol AFBPsS Clinical and Forensic Psychologist Lead Psychologist Personality Disorder Pathway Broadmoor Hospital West London Mental Health Trust Southall, UK Daniel Fenwick Lecturer in Law Northumbria University Northumbria Law School Newcastle upon Tyne, UK Helen Fenwick Professor of Law Durham Law School Durham, UK Sally French Associate Lecturer (retired) The Open University Seaford, UK K. W. M. (Bill) Fulford DPhil FRCP FRCPsych Fellow of St. Catherine’s College and Member of the Philosophy Faculty University of Oxford and Emeritus Professor of Philosophy and Mental Health University of Warwick and Founder Editor, Philosophy, Psychiatry, and Psychology, and Director of the Collaborating Centre for Values-based Practice, St. Catherine’s College Oxford. Health London, UK Manjit Gahir MBChB MSc MRCPsych Consultant Forensic Psychiatrist Lead Clinician, National High Secure Deaf Service Nottinghamshire Healthcare NHS Foundation Trust Rampton Hospital Retford, UK

xvi Contributors

Yu Gao PhD Associated Professor of Psychology Department of Psychology Brooklyn College and the Graduate Center of the City University of New York Brooklyn, New York Colin Gavaghan LLB (Hons) PhD New Zealand Law Foundation Chair in Law and Emerging Technologies Faculty of Law University of Otago Dunedin, New Zealand Nuri Gené-Cos MD FRCPsych PhD Consultant Psychiatrist and TSS Lead Clinician South London and Maudsley NHS Foundation Trust Traumatic Stress Service Outpatient Department Maudsley Hospital Denmark Hill London, UK Sanju George Senior Consultant Psychiatrist Rajagiri Hospital, Aluva Kerala, India Simon Gibbon MBBS MRCPsych Consultant Forensic Psychiatrist Nottinghamshire Healthcare NHS Foundation Trust Arnold Lodge Leicester, UK Eilish Gilvarry MB, MCh Clinical Director of Specialties and Forensic Services Northumberland Tyne & Wear NHS Foundation Trust Newcastle upon Tyne, UK Nathalia L. Gjersoe Senior Lecturer in Developmental Psychology University of Bath Somerset, UK Colin Goble Senior Lecturer in Childhood, Youth and Community Studies University of Winchester Rafael A. González Research Associate Centre for Psychiatry Imperial College London London, UK John Gordon Psychoanalyst and Group Analyst Honorary Senior Lecturer Buckinghamshire New University and Former Consultant Adult Psychotherapist Forensic Psychotherapy Department and The Cassel Hospital West London Mental Health NHS Trust London, UK

Adrian Grounds Honorary Research Fellow Institute of Criminology University of Cambridge Cambridge, UK Gisli H. Gudjonsson CBE FBPsS Emeritus Professor of Forensic Psychology Department of Psychology Institute of Psychiatry, Psychology and Neuroscience De Crespigny Park Denmark Hill London, UK Lynn Hagger Non-executive Director Rotherham NHS Foundation Trust School of Law (retired) University of Sheffield Sheffield, UK Stevie-Jade Hardy Lecturer in Hate Studies The Leicester Centre for Hate Studies Department of Criminology University of Leicester Leicester, UK Robert D. Hare Phd Department of Psychology Vancouver, British Columbia, Canada Leigh Harkins Assistant Professor in Psychology Faculty of Social Science & Humanities University of Ontario Institute of Technology Ontario, Canada Catriona Havard Senior Lecturer in Psychology Open University Milton Keynes, UK Camilla Haw Former Consultant Psychiatrist St. Andrew’s Healthcare and Emeritus Professor in Mental Health Care School of Health University of Northampton Northampton, UK and Honorary Senior Lecturer Institute of Psychiatry and Honorary Research Fellow University Department of Psychiatry Warneford Hospital Oxford, UK Leah Bruer Henen Practitioner in Medical Psychotherapist London, UK

Contributors xvii

Clive R. Hollin Emeritus Professor Department of Psychology University of Leicester Leicester, UK Gareth Hopkin Psychologist Broadmoor Hospital West London Mental Health Trust Southall, UK Mark L. Howe Centre for Memory and Law, Department of Psychology City University London London, UK Christopher Idzikowski Sleep Assessment and Advisory Service Lisburn, Northern Ireland Mike Isweran Consultant Forensic Psychiatrist Community Mental Health Services Herfordshire Partnership NHS Foundation Trust St. Albans, UK André Ivanoff PhD Columbia University, New York Amy Izycky BSc(Hons) MSc D.Clin.Psy HCPC Registered and Chartered Clinical Psychologist BPC Registered Psychodynamic Psychotherapist Private Practice Newcastle upon Tyne, UK David V. James Consultant Forensic Psychiatrist Theseus LLP Carole Jenny MD MBA FAAP Professor of Pediatrics Department of Pediatrics Warren Alpert Medical School of Brown University Providence, Rhode Island Darrick Jolliffe Center for Criminology University of Greenwich Old Royal Navy College London, UK Gurvinder S. Kalra MD DPM Staff Psychiatrist Flynn Adult Inpatient Psychiatric Unit LaTrobe Regional Hospital Mental Health Services (LRH-MHS) Traralgon, Victoria, Australia Jeremy Kenney-Herbert Consultant Forensic Psychiatrist and Clinical Director Secure Care and Offender Health Birmingham and Solihull Mental Health NHS Foundation Trust Birmingham, UK

Paul Kingston RNMH RMN RNT PGCert Ed MA PhD ARSH HFRSPH Professor of Ageing and Mental Health and Director of the Centre for Ageing Studies Faculty of Health and Social Care University of Chester Riverside Campus Chester, UK Marianne Kastrup Centre Transcultural Psychiatry Psychiatric Center Copenhagen Rigshospitalet Copenhagen, Denmark Kevin Kerrigan Executive Dean Northumbria Law School Northumbria University Newcastle upon Tyne, UK Gabriel Kirtchuk MD MRCPsych Consultant Psychiatrist and Psychoanalyst West London Mental Health NHS Trust London, UK James L. Knoll IV MD Director of Forensic Psychiatry Professor of Psychiatry SUNY Upstate Medical Center Syracuse, New York Lauren M. Knott Centre for Memory and Law Department of Psychology City University London London, UK Michael Kopelman King’s College London London, UK Malcolm Lader OBE LLB PhD MD DSc FRCPsych F Med Sci FLS Emeritus Professor of Clinical Psychopharmacology P056 Institute of Psychiatry Neurology and Neuroscience King’s College London Denmark Hill London, UK Anne A. Lawrence MD PhD Adjunct Associate Professor Department of Psychology University of Lethbridge Lethbridge, Alberta, Canada Gregory B. Leong MD Clinical Professor of Psychiatry Keck School of Medicine University of Southern California Los Angeles, California Jack Levin Emeritus Professor of Sociology and Criminology Co-director The Brudnick Center on Violence and Conflict Northeastern University Boston, Massachusetts

xviii Contributors

John Lumsden Department of Clinical Neurophysiology Broadmoor Hospital Crowthorne, UK

Mark Morris Medical Psychotherapy St Andrew’s Essex Wickford, UK

Rachel D. MacKenzie Victorian Institute of Forensic Mental Health Swinburne University Victoria, Australia

David Murphy Chartered Forensic and Consultant Clinical Neuropsychologist Neuroscience Department Broadmoor Hospital Crowthorne, UK

Robert E. Mann Institute for Mental Health Policy Research Centre for Addiction and Mental Health Toronto and Dalla Lana School of Public Health University of Toronto Toronto, Ontario, Canada Mary-Lou Martin RN MScN MEd Clinical Nurse Specialist St. Joseph’s Healthcare Hamilton Forensic Psychiatry Program and Associate Clinical Professor McMaster University Hamilton, Ontario, Canada Caoimhe McAnena Oxleas NHS Foundation Trust London, UK Heather J. McKee* MB ChB BAO MRCPsych LLM Formerly Consultant Neuropsychiatrist Royal Hospital for Neurodisability West Hill, Putney London, UK and formerly Consultant Psychiatrist Charing Cross Hospital, London, UK. Rafiq Memon MB ChB MRCPsych LLM Consultant Forensic Psychiatrist Tamarind Centre Bordesley Green Birmingham, UK Robin P. D. Menzies MBBS FRCPsych (UK) FRCP (C) Clinical Associate Professor of Psychiatry Department of Psychiatry University of Saskatchewan Saskatoon, Canada Estelle Moore PhD C.Psychol CSci Head of Psychological Services Broadmoor Hospital Crowthorne, Berks, UK Currently Strategic and Professional Lead for Psychological Therapies West London Mental Health Trust Southall, UK

*

Deceased.

Kevin Murray Consultant Forensic Psychiatrist Broadmoor Hospital Crowthorne, Berks, UK Director of Research and Development and West London Mental Health NHS Trust, London, UK David Ndegwa Consultant Forensic Psychiatrist South London and Maudsley NHS Foundation Trust Tonia L. Nicholls PhD Department of Psychiatry University of British Columbia Forensic Psychiatric Services Commission British Columbia Mental Health and Substance Us Services Department of Psychology Simon Fraser University Vancouver, British Columbia, Canada Niamh O’dwyer Department of Psychology Royal Holloway, University of London Egham, UK John O’Grady Consultant Forensic Psychiatrist Formerly of Hampshire Partnership NHS Foundation Trust and Chair of the Forensic Faculty Royal College of Psychiatrists London, UK Derek Perkins PhD Professor of Forensic Psychology West London Mental Health NHS Trust, London, UK Amanda E. Perry CPsychol Senior Research Fellow Lead for Forensic Mental Health and Addiction Group Department of Health Sciences University of York York, UK John Petrila JD University of South Florida Tampa, Florida

Contributors xix

Laura Pratchett PsyD Assistant Clinical Professor Department of Psychiatry Mount Sinai School of Medicine One Gustave L. Levy Place and James J. Peters VA Medical Center Bronx, New York Basant K. Puri MA PhD MB BChir BSc (Hons) MathSci DipStat MMath FRCPsych FRSB

Honorary Consultant Imaging Directorate Hammersmith Hospital London, UK and Honorary Professor Department of Medicine Imperial College London London, UK and Adjunct Professor in Neuroimaging and Spectroscopy University of Limerick Limerick, Ireland Ramneesh Puri MRCPsych, DPM, DCP, MBBS, PG Dip Mental Health Law Consultant Forensic Psychiatrist Rampton High Security Hospital and Visiting Psychiatrist South Yorkshire Cluster of Prisons Nottinghamshire Healthcare NHS Foundation Trust, Nottingham, UK Natalie Pyszora Community Forensic Mental Health Service Moore House Graylands campus Mt Claremont, Australia

Phillip J. Resnick MD Professor and Psychiatry Case Western Reserve University School of Medicine Program Director Forensic Psychiatry University Hospital Case Medical Center Cleveland, Ohio Corine De Ruiter PhD Professor of Forensic Psychology Maastricht University Maastricht, The Netherlands Kelly Reynolds Principal Clinical Psychologist NHS Greater Glasgow and Clyde Glasgow, UK Thomas A. Roesler MD Associate Professor of Child and Family Psychiatry Division of Child Psychiatry Department of Psychiatry and Human Behavior Warren Alpert Medical School of Brown University Providence, Rhode Island James Rokop PhD Consulting Psychologist California Department of Mental Health Sacramento, California Joan Rutherford FRCPsych Chief Medical Member of the First Tier Tribunal—Mental Health Henry Schmidt III Behavioral Affiliates, Inc Seattle, Washington

Mohammad Shaiyan Rahman MRCPsych NIHR Clinical Lecturer in Forensic Psychiatry National Confidential Inquiry into Suicide and Homicide by People with Mental Illness (NCISH) Mancheser, UK

Piyal Sen Consultant Forensic Psychiatrist Complex Needs Service St. Andrew’s Essex Visiting Lecturer Institute of Psychiatry, Psychology and Neuroscience King’s College London, UK

Malcolm Ramsay Independent Researcher Formerly Ministry of Justice Research Member of Hertfordshire Police and Crime Committee, UK

Faisil Sethi Consultant Psychiatrist (PICU) Maudsley Hospital South London and Maudsley NHS Foundation Trust London, UK

David Reiss MA MB BChir MPhil PgD FRCPsych FAcadMEd Consultant Forensic Psychiatrist West London Mental Health NHS Trust and Honorary Clinical Senior Lecturer Imperial College London London, UK

Nilesh Shah Professor and Head Department of Psychiatry Lokmanya Tilak Municipal Medical College and Sion General Hospital Mumbai, India

xx Contributors

Jenny Shaw Professor of Forensic Psychiatry and Assistant Director National Confidential Inquiry into Suicide and Homicide by People with Mental Illness (NCISH) Consultant Forensic Psychiatrist Guild Lodge Lancashirecare NHS Foundation Trust Manchester, UK John D. Sheehan FRCPI MMedSc MRCPsych Consultant in Liaison Psychiatry and Senior Clinical Lecturer Mater Misericordiae University Hospital and University College Dublin Dublin, Ireland Reginald G. Smart Institute for Mental Health Policy Research Centre for Addiction and Mental Health Toronto, Ontario, Canada Nadia Somers Clinical Psychologist Tavistock and Portman NHS Foundation Trust London, UK Gina Stoduto Institute for Mental Health Policy Research Centre for Addiction and Mental Health Toronto, Ontario, Canada Philip Sugarman Formerly Chief Executive and Medical Director St. Andrew’s Healthcare Honorary Senior Lecturer Institute of Psychiatry Visiting Professor University of Northampton Northampton, UK Lorna M. Tagliavini

LLM, Postgrad. Dip. Law, BA (Hons) Dip. Forensic Medical Sciences, Barrister (E&W) and Attorney-at-Law (NY), PhD (Research Student)

Assistant Coroner The Coroner’s Society of England & Wales UK James Tapp PhD Psychologist Broadmoor Hospital West London Mental Health Trust Southall, UK Ian H. Treasaden MBBS LRCP MRCS FRCPsych LLM Honorary Consultant Forensic Psychiatrist West London Mental Health NHS Trust and Imperial College Healthcare NHS Trust and Visiting Senior Lecturer Buckinghamshire New University Wycombe, UK Clarence Watson JD MD Clinical Associate Professor of Psychiatry Director, Forensic Psychiatry Fellowship Program Perelman School of Medicine - University of Pennsylvania Philadelphia, Pennsylvania

Christopher D. Webster Psychiatry, University of Toronto; Psychology Simon Fraser University, Child Development Institute Toronto, Ontario, Canada Christine M. Wickens Institute for Mental Health Policy Research Centre for Addiction and Mental Health and Dalla Lana School of Public Health University of Toronto Toronto, Ontario, Canada Heather Wood Consultant Adult Psychotherapist and Clinical Psychologist Portman Clinic Tavistock and Portman NHS Foundation Trust London, UK Natalie Wortley Barrister Principal Lecturer in Law Northumbria University Newcastle upon Tyne, UK Rachel Yehuda PhD Professor of Psychiatry and Neuroscience Director, Traumatic Stress Studies Division Icahn School of Medicine at Mount Sinai Director, Mental Health Patient Care Center James J. Peters VA Medical Center Graeme A. Yorston MBBS MSc MRCPsych Consultant Old Age Forensic Psychiatrist Visiting Professor of Ageing and Forensic Mental Health Staffordshire University Staffordshire, UK and Honorary Lecturer Institute of Psychiatry St. Andrew’s Hospital Northampton, UK Susan Young Clinical Senior Lecturer in Psychology Centre for Psychiatry Imperial College London London, UK and Professor of Psychology Reykjavik University Reykjavik, Iceland and Consultant Clinical and Forensic Psychologist and Director of Forensic Research & Development West London Mental Health Trust and Broadmoor Hospital Berkshire, UK

1

Part     Basic Sciences

1 Functional neuroanatomy Basant K. Puri 2 Neurochemistry Basant K. Puri 3 Structural neuroimaging Basant K. Puri 4 fMRI and PET Basant K. Puri 5 Neurospectroscopy Basant K. Puri 6 Psychophysiology Yu Gao 7 Sleep science Christopher Idzikowski and Irshaad O. Ebrahim 8 Developmental psychology Nathalia L. Gjersoe and Catriona Havard 9 Psychology of memory and cognition Martin A. Conway, Mark L. Howe, and Lauren M. Knott 10 Psychology of aggression and violence Ian H. Treasaden 11 Anthropology Kalpana Elizabeth Dein and Simon Dein 12 Culture and forensic psychiatry Gurvinder S. Kalra, Dinesh Bhugra, and Nilesh Shah 13 Criminology Darrick Jolliffe and Stevie-Jade Hardy 14 Values-based practice K. W. M. (Bill) Fulford and Gwen Adshead 15 Epidemiology Basant K. Puri 16 Genetics Basant K. Puri

3 15 21 29 37 39 45 51 63 71 77 87 99 105 111 115

1 Functional neuroanatomy BASANT K. PURI The human brain 3 Brain lobes and major gyri and sulci 3 Frontal lobe 3 Parietal lobe 8 Temporal lobe 9 Occipital lobe 9 9 Limbic system Basal ganglia 10 Components 10 Basal ganglia-thalamocortical circuits 10

Internal anatomy of the temporal lobes 10 Components 10 Connections 10 Major white matter pathways 11 Association fibers 11 Commissural fibers 12 Projection fibers 12 Ventricular system 12 References 12

This chapter discusses aspects of functional neuroanatomy that may be relevant to a better understanding of forensic psychiatry.

in forensic psychiatry, described later in this book, often refer to the Brodmann areas.

THE HUMAN BRAIN An anthropocentric view of the superiority of the anatomy of the human brain is deflated by the realization that while larger mammalian brains have more neocortex than smaller brains, for Homo sapiens the average total cortical surface area is no more than would be expected given the average human brain volume.

BRAIN LOBES AND MAJOR GYRI AND SULCI The four major lobes (Figure  1.1) are named after the approximately adjacent skull bones. The frontal lobe extends rostrally from the central sulcus (fissure of Rolando) and superiorly from the lateral fissure (Sylvian fissure). The parietal lobe extends between the central sulcus (fissure of Rolando) and the parieto-occipital fissure, as well as laterally as far as the lateral fissure. The temporal lobe lies inferior to the lateral fissure and extends posteriorly to the parieto-occipital fissure. The occipital lobe lies behind the parieto-occipital fissure. Figure  1.1 shows the major gyri and sulci of the adult brain. Cytoarchitectonic-based Brodmann areas of importance are shown in Figure 1.2. Voxel-based morphometry studies

Frontal lobe PRIMARY MOTOR CORTEX

The frontal lobe contains the primary motor cortex (M1 or MI; Brodmann area 4) just anterior to the central ­sulcus, occupying the precentral gyrus. Electrical stimulation of M1 is associated with contralateral muscular ­contraction. The somatotopic representation in the form of the ­homunculus was first illustrated in a paper by Penfield and Boldrey in 1937 as a combined symmetrical figure depicting motor and somatosensory features. It was later illustrated differently by Penfield and Rasmussen in their 1950 monograph as the more familiar somatotopic representation in M1, as the motor homunculus, and in S1 (see below), as the sensory homunculus. PREMOTOR CORTEX

The premotor cortex (Brodmann area 6) lies immediately rostral to M1 and is divided functionally into the dorsal (PMd) and ventral (PMv) areas. PMd receives input from the dorsolateral prefrontal cortex (DLPFC), while the PMv receives input from the ventrolateral prefrontal cortex (VLPFC). The premotor cortex has important functions in both motor activity and preparing for motor activity. In addition, PMd may also be involved in decision circuits 3

4  Functional neuroanatomy

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Central sulcus Precentral gyrus Postcentral gyrus Precentral sulcus Inferior frontal sulcus Superior frontal gyrus Inferior frontal gyrus Orbital gyri Postcentral sulcus Lateral fissure Superior temporal gyrus

12 13 14 15 16 17 18 19 20 21 22

Superior temporal sulcus Middle temporal gyrus Inferior temporal sulcus Inferior temporal gyrus Parieto-occipital fissure (arrowed) Lunate sulcus Anterior occipital sulcus Pons Flocculus Cerebellar hemisphere Medulla oblongata

Figure 1.1  (a) Superficial dissection of the brain viewed from the left side.

activated by free choice. Based on their finding that correlations in spike and local field potential activity between the PMd and the parietal reach region are greater when monkeys are freely making choices than when they are following instructions, Pesaran and colleagues have proposed that a decision circuit featuring a subpopulation of cells in the frontal and parietal cortex may exchange information to coordinate activity between these areas; cells participating in this decision circuit may influence movement choices by providing a common bias to the selection of movement goals.1

(Continued)

FRONTAL EYE FIELD

The frontal eye field (FEF; mainly Brodmann area 8) receives afferent connections via the thalamus from the cerebellar dentate nucleus, substantia nigra, and superior colliculus; and from ipsilateral regions, including V5 (medial temporal cortex; visual), Brodmann area 7a, and the superior temporal gyrus (auditory/language). The FEF is important in controlling ocular movements; spatial selection for locating behaviorally relevant stimuli for guiding attention and eye movements appears to be computed locally in the FEF from spatially nonselective inputs.2

Brain lobes and major gyri and sulci  5

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Median sagittal section. The left half, from the right, with the arachnoid mater and blood vessels removed 1 2 3 4 5 6 7 8 9 10 11 12 13

Superior frontal gyrus Cingulate sulcus Cingulate gyrus Callosal sulcus Corpus callosum – body Corpus callosum – genu Corpus callosum – splenium Fornix Caudate nucleus (head) in wall of lateral ventricle Choroid plexus, third ventricle Interventricular foramen (Monro) Thalamus Massa intermedia

14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Anterior commissure Pineal body Posterior commissure Superior colliculus Aqueduct (of Sylvius) Inferior colliculus Mesencephalon Hypothalamus Mamillary body Infundibulum Uncus Optic nerve (II) Oculomotor nerve (III) Trochlear nerve (IV) Parahippocampal gyrus

Figure 1.1 (Continued)  (b) Median sagittal section of the left hemisphere.

29 30 31 32 33 34 35 36 37 38 39 40 41

Rhinal sulcus Pons Pontine tegmentum Fourth ventricle Nodulus Anterior lobe of cerebellum Parieto-occipital fissure Calcarine sulcus Cerebellar hemisphere Tonsil of cerebellum Inferior cerebellar peduncle Pyramid of medulla oblongata Medulla oblongata

(Continued)

6  Functional neuroanatomy

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Left cerebral hemisphere. From above, with the arachnoid mater and blood vessels removed

Right cerebral hemisphere. From above, with the arachnoid mater and blood vessels intact

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12 Arachnoid granulations 13 Superior cerebral veins

Longitudinal cerebral fissure (arrowed) Frontal pole Middle frontal gyrus Superior frontal sulcus Precentral gyrus Central sulcus Postcentral gyrus Postcentral sulcus Inferior parietal lobe Parieto-occipital fissure Occipital gyri

Figure 1.1 (Continued)  (c) Superficial dissection of the brain viewed from above.

(Continued)

Brain lobes and major gyri and sulci  7

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16 Right cerebral hemisphere, cerebellum and brain stem. From below, with the arachnoid mater and blood vessels intact

Left cerebral hemisphere, cerebellum and brain stem. From below,with the arachnoid mater and blood vessels removed

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Longitudinal cerebral fissure (arrowed) Frontal pole Inferior surface of frontal pole Temporal pole Inferior surface of temporal pole Internal carotid artery Optic chiasma Infundibulum Parahippocampal gyrus Basilar artery Labyrinthine artery Right vertebral artery Medulla oblongata Tonsil of cerebellum Cerebellar hemisphere Occipital pole

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Orbital gyri Olfactory bulb Olfactory tract Medial olfactory stria Lateral olfactory stria Inferior temporal sulcus Optic nerve (II) Collateral sulcus Optic tract Oculomotor nerve (III) Mamillary body Pons

29 30 31 32 33 34 35 36 37 38

Trochlear nerve (IV) Trigeminal nerve (V) Abducent nerve (VI) Facial nerve (VII) Vestibulocochlear nerve (VIII) Flocculus Glossopharyngeal nerve (IX) Vagus nerve (X) Hypoglossal nerve (XII) Accessory nerve (XI)

Figure 1.1 (Continued)  (d) Superficial dissection of the brain viewed from below. (From Ellis H, Logan BM, Dixon AK, Human Sectional Anatomy, Second Edition. London: Hodder Arnold, 2001. With permission.)

8  Functional neuroanatomy

Primary somatosensory cortex (3,1,2)

Primary motor cortex (4)

Vestibular cortex (2)

Frontal eye field (8) 6

Prefrontal cortex (9,10,11,12)

4

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Somatosensory association cortex (5,7,40)

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Secondary somatosensory and gustatory cortex

Primary auditory cortex (41,42)

Visual association cortex (39,19,18) Primary visual cortex (17)

Auditory association cortex (Wernicke’s speech area of left hemisphere) (22)

(a) Primary somatosensory cortex (3,1,2)

Primary motor cortex (4) Premotor cortex (6) Prefrontal cortex (9,10,11,12)

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Visual association cortex (19,18)

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(b)

Figure 1.2  (a) Lateral and (b) medial aspects of the cerebral hemisphere showing important Brodmann areas (numbered). (Redrawn from Nicholl JAR, Bone I, Graham D. Adams & Graham’s Introduction to Neuropathology, 3rd ed. Boca Raton, FL: Taylor & Francis, 2007. With permission.)

PREFRONTAL CORTEX

The prefrontal cortex (PFC) contains Brodmann areas 9, 10, 11, 12, 45, and 46. In the dominant (usually left) hemisphere, areas 44 and 45 comprise Broca’s area (the motor speech area). The DLPFC appears to be involved in self-ordered working memory, monitoring, and the action of the central executive, while the VLPFC appears to be involved in mnemonic processing and rule representation.

processing the motivational or emotional value of incoming information, including the representation of primary reinforcers; the representation of learned relationships between arbitrary neutral stimuli and rewards or punishments; and the integration of this information to guide response selection, suppression, and decision making.6

Parietal lobe

SUPPLEMENTARY MOTOR CORTEX

SOMATOSENSORY CORTEX

The supplementary motor area (SMA; M2 or MII) is on the superolateral border and medial side of the hemisphere, rostral to M1, and appears to be involved in the assembly of central motor programming of sequential voluntary movements.3 It also appears to be involved in unconscious and involuntary motor control.4 Indeed, the SMA is involved in automatic suppression of manual motor plans.5

The parietal lobe contains the primary somatosensory cortex (S1 or SI; Brodmann areas 3, 1, and 2) just posterior to the central sulcus, occupying the post-central gyrus and posterior wall of the central sulcus. The primary somatosensory cortex receives medial lemniscal, spinothalamic, and trigeminothalamic input via the thalamic ventral posterior nucleus. The sensory somatotopic representation of the contralateral half of the body on S1 as the sensory homunculus was described by Penfield and Boldrey. There is also a sensory somatotopical representation of the body, with the head anterior and the sacral region posterior, in the secondary somatosensory cortex (S2 or SII),

ORBITOFRONTAL CORTEX

The orbitofrontal cortex occupies the orbital gyri on the inferior surface of the frontal lobe. It is involved in

Limbic system  9

lying posterior to the central sulcus along the superior part of the lateral fissure. In a complex world, a sensory cue may prompt different actions in different contexts; contextdependent modulation of functional connectivity from S2 to the PFC has been demonstrated in the primate brain.7 Neuronal mechanisms contributing to tactile perception have been studied using single-unit recordings from the cutaneous hand representation of primate S1 and S2. Tactile detection in nonhuman primates and in humans has been shown to be enhanced during the instructed delay (ID) period of the attention task.8,9 Thus, ID discharge may represent a priming mechanism that prepares cortical areas to receive and process sensory inputs. SUPERIOR AND INFERIOR PARIETAL LOBULES

The somatosensory association cortex (Brodmann areas 5, 7a, 7b, and 40) is located in the superior and inferior parietal lobules. Damage to different parts of the somatosensory association cortex produces distinct somaesthetic syndromes.10 Cortical activity representing physical emotional states governs emotional feelings; parietal somatosensory association cortex mediates affective blindsight in partially cortically blind subjects.11

Temporal lobe PRIMARY AUDITORY CORTEX

The primary auditory cortex (A1 or AI), corresponding to Brodmann areas 41 ± 42, receives auditory sensory input from the medial geniculate nucleus and has a tonotopic cochlear representation (low auditory frequencies anterior and high ones posterior). There is a predominant and consistent leftward functional asymmetry in A1, in righthanded individuals, during both linguistic and nonlinguistic sound stimulations.12 While speech perception is conventionally considered to be an auditory function, visual speech perception (for example, of a silent video of a person saying isolated words) can occur without A1 activation.13 WERNICKE’S AREA

The dominant temporal lobe contains Wernicke’s (sensory speech) area, which is variously designated as Brodmann area 22 ± 39 ± 40 and may include part of the parietal cortex. In comprehending complex natural language, in addition to the “dominant,” usually left, hemisphere, the right cerebral hemisphere also appears to play a role.14 Thus, the contralateral (nondominant, usually right) homologue of Wernicke’s area also has a role in language processing in humans, particularly in respect of lexical ambiguity resolution. The ambiguous word bank, for example, can be considered to have teller as the dominant meaning and river as a subordinate meaning. While (the left) Wernicke’s area processes dominant meanings of ambiguous words, its contralateral homologue (the right Wernicke’s area) functions as a processor of subordinate meanings of ambiguous words.15

MIDDLE AND INFERIOR TEMPORAL CORTICES

The middle temporal cortex, Brodmann area 21, has connections with different sensory modality pathways, including those related to vision, somatosensory input and auditory input. The inferior temporal cortex, Brodmann area 20, is particularly associated with higher processing of visual stimuli. Long-term potentiation and long-term depression are possible mechanisms for visual memory and pattern recognition functions in the temporal cortex.16

Occipital lobe This is mainly made up of Brodmann areas 17, 18, and 19. Brodmann area 17, the primary visual cortex (V1, VI, or the striate cortex), receives visual sensory input from the lateral geniculate nucleus via branches (lower and upper fields) of the optic radiation. The part of the primary visual cortex above the calcarine receives a retinotopic visual input (macular to a large posterior part of V1 and peripheral to anterior V1) from the contralateral inferior visual hemifields (superior retinal quadrants), while the part below receives a similar retinotopic input from the contralateral superior visual hemifields (inferior retinal quadrants). V2, the second visual area, is found in much of Brodmann area 18, just concentric to area 17, and contains a retinotopic mapping of the contralateral visual hemifield. V3, the third visual area, is also mainly found in Brodmann area 18. It is divided into dorsal (V3d or V3), ventral (V3v or VP) and anterior (V3a) parts. V4, the fourth visual area, is found in Brodmann area 19. While cells in V2 and V3 tend to be orientation selective but not selective for stimulus color or direction or movement, V4 appears to be particularly involved in the discrimination of color as well as orientation, form, and movement.17

LIMBIC SYSTEM Papez suggested the notion of a neural network theory of emotion: The central emotive process of cortical origin may...be conceived as being built up in the hippocampal formation and as being transferred to the mammillary body and thence through the anterior thalamic nuclei to the cortex of the gyrus cinguli. The cortex of the [cingulate] gyrus may be looked on as the receptive region for the experiencing of emotion.... Radiation of the emotive process from the gyrus cinguli to other regions in the cerebral cortex would add emotional colouring to psychic processes. Parts of the brain involved in olfaction were also included by Papez in his circuit.18 Many of these regions are shown as the shaded “limbic lobe” in Figure 1.2b. Papez argued that lesions directly involving or impinging on this anatomical

10  Functional neuroanatomy

circuit (the Papez circuit) caused symptoms largely confined to the person’s affective behavior. Thus, he noted that patients with rabies affecting the hippocampus and cerebellum are subject to anxiety, apprehension, and paroxysms of rage and terror.18,19 Intact neural pathways from the mammillary bodies to the cingulate gyrus, via the anterior nuclei of the thalamus, appeared to be required for a state of vigilance and wakefulness, from which Papez deduced that this circuit was concerned with affective behavior.18,19 Regarding a possible emotional function of the cingulate gyrus, he noted that corpus callosal tumors impinging on this gyrus are often associated with personality change, loss of affect, and a degree of somnolence and stupor.18,19 MacLean further elaborated on the Papez circuit, including the following structures (in approximately this sequence) in his version of the limbic system: olfactory bulb, olfactory tubercle, lateral olfactory stria, amygdala, stria terminalis, septal nuclei, stria medullaris, interpeduncular nucleus, medial forebrain bundle, and mammillary body; and also a pathway from the septal nuclei via the supracallosal striae, dentate gyrus, hippocampus, and fornix back to the mammillary body. Other components of this version of the limbic system included the anterior nuclear group of the thalamus, the diagonal band of Broca, and the habenula (part of the epithalamus).19 While there is no consensus on the components of the limbic system and its very concept remains controversial,20 in addition to the structures suggested by Papez and MacLean, most modern definitions also include the cingulate gyrus, the rest of the hypothalamus, and, at least partly, the basal ganglia. More recently, it has been suggested that attributing emotional functions primarily to the limbic system may be inherently incorrect. For example, Pessoa has argued that In attempting to localize affect in the brain, an appealing approach has been to separate the “emotional brain” from the “cognitive brain”… parcelling the brain into cognitive and affective regions is inherently problematic, and ultimately untenable for at least three reasons: first, brain regions viewed as “affective” are also involved in cognition; second, brain regions viewed as “cognitive” are also involved in emotion; and critically, third, cognition and emotion are integrated in the brain.21

BASAL GANGLIA The basal ganglia are important in the control of movement and posture.

Components The basal ganglia are deep subcortical paired nuclear masses lying close to the internal capsule. A modern definition is

Table 1.1  Components of the basal ganglia Basal ganglia • Corpus striatum • (Neo)striatum – Caudate nucleus – Putamen • Paleostriatum = Globus pallidus • Amygdala ± claustrum

given in Table 1.1. While the putamen and globus pallidus have traditionally been grouped together as the lentiform nucleus, in practice the putamen should be paired with the caudate nucleus rather than the globus pallidus, based on cytoarchitectural and connectivity similarities. This pairing of the caudate nucleus with the putamen is phylogenetically relatively recent and is known as the striatum (or neostriatum), in contrast to the older paleostriatum consisting of the globus pallidus.

Basal ganglia-thalamocortical circuits Alexander, DeLong, and Strick offered a model of five functionally segregated circuits linking the basal ganglia with the cortex in a parallel organization,22 which is supported by nonhuman primate studies.23 Each is centered on a different part of the frontal lobe: motor cortex, oculomotor cortex, DLPFC, lateral orbitofrontal cortex, and anterior cingulate. The circuits consist of partially overlapping corticostriate inputs that are progressively funneled via the pallidum (globus pallidus) and substantia nigra to the thalamus and then back to the cortex. Within each area of connected cortico-basal ganglia structures, there are both reciprocal connections linking regions associated with similar functions (maintaining parallel networks) and nonreciprocal connections linking regions that are associated with different cortico-basal ganglia circuits.24

INTERNAL ANATOMY OF THE TEMPORAL LOBES Components The medial temporal lobe has three components: the hippocampal formation, the amygdala, and the parahippocampal cortices that cover them. The hippocampal formation (Figure 1.3) includes the subicular cortices (parasubiculum, presubiculum, and subiculum proper), hippocampus (CA1– CA3 pyramids), and dentate gyrus (including its hilar neurons or CA4 sector).25

Connections Figure 1.3 illustrates the disposition of the cell fields CA1– CA4 in the hippocampal formation, as well as its different strata. Different cell fields are probably involved in different

Major white matter pathways  11

Fimbria

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Figure 1.3  The hippocampal formation showing the disposition of the various cell fields. (Redrawn from Gray’s Anatomy, 40th ed., Standring S, Cerebral Hemisphere, 621, Copyright 2008, with permission from Elsevier.)

connections. For example, CA2 pyramidal cells appear to receive the hypothalamic input (from the supramammillary region of the hypothalamus). There are extensive cortical and subcortical connections of the hippocampal formation with other parts of the brain, including the thalamus, hypothalamus, basal forebrain, amygdala, and frontal, temporal, and parietal cortices. The amygdala receives gustatory, visceral, somatosensory, auditory, visual, and olfactory inputs and afferents from frontal cortex, perirhinal cortex, thalamus, hippocampal formation, hypothalamus, mesencephalon (dopaminergic innervation from the ventral tegmental area), and brain stem (including noradrenergic input from the locus coeruleus and serotonergic input from the raphe nuclei). The main efferents of the amygdala are as follows. ●●

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From the lateral nucleus to the prefrontal cortex, the medial temporal lobe, and the nucleus accumbens From the basal nucleus to the prefrontal cortex, the striatum, and the medial temporal lobe From the medial nucleus to the olfactory system, the bed nucleus of the stria terminalis, the hypothalamus, and the thalamus

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From the central nucleus to the bed nucleus of the stria terminalis, the hypothalamus, the mesencephalon, the pons, the medulla oblongata, and the ascending monoaminergic and cholinergic pathways

MAJOR WHITE MATTER PATHWAYS These fall into three major groups: association, commissural, and projection fibers. Papez’s circuit was described earlier in this chapter.

Association fibers These are intra-hemispheric fibers that may be short (arcuate) fibers connecting adjacent gyri or long fibers connecting more distant gyri. They represent ipsilateral cortico-cortical axons. Long association fibers include: ●●

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The cingulum, lying deep to the cingulate gyrus, between the rostral corpus callosum and parahippocampal gyrus and adjacent temporal lobe The superior longitudinal fasciculus, between the f­rontal lobe and the occipital and temporal lobes

12  Functional neuroanatomy

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The fronto-occipital fasciculus, lying deep to the ­superior longitudinal fasciculus, between the frontal pole and the occipital and temporal lobes The inferior longitudinal fasciculus, between the ­occipital and temporal lobes The uncinate fasciculus, between the frontal lobe (Broca’s motor speech area and the orbital gyri) and the temporal pole

Commissural fibers These are interhemispheric fibers connecting cortical areas with contralateral homologous areas. They may enter the corpus callosum, the anterior commissure, or the commissure of the fornix, or pass indirectly through the diencephalon or the brain stem. The corpus callosum is the largest brain white matter pathway and provides both homotopic and heterotopic connections between the cerebral hemispheres. The corpus callosum extends rostrally from the splenium, via its body, to the genu, just inferior to the callosal sulcus (Figure  1.1b). Destinations of fibers passing through different parts of the corpus callosum are summarized in Table 1.2. The anterior commissure (Figure 1.1b) crosses the midline in the lamina terminalis (helping to form the anterior wall of the third ventricle). It connects homologous neocortical and paleocortical areas. The fornix comprises fibers representing the hippocampal efferent system and connects the archicortex of the hemispheres with each other (Figure 1.1b). Ventrally, close to the anterior commissure, it is divided into the pre-commissural and post-commissural parts. Rostrally, the whole system arches as two posterior columns, one in each hemisphere, lying inferior to the corpus callosum and superior to the thalamus. Transverse fibers connect these columns as the commissure of the fornix.

Projection fibers These connect the cerebral cortex with the subcortical nuclei of the brain and spinal cord, and ascend or descend in major tracts, including the fornix and the internal capsule.

Table 1.2  Corpus callosal fiber destinations Part of corpus callosum

Name of fibers (if applicable)

Splenium Splenium and posterior body Body

Forceps major Tapetum

Occipital lobes Temporal lobes

Genu

Forceps minor

Widespread neocortical areas Frontal lobes

Destinations

VENTRICULAR SYSTEM Each lateral ventricle consists of an anterior horn (lying anterior to the interventricular foramen [of Monro]), a body, a posterior horn (in the occipital lobe), and an inferior horn (reaching the temporal lobe). The third ventricle lies between the two thalami, with the hypothalamus acting as its floor, while the fourth ventricle lies between the cerebellum and brain stem. In the adult, the average total volume of cerebrospinal fluid is around 140 mL. It is formed by the ependymal lining of the choroid plexuses of the four ventricles. It passes from the lateral ventricles into the third ventricle via the interventricular foramen (of Monro), and from the third ventricle into the fourth via the cerebral aqueduct (of Sylvius). From the fourth ventricle, the cerebrospinal fluid enters the subarachnoid space via the median aperture or foramen of Magendie (into the cisterna magna or cerebellomedullary cistern) and the lateral apertures or foramina of Luschka (into the pontine cistern). In contrast to the active process of cerebrospinal fluid secretion, reabsorption is passive and takes place via the arachnoid villi of the dural venous sinuses, the spinal villi, and the lymphatic system.

REFERENCES 1. Pesaran B, Nelson MJ, Andersen RA. Free choice activates a decision circuit between frontal and parietal cortex. Nature. 2008; 453: 406–9. 2. Monosov IE, Trageser JC, Thompson KG. Measurements of simultaneously recorded spiking activity and local field potentials suggest that spatial selection emerges in the frontal eye field. Neuron. 2008; 57: 614–25. 3. Roland PE, Larsen B, Lassen NA, Skinhoj E. Supplementary motor area and other cortical areas in organization of voluntary movements in man. Journal of Neurophysiology. 1980; 43: 118–36. 4. Sumner P, Nachev P, Morris P, et al. Human medial frontal cortex mediates unconscious inhibition of voluntary action. Neuron. 2007; 54: 697–711. 5. Boy F, Husain M, Singh KD, Sumner P. Supplementary motor area activations in unconscious inhibition of voluntary action. Experimental Brain Research. 2010; 206: 441–8. 6. Ramnani N, Owen AM. Anterior prefrontal cortex: Insights into function from anatomy and neuroimaging. Nature Reviews Neuroscience. 2004; 5: 184–94. 7. Chow SS, Romo R, Brody CD. Context-dependent modulation of functional connectivity: Secondary somatosensory cortex to prefrontal cortex connections in two-stimulus-interval discrimination tasks. Journal of Neuroscience. 2009; 29: 7238–45. 8. Meftah el M, Shenasa J, Chapman CE. Effects of a cross-modal manipulation of attention on somatosensory cortical neuronal responses to tactile stimuli

References 13

















in the monkey. Journal of Neurophysiology. 2002; 88: 3133–49. 9. Meftah el M, Bourgeon S, Chapman CE. Instructed delay discharge in primary and secondary somatosensory cortex within the context of a selective attention task. Journal of Neurophysiology. 2009; 101: 2649–67. 10. Caselli RJ. Ventrolateral and dorsomedial somatosensory association cortex damage produces distinct somesthetic syndromes in humans. Neurology. 1993; 43: 762–71. 11. Anders S, Birbaumer N, Sadowski B, et al. Parietal somatosensory association cortex mediates affective blindsight. Nature Neuroscience. 2004; 7: 339–40. 12. Yoo SS, O’Leary H M, Dickey CC, et al. Functional asymmetry in human primary auditory cortex: Identified from longitudinal fMRI study. Neuroscience Letters. 2005; 383: 1–6. 13. Bernstein LE, Auer ET Jr., Moore JK, Ponton CW, Don M, Singh M. Visual speech perception without primary auditory cortex activation. NeuroReport. 2002; 13: 311–5. 14. Jung-Beeman M. Bilateral brain processes for comprehending natural language. Trends in Cognitive Sciences. 2005; 9: 512–8. 15. Harpaz Y, Levkovitz Y, Lavidor M. Lexical ambiguity resolution in Wernicke’s area and its right homologue. Cortex. 2009; 45: 1097–103. 16. Chen WR, Lee S, Kato K, Spencer DD, Shepherd GM, Williamson A. Long-term modifications of synaptic efficacy in the human inferior and middle temporal



















cortex. Proceedings of the National Academy of Sciences of the United States of America. 1996; 93: 8011–5. 17. Essen DC, Zeki SM. The topographic organization of rhesus monkey prestriate cortex. Journal of Physiology. 1978; 277: 193–226. 18. Papez JW. A proposed mechanism of emotion. Archives of Neurology and Psychiatry. 1937; 38: 725–43. 19. MacLean PD. Psychosomatic disease and the visceral brain; recent developments bearing on the Papez theory of emotion. Psychosomatic Medicine. 1949; 11: 338–53. 20. McLachlan RS. A brief review of the anatomy and physiology of the limbic system. Canadian Journal of Neurological Sciences. 2009; 36 Suppl 2: S84–7. 21. Pessoa L. On the relationship between emotion and cognition. Nature Reviews Neuroscience. 2008; 9: 148–58. 22. Alexander GE, DeLong MR, Strick PL. Parallel organization of functionally segregated circuits linking basal ganglia and cortex. Annual Review of Neuroscience. 1986; 9: 357–81. 23. Middleton FA, Strick PL. Basal-ganglia “projections” to the prefrontal cortex of the primate. Cerebral Cortex. 2002; 12: 926–35. 24. Haber SN. The primate basal ganglia: Parallel and integrative networks. Journal of Chemical Neuroanatomy. 2003; 26: 317–30. 25. Van Hoesen GW. Anatomy of the medial temporal lobe. Magnetic Resonance Imaging. 1995; 13: 1047–55.

2 Neurochemistry BASANT K. PURI Introduction 15 Dopamine and serotonin 15

Endocrinological influences 17 References 19

INTRODUCTION

Nonhuman mammalian studies indicate that ­central serotonin may be associated with aggressive ­behavior.1,2 For example, the administration of para-­ chloro-D, L-phenylalanine, which inhibits the action of central L-tryptophan-5monooxygenase and therefore causes a reduction in brain serotonin (see Figure 2.3), leads to a high incidence of aggressive (filicidal) behavior in pre-partum, post-­ partum, and ­nulliparious female rats; latency of attack, intensity phases, and characteristics of the filicidal behavior vary inversely with brain serotonin content, and can be reversed or eliminated by replacement of serotonin using 5-hydroxytryptophan (see Figure 2.3).3 It has been hypothesized that the action of this chemical mediates the release of a natural latent aggressive ­tendency that is potentiated by the interference in, or reduction of, a suppressing system governed by serotonin.3 Several human studies have investigated whether such serotonin findings might apply in forensic psychiatric cases. A relatively convenient way to index central serotonin levels is by performing lumbar puncture and measuring the cerebrospinal fluid (CSF) level of the serotonin metabolite 5-hydroxyindolacetic acid (5-HIAA, shown in Figure 2.3). An increase in the ratio of CSF concentration of homovanillic acid (HVA, a dopamine metabolite shown in Figure 2.2) to 5-HIAA has been reported to be correlated with psychopathic personality traits, particularly those related to disinhibited behaviors and a lack of emotionality/empathy.4–6 In 1976, Åsberg and colleagues published their finding of a bimodal distribution of the CSF 5-HIAA concentration in a cohort of 68 depressed patients, with 29% having a concentration below 15 ng mL–1.7 This lower concentration modal group was found to have a higher incidence of suicide attempts than the higher modal group, and the patients in the former group had used more violent means; two of the 20  patients in the lower modal group, compared with none of the 48 patients in the higher modal group, had died from suicide.8 It was suggested that the CSF 5-HIAA concentration might be a “biochemical suicide predictor.”

It is not possible to cover comprehensively all the aspects of neurochemistry relating to forensic psychiatry in the space of just one chapter. Therefore, this chapter will concentrate on the neurotransmitters dopamine and serotonin, and on the hypothalamic-pituitary-thyroid and hypothalamicpituitary-gonadal axes, in relation to a selected group of important forensic offenses. Pharmacological actions have been mentioned only briefly where relevant. Molecular genetic aspects clearly overlap with neurochemical considerations and are discussed in Chapter 16 (Genetics).

DOPAMINE AND SEROTONIN Catecholamine monoamines (mainly dopamine, noradrenaline or norepinephrine, and adrenaline or epinephrine) play an important role in central neurotransmission. The main biosynthetic pathway of catecholamines, including dopamine, is shown in Figure  2.1, while Figure  2.2 shows major catabolic pathways. Figure  2.1 also shows that each catecholamine molecule consists of a catechol nucleus (a benzene ring with a couple of adjacently placed hydroxyl groups) and an ethylamine group attached to position 1. The main dopaminergic projections in the adult human brain are the mesostriatal/nigrostriatal pathway from the substantia nigra pars compacta to the dorsal striatum, widespread projections from the ventral tegmental area, and the hypothalamic tuberoinfundibular pathway from the arcuate nucleus. Serotonin or 5-hydroxytryptamine (5-HT) is an indolamine, with a hydroxy group at position 5 and a terminal –NH2 on its carbon side chain, which is also important in central neurotransmission. Figure  2.3 shows the key anabolic and catabolic pathways of this neurotransmitter. Neuronal biosynthesis of serotonin takes place in several brain stem nuclei and also in the pineal gland.

15

16 Neurochemistry

O OH

L-Tyrosine

NH2

HO O2, Tetrahydrobiopterin

Tyrosine hydroxylase H2O, Dihydrobiopterin O HO

OH NH2

HO

L-Dihydroxyphenylalanine (L-DOPA)

DOPA decarboxylase Aromatic L-amino acid decarboxylase CO2 HO

Dopamine NH2

HO O2, Ascorbic acid

Dopamine β-hydroxylase

H2O, Dehydroascorbic acid OH HO

Noradrenaline (norepinephrine) NH2

HO S-adenosylmethionine

Phenylethanolamine N-methyltransferase

Homocysteine OH HO HO

Adrenaline (epinephrine) NHMe

Figure 2.1  Biosynthesis of catecholamines. (Modified from Wikipedia.)

In a study of 36 violent offenders, a relatively lower CSF 5-HIAA concentration was found in the impulsive violent offenders compared with those whose violent acts had not appeared to be premeditated; other CSF monoamine concentrations and metabolite concentrations did not differ significantly between these two subgroups.9 In harmony with its putative role as a biochemical suicide predictor index, it was also reported that of the 36 violent offenders, impulsive violent offenders who had attempted suicide had the lowest CSF 5-HIAA levels.9 The authors of this study hypothesized that a low CSF 5-HIAA concentration

might be considered to be a marker of impulsivity rather than of violence. Lidberg, Åsberg, and Sundqvist-Stensman published an informative series of three cases of patients who had murdered or tried to murder their children. Case 1 was a 29-year-old married mother who drowned her 4-month-old son, having tried to strangle him and then commit suicide a few days earlier. Case 2 was a 36-year-old man who fatally stabbed his 10-year-old son and also stabbed his wife and himself; both he and his wife survived. The third case was a 38-year-old man who tried to gas himself and his 4-year-old daughter for whom he was temporarily caring following his divorce; they were both found unconscious by the girl’s mother and successfully resuscitated. In line with the finding that filicidal behavior varies inversely with brain serotonin content in rats (see earlier discussion), the CSF 5-HIAA levels in these three human cases were very low compared with concentrations obtained from healthy control subjects and are shown in Figure 2.4.10 It should be noted that none of the three cases had a prior history of violent behavior or alcohol abuse and that in the 3 weeks before lumbar puncture, none had taken any drugs that might have affected the CSF 5-HIAA levels. Virkkunen and colleagues conducted a prospective ­follow-up study in Finland of 114 male alcoholic violent offenders and fire-setters for an average of 4½ years following their release from prison. Among all offenders, low CSF 5-HIAA and HVA concentrations were associated with a family history positive for paternal alcoholism with violence, while low plasma cholesterol concentration was associated with a family history positive for paternal alcoholism without violence. Furthermore, recidivists, who committed violent offenses or set fires during the follow-up period, had lower CSF 5-HIAA and CSF MHPG levels compared with the nonrecidivists.11 It has been suggested that platelet monoamine o ­ xidase B (MAO-B) activity may serve as a biological marker for aggression-related personality traits or as a predictor for violent recidivism among violent offenders.12 However, a recent large, prospective study of 77 consecutive perpetrators of severe interpersonal violent and/or sexual crimes by Gustavson and colleagues reported no significant correlation between platelet MAO-B activity and any of the following measures: assessments of childhood behavioral disorders, substance abuse, or psychosocial adversity; crime-related factors, such as scores on the Life History of Aggression Scale, the Psychopathy Checklist; and recidivistic violent crime.12 Furthermore, in 36 of the subjects, CSF levels of monoamine neurotransmitter metabolites were measured; there was no significant correlation between any of these metabolite concentrations and platelet MAO-B activity. In the prefrontal cortex, catechol-O-methyltransferase (COMT) has a critical role to play in the catabolism of dopamine, as indicated in Figure 2.2. Inhibition of COMT with tolcapone therefore causes increased prefrontal dopaminergic signaling and is associated with improved pre-pulse inhibition and working memory.13–16 It has been hypothesized that impulse-control disorders may be related to less

Endocrinological influences  17

Tetrahydrobiopterin

Dihydropteridine reductase

Tyrosine

Dihydrobiopterin

L-DOPA Monoamine oxidase Catechol-Omethyltransferase 3-O-methyldopa Tyrosine hydroxylase

Dopamine

Norepinephrine

catechol-Omethyltransferase

Epinephrine Catechol-Omethyltransferase

Monoamine oxidase

Metanephrine Monoamine oxidase Dihydroxyphenylacetic acid Normetanephrine Catechol-OCatechol-Omethyltransferase Monoamine Vanillactic acid methyltransferase Homovanillic acid 3-methoxy-4oxidase hydroxyphenylglycol Monoamine oxidase Monoamine oxidase

Vanillylmandelic acid

Figure 2.2  Catecholamine catabolic pathways. (Modified from Michael W King/themedicalbiochemistrypage.org.)

OH HN

L-Tryptophan

NH2

O2, Tetrahydro-

biopterin

L-Tryptophan-5-monooxygenase

Hydroxytetrahydrobiopterine

Tryptophan hydroxylase (TPH)

Number of Subjects

O

10

5 3 1 50

HO O OH HN

NH2

5-Hydroxy-L-tryptophan (5-HTP)

Pyridoxal- 5-Hydroxytryptophan decarboxylase phosphate Aromatic L-amino acid decarboxylase

HO

Serotonin (5-HT) HN O2, H2O NH3, H2O2

NH2

Monoamine oxidase (MAO), Aldehyde dehydrogenase

HO

Standardized CSF 5HIAA

2 100 150 Nanomol/L

200

Figure 2.4  CSF 5-HIAA concentrations in three patients who murdered or attempted to murder a child in relation to concentrations obtained in healthy volunteer controls. Numbers refer to case number. All concentrations have been standardized via a regression equation. (Reprinted from The Lancet, 2, Lidberg L, Åsberg M, SundqvistStensman UB, 5-Hydroxyindoleacetic acid levels in attempted suicides who have killed their children, 928, Copyright 1984, with permission from Elsevier.)

efficient prefrontal neural signaling and possible deficits in executive cognitive functioning, with impairments in cortical information processing potentially increasing the risk for making decisions that are impulsive, focused on short-term gains, and lack inhibitory control.17 Therefore, a COMT inhibitor may be of therapeutic use in such disorders. Indeed, Grant has published a case report indicating an apparent initial efficacy of tolcapone in a 60-year-old married woman suffering from long-standing kleptomania.18

ENDOCRINOLOGICAL INFLUENCES OH HN

O

5-Hydroxyindoleacetic acid (5-HIAA)

Figure 2.3  Anabolism and catabolism of serotonin. (Modified from Wikipedia.)

Thyroid hormone activity, of both thyroxine (T4) and its more potent derivative triiodothyronine (T3), has been measured in a number of offender groups. The hypothalamic-pituitarythyroid axis appears to be involved in psychopathy and also in post-traumatic stress disorder (PTSD). In the latter, T3

18 Neurochemistry

levels appear to be particularly associated with hyperarousal (including irritability and aggressive behavior). Following a 6- to 8-year follow-up study in Uppsala of 60 male offenders who had committed serious, mostly violent, criminal acts and who had undergone baseline forensic psychiatric examination during 1992–1994, Stahlenheim found that criminal recidivists at follow-up had higher serum T3 levels than nonrecidivists, and much higher values than normal controls, while their levels of free T4 were lower than those of the nonrecidivists and of the controls.19 In the criminal recidivist group, T3 levels correlated with psychopathyand aggression-related personality traits measured with the Karolinska Scales of Personality. As shown in Figure  2.5,

3

T3 nmol/l

2.6

2.2

1.8

r = 0.67, p 0.008

1.4 20

30

40

50 60 70 Detachment, T-score (a)

80

90

3

a particularly high correlation was found between T3 levels and irritability and detachment in violent recidivists; these traits may be associated with dopaminergic functioning.19 It is noteworthy that the suicidal temperament hypothesis suggests that personality traits such as aggression, anxiety proneness, impulsivity, and low socialization may increase vulnerability to suicide risk. In fact, a recent study of euthyroid patients who had attempted suicide reported that in men, though not women, there is a strong negative correlation between the T3/T4 ratio and aggressiveness measured using the Karolinska Scales of Personality (Figure 2.6).20 Even 50 years after the end of World War II, veterans suffering from PTSD showed a higher total and free T3 than controls; a positive correlation has also been reported between T3 levels and PTSD symptoms, particularly hyperarousal, in a cohort of 30 veterans (12 with PTSD and 18 without).21 A study of 22 sexually abused adolescent girls reported significant negative correlations. In a comparison of 57 convicted male rapists with 25 male controls, Giotakas and colleagues reported that the rapists had higher plasma levels of the following sex hormones: testosterone, dihydrotestosterone, and luteinizing hormone (LH); the free-androgen index was also higher in the rapists. The LH level was positively correlated with scores on the following instruments: the Lifetime History of Aggression, the Barratt Impulsiveness Scale, and the Aggression Questionnaire. The urinary 5-HIAA level was lower in the rapists, was negatively correlated with suicide risk, and came close to being significantly negatively c­ orrelated with the Lifetime History of Aggression scores.22 Thus, in rapists, there may be an overactive hypothalamic-­pituitary-gonadal axis, possibly resulting from reduced c­ entral serotonergic activity.22

Gender: male

2.2

R. Sq Linear = 0.357

0.25

1.8

r = 0.62, p 0.017

1.4 20

30

40

50 60 70 Detachment, T-score (b)

80

90

Figure 2.5  (a) Relationship between serum T3 concentrations and Karolinska Scales of Personality ratings of detachment at follow-up 6 to 8 years after forensic psychiatric examination. Subjects with violent criminal recidivism, n = 14/58, are presented in the figure. (b) Relationship between serum T3 concentrations and Karolinska Scales of Personality ratings of irritability at follow-up 6 to 8 years after forensic psychiatric examination. Subjects with violent criminal recidivism, n = 14/58, are presented in the figure. (Reprinted from Psychiatry Research, 121, Stalenheim EG, Long-term validity of biological markers of psychopathy and criminal recidivism: Follow-up 6–8 years after forensic psychiatric investigation, 281–91, Copyright 2004, with permission from Elsevier.)

T3/T4 Ratio

T3 nmol/l

2.6

0.20

0.15

0.10 35.00

40.00

55.00 45.00 50.00 Aggressiveness

60.00

65.00

Figure 2.6  Correlation between the T3/T4 ratio and aggressiveness (measured using the Karolinska Scales of Personality) in 23 men who had attempted suicide. (Reprinted from Psychoneuroendocrinology, 34, Sinai C, et al., Thyroid ­hormones and personality traits in attempted suicide, 1526–32, Copyright 2009, with permission from Elsevier.)

References 19

Finally, it should be noted that the abuse of anabolic androgenic steroids, for example by athletes and bodybuilders, is associated with psychiatric side effects such as aggression, depression, and violent behavior.23

REFERENCES 1. Valzelli L. Psychopharmacology of Aggression. New York: S. Karger, 1978. 2. Valzelli L. Psychobiology of Aggression and Violence. New York: Raven Press, 1981. 3. Copenhaver JH, Schalock RL, Carver MJ. ParaChloro-D, L-phenylalanine induced filicidal behavior in the female rat. Pharmacology, Biochemistry, and Behavior. 1978; 8: 263–70. 4. Nilsson T, Bromander S, Anckarsater R, et al. Neurochemical measures co-vary with personality traits: Forensic psychiatric findings replicated in a general population sample. Psychiatry Research. 2010; 178: 525–30. 5. Anckarsater H, Forsman A, Blennow K. Increased CSF/serum albumin ratio: A recurrent finding in violent offenders. Acta Neurologica Scandinavica. 2005; 112: 48–50. 6. Soderstrom H, Blennow K, Sjodin AK, Forsman A. New evidence for an association between the CSF HVA:5-HIAA ratio and psychopathic traits. Journal of Neurology, Neurosurgery, and Psychiatry. 2003; 74: 918–21. 7. Asberg M, Thoren P, Traskman L, et al. “Serotonin depression”—A biochemical subgroup within the affective disorders? Science. 1976; 191: 478–80. 8. Asberg M, Traskman L, Thoren P. 5-HIAA in the cerebrospinal fluid. A biochemical suicide predictor? Archives of General Psychiatry. 1976; 33: 1193–7. 9. Linnoila M, Virkkunen M, Scheinin M, et al. Low cerebrospinal fluid 5-hydroxyindoleacetic acid concentration differentiates impulsive from nonimpulsive violent behavior. Life Sciences. 1983; 33: 2609–14. 10. Lidberg L, Asberg M, Sundqvist-Stensman UB. 5-Hydroxyindoleacetic acid levels in attempted ­suicides who have killed their children. Lancet. 1984; 2: 928. 11. Virkkunen M, Eggert M, Rawlings R, Linnoila M. A prospective follow-up study of alcoholic violent offenders and fire setters. Archives of General Psychiatry. 1996; 53: 523–9.

12. Gustavson C, Wass C, Mansson JE, et al. Platelet monoamine oxidase B activity did not predict destructive personality traits or violent recidivism: A prospective study in male forensic psychiatric examinees. Neuropsychobiology. 2010; 61: 87–96. 13. Malhotra AK, Kestler LJ, Mazzanti C, et al. A ­functional polymorphism in the COMT gene and performance on a test of prefrontal cognition. The American Journal of Psychiatry. 2002; 159: 652–4. 14. Roussos P, Giakoumaki SG, Pavlakis S, Bitsios P. Planning, decision-making and the COMT rs4818 polymorphism in healthy males. Neuropsychologia. 2008; 46: 757–63. 15. Apud JA, Mattay V, Chen J, et al. Tolcapone improves cognition and cortical information processing in normal human subjects. Neuropsychopharmacology. 2007; 32: 1011–20. 16. Apud JA, Weinberger DR. Treatment of cognitive deficits associated with schizophrenia: Potential role of catechol-O-methyltransferase inhibitors. CNS Drugs. 2007; 21: 535–57. 17. Grant JE. Impulse Control Disorders: A Clinician’s Guide to Understanding and Treating Behavioral Addictions. 1st ed. New York: W.W. Norton, 2008. 18. Grant JE. Kleptomania treated with tolcapone, a catechol-O-methyl-transferase (COMT) inhibitor. Progress in Neuro-Psychopharmacology & Biological Psychiatry. 2011; 35: 295–6. 19. Stalenheim EG. Long-term validity of biological markers of psychopathy and criminal recidivism: Follow-up 6–8 years after forensic psychiatric investigation. Psychiatry Research. 2004; 121: 281–91. 20. Sinai C, Hirvikoski T, Vansvik ED, et al. Thyroid hormones and personality traits in attempted suicide. Psychoneuroendocrinology. 2009; 34: 1526–32. 21. Wang S, Mason J. Elevations of serum T3 levels and their association with symptoms in World War II veterans with combat-related posttraumatic stress disorder: Replication of findings in Vietnam combat veterans. Psychosomatic Medicine. 1999; 61: 131–8. 22. Giotakos O, Markianos M, Vaidakis N, Christodoulou GN. Aggression, impulsivity, plasma sex hormones, and biogenic amine turnover in a forensic population of rapists. Journal of Sex & Marital Therapy. 2003; 29: 215–25. 23. Lood Y, Eklund A, Garle M, Ahlner J. Anabolic androgenic steroids in police cases in Sweden 1999–2009. Forensic Science International. 2012; 219: 199–204.

3 Structural neuroimaging BASANT K. PURI Introduction 21 Antisocial personality disorder and violent offending 21 24 Schizophrenia and violent offending Pedophilia 25

26 Autism spectrum disorder 26 Legal aspects References 26

INTRODUCTION

antisocial behavior.3 In particular, the Vietnam Head Injury Study suggested that frontal ventromedial lesions are associated with high levels of aggression or violence, although the existence of pre-trauma risk factors was not reported.3,4 In contrast, temporal lobe abnormalities or infection may be associated with a lack of empathy, disturbed interpersonal relationships, and instrumental aggression.3 Adrian Raine, Yaling Yang, and colleagues have studied differences in frontal and temporolimbic regions in male psychopaths with a high psychopathy score of at least 23 on the Hare Psychopathy Checklist—Revised (PCL-R)5 who were either “successful” (escaped detection for their crimes) or “unsuccessful” (detected and convicted for their crimes). They showed that psychopathy is associated with a prefrontal structural deficit.6 In particular, Yang and colleagues reported that PCL-R scores were negatively correlated with prefrontal gray matter volumes (as were Hare’s factors 1 and 2—the relationship between psychopathy and prefrontal gray matter volume was nonspecific); unsuccessful psychopaths, but not successful psychopaths, had a 22% reduction (16.1 cm3) in prefrontal gray matter volumes compared with control subjects; these relationships did not generalize to prefrontal white matter or to the volume of the whole brain, as shown in Figure  3.3. Furthermore, Raine and colleagues reported that unsuccessful psychopaths showed an exaggerated rostrally localized structural hippocampal asymmetry (right greater than left) relative both to successful psychopaths and to controls (Figure 3.4); the authors speculated that this “may reflect an underlying neurodevelopmental abnormality that disrupts hippocampalprefrontal circuitry, resulting in affect dysregulation, poor contextual fear conditioning, and insensitivity to cues predicting capture.”7 A review of 48 articles (including 11 structural neuroimaging studies) relating to neuroimaging findings in aggression

The first part of this chapter describes the main brain structural magnetic resonance imaging (MRI) findings reported in violent male offenders diagnosed as suffering from antisocial personality disorder or schizophrenia at the time of the index offense. Brain structural MRI findings associated with pedophilia are considered next, followed by those that occur in offenders suffering from autism. The chapter ends with a brief discussion of legal aspects related to structural neuroimaging findings in offenders.

ANTISOCIAL PERSONALITY DISORDER AND VIOLENT OFFENDING That changes to frontal lobe structure may be associated with profound changes in personality was suggested by the famous case of Phineas Gage, the American railroad worker who on September 13, 1848, at the age of 25 years, was the victim of a terrible accident. Having put blasting powder into a borehole, Gage forgot to add sand before tamping it down with a three-foot iron tamping bar, which consequently blasted out, entered his left cheek, destroyed his left eye, and passed out of his skull.1 Having survived this neurotrauma, Gage changed from being an energetic, reliable, systematic and hardworking individual to being impulsive, stubborn, and disorganized.1 Photographs of Gage’s skull are shown in Figure 3.1, while Figure 3.2 shows computergenerated models of the lesion, from which it appears that the tamping iron caused medial and lateral left orbitofrontal lesions and left dorsolateral prefrontal damage, but spared the supplementary motor cortex and Broca’s area. Gage suffered from neither contralateral hemiplegia nor dysphasia.2 Further studies of patients who have suffered frontal lobe damage provide evidence for a possible association with

21

22  Structural neuroimaging

(b)

(d)

(f)

(c) (e)

(a)

Figure 3.1  Photographs of Phineas Gage’s skull. cr—crack through the frontal bone; fr—partially consolidated fracture line through the maxilla; ant—anterior bone flap at the exit site; lt—left (posterior) bone flap at the exit site; fi—fissure through the squama temporalis; s-t—spheno-temporal suture; oc—optic canal. (a) Overview of the skull. (b) Close-up of the ­calvarium viewed from the inside. (c) Close-up of the maxilla. (d) Lateral view of the squama temporalis. (e) Inferolateral view. (f) Superior view of the entry site with the calvarium removed. The circled areas in d, e, and f indicate the entry site of the tamping iron. (From Ratiu P, Talos IF, Haker S et al. The tale of Phineas Gage, digitally remastered. Journal of Neurotrauma 2004; 21: 637–43.)

SSS

(b)

(a)

(c)

SSS

Cc Cg

(d)

Lv

(e)

(f)

Figure 3.2  Computer-generated models of the lesions. (a) The tamping iron in situ. (b) The volume of the tamping iron subtracted from the model of the brain. SSS—superior sagittal sinus. (c) The model with gray matter removed, to show white matter. (d) Relation of the tamping iron with the SSS and other blood vessels. (e) Relation of the tamping iron with the cingulate gyrus (Cg). (f) Relation of the tamping iron with the left lateral ventricle (Lv). (From Ratiu P, Talos IF, Haker S et al. The tale of Phineas Gage, digitally remastered. Journal of Neurotrauma 2004; 21: 637–43.)

0.1

Unsuccessful psychopaths Successful psychopaths Controls

0.09

Ratio

0.08

0.07

R-L Laterality

Antisocial personality disorder and violent offending  23

0.14 0.12 0.1 0.08 0.06 0.04 0.02 0 –0.02 –0.04 –0.06

1 3 5 7 9 11 13 15 17 19 21 23 25 27 29 Anterior Slice Posterior Unsuccessful psychopaths Controls

0.06

Successful psychopaths

Figure 3.3  Ratios of prefrontal gray and white matter to whole brain in unsuccessful psychopaths, successful psychopaths, and controls. (From Biological Psychiatry, 57, Yang Y, Raine A, Lencz T et al., Volume reduction in prefrontal gray matter in unsuccessful criminal psychopaths, 1103–8, Copyright 2005, with permission from Elsevier.)

Figure 3.4  Right-left hippocampal laterality (R-L Laterality) scores for unsuccessful psychopaths, successful psychopaths, and controls. Unsuccessful psychopaths showed an exaggerated structural hippocampal asymmetry (R > L) relative both to successful psychopaths and to control subjects (p 28) were compared with 17 aged-matched male controls (PCL-R 0-back

4 Superior Frontal Gyrus

Anterior Cingulate

Parietal Precuneus Cortex 2-back > 0-back

t value

Precuneus

Z = 48

3 2 1

Precuneus

Z = 48

Z = 48

(a) Areas of Reduced Activity in Violent Schizophrenia Patients Compared to Non-violent Schizophrenia Patients t value 3.50

2.50

Inferior Parietal Cortex

1.5

0.5 Z = 46

Z = 48 (b)

Figure 4.2  (a) Transverse slices showing significant activation deficits (p < 0.05) in violent schizophrenia, nonviolent schizophrenia, and antisocial personality disorder (APD) groups, relative to the group of controls. (b) Transverse slices showing significant activation deficits (p < 0.05) in the group of violent schizophrenia patients compared with the group of nonviolent schizophrenia patients during the 2-back (relative to 0-back) condition. The left hemisphere is on the left side.  (Continued)

32  fMRI and PET

Neural Activity, Performance, and Violence Ratings across Violent and Non-Violent Schizophrenia Patients 0.6

0.6

Left Superior Frontal

1.0

Right Superior Frontal

Right Inferior Parietal

Change in Brain Activity

0.8 0.4

0.4

0.2

0.2

0.0

0.0

0.6 0.4 0.2 0.0 –0.2

r = 0.25, p = 0.22

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20 40 60 80 Accuracy (% Correct)

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20

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0.8 0.4

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–0.2 8

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Figure 4.2 (Continued)  (c) Scatter plots between activity in regions showing deficits (2-back < 0-back contrast) in the violent schizophrenia group (relative to the nonviolent schizophrenia and healthy groups) with performance accuracy and violence ratings across all schizophrenia patients. (From Schizophrenia Research, 84, Kumari V, Aasen I, Taylor P et al., Neural dysfunction and violence in schizophrenia: an fMRI investigation, 144–64, Copyright 2006, with permission from Elsevier.)

PEDOPHILIA The first published fMRI study on pedophilia was a case report by Dressing and colleagues in 2001. It found that presentation of images of young boys in underwear to a homosexual pedophilic sex offender was associated with significant activation of the “attention network” and the right orbitofrontal cortex, even though on self-assessment on a visual analogue scale, the sex offender scored the images as “not interesting” and sexually “not stimulating.”9 Schiffer and colleagues compared brain activation in eight unmedicated heterosexual pedophilic sex offenders and 12 healthy matched heterosexual controls. While visual sexual stimulation was associated with orbitofrontal cortical activation in the controls, this was not so in the pedophiles, in whom abnormal activity in the dorsolateral prefrontal cortex was reported, leading the authors to conclude that “central processing of sexual stimuli in heterosexual paedophiles may be altered by a disturbance in the prefrontal networks, which … may be associated with stimulus-­controlled behaviours, such as sexual

compulsive behaviours. Moreover, these findings may suggest a dysfunction (in the functional and effective connectivity) at the cognitive stage of sexual arousal processing.”10 In their study of nine pedophile offenders and 11 matched nonsexual offenders, Poeppl and colleagues exposed the offenders to 144 male and female nude (prepubescent, pubescent, and adult) and 12 neutral images during fMRI.11 During exposure to the images of nude prepubescent children, the following brain regions showed higher activity in the pedophile offenders compared with the nonsexual offenders: the posterior cingulate cortex, left posterior insular region, right anterior insular region, thalamus, hippocampus, and cerebellum (Figure  4.3). The authors concluded that “the brain response of pedophiles to visual sexual stimulation by images of nude prepubescents is comparable with previously described neural patterns of sexual processing in nonpedophilic human males evoked by visual stimuli depicting nude adults. Nevertheless, group differences found in the cingulate gyrus and the insular region suggest an important role of these brain areas in pedophilic sexual interest.”11

Children and adolescents  33

CHILDREN AND ADOLESCENTS

y = –40

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Thresholded at p < .01 for illustrative purposes.

z = 22

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R

Figure 4.3  Top: Findings when participants were stimulated with pictures of nude prepubescent children. Brain areas of higher activity in pedophiles compared with nonparaphiliac offenders included the posterior cingulate cortex, thalamus, hippocampus, and cerebellum. Bottom: Higher neural activity in the left posterior (L) and right anterior (R) insular region of pedophiles compared with non-paraphiliac offenders. The activation map was obtained from a between-group comparison for visual sexual stimulation with participants’ preferred picture material, respectively (i.e., Tanner I [prepubescent children] > neutral pictures contrast for pedophiles and Tanner V [adults] > neutral pictures contrast for nonparaphiliac controls). (From Functional cortical and subcortical abnormalities in pedophilia: A combined study using a choice reaction time task and fMRI. Poeppl TB, Nitschke J, Dombert B, et al. The Journal of Sexual Medicine. 8: 1660–74. Copyright 2001, with permission from John Wiley & Sons.)

Sterzer and colleagues compared brain activation while viewing pictures with neutral or strong negative affective valence in 13 adolescents (aged 9–15 years) with severe conduct disorder and 14 healthy matched controls.12 Differential neural activity in the conduct disorder group compared with the control group for the contrast (negative affect–neutral affect) was reported in the right dorsal anterior cingulate cortex, resulting from a pronounced deactivation in the patient group during viewing of negative pictures, while after correcting for anxiety and depressive symptoms, there was also reduced responsiveness of the left amygdala to negative pictures in the patients compared with the controls; the authors suggested that “these findings reflect an impairment of both the recognition of emotional stimuli and the cognitive control of emotional behavior in patients with [conduct disorder], resulting in a propensity for aggressive behavior.”12 In contrast, in their somewhat similar study of 22 adolescents (aged 12–17 years) with childhood-onset conduct disorder (of whom 16 had comorbid attention-deficit/hyperactivity disorder [ADHD]) compared with 22 matched healthy controls, Herpertz and colleagues reported enhanced left-sided amygdala activation in response to negative pictures compared with neutral pictures in the conduct disorder (± ADHD) group.13 This different result might reflect an enhanced response to environmental cues in adolescents with early-onset conduct disorder (and, in most cases, ADHD).13,14 Shannon and colleagues studied resting-state functional connectivity in 107 juvenile offenders (78 males aged 14–19 years) held in a high-security facility for crimes ranging from drug offenses to assault and sexual assault and in a sample of 95 controls recruited from the community (sex ratio not given; aged 7–31 years).15 Impulsivity was assessed using factor 2 of the youth version of the Hare Psychopathy Checklist (PCL-YV).16 In the less-impulsive juveniles and in the normal controls, motor planning regions were correlated with brain networks associated with spatial attention and executive control, but in the more-impulsive juveniles, the same regions correlated with the default-mode network, a constellation of brain areas associated with spontaneous, unconstrained, self-referential cognition; the strength of the brain-behavior relationships could predict impulsivity scores in individual young people (Figures  4.4 and 4.5).15 The authors concluded that …increased functional connectivity of motorplanning regions with networks s­ubserving unconstrained, self-referential cognition, rather than those subserving executive control, heightens the predisposition to impulsive behavior in juvenile offenders. To further explore the relationship between impulsivity and neural development, we studied functional connectivity in the same motor-planning regions in 95 ­typically developing individuals across a wide

34  fMRI and PET

Motor-Planning Regions Implicated in Impulsivity

(a)

Predicted Impulsivity

r = 0.39 p < 0.001

0

10 Measured Impulsivity (b)

20

Figure 4.4  Premotor functional connectivity and impulsivity. (a) Bilateral dorsorostral premotor regions (PMdr). These two regions showed the greatest correlation between resting state functional connectivity (RS-fcMRI) and impulsivity in the juvenile offender cohort. (b) Predicted versus measured impulsivity evaluated in juvenile offenders using the leave-one-out procedure. Impulsivity (arbitrarily scaled) was predicted on the basis of bilateral PMdr RS-fcMRI. The correlation is highly significant. (From Shannon BJ, Raichle ME, Snyder AZ, et al. Premotor functional connectivity predicts impulsivity in juvenile offenders. Proceedings of the National Academy of Sciences of the United States of America. 2011; 108: 11241–5.)

age span. The change in functional connectivity with age mirrored that of impulsivity: younger subjects tended to exhibit functional connectivity similar to the more-impulsive incarcerated juveniles, whereas older subjects exhibited a less-impulsive pattern. This observation suggests that impulsivity in the offender population is a consequence of a delay in typical development, rather than a distinct abnormality.15

LEGAL ASPECTS Traditionally, autonomic nervous system responses, such as the skin galvanic conductance, have been used to try to detect deception, for example in the polygraph “lie detector.” Several research groups have attempted to discover whether fMRI can be used to detect deception by conducting studies

in normal (non-psychiatric, non-forensic) volunteers. The results are not consistent. For example, Gamer and colleagues used a paradigm based on the guilty knowledge test and found that activation of the right inferior frontal and mid-cingulate regions appeared to be associated with deception, while the level of the skin conductance response was positively correlated with the activity in the right inferior frontal cortex, the supplementary motor area, and the cerebellum.17 On the other hand, Fullam and colleagues found that lie responses were associated with enhanced activation of the ventrolateral prefrontal cortex.18 Discussing the use of fMRI and genetics for the practice of law and of forensic psychiatry, particularly in relation to both offenders with APD and sex offenders, Dressing and colleagues conclude that “while increasing knowledge of functional and structural alterations provides a ­better understanding of the neurobiological underpinnings of delinquent behaviour, antisocial and violent behaviour arises from a complex pattern of biological, psychological, social and situational factors, precluding a stance of simple biological reductionism. Rather, optimal integration of neurobiological findings requires cooperation among many disciplines such as medicine, criminology, sociology, psychology, politics and neuroscience.”19 Considering the use of fMRI in lie detection and in determining criminal responsibility, in 2008 Langleben and Dattilio reached the conclusion that more brain imaging research was required, but that in due course this might “foster the emergence of a new discipline of forensic MRI.”20 In 2010, Brown and Murphy argued strongly against the use of fMRI by the US legal system: As with phrenology and the polygraph, society is again confronted with a device that the media claims is capable of reading our minds. [fMRI], along with other types of functional brain imaging technologies, is currently being introduced at various stages of a criminal trial as evidence of a defendant’s past mental state.… Using the analytical framework provided by Federal Rule of Evidence 403 as a threshold to a Daubert/ Frye analysis, we demonstrate that, when fMRI methodology is properly understood, brain images are only minimally probative of a defendant’s past mental states and are almost certainly more unfairly prejudicial than probative on balance.… we argue that this technology may present a particularly strong form of unfair prejudice in addition to its potential to mislead jurors and waste the court’s resources.21 Perhaps the last word on fMRI and expert testimony should be left to Kulich and colleagues, who give a rather stark historical comparison: “History is full of examples where the legal system gives credence to supposed tests or objective signs that are fundamentally without foundation but fueled by the social and political agenda. The fervor

Legal aspects  35

Motor-Planning Functional Connectivity in Typical Adults

0.1 –0.1

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Figure 4.5  (a) Bilateral dorsorostral premotor regions (PMdr) functional connectivity in typical young adults. PMdr is positively correlated with the dorsal attention network and the executive-control network and negatively correlated with the default-mode network. (b) Correlation between PMdr functional connectivity and impulsivity in juvenile offenders. PMdr functional connectivity in less-impulsive juveniles is similar to that of adults. However, in more-impulsive juveniles its relationships reverse; it is positively correlated with the default-mode network and negatively correlated with the dorsalattention and executive-control networks. (From Shannon BJ, Raichle ME, Snyder AZ, et al. Premotor functional connectivity predicts impulsivity in juvenile offenders. Proceedings of the National Academy of Sciences of the United States of America. 2011; 108: 11241–5.)

36  fMRI and PET

to discover and eliminate heresy in medieval Europe was codified in the Malleus maleficarum (1486), which included multiple tests to prove witchcraft and demonic possession. The testing provided the justification and zeal for widespread use of torture over 200 years.”22

REFERENCES 1. Volkow ND, Tancredi L. Neural substrates of violent behaviour. A preliminary study with positron emission tomography. The British Journal of Psychiatry: The Journal of Mental Science. 1987; 151: 668–73. 2. Wong M, Fenwick P, Fenton G, et al. Repetitive and non-repetitive violent offending behaviour in male patients in a maximum security mental ­hospital— Clinical and neuroimaging findings. Medicine, Science, and the Law. 1997; 37: 150–60. 3. Kiehl KA, Smith AM, Hare RD, et al. Limbic abnormalities in affective processing by criminal psychopaths as revealed by functional magnetic resonance imaging. Biological Psychiatry. 2001; 50: 677–84. 4. Deeley Q, Daly E, Surguladze S, et al. Facial emotion processing in criminal psychopathy. Preliminary functional magnetic resonance imaging study. The British Journal of Psychiatry: The Journal of Mental Science. 2006; 189: 533–9. 5. Kumari V, Aasen I, Taylor P, et al. Neural dysfunction and violence in schizophrenia: An fMRI investigation. Schizophrenia Research. 2006; 84: 144–64. 6. Barkataki I, Kumari V, Das M, et al. Neural correlates of deficient response inhibition in mentally disordered violent individuals. Behavioral Sciences & The Law. 2008; 26: 51–64. 7. Dolan MC, Fullam RS. Psychopathy and functional magnetic resonance imaging blood oxygenation level-dependent responses to emotional faces in violent patients with schizophrenia. Biological Psychiatry. 2009; 66: 570–7. 8. Jiang W, Liao J, Liu H, et al. [Functional MRI analysis of deception among people with antisocial personality disorders]. Zhong nan da xue xue bao Yi xue ban [Journal of Central South University Medical Sciences]. 2012; 37: 1141–6. 9. Dressing H, Obergriesser T, Tost H, et al. [Homosexual pedophilia and functional networks—An fMRI case report and literature review]. Fortschritte der Neurologie-Psychiatrie. 2001; 69: 539–44. 10. Schiffer B, Paul T, Gizewski E, et al. Functional brain correlates of heterosexual paedophilia. NeuroImage. 2008; 41: 80–91.

11. Poeppl TB, Nitschke J, Dombert B, et al. Functional cortical and subcortical abnormalities in pedophilia: A combined study using a choice reaction time task and fMRI. The Journal of Sexual Medicine. 2011; 8: 1660–74. 12. Sterzer P, Stadler C, Krebs A, et al. Abnormal neural responses to emotional visual stimuli in adolescents with conduct disorder. Biological Psychiatry. 2005; 57: 7–15. 13. Herpertz SC, Huebner T, Marx I, et al. Emotional processing in male adolescents with childhoodonset conduct disorder. Journal of Child Psychology and Psychiatry, and Allied Disciplines. 2008; 49: 781–91. 14. Vloet TD, Konrad K, Huebner T, et al. Structural and functional MRI—Findings in children and adolescents with antisocial behavior. Behavioral Sciences & The Law. 2008; 26: 99–111. 15. Shannon BJ, Raichle ME, Snyder AZ, et al. Premotor functional connectivity predicts impulsivity in juvenile offenders. Proceedings of the National Academy of Sciences of the United States of America. 2011; 108: 11241–5. 16. Forth AE, Kosson DS, Hare RD. The Hare Psychopathy Checklist: Youth Version. Toronto, Ontario: Multi-Health Systems, 2003. 17. Gamer M, Bauermann T, Stoeter P, Vossel G. Covariations among fMRI, skin conductance, and behavioral data during processing of concealed information. Human Brain Mapping. 2007; 28: 1287–301. 18. Fullam RS, McKie S, Dolan MC. Psychopathic traits and deception: Functional magnetic resonance imaging study. The British Journal of Psychiatry: The Journal of Mental Science. 2009; 194: 229–35. 19. Dressing H, Sartorius A, Meyer-Lindenberg A. Implications of fMRI and genetics for the law and the routine practice of forensic psychiatry. Neurocase. 2008; 14: 7–14. 20. Langleben DD, Dattilio FM. Commentary: The future of forensic functional brain imaging. The Journal of the American Academy of Psychiatry and the Law. 2008; 36: 502–4. 21. Brown T, Murphy E. Through a scanner darkly: Functional neuroimaging as evidence of a criminal defendant’s past mental states. Stanford Law Review. 2010; 62: 1119–208. 22. Kulich R, Maciewicz R, Scrivani SJ. Functional ­magnetic resonance imaging (FMRI) and expert testimony. Pain Medicine. 2009; 10: 373–80.

5 Neurospectroscopy BASANT K. PURI Introduction 37 Schizophrenia and violent offending 37

Partner violence–related post-traumatic stress disorder (PTSD) 37 References 38

INTRODUCTION

cerebral energy metabolism in the forensic patient group.2 Furthermore, there was a strong negative correlation between the inorganic phosphate concentration (labeled Pi in Figure 5.1) and the volumetric niacin response; the latter is a non-invasive niacin-based measure of phospholipid signal transduction.4,5 Hence these further results suggest that patients with schizophrenia who have violently offended and who have poor phospholipid-related signal transduction may have higher levels of cerebral energy metabolism.

Neurospectroscopy can provide information about membrane phospholipid turnover, cellular energetics, neuronal function, selected neurotransmitter activity, and intracellular pH non-invasively in vivo.1 It has been used infrequently in forensic psychiatry thus far.

SCHIZOPHRENIA AND VIOLENT OFFENDING Puri, Treasaden, and colleagues conducted a cerebral 31-­ phosphorus magnetic resonance spectroscopy study of 15 male patients with schizophrenia who had violently offended (homicide, attempted murder, or wounding with intent to cause grievous bodily harm) while psychotic and a control group of 13 age-matched healthy male control subjects.2 Spectra were obtained from 70 × 70 × 70 mm3 voxels in the brain using an image-selected in vivo spectroscopy pulse sequence. Following initial truncation of the signal to remove the broad component, seven sets of peaks were modeled using Lorentzians (Figure 5.1). The area (and therefore the cerebral concentration) of β-nucleotide triphosphate (βNTP) was lower, and the γNTP higher, in the violent schizophrenia group compared with the control group. βNTP indexes adenosine triphosphate (ATP), the majority of adenosine diphosphate (ADP) is nuclear magnetic resonance–invisible, and the γNTP signal overlaps with signals from βADP, although the signal of γNTP is much stronger.3 Therefore, these results are consistent with increased

PARTNER VIOLENCE–RELATED POSTTRAUMATIC STRESS DISORDER (PTSD) Seedat, Stein, and colleagues conducted cerebral proton magnetic resonance spectroscopy of 16 women with a history of intimate partner violence (seven with DSM-IV PTSD, nine without).6 Spectra were obtained from dorsal prefrontal gray matter localized in the anterior cingulate (1  × 1 × 3 cm3) using a chemical shift selective pulse sequence. Peaks for N-acetylaspartate (NAA), choline (Cho), and creatine (Cr) were modeled as shown in Figure  5.2. The anterior cingulate ratio of Cho to Cr was higher in the women who had suffered intimate partner violence and had PTSD than in the intimate partner violence subjects without PTSD. There was no significant difference in NAA/Cr ratios between the two groups, and there was no significant association between metabolite ratios and performance on the Stroop or Trails B neuropsychological tests. Therefore, these results were consistent with neuroglial (rather than neuronal) change in the anterior cingulate.

37

38 Neurospectroscopy

Real

PCr

NAA PDE Pi γ

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25.00

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Figure 5.1  (a) Fitting seven peaks (darker line) to the 31P spectrum obtained (lighter line). The dotted line shows the baseline from the broad component, which is also shown in (b). Chemical shifts are indicated in parts per million (PPM in the figure). (From Prostaglandins, Leukotrienes, and Essential Fatty Acids, 70, Puri BK, Counsell SJ, Hamilton G et al., Cerebral metabolism in male patients with schizophrenia who have seriously and dangerously violently offended: a 31P magnetic resonance spectroscopy study, 409–11, Copyright 2004, with permission from Elsevier.)

REFERENCES 1. Cox IJ, Puri BK. In vivo MR spectroscopy in diagnosis and research of neuropsychiatric disorders. Prostaglandins, Leukotrienes, and Essential Fatty Acids. 2004; 70: 357–60. 2. Puri BK, Counsell SJ, Hamilton G, et al. Cerebral metabolism in male patients with schizophrenia who have seriously and dangerously violently offended: A 31P magnetic resonance spectroscopy study. Prostaglandins, Leukotrienes, and Essential Fatty Acids. 2004; 70: 409–11. 3. Cox IJ. Development and applications of in vivo clinical magnetic resonance spectroscopy. Progress in Biophysics and Molecular Biology. 1996; 65: 45–81. 4. Puri BK, Hirsch SR, Easton T, Richardson AJ. A volumetric biochemical niacin flush-based index that

4

3

2 Frequency (ppm)

1

0

Figure 5.2  Representative 1H spectrum for the anterior cingulate showing the three largest peaks: NAA, Cr, and Cho. Chemical shifts are indicated in parts per million (ppm). (From Psychiatry Research: Neuroimaging, 139, Seedat S, Videen JS, Kennedy CM, Stein MB, Single voxel proton magnetic resonance spectroscopy in women with and without intimate partner violence-related posttraumatic stress disorder, 249–58, Copyright 2005, with permission from Elsevier.) noninvasively detects fatty acid deficiency in schizophrenia. Progress in Neuro-Psychopharmacology & Biological Psychiatry. 2002; 26: 49–52. 5. Puri BK, Richardson AJ, Counsell SJ, et al. Negative correlation between cerebral inorganic phosphate and the volumetric niacin response in male patients with schizophrenia who have seriously and dangerously violently offended: A (31)P magnetic resonance spectroscopy study. Prostaglandins, Leukotrienes, and Essential Fatty Acids. 2007; 77: 97–9. 6. Seedat S, Videen JS, Kennedy CM, Stein MB. Single voxel proton magnetic resonance spectroscopy in women with and without intimate partner violencerelated posttraumatic stress disorder. Psychiatry Research. 2005; 139: 249–58.

6 Psychophysiology YU GAO Autonomic nervous system 39 Underarousal 39 Orienting response deficits 40 Poor fear conditioning 40 Emotion modulation deficits 41 Central nervous system 41

41 Slow-wave EEG and underarousal Frontal asymmetry 41 Atypical ERPs 41 Lie detection 42 Conclusion 42 References 42

In recent years interest in the neurobiological correlates of antisocial behavior and crime has significantly increased. Proved to be valuable in filling the gap between genetic risk for crime and the brain abnormalities that give rise to antisocial and criminal behavior, psychophysiological research has significantly contributed to our empirical understanding of the neurobiological mechanisms underlying crime. Most psychophysiological research has assessed autonomic and central nervous system functioning at a baseline level or in response to external stimuli using measures such as skin conductance activity, heart rate, startle blink, electroencephalography (EEG), and event-related potentials (ERPs). The advantages of psychophysiological measures include relatively easy data collection (especially heart rate) and noninvasive recording features. This chapter serves as a brief review of findings and theoretical interpretations from key areas of psychophysiological research on antisocial behavior. Finally, the application of psychophysiological approaches in lie detection is briefly mentioned. Extensive introductions to psychophysiological instrumentation,  recording techniques, and other methodological issues may be found in Cacioppo et al.1 The interested reader is also referred to the review by Patrick 2 for a more updated summary of research findings on the psychophysiological correlates of antisocial and aggressive behavior.

activity captures small fluctuations in the electrical activity of the skin, with enhanced conductivity (i.e., activity) elicited by increased sweating (Figure  6.1). It reflects both arousal (levels and number of nonspecific skin conductance responses) and responsivity (e.g., reactivity to neutral or emotional stimuli). Heart rate measures the number of heartbeats per minute and reflects the complex interactions between sympathetic and parasympathetic nervous system activity. To record heart rate, the skin is first cleaned with alcohol, and then silver–silver chloride electrodes are attached to two body parts that are fairly far apart (for example, one electrode on the distal end of the right collarbone and the other on the lower left rib cage). Studies on both criminal and community populations have generally indicated that antisocial individuals are characterized by autonomic underarousal. For example, a meta-analysis combining 95 studies has revealed ­negative relationships between skin conductance activity and both psychopathy and conduct problems.3 Specifically, a longitudinal study showed that reduced skin conductance arousal at age 15 is associated with criminal offending at age 24 years.4 In sum, although not all studies reveal skin conductance underarousal in antisocials, there is some ­evidence associating low skin conductance activity with general antisocial behavior. Of all psychophysiological research on antisocial behavior, the best-replicated finding appears to be that of lower resting heart rate in noninstitutionalized antisocial populations in both cross-sectional and longitudinal studies,5 particularly in children and adolescents. No other psychiatric condition, such as alcoholism, depression, schizophrenia, or anxiety, is characterized by reduced heart rate. In addition, this association is found across countries and cultural

AUTONOMIC NERVOUS SYSTEM Underarousal Skin conductance is measured from electrodes placed on the fingers or the palm of the hand and is controlled exclusively by the sympathetic nervous system. Skin conductance

39

40 Psychophysiology

Mean (SE) of conditioned responses (square root of microsiemens)

0.08 Comparison subjects (N = 274) Criminal offenders (N = 137) 0.07

0.06

0.05

0.04

CS–

CS+

Figure 6.1  Electrodermal responses to reinforced and unreinforced stimuli in criminal offenders and compari­ son subjects from a large birth cohort. CS+ = reinforced stimulus; CS– = unreinforced stimulus. Results show conditioning (enhanced CS+) in comparison subjects but not in criminal offenders. (From Gao Y, Raine A, Venables P, et al. Association of poor childhood fear conditioning and adult crime. American Journal of Psychiatry. 2010; 167: 56–60.)

contexts and is not confounded by factors such as physical size, exercise and sports activity level, excess motor activity and inattention, substance abuse, intellect and academic achievement, and various forms of psychosocial adversity. It has been theorized that criminals generally have lower arousal levels than noncriminals and that by engaging in pathological stimulation-seeking behaviors, including aggressive and antisocial behavior, they bring their arousal back to an optimal level. Alternatively, it is argued that autonomic underarousal indicates lack of fear or anxiety in criminals, which may reduce the effectiveness of punishments and socialization processes and in turn predispose them to antisocial behavior.

Orienting response deficits Orienting response deficits have also been implicated in antisocial individuals. When presented with a novel stimulus in one’s environment, an individual normally shows an orienting response (a “what is it” response) together with increased autonomic activity (e.g., enhanced skin conductance levels). This skin conductance orienting response has been considered to indicate the degree of information processing in that greater skin conductance reactivity is associated with better attention allocation and information processing, and thus better functioning of the nervous system in response to an external stimulus. Evidence has linked orienting response deficits with antisocial behavior, especially in psychopathic, antisocial, and criminal subjects who also exhibit schizotypal features, such as paranoia, reduced emotionality, and inability to make close friends. For example, a recent study showed that antisocial personality disordered adults demonstrated reduced

skin conductance orienting responses when ­comorbid for schizophrenia-spectrum personality disorders.6 Reduced orienting responses, indicating lack of attentional processing to initially neutral stimuli that warn of impending punishment, would be expected to result in poorer conditioning, discussed later. Similarly, lack of orienting may also partly account for autonomic underarousal, as stated earlier, because arousal reflects tonic levels of activity, which may in part be a function of moment-to-moment responsivity to events in the environment. Prefrontal deficits may contribute to both reduced skin conductance orienting responses and antisocial behavior. Brain imaging studies have revealed decreased skin conductance orienting responses in relation to reduced prefrontal cortex volume and function. Together with evidence of prefrontal deficits in antisocial and schizophrenic individuals as uncovered by brain imaging and neuropsychological research,7,8 this prefrontal abnormality may give rise to both autonomic orienting deficits and antisocial behavior, especially in violent individuals with schizotypal features.

Poor fear conditioning Fear conditioning is a form of Pavlovian conditioning through which individuals learn the social significance of previously neutral stimuli through a process of association. Conditioning deficits may result in the failure to associate punishment with disruptive behavior and may predispose individuals to antisocial behavior. Empirical studies have consistently shown that poor skin conductance fear conditioning is associated with aggressive, psychopathic, and antisocial behavior. Specifically, one longitudinal study has revealed that poor skin conductance conditioning at age 3 years predisposes individuals to criminal offending at age 23 years.9 Reduced fear conditioning has been a key concept in theories of aggressive/antisocial behavior and crime. Hans Eysenck conceptualized a conscience as a set of classically conditioned emotional responses that is developed relatively early in life, and that individuals with good fear conditioning develop a conscience that deters them from antisocial and aggressive behavior.10 In probabilistic terms, the greater the individual’s capability to develop conditioned fear responses, the greater the conscience development, and the lower the probability of becoming aggressive and antisocial. The somatic marker hypothesis was initially proposed by Antonio Damasio to account for the poor social decision making observed in antisocial, sociopathic individuals.11 Based on this theory, the individual’s ability to generate emotions is manifested as alterations in physiological state and registered in the brain as changes in somatosensory region activation; conditioned emotional responses facilitate enhanced decision making by reducing the number of options from which an individual has to choose. When an individual experiences uneasy feelings that were conditioned during prior negative experiences, this specific option is intuitively or deliberately eliminated

Central nervous system  41

from further consideration. As a result, inappropriate decisions are ­ generally excluded, and cognitive resources— particularly frontal functions such as planning flexibility and working memory—are freed up to evaluate only those options that are viable to that individual. The risk for antisocial behavior is elevated when an individual cannot generate or does not appreciate the significance of somatic markers. The finding of deficient skin conductance conditioning in aggressive individuals fits particularly well within this model. Low resting heart rate in antisocial individuals may similarly reflect disruption in the somatic marker network and consequently increase risk-related behavior.

Emotion modulation deficits Emotion modulation deficits have been mainly examined using startle blink measures, the automatic eye-blink response that occurs to a startling probe stimulus such as a loud noise or a puff of air to the eye. The magnitude of the startle blink response varies with the valence of an ongoing emotional state; presentation of pleasant stimuli is typically found to attenuate, and unpleasant stimuli to potentiate, the startle response compared with presentation of neutral stimuli. Startle potentiation (i.e., increased startle magnitude) is thought to reflect defensive reactivity, negative affect, and temperamental differences in negative emotionality. Startle potentiation deficits have been found in criminal and noncriminal male psychopathic samples as well as in women with psychopathy. For example, in a study of criminals who were classified according to their level of antisocial behavior and emotional detachment, criminals with high emotional detachment (including psychopaths) exhibited reduced startle potentiation while anticipating an aversive stimulus, while criminals with low emotional detachment exhibited robust startle potentiation. A recent study has clarified that deficits in blink reflex potentiation are linked specifically to the affective-interpersonal features of psychopathy, and not the antisocial deviance features represented most strongly in antisocial personality disorder.12 This has been interpreted as suggesting that the core personality traits of psychopathy are associated with the temperamental predisposition of reduced responsivity to emotional cues, especially if they are aversive or threatening.

CENTRAL NERVOUS SYSTEM Slow-wave EEG and underarousal Electroencephalographic (EEG) data are collected by putting a standardized array of surface electrodes on an individual’s scalp; the data reflect regional electrical activity of the brain. The different power bands—delta (below 3 Hz), theta (4–7 Hz), alpha (8–12 Hz), and beta (above 15 Hz)— are associated with increasing degrees of consciousness or arousal. For example, individuals with high levels of cortical activity show a predominance of fast alpha and beta

waves, whereas in individuals with low cortical activity, theta and delta waves are predominant. A large number of studies have implicated EEG abnormalities in criminal individuals. The most commonly reported findings are more slow waves (i.e., theta and delta) reflecting underarousal, especially in frontal and temporal regions of the brain. Specifically, evidence has emerged that increased slowwave EEG activity in adolescence predicts official criminal convictions later in life.4 This excessive slow-wave EEG may indicate cortical immaturity resulting in impaired inhibitory control, or cortical underarousal that predisposes one toward compensatory stimulation seeking, which eventually gives rise to emotional and behavioral dysregulation in those prone to criminal behavior.

Frontal asymmetry Another line of research concerns frontal EEG asymmetry in antisocial individuals. Frontal asymmetry has been widely used as a measure of underlying approach- or withdrawal-related behavioral tendencies and affective style in children and adults. In general, relatively greater left frontal activity (i.e., relatively reduced left alpha power) is suggested to be associated with positive affect and/or approach motivation and behavior, whereas relatively greater right frontal activity (i.e., relatively reduced right alpha power) is related to negative affect and/or withdrawal motivation and behavioral patterns. Some studies have associated atypical frontal asymmetry with externalizing behavior in children and with proneness to anger and aggressive traits in adults,13 although these associations may vary based on gender and social factors. In general, atypical frontal EEG asymmetry may indicate abnormal emotional reactivity and affective style, which give rise to the disruptive behavior seen in antisocials and criminals.

Atypical ERPs The ERP refers to averaged changes in the electrical activity of the brain in response to external stimuli. Three commonly studied ERP components, N1, P2 and P3, occur at about 100, 200, and 300 milliseconds (ms) after the onset of stimuli, respectively, and therefore are also called N100, P200, and P300. ERPs are thought to be correlates of specific psychological processes; as such they may differentiate the brain activity of antisocials from that of non-antisocials. The most consistent association has been found for abnormal P3, which is thought to represent deployment of neural resources to task-relevant or novel information. For example, in the oddball paradigm that is frequently used to study the P3, two stimuli (e.g., a low- and a high-pitch tone) are presented repeatedly, with one more frequent than the other. The participant is asked to respond selectively to the less frequent stimulus, in which case the amplitude of the P3 component will be enhanced.

42 Psychophysiology

Although the findings on P3 and psychopathy have been inconsistent, reduced P3 amplitudes and longer P3 latencies in response to target stimuli have been found in aggressive and antisocial individuals, indicating information-­ processing deficits in this population.14 In fact, P3 deficits have also been associated with other externalizing behavior problems, including drug abuse, child conduct disorder, and attention-deficit/hyperactivity disorder, and this association appears to be mediated by genetic factors.15 Therefore, it is possible that the P3 abnormality may be a psychophysiological indicator of the broad externalizing behavior characterized by impulse control problems.

LIE DETECTION The detection of deception is among the first practical applications of psychophysiological measures to the criminal justice system. The polygraph (“lie detector”) is the earliest and most well-known physiological measure of lie detection and is based on the assumption that autonomic responses (e.g., increased heart rate, blood pressure, respiration rate, and skin conductance response) during questioning indicate anxiety and therefore lying. Polygraph techniques include the Control Question Technique, Directed Lie Technique, and Guilty Knowledge Test. Despite the presumably unfalsifiable nature of psychophysiological indicators of deception, and vehement proponents for its use among law enforcement and national security policymakers, polygraph lie detection is generally considered by scientists to be fraught with ­conceptual and methodological weaknesses, and polygraph evidence generally has been excluded from the courts.16 More recently, an interest in brain-based methods for detecting deception has developed. The most promising line of inquiry has focused on ERP components—particularly the P3 response to significant, infrequent (i.e., “oddball”) stimuli. In a P3-based Guilty Knowledge Test procedure, crime-relevant information keys constitute the oddball stimuli. Several validation studies appear to indicate its effectiveness, and potential utility within the court system has been noted.16

CONCLUSION In summary, among the commonly used neurobiological approaches to research of antisocial behavior and aggression, psychophysiological (especially heart rate) research is relatively easier to operationalize, particularly in children and adolescents. Empirical findings indicate that antisocial and criminal individuals are characterized by (1) autonomic underarousal as indicated by reduced skin conductance nonspecific responses, lower skin conductance levels, and lower resting heart rate; (2) reduced orienting responses and poor skin conductance fear conditioning; (3) startle potentiation deficits; (4) more slowwave EEG results and atypical frontal EEG asymmetry; and (5) reduced P3 amplitude and longer P3 latency.

These biological impairments are hypothesized to give rise to the cognitive, emotional, and behavioral risk factors predisposing to antisocial and criminal behavior. Finally, applications of psychophysiological approaches in the area of lie detection have been informational to the field of forensic psychiatry. Efforts have been made to integrate biological findings into prevention and intervention programs. One line of research concerns directly altering one’s psychophysiological functioning. For example, early environmental enrichment including better nutrition, more physical exercise, and cognitive stimulation at ages 3–5 years has been found to improve brain functioning (as indicated by reduced slowwave EEG power), enhance attention at age 11 years,17 and also reduce adult criminal offending at age 23 by 35%.18 Future prevention and intervention programs could also be improved by acknowledging the importance of biological moderators and differentiating subgroups based on their psychophysiological characteristics. For example, one study found that a cognitive-behavioral intervention program for children with disruptive behavior problems (aggression, delinquency, and attention problems) was of greater benefit to children with high heart rates compared to those with low heart rates.19 Similarly, in a pilot study on adolescents who are at high risk for drug abuse, individuals who are unresponsive to interventions demonstrated fewer skin conductance responses to two boring and tedious tasks (continuous performance test and delay of gratification) and higher skin conductance responses to the risky choices in a more stimulating task, relative to those who had better responses to the intervention program.20 In sum, prevention and intervention programs aimed at reducing antisocial behavior would benefit enormously by targeting their efforts on selected individuals based on their psychophysiological characteristics, or by directly improving their psychophysiological functioning.

REFERENCES 1. Cacioppo JT, Tassinary LG, Berntson GG, eds. Handbook of Psychophysiology. 3rd ed. New York: Cambridge University Press, 2007. 2. Patrick CJ. Psychophysiological correlates of aggression and violence: An integrative review. Philosophical Transactions of the Royal Society. 2008; 363: 2543–55. 3. Lorber MF. Psychophysiology of aggression, psychopathy, and conduct problems: A meta-analysis. Psychological Bulletin. 2004; 130: 531–52. 4. Raine A, Venables PH, Williams M. Relationships between CNS and ANS measures of arousal at age 15 and criminality at age 24. Archives of General Psychiatry. 1990; 47: 1003–7. 5. Ortiz J, Raine A. Heart rate level and antisocial behavior in children and adolescents: A metaanalysis. Journal of American Academy of Child and Adolescent Psychiatry. 2004; 43: 154–62.

References 43

6. Schug RA, Raine A, Wilcox RR. Psychophysiological and behavioral characteristics of individuals comorbid for antisocial personality disorder and schizophrenia-spectrum personality disorder. British Journal of Psychiatry. 2007; 191: 408–14. 7. Raine A, Lencz T, Reynolds GP, Harrison G, Sheard C, Medley I, et al. An evaluation of structural and functional prefrontal deficits in schizophrenia: MRI and neuropsychological measures. Psychiatry Research. 1992; 45: 123–37. 8. Raine A, Yang Y. Neural foundations to moral ­reasoning and antisocial behavior. Social, Cognitive, and Affective Neuroscience. 2006; 1: 203–13. 9. Gao Y, Raine A, Venables PH, Dawson ME, Mednick SA. Association of poor childhood fear conditioning and adult crime. American Journal of Psychiatry. 2010; 167: 56–60. 10. Eysenck HJ. Crime and Personality. 3rd ed. London: Routledge & Kegan Paul, 1977. 11. Damasio AR. Descartes’ Error: Emotion, Reason, and the Human Brain. New York: Grosset/Putnam, 1994. 12. Vaidyanathan U, Hall JR, Patrick CJ, Bernat EM. Clarifying the role of defensive reactivity deficits in psychopathy and antisocial personality using startle reflex methodology. Journal of Abnormal Psychology. 2011; 120(1): 253–8. 13. Harmon-Jones E. Clarifying the emotive functions of asymmetrical frontal cortical activity. Psychophysiology. 2003; 40: 838–48. 14. Gao Y, Raine A. P3 event-related potential impairments in antisocial and psychopathic individuals: A meta-­ analysis. Biological Psychology. 2009; 82: 199–210.

15. Hicks BM, Bernat EM, Malone SM, Iacono WG, Patrick CJ, Krueger RF, et al. Genes ­mediate the association between P3 amplitude and ­externalizing disorders. Psychophysiology. 2007; 44: 98–105. 16. Iacono WG. Detection of Deception. In: Handbook of Psychophysiology. 3rd ed. Eds. Cacioppo JT, Tassinary LG, Berntson GG. New York: Cambridge University Press, 2007: 688–703. 17. Raine A, Venables PH, Dalais C, Mellingen K, Reynolds C, Mednick SA. Early educational and health enrichment at age 3–5 years is associated with increased autonomic and central nervous system arousal and orienting at age 11 years: Evidence from the Mauritius Child Health Project. Psychophysiology. 2001; 38: 254–66. 18. Raine A, Mellingen K, Liu J, Venables PH, Mednick SA. Effects of environmental enrichment at ages 3–5 years on schizotypal personality and antisocial behavior at ages 17 and 23 years. American Journal of Psychiatry. 2003; 160: 1627–35. 19. Stadler C, Grasmann D, Fegert JM, Holtmann M, Poustka F, Schmeck K. Heart rate and treatment effect in children with disruptive behavior disorders. Child Psychiatry and Human Development. 2008; 39: 299–309. 20. Fishbein D, Hyde C, Coe B, Paschall MJ. Neurocognitive and physiological prerequisites for prevention of adolescent drug abuse. Journal of Primary Prevention. 2004; 24: 471–95.

7 Sleep science CHRISTOPHER IDZIKOWSKI AND IRSHAAD O. EBRAHIM Introduction 45 Human sleep “stages” 46 Basic neuroscience 46 Brain imaging 46 Genetics and inheritance 47

Neurotransmitters 47 47 Sleep disorders Forensic sleep science and medicine 48 Conclusion 49 References 49

INTRODUCTION

other areas may be either active or inactive depending on the stage. This reduction in activity in humans could be regarded as the quintessence of sleep. Apart from judges and juries lapsing into sleep, sleep may enter the courtroom in several other ways:

For the unsuspecting researcher or clinician, the sleep area at first sight seems straightforward. However, over the 60 or so years of objective measurements there have been many changes of nomenclature and methodology, decisions made by committees, and real discoveries, all of which can cause confusion. Sleep science is a rapidly evolving area (perhaps in stark contrast to England and Wales law, which is still covered by precedent created in 1843). A search for the word sleep in U.S. National Library of Medicine PubMed database at the time of writing this chapter produced 118,331 citations, and the more precise keyword led to 55,370 citations. The initial exploratory phase that followed the discovery that objectively measuring brainwaves, eye movements, and muscle tone could identify the mental state of dreaming1 quickly led to studies and various hypotheses (PubMed count: 5,242) as to the structure and function of sleep. These have since been superseded by basic research and an enormous expansion in clinical research. The direct scientific evidence base in the forensic sleep medicine area is poor. This is perhaps not surprising as there remain so many unknowns with respect to sleep itself. We still do not understand the function or functions of sleep, and arguably we do not even know which sleep variables that are measured objectively are the important ones. Nevertheless, our understanding of sleep and wakefulness has perhaps changed more in the last decade than in the previous five decades. Sleep is not now regarded as a simply controlled, relatively homogeneous brain state (likened at one time as the same as putting a sleeping cap on one’s head) but quite the reverse—a highly orchestrated brain state with complex controls. In humans, the heteromodal association cortices are relatively quiescent throughout all sleep “stages,” but

●●

●● ●●

●●

●●

“Sleepwalking” (involuntary behavior; most legal systems will accept lack of guilt if the defendant has no mens rea) Falling asleep inappropriately and causing harm Misperception, memory, and reality detection failures caused by sleep/wake state change The effects of sleep deprivation on suggestibility, risktaking, moral judgments, and so on Being kept awake (a human right).

In the forensic area, there is unfortunately no scientific evidence as dogma has arisen from limited clinical studies, theoretical considerations, or clinical consensus. Where there are scientific studies, the findings are generally either unreliable or inconsistent. Apparently simple questions such as whether alcohol promotes sleepwalking are of course not simple. Some issues are dosage, time of administration both in relation to the behavior and circadian (biological clock) time, previous alcohol history (none, moderate, alcoholic, abstinent, etc.), health, other drugs, intoxicants, medications, previous sleep history, presence or absence of sleep disorders, history of sleepwalking, type of sleepwalking, time spent asleep, and so on. Nonetheless, science and law have evolved so that the informed expert witness is not at a complete loss and can provide a court with real expert evidence (though there is a huge need for substantive research).

45

46  Sleep science

Table 7.1  Classification rules and nomenclature Variable Scoring page/window length Stages

Wakefulness Slow-wave sleep/delta or deep sleep Stage 2 Stage 1

REM sleep

R&K (1968) 15, 20, or 30 seconds Wakefulness, Stage 1 (drowsy), Stage 2 (light), Stage 3, Stage 4, REM sleep, movement time. Combinations and alternative names: combined. Delta Sleep = SWS = Slow Wave Sleep, Stages 3 and 4 combined. NREM = Stages 1, 2 + Slow Wave Sleep Paradoxical sleep = REM sleep EEG alpha activity for ≥50% of an epoch EEG slow-wave activity for ≥50% of the page for Stage 4 sleep or ≥20% of the page for Stage 3 sleep Sleep spindles or K-complexes; EEG slow-wave activity for SWS>0REM

Histamine

tuberomammillary nucleus (TMN)

hypothalamus forebrain neocortex brainstem spinal cord

W>0REM

Orexin

midlateral hypothalamus

all brain regions

W>0REM

Wake on/REM on Acetylcholine

dorsolateral pontomesencephalic reticular thalamus hypothalamus basal formation (RF), basal forebrain forebrain limbic system neocortex

W and REM>NREM

Dopamine

substantia nigra ventral tegmental area of the midbrain, basal and medial hypothalamus

W and REM>NREM

Glutamate

Throughout brain

Widespread

Ventrolateral preoptic area Median preoptic nucleus (hypothalamus)

TMN dorsal raphe LC, lateral hypothalamus

Wake off/Sleep on GABA

there are 15 categories). Within parasomnias there are three subgroups: ●● ●● ●●

Disorders of arousal (from NREM sleep) Parasomnias usually associated with REM sleep Other parasomnias There are three subtypes of “disorders of arousal”:

FORENSIC SLEEP SCIENCE AND MEDICINE Experts had to grapple with cases prior to our increased understanding of sleep, and some guidelines emerged.4 For sleep-related involuntary behavior to have occurred, it was suggested that: ●●

●● ●● ●●

Confusional arousals Sleepwalking Night terrors

Generally, in the “disorders of arousal” there can be complex, automated, or instinctive behavior of which the person is unaware and usually is completely amnesic; there is either no or relatively sparse mental content. Awakening is difficult and slow, with recently awoken sleepers sometimes suffering from a condition called sleep drunkenness. For the parasomnias associated with REM sleep, REM behavior disorder (RBD) is the best known. In this disorder, the hyperpolarization of the spinal neurons that usually occurs and causes muscle paralysis fails, and the dreamer acts out his or her dream. Awakening is usually rapid and the person is immediately aware of what has happened and realize the connection between his or her dream world and the real world. RBD has only been recognized since the mid-1980s, so many of the legal “sleepwalking” cases considered prior to this may have misinterpreted the disorder. (Schenck et al., 1986, Sleep, 9, 293–308). Improved classification of sleep disorders will eventually help the forensic by enabling development of biological markers that cannot be falsified.

●● ●● ●●

●● ●●

●●

●●

There should either be a history of these behaviors Ideally, the behavior should be of short duration and uncomplicated abrupt, impulsive, senseless, unpremeditated, out of character, unplanned and the victim was not sought Upon return to consciousness there is confusion, no attempt to escape, and either amnesia or fragments of memory For night terrors/sleepwalking, confusional arousal, and sleep drunkenness, the behavior may occur upon arousal or awakening, usually after at least 1 hour’s sleep or if the subject is being awoken after alcohol intake, sedative/hypnotic use or prior sleep deprivation

Table 7.4 shows how this has been elaborated upon in recent years, particularly for NREM/deep-sleep sleepwalking (or night terrors or confusional arousals.8–12 The factors have been subdivided into internal and external causes partly to reflect the law in England and Wales, which uses this distinction in consideration of whether an automatism is insane or non-insane. Predisposition remains important. HLA gene DQB1 is found in 35% of sleepwalkers compared to 13.3% of controls. The probability of having these disorders is raised by a factor of 10 if they are present in a close

References 49

Table 7.4  Factors considered in NREM/Deep sleep sleepwalking cases Factors

Legal parallel

Predisposition

Internal

Genetic

Priming

Internal

SWS abs/% - spectral analysis, reduced delta Number of arousals NREM instability Hypersynchronous delta waves Sleep deprivation Medication Alcohol Fever Stress Sleep-disordered breathing Periodic limb movement Noise Proximity/touch

External

Precipitating

Internal External

Putative basis, cause, or (surrogate) marker

blood relative. NREM/deep sleepwalking can occur in approximately 20% of children and can persist in approximately 4% of adults. Adult onset is rarer, though occurs in approximately 2% of adults. Most sleepwalkers do not sleepwalk every night, so it has been suggested that priming factors are required for any episode coupled with a trigger or participating factor. The internal priming factors remain controversial and are dependent on the quality of slow-wave sleep. Given that slow-wave sleep as currently measured does not distinguish between 50%)

298 Paraphilias

the often timid, anxious Type 1 offenders, with such therapy sometimes offering such individuals their only emotional release. Group therapy is also used. In the United Kingdom, the Probation Service may run groups for convicted indecent exposers, which has the advantage that all group members know why they are there and are subsequently less deceitful. Cognitive-behavior therapy (CBT) is the specific psychological treatment of choice. In the past, aversion techniques were used or even the recommendation to wear trousers back to front.

Pedophilia This is the sexual preference for prepubertal children or for a child under 13 years of age. The term hebephilia refers to a sexual preference for those of adolescent age. Hebe was the goddess of youth, daughter of Juno, cup-bearer to the Gods and wife of Hercules after he was deified. In DSM-5, to meet the diagnostic criteria for pedophilia, the offender must be at least 16 years of age and at least 5 years older than the child or children. The majority of pedophiles are male, but there are female pedophiles. Pedophiles are subject to public outrage and are viewed as monsters. Their behavior is seen to be unexplainable in spite of the fact that such individuals might be having difficulty between distinguishing affection to and nurturing of kids and its sexualization. Freud was of the view that the complaints of many individuals in analysis of their childhood sexual abuse were often merely fantasies. The UK Paedophile Information Service of the 1980s would not be tolerated today with current fears about organized pedophile gangs. UNDERAGE SEX

It was not uncommon 300 years ago for females to become pregnant at the ages of 12–13 years. Even in Victorian times in England and Wales, it was legal to have sexual intercourse with girls under 13 years of age. Now sex with a female under 16 years is always illegal because consent at that age is considered to be invalid. Sex with females under 13 years old is equivalent to rape in its seriousness. In the United Kingdom, however, it is a valid defense if the male is under 24 years of age and believes the female to be older than 16, provided there are no previous similar offenses. If the act occurred by force or against the victim’s will, the offense is then equivalent to rape. The age cutoff of 16 may be seen as rather arbitrary compared to the psychologically more important stage of emotional development. In addition, an individual who is 10 years old is considered criminally responsible and may receive a custodial sentence if convicted. One can legally buy a pet at 12 years of age, have sexual intercourse at 16, drive a car at 17, and vote at 18 in England and Wales.

Regression may occur when under stress, including marital stress; in mental illness, including abnormal post-traumatic states; or following substance abuse. The evidence base regarding pedophilia is limited.29 Other classifications include by: 1. Characteristics of the offender. a. Adolescent: Such behavior usually represents an emotionally and sexually immature investigation. Rarely, but tragically, the offender kills the victim in panic after the victim screams or to conceal the offense. This contributes to the average of four sex murders per year of children in the United Kingdom. b. Adults: Such individuals are often maladjusted in other areas and handicapped in normal adult sexual relationships, for example, a middle-aged man with marital problems. c. Elderly: This group includes lonely, isolated individuals with a fear of impotence. 2. Relationship to children. a. The sexuality arises out of a relationship to the child: This is the most common type. The offender has an affection for the child or children and no particular wish to harm them, though clearly the act is illegal. In effect the offender may be “in love” with the child. Deprived children may be victims more often because they might be more open to strangers and seeking affection. This group of offenders represents about 80% of pedophiles. Freud pointed out that children do have sexuality and seek adult affection. However, it is the adults’ responsibility not to sexualize their relationship with children. b. The child is merely a source of sexual ­gratification: Here the victim is generally a stranger and the ­relationship a casual one. Two groups are seen, characterized by (1) non-aggressive seduction with money or sweets (this is the group parents warn their children against); and (2) an aggressive ­seduction or rape associated with violence. 3. Sex of the victim. a. Heterosexual group: Individuals in this group are often married, have lower reconviction rates, and are less likely to commit other criminal acts. b. Homosexual group: Individuals tend to be single and more likely to reoffend. This group carries a worse prognosis. c. Indiscriminate group: Victims are of either sex. This group includes up to 20% of pedophiles. The victims are more likely to be younger (6–11 years old), perhaps because both sexes at that age are physically similar and asexual.

CLASSIFICATION OF PEDOPHILIA

Clinically, it is useful to distinguish individuals with a fixed disorder of the sexual preference of pedophilia, estimated to be about 300–400 in the United Kingdom, from the larger group whose pedophilic behavior represents regression.

CHILD MOLESTERS

Research on adults who sexually abuse children (“child molesters,” i.e., not just primary pedophiles), has found that child molesters are more indiscriminate than previously

Specific paraphilias  299

thought, often choosing victims of either sex, over a broad age range, with both intrafamilial and extrafamilial victims. Only about one-third of child molesters are primary pedophiles, though many have a personal history of painful emotional childhood deprivation and abuse. Many come from punitive families or have no families and, as a result, fear rejection and humiliation. Child victims are not in a position to reject the adult abuser. A mixture of emotions may follow abuse of a child, including shame and denial. Up to 90% of child molesting is, in fact, intrafamilial. Considering offenders convicted of sexual offenses against children in general, criminal statistics for England and Wales suggest that approximately 80% of offenders know the child, 13% of whom are relatives. Few such sexual offenses are life threatening, certainly compared to the approximately 80 children killed in England and Wales each year mostly by their parents or a stranger. A sexual killing of a child or abduction of a child by a pedophile occurs in fewer than 10 cases a year. ETIOLOGY OF PEDOPHILIA

A behavioral or addiction model of pedophilia now appears too simplistic. Pedophile offenses are often committed for reasons of power to counter low self-esteem as much as for sex.30 Pedophiles often abuse a child of the sex and age at which they were abused themselves, which was often their first significant sexual experience. Most do not have impulsive personalities and may “groom” and seduce a victim over a lengthy period. James Canter in Canada has detected functional magnetic resonance imaging (fMRI) abnormalities in pedophiles, including abnormal cerebral white matter deficiencies in cross-wiring.31 As with all such research, the question arises as to whether these differences are primary or secondary. Of children abused, 1 in 10 girls and 1 in 4 boys are abused by women, either alone or as coerced accomplices or co-offenders with men.32,33 Such involvement of women in offenses does not necessarily reflect passivity in the face of a dominant male co-offender, but may reflect their own ­primary sexual deviance. Indeed, female perpetrators are more likely to have been victims of child abuse. There is no definite evidence of an increase in violent assaults on children by pedophiles in the United Kingdom, but their visibility and conviction rates have increased owing to the greater ease of detecting the illegal use of the Internet to view indecent pedophilic images compared to the previous pattern of viewing such images in private in magazines. CLINICAL FEATURES

Pedophiles have a normal IQ, education, and range of occupations. They often have a poor ability to relate to adults and are proud of their ability to relate to children, although this in reality does not differ from others. Full coitus is rare, and behavior may be fondling or exhibiting and sometimes orgiastic. Two-thirds of the victims participate, for example, by kissing or cuddling. Offending often follows alcohol abuse.

MANAGEMENT

The aim of management ideally is for a future offense-free life. Acceptance of responsibility for the sexual abuse is usually essential. However, pedophiles often admit to only those offenses for which they have been caught. The homosexual form of pedophilia has the worst prognosis, but pedophilia is generally regarded as extremely difficult to treat. Success has been claimed for all forms of treatment, including ­psychotherapy, CBT, and antilibidinal medication. CBT has been used to counter the distorted attitudes of pedophiles (for example, that children are sexual and want sex; that pedophile acts are educational or even protective; and that pedophiles misidentify with their victims as being rejected like themselves). Most success has occurred with anti-androgen hormone therapies. Castration was never used in the United Kingdom but was reported to be successful in selected cases of repetitive pedophile rape offenders who were then subject to indefinite detention at Herstedvester prison in Denmark.34 However, a relationship with a child may be so important that, even after an adult has been made sexually impotent, he may still keep seeking out children. PROGNOSIS

Untreated, such individuals may abuse large numbers of victims. Recidivism rates are high even with treatment and do not decrease over time. Thus 15% are reconvicted in law in England and Wales, while up to 35%–45% may re-offend on the basis of self-reports. Recidivism is associated with early onset, length of history, variety of sexual offending, offending against both sexes, and deviant arousal to pedophile images on penile plethysmography. Pedophiles on sex offender registers, which are available to social services departments, are excluded from adoption and fostering by such agencies. Studies on pedophilia include cases where there appear to have been trivial incidents or activities as part of an otherwise sexually active adolescence.35 Parental reactions may partly determine the long-term effects of being a victim as a child, and isolated minor abuse may have minimal long-term effects. However, Mullen36 has shown that childhood sexual abuse can adversely affect adult functioning, resulting in intergenerational problems, including uncaring or overcontrolling parents; sexual adjustment difficulties; decrease in socio-economic status due to disruption of a sense of effective agency and low self-esteem; and increased substance abuse, personality problems, anxiety, and depression.

Rape DEFINITION

Rape is an offense, not a paraphilia, but it is noted here for convenience and is described in detail in Chapter 42. Rape is defined as anal or vaginal penetration by a penis, that is, sexual intercourse with a man or woman without his or her consent and accompanied by fear or force or fraud.

300 Paraphilias

Full penetration need not occur. The very rare female equivalent behavior results in a charge of indecent assault in the United Kingdom, although females assisting males in rape may be convicted of rape themselves. An offender under the age of 14 years cannot be convicted in the UK of rape or attempted rape, only indecent assault. In England and Wales, a law in 1736 stated that it was not illegal to be raped by one’s husband. This clearly reflected attitudes of the time, including the so-called Rule of Thumb, where it was legal for a man to hit his wife with an implement no wider than his thumb. It was not until 1990 that the Court of Appeal ruled that if a husband raped his wife and they were separated, this did constitute rape in the legal sense. In 1994 the Public Order and Criminal Justice Act included males for the first time in the definition of victims of rape. The UK Ministry of Justice currently states that there are about 69,000 rapes in an average year in England and Wales, but only 1,070 of these result in convictions. Internationally, rape increases when normal social sanctions break down, as in war, e.g., World War II and the Bosnian conflict, where groups, which themselves lower inhibition, of soldiers in tense and violent circumstances may rape, including to increase fear and alter ethnicity of opposing communities.

Other paraphilias There is an association between paraphilias and sexual offending, particularly among male offenders. Female sexual offenders are less likely to be diagnosed with a paraphilia.37 Not all sexually deviant behavior is against the law, but some always is (for example, pedophilia). However, a combination of paraphilic behavior and crime creates a high newsworthiness. FETISHISM

Fetishism is sexual arousal and gratification arising primarily and preferentially from inanimate articles. It can lead to recurrent convictions for theft, for example, of used underwear from clotheslines, referred to as “snow  dropping.” The knowledge that such articles belonged to others is important, in contrast to the theft of what would be unused items from stores. Fetishism may be compulsive or symptomatic. In the latter, males may be impotent unless fetish objects such as black stockings, leather gear, or whips are present. Fetishistic objects can be classified into three main groups: articles that are often pink, red, furry, shiny spheres; articles representing threat, such as black leather and whips; and symbols of femininity, such as female lingerie and shoes. Mysophilia reflects the preference for smelly soiled clothes. An unusual fetishism involved car exhaust pipes.38 Ethologically, fetishism has been viewed as possibly arising from imprinting, as seen in ducklings, reflecting a child crawling and following a mother at shoe level. BESTIALITY/ZOOPHILIA

This represents a sexual desire and preference for sexual or anal intercourse with animals. Formicophilia refers to the

preference for small animals, such as ants, touching the erogenous zones. The offense of buggery (similar to s­ odomy in the U.S.) refers to anal intercourse by a man with a man or woman, or anal or vaginal intercourse by a man or a woman with an animal, and still carries a maximum sentence of life imprisonment in England and Wales. The term buggery is derived from the Bogomils of Bulgaria. VOYEURISM/SCOTOPHILIA

As defined in DSM-5, voyeurism disorder is sexual arousal derived from observing an unsuspecting person who is in the process of disrobing or engaging in sexual activity. There may be masturbation during the act. It appears to be exclusive to men. It is epitomized by “Peeping Tom,” a tailor who peeped at the naked lady Godiva as she rode through Coventry in England in protest against her husband Leofric, Earl of Mercia, imposing a heavy tax in the first millennium AD. TELEPHONE SCATALOGIA OR SCATAPHILIA

This refers to the making of obscene or lewd telephone calls. Usually, it is done by an individual with an inadequate ­personality and represents a form of voyeurism. The calls are usually made randomly; hence the importance of not disclosing telephone numbers on picking up the phone. No response is the best response to such calls. Technology now allows the police to tap and trace such calls. FROTTEURISM

In DSM-5, frotteruistic disorder (302.89) (equivalent in ICD-10 to frotteurism (F65.81)) refers to the pleasure from touching and rubbing against a non-consenting person. It usually occurs in crowded or confined spaces such as crowded trains. The term originates from the French word frottage, meaning rubbing. SADISM

The term sadism derives from the brutal violent sexual practices described in the erotic books, e.g. 120 days of Sodom, of the French Marquis de Sade (1740–1814), written mostly while for 32 years in prison or for 15 years in asylums. In DSM-5, sexual sadism disorder refers to recurrent, intense, sexually arousing fantasies, sexual urges, or behaviors involving acts in which the psychological or physical suffering, including humiliation, of the victim is exciting to the ­person. Sometimes but not characteristically, the act is with a consenting partner who has ­sexual masochism. It includes sexual arousal by violence, which contrasts with rapists, who are aroused by forced s­ exual intercourse. (Biastophilia or raptophilia is the sexual preference for rape). Sadistic violence allows emotional d ­ istance but physical proximity. Such individuals find that indulging in aggressive acts bolsters their low self-esteem. Individuals with sexual sadism disorder should be contrasted with those attending S&M fantasy clubs, where the behavior is not developmental. Brittain39 provided the classical clinical description of the sadistic murderer syndrome. Such individuals may have

Specific paraphilias  301

a past history of working in a position of power over people and animals, such as being a butcher, and having interests in Nazism, torture, and weapons, which they collect and often store in their home and which reflect the content of their mind. Such individuals may have schizoid introspective personalities and, in the absence of relationships and normal rewards, may develop sadistic fantasies to which they habituate, resulting in their following or stalking and later acting out those fantasies toward others. Those with sadistic personality traits may be very resistant to specific psychological treatment. If they commit a violent offense, in spite of subsequently often being model prisoners, given the opportunity in the future they are likely to seriously harm or murder others—and they know it.40 Compared to rapists, sexual murderers are more overcontrolled, bottling up their temper; have more past convictions for rape; and are more socially isolated and more likely to lack a sexual partner in the year before the offense.41

NECROPHILIA

SERIAL KILLING

OTHER MISCELLANEOUS PARAPHILIAS

The first sadistic act against an individual is very reinforcing but never exactly matches the individual’s fantasy. This may lead to repetition and, in its extreme form, serial killing. Such individuals, who often feel powerless and inadequate, may seek the notoriety and power associated with serial killing. While there has always been serial killing, the 1992 film The Silence of the Lambs, with its depiction of Hannibal Lecter, the cannibal psychopathic psychiatrist, has led to serial killing becoming a postmodern hyper-real spectacle of morbid public interest. Scientific literature on serial killing is limited by the fact that offenders often commit suicide following offending. However, profiles suggest that they tend to be non-psychotic white males, 20–30 years of age, from UK social classes III–IV (middle and lower social classes), who often have a history of using firearms and dramatic scenarios to express resentment and anger at frustrations in their life and personal difficulties. Some individuals may be psychotic, in which case the victims tend to be strangers. Mutilation before death is associated with p ­sychopathy (organized), while mutilation following death (disorganized) is seen among the psychotic, including those with schizophrenia.

Copraphilia (sexual gratification from the sight or contact of feces, for example, by smearing with feces) and coprophagia (ingesting feces) usually reflect very low self-esteem. Urophilia or undinism (from the Greek for “water spirit” or “nymph”) involves sexual gratification from being urinated on, and urolognia (“golden shower”) is the drinking of urine and urinating during sexual relations. Such practices are referred to as “water sports.” In urethralism, objects are inserted into the urethra, which may include a liking for catheterization (catheterophilia); in klismaphilia, rectal enemas are used. These are included under the DSM-5 category 302.89, other specified paraphilic disorder. Vampirism includes sexual gratification at the sight of and contact with blood. This and cannibalism have been reviewed.43 Infundibulation or stigmatophilia includes the boring of holes, body piercing, and wearing of rings through the skin. It includes the insertion of the so-called Prince Albert Ring through the penis, which is said to intensify the effects of masturbation. Apotemnophilia refers to those whose sexual preference is for being an amputee. It may lead to individuals disabling or injuring themselves. They are known as “wannabes.” Acrotomophobia is a paraphilia dependent on a partner being an amputee. This corresponds to those known as “devotees.” Individuals with these last two paraphilias should be contrasted with those with amputee identity disorder (AID), who are referred to as “needtobes.” Pygmalionism is the sexual preference for objects in the form of persons. In voguing, individuals dress up as a celebrity, such as Elvis Presley or Madonna. Trash canners take objects from stars’ trash, including for sexual purposes. The digital age has also heralded cybersex or teledildonics. Other paraphilias include narratophilia (listening to accounts of sexual activity), gerontophilia (sex with an aged partner), hybristophilia (sex with a person who has committed a crime), and chrematistophilia (being charged for,

MASOCHISM

The term masochism, popularized by Krafft-Ebbing, derived from the affliction and writings of the Austrian Leopold Ritter von Sachre Masoch (1836–1895). In DSM-5, sexual masochism disorder refers to recurrent, intense, sexually arousing fantasies, sexual urges, or behaviors involving the act of being humiliated, beaten, bound, or otherwise made to suffer. Examples given in DSM-5 include being forced to crawl; being kept in a cage; bondage; being blindfolded; and being whipped or spanked, pinched, beaten, bruised, cut, raped, stabbed, or tortured. In masochism, individuals are aroused by violence to themselves and may make others angry with them to this end. Algolagnia is the love of pain alone.

This involves sexual desire for corpses. Described as more common among mortuary attendants, it is in fact less rare than might be apparent and sometimes occurs following homicide, perhaps in a manner akin to when elephants indulge in sexual intercourse with fellow elephants who have died as if to bring them back to life. To protect the relatives of victims, such behavior is often not revealed in court. AUTOEROTIC ASPHYXIA (HYPOXYPHILIA OR ASPHYXIOPHILIA)

This relates to the enhancement of orgasm by reducing oxygen intake, for example, by a noose around the neck. Such behavior is associated with the accidental risk of fatality, often due to malfunction of the apparatus used, which, in turn, may be the first indication to others of such behavior. Partial drowning has also been described.42

302 Paraphilias

forced to pay for, or being robbed by the sexual partner). The literature, especially case reports, has inevitably been biased by the focus on unusual paraphilias. Some individuals are described as being polymorphous perverse, in that they have an infantile sexual development and may be aroused by multiple stimuli, even the wind. In turn they may present with a history of a number of apparent paraphilic behaviors and may sexually offend in a number of ways. King has described a case where an individual was aroused by his own sneezing and by the sneezing of others, the sneezing being conceptualized as a fetishistic interest.44 HYPERSEXUALITY

This is sometimes referred to nymphomania or satyriasis. There is a much wider range of sexual drive between individuals than is acknowledged in society. However, only very rarely is hypersexuality due to high testosterone ­levels, e.g.,  a seminoma. It can be associated with high levels of tension and anxiety. Among the behavior abnormalities in the late stage of Alzheimer’s disease, hypersexuality in the form of an insistent desire for sex, not emotional closeness, can result in crude behavior and have an adverse effect on the partner. Such episodes can be time limited, for example for three months’ duration, and then the next day there can be a switch to another fixation, such as eating everything available. RELATED OFFENSES

Sexual (genital) acts

Aggression

Figure 41.3  The relationship between sexual acts and aggression.

of such sites on sexual offending appears marginal, but it does allow increased detection rates of such illegal use. Pornography is considered in detail in Chapter 43.

Sexual Acts and Aggression When aggression accompanies sexual acts, it can be clinically useful to conceptualize the act along a continuum, as shown in Figure 41.3. The link between sex and violence may theoretically be through the limbic system and testosterone.

ASSESSMENT Referrals for assessment may be due to: ●●

Incest Incest occurs when an individual has a sexual relationship with a first-degree relative and is aware of this. Sibling incest may be the most common, but father/daughter is most reported to authorities and may be associated with collusion of the mother to prevent unwanted sexual advances. Such behavior has been classified into three types: endogamic, pedophilic, and promiscuous. It is said to be associated with families where there is overcrowding and poor personal boundaries.45,46,47 Men who have committed incest offenses have a higher likelihood of having pedophilia but also a lower likelihood of reoffending.48

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Prostitution Prostitution itself is not an offense, but soliciting or keeping a brothel is. Economic motives are commonly given as a rationalization for prostitution, and the financial rewards can be high. However, prostitutes as a group show an excess of mental disorders, self-harm activities, alcohol or drug abuse, physical disorders, personality disorders, and bisexuality and are more likely to have been in care and sexually abused themselves.

Pornography Pornography is sometimes cited in court as the primary cause of a sexual offense. In reality this is rarely so. This defense is used more often by those with a personality disorder and paraphilias. In comparison with the rapid growth and increasing use of pornographic Internet sites, any effect

●●

Formal referral by authorities following law involvement. Such individuals may have limited, if any, motivation to change. They may already be serving a custodial sentence. Individuals distressed by their paraphilias and in fear that such behavior may impair their health or career, or result in law involvement. Such individuals may vary in the degree to which they wish to develop normal sexual desires and behaviors. Individuals presenting as a result of the distress of their partners at the individual’s paraphilic behavior. Such individuals may, in turn, be concerned at their partners’ reaction. Individuals presenting with sexual dysfunction, such as erectile difficulties, secondary to paraphilias or reliance on paraphilias (e.g., fetishistic objects) for arousal. The partner may also be concerned at the resulting sexual dysfunction and wish for help to this end. Those with gender identity disorders.

Clinical risk assessment Sexual fantasies and impulses will need to be explored, but this may not always be easy. Freud stated that individuals do not tell the truth in the area of sexuality.49 It is important to determine whether the fantasies or impulses are egosyntonic or egodystonic. The practitioner should also establish whether there has been an escalation in behaviors, for example, to actually attempt to act out fantasies. It is important to establish whether fantasies are about particular known individuals or not, and whether the fantasies

Management 303

involve ­consent or force. The relationship, if any, of paraphilic behavior to alcohol consumption, drug abuse, or the use of pornography needs to be established. Information gathering should include talking to informants such as partners, and, in the case of sexual offenders, obtaining the following: depositions or statements, usually only available in cases of serious sexual offenses before crown courts; a list of previous convictions; and social inquiry reports for the court prepared by probation officers. Previous psychiatric records and, when relevant, general practice records should be obtained and formal psychiatric disorders confirmed or excluded. Hypomania and mania can increase sexual drive and result in rape. While one should note the sexual content of any delusions, most psychotic patients do not sexually offend as a result of their delusions, unlike the situation with serious direct violence, which often arises from delusions. Male sex offenders tend to have a greater prevalence of personality disorders. Higher mean Hare Psychopathic Checklist – Revised scores have been found among pedophile offenders. Inpatient sex offenders often have a wide variety of mental disorders, with low rates of paraphilias which, if present, are often comorbid. Clinical risk assessment is open to bias and poor consistency and is difficult to qualify. It is often inductive, based on past cases or cases that went wrong. A risk assessment should be undertaken,50 but categorizing risk from low to high is often arbitrary unless its ­meaning and likelihood are explained—for example, immediacy, frequency, or consequences of risk. The elevated risk of suicide among those with recent or impending prosecutions for sexual offenses should also be borne in mind.

lower. The Risk Matrix 2000 categorizes sexual and violent offenders from low to very high risk. However, instruments that look at dynamic (changeable) risk factors (both relatively stable, such as personality factors, e.g., STABLE 2007, and acute, e.g., ACUTE-2007), can assist professional judgment. Other examples include Sexual Violence Risk20, RSV (previously SVR-20),53 Risk of Sexual Violence Protocol (RSVP),54 and Sexual Assessment of Risk and Need (SARN).55 The SARN is useful in developing treatment plans and measuring change. Table 41.4 summarizes currently used sexual offending risk assessment tools.

Standardized structured risk assessments

The aims of management need to be realistic, and ideally goals should be agreed upon with the individual. Elimination of the paraphilia is often not possible, but control can sometimes be achieved. Attempts to remove or reduce paraphilias usually require the enhancement of other outlets. In general, those with stable personalities who are well motivated and have some adult sexual fantasies or past adult sexual experience do best. However, motivation may be difficult to assess when an individual is under the

Formal psychological testing, such as with the Thorne Sex Inventory, may be helpful. For sex offenders, actuarial risk assessment instruments that look at static risk factors such as age, number and type of previous offenses, type of ­v ictim, and history of cohabitation (such as STATIC-9951 and Risk Matrix 200052) are objective, unbiased, and deductive but only moderately predictive, and first offenders score

Penile plethysmography or phallometry These tests with the subject’s consent may elicit deviant arousal patterns, such as arousal in response to children or rape, and may c­ ounter the tendency of sex offenders to denial or self-report errors. Penile plethysmography, however, tends to be less reliable when individuals are in institutions than when they are in the community, where there may be more stimuli to paraphilic interests and behaviors.

Use of a polygraph as a lie detector This has been found to be helpful in countering denial among pedophiles in the community;56 for example, by revealing more high-risk behaviors such as unsupervised contact with children than is apparent from the history given by the individual. How much this is merely due to the individual believing his lies will be detected, and thus revealing more voluntarily, is debated.

MANAGEMENT

Table 41.4  Sexual offending risk assessment tools 1. Structured clinical • Structured Assessment of Risk and Need (SARN) • Dynamic tool for work with sex offenders • Useful in developing treatment plans and measuring change • Risk of Sexual Violence protocol (RSV) (previously SVR-20) 2. Actuarial • Static-99: Actuarial tool for measuring risk of sex offenders. • Sex Offending Risk Appraisal Guide (SORAG) • Rapid Risk Assessment of Sex Offenders (RRSOR) • Sex Offenders Needs Assessment Rating (SONAR)

304 Paraphilias

stress of a forthcoming court appearance and facing custody. There are no good controlled trials of long-term, as opposed to short-term treatment, for those with paraphilias, particularly if they have committed sexual offenses. In addition, negative ­counter-transference among professionals may lead to rejection from treatment. Regarding sex offenders, 80% do not re-offend after first convicted; it is often the recidivist who seeks or is sent for treatment. However, if an individual has committed more than two sexual offenses and has had no adult sexual experience, one must assume that the offending will continue. The deterrent effect of the law may be more effective than treatment, though UK Home Office statistics suggest that recidivism rates among sexual offenders released from prison are lower than those for other offenders during the first two years (16% compared to 56%). However, long-term follow-up studies of sexual offenders indicate more pessimistic outcomes.57 In prison, pedophiles may be subject to victimization more often than rapists. Pedophile offenders are often scapegoated, even by those who have committed rape or homicide; this may relate in part to the dynamics of being in single-sex custodial institutions. In the United Kingdom, since the introduction of the Criminal Justice Act 1991, sex offenders may be subject to indeterminate supervision. The risk management of severely (psychotic) mentally ill sex offenders will clearly differ from that of other sex offender groups.58 Any intercurrent mental illness should be treated. Coexisting problems such as social anxiety, social skills deficits, poor sex education, and marital difficulties should be tackled. Sexual offending is over-represented among those with developmental disorders and impaired intellectual functioning. However, it is unlikely that tackling such coexisting problems alone will stop paraphilias or associated sexual offending. Individuals often request to be made to stop their paraphilic behavior, when really they need to be made to want to stop. Psychodynamic approaches, as described by Zachery,59 of both individual and group therapy (such as at the Portman Clinic in North London) have been attempted. The stress of such therapy may in some individuals increase the risk of offending in the short term, however, owing to acting out and perhaps by inducing guilt, leading to their being more readily apprehended. There is a stronger evidence base for ­cognitive-behavioral approaches. Nagayam-Hall60 showed that of those sexual offenders who completed a CBT program, only 19% ­re-offended, compared to 27% among controls. Cognitive behavioral approaches include the following: 1. Reduction of deviant sexual arousal. Now almost never used, aversion therapy, including electrical aversion, involves repeated pairing of the stimulus for paraphilias, such as visual images, with unpleasant stimuli, such as electric shocks. In covert sensitization, the aversion is imaginal; for example, the individual is asked to fantasize about his paraphilic behavior and then to imagine

an aversive scene, such as a police officer or others observing his act.61 2 . Increasing non-deviant sexual arousal. This may be undertaken by masturbatory orgasmic r­ econditioning,62 in which there is reinforcement of non-paraphilic arousal and desires by asking the individual to switch to fantasies of conventional sexual stimuli when orgasm is imminent as a result of masturbating to paraphilic fantasies, i.e., an attempt is made to pair arousal with normal sexuality. The point of switching to conventional fantasies is gradually brought forward. The goal is that the entire episode takes place to non-paraphilic fantasies. Another technique is fading or satiational therapy.63 In this therapy, the individual is instructed to fantasize and masturbate to the paraphilic act for extended periods, perhaps up to an hour, as a result of which it is theorized that satiation should take place to the paraphilia. More controversially, surrogate therapy has also been used to increase non-deviant sexual arousal. 3. Self-control training. Cognitive therapy approaches can be used to clarify and modify faulty cognitions, such as that the victim enjoyed the offense act, and to enhance empathy for the victims, as well as learn to avoid highrisk situations. 4. Partial incorporation of paraphilia to sexual repertoire. This is practical only if the paraphilia is acceptable and legal, as would not be the case in pedophilia. It also has to be something a partner can tolerate. Individual sessions with a partner may need to be undertaken to establish this, and thereafter the couple may be helped to reduce the role of paraphilia in their sexual relationship. For example, for a leather fetish, the amount of leather worn may be reduced to merely an arm band. A negotiated timetable approach64 may also lead to temporal control. An example is specifying certain days of the week only for the paraphilia. Success with such an approach has also been described in those with fetishism.65 Sex offender treatment programs have been developed both for those in the community and for those in prison. They involve, usually in group work, understanding offense cycles, challenging distorted cognitions (e.g., pedophiles believing that they satisfy children’s natural sexual urges), understanding harm done to the victim, modifying fantasies, training in social skills and anger management control, and working on relapse prevention. Booster programs, such as before release from custody, may be required. Evaluation of such programs66,67 has differentiated highfrom low-risk offenders, with high-risk offenders characterized by social inadequacy, lack of empathy for victims, distorted thinking, increased sexual obsessions, and ­abnormal emotional congruence leading to distorted emotional attachment, for example, to children.

Legislation relevant to sex offenders in England and Wales  305

The psychological management of child sexual abusers and high-risk sexual offenders has been well detailed by Craissati.68,69

Antilibidinal treatment Despite the rare controlled studies, guidelines have been proposed for the pharmacological treatment of paraphilias, usually with the recommendation that it be combined with psychological treatments.70 Antilibidinal treatment reduces sexual drive but is not concerned with the direction of that drive. It is, therefore, most effective when sexual activity is directed toward orgasm but least effective when such activity is primarily directed at forming a relationship, such as for some pedophiles, for whom antilibidinal treatment may not affect re-offending rates. Antilibidinal treatment may suppress “normal” sexual drive as well as paraphilic interests, and individuals may fear losing their sexuality as a result of such treatment. An unspoken fear of prisoners in general is that medication may result in loss of libido. Castration has never been used as an antilibidinal treatment in the United Kingdom. Estrogens have been used in the past, although they have severe feminizing effects. Benperidol (Anquil) is a major tranquilizer that may not be any more effective than other such neuroleptic medications in reducing sex drive, but it has the advantage of avoiding the need for detailed written consent procedures and the pre-treatment workup required for cyproterone acetate (Androcur). In recent years SSRI antidepressants have been used as a first-line medication treatment when preoccupation and rumination over the paraphilic behavior are apparent, for example, with exhibitionism. The evidence base, however, consists of case studies and small open trials of such ­antidepressants. Most used and reported in this context is fluoxetine (Prozac). Medroxyprogesterone acetate is widely used in the United States. It induces the liver enzyme testosterone A-ring reductase, leading to increased metabolism and reduced plasma testosterone levels. There are also anti-­ gonadotrophic effects. Cyproterone acetate (Androcur) is more widely used in the United Kingdom, Europe, and Canada. It specifically blocks androgen effects and has an anti-gonadotrophic action. It inhibits the production of testosterone by enzyme blockade, competitively antagonizes testosterone, acts on the hypothalamic center, and is progestrogenic. The usual dose is 50 mg orally bd, but an injection is available from Germany. Indications consist of hypersexuality, including for females; indecent exposure; and unwanted sexual fantasies. It has also been used in aggression in severe intellectual (learning) disability and as a male contraceptive in small doses. It does not work if sexual behavior is associated with alcohol abuse. It has some effect within 48 hours and reduces sexual drive after 10–14 days. There is a reduction in spermatogenesis (oligospermia) and loss of ejaculation. It reduces sexual

thoughts and behavior.71 Unwanted effects include gynaecomastia in 10%–15%, which often remits, especially if not extensive, when treatment stops. Previous concerns about inducing breast cancer have been discounted. There may be loss of body hair on prolonged treatment. Occasionally, depression is seen in the third week and sometimes habituation requiring an increased dose. The effects are reversible, although will take some months. Some patients retain ­erections and sex drive in spite of high doses. In the testes, germinal cells are reversibly damaged (seminiferous tubular arrest, only, i.e., fertility is preserved), while Leydig cells are irreversibly damaged. Before treatment it is essential to conduct a full physical examination, obtain written consent, and undertake liver function tests, sperm count, and testosterone levels as baselines, including to counter any subsequent litigation, especially when the medication is blamed for infertility. Triptorelin is a more recently introduced gonadotrophin releasing hormone agonist antilibidinal depot injection.72 Goserelin (Zoladex) is a luteinizing hormone releasing hormone (LHRH) analogue. It is licensed only for cancer of the prostate and breast but may be more effective than cyproterone acetate. Hormone treatments are emotive, but if psychological treatments do not work and serious sexual re-offending is certain (for example, in high-risk offenders leaving prison after a custodial sentence), then their use appears justified. However, those most in need may not consent. Some treated individuals who re-offend blame their medical practitioners for inadequately treating them with doses that are too low. Some individuals cite the resulting lack of sex drive as a cause of increased subsequent aggression.

LEGISLATION RELEVANT TO SEX OFFENDERS IN ENGLAND AND WALES Legislation has been developed in a number of countries in an attempt to prevent harm to the public from both individuals illegally acting out certain paraphilic desires and also other sex offenders. American sexually violent predator (SVP) laws allow civil commitment of those with defined paraphilias. While sexual violence remains poorly understood, prevention strategies can be designed to beneficial effect.73 The public and media concern that something must be done to better manage sex offenders in the UK has led to new legal initiatives in recent years. The following have been enacted in England and Wales, and similar legislation has been introduced elsewhere. Under the Criminal Justice Act 1991, sex offenders receive longer sentences and longer periods on license than otherwise would have been the case to protect the public from serious harm. The Crime (Sentences) Act 1997 introduced a mandatory life sentence for a second serious offense, such as rape, attempted rape, or sex with a girl under 13 years old. The Sex Offenders Act 1997 specifies that offenders must notify police of their name, date of birth, and address and

306 Paraphilias

any changes of address, not only if they are convicted of a sexual offense, but also if cautioned, unfit to plead, or not guilty by reason of insanity, whether the individual is in hospital or in prison. The penalty for failure to do so is a fine or up to 6 months’ imprisonment. Under this act a defendant can also face trial even if the offense occurred abroad. Under the Crime and Disorder Act 1998, the police can apply for a Sex Offences Prevention Order (SOPO) to prohibit an individual from certain areas and times, such as children’s playgrounds, if (1) the individual has been previously convicted or cautioned for a sexual offense, or (2) he is behaving in a way suggesting that the public is at serious risk of harm. Extended sentences under Section 85 of the Powers of the Criminal Courts (Sentencing) Act 2000 have been introduced “to protect the public from serious harm from the offender” (violent or sexual). There are two components: a standard custodial term and an extension period of license, up to 10 years for a sexual offense and 5 years for a violent offense. The Criminal Justice Act 2003 introduced “indeterminate sentences for public protection” in respect of high-risk offenders, a measure equivalent to a life sentence. Such sentences have now been discontinued for new cases before the courts. Under the Children and Young Persons’ Act 1993, Schedule 1 offenses are described, which include all offenses against children up to the age of 17 years. The management of such offenders is now covered by guidance (Schedule 15 of the Criminal Justice Act 2003) from the Ministry of Justice for inter-agency cooperation. Following the Criminal Justice and Court Services  Act 2000, under sections 67 and 68, Multi-Agency Public Protection Arrangements (MAPPAs), in force since 2001, have placed a legal responsibility on the police and probation services to assess and manage those at risk of serious harm to others, including sex offenders, with a duty of ­psychiatrists to cooperate with this.

CONCLUSIONS It is important to remember that paraphilias may be nonproblematic and not lead to sexual offending, and that only a small proportion of affected individuals are referred for psychiatric assessment and help. Such individuals may not be motivated to change. On the other hand, individuals with paraphilias may present with sexual and marital dysfunction as well as depression and anxiety without acknowledging the underlying paraphilia. In addition, paraphilias may not be eliminated by treatment, and only control may be achievable; hence the importance of realistic agreed goals with a patient presenting with a paraphilia.

LEARNING POINTS: SEX OFFENDERS ●●

The most common sexual offense is indecent exposure, which is associated with the paraphilia of exhibitionism. Most such offenders are inhibited,

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non-violent young men who do not reoffend once convicted. A few are more psychopathic and become sexually aroused. Paraphilias may not be eliminated by treatment, and only control may be achievable. Cognitive-behavioral approaches have been found to be most effective. Standard structured risk assessments that assess static and dynamic risk factors in sex offenders, such as SVR-20, RSVP, and SARN, can supplement ­clinical risk assessment and are better than actuarial risk assessments (Static-99 and Risk Matrix 2000) alone. Penile plethysmography and the use of a polygraph as a lie detector may also assist in the management of sex offenders. Antilibidinal medication, such as cyproterone acetate (Androcur), reduces sexual drive but is not concerned with the direction of that drive. It is most effective when sexual activity is directed toward orgasm, but least effective when such activity is primarily directed to forming a relationship, for example, in some pedophiles, where antilibidinal treatment may not affect ­re-­offending rates.

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10. World Health Organization. ICD-10 Classifications of Mental and Behavioural Disorders: Clinical Descriptions and Diagnostic Guidelines. Geneva: World Health Organization, 1992. 11. Wakefield JC. DSM-5 proposed diagnostic criteria for sexual paraphilias; tensions between diagnostic validity and forensic utility. International Journal of Law and Psychiatry. 2011; 34: 195–209. 12. Moser C. Hypersexual disorder: Just more m ­ uddled thinking. Archives of Sexual Behavior. 2011; 40: 227–29. 13. Kallman FJ. Study on the genetic effects of male homosexuality. Journal of Nervous and Mental Disorders. 1952; 115: 1283–98. 14. Eckhert ED, Bouchard TJ, Bohlen J, Heston LL. Homosexuality in monozygotic twins reared apart. British Journal of Psychiatry. 1986; 148: 421–25. 15. Bailey JM, Pillard RC. A genetic study of male sexual orientation. Archives of General Psychiatry. 1991; 48: 1089–96. 16. Hamer DH, Hu S, Magnuson VL, et al. A ­linkage between DNA markers on the X chromosome and male sexual orientation. Science. 1993; 261: 321–27. 17. Flor-Henry P. Cerebral Aspects of Sexual Deviation. In: Variant Sexuality. Ed. Wilson G. London: Croom Helm, 1987. 18. Harris GW, Levine S. Sexual differentiation of the brain and its experimental control. Journal of Physiology. 1962; 163: 42–43. 19. Jordan K, Fromberger P, Stolpmann G, Muller JL. The role of testosterone in sexuality and paraphilia— a neurobiological approach. Part 1: testosterone in sexuality. Journal of Sexual Medicine. 2011; 8: 2993–3007. 20. Jordan K, Fromberger P, Stolpmann G, Muller JL. The role of testosterone in sexuality and paraphilia— a ­neurobiological approach. Part II: testosterone in sexuality. Journal of Sexual Medicine. 2011; 8: 3008–29. 21. Flor-Henry P. Cerebral Aspects of Sexual Deviation. In: Variant Sexuality. Ed. Wilson G. London: Croom Helm, 1987. 22. Harlow HF. Sexual Behaviour in the Rhesus Monkey. In: Patterns of Sexual Behaviour. Ed. Beech FA. New York: Harper & Row, 1965: 234–65. 23. Rachman S. Sexual fetishisms: An experimental analogue. Psychological Record. 1966; 16: 293–96. 24. Welldon E. Mother, Madonna, Whore: The Ideation and Denigration of Motherhood. London: Karnac Books, 1992. 25. Randell J. Transvestism and transsexualism. British Journal of Hospital Medicine. 1970; 3: 211. 26. Rooth FG. Indecent Exposure and Exhibitionism. In: Contemporary Psychiatry. Eds. Silverstone T, Barraclough B. Ashford, UK: Headley Brothers, 1976. 27. Rooth FG. Exhibitionism, sexual violence and ­paedophilia. British Journal of Psychiatry. 1973; 122: 105–10.

28. Rooth, FG. Exhibitionism: An eclectic approach to its management. British Journal of Hospital Medicine. 1980; 49: 366–70. 29. McConghy N. Paedophilia: A review of the evidence. Australian and New Zealand Journal of Psychiatry. 1998; 32: 252–65. 30. Finkelhor D. A Source Book on Child Sexual Abuse. Thousand Oaks, CA: Sage Publications, 1986. 31. Canter JM, Kabani N, Christensen BK et al. Cerebral white matter deficiencies in pedophilic men. J. Psych. Research. 2008; 42: 167–183. 32. Wilkins R. Women who sexually abuse children. British Medical Journal. 1990; 300: 1153–54. 33. Saradjian J. Women Who Sexually Abuse Children: From Research to Clinical Practice. Chichester: John Wiley, 1996. 34. Sturup GK. Castration: The Total Treatment. In: Sexual Behaviours. Eds. Resnik RLP, Wolfgang ME. Boston: Little, Brown, 1971: 361–82. 35. West DJ. Paedophilia: Plague or panic. Journal of Forensic Psychiatry. 2000; 11: 511–31. 36. Mullen PE. Child sexual abuse and mental health: The development of disorders. Journal of Interpersonal Violence. 1993; 8: 429. 37. Tsopelas C, Tsetsou S, Douzenis A. Review on female sexual offenders: Findings about profile and personality. International Journal of Law and Psychiatry. 2011; 34: 122–26. 38. Bergman P. Analysis of an unusual case of fetishism. Bulletin of the Meninger Clinic. 1947; 11: 69–75. 39. Brittain RP. The sadistic murderer. Medicine, Science and the Law. 1970; 10: 198–207. 40. MacCulloch MJ, Snowden P, Wood P, Mills H. Sadistic fantasy, sadistic behaviour and offending. British Journal of Psychiatry. 1983; 143: 20–9. 41. Grubin D. Sexual murder. British Journal of Psychiatry. 1994; 165: 624–29. 42. Sivaloganathan S. Aqua-eroticum: A case of autoerotic drowning. Medicine, Science and the Law. 1984; 24: 300–302. 43. Fahy T, Wessley S, David A. Werewolves, vampires and cannibals. Medicine, Science and the Law. 1998; 28: 145–49. 44. King MB. Sneezing as a fetish object. Journal of Sex and Marital Therapy. 1990; 5: 69–72. 45. Batten DA. Incest: A review of the literature. Medicine, Science and the Law. 1983; 23: 245–53. 46. Gibbens TCN, et al. Sibling and parent child incest offenders. British Journal of Criminology. 1978; 18: 40–52. 47. Lukianovicz N. Incest. British Journal of Psychiatry. 1972; 120: 301–13. 48. Fedoroff JP. Forensic and diagnostic concerns arising from the proposed DSM-5 criteria for sexual paraphilic disorder. Journal of the American Academy of Psychiatry and the Law. 2011; 39: 238–41.

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49. Freud S. Three Essays on the Theory of Sexuality. In: The Standard Edition of the Complete Works of Sigmund Freud, Vol 7. Ed. Strachey J. London: Hogarth Press, 1953. 50. Fisher D, Thornton A. Assessing risk of re-offending in sexual offenders. Journal of Mental Health. 1993; 2: 105–17. 51. Hanson RK, Thornton D. Improving risk assessments for sex offenders: A comparison of three actuarial scales. Law on Human Behaviour. 2000; 24: 119–36. 52. Thornton D, Man R, Webster S, et al. Distinguishing and combining risks for sexual and violent recidivism. Annals of the New York Academy of Sciences. 2003; 989: 225–35. 53. Boer D, Hart S, Kropp R, Webster C. Manual for the Sexual Violence Risk-20: Professional Guidelines for Assessing Risk of Sexual Violence. Lutz, FL: Psychological Assessment Resources Inc., 1998. 54. Hart S, Kropp ER, Laws R, Klaver J, Logan C, Watt K. The Risk for Sexual Violence Protocol (RSVP): Structured Professional Guidelines for Assessing Risk for Sexual Violence. Burnaby, Canada: Simon Fraser University, Mental Health, Law, and Policy Institute, 2003. 55. Webster SD, Mann RE, Carter AJ, et al. Inter-rater reliability of dynamic risk assessment with sexual offenders. Psychology and Criminal Law. 2005; 12: 439–52. 56. Grubin D, Madsen L, Parsons S, Sosnowski D, Warberg B. A prospective study of the impact of polygraphy on high risk behaviours in adult sex offenders. Sexual Abuse: A Journal of Research and Treatment. 2004; 16: 209–22. (Grubin, D., Polygraph pilot study: final report available on line 2007.) 57. Soothill K, Gibbons T. Recidivism of sexual offenders: A reappraisal. British Journal of Criminology. 1978; 18: 267–76. 58. Stinson JD, Becker JD. Sexual offenders with serious mental illness: Prevention, risk, and clinical concerns. International Journal of Law and Psychiatry. 2011; 34: 239–45. 59. Zachery A. Individual psychoanalytical psychotherapy with perpetrators of sexual abuse. Advances in Psychiatric Treatment. 1998; 4: 77–81.

60. Nagayama-Hall JC. Sexual offender recidivism revisited: A meta-analysis of recent treatment studies. Journal of Consulting and Clinical Psychology. 1995; 63(5): 802–809. 61. Cautela JR, Wisocki PA. Covert sensitization for treatment of sexual deviations. Psychological Record. 1971; 21: 37–48. 62. Marquis JM. Orgasmic reconditioning: Changing sexual object choice through controlling masturbation fantasies. Journal of Behavior Therapy and Experimental Psychiatry. 1970; 1: 263–71. 63. Marshall WL. Satiation therapy: A procedure for reducing deviant sexual arousal. Journal of Applied Behavioral Analysis. 1979; 12: 10–22. 64. Crowe MJ, Ridley J. Therapy with Couples. Oxford: Blackwell, 2000. 65. De Silva P. Paraphilias and sexual dysfunction. International Review of Psychiatry. 1995; 7: 225–29. 66. Barker M, Morgan R. Sex Offenders: A Framework for Valuation of Community-Based Treatment. HMSO London: Home Office Report, 1993. 67. Beckett R, Beech A, Fisher D, Fordham AS. Community-Based Treatment for Sex Offenders: An Evaluation of Seven Treatment Programmes. London: Report for the Home Office, 1994. 68. Craissati J. Child Sexual Abusers: A Community Treatment Approach. New York: Psychology Press, 1999. 69. Craissati J. Managing High Risk Sexual Offenders in the Community: A Psychological Approach. New York: Routledge, 2004. 70. Garcia FD, Thibaut F. Current concepts in the pharmacotherapy of paraphilias. Drugs. 2011; 71: 771–90. 71. Bancroft J, Tennent TG, Loucas K, Cass J. The control of deviant sexual behaviour by drugs: Behavioural change following oestrogens and a ­ ntiandrogens. British Journal of Psychiatry. 1974; 125: 310–15. 72. Saleem R, Kaitiff D, Treasaden I, Vermeulin J. Clinical experience of the use of triptorelin as an antilibidinal medication in a high security hospital. Journal of Forensic Psychiatry and Psychology. 2011; 22(2): 243–51. 73. Douard J, Janus ES. Beyond myth: Designing better sexual violence prevention. International Journal of Law and Psychiatry. 2011; 34: 135–40.

42 Rape ROSS M. BARTELS, ANTHONY R. BEECH, AND LEIGH HARKINS Definition and diagnosis Understanding rape Level I (comprehensive) theories Level II (single-factor) theories Level III (process) theories

309 310 310 310 311

Typologies 311 Treatment 311 Conclusion and future directions 312 References 312

Research indicates that the occurrence of rape in Western societies is disturbingly high. In the United Kingdom, for example, Home Office statistics show that reported incidents of rape of females aged 16 or older increased from 7780 in 2008–2009 to 9102 in 2009–2010, an increase of 17%. The magnitude of this statistic is clear when contrasted with reported incidents of sexual assault against a female child under 13 (i.e., 1652 incidents in 2008-2009 and 1963 incidents in 2009-2010). In the United States, Census Bureau statistics show that the reporting of rape was as high as 89,000 in 2008. Furthermore, research conducted over the past 15 years indicates that that rape offenses are largely under-reported.1 For example, the average rate of victim reporting is 15%–19% in the United States and 14%–18% in the United Kingdom. Thus, actual incidence and prevalence rates are likely to be higher than report statistics show. Furthermore, owing to a year-by-year rise in attrition (i.e., the dropping of a case during the legal process), conviction rates for reported rape offenses are continually falling.2 Thus, rape is a crime that presents a number of challenges to the individual, society, and the criminal justice system. One approach to tackling the issue is to understand and treat the perpetrators of the crime. In this chapter, we provide an overview of what is currently understood about rape and its perpetrators.

penetration of the vagina, anus, or mouth by an object or sexual organ. According the Sexual Offences Act (2003), the definition of rape in the United Kingdom is confined to the penile penetration of the vagina, anus, or mouth. Penetration involving an object is associated with the legal definition of “assault by penetration,” whereas the intentional touching of a person that is sexual in nature is defined as “sexual assault.” Unlike some other “sexual disorders” discussed in this book, rape is not regarded as a diagnosable paraphilia unless it meets the diagnostic criteria for sexual sadism.3 In the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5), a paraphilia is defined as “any intense and persistent sexual interest other than sexual interest in genital stimulation or preparatory fondling with phenotypically normal, physically mature, consenting human partners.” While referring to paraphilias such as frotteurism, a non-consenting p ­ erson is a feature also related to rape. Indeed, since 1985, a number of researchers and clinicians have argued that rape be included in various editions of the DSM.3 In the run up to the publication of the DSM-5, the debate to include rape as a paraphilia resurfaced under the diagnostic term “paraphilic coercive disorder” (i.e., sexual arousal and interest in nonconsensual, coercive sex). Drawing upon phallometric and self-report data, some argue that the construct is distinct from sexual sadism, whereas others argue that this differentiation is not supported.4 There is agreement, however, that more research is needed to better understand the nature of sexual arousal to coercion and its ability to differentiate rapists. Ultimately, the proposal to add paraphilic coercive disorder to the DSM-5 was rejected.

DEFINITION AND DIAGNOSIS Legal definitions in the United States and United Kingdom tend to agree that rape involves the nonconsensual penetration of the vagina or anus. However, not all definitions stipulate that the penetration has to be penile. For instance, in the State of Washington, rape is defined as the

309

310 Rape

UNDERSTANDING RAPE In the area of sexual offending, three levels of theory have been distinguished,5 providing a useful framework for discussing the current understanding of rape.

Level I (comprehensive) theories The most recent example of a comprehensive theory of sexual offending, including rape, is the integrated theory of sexual offending.6 In this theory, it is explained that biological factors (i.e., genetic inheritance and brain development) and ecological factors (i.e., social, cultural, and physical environment, and personal circumstances) have an impact on the three interlocking neurological systems that underlie human action (i.e., motivational and emotional; perception and memory; and action selection and control). The effects of this impact cause the clinical symptoms evidenced by sex offenders, such as deviant arousal, offense-related attitudes, social difficulties, and emotional dysregulation (see Level II theories in the next section). For instance, some males may have a weak genetic predisposition toward sexual promiscuity that interacts with a culture where women are presented as inferior and under-represented in positions of power. As a consequence, pro-rape attitudes and beliefs may develop that influence sexual offending. The main strength of the theory is that it brings together previous comprehensive theories and research and incorporates factors that are known to be determinants of sexual offending (i.e., offensesupportive attitudes). As the authors note, however, the theory is currently an abstract framework for thinking systematically about sexual offending in general. Thus, more needs to be done to corroborate its assumptions and apply it to specific types of sexual offenses such as rape. An earlier comprehensive model that focuses specifically on rape is proffered by Knight and Sims-Knight (2003).7 This model, which proposes three causal pathways, has been empirically validated using adult and adolescent rapists as well as community males. The first pathway involves early physical and verbal abuse that creates a callous and unemotional disposition, which disinhibits sexual preoccupation and fantasies. This in turn disinhibits aggressive sexual fantasies that can lead to rape. The second pathway involves a direct effect of early sexual abuse on the disinhibition of sexual preoccupation and fantasies, which again disinhibits aggressive forms of sexual fantasy that can lead to rape. The third pathway centers on early antisocial and aggressive behavior resulting from callous unemotionality and physical/verbal abuse. This factor has both a direct effect on sexual coercion and an indirect effect through aggressive sexual fantasies. Knight and Sims-Knight emphasize that the defining components of the three pathways (i.e., sexual preoccupation, antisocial behavior, callousness/ unemotionality) correspond with core features of psychopathy and sexual recidivism. Thus, while the model provides a solid foundation for understanding the etiology of rape, it also identifies the key areas of therapeutic intervention.

Further  research needs to be undertaken to explore other possible developmental factors not included in the model.

Level II (single-factor) theories Level II theories focus on single psychological (or criminogenic) factors that are known to be important in sexual offending. Empirical research has identified four primary single factors that have become known as “dynamic risk factors” (i.e., relatively stable but changeable factors that predict sexual recidivism).8 These factors include deviant interest, offense-supportive attitudes, socio-affective problems, and self-regulation problems. Studies have shown that many rapists evidence deviant sexual interests related to rape. For instance, based on phallometric responses (i.e., the recording of penile responses during the presentation of deviant and nondeviant sexual stimuli), it has been found that adult rapists demonstrate sexual preferences toward “rape with humiliation” and “rape with physical violence.”9 Furthermore, these deviant preferences positively c­ orrelate with certain developmental factors, such as a sexually inappropriate family environment, the use of pornography, deviant sexual fantasies, and an impulsive or antisocial lifestyle, which supports Knight and Sims-Knight’s model. Regarding offense-supportive cognitions, rapists tend to hold grievance-related (i.e., hostile and distrustful) attitudes toward women.10 They also display beliefs that women are sexual objects, that men are entitled to sex with women, that women are dangerous, that a man’s sex drive is uncontrollable, and that the world is dangerous.11 In addition to influencing sexual offending behavior, distorted beliefs are also thought to be the source of post-offense rationalizations, more commonly termed “cognitive distortions.” For instance, because of a belief that women are constantly ­sexually receptive, a rapist may state that the victim enjoyed his sexually coercive overtures. With regard to socio-affective problems, research shows that some rapists demonstrate more intimacy deficits and higher levels of loneliness than nonoffenders.12 It has been hypothesized13 that these types of emotional problems in rapists result from having a dismissing attachment style in adulthood, arising from having an avoidant attachment style in childhood. (Avoidant attachments in ­childhood develop from detached and unresponsive caregivers and are characterized by distress at separation from their caregiver, yet avoidance on their return. Individuals with the corresponding adult attachment style [i.e., dismissing] are skeptical of close relationships and place an emphasis on remaining independent. They also tend to be actively hostile in their interpersonal relationships.13) In support, research has shown that many rapists report an avoidant attachment style during childhood14 and a dismissive attachment style during adulthood.13 Self-regulation problems involve an offender’s inability to solve problems and regulate emotional impulses. Research indicates that rapists often use inappropriate coping strategies (i.e., deviant sexual fantasies) when or after experiencing negative

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affect or  mood  states. For example, research with rapists has shown that a relationship exists between negative emotions, such as anger, loneliness, and humiliation, and the use of deviant sexual fantasies.15 Rapists who use deviant sexual fantasies during these times present a serious problem because, as Knight and S­ ims-Knight have shown, such fantasies play a role in all three causal pathways of rape. These four criminogenic factors are also often interrelated. For example, an individual who experiences constant rejection from women will both come to feel emotionally lonely (socio-affective problems) and form hostile and ­distrusting beliefs about women (offense-supportive attitudes). To cope with his loneliness, the individual may incorporate his hostile beliefs into sexual fantasies about dominating and controlling women (self-regulation problems), which eventually become his primary source of ­sexual arousal (deviant interest).

which these factors develop, interact with other factors, and manifest often varies among rapists. As a result, rapists show differential motivations to offend. Accordingly, efforts have been made to classify rapists into subtypes based on their differing motivations. Probably the best known classification system for rapists is the Massachusetts Treatment Center: Revision 3 (MTC: R3).17 The MTC: R3 classifies rapists into five overall ­subtypes: sexual sadistic rapists (involving a fusion of sexual and aggressive drives); sexual nonsadistic rapists (involving a sexual preoccupation without the fusion of aggression); opportunistic rapists (resulting from general antisociality and impulsivity); pervasively angry rapists (resulting from undifferentiated anger); and vindictive rapists (resulting from misogynistic anger directed solely at women). This taxonomy is particularly noteworthy as it has been updated and validated with multiple samples.

Level III (process) theories

TREATMENT

Level III theories are descriptive accounts of an offending process. They typically include a description of the factors and processes involved in the buildup to an offense as well as the behaviors and feelings experienced during and after the offense. Based on interviews with rapists, a descriptive model of the offense process involved in rape has recently been proposed.16 The model essentially comprises six phases: background (involving positive or negative background characteristics and proximal moods); goal formation (establishing dominant goals and plans for their attainment); approach (encountering the victim, interpreting her response, and evaluating the progress of goal attainment); preparation (involving the appraisal of potential constraints before preparing the assault); offense (involving either degrading or nondegrading sexual assaultive behavior, perception of the victim’s response, and an evaluation of the interaction); and post-offense (involving immediate situation management followed by an evaluation of the ­situation in terms of goal attainment, which results in either a negative or positive affective response followed by some behavioral response). This particular model highlights the various sexual and nonsexual behavioral, affective, and cognitive factors that can be experienced by a rapist during the process of an offense. It also draws attention to the fluid nature of goals, demonstrating how and why they can shift throughout the offense process. Given this, the model provides a useful framework for understanding a particular rapist’s offense during the early stages of treatment.

In the United Kingdom, as well as the United States and Canada, rapists tend to be treated alongside child sex offenders in generic sex offender treatment programs. These ­programs involve the use of cognitive-behavioral techniques to identify and address the four dynamic risk factors outlined earlier.8 However, this framework is informed primarily by theory and research related to child sex offenders.18 Thus, given their high degree of heterogeneity, many rapists may not be benefiting from such treatment programs. For example, in a recent study evaluating the effectiveness of sex offender treatment on rapists (n = 112), grievance-­ motivated (i.e., angry) rapists showed no significant changes post treatment.18 However, the researchers did find that rapists with sexual and sadistic motivations showed some positive ­outcomes, such as changes in entitlement and grievance beliefs, respectively. Thus, while demonstrating the problems with generic treatment programs in relation to rapists, these results also indicate that treatment has the potential to be tailored to rapists’ specific needs. Therapists should therefore attempt to account for and address these needs. One method is to tailor treatment on the basis of rapist subtypes. It has recently been argued that therapists should use the MTC: R3 typology as a way of recognizing and addressing the criminogenic needs pertinent to each subtype,19 for example, focusing on anger management for pervasively angry rapists and reducing deviant arousal for sexually motivated rapists. In addition to having distinct criminogenic needs, rapist subtypes also show differences regarding commonly shared criminogenic needs. For instance, it is suggested that offense-supportive beliefs differ for each subtype of the MTC: R3.19 This is supported by a study demonstrating that certain rape-supportive beliefs are associated with specific motivations.20 The researchers found that ­g rievance-motivated rapists evidenced dangerous world beliefs; sexually motivated rapists demonstrated beliefs

Typologies In light of the multiple developmental pathways7 and the variation that can occur throughout the offense process,16 it would appear that rapists are not a homogeneous group. Thus, while most rapists share a number of common factors (i.e., hostile attitudes toward women), the manner in

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that women are sexual objects as well as entitlement beliefs; and sadistically motivated rapists held both dangerous world and women-as-sexual-objects beliefs. Importantly, the researchers note that the identification of these three groups shares similarities to the pervasively angry/vindictive, sexual nonsadistic/opportunistic, and sexual sadistic subtypes of the MTC: R3, respectively. In light of this, the specific beliefs of a particular rapist should be identified and appropriately targeted during treatment. Arguably, the same principle also applies to the other core criminogenic factors (i.e., emotional problems, deviant interest, self-regulation problems). In contrast to child sex offenders, rapists tend to show more problems in areas related to nonsexual offending (i.e., antisocial behavior, alcohol and drug use). Thus, these issues should also be a central treatment target for rapists.

CONCLUSION AND FUTURE DIRECTIONS Rape is a complex phenomenon, not only as a problem faced by society and the criminal justice system but also as a sexual crime per se. Research has highlighted the various developmental routes, motivations, criminogenic factors, and offense processes involved in rape. Accordingly, to increase treatment efficacy for rapists as a group, attempts should be made to tailor therapeutic intervention so that rapists’ individual needs are adequately addressed. Future research should focus on exploring the processes underlying criminogenic factors. For example, there has been a sharp increase in research using cognitive measures to assess the organization and processes underlying childrelated cognitive structures in child sex offenders. However, this type of research is lacking in rapists. Thus, studies using indirect measures designed to investigate the organization of key cognitive structures (i.e., distorted beliefs) and the processes underlying certain cognitive operations (i.e., deviant sexual fantasies) in rapists are needed. Similarly, research using neuroimaging techniques, such as functional magnetic resonance imaging, to examine the brain activity associated with certain cognitive processes is a line of inquiry that is also likely to provide valuable insight into such issues. As discussed earlier, the integrated theory of sexual offending states that criminogenic needs arise from problems in neuropsychological functioning, which ultimately lead to sexual offending. Thus, neuroimaging research in this area would seem a timely endeavor. Not only will such research advance our understanding of rape, but it may also aid in the discovery of more effective treatment strategies.

REFERENCES 1. Daly K, Bouhours B. Rape and attrition in the legal process: A comparative analysis of five countries. Crime and Justice: An Annual Review of Research. 2010; 39: 565–650.

2. Kelly L, Lovett J, Regan L. A Gap or a Chasm? Attrition in Reported Rape Cases, Home Office Research Study 293. London: Home Office; 2005. Available from: http://webarchive.nationalarchives. gov.uk/20110220105210/rds.homeoffice.gov.uk/rds/ pdfs05/hors293.pdf. 3. Polaschek DLL. The Classification of Sex Offenders. In: Sexual Deviance: Issues and Controversies. Eds. Ward T, Laws DR, Hudson SM. Thousand Oaks, CA: Sage Publications, 2003: 154–71. 4. Knight RA, Thornton D. A dialogue on paraphilia coercive disorder: Moving toward an empirically based consensus. Sex Offender Law Report. 2011; 12: 33–48. 5. Ward T, Hudson SM. The construction and development of theory in the sexual offending area: A metatheoretical framework. Sexual Abuse: A Journal of Research and Treatment. 1998; 10: 47–63. 6. Ward T, Beech AR. An integrated theory of sexual offending. Aggression and Violent Behavior. 2006; 11: 44–63. 7. Knight RA, Sims-Knight JE. Developmental Antecedents of Sexual Coercion Against Women: Testing of Alternative Hypotheses with Structural Equation Modeling. In: Sexual Coercion: Understanding and Management. Eds. Prentky RA, Janus E, Seto M. Annals of the New York Academy of Sciences. New York: New York Academy of Sciences, 2003: 72–85. 8. Thornton D. Constructing and testing a framework for dynamic risk assessment. Sexual Abuse: A Journal of Research and Treatment. 2002; 14: 139–54. 9. Beauregard E, Lussier P, Proulx J. An exploration of developmental factors related to deviant sexual preferences among adult rapists. Sexual Abuse: A Journal of Research and Treatment. 2004; 16: 151–61. 10. Milner RJ, Webster SD. Identifying schemas in child molesters, rapists, and violent offenders. Sexual Abuse: A Journal of Research and Treatment. 2005; 17: 425–39. 11. Polaschek DLL, Gannon TA. The implicit theories of rapists: What convicted offenders tell us. Sexual Abuse: A Journal of Research and Treatment. 2004; 16: 299−314. 12. Seidman BT, Marshall WL, Hudson SM, Robertson PJ. An examination of intimacy and loneliness in sex offenders. Journal of Interpersonal Violence. 2004; 9: 518–34. 13. Ward T, Hudson SM, Marshall WL. Attachment style in sex offenders: A preliminary study. Journal of Sex Research. 1996; 33: 17–26. 14. Simons DA, Wurtele SK, Durham RL. Developmental experiences of child sexual abusers and rapists. Child Abuse and Neglect. 2008; 32: 549–60.

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15. Proulx J, McKibben A, Lusignan R. Relationships between affective components and sexual behaviors in sexual aggressors. Sexual Abuse: A Journal of Research and Treatment. 1996; 8: 279–89. 16. Polaschek DLL, Hudson SM, Ward T, Siegert RJ. Rapists’ offense processes: A preliminary descriptive model. Journal of Interpersonal Violence. 2001; 16: 523−44. 17. Knight RA, Prentky RA. Classifying Sexual Offenders: The Development of Corroboration of Taxonomic Models. In: Handbook of Sexual Assault: Issues, Theories and Treatment of the Offender. Eds. Marshall WL, Laws DR, Barbaree HE. New York: Plenum, 1990: 23–52. 18. Beech AR, Oliver C, Fisher D, Beckett R. STEP4: The Sex Offender Treatment Programme in Prison: Addressing the Offending Behaviour of

Rapists and Sexual Murderers. Birmingham, UK: The Centre for Forensic and Family Psychology, 2005. Available from: www.hmprisonservice.gov. uk/assets/documents/100013DBStep_4_SOTP_ report_2005.pdf. 19. Reid S, Wilson NJ, Boer DP. Risk, Needs, and Responsivity Principles in Action: Tailoring Rapist’s Treatment to Rapist Typologies. In: International Perspectives on the Assessment and Treatment of Sexual Offenders: Theory, Practice, and Research. Eds. Boer DP, Eher R, Craig LA, Miner MH, Pfäfflin F. Wiley: Chichester, 2011: 287–97. 20. Beech AR, Ward T, Fisher D. The identification of sexual and violent motivations in men who assault women: Implications for treatment. Journal of Interpersonal Violence. 2006; 21: 1635–53.

43 Pornography HEATHER WOOD The likelihood of an Internet offender having committed a prior contact offense The risk of “progression” to a contact offense Comparisons of online and offline sexual offenders against children, and “profiteers”

316 317

The possible impact of pornography on the mind 318 318 Assessment and treatment References 319

317

Pornographic materials, writings or images designed to stimulate erotic feelings through the depiction of sexual activities, are used both in ways that do not contravene the law and in socially deviant ways. Use of pornographic materials becomes of concern in mental health settings when the individual experiences their use as compulsive; this may  involve experiencing features common to addictive behaviors such as salience, tolerance, and a negative impact on work, finances, or relationships.1 The materials viewed may also indicate an enduring paraphilia, such as fetishism. Use of pornography becomes of concern to forensic practitioners when the pornography used, produced, or distributed is illegal, or when it is thought that pornography may be used to rehearse sexually violent acts in fantasy, possibly as a prelude to enactment. Pornography that depicts acts of child sexual abuse or portrays minors as sexual objects is illegal in many countries. In the UK, it is a crime “to take, make, permit to  take, distribute, show, possess, possess with intent to distribute, or to advertise indecent photographs or pseudophotographs of any person below the age of 18,” where a pseudo-­photograph is defined as an image, whether made by computer graphics or otherwise, that appears to be a photograph.2 Child protection guidelines also stipulate that involving children in looking at pornography may constitute an act of sexual abuse.3 Until the 1990s, the law concerning pornography related to material objects such as books, films, or photographs. With the advent of the Internet and the accessibility of online pornography, new legal frameworks have been required to accommodate new, Internet-related crimes and virtual ­phenomena. In 1998, the legal framework for Internet child pornography crimes was established in England and Wales, and in 2004 sexual grooming on the Internet was also made

illegal. In 2008, possession of “extreme pornography” was added to the list of crimes relating to the sexual depiction of minors (Box 43.1). Sentencing guidelines were revised in 2014 and now specify different tariffs depending on the type of images involved and whether the offense involves possession, distribution, or production of images (Box 43.2). Concerns about pornography have shifted in the past two decades from a preoccupation in the research literature with images depicting sexually demeaning or sexually violent acts towards adult women and the relationship between such pornography and the crime of rape.4,5 Currently the literature on pornography is dominated by concerns not about women but about children and about the relationship between pedophilic materials and acts of child sexual abuse. Gillespie (2010)6 describes how legal definitions of pornography in the US, the UK, and Ireland are derived from obscenity laws and have traditionally focused on whether materials are acceptable to ordinary society, rather than on the extent of any harm done in the production of the materials. As child pornography has become more widely available, the threshold for criminal material relating to children has been reduced to include material that is not just “obscene” (depicting children in explicit sexual acts) but also “indecent” (depicting naked children and suggesting a sexual interest in children) and “indicative” (depicting clothed children and suggesting a sexual interest in children). In the UK, the COPINE (Combating Paedophile Information Networks in Europe) project developed a typology to categorize images,7 which was used in a modified form by the Sentencing Guidelines Council prior to 2014 as an index of the severity of images and continues to be used to categorize images in some research studies (Box 43.3). The language used to describe pornographic images depicting children is also undergoing change: Some researchers 315

316 Pornography

BOX 43.1: Definitions of “extreme pornography” (see www.cps.gov.uk for full definitions) Pornographic images that depict: Acts that threaten a person’s life Acts that result in or are likely to cause serious injury to a person’s anus, breasts, or genitals Bestiality Necrophilia

BOX 43.2: Categories of indecent images from revised sentencing guidelines, April 2014 Category A Images involving penetrative sexual activity Images involving sexual activity with an animal or sadism Category B Images involving non-penetrative sexual activity Category C Other indecent images not falling within categories A and B

BOX 43.3: Sentencing Council Guidelines prior to 2014 delineating levels of seriousness of indecent images drawn from the COPINE scale Level 1 Images depicting erotic posing with no sexual activity Level 2 Nonpenetrative sexual activity between children, or solo masturbation by a child Level 3 Nonpenetrative sexual activity between adults and children Level 4 Penetrative sexual activity (including penetration of the vagina, mouth, or anus) involving a child or children, or both children and adults Level 5 Sadism or penetration of, or by, an animal

continue to use the term child pornography (commonly abbreviated as CP),8,9 whereas others prefer “indecent images of children” (IIOC),10 “child sexual exploitation material” (CSEM),11 or “child abuse image” (CAI).12 In parallel with these legal and linguistic developments, forensic practitioners and researchers have been addressing novel clinical presentations of Internet-related behaviors and the accompanying concerns about risk measurement and management. Data from the UK and the US indicate that there has been a marked increase in the number of convictions for viewing indecent images of children in the

past 10 to 15 years.13,14 With any new phenomenon, there will be an increase in prevalence as it becomes established, but with compulsive and illegal use of Internet pornography there is no sign yet that rates are starting to plateau. Possible explanations for the increase in convictions for online offenses are that that the Internet allows improved detection of criminal behavior by law enforcement agencies; that the Internet allows easier access to pornographic materials for established pedophiles who will continue to offend in other ways; and that “substitution” is occurring whereby those who were previously offending offline have turned to Internet offending. There is also a possibility that online pornography is fostering a wider interest in pedophilic imagery and generating a new group of pornography users with pedophilic interests. These explanations are not mutually exclusive, and all may play a part in contributing to the observed figures. The marked increase in crimes relating to illegal pornography has raised questions about whether online sex offenders are drawn from the same population as offline sex offenders, and concerns about the likelihood of an Internet offender having committed a prior contact offense or committing a future contact sexual offense. A related series of investigations has concerned the child victims of online sexual crimes, with attempts to categorize the content of seized images,15 to document the impact on children whose images have been distributed on the Internet,16 and to understand more about the perpetrators and victims of online grooming,17 but the focus here is on studies pertinent to the assessment and treatment of Internet pornography offenders.

THE LIKELIHOOD OF AN INTERNET OFFENDER HAVING COMMITTED A PRIOR CONTACT OFFENSE Seto, Hanson, and Babchishin18 conducted a meta-analysis of 24 studies of prior offending history of online offenders, with an aggregated sample of 4,697 online offenders. Data from official records indicated that 12.2% of the sample had prior contact offenses, whereas in studies using selfreported data, 55.1% of online offenders disclosed prior sexual contact with children. Excluding one study regarded as an outlier, they conclude that approximately half of online offenders admitted to prior contact offenses. A similar rate of undisclosed prior offenses was found by Bourke et al.19 in a subsequent study employing polygraph technology. They found that at the point of arrest for a child pornography offense, 4.7% of those arrested admitted to an undetected contact offense, whereas in a subsequent interview employing a polygraph, 57.5% admitted to sexually abusing at least one child. The number of individuals with a prior contact history may be lower in those groups who have not yet come to the attention of the police, but the implication of this research is that there may be a much higher rate of undisclosed prior contact offenses in users of indecent images of children than is at first apparent.

Comparisons of online and offline sexual offenders against children, and “profiteers”  317

THE RISK OF “PROGRESSION” TO A CONTACT OFFENSE The emerging consensus is that the risk of progression of Internet-only offenders with no known history of contact offending to committing a contact offense is generally low within the timescales currently studied. Seto et al.18 conducted a further meta-analysis of recidivism rates from follow-up studies of Internet offenders. From nine samples with a total combined sample of 2,630 online offenders, 4.6% committed a further offense within the follow-up periods of 1.5 to 6 years. Information was available on the type of sexual offense for 1,247 online offenders; of these, 2% recidivated with a contact sexual offense, and 3.4% with child pornography offenses. Two of the nine studies reported no sexual recidivists at all. The authors noted that recidivism rates will increase with longer follow-up periods and not all new crimes are detected, but rates are notably lower than typical rates for offline sexual offenders. The finding of low rates of subsequent contact offending runs counter to the sometimes-held assumption that an online sexual offense is a significant risk factor for contact offending.

COMPARISONS OF ONLINE AND OFFLINE SEXUAL OFFENDERS AGAINST CHILDREN, AND “PROFITEERS” An alternative method of considering the relationship between online and offline offending has been to compare the two groups of offenders. Babchishin, Hanson, and Hermann20 reported a meta-analysis of 27 samples that compared the two groups, of which 13 were published and 14 unpublished (government reports, dissertations, or conference presentations). Samples were from the US, the UK and Canada. About half of the samples included those convicted of online grooming as well as child pornography users. This may have confounded results because groomers who had an intention to commit a contact offense would have been categorized with pornography users with no such intent. Nevertheless some differences were found. Online offenders were slightly younger (mean of late 30s rather than early 40s), had higher rates of sexual deviancy (measured using penile plethysmography, the Sexual Fantasy Questionnaire, or the sexual deviancy item of the STABLE-2007), but had higher rates of victim empathy. Offline offenders had greater emotional identification with children and more cognitive distortions. Both groups had elevated rates of childhood sexual abuse compared with the normal population, but offline offenders reported more physical abuse compared to online offenders. They conclude that online offenders have greater self-control and more psychological barriers to acting on their deviant interests. A further study by Lee et al.21 adds weight to the idea that contact offenders may be distinguished from Internet-only offenders by a readiness to act out in violent or physically abusive ways. They gathered self-report data by questionnaire from 349 male offenders who had committed a child

sexual offense, some of whom had committed an Internet offense and no known or self-reported contact offense, some of whom had committed contact offenses, and others who were dual offenders. Factor analysis yielded two factors that discriminated between the groups, one reflecting antisocial behavior and the other “Internet preoccupation.” Items on the Antisocial Behavior Scale related to indices of conduct disorder in childhood and violent, property, and drug-related crime in adulthood; items on the Internet Preoccupation scale could be seen to describe an “addictive” relationship to the Internet, such as preferring the excitement of the Internet to intimacy with a partner, irritability if interrupted while online, and use of the Internet to manage depression and anxiety. They found that Internet-only offenders were high on Internet preoccupation but low on antisocial behavior; child molesters with no Internet offense were high on antisocial behavior and lower on Internet preoccupation; dual offenders scored highly on both scales. Employing a different methodology, Long et al.10 used data from police records to compare Internet-only offenders convicted of offenses involving indecent images of children with dual offenders who also had a previous child contact sexual offense. Although large collections of indecent images are sometimes taken to reflect the degree of sexual deviation and are cited as an aggravating factor in the UK 2014 Sentencing Guidelines, dual offenders had significantly fewer indecent images than Internet-only offenders. Dual offenders also possessed images of children within a smaller age range; there was a significant positive relationship between the average age of children in the indecent images and the average age of the contact victim; and dual offenders possessed a higher proportion of level 3 and 4 images on the COPINE scale. Long et al. construe the dual offenders’ online behavior as more selective, reflecting an “anchoring” of their sexual interests with children of a specific age and in specific sexual acts involving adult–child sexual contact. Dual offenders were also more likely to give a “no comment” interview, to avoid risky online behaviors such as paying for images and were significantly more likely to have a criminal conviction for a non-sexual offense such as theft. The authors infer that dual offenders had a more criminal profile. Initial research from the US also suggests differences between those who purchase illegal pornography and those who use the Internet to “trade” access to children for the purpose of the production of pornography. The National Juvenile Online Victimization Study in the US consisted of survey data from over 2,500 law enforcement agencies, with cohorts from 2002 and 2006, and allowed comparison of those with convictions for online sexual activity who were purchasing materials, with those profiting from the commercial exploitation of children who used the Internet to purchase or sell access to identified children for sexual purposes including child pornography production.22 They found that profiteers had more prior arrests for sexual and non-sexual offenses and were more likely to have a history of violence, to have produced child

318 Pornography

pornography, to have joined forces with other offenders, and to have involved female offenders. They argued that profiteers should be the primary target for investigation because they are more likely to be seasoned criminals who are leading or are involved with larger, more organized networks of criminals. Empirical studies thus indicate that only a minority of those viewing indecent images of children online appear to be using this preparatory to committing a contact offense. One possibility is that the Internet has revealed a group of established pedophiles who under normal conditions have internal controls against committing a physically abusive act and whose sexual interest would probably have remained in fantasy. Clinical experience in an outpatient service suggests another profile among Internet offenders: those who have had nascent “pedophilic” currents in their makeup who might have previously found socially acceptable forms of expression such as a sexual interest in youthful-looking adults. When such individuals engage with quantities of Internet pornography, this can potentially act as a catalyst, causing these subclinical currents within the mind to become crystallized and realized in explicitly pedophilic sexual fantasies.23 In the US, Carnes et al.24 developed a typology of users of Internet pornography, which included those with existing sexual problems such as “sex addiction” (the “predisposed” group) and “lifelong sexual compulsives” (which included long-standing pedophiles who used Internet pornography either to contain and limit enactment or harmful impulses, or to fuel deviant fantasies). Particularly interesting from a clinical point of view is what they call the “discovery group,” those with no evidence of existing sexual problems who develop compulsive sexual behaviors after accessing online sexual materials. This clinically based typology is now finding confirmation in empirical research. Seto and Hanson, 25 drawing on both original research and metaanalyses of this field, suggest that Internet sexual crime laws have captured both individuals who had or would have accessed physical forms of child pornography and/or committed child contact sexual offenses prior to the Internet, and those with few other indicators of criminal behavior who show low rates of general and sexual recidivism who “may never have overtly expressed their sexual interest in children or sexual ­coercion without the catalytic effects of Internet technologies” (p. 5).

THE POSSIBLE IMPACT OF PORNOGRAPHY ON THE MIND How is it that use of the Internet pornography might cause the mind to foster a pattern of increasingly compulsive use, and possibly escalation to use of explicitly pedophilic materials? Characteristics of Internet sex, the combination of the scale and power of the Internet, and the elevation of mood accompanying the sexual response can foster “manic” defenses, in the psychodynamic if not the psychiatric sense.23 In an excited state of mind, the person may feel powerfully

in control, free from scrutiny or social c­ ontrols and from an awareness of his or her own limitations or difficulties, invited to fantasize about treating others in a cruel or dehumanizing way, and allowed to believe that what they  are doing is “virtual” and has no consequences. The range and volume of sexual material available invites the pursuit and elaboration of extreme or idiosyncratic sexual fantasies. For some people, these combined factors seem to lead to a breakdown in self-control and escalation in the types of imagery pursued or the frequency of the behaviors. Clinical experience would suggest that those who are ­particularly vulnerable to seeking pornographic images of minors are those whose adult sexual adaptation is more fragile or already encapsulates pedophilic currents, those  who relish transgressive behavior, those who seek an escape from feelings of depression or inadequacy, and those whose own experience of childhood remains very unresolved and who seek to project feelings experienced as unmanageable onto an image or fantasy of a child. A further motivation may be the urge to seek out materials online that are known to be abhorrent and to incur the risk of arrest, as well as inviting condemnation by the individual’s own conscience and society, as a form of “self-harm.”26

ASSESSMENT AND TREATMENT It is clear that those who have committed sexual offenses on the Internet involving use, distribution, or production of illegal pornography are a heterogeneous group, and a standardized approach to treatment is bound to fail. Some people may present with a primary paraphilia such as pedophilia, whereas others may be characterized by multiple paraphilias, antisocial or sadomasochistic traits, Asperger’s-type difficulties in relating socially, or obsessional characteristics. The latter are often associated with compulsive downloading of huge quantities of material, or sorting and categorizing of images. In others, the pursuit of imagery that is illegal or taboo may be a transient phenomenon undertaken in a psychotic state of mind. A common presentation in an outpatient clinic is of an individual who struggles with intimacy, may have anxious and avoidant traits, and experiences, if not frank depression, feelings of emptiness, futility, and loneliness, from which the excitement of Internet sex appears to offer an escape (Box 43.4). Treatment approaches currently in use are largely based on addiction, cognitive behavioral therapy (CBT),27 or psychodynamic23 treatment models, or combinations of these three.28 Treatment programs initiated within the criminal justice system appropriately prioritize the reduction of recidivism; the Internet Sex Offenders Treatment Programme (iSOTP),13 for example, aims to address offense-supportive attitudes and behaviors, reduce the use of sex as a coping strategy, and foster better relationship, intimacy, and coping skills. Preliminary results suggest that there are positive changes in socioaffective functioning and a reduction in pro-offending attitudes.13 Within mental health services, there may be scope to address specific underlying difficulties, such as problems

References 319

BOX 43.4: Psychological assessment of Internet sex offenders Comprehensive psychological assessment of Internet sex offenders would include the following: 1. Factors apparently associated with risk of contact offending ●● Offending history ●● Antisocial traits ●● Drug and alcohol abuse ●● Opportunity/access/role with respect to children 2. Use of the Internet to access sexual materials ●● Search terms—degree of active searching ●● Range or specificity in materials sought ●● Efforts to hide Internet history ●● Selective or indiscriminate downloading Predisposing factors including the following: 3. Underlying mental health disorders/psychological problems, particularly the following: ●● Psychosis ●● Depression, anxiety, obsessionality ●● Autism spectrum disorders ●● Personality disorders 4. Occupational and relationship difficulties 5. Psychosexual development including sexual trauma and abuse, exposure to pornography, and problems in the development of age-appropriate intimate relationships

with emotion regulation, deficits or conflicts in relation to intimacy, and past sexual trauma, in more depth. Though approaches differ in emphasis, all are likely to address the proximal triggers to pornography use, particularly affective triggers such as depression or feelings of inadequacy; difficulties in forming or sustaining adult, face-to-face relationships; formative sexual experiences that may be revisited compulsively through the behavior; capacity for self-regulation and control; and distorted cognitions or beliefs that support the continuation of the behavior. Pornography is now commonly accessed via the Internet; the nature of the technology shapes not just access and the activities that can be undertaken but also the possibility of policing or governance and the investigation of crimes. Seto et al.’s5 review of the impact of pornography, drawing on studies that largely pre-date the Internet, concludes “the evidence for a causal link between pornography use and sexual offending remains equivocal… individuals who are already predisposed to sexually offend are most likely to show an effect of pornography exposure and are the most likely to show the strongest effects” (p. 35). Early research on the response to Internet pornography suggests a similar trend, in which Internet pornography offenders with a

pre-existing criminal history, long-standing pedophilic sexual interests, and antisocial traits are more likely to ­re-offend and to progress to contact offending. It is likely that developments in this field over the next decade will be rapid, with clinicians striving to keep informed about new clinical presentations, new Internet crimes, and research.

REFERENCES 1. Griffiths M. Sex addiction on the Internet. Janus Head. 2004; 7 (1): 188–217. 2. Sentencing Guidelines Council Sentencing Guidelines, Sexual Offenses Act (2003) SG 119, para 6A. See Ormerod D. Blackstone’s Criminal Practice. Oxford: Oxford University Press, 2011. 3. Department of Health. What to do if you are worried a child is being abused. 2003. Available from: www. doh.gov.uk/safeguardingchildren/index/htm. 4. Yaffe M. Pornography and Criminal Behavior. In: Principles and Practice of Forensic Psychotherapy. Eds. Bluglass R, Bowden O. New York: Churchill Livingstone, 1990. 5. Seto MC, Maric A, Barbaree HE. The role of pornography in the etiology of sexual aggression. Aggression and Violent Behavior. 2001; 6: 35–53. 6. Gillespie A. Legal definitions of child pornography. Journal of Sexual Aggression. 2010; 16: 19–31. 7. Taylor M, Holland G, Quayle E. Typology of paedophile picture collections. Police Journal. 2001; 74: 97–107. 8. Ray JV, Kimonis ER, Donghue C. Legal, ethical and methodological considerations in the Internet-based study of child pornography offenders. Behavioral Sciences and the Law. 2010; 28, 84–105. 9. Merdian HL, Wilson N, Thakker J, et al. “So why did you do it?” Explanations provided by child pornography offenders. Sexual-Offender-Treatment.org 2013. Available from: http://www.sexual-offendertreatment.org/117.html. 10. Long ML, Alison LL, McManus MA. Child pornography and likelihood of contact abuse: A comparison between contact child sexual offenders and noncontact offenders. Sexual Abuse: A Journal of Research and Treatment. 2012; 25(4), 370–95. 11. Perkins D, Merdian H. Development of an Aetiolgical Model of Online Child Sexual Exploitation Material Offending. Presented at the European Association of Psychology and Law (EAPL) International Conference. June 2014, St Petersburg, Russia. 12. Sheldon K. What we know about men who download child abuse images. The British Journal of Forensic Practice. 2011; 13(4):221–234. 13. Middleton D, Mandeville-Norden R, Hayes E. Does treatment work with Internet sex offenders? Emerging findings from the Internet Sex Offender Treatment Programme. Journal of Sexual Aggression. 2009; 15(1): 5–19.

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14. Wolak J, Finkelhor D, Mitchell, K. Child pornography possessors: Trends in offenders and case characteristics. Sex Abuse: A Journal of Research and Treatment. 2011; 23 (1): 22–42. 15. Quayle E, Jones T. Sexualized images of children on the Internet. Sexual Abuse: A Journal of Research and Treatment. 2011; 23: 7–21. 16. Taylor M, Quayle E. Child Pornography: An Internet Crime. Hove, UK: Brunner-Routledge, 2003. 17. Webster S, Davidson J, Bifulco A, et al. European Online Grooming Project Final Report. March 2012. Available from: http://www.europeanonlinegroomingproject.com. Accessed 15 Feb 2015. 18. Seto MC, Hanson KC, Babchishin KM. Contact sexual offending by men with online sexual offenses. Sexual Abuse: A Journal of Research and Treatment. 2011; 23: 124–45. 19. Bourke ML, Fragomeli L, Detar PJ, et al. The use of tactical polygraph with sex offenders. Journal of Sexual Aggression. 2014; 21(3). DOI 10.1080/13552600.2014.886729. 20. Babchishin KM, Hanson RK, Hermann CA. The characteristics of online sex offenders: A meta-analysis. Sexual Abuse: A Journal of Research and Treatment. 2011; 23(1): 92–123. 21. Lee AF, Li NC, Lamade R, et al. Predicting hands-on child sexual offenses among possessors of Internet child pornography. Psychology, Public Policy and Law. 2012; 18: 644–72.

22. Mitchell KJ, Jones LM, Finkelhor D, Wolak J. Internet-facilitated commercial sexual exploitation of children: Finding from a nationally representative sample of law enforcement agencies in the United States. Sexual Abuse: A Journal of Research and Treatment. 2011; 23: 43–71. 23. Wood H. The role of the Internet in the escalation of sexually compulsive behavior. Psychoanalytic Psychotherapy. 2011; 25(2):127–42. 24. Carnes PJ, Delmonico DL, Griffin EJ. In the Shadows of the Net; Breaking Free from Compulsive Online Sexual Behavior. Center City, MN: Hazeledon Publishing, 2001. 25. Seto MC, Hanson RK. Introduction to special issue on Internet-facilitated sexual offending. Sexual Abuse: A Journal of Research and Treatment. 2011; 23: 3–6. 26. Wood H. Internet Offenders From a Sense of Guilt. In Psychoanalysis in the Technoculture Era. Eds. Lemma A, Caparotta L. London: Routledge, 2014: 114–28. 27. Quayle E, Erooga M, Wright L, et al. Only Pictures? Therapeutic Work with Internet Sex Offenders. Lyme Regis, UK: Russell House Publishing Ltd, 2006. 28. Delmonico DL, Griffin E, Carnes PJ. Treating Online Compulsive Sexual Behavior: When Cybersex is the Drug of Choice. In: Sex and the Internet: A Guidebook for Clinicians. Ed. Cooper A. New York: Bruner Routledge, 1998.

44 Fire setting (arson) and criminal damage GEOFFREY L. DICKENS AND PHILIP SUGARMAN Introduction 321 Background 321 Terminology 321 Arson and the law 321 Prevalence of arson and deliberate fire setting 322 Characteristics 322 Socio-demographic characteristics 322 Developmental and adult adjustment characteristics 322 Psychopathology 322

Other offending and antisocial behavior 323 Etiology 323 Biological theory 323 Psychological theories 323 Recidivism and risk assessment 324 Treatment 324 Conclusion 324 References 324

INTRODUCTION

Terminology

Background

Arson is a legal term used to denote the crime of deliberately or recklessly setting fire to property. Fire setting is a term used frequently in the psychological literature to refer to all intentional acts of setting fire irrespective of whether an individual has been convicted. The research upon which current knowledge is based has been conducted both with convicted samples of arsonists held in prison or psychiatric services and with nonconvicted samples, for example in epidemiological self-report surveys. In this chapter both terms are used, but arsonist is preferred when referring to the legal position or to research conducted on samples comprising convicted individuals.

Arson continues to pose significant problems for UK communities despite a 10-year downward trend in its frequency. In 2008 a total of 53,000 deliberate serious fires were recorded, resulting in 93 fatalities and in excess of 2,000 nonfatal casualties.1 Deliberate fire setting costs society billions in damages and related economic expense and, in Australia and North America, bushfire arson has  an additional devastating environmental impact. Juveniles are overrepresented among apprehended fire setters, but  around half of all individuals arrested for arson are adults.2 The issue is of relevance to readers because about 10% of admissions to forensic psychiatric services have committed arson,3 and psychiatrists are therefore required to assess and manage the risk posed by arsonists in the form of dangerous recidivism. To inform appropriate disposal, the courts require the forensic practitioner to comment on the intentions of the fire setter and to determine the role, if any, of mental disorder. This chapter provides an overview of the law relating to arson, its prevalence, and its etiology. The sociodemographic, developmental, and psychopathological characteristics of arsonists and other deliberate fire setters are described. The limited current evidence about intervention is outlined, and the key information required to make an assessment of dangerous fire-related recidivism is presented.

Arson and the law The definition of arson varies between jurisdictions, but it is generally described as the intentional destruction of property by fire. In England and Wales it is charged as an offense under the Criminal Damage Act 1971,4 while in Scotland the term fire-raising is used. Cases of simple criminal damage by fire (arson not endangering life) are prosecuted under ­sections 1[1] and 1[3] of the Act, and aggravated cases, where there is intentional or reckless endangerment of life (arson endangering life), are prosecuted under sections 1[2] and 1[3] (Table 44.1). There is no offense of arson separate from that of criminal damage. The potential severity of the aggravated offense is deemed so serious that it is included in the schedule

321

322  Fire setting (arson) and criminal damage

Table 44.1  Offenses under the Criminal Damage Act, 1971 Section 1

[1] [2] [3]

Section 2 Section 3

Intentional or reckless damage to property Damage endangering life Damage by fire termed arson Threats to damage property Possession of objects with the purpose of damaging property

of specified violent offenses in section 15 of the Criminal Justice Act 2003,5 which enables an indeterminate sentence of imprisonment for public protection (IPP) to be passed where an individual is found to be dangerous. Because the courts are required to identify the role of mental disorder, to distinguish between intentional and reckless damage, and to determine dangerousness, individuals charged with arson are usually referred for psychiatric reports.

data indicate a preponderance of non-immigrants.8 In contrast, immigrant status was over-represented among ­convicted arsonists in Sweden.12 Social class, education, and marital status do not differentiate self-reported fire setters from non–fire-setting controls,8 but convicted samples are disadvantaged in terms of social class compared with population controls12 and more likely to be unemployed or unskilled than non–fire-setting control offenders.10

Prevalence of arson and deliberate fire setting

Developmental and adult adjustment characteristics

The true prevalence of criminal fire setting is difficult to ascertain. Arson is hard to detect and prosecute because fire can destroy the evidence of its own origin, while intent or recklessness must often be inferred from evidence of an ignition source. There are discrepancies between official statistics because police have to prove arson and therefore set a higher threshold for recording a fire as deliberate than fire and rescue services who record on the basis of suspicion alone.6 Recent epidemiological studies7,8 have yielded some insights about how many people are involved, but their results may reflect pro-social and recall reporting biases. Self-reported incidence of fire setting in adolescence is very common; for example, 27% of 11- to 18-year-olds reported past-year fire setting in one Canadian study. However, only a small proportion of juveniles are persistent and serious offenders.7 Data from a representative community sample of 40,000 US adults suggest a lifetime prevalence of 1% for deliberate fire setting, with the behavior persisting beyond age 15 years for two in five.8

Juvenile fire setters have been more widely researched than their adult counterparts. Commonly reported characteristics of youths who frequently set fires include family ­dysfunction such as parental stress, marital violence, paternal alcoholism, and poor discipline. High rates of alcohol and cannabis abuse and involvement in a range of other delinquent behaviors have been reported. Child fire setters are likely to experience peer rejection, to be shy and aggressive, and to have been placed outside the family.13 The lack of longitudinal studies means that little is known about whether childhood fire setters develop into persistent adult offenders. In adulthood, fire setters are characterized by a paucity of long-term relationships,10,12 poor assertiveness and communication skills, low self-esteem, and high impulsivity.14

CHARACTERISTICS Information about the demographic and clinical characteristics of arsonists has traditionally been based on studies of potentially unrepresentative samples of individuals who failed to evade detection and prosecution. However, recent epidemiological data largely confirm existing knowledge.

Socio-demographic characteristics Fire setters in the general population are typically young (under 35 years old) and predominantly (80%) male.8 This reflects the characteristics of convicted9 and clinical10 samples, but these are common features in many offending populations and not peculiar to arsonists. Clinical samples have been largely white or Caucasian,10,11 and epidemiological

Psychopathology PERSONALITY DISORDER

Epidemiological data have demonstrated that risk for ­antisocial personality disorder is increased 20-fold among fire setters relative to non–fire setters after controlling for socio-demographic confounds.9 This is reflected among prison and psychiatric samples, but antisocial personality disorder is undoubtedly common in other groups of serious offenders and may not distinguish arsonists. SUBSTANCE ABUSE

A high prevalence of substance abuse among fire setters in the general population8 is mirrored in prison and clinical samples but does not distinguish arsonists from other offenders.15 Alcohol may play a disinhibitory role in fire setting, and intoxication at the time of the index arson is very common.16 Type 2 alcoholism, characterized by male ­gender, early onset, high family risk for alcoholism, and high relative severity, appears to be associated with repeated

Etiology 323

fire setting. Studies have indicated a role for heritability in this subgroup, given that alcoholic arsonists often have a family history of paternal alcoholism.17 PSYCHOSIS

Excluding bipolar disorder, psychosis was present in 25% of male and 48% of female Swedish arsonists referred for forensic psychiatric examination.15 Schizophrenia is relatively common among arsonists, with a 20-times increase in risk for schizophrenia among males and a 40-times increase for females12 compared with population c­ ontrols. This is as high as the increased risk for homicide in this group, but the precise reasons for this association are not known. One currently untested suggestion is that the high rate of tobacco smoking among individuals with schizophrenia leads to constant and immediate access to ignition sources which, in the context of delusional beliefs or impaired impulse control, may increase risk for fire setting.12 INTELLECTUAL DISABILITY

Learning disability has been reported as a feature in 10% of male and 9% of female arsonists referred for forensic ­psychiatric examination.15 Theories about fire setting by people with learning disability tend to emphasize the maladaptive function that it serves in helping the individual to deal with poor social skills, lack of assertiveness, and low self-esteem.18 Autism is rare among arsonists, but Asperger’s syndrome is common in males (7%) relative to offending controls (2.5%).15 PYROMANIA

DSM-519 defines pyromania as multiple, deliberate, and purposeful fire setting where an individual displays fascination with and derives pleasure from fire (Table 44.2). It classifies the disorder as a psychiatric impulse-control disorder not otherwise specified. Notably, impaired impulse control is associated with groups in whom fire setting is relatively common, including those with schizophrenia and Cluster B personality disorders. Fire setting in the context of other mental disorders should not attract the diagnosis of pyromania, and fewer than 3% of fire setters meet all criteria. However, around 10% meet all criteria except absence of alcohol intoxication.20

Other offending and antisocial behavior In the general population, self-reported fire setters display a wide range of antisocial nonviolent and violent behaviors relative to controls.8 Arsonists frequently hold previous convictions for other offenses and are therefore a versatile set of offenders, of whom some are also more overtly violent.

ETIOLOGY Conviction for violent crime is known to cluster in families, and this is particularly marked in the case of arson. Conviction for arson in Sweden between 1973 and 2004 was 22 times more likely relative to matched controls for an individual whose genetic sibling held a similar conviction. The pattern of convictions between biological and adoptive relations supports roles for both genetic heritability and environmental influences in fire setting etiology.21

Biological theory Repeat and impulsive fire setting is associated with a deficit in concentrations of neurotransmitter metabolites found in cerebrospinal fluid, including 5-hydroxyindoleacetic acid (serotonin) and 3-methoxy-4-hydroxyphenylglycol (noradrenaline). Hypoglycemia is associated with repeated fire setting and may play a causal role related to impeded impulse control.22 Despite familial clustering, there is no current evidence in terms of specific genes, but fire setting is highly associated with personality disorder and conduct disorder, in which some traits are believed to be heritable.

Psychological theories Social learning theory posits that behavior is a manifestation  of learning that has occurred through modeling or imitation and subsequent reinforcement contingencies. Evidence indicates that arsonists are more likely to have been exposed to fire and fire-related role models at an early age, and this is consistent with social learning theory. The theory forms the basis of multi-factor psychological explanations of fire setting, for example Jackson’s “only viable option” theory.18 Empirical evidence to support such multi-factor theories in their entirety is lacking, yet their

Table 44.2  DSM-5 diagnostic criteria for pyromania A. Deliberate and purposeful fire setting on more than one occasion. B. Tension or affective arousal before the act. C. Fascination with, interest in, curiosity about, or attraction to fire and its situational contexts (e.g., paraphernalia, uses, consequences). D. Pleasure, gratification, or relief when setting fires, or when witnessing or participating in their aftermath. E. The fire setting is not done for monetary gain, as an expression of sociopolitical ideology, to conceal criminal activity, to express anger or vengeance, to improve one’s living circumstances, in response to a delusion or hallucination, or as a result of impaired judgment (e.g., in dementia, mental retardation, substance intoxication). F. The fire setting is not better accounted for by conduct disorder, a manic episode, or antisocial personality disorder.

324  Fire setting (arson) and criminal damage

individual elements are generally well established in the psychological literature.14 Many researchers have classified arsonists according to their perceived motivation for setting fires. The most commonly reported motives include revenge, vandalism, and excitement, with the former most prominent among older arsonists and the latter two among younger offenders These typologies have been criticized as overly simplistic, having little explanatory power and unclear treatment implications.14

RECIDIVISM AND RISK ASSESSMENT Studies suggest that between 13% and 49% of firesetters have  set repeated fires.11 Eight percent of individuals convicted of arson in England and Wales between 1963 and 1965 were reconvicted of arson by 2001. For one in five, reconviction occurred more than 15 years after the original offense, suggesting a long-term recidivism risk.10 Low conviction rates for arson generally6 suggest that true recidivism may be underestimated. The risk of any violent (31%) or nonviolent (57%) recidivism was high among arsonists discharged from a maximum security psychiatric hospital over an 8-year follow-up period,23 reflecting a versatile offending repertoire. Currently there is no validated risk assessment tool available for use with adult arsonists, although a number of factors are associated with increased risk for repeated fire setting (Table 44.3). Fire setting is considered to constitute violence in structured professional judgment risk assessment schemes such as the HCR-20.24 Therefore, its exclusion from the risk assessment should only occur in instances where there is no potential for harm to persons. The HCR-2024 may therefore be used for cases of arson that appear to relate to violent intentionality, or where fire setting is one of many presenting violent behaviors. Very few, Table 44.3  Potential risk factors for arson recidivism Early age (childhood) onset of fire setting History of repeated fire setting Overall number of charges of arson and reported deliberate fires Developmental history of violence Substance abuse Early onset of other criminal convictions Relationship problems Interest in or excitement with fire itself Severity of psychopathology (especially personality pathology, schizophrenia) Motive and intent to do harm underlying previous arson Evidence of planning in arson (multiple set points, use of accelerants) Post-offense response (positive or negative) Previous arson endangering life Inwardly directed hostility, lack of assertiveness, and low self-esteem

if any, demographic and clinical variables have been identified that differentiate the most destructive arsonists, but some fire setting–related behaviors appear to indicate particular dangerousness.11 In effect, a focus on documented behaviors and what can be inferred from them about intention is likely to be more helpful to the courts than classification by either motivation or diagnosis. Therefore, the authors recommend that consulting professionals develop a risk formulation based on the future likelihood of repeated fire setting together with a pragmatic focus on behaviors that indicate the greatest destructiveness and, in particular, those that indicate an apparent intention to endanger life. Setting fire to occupied buildings, the use of accelerants, and multi-point fire setting should be viewed as undeniably high risk behaviors.

TREATMENT There are currently no accredited psychological treatment interventions for adult arsonists. The evidence for interventions is largely based on the youth fire-setting ­literature, where three broad approaches have been identified: (1)  crime prevention, (2) education, and (3) cognitive behavioral treatments.25 These interventions vary in their content and length and are based on different psychological models, and there are few outcome data to demonstrate their effectiveness. In practice, however, arsonists in forensic psychiatric services benefit from a wide range of offense specific and non–offense specific interventions. The effective treatment of underlying psychopathology, particularly schizophrenia and substance abuse, can be pivotal in the reduction of future risk.

CONCLUSION This chapter has highlighted the law relating to arson, described the characteristics of arsonists and other deliberate fire setters, outlined etiological theories, identified current risk assessment implications, and highlighted the lack of evidence-based intervention options. The information in this chapter largely relates to men; those interested in female arsonists should consult specialist texts. Arson is a serious and potentially very dangerous crime that is classified as an act of criminal damage. People with mental disorder are disproportionately involved in arson, and the courts are rightly concerned with the role of the disorder, intentionality, recklessness, and dangerousness of the offender in terms of the potential of fire-setting behavior to endanger life.

REFERENCES 1. Department for Communities and Local Government. Fire Statistics United Kingdom 2008. London: Department for Communities and Local Government, 2010. 2. Snyder, HN. Juvenile arrests 2006. OJJDP Juvenile Justice Bulletin. 2008; November.

References 325

3. Coid J, Kahtan N, Gault S, et al. Medium secure forensic psychiatry services: Comparison of seven English health regions. British Journal of Psychiatry. 2001; 178: 55–61. 4. Criminal Damage Act (1971) c.48. London: Her Majesty’s Stationery Office, 1971. 5. Criminal Justice Act (2003) c.44. London: The Stationery Office, 2003. 6. Hopkins, M. Why are arson detection rates so low? A study of the factors that promote and inhibit the detection of arson. Policing. 2009; 3: 78–88. 7. Mackay, S, Paglia-Boak A, Henderson J, et al. Epidemiology of fire setting in adolescents: mental health and substance use correlates. Journal of Child Psychology and Psychiatry. 2009; 50: 1282–90. 8. Blanco C, Alegria A, Petry N, et al. Prevalence and correlates of fire-setting in the United States: Results from the National Epidemiologic Survey on Alcohol and Related Conditions (NESARC). Journal of Clinical Psychiatry. 2010; 71: 1218–25. 9. Soothill K, Ackerley E, Francis B. The criminal careers of arsonists. Medicine, Science, and the Law. 2004; 44: 27–40. 10. Harris M, Rice G. Firesetters admitted to a m ­ aximum security psychiatric institution: Offenders and offences. Journal of Interpersonal Violence. 1991; 6: 461–75. 11. Dickens G, Sugarman P, Edgar S, et al. Recidivism and dangerousness in arsonists. Journal of Forensic Psychiatry and Psychology. 2009; 20: 621–39. 12. Anwar S, Langstrom N, Grann M, Fazel S. Is arson the crime most strongly associated with psychosis? A national case-control study of arson risk in schizophrenia and other psychoses. Schizophrenia Bulletin. 2009; E Pub ahead of print. 13. Lambie I, Randell I. Creating a firestorm: A review of children who deliberately light fires. Clinical Psychology Review. 2011; 31: 307–27. 14. Gannon TA, Pina A. Firesetting: Psychopathology, theory and treatment. Aggression and Violent Behavior. 2010; 15: 224–38.

15. Enayati J, Grann M, Lubbe S, Fazel S. Psychiatric morbidity in arsonists referred for forensic pyschiatric assessment in Sweden. Journal of Forensic Psychiatry and Psychology. 2008; 19: 139–47. 16. Ritchie E, Huff T. Psychiatric aspects of arsonists. Journal of Forensic Science. 1999; 44: 733–40. 17. Repo, E, Virkkunen, M, Rawlings R, et al. Criminal and psychiatric histories of Finnish arsonists. Acta Psychiatrica Scandinavia. 1997; 95: 318–23. 18. Jackson H, Glass C, Hope S. A functional analysis of recidivistic arson. British Journal of Clinical Psychology. 1987; 26: 175–85. 19. American Psychiatric Association. Diagnostic and Statistical Manual of Mental Disorders: DSM-5. Arlington, VA: American Psychiatric Association, 2013. 20. Lindberg N, Holi MM, Tani P, Virkkunen M. Looking for pyromania: Characteristics of a consecutive sample of Finnish male criminals with histories of recidivist fire-setting between 1973 and 1993. BMC Psychiatry. 2005; 5: 47. 21. Frisell T, Lichtenstein P, Långström N. Violent crime runs in families: A total population study of 12.5 million individuals. Psychological Medicine. 2011; 41: 97–105. 22. Virkkunen M, DeJong J, Bartko J, et al. Relationship of psychobiological variables to recidivism in violent offenders and impulsive fire setters. A followup study. Archives of General Psychiatry. 1989; 46: 600–3. 23. Rice M, Harris G. Predicting the recidivism of mentally disordered firesetters. Journal of Interpersonal Violence. 1996; 11: 364–75. 24. Webster C, Douglas K, Eaves D, Hart S. HCR - 20 Assessing Risk for Violence Version 2. Burnaby, British Columbia: Mental Health, Law and Policy Institute, Simon Fraser University, 1997. 25. Hollin CR, Caulfield, LS, Palmer, EJ. Interventions with arsonists and young fire setters: A survey of the national picture in England and Wales. Legal and Criminological Psychology. 2007; 12: 101–16.

45 Habit and impulse-control disorders, shoplifting, and other forms of acquisitive offending IAN H. TREASADEN Introduction 327 History 328 Differentiation from obsessive-compulsive disorder 329 Pathological gambling (gambling disorder) 329 Epidemiology 329 Etiology 330 330 Pathological fire-setting (pyromania) Differential diagnosis of pyromania 331 Comorbidity of pyromania 331 Arson 331 Pathological stealing (kleptomania) 331 331 Trichotillomania (hair-pulling disorder) Intermittent explosive (behavior) disorder or episodic dyscontrol syndrome 331 Problematic internet use (PIU) 332 Pathological stealing (kleptomania) 332 Epidemiology 332 332 Clinical features Differential diagnosis 332

Co-morbidity 332 Etiology 332 Psychodynamic theories 333 Management 333 Prognosis 333 The offence of shoplifting 333 Epidemiology 334 Classification 334 Shoplifting for simple gain, plus excitement, with or 334 without associated marked antisocial attitudes Shoplifting associated with psychiatric disturbance 334 Absent-minded shoplifting 335 Shoplifting in children 335 Assessment of shoplifters 335 Management of shoplifters 335 Acquisitive offences in England and Wales 335 Characteristics of acquisitive offenders 336 Conclusions 336 References 336

INTRODUCTION Impulse-control disorders are disorders in which the person acts on an impulse that is potentially harmful and that he or she fails to resist. The impulses are usually perceived as pleasurable (egosyntonic). There is an increasing sense of wishing to commit the act, with a sense of pleasure occurring once the act has been committed. These disorders have also been conceptualized as non-substance related addictions. They do not represent personality disorders. They are described in the fifth edition of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM-5) as impulse-control disorders1 and in the World Health Organization’s (WHO) ICD-10 as habit and impulse disorders.2

In DSM-5, their essential features include the following: ●●

●●

●●

There is a failure to resist an impulse, drive, or temptation to perform an act that is harmful to the person or to others. For most disorders, the individual feels an increasing sense of tension or arousal before committing the act and then experiences pleasure, gratification, or relief at the time of committing the act. Following the act, there may or may not be regret, selfreproach, or guilt.

Included are the conditions of pyromania and kleptomania. However, in DSM-5, gambling disorder has been moved to the section on addictive disorders and 327

328  Habit and impulse-control disorders, shoplifting, and other forms of acquisitive offending

Table 45.1  ICD-10 habit and impulse disorders Pathological gambling (F63.0) (DSM-5 312.30 gambling disorder) Pathological fire-setting (F63.1) (DSM-5 312.33 pyromania)

Persistently repeated gambling that continues and often increases despite social consequences Repeated fire-setting without any obvious motive; intense interest in watching fires burn Feelings of increasing tension before the act and intense excitement immediately after it Pathological stealing (F63.2) (DSM-5 312.32 Repeated failure to resist impulses to steal objects that are not kleptomania) required for personal use or monetary gain Objects may be discarded, given away or hoarded Increasing sense of tension before and a sense of gratification during and immediately after the act Trichotillomania (F63.3) (DSM-5 312.39 Noticeable hair loss due to a recurrent failure to resist impulses to pull trichotillomania (hair pulling disorder)) out hair Hair pulling usually preceded by mounting tension and followed by sense of relief or gratification Intermittent explosive (behavior) disorder (F63.81) Not defined in ICD-10. In DSM-5, recurrent behavioral outbursts (DSM-5 312.34 intermittent explosive disorder) representing a failure to control aggressive impulses Note: ICD-10, International Classification of Diseases, 10th ­edition.

trichotillomania (hair-pulling disorder) to the section on obsessive-­compulsive and related disorders. The ICD-10 has a similar definition for this group of disorders, which are shown in Table  45.1. The ICD-10 points out that these disorders have no clear rational motivation. Pathological gambling, pyromania, and intermittent explosive (behavior) disorder are more common in men, while kleptomania and trichotillomania are more common in women. There is an absence of epidemiological studies of the prevalence of these disorders, but rates among psychiatric inpatients may be higher than in the general population. Using the Minnesota Impulsive Disorders Interview,3 Grant and colleagues found the following lifetime prevalence rates, mainly comorbid with depression, among 204 inpatients:4 ●● ●● ●● ●●

Kleptomania: 9.3% Pathological gambling: 6.9% Intermittent explosive (behavior) disorder: 6.4% Trichotillomania: 4.4%.

Overall, such impulse-control disorders are probably underdiagnosed. Other disorders, such as pathological buying (oniomania or shopaholism), characterized by buying items that are not needed and often storing them unopened, and workaholism have also been considered to be impulse-control disorders, but are not classified as such in DSM-5 or ICD-10. Such behaviors may be motivated by a need for compensation or as a substitute for something missing in life or as a depressive equivalent. Impulse-control disorders may lead to offending either directly, for instance, in pyromania, or indirectly, for instance, for financial gain in a pathological gambler. Individuals who commit crimes due to such a disorder have,

however, usually been held legally culpable for their actions, even though their propensity has been psychiatrically considered to be irresistible. It has been argued that this may be a legal injustice, as clinically such individuals apparently have little or no control over their actions. The interface between impulse-control disorders and offending raises questions about individual responsibility. Are people with impulse-control disorders less responsible for their behavior, and should they therefore be punished less severely than people considered to be fully responsible for their actions? Even if impulse-control disorders have a biological basis, in clinical practice the aim is, however, to encourage the patient to take responsibility for his or her actions.

HISTORY During the eighteenth century, the concept of monomania with propensity developed, referring to the fact that apparently insane, incomprehensible actions did not always appear to be the result of delusional thinking. This and subsequent historical developments have been discussed by Gibbens and Prins, who cite the following historical landmarks5: ●●

●●

●●

Philippe Pinel (1745–1826), in the eighteenth century, referred to mania without delirium as being a disease of the willpower. Esquirol referred in 1885 to instinctive monomanias, including homicide, fire-setting, and alcoholism; that is, respectively, homicidal monomania, pyromania, and dipsomania, where the individual acts “without passion or motive but only under involuntary instinctive impulse.” Referring to some cases of theft and homicide, Rush in 1810 described them as an illness of moral willpower

Pathological gambling (gambling disorder)  329

●●

●●

and equated this illness with the involuntary movements of convulsions. Mathey coined the term kleptomania (theft) to add to the list of other manias, including dipsomania and pyromania. As noted by Topp,6 it was a Frenchman, Marc, who in 1833 first used the term kleptomania when describing a number of wealthy individuals who conducted bizarre, worthless thefts in which they had little intrinsic interest and to which they confessed spontaneously when challenged.

Subsequently, it has been considered that instinctive monomanias such as kleptomania are very rare, and it has been questioned whether they, in fact, even exist. Terms such as pyromania and kleptomania have tended to be increasingly discarded. Neustatter doubted whether kleptomania existed as an entity, but if it did, he suggested that it was part of a psychopathic personality that gives way to impulses.7

DIFFERENTIATION FROM OBSESSIVECOMPULSIVE DISORDER An important differentiation in this area is between compulsions and impulses. Compulsions are seen in ­ obsessive-­compulsive disorder, which is characterized by a non-­situational preoccupation with subjective compulsion, despite conscious resistance, such preoccupations being thoughts (ruminations or obsessions) and compulsions being acts (rituals). Where there is poor impulse control, impulses are poorly resisted, and this is much more common than compulsions. In the case of obsessive-compulsive disorder, patients in general do not act on their ruminations, unlike people with poor impulse control. The key difference between impulse-control disorders and obsessive-compulsive disorder is that although both may lead to relief of anxiety and tension, in obsessive-­compulsive disorder the thought of carrying out the act must not in itself be pleasurable; that is, the thought must be egodystonic.

PATHOLOGICAL GAMBLING (GAMBLING DISORDER) Pathological gambling is defined in ICD-10 as persistently repeated gambling that continues and often increases despite social consequences. Gambling involves risking something of value, not necessarily money, in a game or other uncertain event, with the aim of achieving greater value. There is a range of gambling behaviors, from the culturally normal to the hazardous, i.e. professional, problematic, and pathological gambling. In contrast to professional gamblers, who may carefully plan their gambling and base it on information in order to decrease the risk, pathological gamblers will myopically gamble despite repeated and heavy losses, resulting in adverse family and social consequences and financial ruin, to which they appear hyposensitive. Four phases may be distinguished: winning, losing, desperation, and eventual

giving up. Problems do not arise from the gambling itself but from the consequences, as seen in alcoholism. Indeed, pathological gambling shows features characteristic of an addiction, with loss of control, extremes of emotions reflecting autonomic nervous system changes, and withdrawal phenomena when not gambling. DSM-5 defines the essential feature, of what it refers to as gambling disorder, as persistent or recurrent problem gambling behavior leading to significant impairment and distress. Such behavior leads to much damage to personal and family life. DSM-5 allows specification as to whether it is episodic or persistent, whether it is in early or sustained remission, and whether the current severity is mild, moderate or severe. Evidence suggests this to be a valid and reliable diagnosis.8 Efforts to control, resist, or stop gambling generally fail, and the behavior has been equated to an addiction, with withdrawal symptoms of irritability and restlessness if the person is unable to gamble, and an escalation in the size and frequency of bets or other stakes in order to achieve a desired level of excitement. Such individuals tend to respond to repeated losses by gambling further to “chase” their losses, in spite of increasing debts, marital breakdown, and law involvement. They anticipate losses, as shown in functional magnetic resonance imaging (fMRI) studies (reduced activity in the ventromedial prefrontal cortex), even while their appetite for gambling and their impulsivity increase, and they will continue gambling until they have lost their available resources. Psychodynamically, they appear unconsciously to aim to lose their money. They tend to focus on their winnings, disavow or deny their losses, lack the courage to own up to losses, and gamble more to break even. This is a pattern also seen in stock market “rogue traders.” Pathological gambling may also lead to disturbances in eating, sleeping, and sexual relationships, and to difficulties in sustaining employment. Lying to and relying financially on friends is also characteristic. Some gamblers steal in order to finance their habit, and pathological gambling may come to light only following a court case regarding an acquisitive offense such as theft, fraud, or embezzlement. Some individuals present following an overdose or self-harm, which occurs in 10% of pathological gamblers, or with depression. Suicide occurs in 2% of attendees at Gamblers Anonymous (Gam-Anon). Legg-England and Gotestam9 and Raylu and Oei10 have reviewed pathological gambling in detail.

Epidemiology Gambling itself is common, with estimates of prevalence around 40% of the British population and 60% of the US  population.11 Even these figures may now be underestimates, given the current availability of national television and other lotteries. Wardle and colleagues found the prevalence of gambling in the United Kingdom to be 68%, but 48% when the UK national lottery was excluded.12 Gambling is said to be more common among Chinese and less common

330  Habit and impulse-control disorders, shoplifting, and other forms of acquisitive offending

among Scandinavians. It is more common in men, people with a past history of psychiatric disorder, and criminals. Problem gamblers (less than 20% of gamblers) cause themselves or others to suffer. It is, of course, possible to lose control and bankrupt oneself through gambling in just one day. Pathological gambling is associated with tolerance and withdrawal phenomena and has been found to have a prevalence of 0.25% in Australia13 and 0.77% in the United States. Shaffer and Korn reviewed 120 studies and suggested a lifetime rate of 1.6%, a figure not dissimilar to that for schizophrenia.14 Wardle and colleagues in the United Kingdom estimated that 0.5%–0.6% of the population were problem gamblers.12 In 1977 the Royal College of Psychiatrists in the United Kingdom described approximately 10% of prisoners as pathological gamblers. Pathological gambling is associated with characteristic features of addictive behavior, such as preoccupation tolerance and withdrawal. It is certainly more obvious, but probably also more common, among people, especially men, who indulge in horse and dog racing, in which losses soon become apparent. Female pathological gamblers, on the other hand, have been reported to be more likely to make use of specialized helplines.15 In the United Kingdom, it is said that women prefer bingo, which may lead to less pathological gambling and in which losses tend to be smaller.

Etiology The predominant motivation for pathological gambling is the sense of thrill and pleasure at the risk taking, as reflected in changes of heart rate demonstrated during gambling. Winning produces euphoria, said to be comparable to the effects of amphetamines, and helps individuals to switch from negative internal mood states, including despondency and loneliness. Dostoyevsky, in his autobiographical novel The Gambler, described the reward of a sense of power obtained from gambling, perhaps akin to infantile omnipotence. This may relate to the postulated reduction in dopaminergic transmission seen in addictive disorders and perhaps also in serotonin in impulse-control disorders. Genetic predisposition, with a heritability of up to 40%, has been postulated, as has co-morbidity with an addictive personality, with stress releasing and increasing the craving for gambling. Learning theory has suggested that the pattern of intermittent (variable ratio) reinforcement, the most potent schedule for conditioning, particularly applies to gambling, where repeated losses with frequent near-misses are combined with occasional random wins with immediate payouts. The prospect of small but immediate rewards is preferred to higher but delayed rewards. Evidence of psychological dependence may become manifest by the appearance of what can be considered withdrawal symptoms and craving following the stopping of such activity. Factors associated with pathological gambling include being male; being over 45 years of age; cigarette smoking;

alcohol and other substance abuse and dependence; low income; having debts; being a foreign national; having a depressive disorder; flat affect; an antisocial, narcissistic, or borderline personality disorder; having the metabolic ­syndrome; and sleep difficulties in women. A history of previous treatment for gambling is an important risk factor. Treatment approaches include Gamblers Anonymous, cognitive behavioral therapy (CBT), selective serotonin reuptake inhibitor (SSRI) antidepressants, and naltrexone. As the ease of availability of gambling increases, so does the risk of developing pathological gambling. For example, legislation controlling casinos, in contrast to society’s hedonistic attitudes to, for instance, national lotteries, may be important in prevention, although a study by Bondolfi and colleagues in Switzerland showed no increase in pathological gambling following an increase in the opening of casinos.16 Chapter 23 considers in detail gambling addiction.

PATHOLOGICAL FIRE-SETTING (PYROMANIA) ICD-10 defines pathological fire-setting as repeated fire setting without any obvious motive. It is characterized by an intense interest in watching fires burn, feelings of increasing tension before the act of fire-setting, and intense excitement immediately after it. In DSM-5, pyromania is also classified as an impulsecontrol disorder. There is deliberate and purposeful fire setting on more than one occasion. Tension or affective arousal is present before the act. There is intense pleasure, gratification, or relief when setting fires or when witnessing or participating in their aftermath. Such individuals, also referred to as firebugs, are fascinated with, curious about, and attracted to fire. This group of fire setters includes those who are described as having an irresistible impulse and a repeated urge to set fires, which they do not fully understand and about which they are often inarticulate. The fire itself is the focus of interest. They are often isolated and inadequate people who set a number of fires impulsively and who may escalate the seriousness of their fire setting. This group also overlaps with people who set fires for tension or depression reduction; that is, as an anxiolytic or antidepressive act. Such individuals discover that fire setting relieves feelings of despondency or tension. An analogy can be made with the calming effect that normal individuals report when observing and sitting in front of a glowing open fire. In the past, fire setting by men was considered to be frequently associated with direct sexual arousal by such an act; that is, the use of fire as a fetish; and there was considerable psychodynamic interest in the symbolism of fire, for example, flames of passion, burning desire, blazing rows, and so on. Freud described the glow of fires as reflecting sexual excitement and the motion of flames as symbolic of the phallus in action.17 However, although a number of fire setters may indeed obtain a sense of excitement from

Intermittent explosive (behavior) disorder or episodic dyscontrol syndrome  331

their actions, those who are specifically sexually aroused and who may even masturbate after setting fires are rare. Pathological fire setters are a subset of those who tend to set more fires and to whom the fire is a thing of interest in itself. Such individuals have a fascination with fire and hence the arson appears outwardly motiveless. There may also be an associated fascination with fire engines and calling the fire department. The making of false telephone calls to emergency services can result in a charge of “wasting electricity” in the United Kingdom. Other clinical features can include evidence of preparation in advance and indifference to the consequences of fire setting to property or life. Fire setting is rare in children but more common in male adolescents, particularly those with poor social skills and intellectual (learning) difficulties.

Differential diagnosis of pyromania This includes conduct, adjustment, affective, and psychotic disorders. Most recidivist arson offenders have other underlying mental disorders (personality disorder, disorders of intellectual development (learning disabilities), psychosis) or are intoxicated when they set fires.18

Comorbidity of pyromania This may include substance abuse, the psychiatric sequelae resulting from a past history of sexual or physical abuse, and personality disorder, especially antisocial personality disorder. High rates of previous sexual abuse in women who set fires have been described frequently in clinical practice. It should be noted that suicide by fire is particularly associated with schizophrenia, perhaps explaining the choice of this the most painful means of suicide. Historically, it was described in the early nineteenth century among Hindu widows in India (suttee or sati (good woman or chaste wife)) and among those politically protesting (e.g. Buddhist monks in Vietnam during the twentieth-century Vietnam War).

Arson Arson is the legal offense associated with fire setting. It is reviewed in detail in Chapter 44. ●●

●●

●●

Arson is the act of unlawfully or maliciously (­wilfully) destroying or damaging property by setting a fire (s.1(3) Criminal Damage Act 1971). A more serious charge is arson with intent or being reckless as to endanger life. Arson may be motivated (i.e. means to an end) by psychotic reasons, or by displaced revenge, anger, or jealousy, to cover up other crimes, for the insurance, for political reasons or in adolescent gangs. Such individuals tend to set few fires. Others tend to set more fires, e.g. with a desire to be seen as powerful or a hero, as cry for help or, in the case of firemen on call out payments, to earn money.

●●

Alternatively, arson may be due to fire being a thing of interest to the fire setter, as in the impulse-control disorder pathological fire setting (pyromania).

PATHOLOGICAL STEALING (KLEPTOMANIA) In ICD-10, this is defined as repeated failure to resist impulses to steal objects that are not required for personal use or monetary gain. Objects may be discarded, given away, or hoarded. The person may even later offer to pay for items stolen. An increasing sense of tension before and a sense of gratification during and immediately after the act are seen. This condition is discussed further in the second part of this chapter.

TRICHOTILLOMANIA (HAIR-PULLING DIOSRDER) This is the recurrent pulling out of one’s hair resulting in noticeable hair loss, with repeated attempts to decrease or stop hair pulling. It results in clinically significant distress and impairment of functioning, especially social and vocational functioning. Hair pulling is usually preceded by mounting tension and followed by a sense of relief or gratification. It is not itself directly associated with criminality, although it can be associated with personality disorder, which in turn may be associated with offending. It has been well reviewed by Walsh and McDougall.19 In DSM-5, it is classified in the section of obsessive-compulsive and related disorders and, in keeping with this, it responds to behavior therapy and SSRI antidepressants.

INTERMITTENT EXPLOSIVE (BEHAVIOR) DISORDER OR EPISODIC DYSCONTROL SYNDROME This is included in ICD-10 under Other Habit and Impulse Disorders, although not defined. In DSM-5, it is included under Impulse-Control Disorders and is characterized by episodes of sudden unprovoked violence. Onset is in adolescence, and men outnumber women in a ratio of four to one. It was originally conceptualized as a form of limbic epilepsy, but this has not been borne out. In fact, the syndrome lacks nosological validity. The syndrome may, however, be associated with soft neurological signs and temporal lobe electroencephalogram (EEG) abnormalities, and it may be helped by anticonvulsants such as carbamazepine and sodium valproate. Mood stabilizers such as lithium and SSRI antidepressants may help, suggesting a link to mood (affective) disorder. This disorder usually occurs in people with a severe, often explosive personality disorder with a propensity under stress to intemperate outbursts of anger and impulsive violence when frustrated, which equates to the emotionally unstable impulsive-type personality disorder of ICD-10 and diagnostically falls within the Cluster B personality disorder of DSM-5. It is of note that half of persistently aggressive offenders in general are said to have an abnormal

332  Habit and impulse-control disorders, shoplifting, and other forms of acquisitive offending

EEG record, often an immature record (persistence of excess posterior slow-wave activity), characteristic of people with psychopathic disorder and not diagnostic of epilepsy.

PROBLEMATIC INTERNET USE (PIU) This refers to uncontrollable Internet use that is markedly distressing, time-consuming, and/or results in social, occupational, or financial difficulties; is not explained by hypomania or mania; and meets DSM-5 criteria for impulse-control disorder NOS.20 It was previously referred to as Internet addiction. Comorbid substance abuse and psychiatric disorders, including depression, attention deficit hyperactivity disorder (ADHD), and social phobia, are commonly seen.21,22 Internet pornography is considered in detail in Chapter 43.

PATHOLOGICAL STEALING (KLEPTOMANIA) The term ‘kleptomania’ comes from the Greek for stealing madness and was coined by the Frenchman Marc in 1833, when describing a number of wealthy individuals who carried out bizarre, worthless thefts in which they had little intrinsic interest and to which they confessed spontaneously when challenged. In ICD-10, pathological stealing is classified as a habit and impulse disorder and is defined as repeated failure to resist impulses to steal objects that are not required for personal use or monetary gain. Objects may be discarded, given away or hoarded. The person may even later offer to pay for items stolen. An increasing sense of tension before and a sense of gratification during and immediately after the act are seen. In DSM-5 the condition is described as an impulse-control disorder and termed kleptomania.

Epidemiology Kleptomania is usually seen in women of a mean age of 36 years, with a mean duration of illness of 16 years (often after an onset in childhood). The disorder is said to be rare, and even rarer to see it without an underlying psychiatric disorder (mood, anxiety or eating disorder). In a study23 of twenty consecutive admissions to a psychiatric hospital, 15 were women; all had a lifetime diagnosis of major mood disorder, 14 had a diagnosis of anxiety disorder and 12 had an eating disorder. Kleptomania has been found to be present in less than 5 per cent of arrested shoplifters, although the condition is probably more common than previously thought 24. However, such individuals rarely seek psychiatric help and often avoid detection, so that estimates of the prevalence of kleptomania have been variable; even up to a quarter of all shoplifters. Up to a quarter of people with bulimia nervosa are said also to meet the diagnostic criteria for kleptomania. Kleptomania is certainly more prevalent in females than males, unlike other impulse-control disorders such

as intermittent explosive disorder and pyromania, where males predominate. Onset is around 20 years of age, but diagnosis is usually made one or two decades later. The individuals concerned are typically married. Males may be under-represented, perhaps in part because they are more likely to receive custodial sentences precluding re-offending in the community during periods of imprisonment.

Clinical features Stealing is perpetrated without much planning and without the assistance of others. The objects taken are not needed for personal use or for their monetary value and may be given away, discarded or returned surreptitiously, or kept and hidden. The individual invariably has enough money to pay for the stolen objects, but the theft is not committed to express anger or vengeance. Typically, when diagnosed, such individuals have appeared in court several times, feel guilt or remorse, but have not sought psychiatric treatment. There is often a history of a number of years of chronic dysphoric mood and of the display of signs of depression and anxiety. Individuals’ relationships and marriages are often unhappy. There is frequently a history of sexual difficulties and dysfunction and a past history of a turbulent childhood. Individuals often show poor impulse control generally and evidence of personality disorder, but the stealing is not primarily the result of conduct disorder or antisocial personality disorder. They share similarities, therefore, with people who have a past history of childhood sexual abuse.

Differential diagnosis In ordinary shoplifting, the act is usually well planned, although it may be impulsive, but it is motivated by need or monetary gain and the objects taken are for the individual’s use or monetary gain. Some cases of apparently inexplicable shoplifting may have no features of kleptomania. Some individuals who shoplift may attempt upon arrest to simulate kleptomania; they are then referred to as malingering. Shoplifting may also occur in conduct disorder, antisocial personality disorder, depression, manic episodes, schizophrenia and organic mental disorders, but in such circumstances the act is related to the primary diagnosis.

Co-morbidity This includes eating disorders and substance-related disorders. Kleptomania may be precipitated by major stressors such as life events. Depression is common, and bipolar disorder may not be infrequent.25

Etiology There is no definite evidence of a specific genetic or inherited predisposition, although a biological basis has been

The offence of shoplifting  333

suspected; for example, Grant and colleagues found decreased white-matter integrity in the inferior frontal brain regions in women with kleptomania.26 Kleptomania has been viewed as a variant of depressive disorder. People exhibiting kleptomania often have depressive symptoms, and the thieving itself may produce a stimulating excitement that has an antidepressive effect. Kleptomania has also been viewed as a variant of obsessivecompulsive disorder, but only about half of people with kleptomania experience with stealing the relief or tension characteristic of that disorder, and in obsessive-compulsive disorder there is not typically the sense of gratification seen in kleptomania.

Psychodynamic theories Psychodynamic theories of kleptomania are shown in Figure 45.1 and have included the following: ●●

●●

●●

●●

●●

Loss substitution, in which kleptomania provides symbolic compensation for threatened or actual loss Drive theory, which considers kleptomania in terms of a forbidden activity, engaged in secret and thus having a sexual basis Perversion, in which stolen objects represent fetishes as defined by Fenichel Defensive strategy used by females, e.g. to acquire a symbolic penis to counter castration fears Self-psychological theory, in which kleptomania is seen as a response to narcissistic injuries and a means to counter fragmentation of self.

Management

kleptomaniac individuals often respond well to antidepressant medication, especially SSRIs such as fluoxetine. CBT has also been found to be effective.27 Psychotherapeutic approaches, including family therapy, have also been reported. A self-imposed ban on shopping may, however, be required where treatment fails.

Prognosis The condition tends to be chronic but waxes and wanes.

THE OFFENCE OF SHOPLIFTING The technical offence is theft, i.e. from shops, an offence that, as with all offences of theft, requires the intent permanently to deprive, as well as the act, in order for the offence to be proved in court. Intent would clearly be indicated if an individual were seen to be hiding an object in their coat and to be looking around to make sure they were not being observed. In absent-minded shoplifting, there would, in theory, be no intention to deprive. ●●

●●

●●

●●

●●

In keeping with the view that kleptomania may be an equivalent of depressive or obsessive-compulsive disorder,

Most offenders are now male. The peak ages of offending is 10–18 years. About 5 per cent of shoplifters have a formal psychiatric disorder. Shoplifting may be an early symptom of depressive disorder or dementia. Pathological stealing (kleptomania), as has been described, is an impulse-control disorder characterized by recurrent failure to resist impulses to steal objects not needed for personal use or monetary gain. It is present in only a minority of shoplifters. Other psychiatric disorders that my lead to shoplifting include anxiety disorders, e.g. agoraphobia, and hypomania or mania.

Loss substitution Theft provides symbolic compensation for threatened or actual loss

Perversion Stolen objects represent fetishes

Defensive strategy e.g. to aquire a symbolic penis (in females) or counter castration fears

Kleptomania

Self-psychological theory Response to narcissistic injuries and to counter fragmentation of self

Figure 45.1  Psychodynamic theories of kleptomania.

Drive theory Forbidden activity engaged in secret, thus having sexual basis

334  Habit and impulse-control disorders, shoplifting, and other forms of acquisitive offending

Epidemiology In the UK, about 5 per cent of all shoppers shoplift.28 However, up to 50 per cent of goods taken from shops may be taken by the staff of those shops, as is the case with many thefts from businesses. Sociologists have viewed shoplifting as a social disorder created by a consumer society and precipitated by the visual provocation of shop displays. Open shelves increase sales and reduce the requirement for staff, as in supermarkets, but they are associated with increased shoplifting, with such businesses having to take this into account in their business planning. Some items are left near the checkout to encourage impulse buying but, in addition, provide easy but inexpensive objects to be shoplifted. Objects are often taken suddenly on impulse and are of trivial value or useless. Some individuals appear to regard shoplifting as an accepted perk of shopping and may pay for other items. Until the early 1970s, most shoplifters in the UK were women, who then undertook more of the shopping than now, and 15 per cent (20% first time offenders and 30% recidivist offenders) showed evidence of psychiatric disorder (particularly depression and anxiety symptoms). A typology of depressed shoplifters includes: ●● ●● ●● ●●

Isolated young adults under stress Older individuals with chronic depression Depression associated with acute loss Personality disorder with despondency and an exacerbation of aggression

Ninety per cent in the 1960’s did not re-offend after conviction.29 However, the majority of shoplifters in the UK are now male and aged 10–18 years, as reflected in signs on shops limiting the number of children allowed in at one time. Males are now more likely than females to have previous convictions. The incidence of psychiatric disorder has been reduced to about 5 per cent, and it is questionable now whether shoplifting deserves more psychiatric attention than other thefts (90% of all offences are acquisitive). The previous predominance of female offenders coincided with the view that female offenders tended to be psychiatrically disordered, which may explain the courts requesting psychiatric reports more often in shoplifting offences than in other, male-dominated offences. Shoplifting today is increasingly seen as merely criminal behaviour, often associated with drug abuse. In the USA, a study30 of 43093 individuals found a lifetime prevalence of shoplifting of 11%. Nevertheless, 89% of those shoplifters had a lifetime psychiatric diagnosis, although of substance abuse disorder (77%), mood disorder (35%), anxiety disorder (30%) and antisocial personality disorder (22%).

Classification Shoplifters have been subject to lay and legal stereotyping as “needy, greedy or seedy”. Bluglass distinguished three groups of shoplifters: professional, amateur and associated

with psychiatric disorder.31 A suggested more detailed classification is as follows:

Shoplifting for simple gain, plus excitement, with or without associated marked antisocial attitudes The principal psychological motivation is excitement. Such individuals are responsible for a significant proportion of shoplifting in large cities. Individuals also often feel less constrained by another country’s laws when abroad. This category also includes organized gangs and people with chaotic lives who steal impulsively and commit other offences. They may come from antisocial families and be subject to relative poverty (compare Proverbs 30, “Give me not poverty, Lest I steal”). Such shoplifting may be associated with feelings of resentment and bitterness towards other individuals’ better lifestyle.

Shoplifting associated with psychiatric disturbance The most common association in this group has historically been with depression in people of previous law abiding personality. A study in Montreal found that 1 per cent of 1649 shoplifters had depression or bipolar disorder.32 People in this group may include isolated younger women with children, but also include middle-aged women isolated from their families, who have lost children, who have experienced the loss of a husband (including loss owing to his career), and who may have significant physical complaints or ill-health, in addition to being chronically depressed. Shoplifting may be an early symptom of depression. The  depression may also be associated with acute losses. Law involvement, including court appearances and associated publicity, can precipitate self-harm or suicide where offenders are depressed. In cases of shoplifting and depression, the motivation may arise from feelings of guilt or a desire to be caught and punished, or may be a cry for help, or may represent an act of selfcomfort or a treat. Other dynamics include secondary gain in newly poor people to ‘keep up appearances’ and stealing something for oneself that is not purchased with money from parents or a partner. In married female offenders particularly, there may be sexual difficulties or rejection and marital problems. Shoplifting may be an act of revenge on a partner to induce shame or punishment. For instance, it may result in the female having to be accompanied by her male partner when shopping in future or alternatively in the male partner having to undertake the shopping from which the woman can then opt out. For such individuals, a prison sentence may at one level be a relief from their marital or family situation. Other psychiatric disorders associated with shoplifting include anorexia and bulimia nervosa, which may reflect both hunger for food and impulsivity, and early dementia, which is associated with disinhibited behaviour, lower

Acquisitive offences in England and Wales  335

resistance to temptation, poor judgement and late-onset offending. Shoplifting may also occur on occasion in association with other psychotic mental illnesses, alcoholism and intellectual (learning) disability.

Absent-minded shoplifting This implies no intent permanently to deprive and, if successfully argued in court, a not guilty verdict will result. Such shoplifting may result from undue preoccupation, distractions or harassment, for example caused by the shopper’s own accompanying children. Other causes cited include claustrophobia in shops and various medical or psychiatric drugs that impair concentration or cause confusion. It is the prescribing doctor’s responsibility to warn of such side effects from medication. Although a defence based on medication side effects, including particularly the effects of benzodiazepines, is not infrequently put forward in court by shoplifters, in reality it is rarely a primary cause.

Shoplifting in children This peaks around age 14–15 years, with boys being predominant. Boys steal sweets and books, while girls tend to steal cosmetics and clothes. The items stolen are usually of little value. The most common group is ‘normal’ children stealing for excitement. However, child shoplifting may also occur due to subcultural standards or as an expression of emotional disturbance, for example as an act of defiance against parents, as a cry for help, or in association with feelings of depression, worthlessness and guilt.

Assessment of shoplifters The history and mental state examination of the individual should elucidate the motives and detect any evidence of formal psychiatric disorder. The motive may often initially appear obscure, with useless objects or objects of trivial value taken suddenly on impulse, sometimes as a treat or arising from concealed resentment. Alcohol or drug abuse is often associated with shoplifting. Additional information should be obtained if possible, for example from the arresting police officer. It is often useful to discuss the case with the probation officer if one has been requested by the court to prepare a social enquiry report, which should also be read. It is essential to establish whether there is a history of previous convictions for shoplifting and of any past psychiatric history and its relationship to offending.

Management of shoplifters If it is argued, including on psychiatric grounds, that there was no intent to shoplift and the patient pleads this successfully, then a finding of not guilty will result. However, individuals are often deterred from such a defence, for example a defence involving absent-minded shoplifting, as

it will often require a number of court appearances and considerable legal expense to plead this successfully, and it may well give rise to local publicity. Where the court accepts that intent permanently to deprive was present, the individual is legally convicted of theft. If the individual does have a psychiatric disorder, including kleptomania, requiring treatment, then psychiatric evidence may be used in mitigation with a view to altering the sentence; for example, a psychiatric recommendation of out-patient psychiatric treatment may be made as part of a community rehabilitation (old ­probation) order, but this will require the individual’s consent.

ACQUISITIVE OFFENCES IN ENGLAND AND WALES These are largely covered in the Theft Act 1968 and include the following: s. 1 Theft For the actus reus, 3 points have to be proved, (1) appropriation of (2) property (3) which belongs to another. For the  mens rea, 2 points must be proven (1) dishonesty and (2) intention to permanently deprive. s. 8 Robbery Robbery is theft with force or fear of force. s. 9 Burglary s. 9 (1) (a) Enters a building or part of a building as a trespasser with intent to steal, inflict GBH or do unlawful damage. s. 9 (1) (b) Having entered a building or part of a building as a trespasser, steals or attempts to steal or inflicts or attempts to inflict grievous bodily harm. s. 10 (1) Aggravated burglary when burglary takes place with a weapon of offence, an imitation firearm, a firearm itself and or explosive (pneumonic WIFE). Burglary may ostensibly be for financial gain, but it is often associated with excitement, which combined with the individual drinking alcohol for “Dutch courage” to commit the offence and as an act of defilement, may result in the offender urinating in the property burgled. s. 12 (1) Taking a conveyance without consent (taking, driving or allowing self to be conveyed) s. 12A Aggravated Vehicle Taking: Vehicle driven dangerously, or causing an injury to any person or damage to property or to the vehicle. s. 21 Blackmail s. 22 Handling Stolen Goods s. 25 Going Equipped for Stealing (In the Theft Act 1978, s.3 Making Off Without Payment) Under the Fraud Act 2006, fraud may be by false representation (s.2), failure to disclose information (s.3), abuse of position (s.4) and obtaining services dishonestly (s.11).

336  Habit and impulse-control disorders, shoplifting, and other forms of acquisitive offending

In Scotland, most of the equivalent offences to the above arise from common law rather than from Statute. Burglary is termed theft by housebreaking and blackmail is referred to as extortion. In Northern Ireland, the relevant legislation is the Theft Act Northern Ireland (1969) and closely follows the legal situation of the Theft Act 1968 in England and Wales. In the Republic of Ireland, the Criminal Justice (Theft and Fraud Offences) Act 2001 applies.

Characteristics of acquisitive offenders Acquisitive offences, especially when recidivist (repeated or habitual relapse into criminal behavior) and where the offences are of robbery and burglary, tend to have been committed by those with antisocial personality traits. A  history of being in care and dyslexia are common. Among offenders are those with predominantly inadequate personalities (pathological liars (pseudologica phantastica), swindlers and conmen, who are themselves prone to be easily conned). Such offences may be committed to fund substance misuse. Mental illness may indirectly lead to such offending. Those suffering from a severe psychotic mental illness, such as schizophrenia, may commit acquisitive offences due to associated deterioration in the individual’s social functioning and personality, which in turn may lead to difficulties sustaining oneself independently in the community and acquisitive offences to survive there, e.g. a homeless individual with schizophrenia. The recidivist acquisitive offender may receive repeated prison sentences, miss out on life experiences in the community from which he may learn, and become institutionalised within the prison setting. If such offenders, when leaving prison, are uncertain if they will re-offend again, then the prognosis is usually poor.

CONCLUSIONS Impulse-control disorders are a disparate group of conditions with different characteristics and epidemiologies. Whether the urges and impulses and resulting criminality are irresistible is open to question. Perhaps, no impulse is irresistible, if an individual is motivated to try hard enough to resist. Certainly, in practice, impulse-control disorders appear to be controllable at times but uncontrollable at others, when momentary excitement leading an individual to act on the impulse appears to overwhelm control. A disordered function of control may better describe the situation than an irresistible impulse. Indeed, the impulse to act is often combined with a desire not to act. The conditions included in habit and impulse-control disorders do not show an identical psychopathology. Pathological gambling is a more complex condition, requiring attention to the whole person, than trichotillomania. A pathological gambler shows features akin to substance addiction, with characteristic histories of escalation from

use, to abuse, and then addiction with tolerance and withdrawal symptoms, with gambling becoming the center of the person’s life, unlike the situation in pyromania or trichotillomania. Consistent with its new classification under DSM-5 among addictive disorders, the treatment of pathological gambling involves motivational interviewing, CBT, or a 12-step program with Gamblers Anonymous. Impulse-control disorders are at least as prevalent as schizophrenia, but the research interest in such disorders and the evidence base for treatments are limited. Current treatments demonstrated to be effective include CBT and SSRI antidepressants. Other treatments for impulsivity with a weaker evidence base include serotonin and norepinephrine reuptake inhibitor (SNRI) antidepressants, anticonvulsants, stimulants such as methylphenidate, and the cognitive enhancer modafinil. Other approaches being considered and researched include biofeedback, repetitive transcranial magnetic stimulation, deep-brain stimulation, and stereotactic neurosurgery.

REFERENCES 1. American Psychiatric Association. Diagnostic and Statistical Manual of Mental Disorders. 5th ed. Text Revision. Washington, DC: American Psychiatric Association, 2013. 2. World Health Organization. International Classification of Diseases and Related Health Problems, 10th Revision. Geneva: World Health Organization, 1992. 3. Christenson GA, Faber RJ, de Zwaan M, et al. Compulsive buying: Descriptive characteristics and psychiatric comorbidity. Journal of Clinical Psychiatry. 1994; 55: 5–11. 4. Grant JE, Levine L, Kim D, Potenza MN. Impulse control disorders in adult psychiatric inpatients. American Journal of Psychiatry. 2005; 162: 2184–88. 5. Gibbens TCN, Prins J. Shoplifting. London: Institute for the Study and Treatment of Delinquency, 1962. 6. Topp DO. Fire as a symbol and weapon of death. Medicine, Science and the Law. 1973; 13: 79–86. 7. Neustatter WL. Psychological Disorder and Crime. London: Christopher Johnson, 1953. 8. Stinchfield R. Reliability, validity and classification accuracy of a measure of DSM-IV diagnostic criteria for pathological gambling. American Journal of Psychiatry. 2003; 160: 180–2. 9. Legg-England S, Gotestam KG. The nature and treatment of excessive gambling. Acta Psychiatrica Scandinavica. 1991; 84: 113–20. 10. Raylu N, Oei TP. Pathological gambling: A comprehensive review. Clinical Psychology Review. 2002; 22: 1009–61. 11. Moran E. Gambling. In: Handbook of Psychiatry 4: The Neuroses and Personality Disorders. Eds. Russell GFM, Hersov LA. Cambridge: Cambridge University Press, 1983; 385–90.

References 337

12. Wardle H, Sproston K, Orford J, et al. British Gambling Prevalence Survey 2007. London: National Centre for Social Research, 2007. 13. Dickerson MG. The prevalence of excessive and pathological gambling in Australia. Journal of Gambling Behaviour. 1988; 4: 125–51. 14. Shaffer HJ, Korn DA. Gambling and related mental disorders: A public health analysis. Annual Review of Public Health. 2002; 23: 171–212. 15. Potenza MN, Steinberg MA, McLaughlin SD, et al. Gender-related differences in the characteristics of problem gamblers using a gambling helpline. American Journal of Psychiatry. 2001; 158: 1500–5. 16. Bondolfi G, Jermann F, Ferroero F, et al. Prevalence of pathological gambling in Switzerland after the opening of casinos and the introduction of new preventative legislation. Acta Psychiatrica Scandinavica. 2008; 117: 236–9. 17. Freud S. The acquisition of power over fire. International Journal of Psycho-Analysis. 1932; 13: 405–10. 18. Lindburg N, Holi M, Tani P, et al. Looking for pyromania: Characteristics of a consecutive sample of Finnish male criminals with recidivist fire setting between 1973–1993. BMC Psychiatry. 2005; 5: 47. 19. Walsh KH, McDougall CJ. Trichotillomania: Presentation, etiology, diagnosis and therapy. American Journal of Clinical Dermatology. 2001; 2: 327–33. 20. Shapira NA, Goldsmith TD, Kech Jr PE, et al. Psychiatric features of individuals with problematic Internet use. Journal of Affective Disorders. 2000; 57(1–3): 267–71. 21. Ko CH, Yen JH, Chen CS, et al. Psychiatric ­comorbidity of Internet addiction in college ­s tudents: An interview study. CNS Spectrums. 2008; 13(2): 147–53.

22. Yen JH, Ko CH, Yen CF. The comorbid psychiatric symptoms of Internet addiction: Attention deficit and hyperactivity disorder (ADHD), depression, social phobia and hostility. Journal of Adolescent Health. 2007; 41(1): 93–8. 23. McElroy ES, Pope HJ, Jr., Hudson N. Kleptomania: A report of 20 cases American Journal of Psychiatry. 1991; 148, 652–7. 24. Goldman MJ. Kleptomania: making sense of the nonsensical. American Journal of Psychiatry. 1991; 148: 986–90. 25. Lejoyeux M, Arbarataz M, McLoughlin M, Adés J. Impulsive control disorders and depression. Journal of Nervous and Mental Diseases. 2002; 190: 310–14. 26. Grant JE, Correia S, Brennan-Krohn T. White matter integrity in kleptomania: a pilot study. Psychiatric Research. 2006; 147: 233–37. 27. Gudjonsson GH. Psychological and psychiatric aspects of shoplifting. Medicine, Science and the Law. 1990; 30: 45–51. 28. Buckle A, Farrington DP. An observational study of shoplifting. British Journal of Criminology. 1984; 24: 63–73. 29. Gibbens TCN, Prins J. Shoplifting. London: Institute for the Study and Treatment of Delinquency, 1962. 30. Blanco C, Grant J, Petry NM, Simpson HB, Alegria A, Liw S, Hasin D. Prevalence and correlates of shoplifting in the United States; results from the National Epidemiological Survey on Alcohol and Related Conditions (NESARC). American Journal of Psychiatry. 2008; 165: 905–13. 31. Bluglass R. Shoplifting. In R Bluglass, P Bowden (eds) Principles and practice of forensic psychiatry. Edinburgh: Churchill Livingstone, 1990. 32. Lamontagne Y, Carpentier N, Hetu C, LacerteLamontagne C. Shoplifting and mental illness. Canadian Journal of Psychiatry. 1994; 39: 300–302.

46 Hostage taking DAVID A. ALEXANDER Introduction 339 Definitions 339 History of hostage taking 339 Motives for hostage taking 340 “Epidemiology” of hostage incidents 340 Why negotiate? 340 Pivotal events 341 Subsequent developments 341 “Buying time” 341 Third-party intermediaries 341 Hostages taken overseas 341 Cultural factors 341

Terrorist incidents 342 Psychological effects of being taken hostage 342 Resilience and vulnerability factors 342 Physical 343 Coping while in captivity 343 Survival guidelines 343 Stockholm syndrome 343 Future challenges 343 Acknowledgments 344 References 344 Further reading 344

INTRODUCTION

advertised their material status on their shields in an effort to ensure that they were not merely slaughtered if ­captured but kept alive because of their financial worth. In general terms, the value of a hostage relates to the value of human life in any particular cultural context. Phillips1 comments that more specific factors, such as age, gender, and social status, will influence the value of a ­hostage. The welfare and risks to hostages are also powerful ­ ­ i nfluences. The Chechnyans have devised ­g ruesome methods of enhancing the level of ransom by torturing, maiming, and distributing to potential payees the body parts of their h ­ ostages. The market value of a hostage is also increased by the murder of another hostage. In contemporary times no individual or organization is immune from the risk of hostage taking; humanitarian groups, peacekeeping forces, media personnel, rescuers, and health-care staff are all at risk in certain areas of the world. Aircraft hijacking is now much less common, but maritime piracy and hostage taking are now in vogue, particularly in the areas of Somalia, the Gulf of Guinea, and the Horn of Africa. On some occasions hostage taking is opportunistic, but, particularly overseas, most hostages are likely to be abducted by professional, well-organized groups, in broad daylight and in highly populated areas.

Definitions Hostage taking is the layman’s term; it is not a legal term. Kidnap is the official term according to English law, and abduction is the corresponding one under Scots law. However, all three terms refer to a circumstance in which an individual is detained by another person or persons (for whatever ­reason) against that individual’s will and without legal authority. In this chapter perpetrator will be used to refer to those who take hostages, and stronghold will be used to describe the environment/place in which the hostage is being held. Where there is no known or permanent stronghold, this creates a problem for the authorities in relation to both communication and containment. Containment refers to a standard police procedure of securing the stronghold to protect the public (particularly when there are armed perpetrators) and to ensure that the incident is confined to a specific site. Negotiator refers (unless otherwise specified) to specially trained police officers in the United Kingdom.

History of hostage taking The historical roots of hostage taking are deep and extend at least to Biblical times. Foresightful medieval knights

339

340  Hostage taking

Motives for hostage taking

“Epidemiology” of hostage incidents

A hostage is taken to achieve influence of one individual or group over others. Individuals’ motives are legion but are often reduced to a duality of motives, “expressive” and “instrumental.”2 The former allows the perpetrators to broadcast a frustration or an apparent injustice, or to seek  emotional release. “Instrumental” motives are intended to achieve specific ends, such as the payment of a ransom, the release of political prisoners, or agreement to a certain demand. Sometimes these demands are totally  unrealistic (e.g., the evacuation of the Iraqi territory by the Coalition Forces or a ransom that virtually nobody could muster). There are more specific motives that vary depending on the hostage takers’ circumstances and typologies. Box 46.1 lists groups of people who might take hostages. Obviously, neither groups nor motives are mutually exclusive, thus making negotiation a complicated matter. For example, the members of MEND (The Movement for the Emancipation of the Niger Delta) take their hostages for several reasons, including ransom, as a protest against environmental damage by oil companies and a lack of local development. There are also specific types of kidnap, such as “tiger kidnap” and “express kidnap.”2 The former refers to occasions on which the victim is abducted and forced to withdraw money from his or her bank or other accounts. “Express kidnap” is when the ransom demand is at a level likely to be paid by the family or employer; this is popular in South America. Political, religious, and ideological demands tend to be more unrealistic. Unfortunately, the payment of a ransom does not guarantee the safety of hostages; some are murdered while negotiations continue or after they have been “successfully” completed. This is why the authorities always seek “proof of life” during negotiations. To complicate the challenge for the negotiating authorities, some hostage takers sell their hostages to other organizations that have their own agenda. Hostages may also be used as a “shield” against armed interventions.

Obviously, the medical term is being used loosely here to refer to the patterns, frequency, and features of hostage incidents. As Phillips1 has emphasized, it is hard to collect such  data accurately. Many negotiations by individuals, families, and organizations are conducted covertly to achieve a resolution. Some ransoms are paid, and concessions are made, without anybody acknowledging this. Also, some countries and authorities do not recognize the value of keeping formal records. This is unhelpful; such data can contribute to evidence-based practice and training. Hostage taking is often a complex event involving the interaction of several factors: alcohol/drugs, weapons, mental status of the perpetrators, age of the hostage, whether the hostage is alone or with other hostages, setting of the kidnapping, number of perpetrators, and nature of and opportunities for communication with the perpetrators. One influential database is the Hostage, Barricade and Suicide database (HOBAS), which was established by the US Federal Bureau of Investigation (FBI) Crisis Negotiation Unit. However, its representativeness has been challenged by Lipetsker.3 Louden4 discusses other databases developed in the United States. However, differences in definitions make United States–United Kingdom comparisons difficult. The first systematically compiled database in Scotland has been provided by Menzies.5 It encompasses 315 events reported by the eight Scottish forces from which negotiators were deployed from 2005–2008. Interestingly, only 19 (6%) of the incidents involved a hostage.

BOX 46.1: Categories of hostage takers ●●

●● ●●

●● ●● ●● ●●

Mentally ill (especially those with delusional ideas) Religious fanatics Criminals interrupted in the commission of another crime Prisoners (to express some grievance) Criminals (seeking a ransom) Political extremists Terrorists (in pursuit of religious, political, or ­ideological aims)

WHY NEGOTIATE? Hostage taking is not a new phenomenon, but negotiating the release of hostages through trained police officers is. Several texts have traced the development of this strategy (e.g., McMains and Mullins 6; Rogan and Lanceley 7). These texts describe how the previous method of ­dealing with h ­ ostage incidents—that is, the “suppression model”— yielded to current negotiations procedures. The  suppression model entails the use of overwhelming physical force.  Its success is confirmed by high-profile events, including the storming of the Iranian Embassy in  London in 1980 by the UK Special Air Service (SAS). There will always be events that need to be resolved by  highly trained and  ­well-briefed armed personnel such  as police special weapons and tactics (SWAT) teams  or military Special Forces. However, armed interventions can create risks to the hostages. Some hostages may even be killed by their own rescuers, as happened in the attempted ­rescue of aid worker Linda Norgrove in Afghanistan by the American Special Forces in October 2010. The deaths of  130 and 334 hostages,

Why negotiate?  341

respectively, during rescue efforts  by the Russian forces to end the Dubrovka Theatre siege in Moscow (2002) and the Beslan School siege (2004) provide testimony to the risk of rescuing h ­ ostages by armed intervention. To jeopardize the  chance of successful rescues by armed intervention, hostage ­t akers may force hostages to swap their clothing with that of their captors and/or wire them to explosive  devices,  as happened to Alan Johnston, the ­ British Broadcasting Corporation (BBC) correspondent in Gaza. He reported, “What you fear most is a bungled rescue effort.”8

Pivotal events Most authorities agree that two particular events in the 1970s led to a strategic revision of how to deal with hostage incidents. The first was the abortive rescue of hostages during the Attica prison siege in the United States in 1971; this resulted in the deaths of 28 prison officers and 10 inmates. The other event involved the deaths of the Israeli wrestling team during the 1972 Munich Olympic Games. These events and others encouraged the US government to develop a negotiation strategy. This was pioneered by two officers from the New York Police Department (NYPD), Schlossberg and Bolz. Influenced by their success, the FBI developed its own Hostage Negotiation Unit and training program.

Subsequent developments More recently, different models of crisis intervention have been developed. Communication issues are the essence of effective negotiating and can lead to difficult paradoxes relating to cooperation between negotiator and perpetrator in particular. A useful exploration of these paradoxes is  provided by Donohue using dialogue from the Waco siege (1993).9 Not only does the evaluation literature confirm that through negotiation most hostage incidents are resolved peacefully, but negotiators also report that they find such work rewarding and satisfying. Inevitably, however, some officers do not regard negotiating as “real police work.” Some officers cannot shed their authoritarian style and regard it as anathema to be polite and conciliatory to hostage takers.

“Buying time” The essential gain of negotiating is to buy time. The main advantages of doing so are listed in Box 46.2. Understandably, the hostage’s family, friends, and colleagues often fret about “everything going so slowly.” Police family liaison officers can be most helpful not only in gathering further intelligence but also in keeping these persons informed as to what is happening and why, and what will happen.

BOX 46.2: Gains from buying time ●●

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All participants (hostages, negotiators, and ­hostage takers) have an opportunity to calm down. (The early stage of an incident is a high-risk time for hostages.) The authorities can gain intelligence about the hostages and perpetrators. (This includes whether weapons are involved, whether drugs/alcohol are involved, the demands of the hostage takers, and the emotional and physical state of hostages and hostage takers.) The authorities have time to prepare an “exit ­strategy” (should the perpetrators decide to release the hostages and end the incident) and a tactical intervention strategy (should negotiations fail).

Third-party intermediaries In the United Kingdom only trained police officers negotiate directly with perpetrators. In a limited number of cases, the incident commander will allow the involvement of a third-party intermediary (TPI); most often it will be a lawyer, family member, clinician, or media representative. According to the Scottish database, a TPI was used only on 54 occasions (17%).5 A good case has to be made to the incident commander for such involvement because the risk is that the TPI may innocently (or deliberately) leak crucial information to the perpetrator(s). There is also the possibility that the TPI may provoke a dramatic gesture (including suicide) by a perpetrator. Finally, mental health professionals, who have undergone specialist negotiator training, can also be useful on some occasions.

Hostages taken overseas All UK police forces have trained negotiators. However, when a UK national is taken hostage abroad, the Foreign and Commonwealth Office (FCO) will intercede through the UK Embassies and High Commissions in conjunction with the Crisis Negotiation Unit of the Metropolitan Police, which will coordinate governmental strategy for the release of the hostages. The UK government will not pay ransoms.

Cultural factors Dealing with hostage incidents in a multicultural society can pose significant challenges, including with regard to the use of TPIs, because some cultures are “collectivist” in that the needs of the individual must be subordinated to the needs of the group. Rejecting offers of help from family members, for example, can be misinterpreted in such cultures. Other cultural factors include nonverbal behavior, loss of face, the expression of emotions (several cultures express their emotional state through physical complaints), attitudes on

342  Hostage taking

life and death, and reactions to police officers. In the case of Islamic extremists, careful attention must be paid to their religious mores and the use of female negotiators.

Terrorist incidents Terrorism defies a single universally acceptable definition, and those whom our authorities regard as terrorists will not welcome the use of that term. In their own eyes they will be “warriors” or “freedom fighters.” Also, they will not welcome any implication that mental illness underlies their behavior. Most often they are correct; terrorist organizations do not want mentally disturbed or even suicidally intended members because they are likely to attract premature attention to themselves and may not respond according to instructions. The issue for many terrorists is not “suicide” but “martyrdom.” General guidelines for negotiating with terrorists have been set out by Mullins and McMains.10 Western governments usually proclaim that they will not negotiate with terrorists. This is pointless political rhetoric; they do negotiate, and they should. A distinctive feature of the demands made by major terrorist organizations is that they are often unrealistic. Their resolve and logic are usually inflexible. Thus, tactical intervention may be the most likely outcome. However, negotiators can still extract intelligence to facilitate an armed response.

BOX 46.3: Typical reactions to hostage taking (acute phase) ●●

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BOX 46.4: Enduring personality change after catastrophic experience ●● ●● ●● ●● ●●

PSYCHOLOGICAL EFFECTS OF BEING TAKEN HOSTAGE For most individuals, being taken hostage constitutes a traumatic experience. The typical acute reactions to being taken hostage are reported in Box 46.3. Some reactions might be prolonged and translate into genuine psychopathology, such as post-traumatic stress disorder (PTSD), depression, anxiety, or substance abuse. In a survey of ransom victims in Sardinia, Favaro and colleagues12 reported PTSD in 50% and depression in 30% of hostages taken by criminals. Following extended spells of captivity, especially in concentration camps or torture camps, individuals may develop a condition known as “enduring personality change after catastrophic experience.”13 The features of this condition are listed in Box 46.4. Children may be particularly vulnerable to adverse reactions. They may display their distress and problems through maladjustment, for example, school refusal, aggressive behavior, stubbornness, and a distrust of adults (especially if the perpetrators were previously trusted ­figures). Unfortunately, some symptoms may worsen over  time.14 Two recent publications by Hall and Leidig15 and by Hall16 offer painful insights into the impact on two young Austrian girls (Natasha Kampusch and Elizabeth Fritzl, respectively) who endured extended spells of captivity.

Shock, numbness, and denial (“This is not happening to me, surely.”11) Fear and anxiety Abandonment (by the authorities) and helplessness Depression (but suicide is rare) Uncertainty (through lack of information) Anger and outrage (which may have many targets) Guilt (especially if other hostages have been killed) Hyperarousal (causing irritability, agitation, overreaction to noises, and disturbed sleep) Hypervigilance (highly sensitive to further risk) Impaired memory, concentration, and decision making (this can make planning an escape very hazardous)

Hostile and mistrustful attitude Social withdrawal Feelings of emptiness or hopelessness Chronic feeling of being “on edge” Estrangement

RESILIENCE AND VULNERABILITY FACTORS Research confirms how indomitable the human spirit is; ­resilience is the norm. As hostage Terry Waite wrote, “Perhaps they will beat me again—even kill me. Whatever they do, they will never destroy me—never, never.”17 Moreover, for some hostages, their experience can lead to personal growth and positive outcomes. Waite is an outstanding example of this as he translated adversity into post-release achievements. He has also served as an inspiration to other hostages including Johnston8 and Shaw.11 Johnston referred to his experience as “…a kind of dark education.” 8 He gained a deeper understanding of the value of freedom, an appreciation of the simple things in life, and a greater awareness of personal relationships. No formula enables one to predict how any particular individual will react to being taken hostage. There are, however, some general factors indicating who may be more vulnerable to adverse reactions. These are: females, children, those of low educational level, extended period of captivity (especially if it is associated with violence and degradation), those with markedly dogmatic/authoritarian attitudes, and those who display an “external locus of control” in that they believe they have little control over their own situation.2,14,18

Future challenges  343

Physical

Stockholm syndrome

Hostages may also suffer from physical conditions. In  the earliest phase of the incident, they may develop nausea, faintness, tachycardia, and increased respiratory rate. In extreme cases, the latter may lead to the hyperventilation syndrome: an alarming syndrome with its protean profile of symptoms occasioned by rapid overbreathing. Poor living conditions, such as lack of sanitation, impoverished diet, and a lack of sunlight and exercise, may also exact a toll on the hostage’s physical health, particularly when the period of captivity is extended. In addition, preexisting physical conditions may be exacerbated by the abduction. These include asthma, diabetes, and angina.

Attempting to develop a reciprocal personal relationship with one’s captors can increase survival chances, and this relates to the phenomenon called Stockholm syndrome. Alexander and Klein2 and Namnyak and colleagues19 have challenged the use of the word syndrome because this implies a pathological condition. The original concept was coined by the criminologist Nils Bergerot following an armed raid on a Swedish bank where staff were taken hostage in 1973. Unexpectedly, strong bonds developed between the captors and the hostages. The latter even collected funds for the perpetrators’ defense. Since then, similar reactions have been noted in other hostage situations, but the term has been degraded by overuse, and the reaction does not always emerge. Its preconditions are described in Box 46.6. While the Stockholm reaction certainly has survival value, after the incident hostages may feel guilty for fraternizing with the perpetrators, and they may also be criticized by others for doing so.

COPING WHILE IN CAPTIVITY Survival guidelines Individuals and hostage situations vary greatly. Thus, a single formula for successful survival is impossible. Military personnel have developed certain strategies, but not all of these are appropriate for civilians. Box 46.5 contains some broad guidelines for civilians.

BOX 46.5: Survival guidelines for hostages ●● ●●

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Be a “grey” person (i.e., do not attract attention). Do not appear to challenge (e.g., by sustained eye contact and/or body language). Resort to physical force only if there is a high certainty of success; if using force, be ruthless and determined. Consider escape only when there is a high likelihood of success. (If recaptured, you will likely receive a beating and will be held under tighter security, as Shaw11 found out.) Impose order on the environment (e.g., keep it clean and tidy, and record time). Maintain personal hygiene, dignity, and physical fitness. Take one day at a time. Keep your brain active. (Terry Waite17 used mental arithmetic and mentally “drafted out” the book he would subsequently publish. Shaw11 transposed popular songs into different keys.) Focus on positive thoughts. (Johnston8 kept reminding himself that he was not in as bad a situation as those in Abu Ghraib, the Russian Gulag, or a Nazi “death camp.”) Pray. Prayer can be helpful, although many hostages (including Shaw11 and Waite17) never directly prayed to God for a “rescue.” Try to personalize your relationship with your ­captors (see Box 46.6).

FUTURE CHALLENGES This area of police work is under-researched and underresourced in terms of training in the United Kingdom. In particular, there needs to be more frequent involvement of mental health professionals who have undergone some training in police techniques, strategies, and practices. They must avoid “psychobabble” and equivocation in an operational setting. Negotiators would benefit from their guidance on the mental status of perpetrators and hostages and, in particular, on the risks of deliberate self-harm by perpetrators. Also, research is required to assess the effects on the

BOX 46.6: Preconditions of the Stockholm reaction ●●

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Captors and captives must share adverse circumstances (e.g., lack of food, water, and basic facilities). There must be opportunities for bonding. Threats to life by captors are not fulfilled (e.g., “mock executions”). The captives have a high level of dependency on the captors. Both captives and captors personalize their relationships (e.g., through the use of their own names, comparing biographical details, and acts of kindness and support). Experienced hostage takers can sabotage this by removing all personal items from the hostages, giving them a number or pejorative name, and treating them in a degrading fashion.

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families of hostages, especially hostages abducted abroad. As Inspector Rona Grimmer noted, “Most families speak about their complete and utter helplessness as there is nothing they can do but wait.”20

ACKNOWLEDGMENTS I am grateful to my colleagues Chief Inspector A. Brown and Inspector C. Menzies of the Scottish Police College and to Inspector R. Grimmer of Grampian Police for expert opinions and information on legal issues and family liaison issues relating to hostage taking. More generally, I appreciate the comments and observations shared with me by many police negotiators with whom I have worked on operational deployments. I have also gained enormously from my personal relationships with many hostages, especially Terry Waite, Brian Kennan, and Peter Shaw. Finally, I thank Mrs. D. Nelson, OBE, of the Foreign and Commonwealth Office, for her information on and observations about overseas hostage taking.

REFERENCES 1. Phillips E. The Business of Kidnap for Ransom. In: The Faces of Terrorism. Ed. Canter D. Chichester: John Wiley and Sons Ltd., 2009: 189–207. 2. Alexander DA, Klein S. Hostage-taking: Motives, resolution, coping and effects. Advances in Psychiatric Treatment. 2010; 16: 176–83. 3. Lipetsker MA. Evaluating the Hostage, Barricade and Suicide Database system (HOBAS). Journal of Police Crisis Negotiations. 2004; 4: 3–27. 4. Louden RJ. Hostage/Crisis Negotiation. In: Contemporary Theory, Research and Crisis and Hostage Negotiation. Eds. Rogan RG, Lanceley FJ. New York: Hampton Press, 2010: 11–32. 5. Menzies CJ. Crisis Management by Police Negotiators in Scotland: Data Analysis and CrossOrganisational Isomorphism. University of Leicester: Unpublished MSc thesis, 2010. 6. McMains M, Mullins WC. Crisis Negotiations, Managing Critical Incidents and Hostage Situations in Law Enforcement and Corrections. Cincinnati: Anderson Publishing, 2001. 7. Rogan RG, Lanceley FJ. Contemporary Theory, Research and Practice of Crisis and Hostage Negotiation. New York: Hampton Press, 2010. 8. Johnston A. Kidnapped and Other Dispatches. London: Profile Books Ltd., 2007. 9. Donohue WA. Managing the Paradoxes in Crisis Bargaining. In: Contemporary Theory, Research and Crisis and Hostage Negotiation. Eds. Rogan RG, Lanceley FJ. New York: Hampton Press, 2010: 77–93.

10. Mullins WC, McMains MJ. Negotiation with Terrorists. In: Contemporary Theory, Research and Crisis and Hostage Negotiation. Eds. Rogan RG, Lanceley FJ. New York: Hampton Press, 2010: 203–27. 11. Shaw P. Hole. Kidnapped in Georgia. Abercynon, UK: Accent Press Ltd., 2006. 12. Favaro A, Degortes D, Colombo G, Sontonasto P. The effects of trauma amongst kidnap victims in Sardinia, Italy. Psychological Medicine. 2000; 30: 975–80. 13. World Health Organization. The ICD-10 Classification of Mental and Behavioural Disorders. Geneva: World Health Organization, 1992: 209–10. 14. Terr C. Chowchilla revisited: The effects of psychic trauma four years after a school bus kidnapping. American Journal of Psychiatry. 1983; 140: 1543–50. 15. Hall A. Monster. London: Penguin Books, 2008. 16. Hall A, Leidig M. Girl in the Cellar. London: Hodder and Stoughton, 2006. 17. Waite T. Taken on Trust. London: Hodder and Stoughton, 1993. 18. Agopian MW. The impact on children of abduction by parents. Child Welfare. 1984; 63: 511–19. 19. Namnyak M, Tufton N, Szekely R, et al. “Stockholm syndrome”: Psychiatric diagnosis or urban myth? Acta Psychiatrica Scandinavica. 2008; 117: 4–11. 20. Grimmer R. Personal communication, Inspector Rona Grimmer, Force Family Liaison Co-ordinator, Grampian Police, Scotland, 2012.

FURTHER READING Alexander DA, Klein S. First responders after disasters: A review of stress reactions, at-risk, vulnerability, and resilience factors. Prehospital and Disaster Medicine. 2009; 24: 87–94. Alexander DA, Klein S. Kidnapping and hostage-taking: A review of effects, coping and resilience. Journal of the Royal Society of Medicine. 2008; 102: 16–21. Brown AB. Maritime Negotiation—A Critical Perspective. In: Modern Piracy and Maritime Terrorism. 2nd ed. Eds. Haberfeld MR, von Hassell A, Brown AB. Dubuque: Kendall Hunt, 2013: 263–78. Busuttil W. Prolonged incarceration: Effects on hostages of terrorism. Journal of the Royal Army Medical Corps. 2008; 154: 128–35. Gardner LC. The Case That Never Dies: The Lindbergh Kidnapping. New Brunswick, NJ: Rutgers University Press, 2004. Gonsalves M, Stansell K, Howes T, Brozek G. Out of Captivity. New York: Harper, 2009. Greenstone JL. The twenty-five most serious errors made by police hostage and crisis negotiators. Journal of Police Crisis Negotiations. 2007; 7: 107–16.

Further reading  345

Hammer MR. The S.A.F.E Model for Negotiating Critical Incidents. In: The Faces of Terrorism. Ed. Canter D. Chichester: John Wiley and Sons Ltd., 2009: 33–58. Keenan B. An Evil Cradling. The Five Year Ordeal of a Hostage. London: Hutchinson, 1992. McClain BU, Callaghan GM, Madrigual DO, et al. Communication patterns in hostage negotiations. Journal of Police Crisis Negotiations. 2001; 1: 53–67. McMains MJ, Mullins WC. Crisis negotiations: Managing critical incidents and hostage situations in law enforcement. Waltham, MA: Anderson Publishing, 2014.

Misino DJ. Negotiate and Win. New York: McGraw Hill, 2004. Naria CE, Ossa M. Family functioning, coping and ­psychological adjustment in victims and their families following kidnapping. Journal of Traumatic Stress. 2003; 16: 107–12. Ostermann BM. Cultural differences make negotiations different. Journal of Police Crisis Negotiations. 2002; 2: 11–20.

47 Terrorism SIMON DEIN Psychological theories of terrorism Religion and violence

348 349

Conclusion: The role of psychiatric interventions 350 References 350

Acts of terrorism tragically have been commonplace in the past two decades. Stoddard and colleagues (2011) aptly point out that terrorism has dominated the domestic and international landscape since September 11, 2001 (­commonly called “9/11”).1 These terrorist acts significantly affect human lives and psychological well-being: “The mental health and behavioral health consequences of terrorism will be the most significant, long-term, and most costly effects of a terrorist attack,” far more than injuries or deaths.2 Thus the screening, diagnosis, and treatment of the victims of terrorism are great challenges for mental health professionals in the twenty-first century. Today two forms of terrorism are prominent: nationalist–­ separatist terrorism and religious-fundamentalist terrorism, especially radical Islamist terrorism. A recent event was the Boston Marathon bombings in April 2013, where three people died and others suffered heinous injuries (141 people). To date one terror suspect is in custody, and his brother was killed in a police shootout. Unlike other natural disasters such as tsunamis and earthquakes, the psychological consequences of terrorism appear to be more severe on account of their intentionality—they have been carried out through human agency and intended to cause mass casualties and terror. Psychiatrists have been involved in addressing the causes and consequences of, and the responses to, terrorism. There are implications for public health policy and education. For instance, in the wake of 9/11, the Institute of Medicine  (IOM) report entitled “Preparing for the Psychological Consequences of Terrorism: A Public Health Strategy” provided early guidance, using knowledge from disaster ­psychiatry.3 Stoddard and colleagues (2011) note that through training in psychological, biological, and social therapies, psychiatrists can bring a biopsychosocial perspective and may promote resilience and encourage individuals and families to take appropriate safety actions.1 The field  is replete with legal and ethical considerations,

for as these authors state: “This topic involves human rights, ­privacy, and cases of apparent violation of constitutional protections and of international laws established since World War II.” Defining terrorism is problematic; there are many definitions in the literature. Likewise, there does not seem to be a definitive profile of those who perpetrate these acts. Schmid (1983) found 109 academic definitions of terrorism.4 This fact suggests that there are roughly as many available definitions as there are published experts in the field. However, there are common elements. 1. Terrorism involves aggression against noncombatants. 2. Terrorist action in itself is not expected by the perpetrator to accomplish political goals but instead to influence a target audience and change that audience’s behavior in a way that would serve the interest of the terrorists.5,6 3. Its aim is to induce fear and anxiety in a target audience. Terrorists can be characterized across multiple variables: perpetrator number, sponsorship, relation to authority, m ­ ilitary status, spiritual motivation, political ideology, ­hierarchical role, willingness to die, and target methodology. The extant literature indicates that there is marked heterogeneity in terrorists’ temperament, ideology, thought processes, and cognitive capacities within political categories, hierarchical levels, and roles.7 Early studies from the 1960s and 1970s described the typical terrorist as a welleducated, single male in his mid-20s from a middle-class background. However, things changed in the 1980s with a quiescence of American terrorist groups, the decimation of European revolutionary anarchist Marxist groups, and the world profile rise of radical Islamic terrorists. In the 1980s the typical Palestinian terrorist was 17–23 years old, from a large family and an impoverished background, with low educational achievement.8 However, things changed 347

348 Terrorism

again in the 1990s and the turn of the twenty-first century. For example, the pilots who committed the 9/11 a­ trocities included the middle-aged, middle-class urban planner Mohammad Atta and the well-to-do Ziad Jarrah, a man from an affluent family who attended Christian schools and enjoyed discos and beer.9 Recently, women have been recruited as suicide bombers as a result of Al-Aqsa Martyr’s Brigade’s being associated with Yasser Arafat’s Fatah, the first secular group fighting Palestinian dependence, which permits females to participate.10 On balance the literature does not indicate that typical political violence is tied to poverty or to lack of education. Psychological data are sparser than socio-economic data, although several typical psychosocial characteristics were reported in the 1970s and 1980s. The American Psychiatrist David Hubbard (1971) reported five personality traits of skyjackers (violent alcoholic father; deeply religious mother; sexually shy, timid, and passive; youngest sister toward whom the terrorist acted protectively; and poor social achievement).11 Since 9/11 much of the attention has shifted to Islamic fundamentalist terrorism. However, there is a dearth of published literature describing the psychological traits of these Muslim extremists. Post, Sprinzak, and Denny conducted qualitative interviews with 35 incarcerated Middle Eastern extremists including 21 Islamic religious terrorists from Hamas and its armed wing Izz ad-Din al-Qassam, Islamic Jihad, and Hezbollah, as well as 14 secular terrorists from Fatah.12 Most of these terrorists had a high school education and came from respectable families. Thirty percent of families of religious terrorists and 15% of families of secular terrorists reported no radical involvement. Peer influence was cited as a major reason for joining a terrorist group; joining enhanced social standing. Membership was associated with fusion of the young adults’ individual identity with a group’s collective identity and goals. It is interesting to note that for most terrorists, prison experience strengthened the group’s commitments. Members of this group expressed anger and hatred without remorse, with little interest in obtaining weapons of mass destruction. However, this study may be flawed owing to its selection of subjects, the circumstances of the interviews, and the method of interviewing, which were not well described. In another study, psychiatrist Mark Sageman compiled data from public sources on 172 individuals who were members of a global Salafi Mujahideen, meaning Muslims who engage in terrorists acts against the far enemy in the service of the new Islamic world order. His sample included those involved in transnational terrorism.13 He was able to capture some fragment of childhood data in 61 cases. Only four terrorists had a history suggestive of conduct disorder. A minority had a history of petty crime. He examined detailed narratives of 10 cases and found no evidence of paranoid personality disorder or pathological narcissism. United Nations relief worker Nasra Hussan conducted unstructured interviews with nearly 250 members of Hamas or Islamic Jihad in Gaza between 1996 and 1999.

Suicide  bombers ranged from 18–38 years of age. More  than half were refugees, many were middle class, and two were sons of millionaires. None were depressed, although many reported that they had been tortured by Israeli forces. The foregoing studies do not suggest that there is one typical profile of terrorists, nor that psychological disorders are directly implicated.

PSYCHOLOGICAL THEORIES OF TERRORISM There are a myriad of problems in studying terrorism. Research may be expensive and inconvenient, and traveling to politically unstable regions that are potentially dangerous raises ethical issues. Funding has been a problem. There is a cultural divide that separates behavioral scientists from law enforcement intelligence and military personnel, who occupy an adversarial position. However, behavioral scientists should adopt the position of unbiased observers and interpreters of behavior.14 Terrorists are not one homogenous population. Therefore, theories that attempt to generalize and reduce the psychology of terrorism begin with a premise that is inconsistent with available observations, and studies based on such theories will produce results with limited predictive value because they convey data for mixed ­populations. Victoroff has provided an excellent discussion of the various theories of terrorism, and this chapter builds upon it.15 A full understanding of this complex phenomenon requires an interdisciplinary approach, incorporating knowledge from psychological, political, historical, cultural, economic, and religious perspectives. Therefore, it is probably better to speak of terrorisms and terrorist psychologies rather than searching for a unified theory to account for all terrorist activities. Each terrorist act has its own political, cultural, and historical background. Theories of terrorism include a broad range of sociological, psychological, and psychiatric approaches, but virtually none of them have been tested in a systematic way. They are overwhelmingly subjective and speculative, and derive from psychoanalytic hypotheses that are not amenable to testing. The available research is largely flawed, based on scientific methods using normed and validated measures of psychological status comparing direct examination of individuals with appropriate controls and testing hypotheses with accepted statistical methods. A number of psychological theories have been proposed to account for the performance of terrorists’ acts. These include (1) top-down approaches that see terrorism as based on political, social, economic, or even evolutionary circumstances and (2) bottom-up approaches exploring the characters of individuals and groups that turn to terrorism. There is much conceptual overlap between the theories, and no one theory completely explains terrorism in itself. Stoddard and colleagues argue for group, organizational, and social psychology, with a particular emphasis on “collective i­dentity” as providing the most

Religion and violence  349

powerful lens to understanding terrorist psychology and behavior.1 Terrorists have ­ subordinated their individual identities to the collective identity of their terrorist groups.16 Furthermore, the development of the terrorist identity must be seen in the context of the life cycle; indoctrination often starts early in childhood, and there is continuous reinforcement by extremist leaders who draw together frustrated and alienated individuals. This has significant implications for early interventions. The nature of those interventions is informed by study of the live history of terrorists, differentiating among terrorist types in general and groups in particular, and understanding each type of terrorism within its own particular cultural, historical, and political context.16 One theoretical perspective suggests that terrorists must be insane or psychopathic.17–20 In regard to Axis 1 (DSM-5) clinical diagnoses, very little research has been done involving comprehensive psychiatric examination, and there is no properly controlled research in the open literature. The conclusion on the basis of uncontrolled empirical psychological studies of left-wing German militants, the Algerian Front de Liberation Nationale, the Irish Republican Army, and Hezbollah, has been that terrorists do not demonstrate Axis 1 or Axis 2 of psychiatric disorders.21,22 In a similar way, Stoddard’s team note: “Indeed, it is not going too far to assert that terrorists are psychologically ‘normal’ in the sense of not being clinically psychotic.”1 Post Sprinzak and Denny found no Axis  1 disorders on psychiatric evaluation of 21 secular and 14 radical Islamic Middle Eastern terrorists.12 Most of the literature that attributes mental disorder to terrorists focuses on psychopathy or sociopathy. Cooper (1977–1978) describes terrorists as ruthless outlaws and outcasts who adhere to an anomalous scheme of values out of tune with the rest of society.18 Pearce pointed out that terrorists were sociopaths acting antisocially as a result of superego lacunae, meaning gaps in self-monitoring.19 However, there is some debate whether terrorism is antisocial or prosocial. There is extensive evidence supporting the fact that terrorists, far from being outcasts, are often regarded as in-groups of heroic freedom fighters. It does appear that many terrorists act in a prosocial manner, believing themselves to be serving society and judged by their in-group to be acting in its interests. There are many other theories of terrorism, including rational choice theory;23 social learning theory;24 frustration aggression hypothesis;25 relative deprivation theory;26 oppression theory, which argues that oppression provokes political violence;27 and various psychological theories based on psychoanalysis.28 Psychiatrist Reich has warned that psychological accounts of terrorism are replete with explanations that ignore or blur the variety and complexity of these acts and are a product of loose and weak thinking, disregard the need for evidence, and have the unfortunate endemic in so many areas of psychological discourse of applying a single idea to everything. To date these theories have had little impact on security measures.29

RELIGION AND VIOLENCE In the minds of the lay public (and many academics), ­religion and violence are closely tied together. There have been many reports of religious-based terrorism at work among Hindu militants, Jewish movements in Israel, Sikh extremists in India, and modern-day Islamic suicide ­bombings. Most religions condone violence, but there are certain exceptions. Overall, religious violence occurs for a very large number of ideological reasons and is generally only one of a number of underlying social and political issues that lead to the unrest in question. How is religion related to violence? First, religions sometimes use war, violence, and terrorism to promote their religious goals. Second, religious leaders contribute to secular wars and terrorism by endorsing or supporting the violence. Finally, religious beliefs are further exploited by secular leaders to support war and terrorism. Jugersmeyer argues that narratives of martyrdom, sacrifice, and conquest inform the notion of cosmic war, which provides a script played out in the performative violence.30 For religious terrorists, one of the goals isn’t so much to terrorize people but rather to create symbols of a larger, grander, even cosmic struggle of God against Evil. Religious violence is predominantly symbolic in nature and consists of gestures toward an infinite horizon of meaning beyond the immediate strategic or practical considerations of the present battle. For instance, Jugersmeyer argues that the Palestinian conflict is conceived as something larger than a contest between Arabs and Jews; it is a cosmic struggle of Manichaean proportions.30 A formidable subset of modern movements, groups, and organizations vying for cultural influence, social capital, or political power display a pronounced religious dimension. Many of them are fundamentalists in that they take their religious teachings quite literally. However, the literature is divided on whether fundamentalists are more likely to play violently than other religious groups. Fundamentalists embrace absolutism and dualism as tactics of resistance. They attempt to project the holy book or tradition from the deprecations of historical literature or scientific criticism. The truth revealed in these scriptures is absolute, not contingent. Strozier, Terman, and Jones argue that fundamentalists suffer from a particular mindset that consists of distinctive characteristics: dualistic thinking; paranoia and rage in a group context; an apocalyptic orientation that incorporates distinct perspectives on time, death and violence; a relationship to charismatic leadership; and a totalized conversion experience. 31 Because of their extreme views, fundamentalists make reluctant peacemakers. Suicide terrorism can be seen as a function of a culture of martyrdom, an organizational decision to use this tactic, and a supply of recruits willing to give their lives in a “martyrdom operation” for the cause.32 In terms of suicide bombing, there are perceived grievances in play to explain the decision to use this tactic. Hamas and other Islamist Palestinian groups have a clear Islamic identity. Their goal

350 Terrorism

is to establish an Islamist state in the West Bank in Gaza, which cannot be divorced from the political conflict in Israel and Palestine from which it springs. Robert Pape, who has comprehensively studied patterns in suicide terrorism, points out that while individual attackers may be motivated by religion, groups have strategic military goals.33 His book, Dying to Win: Strategic Logic of Suicide Terrorism, analyzes suicide bombing from a psychological and social point of view and derives from a database at the University of Chicago. He concludes that suicide attackers are rarely socially isolated, clinically insane, or economically destitute individuals. Most often they are educated, socially integrated, highly capable people who could be expected to have a good future. A recently published paper by Alberto Abadie, a professor of public policy at Harvard, argues against the widely held belief that terrorism stems from poverty, finding instead that terrorist violence is related to a nation’s level of political freedom. Intermediate levels of political freedom are often experienced during times of political transitions with weak governments, where political instabilities are elevated and conditions are favorable for the appearance of terrorism.34 Suicide bombing results from an imbalance of power. Groups with little significant power resort to suicide bombings as a convenient tactic to demoralize the targeted civilians or government leadership of their enemies. Pape argues that suicide attacks are often provoked by political occupation.33 Although some Muslims argue that suicide bombing is Islamically mandated, multiple Western and Muslim scholars have pointed out suicide attacks that were in clear violation of classical Islamic law, and characterize such attacks against civilians as murderous and sinful. For many, such as Bernard Lewis, the development of suicide bombing has no antecedents in Islamic history and is a new development of the twentieth century. There is no evidence that suicide bombers suffer from psychopathology. Since1993, attempts have been made to portray Palestinian Arab perpetrators of suicide bombings as desperate individuals coping with difficult a situation, in effect transforming attackers into victims and diminishing the impact of one’s revulsion at such attacks. Individual psychopathology or personal feelings do not appear to play a significant role. It is actually group dynamics that reinforce behavior in a Palestinian and Arab culture, where suicide bombers are viewed as heroes, their faces are prominently displayed on public posters, and their families are showered with respect and financial reward.

CONCLUSION: THE ROLE OF PSYCHIATRIC INTERVENTIONS Terrorism is a complex phenomenon that can only be understood from a multidisciplinary perspective. Psychiatrists may be involved in clinical evaluation and interventions, and public health programs can contribute to the care of people who develop mental health disorders in the aftermath, as well as those who suffer from preexisting mental

health problems or disorders whose conditions may have been exacerbated. Each phase of the terrorist cycle is a potential focus for intervention. Such interventions need to start early in childhood to prevent the formation of the terrorist identity. As Stoddard and colleagues note, psychiatric interventions involve modifications of both old and new roles, including outreach to one’s own patients, liaison with primary care, and consultation with community leaders and clinical services at attack sites, hospitals, morgues, and service agencies.1 The elements of a response strategy are to (1) refine methods of screening for somatic and psychosocial suffering and early interventions, (2) provide education and training in psychotherapies to reduce the acute and longterm impact of mental disorders, (3) train psychiatric leaders to consult with and assist public officials and to assist in policy formulation, and (4) develop expertise to counter the terrorists’ use of the media and the Internet as psychological and strategic warfare.

REFERENCES 1. Stoddard FJ Jr, Gold J, Henderson SW, Merlino JP, Norwood A, Post JM, et al. Psychiatry and terrorism. Journal of Nervous and Mental Disease. 2011 Aug; 199(8): 537–43. 2. Ursano RJ, Friedman MJ. Mental Health and Behavioral Interventions for Victims of Disasters and Mass Violence Systems: Caring, Planning, and Needs. In: Interventions Following Mass Violence and Disasters: Strategies for Mental Health Practice. Eds. Ritchie EC, Watson PJ, Friedman MJ. New York: The Guilford Press, 2006: 405. 3. Butler AS, Panzer AM, Goldfrank LR, Committee on Responding to the Psychological Consequences of Terrorism Board on Neuroscience and Behavioral Health, Institute of Medicine, eds. Preparing for the Psychological Consequences of Terrorism. A Public Health Strategy. Washington, DC: The National Academy of Sciences Institute of Medicine, 2003. 4. Schmid, A. Political Terrorism: A Research Guide to the Concepts, Theories, Databases and Literature. With a Bibliography by the Author and a World Directory of “Terrorist” Organizations by AJ Jongman. Amsterdam: North Holland, 1983. 5. Laqueur W. The Age of Terrorism. Boston: Little, Brown, 1987. 6. Badey TJ. Defining international terrorism: A pragmatic approach. Terrorism and Political Violence. 10: 90–107. 7. Taylor M, Ryan H. Fanaticism, political suicide and terrorism. Terrorism. 1998; 1: 91–111. 8. Strentz T. A terrorist psychosocial profile: Past and present. FBI Law Enforcement Bulletin. 1988; 57: 13–19. 9. Laabs D, McDermott T. Prelude to 9/11: A hijacker’s love, lies. Los Angeles Times, January 27, 2003, 1.

References 351

10. Wilkinson T. End of the line for a “martyr.” Los Angeles Times, December 31, 2002: 1. 11. Hubbard DG. The Skyjacker: His Flights of Fantasy. New York: Macmillan, 1971. 12. Post JM, Sprinzak E, Denny LM. The terrorists in their own words: Interviews with thirty-five incarcerated Middle Eastern terrorists. Terrorism and Political Violence. 2003; 5: 171–84. 13. Sageman M. Understanding Terror Networks. Philadelphia: University of Pennsylvania Press, 2004. 14. Soskis D. Law Enforcement and Psychiatry: Forging the Working Alliance. In: Terrorism: Interdisciplinary Perspectives. Eds. Eichelman B, Soskis D, Reid W. Washington, DC: American Psychiatric Association, 129–45. 15. Victoroff J. The mind of the terrorist: A review and critique of psychological approaches. Journal of Conflict Resolution. 2005; 49: 3–42. 16. Post J. The Mind of the Terrorist: The Psychology of Terrorism from the IRA to Al-Quaeda. New York: Palgrave-MacMillan, 2007. 17. Hacker FJ. Crusaders, Criminals, Crazies: Terror and Terrorism in Our Time. New York: Norton, 1976. 18. Cooper HHA. What is a terrorist: A psychological perspective. Legal Medical Quarterly. 1977; 1: 16–32. 19. Pearce KI. Police negotiations. Canadian Psychiatric Association Journal. 1977; 22: 171–74. 20. Taylor M, Ryan H. Fanaticism, political suicide and terrorism. Terrorism. 1988; 1: 91–111. 21. Merari A, Friedland N. Social psychological aspects of political terrorism. Applied Social Psychology Annual. 1985; 6: 185–205. 22. Crenshaw M. The causes of terrorism. Comparative Politics. 1981; 13: 379–99. 23. Sandler T, Tschirhart JT, Cauley J. A theoretical analysis of transnational terrorism. American Political Science Review. 1983; 77: 36–54.

24. Bandura A. Aggression: A Social Learning Analysis. New York: Prentice Hall, 1973. 25. Davies JC. Aggression, Violence, Revolution and War. In: Handbook of Political Psychology. Ed. Knutsen JN. San Francisco: Jossey-Bass, 1973: 234–60. 26. Gurr T. Why Men Rebel. Princeton, NJ: Princeton University Press, 1970. 27. Fanon F. The Wretched of the Earth. New York: Pelican, 1965. Reprint of Les damnes de la terre (Paris, 1961). 28. Gabbard GO. Psychoanalysis. In: Kaplan and Sadock’s Comprehensive Textbook of Psychiatry. 7th ed. Eds. Sadock BJ, Sadock VA. Philadelphia: Lippincott Williams & Wilkins, 2000: 563–607. 29. Reich W. Understanding Terrorist Behavior: The Limits and Opportunities of Psychological Inquiry. In: Origins of Terrorism: Psychologies, Ideologies, Theologies, States of Mind. Ed. Reich W. Washington, DC: Woodrow Wilson Center Press, 1998: 261–79. 30. Juergensmeyer, M. Terror in the Mind of God. Berkeley: University of California Press, 2000. 31. Strozier C, Terman D, Jones J, Boyd KA. The Fundamentalist Mindset: Psychological Perspectives on Religion, Violence, and History. New York: Oxford University Press, 2010. 32. Mohammed Hafez. Dying to Be Martyrs: The Symbolic Dimension of Suicide Terrorism. In: Root Causes of Suicide Terrorism: The Globalization of Martyrdom. Ed. Pedahzur A. London: Routledge, 2006: 54–80. 33. Pape R. Dying to Win: The Strategic Logic of Suicide Terrorism. New York: Random House, 2005. 34. Abadie A. Poverty, political freedom, and the roots of terrorism. American Economic Review. 2006; 96(2): 50–56.

48 Morbid jealousy PREETI CHHABRA Definition 353 Morbid or normal jealousy? 353 Psychopathology 354 Distinguishing between delusions, overvalued ideas, and obsessions 354 Delusions 354 Overvalued ideas 354 Obsessions 354 Epidemiology 354 Cultural factors 355 Theories of development 355 Psychodynamic 355 Cognitive 355

Neurobiology 355 Associations 355 Alcohol abuse 355 Drug abuse 355 355 Sexual dysfunction Risk 355 355 Violence risk Suicide risk 356 Assessment 356 356 Treatment and risk management Summary 356 References 357

DEFINITION

person with morbid jealousy forms his or her beliefs about a partner’s infidelity based on inadequate, incorrect, or irrelevant evidence and responds to such evidence in a disproportionate or irrational manner. Paul Mullen has identified four key features of morbid jealousy that distinguish the disorder from normal jealousy:3

Morbid jealousy describes a range of irrational thoughts and emotions, together with associated unacceptable and extreme behavior, in which the dominant theme is preoccupation with a partner’s sexual unfaithfulness based on unfounded evidence.1 Morbid jealousy has been referred to as the Othello syndrome after the main character in Shakespeare’s play The  Tragedy of Othello, the Moor of Venice, who displayed irrational jealousy toward his perceived love rivals. Other terms for morbid jealousy include pathological jealousy, delusional jealousy, and obsessional jealousy. However, despite these different terms used commonly to describe the construct, it is important to recognize that morbid jealousy is a broad term. Its clinical presentation can take the form of many different symptoms, such as delusions, overvalued ideas, and obsessions. Furthermore, it can result from different psychiatric disorders.2

MORBID OR NORMAL JEALOUSY? Jealousy is a normal human emotion, common to all cultures, involving feelings of resentment toward a person one thinks of as a rival. Morbid jealousy has key features that distinguish it from this normal emotion. Significantly, the

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An underlying mental disorder emerges before or with the jealousy. Features of the underlying disorder coexist with the jealousy. The course of the jealousy closely relates to the underlying disorder. The jealousy has no basis in reality.

However, in relation to the last point, it has been argued4 that individuals may suffer from morbid jealousy even when their partner is being unfaithful, provided that the evidence that they cite for unfaithfulness is incorrect and the response to such evidence on the part of the accuser is excessive or irrational. Some have argued5 that there is continuity between normal and morbid jealousy, and that from an evolutionary psychological perspective, individuals have hypersensitive jealousy mechanisms that cause them to have irrational 353

354  Morbid jealousy

thoughts about their partner’s fidelity and to exhibit extreme behaviors. Easton and colleagues tested evolutionarily informed hypotheses on a novel population of individuals diagnosed with morbid jealousy. They hypothesized that a greater percentage of men than women diagnosed with morbid jealousy would be focused on a partner’s sexual infidelity and on indicators of a rival’s status. They also hypothesized that a greater percentage of women than men diagnosed with morbid jealousy would be focused on a partner’s emotional infidelity and on indicators of a rival’s youth and physical attractiveness. They found that all their evolutionarily informed hypotheses were supported when applied to a population of individuals with morbid jealousy, suggesting that there is continuity between normal and morbid jealousy.

PSYCHOPATHOLOGY The key clinical feature of morbid jealousy is the person’s irrational preoccupation with his or her partner’s sexual infidelity. However, morbid jealousy can take the form of different symptoms, the most common of which are delusions, overvalued ideas, and obsessions. The value of distinguishing between these is that, in conjunction with other information from the psychiatric history, it may assist the assessing psychiatrist in diagnosing the underlying mental disorder and therefore inform treatment decisions. Delusional jealousy is a psychotic disorder, and the pharmacological treatment of choice is usually antipsychotic medication. Obsessive jealousy, by contrast, more closely resembles obsessive–compulsive disorder, and treatment choices include selective serotonin reuptake inhibitor (SSRI) medication and cognitive behavioral therapy.

DISTINGUISHING BETWEEN DELUSIONS, OVERVALUED IDEAS, AND OBSESSIONS Delusions Delusions are characteristically the individual’s own thought, ego-syntonic, regarded as true, and not resisted. Delusions of morbid jealousy may present as part of a ­ schizophrenic illness, most commonly paranoid ­schizophrenia. In such cases, bizarre associations are characteristically made. These delusions may be accompanied by other symptoms, such as bizarre thought content and behavior, other types of delusions, hallucinations, and formal thought disorder. Where such delusions of infidelity are the only presenting feature, a delusional disorder is likely. In both the major classification systems for mental disorders, DSM-IV and ICD-10, delusional jealousy is described as a subtype of delusional disorder. In such cases, the delusions of infidelity are typically expressed in a more coherent and plausible manner than in schizophrenia. Further, memories are revised and reinterpreted and the partner’s present actions are misinterpreted to produce an absolute conviction of repeated betrayal.6

Typically, subjects accuse their partner of infidelity and keep trying to confirm their suspicions. They may, for example, examine bed linen and underwear for seminal stains and even the genitals of their partner for additional evidence. Suspicions, interpretations, and searching for proof can cause significant distress in a relationship and carry a significant risk of abuse (physical, sexual, and emotional), as well as suicide and homicide.7 Although delusions of morbid jealousy most commonly occur in schizophrenia and delusional disorder, they can also occur in affective disorders such as depression and organic brain disorders.8

Overvalued ideas Like delusions, overvalued ideas are the individual’s own thought, ego-syntonic, and not resisted. Unlike in delusions, overvalued ideas are amenable to reason (to varying degrees) and are not held as such firm convictions in the absence of inadequate evidence or in spite of contrary evidence. Overvalued ideas of morbid jealousy may occur in paranoid personality disorder, as described by both the ICD-10 and DSM-IV classification systems.

Obsessions Individuals with obsessional jealousy suffer from unpleasant and irrational obsessional ruminations that the partner could be unfaithful, accompanied by compulsive checking of the partners’ behavior. This jealousy resembles ­obsessive– compulsive phenomenology more closely.9 Typically, the sufferer is afraid of losing the partner to a potential rival, and fears that the partner will leave him or her. Obsessive suspicions take the form of jealous ruminations and ­ unwelcome, unpleasant, repetitive, intrusive, or irrational thoughts recognized by the individual as ego-dystonic,10 followed by the compulsive rituals of checking or seeking reassurance from the partner.11,12 Unlike delusional jealousy, the obsessively jealous person knows that he or she does not have evidence of unfaithfulness but cannot stop the intrusive thoughts and checking behavior. Symptoms are ego-dystonic: the individual is distressed and recognizes the jealousy as unacceptable, alien, and shameful. Lane13 argues that ego-dystonicity varies in patients and they, like obsessive–compulsive patients, would view their preoccupation as realistic if their compulsions were prevented.

EPIDEMIOLOGY According to the American Psychiatric Association (2000),14 the delusional disorder jealous type has a prevalence of less than 1% in the general population. Soyka and Schmidt,15 in a large retrospective hospital survey among hospital inpatients admitted to a German psychiatric hospital (Psychiatric Hospital, University of Munich) from 2000 to 2008 (n=14,309), identified 72 cases

Risk 355

of delusional jealousy, equating to 0.5% of the whole sample. The prevalence was highest in schizophrenia and other psychoses (1.3%), and more of the patients with delusional jealousy were men (59.7%). They concluded that delusional jealousy is a comparatively rare phenomenon that is most frequent in schizophrenia and related psychoses.

CULTURAL FACTORS The literature on morbid jealousy suggests that culture may have a role in its expression and clinical manifestation. De Silva and De Silva,16 for example, describe clinical manifestations of a consecutive series of morbid jealousy cases presenting in Sri Lanka and how these are influenced by local cultural factors. Further, it has been suggested17 that some societies are less prone to jealousy because they place less value on the exclusive ownership of a partner.

THEORIES OF DEVELOPMENT Psychodynamic The oldest theories for the development of morbid jealousy are psychodynamic, and various psychodynamic mechanisms have been proposed. For example, Freud considered that delusional jealousy represented projected latent homosexuality.18 Klein described morbid jealousy in terms of the Oedipus complex, referring to the rivalry between the son (the individual with morbid jealousy) and the father (his perceived rival).19 Attachment theory has also been used to explain morbid jealousy. It has been speculated that insecurely attached individuals may be at increased risk of becoming anxious about their partner’s attachment to them.4 It is noteworthy that an insecure attachment style is a common feature of borderline personality disorder.

Cognitive A cognitive-behavioral formulation of morbid jealousy has been described. Tarrier and colleagues12 proposed that individuals with morbid jealousy tend to make systematic distortions and errors in their perceptions and interpretations of events and information, so that a precipitating event gives rise to faulty assumptions and provokes morbid jealousy. A study by Dolan and Bishay20 evaluated the effectiveness of treating nonpsychotic morbid jealousy using a cognitive approach in 30 individuals with morbid jealousy. Treatment was given with a schema-focused treatment package, aiming to modify their dysfunctional cognitive schema. The study found that this treatment was effective in the majority of cases, resulting in a significant reduction in all measures of disturbance of the jealousy syndrome that were measured.

Neurobiology Marazziti and colleagues,21 after reviewing the neurochemical and neuroanatomical bases of jealousy, concluded

that the available data suggest the role of altered dopaminergic frontostriatal circuits, ventromedial prefrontal cortex, insula and related functions of reward processing, ­mentalizing, and self-related processing in feelings of jealousy and its delusional form. In a retrospective case series documenting the clinical and imaging features of 105 patients with Othello syndrome in the Mayo Clinic, Graff-Radford22 and colleagues demonstrated that Othello syndrome was associated with dysfunction of the frontal lobes, especially the right frontal lobe.

ASSOCIATIONS Alcohol abuse Alcohol abuse is significantly associated with morbid jealousy, and this association is well recognized. Michael and colleagues23 reported a prevalence ranging from 27% to 41%. As Kingham and Gordon4 point out, some authors consider that alcohol exacerbates existing morbid jealousy but is rarely a primary cause.2,11,24 However, this is disputed by Michael and colleagues,23 who described the majority of male subjects in their study as developing morbid jealousy following, and presumably secondary to, alcohol dependence.

Drug abuse The association between morbid jealousy and drug abuse is less well established, though some authors have commented on the link between psychostimulants such as amphetamine and cocaine and the development of morbid jealousy.2,4,11 Various case reports appear in the literature.

Sexual dysfunction It has been suggested that morbid jealousy may be associated with reduced sexual function,11,25 and there are several case reports. Mendhekar and Srivastav26 reported a case of morbid jealousy with sexual dysfunction in a middle-aged man, in which both the sexual function and the morbid jealousy responded well to sildenafil. This would suggest that sildenafil may be useful therapeutically in cases where morbid jealousy may be secondary to sexual dysfunction.

RISK Violence risk There is a higher risk of violence by the morbidly jealous individual toward his or her partner, and victims of homicide are most likely to be current or ex-partners.3 Mullen and Maack8 found in their UK case series study that more than half of morbidly jealous individuals had physically assaulted their partner, though in that study none of them had come to the attention of the criminal justice system. They also found that morbidly jealous men were more likely

356  Morbid jealousy

to attack their partners than morbidly jealous women and tended to inflict more serious injuries than them. The partner of the morbidly jealous individual is not only at greater risk of physical violence from that individual. The partner is also at risk of developing a mental disorder, including anxiety or depression, or may turn to substance abuse. Risks to others from morbidly jealous individuals are not, however, limited to their partners. Children in the household may witness arguments and physical violence between their parents or may suffer emotional and physical abuse as a result of the actions of a morbidly jealous parent.

Suicide risk There is a recognized association between morbid jealousy and suicidal ideation. In a UK population, Mooney27 found that 20% of morbidly jealous individuals had made suicide attempts.

A mental state examination should aim to establish the form of morbid jealousy and any associated psychopathology Risk assessment should be comprehensive and should include: ●● ●●

●● ●● ●●

TREATMENT AND RISK MANAGEMENT The principles of management of morbid jealousy are: ●● ●●

ASSESSMENT The morbidly jealous individual requires a careful and comprehensive psychiatric and risk assessment. If possible, both partners should be interviewed separately and, if it is judged likely to be safe and useful, together. Psychiatric history should include: ●●

●● ●●

●● ●●

Presenting complaint and history of presenting complaint ●● The nature of the jealous ideas and behaviors, their onset, course, and any trigger factors ●● Whether the jealousy is likely to be normal in that situation, supported by plausible evidence, or whether it is excessive, irrational, and therefore likely to be morbid ●● If morbid jealousy is likely, whether delusions, overvalued ideas, or obsessive–compulsive symptoms predominate ●● Any evidence of mental illness, and if so, any association between the mental illness and the jealousy ●● Details of any confirmatory behaviors by the morbidly jealous individual, such as interrogation of the partner, repeated phone calls, stalking behavior, surveillance of the partner, and searching of his or her clothes and possessions for evidence of infidelity ●● Quality of the relationship with the partner and any threatened or actual violence Past psychiatric history Past medical history should include consideration of an organic disorder, such as dementia, stroke, or other causes of organic brain injury History of substance abuse, past and present Forensic history, including any history or threats of domestic or interpersonal violence, including risk to third parties (e.g., perceived love rival) regardless of whether these have come to the attention of the criminal justice system

Risk to self (e.g., of suicide) Risk of violence to others, including to partner and perceived rival Risks to any children Risk of substance abuse and associated risks Risks to the mental and physical health of the subject, his or her partner, and relevant others

Treat the underlying mental disorder(s) Risk management

Treatment of choice will depend on the nature of the underlying mental disorder. Delusions of infidelity, in the context of delusional disorder or schizophrenia, may respond to antipsychotic medication.27,28 Antipsychotic medication may also be an appropriate treatment choice for overvalued ideas. Obsessional jealousy may respond to SSRI antidepressant medication.13,29–30 Cognitive behavioral therapy is effective in morbid jealousy, mainly when obsessions are prominent.11,20,31 Substance abuse and comorbid mental disorders including organic pathology should be managed and, as far as possible, treated. Admission to a hospital should be considered and may be necessary depending on the severity of the mental disorder and the nature and degree of risk to the individual and others. The prognosis of the morbidly jealous individual will depend largely on the nature and severity of the underlying mental disorders and any comorbid conditions. Following a careful risk assessment as described earlier, risks to the individual and to others, such as the partner, must be managed. Depending on the nature and degree of the risks, hospital admission of the subject or geographical separation of the partners may be necessary. Where there are children involved, child protection procedures will need to be followed. Where the partner is a victim of domestic abuse or harassment, appropriate involvement of relevant social care agencies and of the criminal justice system should be considered among other measures to protect the victim.

SUMMARY Morbid jealousy encompasses a range of psychopathologies that can have various causes, in which the key feature is irrational thoughts and emotions and extreme behavior in an individual regarding a partner’s sexual unfaithfulness,

References 357

which occurs in the absence of supporting evidence. It can result in significant distress, and risk, both to the individual and others, particularly the partner and the perceived rival. Management requires careful assessment of the underlying mental disorders and the risks involved, with treatment and interventions tailored to treat the underlying mental disorder and to manage the individual’s risk profile.

REFERENCES 1. Cobb J. Morbid jealousy. British Journal of Hospital Medicine. 1979; 21: 511–8. 2. Shepherd M. Morbid jealousy: Some clinical and social aspects of a psychiatric symptom. Journal of Mental Science. 1961; 107: 688–704. 3. Mullen PE. Morbid Jealousy and the Delusion of Infidelity. In: Principles and Practice of Forensic Psychiatry. Eds. Bluglass R, Bowden P. London: Churchill Livingstone, 1990: 823–4. 4. Kingham M, Gordon, H. Aspects of morbid jealousy. Advances in Psychiatric Treatment. 2004; 10: 207–15. 5. Easton J, Schipper L, Shackelford T. Morbid jealousy from an evolutionary psychological perspective. Evolution and Human Behaviour. 2007; 28(6): 399–402. 6. Mullen PE. Jealousy: The pathology of passion. British Journal of Psychiatry. 1991; 158: 593–601. 7. Muzinic L, Goreta N, Jukic V, Djordjevic V, Koic E, Herceg M. Forensic importance of jealousy. Collegium Antropologicum. 2003; 27: 293–300. 8. Mullen PE, Maack LH. Jealousy, Pathological Jealousy and Aggression. In: Aggression and Dangerousness. Eds. Farrington DP, Gunn J. New York: Wiley, 1985; 103–26. 9. Batinic, Borjanka, Dragana Duisin, and Jasmina Barisic. Obsessive versus delusional jealousy. Psychiatria Danubina. 2013; 25(3): 1–339. 10. Hoaken PCS. Jealousy as a symptom of psyc­hiatric disorder. Australian & New Zealand Journal of Psychiatry. 1976; 10: 47–51. 11. Cobb JP, Marks IM. Morbid jealousy featuring as obsessive-compulsive neurosis: Treatment by behavioural psychotherapy. British Journal of Psychiatry. 1979; 134: 301–5. 12. Tarrier N, Beckett R, Harwood S, Bishay N. Morbid jealousy: A review and cognitive-behavioural formulation. British Journal of Psychiatry. 1990; 157: 319–26. 13. Lane RD. Successful fluoxetine treatment of pathological jealousy. Journal of Clinical Psychiatry. 1990; 51: 345–6. 14. American Psychiatric Association. Diagnostic and Statistical Manual of Mental Disorders. 4th ed., text revised. (DSM-IV) Washington, DC: American Psychiatric Association, 2000.

15. Soyka M, Schmidt P. Prevalence of delusional jealousy in psychiatric disorders. Journal of Forensic Science. 2011 Mar; 56(2): 450–2. 16. De Silva D, De Silva P. Morbid jealousy in an Asian country: A clinical exploration from Sri Lanka. International Review of Psychiatry. 1999; 11(2–3): 116–21. 17. Bhugra, Dinesh. Cross-cultural aspects of jealousy. International Review of Psychiatry. 1993; 5(2–3): 271–80. 18. Freud, S. Some Neurotic Mechanisms in Jealousy, Paranoia and Homosexuality. Reprinted (1953–1974) in the Standard Edition of the Complete Psychological Works of Sigmund Freud. Vol. XVIII. Ed. Strachey J. London: Hogarth Press, 1922. 19. Klein M. Envy and Gratitude. In: The Writings of Melanie Klein, Vol. 3. London: Hogarth Press, 1957: 176–235. 20. Dolan M, Bishay N. The effectiveness of cognitive therapy in the treatment of non-psychotic morbid jealousy. British Journal of Psychiatry. 1996; 168: 588–93. 21. Marazziti D, Poletti M, Dell’Osso L, Baroni S, Bonuccelli U. CNS Spectrums. 2012; 1–9. 22. Graff-Radford J, Whitwell JL, Geda YE, Josephs KA. Clinical and imaging features of Othello’s syndrome. European Journal of Neurology. 2012; 19(1): 38–46. 23. Michael A, Mirza S, Mirza KAH, et al. Morbid jealousy in alcoholism. British Journal of Psychiatry. 1995; 167: 668–72. 24. Langfeldt G. The erotic jealousy syndrome: A clinical study. Acta Psychiatrica Scandinavica. 1961; 36(suppl 151): 7–68. 25. Todd J, Mackie JRM, Dewhurst K. Real or imagined hypophallism: A cause of inferiority feelings and morbid sexual jealousy. British Journal of Psychiatry. 1971; 119: 315–8. 26. Mendhekar DN, Srivastav PK. Sildenafil and morbid jealousy. Indian Journal of Pharmacology. 2004; 36: 104–5. 27. Mooney HB. Pathological jealousy and psychochemotherapy. British Journal of Psychiatry. 1965; 111: 1023–42. 28. Byrne A, Yatham LN. Pimozide in pathological jealousy. British Journal of Psychiatry. 1989; 155: 386–9. 29. Gross MD. Treatment of morbid jealousy by fluoxetine. American Journal of Psychiatry. 1991; 148, 683–4. 30. Stein DJ, Hollander E, Josephson SC. Serotonin uptake blockers for the treatment of obsessional jealousy. Journal of Clinical Psychiatry. 1994; 55: 30–3. 31. Bishay NR, Peterson N, Tarrier N. An uncontrolled study of cognitive therapy for morbid jealousy. British Journal of Psychiatry. 1989; 154: 386–9.

49 Erotomania ROBIN P. D. MENZIES Clinical aspects 359 Forensic considerations 360 Stalking 361 Risk of violence 361

Victims 362 362 Treatment and management Conclusion 362 References 362

Dear Joe, I feel happiness running through me like an electrical current. I close my eyes and see you as you were last night in the rain, across the road from me, with the unspoken love between us as strong as steel cable. I close my eyes and thank God out loud for letting you exist, for letting me exist in the same time and place as you, and for letting this strange adventure between us begin.1

general are estimated to be around 0.03%.4 Erotomania is thought to be the rarest delusional disorder, particularly in men. Male erotomania predominates in forensic settings, whereas female erotomania is identified more frequently in clinical settings.4 Fifteen cases of primary and secondary erotomania, 11 female and four male, were identified in a geographical catchment area of 400,000 people in Ireland.8 A retrospective study found erotomanic delusions present in nearly 2% of all male forensic admissions to a secure psychiatric hospital with a diagnosis of psychosis and in just more than 3% of male patients admitted to a community psychiatric hospital with a diagnosis of delusional disorder.9 Erotomania often leads to stalking behavior and the attention of the criminal justice system, particularly when the individual is male. In forensic settings it must be distinguished from other types of stalking so that suitable management can be provided and the degree of risk posed to the victim can be accurately assessed. It is a psychotic condition, so fitness to plead and criminal responsibility may also need to be addressed.

—Ian McEwan, Enduring Love (1998) Erotomania assumed its current meaning and its delusional status early in the twentieth century after being synonymous with other phenomena such as “unrequited love” and “the practice of excessive love” over the preceding m ­ illennia.2 Clinical descriptions appeared emphasizing the patients’ ­delusional belief that the object of their morbid attention was in love with them. The work of de Clerambault and his descriptions of “psychoses passionelles” was particularly influential.3 Erotomanic delusions may be an isolated symptom, ­primary or pure erotomania, and classified as a delusional disorder according to the DSM-IV.4 Erotomania may  also occur as secondary or symptomatic erotomania as part of more extensive psychopathology in various mental  disorders, such as schizophrenia, mood disorder,  or organic brain disease. It has been described in both heterosexual and homosexual forms, male5 and female.6 Comorbidity with other rare psychotic conditions has been reported, particularly with the delusional misidentification syndromes, including Fregoli’s syndrome.7 More  cases of secondary than primary erotomania have been described, usually in the context of a schizophrenic illness. The incidence of primary erotomania is unknown. Population prevalence rates for delusional disorder in

CLINICAL ASPECTS The cardinal feature of this disorder is the delusional belief of being loved by someone, the object, who is usually unattainable because of higher social or financial status. The sufferer exhibits paradoxical conduct, the ability to interpret all evidence to the contrary as confirmation of his or her belief, for example, the denial of any romantic interest by the object of the delusional interest. Usually, the afflicted individual maintains the hopeless idea that the desired relationship will prevail. Sometimes the sufferer’s affections may wane, but those desires attributed to the object remain steadfast. The course tends to be unremitting, and 359

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the sustained efforts to contact or meet the supposed lover may result in significant distress for the object of the pathological pursuit whether or not violence occurs. Erotomanic attention may involve a single delusional object or several, either concurrently or consecutively. The following cases illustrate some variants of the condition.

FORENSIC CONSIDERATIONS Despite the current limits in understanding the risk posed by erotomanic stalkers, a comprehensive risk assessment is mandatory. The following points address important areas to consider.

CASE 1:  SECONDARY EROTOMANIA WITH MULTIPLE CONCURRENT DELUSIONAL OBJECTS, FREGOLI’S SYNDROME, PARANOID SCHIZOPHRENIA, AND ANTISOCIAL PERSONALITY DISORDER A 29-year-old single unemployed man was remanded to a secure psychiatric hospital on charges of assault unrelated to his erotomanic delusions. The man, a recent immigrant, believed the charges were the result of an elaborate conspiracy orchestrated by the department of immigration and a local TV station; furthermore, he knew these machinations were designed to keep him from his “girlfriend.” Although he had only met this woman briefly on three occasions over the preceding 18 months, he was convinced that she was in love with him. He had dreamt about her before immigrating and could communicate with her in some inexplicable fashion. He had “overheard” her tell a friend that she loved him but would not date him until he had a job. He pestered her at the bank where she worked and later was told that she had moved to a different city. He did not accept this, blaming these agencies for interfering and for controlling his actions in some mysterious way. After several months of treatment with various antipsychotic medicines, his delusions became less prominent; ­however, this modest improvement did not prevent further hospital admissions. He continued to harbor the original erotomanic delusion and went on to claim that he was married to a number of women, including a famous singer. He knew that a local immigration worker was actually his mother, while other acquaintances were also members of his family. He believed that he was a prophet and heard God’s voice telling him so. While in the hospital, he behaved in a threatening and sexually inappropriate fashion and assaulted another patient whom he believed had been involved with one of his “wives.” He also threatened to kill his “mother’s” boyfriend. His psychosis responded only marginally to repeated hospital admissions and involuntary treatment with various psychotropic medicines.

CASE 2:  EROTOMANIA WITH A SINGLE DELUSIONAL OBJECT, FOLLOWING A HEAD INJURY A 33-year-old single unemployed man was remanded to a secure psychiatric hospital on a charge of uttering threats. Nine years earlier, he became convinced that a woman whom he had seen on a few occasions was in love with him. The first time he saw her was in church. She was sitting several rows in front of him and he knew she was showing off her body to him when she exposed her leg to pull up her sock. Although she completely ignored him when he next saw her, he took this as a sign that she loved him. He harassed her to the point that he was put on a restraining order, but he continued to pursue her even after she married and had children. Over the years he sent her numerous cards and poems and phoned incessantly. He believed that she was waiting to marry him, but he became increasingly impatient. He blamed others for interfering with the relationship, particularly his mother. Seven years earlier, he was convicted of possession of a dangerous weapon and said he planned to shoot himself to show “I mean business about my love for her.” He denied any desire to harm her, but expressed hostility towards his mother. The index charge involved threatening a male mental health worker whom he believed was interfering with the relationship. At the age of 19, he had suffered a head injury and was unconscious for 16 days. A hemiparesis resolved, but he ­underwent a marked personality change with prominent aggressive features. The latter involved assaulting both p ­ arents with weapons. The erotomanic delusions developed 4 years later.

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CASE 3:  SECONDARY EROTOMANIA WITH A SINGLE DELUSIONAL OBJECT, AND PARANOID SCHIZOPHRENIA A 36-year-old single unemployed man was admitted to the hospital in a floridly psychotic state. He believed that for the past 8 months he had been able to communicate with others in a “psychic way.” This mode of communication did not involve the use of speech. Shortly after this delusion developed, he saw a young woman who worked in a store. He met her briefly on three more occasions and became convinced they shared a “mutual obsessive love.” This was confirmed by her “psychic” communications that implored him to return to the store. He found these exhortations puzzling because she then shunned him. As solace, he resumed a previous habit of excessive masturbation. He explained that it was quite comforting because “She was with me and actually inside me. A part of me.” He believed that she watched him masturbate and sometimes joined in. This “psychic sex” became more involved when one of her boyfriends joined them and the patient was forced to watch the pair have intercourse. On admission he was not sure if he was going crazy or whether he had invented some unique form of communication. In any event, he knew that she loved him but was ­worried that she may have stolen part of his mind. The patient considered himself to be a sexual deviant and “addicted” to pornography. There was a history of ­schizophrenia on the maternal side of his extended family and alcohol dependence in his father.

Stalking Stalking has been defined as repeated acts, experienced as “unpleasantly intrusive,” that create apprehension and can be understood by an ordinary person to be grounds for becoming fearful.10 Stalkers constitute a heterogeneous group with erotomania forming a small proportion. A recent study of 211 stalkers found that 6 cases, or 3% of the total, suffered from erotomanic delusions.11 This forensic sample consisted of 90% men, but there was no mention of the sex of the erotomanic cases. Another Australian forensic study described 9 of the 40 women in the sample, or 22.5%, as having erotomanic delusions.12 Eighteen of these women had a major mental disorder, including 12 with delusional disorder and 2 with jealous type. In a forensic population of 74 obsessional stalkers, seven were identified as erotomanics.13 However, 32 subjects described as “love obsessionals” also included cases where erotomanic delusions existed along with other psychotic symptomology and could be described as cases of secondary erotomania. Another study of 299 juvenile stalkers found a virtual absence of cases where erotomania could have been involved.14 Clearly, the rates of erotomania in stalking will depend on the population under study.

Risk of violence There is relatively little research on the risk of violence posed by erotomanic stalkers compared to studies that have been conducted on the risk posed by stalkers in general. In the latter group, threats of violence have been considered to have a weak association with actual physical violence. This is based on studies involving public figures and celebrities where getting access to the victim was difficult; however, studies of other categories of victims have shown that a relationship does exist.15 McEwan and colleagues found that aside from their group of rejected ex-intimates, risk factors for violence

were similar to those found in general offender ­populations, particularly youth, substance abuse, and a history of ­violence.16 It is generally accepted that stalkers who had an intimate relationship with their victim are at the highest risk of exhibiting physical violence. This is particularly the case when there is a history of previous violence and threats.11 This study supports other studies that have shown that nonpsychotic stalkers are more likely to exhibit violent behavior than psychotic ones, but caution should be exercised if delusional jealousy and other morbid preoccupations like delusions of persecution are included in this category.10 In erotomania, violence can be directed at an individual seen as an obstacle/rival to establishing the relationship,9 as well as at the object of the delusional attachment.18 As in nonerotomanic stalkers, a history of violent behavior, unrelated to or predating the delusions, was identified as a risk f­ actor for dangerousness in a study of male erotomania.9 This study also found that the number of delusional objects was a significant risk factor, and the presence of a combination of these two factors was highly predictive of dangerousness in these men. Although no studies have attempted to replicate these findings, it is interesting that reported cases of erotomania where multiple delusional objects exist seem to show an increased risk of violence. A female adolescent with erotomania who had two delusional objects was described as being both threatening and violent, although not necessarily to the delusional objects.18 Prior to the onset of erotomanic delusions, she was suspected of sexually assaulting a younger girl for whom her family was babysitting. Similarly, a study of 15 erotomanic patients found that the only one with two delusional objects displayed the “greatest harassment of victims.”8 In another series of 12 forensic patients with primary or secondary erotomania, six exhibited violence.17 The study described 16 patients with “pathologies of love” but four had “no real conviction of being loved in return,” so they were not, strictly speaking, suffering from erotomania. Three patients had multiple delusional objects,

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and two of them were violent. The only patient with an antisocial personality disorder in those with multiple objects was violent. Nine patients had a single delusional object, and four of them were violent. Two patients with a single delusional object had antisocial personality disorder, and one of them was violent.

Victims The lower risk of violence in erotomanic and other psychotic stalkers, compared to nonpsychotic stalkers, is balanced by the duration and persistence of the pursuit.16 Victims or objects of erotomanic stalking are prone to changing lifetime habits in order to cope with the unwanted intrusions into their lives. This response can lead to avoidance of activities and routines, reduced effectiveness at work, changes in employment, loss of friends, and social isolation. These aspects, together with the traumatizing effects of extensive stalking, often measured in years and sometimes decades,9 understandably lead to psychological hardship. The severity of stalking, in both duration and persistence, whether violence is perpetrated or not, has been shown to lead to significant psychological distress and post-traumatic stress symptoms in victims of ex–intimate stalkers.19 It is reasonable to assume that these factors would be similarly noxious for the objects of erotomanic attention even though there are qualitative differences between these two categories of stalking. Healthcare professionals, especially in forensic psychiatry, seem to be at particular risk of being stalked, but erotomania has been reported as under-represented in this group.20 The distress and hardship experienced by victims of stalkers can be significant and is illustrated by a psychiatrist’s account of being the object of the erotomanic attention of one of her female patients.6 The victim or object of erotomanic attention can also take action to minimize both the effect of this pathological attention and its frequency. An excellent book by Michelle Pathé should be recommended reading to those unfortunates who find themselves harassed by erotomanic and other types of stalkers.21 It offers a wealth of information and useful practical advice. While victims of stalking and erotomania deserve the concerted help of available agencies, there are reports of false stalking victims in the literature. Mullen and Pathé have identified five broad categories ranging from stalkers (including individuals with erotomania) who claim they are being stalked to malingerers. The other categories are those with delusions of being stalked, those who have previously been stalked and have become hypersensitive, and those with factitious disorder who crave the ensuing attention.10

TREATMENT AND MANAGEMENT Treatment includes pharmacotherapy, specifically antipsychotic medicine, as well as other measures such as ­cognitive-behavior therapy and psychosocial i­ nterventions. Clearly,  the  underlying condition must be adequately

addressed in cases of symptomatic erotomania. There is sparse information on the treatment of erotomania. However, an analysis of 209 patients with delusional disorder found pimozide superior to other antipsychotic medicines.22 Intuitively, other antipsychotics, including second-generation antipsychotics, should be beneficial; this is borne out by a few case reports, summarized by Kelly.23 A poor prognosis has been promulgated for delusional disorders in general, but this pessimism has been tempered by positive outcomes in case reports of pure and secondary erotomania.18

CONCLUSION Erotomania is a rare condition, and primary erotomania is even rarer. It was thought to be more common in women, but increasingly male cases are being reported. This delusional disorder usually comes to attention in the context of stalking. While the risk of violence posed by erotomanic cases is less than in other categories of stalker, the duration and persistence of the pathological pursuit is extensive. The prognosis is perhaps more favorable than was once thought, and treatment with antipsychotic medicine can be effective. Conditions imposed by the courts may be helpful in promoting adherence to treatment. A risk management assessment should be performed, incorporating available evidence. Even when violence does not occur, the effect on the object of pathological attention can be significant, especially when the duration of stalking is extensive, which is usually the case in erotomania. Those subjected to unwanted attention should be encouraged to seek help and support to prevent lasting psychological damage, which can include post-traumatic stress symptoms.

REFERENCES 1. McEwan I. Enduring Love. New York: Anchor Books, 1998: 93. 2. Berrios GE, Kennedy N. Erotomania: A conceptual history. History of Psychiatry. 2002; 13: 381–400. 3. De Clerambault GG. Les Psychoses Passionelles. In: Oeuvre Psychiatrique. Paris: Universitaires de France,1942. 4. American Psychiatric Association. Diagnostic and Statistical Manual of Mental Disorders. 4th ed. Text Revision. Washington, DC: American Psychiatric Association, 2000: 324, 326. 5. Boast N, Coid J. Homosexual erotomania and HIV infection. British Journal of Psychiatry. 1994; 164: 842–46. 6. Orion D. I Know You Really Love Me. New York: MacMillan, Inc., 1997. 7. Menzies RPD. Delusional misidentification syndrome. Canadian Journal of Psychiatry. 1994; 39: 580. 8. Kennedy N, McDonough M, Kelly B, Berrios GE. Erotomania revisited: Clinical course and treatment. Comprehensive Psychiatry. 2002; 43: 1–6.

References 363

9. Menzies RPD, Fedoroff JP, Green CM, Isaacson K. Prediction of dangerous behaviour in male ­erotomania. British Journal of Psychiatry. 1995; 166: 529–36. 10. Mullen PE, Pathé M, Purcell R. Stalkers and Their Victims. Cambridge: Cambridge University Press, 2000: 9–10, 217, 187–204. 11. McEwan TE, Mullen PE, MacKenzie RD, Ogloff JR. Violence in stalking situations. Psychological Medicine. 2009; 39: 1469–78. 12. Purcell R, Pathé M, Mullen PE. A study of women who stalk. American Journal of Psychiatry. 2001; 158: 2056–60. 13. Zona MA, Sharma KK, Lane J. A comparative study of erotomanic and obsessional subjects in a forensic sample. Journal of Forensic Sciences. 1993; 38: 894–903. 14. Purcell R, Moller B, Flower T, Mullen PE. Stalking among juveniles. British Journal of Psychiatry. 2009; 194: 451–55. 15. McEwan T, Mullen PE, Purcell R. Identifying risks in stalking: A review of current research. International Journal of Law and Psychiatry. 2007; 30: 1–9.

16. McEwan TE, Mullen PE, MacKenzie R. A study of the predictors of persistence in stalking situations. Law and Human Behaviour. 2009; 33: 149–58. 17. Kamphuis JH, Emmelkamp PMG, Bartak A. Individual differences in post-traumatic stress following postintimate stalking: Stalking severity and psychosocial variables. British Journal of Clinical Psychology. 2003; 42: 145–56. 18. Mullen PE, Pathé M. The pathological extensions of love. British Journal of Psychiatry. 1994; 165: 614–23. 19. Urbach JR, Khalily C, Mitchell PP. Erotomania in adolescence: Clinical and theoretical considerations. Journal of Adolescence. 1992; 15: 231–40. 20. Pathé M. Surviving Stalking. Cambridge: Cambridge University Press, 2002. 21. McIvor RJ, Petch E. Stalking of mental health professionals: An underrecognised problem. British Journal of Psychiatry. 2006; 188: 403–404. 22. Munroe A, Mok H. An overview of treatment in paranoia/delusional disorder. Canadian Journal of Psychiatry. 1985; 40: 616–22. 23. Kelly BD. Epidemiology and management of ­erotomania. CNS Drugs. 2005; 19: 657–69.

50 Stalking DAVID V. JAMES AND RACHEL D. MACKENZIE Definition 365 History of the concept 365 The law and stalking 366 Prevalence 366 Stalkers and their victims 366 Motivation 366 Psychopathology 367

Sequelae 367 Victims 367 Stalkers 367 Helping victims 367 Risk assessment and management 368 Treatment of stalkers 368 References 368

Stalking belongs to the category of problem behaviors, together with sex offending, threatening, and arson.1 A proportion of perpetrators suffer from mental illness, but the principal task for the forensic practitioner lies in risk assessment and management, with an emphasis on psychological treatment and harm reduction.

the publication of material on the Internet, either ­poisonous or embarrassing in content (sexual photographs, etc.).

DEFINITION Stalking is the repeated, unwanted intrusion of one person into the life of another, causing distress, anxiety, or fear.2 It covers a constellation of behaviors that fall into five categories: 1. Communication: with the victim by telephone or in written or electronic form, including text messages, e-mail, and use of the Internet. 2. Physical intrusion into a person’s life: includes following, surveillance, loitering nearby, direct approach, breaking into their home, visiting their place of work, or approaching their friends or relatives. 3. Impersonation: describes acts undertaken by the perpetrator in the name of the victim, such as cancelling services, ordering goods, resigning from their job, or sending poison-pen letters to others in their name. 4. Use of proxies: involves the recruitment of others to harass the victim, for instance false complaints to the police or spurious legal action, or recruiting others to engage as surrogates in stalking activities. 5. Campaigns of denigration: the spreading of false and malicious accusations or gossip, through use of posters, leafleting, advertisements, and, increasingly,

Stalking methods evolve over time, with a recent growth in the use of computerized communication technologies (“cyberstalking”) and forms of social networking (e.g., Twitter and Facebook). Legal definitions tend to require at least 2 qualifying acts to constitute a criminal offense, but research definitions may be more stringent, with that of Mullen and colleagues3 requiring 10 incidents. Individually, many stalking behaviors may appear innocuous; it is their combination that constitutes the destructive phenomenon of stalking. Some, such as making unwanted telephone calls or writing pleading letters at the end of a relationship, are part of the normal fabric of human behavior. However, it is when they persist that they assume a different quality: a demarcation of around two weeks between “normal behavior” and stalking has been described.4

HISTORY OF THE CONCEPT Stalking is an age-old behavior, but the use of the term stalking dates back only to the late 1980s. The term takes a number of preexisting activities often viewed in isolation and combines them into a single entity. The value of characterizing and naming a phenomenon is that it enables a new understanding of a problem and of its seriousness and, in doing so, permits a coherent social response. The concept of stalking only has meaning in societies where women have equal rights and where domestic violence 365

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is legally and socially unacceptable. As such, it remains limited to Westernized democracies. Its prominence in modern, industrialized societies is the product of a number of trends and developments3: the decline of community, the replacement of single partnerships by serial relationships, increased mobility, the blame culture, the emphasis on individual rights, consumerism, and the cult of celebrity. These have been accompanied by social changes in terms of the women’s movement, the recognition of the rights of victims, a greater emphasis on the value of privacy, an intolerance of risk, and a harsher attitude toward offenders. Changes in media and communications technology have increased the ease and means of carrying out stalking campaigns.

THE LAW AND STALKING Anti-stalking legislation was first introduced in 1990 in California. Since then, most English-speaking jurisdictions and some Western European countries have introduced some form of anti-stalking legislation (e.g., Belgium, the Netherlands, Germany, Italy, Sweden). Legislation is generally framed in terms of three elements: conduct, intent, and effect on the victim. The conduct element defines a course of conduct or number of acts that constitute stalking. Most legislation requires a minimum of two acts, although in some countries one is sufficient. The intent element generally concerns an intent to cause fear and/or a recklessness as to whether fear is caused, based on a reasonable person test. In the United Kingdom, the Protection from Harassment Act 1997 introduced the offense of harassment: Section 2 (punishable by up to six months’ imprisonment) created an offense when a person pursues a “course of conduct which amounts to harassment of another, and which he knows or ought to know amounts to harassment of the other.” Section  4, punishable by up to five years’ imprisonment, created a further offense: “when a person whose conduct causes another to fear, on at least two occasions, that violence will be used against him, he is guilty of an offence if he knows or ought to know that his course of conduct will cause the other so to fear on each of these occasions.” Widespread criticism of the ineffectiveness of the Act led to its amendment in the Protection of Freedoms Act, passed in May 2012, with the introduction of two parallel offences of stalking. Section 2A lists a number of behaviors (“acts or omissions”) which are associated with stalking. Section 4B includes fear of violence but offers the alternative provision of causing “serious alarm or distress which has a substantial adverse effect” on the victim’s “usual day-to-day activities.”

PREVALENCE Prevalence surveys are available from a number of European countries, Australia, and the United States. Their results vary according to definitional issues, in particular the degree of anxiety or fear that the behavior must occasion. In England and Wales,5 11.8% of adults had been subject at some point to persistent and unwanted attention (16.1% of women and

6.8% of men). Prevalence in the previous 12 months was 2.9% if the behavior was defined as causing stress or upset, and 1.9% if fear of violence was specified. In the United States, using a definition requiring significant fear or fear of bodily harm, Tjaden and Thoennes6 found a lifetime prevalence of 8% in women and 2% in men, with 12-month prevalence of 1% for women and 0.4% for men. Using a less stringent definition (a little/somewhat frightened), the lifetime prevalence increased to 12% for women and 4% for men, and the 12-month prevalence to 6% for women and 1.5% for men. Applying these percentages to the adult population figures for the countries in question illustrates the major impact of the phenomenon. In terms of crime statistics, figures for stalking convictions are only collected where a specific offense of stalking exists. And, even in such jurisdictions, those committing serious offenses in the context of stalking will be convicted under the more serious charge. In England and Wales in the year from April 2013 to March 2014, there were 10,535 prosecutions under the amended Protection from Harassment Act. Comprehensive guidance on the prosecution of stalkers is now provided by the Crown Prosecution Service (http:// www.cps.gov.uk/legal/s_to_u/stalking_and_harassment/).

STALKERS AND THEIR VICTIMS Between 80% and 90% of stalkers are male, and approximately 80% of victims are female. Same gender and intergender stalking occurs in all combinations. Mean stalker age is early to mid-30s, but with a wide range. Stalkers and their victims come from all backgrounds. Primary victims can be classified in terms of their relationship, if any, with the stalker: former sexual intimates, estranged family members and friends, casual acquaintances, and complete strangers. This is the basis of some classifications of stalking.7 The proportion of stalkers known to their victims varies between studies: a community survey in Victoria in Australia8 found 21% of stalkers were ex-intimates, 37% acquaintances, and 42% strangers. Secondary victims are those targeted by the stalker due to their connection to the primary victim, such as friends, family, new partner, work colleague, or police. In terms of acquaintances, healthcare workers, teachers, and lawyers are especially vulnerable to stalking. Public figures and celebrities are particularly prone to the intrusive interest of strangers. Psychiatric patients may be more at risk. In a sample of general psychiatry inpatients,9 21.3% had been victims of stalking, and in almost all cases, their psychiatrists were unaware of this and therefore of the potential effect on their patients’ mental states.

MOTIVATION Stalking is not a homogeneous entity but a set of behaviors to which perpetrators turn for very different reasons. The standard classification is that of Mullen and colleagues, 3 a motivational typology that is endorsed as the standard in

Helping victims  367

the field by the Group for the Advancement of Psychiatry.10 Mullen’s group identified five categories of stalkers: the Rejected, Intimacy Seekers, the Incompetent Suitor, the Resentful, and the Predatory. The Rejected stalker commences stalking after the breakdown of an important relationship that was usually, but not always, sexually intimate in nature. In this group, the stalking reflects a desire for reconciliation, revenge, or a fluctuating mixture of both. The Intimacy Seeker desires a relationship with someone who has engaged his or her affection and who, he or she is convinced, already does, or soon will, reciprocate that love despite obvious evidence to the contrary. The Incompetent Suitor also engages in stalking to establish a relationship. However, unlike the Intimacy Seeker, he or she is simply seeking a date or a sexual encounter. The Resentful stalker sets out to frighten and intimidate the victim to exact revenge for an actual or supposed injury. Resentful stalkers differ from Rejected stalkers in that the cause of their resentment does not lie in rejection from an intimate relationship. The Predatory stalker engages in pursuit behavior in order to obtain sexual gratification or in preparation for an attack, usually sexual.

PSYCHOPATHOLOGY A substantial minority of stalkers are suffering from psychotic illness, most commonly schizophrenia. Where the victim is a public figure, such cases may form the majority (www.fixatedthreat.com). Psychotic illness is largely absent in Rejected stalkers. Intimacy Seekers include cases with erotomania, and the Resentful include a substantial number with delusional disorder. Personality disorders were present in 45% of a forensic stalker sample, a quarter being comorbid with an Axis I disorder.11 Stalking behavior is influenced by internal factors in terms of core beliefs or schemas about the way the world works; by skills deficits; and by contextual factors. Distorted beliefs and biased cognitive operations typically include an exaggerated sense of entitlement with a belief that the stalker is owed something by the victim and a belief that his or her own rights are paramount. This is often accompanied by a conscious disregard for the victim, or a lack of concern as to the consequences of his or her behavior. Skills deficits may make the identification of alternative strategies difficult or make accurate perceptions of, and reactions to, problems more difficult: poor verbal or social skills, difficulties with conflict resolution or problem-solving, and problems with emotional regulation or coping with stress. Contextual factors may contribute to, or maintain, the stalking behaviors: victim response, continued enforced contact (e.g., custody arrangements, legal disputes), shared interests or employer, police responses, peers and family supportive of the stalking behavior, unemployment allowing time for stalking, or homelessness leading to a return to the victim’s location. Identification of these various factors is important in the management and treatment of stalkers.

SEQUELAE Victims Stalking has been referred to as “psychological terrorism,” and its effects on victims can be undermining and destructive in terms of provoking uncertainty and fear. Psychological sequelae are common, particularly where the stalking has been protracted. Victims frequently develop feelings of helplessness, anxiety, depression, panic attacks, nightmares, and even suicidal and homicidal thoughts. Personality changes, such as becoming less trustful and more introverted, suspicious, and aggressive, are also reported.2 Estimates of serious psychopathology in victims range from approximately 50%12 to as high as 78%. In community surveys, 18% of stalking victims were subjected to violence.8,13 Rates of violence are higher when the stalker is an ex-intimate partner and stalking behaviors substantially increase the risk of intimate partner femicide.14

Stalkers The detrimental impact of stalking is not confined to the victim. A protracted campaign of harassment can also have negative outcomes for the perpetrator.15 Stalkers may expend considerable time, energy, and resources in an often futile pursuit. In their obsessive quest for love or retribution, some will forfeit their job, financial security, status, family, and friends. They risk a criminal conviction, together with the stigma of being labeled a stalker. Depression is not uncommon among stalkers,3 and suicide is a serious risk in the face of progressive alienation and condemnation. Damage to the stalker’s psychological or social well-being has the potential to affect the victim’s safety and well-being, and is thus of relevance to management.

HELPING VICTIMS Prevention is the best option. Little can be done to prevent victimization by a stranger. But avoidance of close relationships with people who are possessive, jealous, manipulative, demanding, or insecure decreases the likelihood of falling victim to an ex-intimate stalker. Declining or ending relationships should be undertaken in a way which is firm, reasonable, and unequivocal, but allows the person to retain some dignity. Care should be taken to protect personal information, particularly that available electronically. Those in higher risk groups should take care to minimize their digital footprint and keep business information separate from personal. A consistent and early response is important in stalking. The victim must be advised to avoid all contact with the stalker and to resist the temptation to enter into dialogue. Friends, family, and employers should be informed as to what is going on, so that they do not inadvertently make things worse. The victim should carefully document

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the details of the stalking, with a view to possible prosecution. Attention should be given to security measures, both in terms of improving physical security and changing routines.16 The police should be involved at an early stage.

RISK ASSESSMENT AND MANAGEMENT Risk is best assessed used a structured professional judgment model specific to stalking.17 Two such models are currently available: the Guidelines for Stalking Assessment and Management18 and the Stalking Risk Profile (SRP).19 The SRP is structured around two key realizations. First, risk factors differ according to the stalker’s underlying motivation. Second, risk is not a unitary concept: different domains of risk must be assessed separately. The SRP begins with an allocation of motivational group and then examines risk separately for the domains of violence, persistence, recurrence, and psychosocial damage to the stalker. Risk factors then become treatment targets in the resulting formulation and management plan. An addendum deals with public figure stalking and the additional risk domains of escalation and disruption. Operational policing environments, however, require decisions to be made quickly in real time on the basis of limited information. Case triage can be aided by brief screening tools that enable the prioritizing of cases and resources. An example is the Stalking Assessment Screen (www. stalkingriskprofile.com/stalking-risk-profile/stalking-­ assessment-screen). Recent high-profile homicides emphasize the possible consequences when risk is not properly assessed and police get it wrong (http://www.nss.org.uk).

TREATMENT OF STALKERS Legal sanctions alone may be ineffective in preventing stalking because, in the absence of treatment, the fundamental problems driving the stalker remain unresolved. Incarceration of the stalker may provide only temporary relief for the victim as, in most jurisdictions, this form of offense typically results in relatively brief periods of imprisonment. This leaves the victim dreading a resumption of the harassment when his or her tormentor is released back into the community. Such fear is often warranted, as few stalkers receive any treatment while in custody that might lead them to desist from stalking. Treatment of stalkers involves pharmacotherapy when mental illness is present, but the mainstay of treatment for nonpsychotic stalkers are programs of psychological intervention.20 These depend on the accurate assessment of a range of different risks and on the identification of psychological deficits and responsivity factors in the stalker. A modular treatment program is then tailored to an individual stalker’s needs. “Stages of change” form a useful framework for shaping the delivery of treatment, which is best undertaken within the problem behaviors model. In most cases, treatment needs to take place, at least initially, on a compulsory basis, for instance as a condition of

a community order, parole, or bail. Treatment requires personnel with special training in stalking risk assessment and treatment, which may best be accomplished in specialist settings, such as the Melbourne Problem Behaviours Clinic1,20 or the National Stalking Clinic in the United Kingdom (www.nationalstalkingclinic.com).

REFERENCES 1. Warren L, MacKenzie R, Mullen PE, Ogloff JRP. The problem behaviour model: The development of the stalkers clinic and a threateners’ clinic. Behavioral Sciences and the Law. 2005; 23: 387–97. 2. Mullen PE, Pathé M, Purcell R. Stalkers and Their Victims. 2nd ed. New York: Cambridge University Press, 2009. 3. Mullen PE, Pathé M, Purcell R, Stuart GW. Study of stalkers. American Journal of Psychiatry. 1999; 156(8): 1244–9. 4. Purcell R, Pathé M, Mullen PE. When do repeated intrusions become stalking? Journal of Forensic Psychiatry & Psychology. 2004; 15(4): 571–83. 5. Budd T, Mattinson J. The Extent and Nature of Stalking: Findings from the 1998 British Crime Survey. London: Home Office Research, Development and Statistics Directorate, 2000. 6. Tjaden P, Thoennes N. Stalking in America: Findings from the National Violence Against Women Survey (NCJ Report No. 169592). Washington, DC: National Institute of Justice and Centers for Disease Control and Prevention, 1998. 7. Mohandie K, Meloy JR, McGowan MG, Williams J. The RECON typology of stalking: Reliability and validity based upon a large sample of North American stalkers. Journal of Forensic Sciences. 2006; 51(1): 147–55. 8. Purcell R, Pathé M, Mullen PE. The prevalence and nature of stalking in the Australian community. Australia and New Zealand Journal of Psychiatry. 2002; 36(1): 114–20. 9. Dressing H, Scheuble B, Gass P. Prevalence and impact of stalking in psychiatric patients. Psychiatrische Praxis. 2009; 36(7): 334–7. 10. Pinals DA (ed.). Stalking. Psychiatric Perspectives and Practical Approaches. New York: Oxford University Press, 2007. 11. McEwan TE, Mullen PE, MacKenzie RD, Ogloff JR. Violence in stalking situations. Psychological Medicine. 2009; 39(9): 1469–78. 12. Kuehner C, Gass P, Dressing H. Increased risk of mental disorders among lifetime victims of stalking: Findings from a community study. European Psychiatry. 2007; 22(3): 142–45. 13. Thomas SD, Purcell R, Pathé M, Mullen PE. Harm associated with stalking victimization. Australian and New Zealand Journal of Psychiatry. 2008; 42(9): 800–6.

References 369

14. McFarlane J, Campbell JC, Watson K. Intimate partner stalking and femicide: Urgent implications for women’s safety. Behavioural Sciences and the Law. 2002; 20(1–2): 51–68. 15. Mullen PE, MacKenzie R, Ogloff JRP, Pathé M, McEwan T, Purcell R. Assessing and managing the risks in the stalking situation. Journal of the American Academy of Psychiatry and the Law. 2006; 34: 439–50. 16. Pathé M. Surviving Stalking. Cambridge: Cambridge University Press, 2002. 17. McEwan TE, Pathé M, Ogloff JRP. Advances in stalking risk assessment. Behavioral Sciences and the Law. 2011; 29(2): 180–201.

18. Kropp RJ, Hart SD, Lyon DR. Guidelines for Stalking Assessment and Management (SAM), User Manual. Vancouver: Proactive Resolutions Inc., 2008. 19. MacKenzie RD, McEwan TE, Pathé MT, James DV, Ogloff JRP, Mullen PE. The Stalking Risk Profile: Guidelines for the Assessment and Management of Stalkers. Melbourne: Stalkinc & Centre for Forensic Behavioural Science, 2009. 20. MacKenzie RD, James DV. Management and treatment of stalkers: Problems, options and solutions. Behavioral Sciences and the Law. 2011; 29(2): 220–39.

51 Munchausen syndrome JOHN D. SHEEHAN Introduction 371 Clinical presentation 371 Epidemiology 372 Etiology 372 Diagnosis 372

Differential diagnosis 372 Management 372 Prognosis 373 References 373

INTRODUCTION

CLINICAL PRESENTATION

The term Munchausen syndrome was coined by Dr. Richard Asher1 in his paper published in the Lancet in 1951. It alludes to a Prussian cavalry officer, Baron Munchausen, who was famous for telling unbelievable stories about his military exploits. He lived from 1720–1797 and was the subject of a book written in 1785 by Rudolf Raspe titled The Surprising Adventures of Baron Munchausen. In modern times, Munchausen syndrome is classified as a factitious disorder in both the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders, 5th Edition (DSM-5)2 and in the World Health Organization’s International Statistical Classification of Diseases, 10th Revision (ICD-10).3 Clinically, the syndrome is defined as the willful production of physical and/or psychological symptoms and signs for no apparent goal other than to assume the role of being a patient. The diagnostic criteria in DSM-5 include:

Typically, a patient with Munchausen syndrome has episodes of recurrent feigned or simulated illness associated with pathological lying (pseudologia fantastica) and peregrination (traveling or wandering). Often in a very convincing way, a patient presents dramatically with severe or unusual symptomatology requiring investigation, intervention, or admission. Sometimes, the symptoms are textbook in nature, accurately reflecting a known presentation or disorder. Following admission to a hospital, a patient may demonstrate equanimity for diagnostic procedures, treatments, or operations. Instead of anxiety about procedures, the patient may welcome them. The patient may demand treatments, particularly medication. On physical examination, there may be evidence of self-induced physical signs or multiple scars from previous operations performed during multiple previous hospitalizations. Patients with Munchausen syndrome may simulate a plethora of illnesses in various bodily systems, including fever, asthma, anemia, Cushing’s disease, pheochromocytoma, and even cancer.4–8 They are often admitted through an emergency department, sometimes under an alias.9 Over time, however, the patient may present with the effects of iatrogenic complications due to investigations, surgeries, or drug dependence. The presentation can be extremely complex, as there may be a combination of feigned complaints and actual iatrogenic complications. The majority of patients with Munchausen syndrome present with somatic complaints and are reluctant to see

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Falsification of physical or psychological signs or symptoms, or induction of injury or disease, associated with identified deception. The individual presents himself or herself to others as ill, impaired, or injured. The deceptive behavior is evident even in the absence of obvious external rewards. The behavior is not better explained by another mental disorder, such as delusional disorder or another psychotic disorder. Episodes can be classified as either single or recurrent.

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a psychiatrist. After referral for psychiatric consultation, they may abscond before being interviewed by the ­psychiatrist. In one series, only 16 of 38 cases had a psychiatric consultation.10 The subtype of predominantly psychological signs and symptoms known as psychiatric Munchausen syndrome is uncommonly reported, likely owing to the subjective nature of the symptoms reported and the difficulty in disproving them. Patients with Munchausen syndrome may report anything from classical first-rank Schneiderian symptoms to global amnesia.11 They may have a history of repeated admissions, sometimes on an involuntary basis. They may have been treated with repeated but often ineffective interventions. Those with simulated symptoms of schizophrenia may report treatment with clozapine. After media events, such as the reporting of a missing person with amnesia, they may present to an emergency department with similar symptoms, even using the same terminology as used in the media reports.

EPIDEMIOLOGY Epidemiological data are poor because the published l iterature on factitious disorders is almost entirely ­ ­limited to case reports. Male patients predominate in the  ­ l iterature, suggesting that there may be a higher ­prevalence of Munchausen syndrome among men than women. In terms of age, typically the patient is between 30 and 50 years old. A  patient may have a history of childhood deprivation but also may have a history of employment or experience of working in a medical field. Typically, the individual has poor social supports and may have borderline or antisocial personality traits. Many have a police record. In studies of medical patients, it has been suggested that between 0.2% and 1% of hospital inpatients may have factitious d ­ isorder.12–13 In psychiatric or psychological presentations, it is probably more difficult to detect factitious disorders because of the dependence on the patient’s history for making a diagnosis.14–15 However, it has been suggested that this disorder may be more ­common than generally recognized. One Spanish study found an 8% rate of factitious symptoms in an inpatient psychiatric population.16

ETIOLOGY The etiology of factitious disorders is not fully understood. To date, no definite organic cause has been identified. One case study using single-photon emission computed tomography (SPECT) found hyperperfusion of the right hemithalamus.17 Further studies are required. Multiple psychological theories have been postulated. Unconscious motives, developmental or family factors, life stressors, and psychodynamic mechanisms such as mastery, masochism, and dependency are all thought to play a role. Clinically, it seems that the patient wants to assume the sick role with its attendant benefits of care and concern. However, the mechanism used by the patient—deception—ensures

that the patient ultimately experiences rejection, perhaps reinforcing a cycle of help-seeking/rejection that the patient may unconsciously be repeating.

DIAGNOSIS Making a diagnosis of factitious disorder requires an appropriate index of suspicion and recognition of the common features. Perseverance is also required. Many patients with Munchausen syndrome produce histories that appear to be far-fetched at face value. Not only do they report fabricated symptoms, but they also report personal or professional details that are fabricated. They may use an alias or have multiple aliases. They may give different dates of birth at different healthcare facilities. However, their attendance at multiple hospitals or healthcare facilities arouses suspicion. To make a diagnosis, a review of the case with the referring physician should be conducted. Collateral history is vital. Verification of the facts is essential, such as by contacting the family doctor or a family member. Not infrequently, the patient will refuse permission to speak with a family m ­ ember. This arouses further suspicion. Checking old ­hospital notes or hospital records is also important to corroborate a patient’s recorded past history, family history, and personal history, even if it means contacting health ­services in other jurisdictions. The patient with Munchausen syndrome is at risk of developing secondary drug dependence or addiction from the ­prescription of either benzodiazepines or opiates. The diagnosis of drug dependence is based on the standard criteria.

DIFFERENTIAL DIAGNOSIS The main differential diagnosis is malingering. Malingering is the intentional production or feigning of physical or psychological signs or symptoms motivated by external stressors or incentives. It can be very difficult, if not impossible at times, to distinguish factitious disorder from malingering. However, factitious disorder tends to be chronic, whereas malingering appears to be in response to an immediate stressor, such as a court appearance. Other differentials include conversion disorder, hypochondriasis, and somatoform disorders, particularly somatization disorder. In my experience, somatization disorder and Munchausen syndrome can present with very similar physical symptoms and repeated hospital attendances. However, uncovering that the patient is lying or has a history of lying from a family member can help clinch the diagnosis.

MANAGEMENT The management of Munchausen syndrome is c­ hallenging. Usually, when Munchausen syndrome is suspected, the physician or other caregiver asks a psychiatrist colleague to assess the patient. Comprehensive laboratory and imaging tests have usually been conducted. Management involves making the diagnosis and addressing the patient in an objective

References 373

and nonpunitive manner. Initially, as collateral information is gathered, members of the multidisciplinary team may react with disbelief and anger when lies are uncovered. A multidisciplinary team meeting should be held to plan how, where, and when the patient should be confronted. Previously, confrontation was thought to be unhelpful. However, new evidence suggests that it may be helpful in offering the patient an interpretation of his or her behavior and in explaining that a management package is available.18 In my experience, having a family member present when confronting the patient is useful. I try to explain that I am aware that the patient has distress and seeks care but has used a care-seeking means that has likely led to rejection, the opposite end result of what was desired. Going through the history and highlighting the discrepancies between what the patient said and what was discovered from collateral sources is appropriate. The patient may react angrily and tell more lies. However, keeping calm, presenting the condition as a psychological disorder, and offering a psychological management plan can be therapeutic. Emphasizing the risk of iatrogenic damage19 and the desire of the treating team to help rather than reject the patient is important. However, because of the chronic nature of the condition, the patient may dismiss the intervention, threaten legal action, and self-discharge. If the patient does accept follow-up, psychotherapy may have a role in management, which may mean involving the family to set limits. In some areas support groups have been found to be ­helpful. There also is an Internet site that functions as an online forum for patients with Munchausen syndrome. In terms of overall management, as a psychiatrist, one has to think about not just the patient, but also the referring physician/team. Frequently the referring physician/team ­ become angry and develop a strong countertransference toward the patient. Giving them the opportunity to ventilate can be helpful and educational. Advising conservative care if future presentations occur is necessary. Minimizing investigations and admissions is indicated. In psychiatric Munchausen syndrome, if a person has been treated by a mental health team for a prolonged period of time, the treating team may disbelieve the diagnosis of Munchausen syndrome: team members find it hard to accept that they have been duped. They may accept that the patient has an Axis II disorder, though. One other important aspect of management is informing other healthcare providers about the diagnosis. In my opinion, because of the serious risk that a patient with Munchausen syndrome poses to his or her own health as well as the risk of iatrogenic damage, it is important to notify other hospital services such as emergency departments and general practitioners about the diagnosis. This decision is based on the principle of having a duty of care to the patient and the likelihood of harm occurring to the patient.

PROGNOSIS The prognosis is generally poor, especially if there is severe comorbid personality disorder (antisocial or borderline)20 or if there has been comorbid malingering. Prognosis is

better if the syndrome is associated with a treatable m ­ ental disorder such as mood disorder or if the personality is anankastic, depressive, or histrionic. Having a stable support system with an ability to form or maintain relationships also is predictive of a better prognosis. It is important that clinicians in all medical specialties have an awareness of this ­disorder so that unnecessary investigations, admissions, and treatments, with possible iatrogenic complications, may be avoided.

REFERENCES 1. Asher R. Munchausen’s syndrome. Lancet. 1951; 1: 339–41. 2. American Psychiatric Association. Diagnostic and Statistical Manual of Mental Disorders. 5th ed. Arlington, VA: American Psychiatric Association, 2013. 3. World Health Organization. The ICD-10 Classification of Mental and Behavioural Disorders: Clinical Description and Diagnostic Guidelines. Geneva: World Health Organization, 1992. 4. Aduan RP, Fauci AS, Dale DC, Herzberg JH, Wolff SM. Factitious fever and self-induced ­infection: A report of 32 cases and review of the ­literature. Annals of Internal Medicine. 1979; 90: 230–42. 5. Downing ET, Braman SS, Fox MJ, Corrao WM. Factitious asthma: Physical approach to diagnosis. Journal of the American Medical Association. 1982; 248: 2878–81. 6. Bruns AD, Fishkin PA, Johnson EA, Lee YT. Munchausen’s syndrome and cancer. Journal of Surgical Oncology. 1994; 56: 136–38. 7. Cizza G, Nieman LK, Doppman JL, Passaro MD, Czerwiec FS, Chrousos GP, Cutler GB. Factitious Cushing syndrome. Journal of Clinical Endocrinology and Metabolism. 1996; 81: 3573–77. 8. Stern TA, Cremens MC. Factitious pheochromo­ cytoma—one patient history and literature review. Psychosomatics. 1998; 39: 283–87. 9. Guthrie E, Creed F. Seminars in Liaison Psychiatry. London: The Royal College of Psychiatrists, 1996: 144–51. 10. Gelenberg AJ. Munchausen’s syndrome with a psychiatric presentation. Diseases of the Nervous System. 1977; 38: 378–80. 11. Doherty A, Sheehan JD. Munchausen’s syndrome— More common than we realise? Irish Medical Journal. 2010; 103(6): 179–81. 12. Sutherland AJ, Rodin GM. Factitious disorders in a general hospital setting: Clinical features and a review of the literature. Psychosomatics. 1990; 31(4): 392–99. 13. Fliege H, Grimm A, Eckhardt-Henn A, Gieler U, Martin K, Klapp BF. Frequency of ICD-10 factitious disorder: Survey of senior hospital consultants and physicians in private practice. Psychosomatics. 2007; 48(1): 60–64.

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14. Popli AP, Masand PS, Dewan MJ. Factitious ­disorders with psychological symptoms. Journal of Clinical Psychiatry. 1992; 53: 315–18. 15. HG Pope Jr, JM Jonas, B Jones. Factitious ­psychosis: Phenomenology, family history, and long-term outcome of nine patients. American Journal of Psychiatry. 1982; 139: 1480–83. 16. Catalina M, Gómez V, de Cos A. Prevalence of factitious disorder with psychological symptoms in hospitalized patients. Actas Españolas de Psiquiatría. 2008; 36: 345–49. 17. Mountz JM, Parker PE, Liu HG, Bentley TW, Lill DW, Deutsch G. Tc-99m HMPAO brain

SPECT scanning in Munchausen syndrome. Journal of Psychiatry and Neuroscience. 1996; 21: 49–52. 18. Catalina M, de Ugarte L, Moreno C. A case report. Factitious disorder with psychological symptoms. Is confrontation useful? Actas Españolas de Psiquiatría. 2009; 37: 57–59. 19. Huffman JC, Stern TA. The diagnosis and ­treatment of Munchausen’s syndrome. General Hospital Psychiatry. 2003; 25: 358–63. 20. Folks DG. Munchausen’s syndrome and other factitious disorders. Neurologic Clinics. 1995; 13: 267–81.

52 Munchausen syndrome by proxy THOMAS A. ROESLER AND CAROLE JENNY Medical child abuse as an alternative to MSBP Evaluating a child for possible medical child abuse

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Medical child abuse in the courtroom 377 References 378

Until recently the physician or mental health professional asked to perform a forensic evaluation or give testimony in a case of Munchausen syndrome by proxy (MSBP) has faced a daunting task. Here are a few of the issues that have confused and perplexed the evaluator:

many different symptoms and presentations and no clear pattern combines them all.3 Confusing this situation further, if MSBP is declared to exist, does it constitute an illness? The Diagnostic and Statistical Manual of Mental Disorders, 4th Edition (DSM IV), which sets forth definitions of mental health illnesses in the  United States, does retain a description of “factitious disorder by proxy” (FDP) with wording specifying that the definition be used as a research tool until further evidence is available.4 The “research criteria” definition declares the condition to reside with the perpetrator adult. The survival of this definition for the past several decades suggests that an adult psychiatric “illness” called factitious disorder by proxy might exist. Meadow first coined the term in 1977 when academic interest in child maltreatment was still in its infancy. 5 He described two cases of children with fabricated and induced illness but suggested that having the harm be ­secondary to medical treatment somehow made this form of child abuse significantly different from other forms being described. We have since come to understand that this is not the case. The research definition in DSM-IV bears only some resemblance to the original concept of MSBP as described by Meadow and later by Rosenberg6 and others. Most importantly, it specifies as a requirement that “the motivation of the perpetrator is to assume the sick role by proxy.” The effect of this language is to shift the balance of concern from the effect of the behavior on the child to the mental state of the adult. Many people have commented on the impact this distinction has on the evaluation of MSBP.7 Therefore, a forensic evaluator might be asked if MSBP exists at all, and whether it is an illness. If it is an illness, does it apply to the child or the adult? Giving the diagnosis to the adult might represent, for some, a mitigating factor resulting in decreased responsibility for the actions of the perpetrator.

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Is there such a thing as MSBP? Is it an illness? If it is an illness, is there a commonly agreed-upon definition? Does the term MSBP refer to the child, the perpetrator adult, or both? Are there mild forms of MSBP for which child protective services are not required? Is MSBP common, or extremely rare? Is MSBP often fatal? If MSBP does not exist, does that mean the child does not need protection? If the parent has MSBP (a mental illness), does this constitute a mitigating factor against the determination that a crime has been committed? How important is it to determine the motivation of the perpetrator of MSBP? What if there is no video evidence that a parent has harmed the child? Is there any effective treatment for MSBP?

In the United States a common defense in accusations of MSBP is to argue that no such thing exists.1,2 The evidence brought forward to deny its existence ranges from lack of clear definition as to what constitutes MSBP, pointing out the logical fallacy surrounding the term, and arguing that there is no evidence base agreed upon by experts. Loosely defined, a syndrome designates a consistent pattern of symptoms seen in conjunction with one another that characterize a disease or disorder. Many authors have called attention to the fact that children abused in this way have

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What issues apply if one states that a child has the illness? Should the term MSBP apply only to children who have been smothered, or victims of some other specified abusive act? Are there mild cases of MSBP that would not warrant intervention by children’s protective services or prosecution of the adult perpetrator? Numerous references in the literature cite fatality rates of 9% or 6% as evidence that MSBP is indeed a very serious and often fatal condition.6,8 In the courtroom a defense expert can easily show that such statistics are not based on reliable scientific evidence. These numbers represent deaths in children collected from case reports of the most seriously affected children. The availability heuristic renders these estimates essentially meaningless. We know the condition can be serious because some children die from actions of caretakers, but how aggressive should prosecutors be? It has been advocated that the only current cure is to completely remove the child from the perpetrator.9 Experts in MSBP have long considered the motivation of the perpetrator to be a significant element in making the determination of presence or absence of the condition.10 The DSM-IV language makes it a necessary component. The question of determining motivation is, indeed, one of the most troublesome notions associated with the MSBP concept. Parents queried about their motivation invariably respond by saying that they were following doctors’ orders or acting in the best interest of the child. Any alternative motivation must be guessed at by the evaluator. Both the usefulness and the necessity of covert video surveillance have been questioned. Additionally, much has been written about whether it is ethical to videotape someone without his or her knowledge in a hospital setting.11,12 Videotaping a parent directly causing harm to a child in a hospital room can be very useful in gaining a conviction in a court of law.13,14 Having a jury observe a parent injecting a dangerous substance into a gastric tube or central venous access tube obviates any discussion about motivation or seriousness of the act. But what if covert videotape efforts do not catch the perpetrator in the act? What if the evidence is strong that the parent is causing the child harm, but he or she is not caught doing so during the observation period? Does this mean that the child should not be protected? As originally conceived and as later modified, MSBP has been described as untreatable.15,16 As a society we prefer for children to be raised by their mother or an established caretaker rather than in state-supported placement. But if MSBP is untreatable, is there any other option?

MEDICAL CHILD ABUSE AS AN ALTERNATIVE TO MSBP Fortunately, most of the forensic issues that have plagued the evaluation of MSBP dissolve when the behavior is viewed through the formulation of medical child abuse. Dissatisfaction with the MSBP concept has existed almost since its first description.

This shift away from discussing the eighteenth-century German aristocrat with a reputation for prevarication and toward the adverse effect of certain parental behaviors on children has evolved both in the United States and in Great Britain. Bools and others have led the effort to rename MSBP “fabricated or induced illness in a child by a carer.”17 In the United States, the American Academy of Pediatrics released a position statement in 2007 that clearly identified the need to focus concern on the abused child.18 Roesler and Jenny19 described “medical child abuse” and demonstrated how this concept is used in the diagnosis and treatment of child abuse committed by caretakers in the medical setting. Medical child abuse (MCA) or, simply, medical abuse, is the term applied when a child receives unnecessary and harmful or potentially harmful medical care at the instigation of a caretaker. In contrast to malpractice, medical abuse involves well-intentioned, competent medical treatment that meets the community standard of care based on the information available to the physician at the time it is administered. In MCA, the information provided by the caretaker causes the delivery of harmful or potentially harmful medical care. Formulated in this way, medical abuse ceases to be a mysterious, extremely rare, and frequently lethal occurrence and falls in place as another form of child maltreatment. Medical neglect results from a parent’s failing to provide needed medical care. Medical abuse is the result of the parent getting too much medical care for the child. Medical abuse shares many features with other forms of child maltreatment. Similar to physical, sexual, or psychological abuse, medical abuse manifests in many different ways. It is not an illness any more than physical abuse is an illness. Both are terrible events in the life of the child that can result in illness. Medical abuse presents on a continuum from mild to severe. Once we recognize that medical abuse presents on a continuum like other forms of child abuse, we can assume that mild forms will be more prevalent than moderate presentations, and severe occurrences will be quite rare. As with other forms of child maltreatment, mild presentations are often dismissed as substandard parenting that does not warrant the intrusion of a government agency. At a certain point, however, once a threshold has been surpassed, the community intervenes to protect the child. If the parental behavior is sufficiently egregious, criminal prosecution is initiated. These thresholds, the need for protection of the child and the determination that a crime has been committed, are both decided by a consensus of the larger community. Understanding the motivation of the perpetrator of medical abuse is just as important as it is for other forms of child maltreatment. It is not required that one understand why a child is hurt to determine that an injury has been sustained and that action should be taken to prevent it from recurring. If the plan is to reunite the child with the offending caretaker, however, it is essential to know what the caretaker was thinking when the abuse was taking place.

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EVALUATING A CHILD FOR POSSIBLE MEDICAL CHILD ABUSE The evaluation involves making a medical judgment that previously given care was not necessary and was at least potentially harmful. There also must be specific actions on the part of the caretaker that induced medical care providers to give the unnecessary treatment. Almost every physician has a patient who asks for or otherwise manages to receive care that is not absolutely necessary. In most cases there is a negotiation between the physician and the parent that results in an outcome for the child that does not include unnecessary, harmful care. When the parent’s behavior reaches a threshold resulting in abusive medical care, it usually falls to the physician prescribing the treatment to determine that inappropriate care has been administered. This is a difficult determination to make because it requires the physician to admit his or her fallibility. It often involves emotional responses from the medical caregivers ranging from surprise to shame to anger that actions taken in the best interest of the child have been twisted into something harmful or potentially harmful. It is this emotional response by physicians to having been made complicit in delivering potentially harmful treatment that has resulted in the persistence of the MSBP concept. The result has been the initial focus on the behavior of the adult perpetrator rather than the safety of the child. The physician or medical team that discovers the abuse might attempt to rectify the situation directly by stopping the unnecessary care, repairing any damage done, and renegotiating the ground rules with the parent about future care. In other instances, the physician will ask for help from a forensic physician or from a social service agency. In severe forms of MCA, the forensic evaluation can be relatively straightforward. The mother who smothers her child while being videotaped in the hospital, as demonstrated by Southall and colleagues,14 has made it easy for the evaluation team. More challenging is the child who has a real underlying medical condition, Crohn’s disease for example, and whose mother manipulates the medication in such a way that unnecessary exacerbations take place. In all cases the evaluation follows the definition. It must be established that unnecessary medical care has taken place—medical care that is harmful to the child or potentially harmful. Next, one must determine, if possible, what actions of the caretaker caused the medical providers to respond excessively. These elements often emerge in the context of a comprehensive review of the medical care administered. The review involves reading all the medical records of the child and consultation with as many providers of care as can be accessed. At this point in the process, a psychological evaluation of the caretaker is neither necessary nor particularly helpful. The primary purpose at this stage is to determine whether the child has experienced abuse and whether he or she might need protection. As with the alleged perpetrator of any other forms of abuse, an interview with the

parent can be helpful in understanding how she views the  situation. Is her story credible? Are the symptoms and  physical exam consistent with the history provided by the parent? For the abuse to stop, the forensic evaluator must unite the entire treatment team in agreeing that previous care should be reevaluated and a new care plan initiated. Without consensus of the treatment team it is almost impossible to move effectively to involve child protective services or the legal system. It is during this time that a parent will “shop” for a new doctor. Once medical abuse has been established and the harmful care suspended, the next step is to work toward maintaining the child’s safety. This involves evaluating whether the previous home environment is sufficiently prepared to keep the child from re-experiencing unnecessary medical care. Here is where the evaluation of the perpetrator becomes relevant. The several studies of perpetrators reported in the literature deal only with the parents of severely abused children. In this group, the parents have been shown to have experienced more than expected rates of abuse in their own childhood, a tendency toward somatization or expression of emotional issues through bodily complaints, and an increased prevalence of personality issues.20 These are nonspecific characteristics that do not offer much in determining whether a child would be safe going home. The interview that speaks to this question parallels that which one would do with the perpetrators of other forms of abuse. Does the parent understand the harm done to the child? Does she understand, and agree with the treatment team, that her actions resulted in the child’s being harmed or exposed to harm? Is she motivated to look at her actions and work with treatment personnel to modify what she has done in the past in order to keep the child safe? If she can commit in good faith to getting treatment for herself, is there an interim plan in place to guarantee safety while she receives help? If the answer to any of these questions is “no,” then the evaluator and the treatment team must determine whether the child can be kept safe in the home environment in the presence of a person who may repeat past behaviors.

MEDICAL CHILD ABUSE IN THE COURTROOM When dealing with both juvenile and criminal court environments, the authors recommend that a forensic evaluator studiously avoid using the terms Munchausen syndrome by proxy, factitious disorder by proxy, or pediatric condition falsification. All of these terms focus on the perpetrator’s actions rather than the harm experienced by the child. We have less difficulty with fabricated or induced illness by a caregiver, but the quicker it can be established that the issue is whether the child has been harmed in the medical setting and might need protection, the better the outcome will be. It fact, in many cases of MCA, the caregiver is

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neither “­fabricating” nor “inducing.” “Fabrication” implies purposeful deception. Many caregivers who insist on excess care think they are advocating for and protecting their children. Their anxiety or their inability to accurately assess the reality of the state of their child’s health causes them to seek inappropriate medical care. If the child is harmed as a result of an erroneous belief of the parent, the child might still require protection. Use of the MSBP concept in court proceedings has been fraught with difficulties. In Great Britain, press accounts of prosecutions of MSBP cases reached a crescendo with the call for every MSBP decision to be reopened.21 Two of the most prominent advocates for children abused in this way, Drs. Roy Meadow and David Southall, became the focus of widespread newspaper attention. Their involvement in high-profile cases prompted a reassessment of expert witness testimony in all child maltreatment cases.22 A similar but less intense public response has been seen in the United States. In the highly publicized case of Kathy Bush in Florida, the judge allowed testimony about medical care received but did not allow testimony that would establish that the mother had MSBP.23 The jury found her guilty and sentenced her to five years in prison for child abuse and fraud. In a landmark appeals case in Queensland, Australia, a mother had systematically poisoned her children with magnesium sulfate, causing them to have diarrhea, dehydration, and failure to thrive that required the children to have multiple hospital stays and many medical procedures. There were hours of videotape for the jury to review showing the mother abusing her youngest child in the hospital. The jury agreed with the prosecution that she had “tortured” her children and found her guilty. Her attorneys appealed, saying that by allowing the prosecution to have a specialist in MSBP testify, the lower court had given an unfair advantage to the prosecution case. A three-judge panel upheld the appeal and overturned the conviction. They wrote: “The issues for the jury’s determination at trial were whether the prosecution established that the appellant committed acts causing symptoms in and, or alternatively, falsely reported or fabricated symptoms of B, C and D [the children] with the intention that medical professionals will perform otherwise unnecessary procedures on them. It is purely a matter for the jury to decide the question of the appellant’s past intentions.”24 In New York State, a high-profile case used the MCA concept to change the way these cases are prosecuted.25 The case involved a mother claiming that her toddler had seizures when in fact this was not true. The child was placed in state custody and had no seizures when off all medication. When the case came to trial, the forensic team used the term MCA instead of MSBP. Even in the absence of any mention of MSBP by the prosecution, the defense in the case called an MSBP witness to evaluate the mother and testify that she did not have the “illness.” The prosecution

based its case not on MSBP but on the actions of the mother that placed the child in harm’s way. The judge ignored the  MSBP testimony and, instead, based her decision on existing law. New York State’s legal definition of child abuse includes the statement that child abuse exists when a person “…­creates or allows to be created a substantial risk of physical injury to such child by other than accidental means which could be likely to cause death or serious or protracted disfigurement…”26 The judge in the New York case went on to write, “… mother’s affirmative and intentional acts of repeatedly bringing her infant and then toddler to multiple hospitals and doctors, repeatedly claiming that Anesia suffered from repeated and severe seizures for more than a year, created and allowed to be created by the medical community, a substantial risk of physical injury leading to serious physical injury to Anesia.” She added, “No specific intent to injure or specific motive is necessary for a finding of abuse.” Prior to this case, MSBP in New York State had been considered a form of neglect and, as such, was a­ djudicated as a misdemeanor. Simply by defining it as medical abuse, the felony child abuse statute was applied. The mother was found guilty, and the verdict was upheld by unanimous decision on appeal to the Supreme Court of New York. 27

REFERENCES 1. Mart E. Munchausen’s Syndrome by Proxy Reconsidered. Manchester, NH: Bally Vaughn Publishing, 2002. 2. Allison DB, Roberts MS. Disordered Mother or Disordered Diagnosis? Munchausen by Proxy Syndrome. Hillsdale, NJ: Analytic Press, 1998. 3. Fisher GC, Mitchell I. Is Munchausen syndrome by proxy really a syndrome? Archives of Diseases of Childhood. 1995; 72: 530–34. 4. American Psychiatric Association. Diagnostic and Statistical Manual of Mental Disorders. 4th ed. Washington, DC: American Psychiatric Association, 1994. 5. Meadow R. Munchausen syndrome by proxy. The hinterland of child abuse. Lancet. 1977; 2(8033): 343–45. 6. Rosenberg DA. Web of deceit: A literature review of Munchausen syndrome by proxy. Child Abuse and Neglect. 1987; 11: 547–63. 7. Ford CV. Ethical and Legal Issues in Factitious Disorders: An Overview. In: The Spectrum of Factitious Disorders. Eds. Feldman MD, Eisendrath SJ. Washington, DC: American Psychiatric Press, Inc., 1996: 51–63. 8. Sheridan MS. The deceit continues: An updated literature review of Munchausen Syndrome by Proxy. Child Abuse and Neglect. 2003; 27: 431–51. 9. Bosch JJ. Munchausen syndrome by proxy. Journal of Pediatric Health Care. 1997; 11: 242, 252–54.

References 379

10. Schreier H. On the importance of motivation in Munchausen by Proxy: The case of Kathy Bush. Child Abuse and Neglect. 2002; 26: 537–49. 11. Evans D. Covert video surveillance in Munchausen’s syndrome by proxy. British Medical Journal. 1994; 308(6924): 341–42. 12. Yorker BC. Covert video surveillance of Munchausen syndrome by proxy: The exigent circumstances exception. Health Matrix Cleveland. 1995; 5: 325–46. 13. Hall DE, Eubanks L, Meyyazhagan LS, et al. Evaluation of covert video surveillance in the diagnosis of Munchausen syndrome by proxy: Lessons from 41 cases. Pediatrics. 2000; 105: 1305–12. 14. Southall DP, Plunkett MC, Banks MW, et al. Covert video recordings of life-threatening child abuse: Lessons for child protection. Pediatrics. 1997; 100: 735–60. 15. Alexander R. The Munchausen by Proxy Family. In: Munchausen Syndrome by Proxy: Issues in Diagnosis and Treatment. Eds. Levin AV, Sheridan MS. New York: Lexington Books, 1995: 59–69. 16. Kinscherff R, Famularo R. Extreme Munchausen syndrome by proxy: The case for termination of parental rights. Juvenile and Family Court Journal. 1991: 41–53. 17. Bools C. Fabricated or Induced Illness in a Child by a Carer. Oxford: Radcliffe Publishing, Ltd, 2007. 18. Stirling J, American Academy of Pediatrics Committee on Child Abuse and Neglect. Beyond Munchausen syndrome by proxy: Identification and treatment of child abuse in a medical setting. Pediatrics. 2007; 119: 1026–30.

19. Roesler TA, Jenny C. Medical Child Abuse: Beyond Munchausen Syndrome by Proxy. Elk Grove Village, IL: American Academy of Pediatrics Press, 2009. 20. Bools CN, Neale BA, Meadow SR. Co-morbidity associated with fabricated illness (Munchausen syndrome by proxy). Archives of Diseases of Childhood. 1992; 67: 77–9. 21. Doward J. Ministers told child harm theory was flawed. The Observer, London, posted January 25, 2004. Available from: http://www.guardian.co.uk/ uk/2004/jan/25/childrensministry.highereducation. 22. Wall LJ. Medical evidence in child abuse cases: Problem areas. Family Law. 2008; 320–33. 23. Schreier HA. Proposed definitional guidelines for Munchausen by proxy: A cautionary note. American Academy of Child and Adolescent Psychiatry News. March/April, 2000: 77–78. 24. R v. LM, Vol QCA 192. Queensland, Australia: Supreme Court of Queensland, 2004. 25. In the Matter of Anesia E. A Child under Eighteen Years of Age Alleged to be Abused by Antoinette W., Respondent. Sangenito I, Whittig T, Fee L. Family Court, Kings County, New York; 2004. Available from: http://law.justia.com/cases/new-york/ other-courts/2004/2004-50736.html. 26. N.Y. FCT. LAW §1012: NY Code–Section 1012: Definitions. 27. In the Matter of Anesia E. (Anonymous). Administration for Children’s Services, respondent; and Antoinetta W. (Anonymous), appellant. Supreme Court of New York, Appellate Division, Second Department; 2005.

53 Juvenile delinquency SHARON DAVIES AND CLAIRE DIMOND Oppositional defiant disorder 381 Conduct disorder 381 Risk factors for the development of antisocial behavior 381 Sex differences 382 Callous–unemotional traits 382 Course 382 Outcomes 382 Treatment of conduct disorder in children and adolescents 382 Treatment of adolescents with conduct disorder 383

Functional family therapy 384 Multisystemic therapy 384 Multidimensional treatment foster care 384 Brief strategic family therapy 384 Cognitive behavioral interventions 384 Ineffective interventions for young offenders 384 Conclusion 385 References 385 386 Further reading

Antisocial behavior in children and adolescents is a ­significant clinical and social problem, adversely affecting individuals, families, schools, and the wider ­community. Offending behavior constitutes one outcome of a progression of disordered behavior that includes oppositional ­defiant disorder (ODD), conduct disorder (CD), and ­antisocial personality disorder. This chapter describes the types of antisocial behavior linked with offending, the risk factors for such behavior, and their course and outcome. The authors briefly refer to early intervention programs but focus on interventions with some evidence for effectiveness in reducing reoffending in adolescence.

CONDUCT DISORDER

OPPOSITIONAL DEFIANT DISORDER Oppositional defiant disorder (ODD) (DSM IV)1 is a common disorder among children (prevalence in community samples is 2.6%–15.6% and in clinic samples is 28%–65%) and defines a pattern of negativistic, defiant, disobedient, and hostile behavior toward authority ­ figures. Traditionally seen as a more benign and self-limiting condition, emerging evidence proposes that in addition to acting as a precursor to antisocial behavior, ODD is more worryingly linked to later mood disorders and anxiety symptoms, and accounts for the previously observed ­co-occurrence of CD with such problems. Although only a proportion of children with ODD develop CD, ODD is a significant risk factor for CD.2

CD describes a repetitive and persistent pattern of behavior in which the basic rights of others or major age-­appropriate norms or rules are violated.1 It is the most common childhood problem in clinic populations. Two subtypes are described in DSM IV: (1) a smaller childhood-onset group (one criterion before age 10 years) and (2) a larger adolescentonset group (no criterion before age 10 years). This distinction is supported by evidence suggesting different courses and prognoses. Longitudinal studies have shown that the childhoodonset persistent type generally is characterized by severe family adversity, parental antisocial behavior, greater genetic liability, perinatal complications, neurocognitive deficits, low intelligence, inattention, impulsivity, school difficulties, and peer difficulties, factors that do not figure prominently in adolescent-onset CD. Antisocial behavior in adolescence is more likely to be influenced by association with delinquent peers, and social factors leading to ­adolescents’ perception that they achieve increased social status from such association.3

RISK FACTORS FOR THE DEVELOPMENT OF ANTISOCIAL BEHAVIOR A landmark study of the development of risk factors for offending and antisocial behavior in childhood identified six key predictors at age 8–10 years, which more recent 381

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research has confirmed. These are antisocial behavior (such as being troublesome at school, dishonest, and aggressive); hyperactivity, impulsiveness, and attention deficit; low intelligence and poor attainment; family criminality; family poverty, including low income, large family size, and poor housing; and poor parenting (harsh and authoritarian discipline, poor supervision, parental conflict, and separation from parents).4 Psychosocial risk factors before the age of 5 years are also  strong predictors of conduct problems and criminal convictions, with prenatal maternal smoking highlighted as a very strong predictor.5 Other parental variables strongly predictive of risk include low cognitive stimulation and maternal depression. It is hypothesized that early influences are pivotal in the development of more serious and persistent antisocial behavior. Early insults to the brain may result in neuropsychological deficits that increase vulnerability to negative interactions, with adverse social and environmental risk factors leading to increased likelihood of antisocial behavior development.

SEX DIFFERENCES In general, antisocial behavior is much more common in males and has a large increase in prevalence during adolescence. Early onset and persistent cases of antisocial behavior are rare, but in this subgroup males outnumber females in a ratio of 10:1. The majority of antisocial behavior by females is adolescent limited, such that the rates of antisocial behavior are almost equal between the sexes for this group (ratio of 1.5:1). Girls and boys have similar associations for early risk factors and antisocial outcomes, although boys are more exposed to such risk factors, explaining their higher rates of antisocial behavior.6

CALLOUS–UNEMOTIONAL TRAITS Recent years have seen a focus on the study of “callous– unemotional” (CU) traits (lack of guilt, absence of empathy, and callous use of others) as a potential way of identifying those children and adolescents who are at greater risk of serious and persistent antisocial behavior. Emerging evidence suggests that the presence of CU traits predicts more serious antisocial acts, delinquency, and higher rates of recidivism for young offenders, and more severe and persistent psychopathology.7 It is thought that CU traits might identify unique features that are not captured by ODD and CD diagnoses alone. Evidence from the developing research base supports the notion that CU traits may identify a specific form of CD, with more serious antisocial behavior, a specific neurocognitive profile, and a higher degree of genetic heritability. Antisocial children with CU traits have been found to have a heritability of about 80% (without contribution from common environmental influences) compared to 30% for such children with low CU traits who were also more prone to environmental influences.8

CU traits may also predict later delinquency (even t­ aking into account conduct problems and their severity) and describe a subgroup of antisocial young people at greater immediate and future risk for delinquency, which has an onset at a younger age.9 Research into CU traits is controversial for some, who see possible harm in the association with psychopathy research, leading to the labeling of young people whose personality is still developing and may be more amenable to change. This could result in the hindering of attempts to provide effective treatment owing to the associated implication that like adult psychopathy, it is “untreatable.”

COURSE Only a small minority (5%–10%) of antisocial youth continue offending over their life span. Even among very antisocial children, less than 50% are antisocial as adults.10 While most persistent offenders are early-onset delinquents, half of childhood-onset delinquents are no longer seriously delinquent by age 18 years.11 Those whose antisocial behavior persists are thought to be more likely to have early neurocognitive damage, which results in increased vulnerability to adverse environmental and social risks.6 Neuropsychological ­ problems, especially deficits in verbal skills and impaired executive functioning, such as impaired ability to problem solve and reduced inhibition of aggressive responses, are linked to development and maintenance of antisocial behavior.12

OUTCOMES Although CD among 7- to 12-year-old boys is a strong predictor of antisocial personality disorder (ASPD), the ­ majority of boys with conduct disorder do not progress to ASPD. Outcomes are worse for childhood-onset persistent CD, with higher rates of convictions for violent offenses and incarceration, and higher rates of mental health problems including personality disorder and substance abuse. Work and family life are also affected, as is physical health, with more injuries, more sexually transmitted diseases, higher smoking rates, and more respiratory diseases.

TREATMENT OF CONDUCT DISORDER IN CHILDREN AND ADOLESCENTS A number of reports and literature reviews13–16 have ­identified interventions that have “strong evidence”14 for effectiveness for children and for young people. This chapter focuses on summarizing the current evidence in relation to the treatment of adolescents with CD who as a consequence of their disorder have contact with the youth justice system. Young people who offend may have other mental health disorders, including mental illnesses, and it is beyond ­ the scope of this chapter to discuss effective interventions for them.

Treatment of adolescents with conduct disorder  383

It is important, however, to mention the debate and literature regarding interventions that aim to be preventative. One of the most researched early education interventions for the prevention of conduct disorder is the Perry pre-school project (www.highscope.org), which provides high-quality early childhood education to children aged 3 and 4. The Fast Track project (www.fasttrackproject.org) is a preventative program that was targeted at a high-risk group of children. Schools in four sites in the United States were selected as high risk based on neighborhood crime and poverty levels. After screening approximately 10,000 children, 891 highest risk and moderate risk children were randomly assigned to intervention or control conditions. Ten-year intervention included parent behavior management training, child social cognitive skills training, r­ eading tutoring, home visiting, mentoring, and a universal classroom curriculum. Results have indicated that intervention is effective only among those at highest risk. In the United Kingdom, the Sure Start early preventive program was launched in 1998 and received a large amount of government investment. Sure Start aims to support young children and families by integrating early education, child care, health care, and family support services. Sure Start centers are situated in areas of high deprivation, and within those areas all children under 5 years of age and their families are served. The fact that services within a Sure Start local program area would be universally available was seen as an advantage, thereby limiting any stigma. Funding was provided without direction from the government about which services should be delivered. The thinking behind this decision was that local services should develop according to local need and be owned by the local community. Widely varying services were developed, and thus evaluation has been difficult and results mixed (www.ness.bbk.ac.uk). In relation to both the prevention of CD and the treatment of children with CD, parent management training (PMT) is the most well-investigated and -established of the evidence-based treatments. PMT programs that are recognized to have the strongest evidence are The Incredible Years (www.theincredibleyears.com.uk) and the Triple P, Positive Parenting Program (www.positiveparenting.com).

TREATMENT OF ADOLESCENTS WITH CONDUCT DISORDER In a report titled “The Youth Justice System in England and Wales: Reducing Offending by Young People,”17 recommendation number 1 is, “There is little robust information available to Youth Justice Practitioners about which activities are likely to be most effective in preventing offending or reducing the risk of further offending. The Ministry of Justice and the Youth Justice Board should urgently commission joint work to evaluate and improve the effectiveness of activities, whether preventative or

rehabilitative, that are intended to reduce offending by young people.” The following systemic/family interventions have the strongest evidence base for reducing reoffending in young people with conduct disorder. ●● ●● ●● ●●

Functional family therapy (FFT). Multisystemic therapy (MST). Multidimensional treatment foster care (MDTFC). Strategic family therapy (SFT).

Currently, few PMT programs have been developed specifically for adolescents; thus, conclusions about the effects of PMT on its own for adolescents, particularly those who offend, is limited. However, PMT techniques are used in FFT, MST, and MDTFC. Effective interventions have a number of shared features, as follows: ●●

●●

●●

●●

●●

●●

●●

●●

●●

They are informed by the evidence base regarding risk and protective factors obtained from the longitudinal prospective studies previously cited. They are informed by a systemic approach, that is, that offending occurs in the context of a young person’s relationships with his or her family and wider systems including school, peers, and community, and therefore interventions need to address some or all of these relationships. The role of the long-term caregiver is viewed as essential. The models are strength based and focus on enhancing protective factors as well as reducing risk factors. There is a focus on engaging the family, particularly in the early stages, so that they remain in treatment. Engagement is seen as an aspect of the task of the professional providing therapy. The interventions are provided in a clinic, at home, or in the community to increase engagement. The interventions are short-term, 4–6 months, but intensive. In FFT, young people and their families attend an average of 12 sessions over a 3- to 4-month period, although this number is up to 26 sessions for some families. Brief strategic family therapy (BSFT) occurs in 12–16 sessions lasting from 60–90 minutes over 3 months. MST therapists provide services 24/7 and carry caseloads of 4–6 families each for an average of 4 months. The interventions are manualized, and considerable attention is paid to treatment adherence and fidelity with significant amounts of supervision. Outcome measures are evaluated, including documented recidivism, self-reports of criminal offending, days in out-of-home placement, behavioral problems and family relations, peer relations, and school attendance. MST has provided evidence of positive effects of treatment 10 to 15 years after treatment, and FFT trials independent of the developer have demonstrated

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●●

recidivism rates 20%–30% lower than in control groups up to 5 years after treatment. They all show considerable cost savings. For example, in the United Kingdom, placing a young offender in a Young Offender Institution costs approximately £55,000 per annum, and placing a young person in care costs on average £40,000 per annum, whereas the pilot FFT service costs £220,000 and works with 120 cases at a cost of £2,240 per case.

Functional family therapy FFT (www.fftinc.com) utilizes principles of systems theory and behavioral modification to alter interaction, communication patterns, and problem solving among family members. The intervention program has five major components once treatment has been set up within an appropriate framework. ●●

●●

●●

●●

●●

Engagement: The aim is to enhance the perception that change is possible, to minimize negative perceptions of therapy, and to establish a positive alliance. Reframing technique may be used extensively during this phase. Motivation: The goal of this phase is to create a positive context, minimizing hopelessness and low self-efficacy, and changing the meaning of family relationships to emphasize possible hopeful experience. Relational assessment: The aim of this phase is to switch from an individual problem focus to a relational perspective. Behavior change: Behavior change goals are identified. Techniques used to address the focus of behavior change include communication training and parent management training techniques. Generalization: The primary focus of this phase is on the relationships between the family members and the community. Relapse prevention plans are created, and the therapist may work as an advocate for other community resources.

Multisystemic therapy MST programs (www.mst services.com) integrate a number of evidence-based interventions, including structural and strategic family therapies, cognitive behavioral therapies, pharmacological interventions, and behavioral ­interventions—for example, parental management. Thus, MST requires the therapist to provide several different interventions to a high standard.

Multidimensional treatment foster care MDTFC began as an alternative to institutional, residential, and group care placements for young people with severe and chronic delinquent behavior. Young people are placed in a foster home for 6–9 months. The aim of the foster placement

is to effect change in the behavior of young people and to prepare them for return to their families or placement in a different home. The four key elements of the foster placement include a daily structure that includes clear expectations, limits, and consequences; close supervision and monitoring of the young person; and encouraging prosocial peer contacts. It is based on social learning theory, and young people are positively reinforced, or they are positively encouraged to perform specific behaviors that will improve their skills. Foster parents are trained in behavioral programs that focus on behaviors such as getting up on time, attending school, positive behavior in class and at home, and following directions. The parents to whom the child returns also  receive parent management training and possibly family therapy.

Brief strategic family therapy BSFT emerged from a series of studies involving Hispanic youths and now includes youths from a number of different cultural backgrounds. It is informed by a cultural frame of reference. The treatment focuses on the structure of the family and concrete strategies that can be used to promote improved patterns of interaction. As noted by Kazdin,14 there has been “very little attention to ethnic issues in trial psychotherapy with children and adolescents and this programme has been exemplary.”

Cognitive behavioral interventions These interventions have been reviewed by Kazdin14 and include problem-solving skills (PSSTs) and anger management skills. Many versions of treatment are available in manual form. Cognitive problem-solving skills training (PSST) focuses on cognitive processes that underlie social  behavior and response repertoires in ­interpersonal  situations. A  number of core elements of effective problem-solving skills training have been identified.14 PSST is a promising treatment for conduct disorder, but currently there is not strong evidence to show that it reduces offending behavior.

INEFFECTIVE INTERVENTIONS FOR YOUNG OFFENDERS Some interventions, for example harsh military-style shock incarceration, “boot camps,” peer counseling, and summer jobs for at-risk youth, are ineffective.13 The Scared Straight program attempts to deter young people by frightening them with visits to prisons. A meta-analysis of nine controlled trials found that this intervention was on average more harmful than no intervention.18 In relation to effective interventions, future areas for research include the following: ●●

Attention to learning and cognitive ability and how this influences any intervention. It is recognized that young people who offend show significant rates of

References 385

●●

●●

●●

●● ●● ●●

learning disability and that a significant proportion of young people have poor literacy and educational achievement. Attending to cultural issues such as race, religion, and social circumstances, and how these influence engagement. How to reduce rates of initial non-engagement and dropout. The little evidence that is available suggests that key factors that predict failure are families where parents have mental health problems, where there is substance abuse, or where there is a history of serious abuse or neglect. Determining the critical elements of the interventions. Determining the mechanisms of therapeutic change. Obtaining more long-term outcome studies. Promoting effectiveness of dissemination sites.

There are currently randomized controlled trials (RCT) of FFT and MST to ascertain whether these interventions can be effective in the United Kingdom. If these ongoing trials demonstrate that these interventions are effective, it will be a huge challenge to disseminate these interventions to professionals and children and families and to integrate them with current services. There are no trials that show which interventions are effective at reducing offending for young people in secure residential facilities. The reconviction rate for young people ages 16–18 released from secure custody is 75% within a year.19 Given that the evidence base in the community is for systemic/family interventions, it is important that for young people in secure custody, careful planning occurs to attend to these aspects and include them in treatment plans. This is particularly important in the transition between custody and the community.

CONCLUSION Devising effective treatments for antisocial behavior is important not only because such treatments can prevent later comorbidity in affected individuals but also because they have a significant social impact on communities. Research into subtypes of antisocial behavior, including ­ callous– unemotional traits, may have relevance for the development of more specific treatments, if longitudinal studies support the validity of these concepts.

REFERENCES 1. American Psychiatric Association. Diagnostic and Statistical Manual of Mental Disorders. 4th ed. Arlington, VA: American Psychiatric Association, 1994. 2. Loeber R, Burke J, Pardini DA. Perspectives on oppositional defiant disorder and p ­ sychopathic features. Journal of Child Psychology and Psychiatry. 2009; 50(1–2): 133–42.

3. Moffitt TE. Life-course-persistent versus Adolescence-Limited Antisocial Behavior. In: Developmental Psychopathology. Vol. 3. 2nd ed. Eds. Cicchetti D, Cohen DJ. Hoboken, NJ: John Wiley & Sons, 2006: 570–98. 4. Farrington DP. The development of offending and antisocial behaviour from childhood: Key ­findings from the Cambridge Study in Delinquent Development. Journal of Child Psychology and Psychiatry. 1995; 360: 929–64. 5. Murray J, Irving B, Farrington DP, Colman I, Bloxsom CAJ. Very early predictors of conduct problems and crime: Results from a National Cohort Study. Journal of Child Psychology and Psychiatry. 2010; 51: 1198–1207. 6. Moffit TE. Life Course Persistent Versus Adolescence Limited Antisocial Behaviour. In: Developmental Psychopathology. 2nd ed., Vol. 3: Risk, Disorder and Adaptation. Eds. Cicchetti D, Cohen DJ. New York: Wiley, 2003: 570–98. 7. Rowe R, Maughan B, Moran P, Ford T, Brickman J, Goodman R. The role of callous and unemotional traits in the diagnosis of conduct disorder. Journal of Child Psychology and Psychiatry. 2010; 51(6): 688–95. 8. Viding E, Blaire RJR, Moffitt TE, Plomin R. Evidence for substantial genetic risk for psychopathy in 7 year olds. Journal of Child Psychology and Psychiatry. 2005; 46: 592–97. 9. Frick PJ, White SF. Research review: The importance of callous-unemotional traits for developmental models of aggressive and antisocial behaviour. Journal of Child Psychology and Psychiatry. 2008; 49(4): 359–75. 10. Robins LN. Sturdy childhood predictors of adult antisocial behaviour: Replications from longitudinal studies. Psychological Medicine. 1978; 8: 611–22. 11. Moffit TE, Caspi A, Dickson N, Silva P, Stanton W. Childhood onset versus adolescent-onset antisocial conduct problems in males: Natural history from ages 3 to 18 years. Development and Psychopathology. 1996; 8: 399–424. 12. White HR, Bates ME, Buyske S. Adolescence-limited versus persistent delinquency: Extending Moffit’s hypothesis into adulthood. Journal of Abnormal Psychology. 2001; 110(4): 600–9. 13. Center for the Study and Prevention of Violence. Boulder, CO: University of Colorado. 14. Kazdin A. Psychosocial Treatments for Conduct Disorder in Children and Adolescents. In: A Guide to Treatments That Work. Eds. Nathan PE, Gormans JM. New York: University Press, 2007. 15. Utting D, et al. Interventions for Children at Risk of Developing Anti-social Personality Disorder. London: Policy Research Bureau, 2007. 16. National Institute for Health and Clinical Excellence (NICE). Anti-social Personality Disorder— Treatment, Management and Prevention. London: NICE, 2009.

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17. National Audit Office. The Youth Justice System in England and Wales: Reducing Offending by Young People. London: National Audit Office, 2010. 18. Scott S. An update on interventions for conduct disorder. BJPsych Advances. 2008; 14: 61–70. 19. Ministry of Justice statistics bulletin. Re-offending of Juveniles: Results from a 2007 Cohort England and Wales. Norwich, UK: National Criminal Justice Reference Service, 2009.

FURTHER READING Moffit TE, Caspi A, Rutter M, Silva PA. Sex Differences in Antisocial Behaviour: Conduct Disorder, Delinqency and Violence in the Dunedin Longitudinal Study. Cambridge, UK: Cambridge University Press, 2001.

54 Adolescent sex offenders JAMES ROKOP AND DOUGLAS P. BOER Introduction 387 Heterogeneity of adolescents who sexually offend 387 Characteristics of the adolescent sexual offender 387 Assessment 388 Risk assessment 388

Treatment 389 Conclusion 389 References 389 Further reading 391

INTRODUCTION

of child maltreatment, social and interpersonal skills and relationships, sexual knowledge and experiences, academic and cognitive functioning, and mental health issues.8

The label adolescent sex offender is burdened with preconceptions and is least harmfully and most accurately viewed as an administrative classification for crimes.1 In the United States, juveniles committed 15% of all forcible rape arrests reported in 2009. However, rates of sexually offending are declining. According to the U.S. Department of Justice, the forcible rape arrest rate has fallen 58% from its 1991 peak, the lowest in three decades. Seemingly at odds with this downward trend, there has been a significant departure from the way in which juvenile offenders have been traditionally handled by the juvenile justice system in some countries. For example, in the United States, Megan’s Law (1996), the Adam Walsh Protection and Safety Act of 2006, and the federal Sex Offender Registration Notification Act (SORNA) are examples of tough laws with the goal of unified registration and public notification of all sex offenders. Adolescent sex offenders can even face possible post-­incarceration civil commitment.2 The premises of these laws are built on faulty assumptions,3 evidence of a deterrence effect is lacking,4 and the treatment community appears to have little confidence that these laws enhance public safety.5

HETEROGENEITY OF ADOLESCENTS WHO SEXUALLY OFFEND Adolescent sex offender denotes a well-defined taxonomy that is in fact misleading. Adolescent sex offenders tend to be more similar to other adolescent offenders,3 and sexual offending typically forms only one aspect of a more varied criminal pattern.6 These offenders are often more likely to reoffend nonsexually7 and are heterogeneous along a number of dimensions including types of offending behaviors, histories

CHARACTERISTICS OF THE ADOLESCENT SEXUAL OFFENDER Theories on sexual offending include those from evolutionary, biological, cognitive, behavioral, personality, social learning, self-regulation, and attachment perspectives.9,10 Integrative theories, for example, Marshall and Barbaree’s Integrated Developmental Model11 and Stinson, Sales, and Becker’s Multimodal Self-Regulation Theory,10 attempt to integrate concepts from several models and offer a developmental perspective. Although heterogeneous, characteristics of the adolescent sex offender have been identified through direct comparisons with their non–sexual-offending adolescent counterparts. Seto and Lalumiere’s meta-analytic study of 59 independent studies12 found that adolescent sex offenders had less ­extensive criminal histories, fewer antisocial peers, fewer conduct problems (when using sources other than self-report), and fewer substance abuse problems. They also reported more psychopathology in the form of anxiety and low self-esteem, and more experiences of sexual abuse, physical abuse, emotional abuse, and neglect. Those who offend children were more often sexually abused than were sex offenders against peers. Adolescent sex offenders also reported more early exposure to sex or pornography and reported more atypical sexual fantasies, behaviors, or interests, or were more often diagnosed with a paraphilia. Surprisingly, the authors found that adolescent sex offenders did not differ from those who do not sexually offend across nine studies that reported antisocial attitudes and beliefs about sex, women, or sexual offending. 387

388  Adolescent sex offenders

Another surprising finding was that adolescent sex offenders were not s­ ignificantly different on measures of antisocial personality traits despite being lower on ­measures of antisocial or criminal behavior. Interestingly, the authors also found that the two groups differed on measures of social isolation but not on measures of general social skills. Clinical and empirically derived typological research also have highlighted the unique characteristics of different adolescent sexual offender subgroups. It has been found that adolescent sex offenders can be consistently classified into three groups: child, peer, and mixed,42 suggesting different etiologies13 that may be important to consider in treatment planning.14 Adolescent sexual offenders of children versus peers or adults have been shown to be younger at the time of the offense; are more likely to victimize related and male ­v ictims, to engage in more intrusive offending such as touching and masturbation of the victim,14 and to have social deficits; have lower self-esteem13; are more apt to experience s­ ymptoms of depression and anxiety15; and are more sexually preoccupied.16 Those with male child victims, in particular, display the greatest levels of deviant arousal.17 Research on adolescent sex offenders who target peers and adults has found that they are more likely to act in concert with a co-conspirator and commit nonsexual offenses in conjunction with their sexual crimes,18 are more antisocial,15 exhibit a relatively low level of sexual preoccupation, and have a higher proportion of female victims and victims who are strangers.18 Consistent with social learning theory, these offenders have also witnessed family violence more frequently and are more likely to have criminally involved family members.13

ASSESSMENT Formal assessment is critical for understanding and treating  the adolescent sex offender,19 and risk should be evaluated across multiple domains.20 Individual factors (personality, behavioral, cognitive, and academic) and social context (family, peers, school, and community) should be considered, and the common presence of neurodevelopmental disorders may suggest the need for additional assessment competencies among professionals.21 According to the principles underlying the risk needs responsivity (RNR) model, assessments should also be individualized and address criminogenic needs (dynamic factors linked to criminal behavior) and strengths of the offender.22 Some programs also utilize psychophysiological instruments to assess for the presence of deviant arousal and sexual interest.5 These instruments include penile plethysmography, which measures penile tumescence in response to various sexual and nonsexual stimuli, and visual time measures, which examine viewing time in relation to slides varied by gender and age. Polygraphy is also used, primarily by programs in the United States, to verify the offender’s sexual history, details of specific behavioral concerns, and treatment and supervision compliance.

RISK ASSESSMENT Risk assessment with adolescent sex offenders has evolved over time but still lacks refinement, empirical support, and the ability to make precise probabilistic estimates of sexual and nonsexual recidivism.23 It has been argued that the goal of adolescent risk assessment should be ­prevention, treatment, case management, and supervision versus prediction.24 This appears further justified by the low overall rates of sexual re-offense among adolescents.7 Although risk factors that predict adult sexual reoffense can predict sexual re-offense in adolescents, 25,26 it  remains unclear whether adult sex offender risk factors and tools should be utilized. Most adolescents desist in their offending by adulthood,7 and the fluid nature of adolescent offending warrants a developmentally sensitive, flexible, 20,27 and dynamic approach as well as the need for shorter reassessment intervals.24 Furthermore, additional factors such as peer group associations, family dynamics, involvement in conventional pursuits, and community factors should be considered.8 According to the most recent Safer Society 2009 North American Survey,5 three structured risk assessment instruments, the ERASOR,28 the J-SOAP-II,29 and the JSORRAT-II,30 were the most commonly used risk assessments for adolescent male juvenile sex offenders between the ages of 12 and 18. The J-SOAP-II and the ERASOR represent empirically guided or structured professional judgment approaches, while the J-SORRAT-II is an actuarial measure. Actuarial approaches like the J-SORRAT-II comprise factors correlated with sexual re-offense that are static or historical in nature. These approaches can provide  risk estimates based on group comparisons with known recidivists. Although the assessments are easy to use, some controversy in the adult literature surrounds the appropriateness of their use in the prediction of an individual’s risk of re-offense. 31,32 They also lack comprehensiveness and the ability to address case-specific factors, 5 and the effects of base rate variability may have an impact on their predictive accuracy. 33 Empirically guided approaches include dynamic factors essential for measuring treatment progress and changes to risk level.34 Unlike actuarial scales, these approaches do not utilize numerical scoring to determine a specific probability of a re-offense, and the final risk determination remains a clinical judgment. Studies examining the predictive validity of adolescent instruments, however, have shown mixed results, and using more than one instrument may be desirable.35 The mixed results may be due to a variety of factors including sample variation, low re-offense rates, and the heterogeneity of adolescent sex offending. More recently, however, a meta-analytic direct comparison26 did find that the J-SORRAT-II, J-SOAP-II, and ERASOR, as well as an adult actuarial tool, the Static-99, were all equally and moderately predictive of sexual recidivism in adolescent sex offenders.

References 389

Despite the advances in adolescent risk assessment, current methods appear to require further cross-validation and item refinement. Tools are also not adequately capturing developmental and risk differences among adolescent age subgroups, persistent factors that may predict adult sexual offending, protective factors specific to adolescent sex offenders, and relevant risk and treatment factors for intellectually or developmentally delayed offenders and female adolescent sexual offenders.

TREATMENT Specialized sex offender treatment appears effective in lowering risk 36 for both sexual and nonsexual offenses, even after long-term follow-up.37 Cognitive behavioral theories remain the most widely used theories defining most programs, although some programs have evolved to become more individualized and holistic.38 The relapse prevention model has decreased in popularity, likely because of criticisms about its unitary pathway approach, overemphasis of avoidance versus approach goals, and lack of empirical support.39 Models that appear to be slowly replacing relapse prevention include self-regulation, RNR, and the good lives model (GLM). The proven effectiveness of multi-systemic therapy has also encouraged the development of evidence-based treatments for adolescent sex offenders.40 Although currently in use by only a minority of North American programs,5 treatment and management are considered to be most effective when following the principles of the RNR model,22 which encourages the assessment of criminogenic needs and individual ability and learningrelated factors for treatment planning and dosage. Interventions with adolescent sex offenders should be developmentally sensitive and address time periods when risk is higher. Cognitive changes, hormonal changes, family and peers, judgment, impulse control, bonds to school and other pro-social groups, and response to social stressors such as child abuse may play a role in repeated adolescent sexual offending.7 Despite varying levels of empirical support, Ellerby and colleagues found that the most common treatment targets for Canadian adolescent and child programs included victim awareness and empathy, intimacy/relationship skills, problem solving, social skills, and family support networks. In 2009, one-quarter of Canadian adolescent male programs also used medications to treat sexual arousal control problems and sexually obsessive thoughts.39 In the United States, more than half of programs for adolescent males also use one or more behavioral sexual arousal control techniques, with covert sensitization being the most popular. Adolescent and children’s programs have slightly higher completion rates than adult programs, 39 and treatment completion is a meaningful concept that has been associated with sex offender recidivism.41 Factors that influence treatment amenability and failure include being a “mixed” offender (who victimized both children and peers/adults), impulsivity, age (older), unsupportive

parenting, and unwillingness to alter deviant sexual interests/attitudes.16,42–44

CONCLUSION Adolescent sexual offenders are best described as a heterogeneous population most similar to their non– ­ sexual-offending peers with some unique characteristics that may warrant further consideration through individualized and comprehensive assessment and treatment. General antisociality and atypical sexuality remain the primary pathways to offending. A comprehensive, multimethod, and multi-measure approach to assessment continues to be warranted given the diversity of offending etiologies. The development of reliable and valid risk assessment procedures and tools is still evolving, as are treatment approaches that increasingly rely on empirical support, the individualized needs of the offender, and greater understanding and incorporation of the ecology that contributes to adolescent sexual offending. Populations of offenders that continue to warrant further study with regard to assessment, risk, and treatment include female and developmentally delayed adolescent sexual offenders.

REFERENCES 1. Chaffin M. Our minds are made up—Don’t confuse us with the facts: Commentary on policies concerning children with sexual behavior problems and juvenile sex offenders. Child Maltreatment. 2008; 13(2): 110–21. 2. Nguyen Q, Pittman N. A Snapshot of Juvenile Sex Offender Registration and Notification Laws: A Survey of the United States. 2011. Available from: http://www.njjn.org/uploads/digital_library/ SNAPSHOT_web10-28.pdf. 3. Letourneau EJ, Miner MH. Juvenile sex ­offenders: A case against the legal and clinical status quo. Sexual Abuse: A Journal of Research and Treatment. 2005; 17: 313–31. 4. Letourneau EJ, Bandyopadhyay D, Armstrong KS, Sinha D. Do sex offender registration and notification requirements deter juvenile sex crimes? Criminal Justice and Behavior. 2010; 37: 553–69. 5. McGrath R, Cumming G, Burchard B, Zeoli S, Ellerby L. Current Practices and Emerging Trends in Sexual Abuser Management: The Safer Society 2009 North American Survey. Brandon, VT: Safer Society Press, 2010. 6. van Wijk AP, Mali SR, Bullens RA. Juvenile sex-only and sex-plus offenders: An exploratory study on criminal profiles. International Journal of Offender Therapy and Comparative Criminology. 2007; 51: 407–19.

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7. Caldwell MF. Study characteristics and ­recidivism base rates in juvenile sex offender recidivism. International Journal of Offender Therapy and Comparative Criminology. 2010; 54(2): 197–212. 8. Righthand S, Welch C. Juveniles Who Have Sexually Offended: A Review of the Professional Literature. Washington, DC: US Office of Juvenile Justice and Delinquency Prevention, 2001. 9. Ryan G, Leversee T, Lane S. Juvenile Sexual Offending: Causes, Consequences, and Correction. 3rd ed. Hoboken, NJ: John Wiley and Sons Inc., 2010. 10. Stinson JD, Sales BD, Becker JV. Sex Offending: Causal Theories to Inform Research, Prevention, and Treatment. Washington DC: American Psychological Association, 2008. 11. Marshall WL, Barbaree HE. An Integrated Theory of the Etiology of Sexual Offending. In: Handbook of Sexual Assault: Issues, Theories and Treatment of the Offender. Eds. Marshall WL, Laws DR, Barbaree HE. New York: Plenum, 1990: 257–75. 12. Seto MC, Lalumiere ML. What is so special about male adolescent sexual offending? A review and test of explanations through meta-analysis. Psychological Bulletin. 2010; 136(4): 526–75. 13. Gunby C, Woodhans J. Sexually deviant juveniles: Comparisons between the offender and offence characteristics of ‘child abusers’ and ‘peer ­abusers.’ Psychology, Crime, & Law. 2010; 16: 47–64. 14. Aebi M, Plattner B, Steinhausen H-C, Bessler C. Predicting sexual and nonsexual recidivism in a consecutive sample of juveniles convicted of sexual offences. Sexual Abuse: A Journal of Research and Treatment. 2011: 23(4): 456–73. 15. Hunter JA, Figueredo AJ, Malamuth NM, Becker JV. Juvenile sex offenders: Toward the development of a typology. Sexual Abuse: A Journal of Research and Treatment. 2003; 15: 27–48. 16. Parks GA, Bard DE. Risk factors for adolescent sex offender recidivism: Evaluation of predictive factors and comparison of three groups based upon victim type. Sex Abuse. 2006; 18: 319–42. 17. Clift RJ, Rajlic G, Gretton HM. Discriminative and predictive validity of the penile plethysmograph in adolescent sex offenders. Sexual Abuse: A Journal of Research and Treatment. 21: 335–62. 18. Richardson G, Kelly TP, Bhate SR, Graham F. Group differences in abuser and abuse characteristics in a British sample of sexually abusive adolescents. Sexual Abuse: A Journal of Research and Treatment. 1997; 9: 239–57. 19. Center for Sex Offender Management. The Importance of Assessment in Sex Offender Management: An Overview of Key Principles and Practices. Silver Spring, MD: Center for Sex Offender Management, 2007.

20. Viljoen JL, Elkovitch N, Scalora MJ, Ullman D. Assessment of re-offense risk in adolescents who have committed sexual offenses: Predictive ­validity of the ERASOR, PCL:YV, YLS/CMI, and Static-99. Criminal Justice and Behavior. 2009; 36: 981–1000. 21. Fago DP. Evaluation and treatment of neurodevelopmental deficits in sexually aggressive children and adolescents. Professional Psychology: Research and Practice. 2003; 34(3): 248–57. 22. Bonta J, Andrews DA. Risk-Need-Responsivity Model for Offender Assessment and Treatment (User Report No. 2007-06). Ottawa: Public Safety Canada, 2007. 23. Worling JR, Bookalam D, Litteljohn A. Prospective validity of the Estimate of Risk of Adolescent Sexual Offense Recidivism (ERASOR). Sexual Abuse: A Journal of Research and Treatment. 2012; 24(3): 203-23. doi:1079063211407080. Epub 2011 Oct 3. 24. Olver ME, Stockdale KC, Wormith JS. Risk assessment with young offenders: A meta-analysis of three assessment measures. Criminal Justice and Behavior. 2009; 36: 329–53. 25. Hanson RK, Morton-Bourgon KE. Predictors of Sexual Recidivism: An Updated Meta-analysis. Ottawa: Public Safety and Emergency Preparedness Canada, 2004. 26. Viljoen JL, Mordell S, Beneteau JL. Prediction of adolescent sexual reoffending: A meta-analysis of the J-SOAP-II, ERASOR, J-SORRAT-II, and Static-99. Law and Human Behavior. 2012; doi:10.1037/h0093938. 27. Vitacco MJ, Viljoen J, Petrila J. Introduction to this issue: Adolescent sexual offending. Behavioral Sciences and Law. 2009; 27: 857–61. 28. Worling JR, Curwen T. Estimate of Risk of Adolescent Sexual Offense Recidivism (ERASOR; Version 2.0). In: Juveniles and Children Who Sexually Abuse: Frameworks for Assessment. Ed. Calder MC. Lyme Regis, UK: Russell House, 2001: 372–97. 29. Prentky R, Righthand S. Juvenile Sex Offender Assessment Protocol–II (J-SOAPII) manual (NCJ Publication No. 202316). Washington, DC: Office of Juvenile Justice and Delinquency Prevention, 2003. Available from: http://www.csom.org/pubs/JSOAP. pdf. 30. Epperson DL, Ralston CA, Fowers D, DeWitt J. Juvenile Sexual Offense Recidivism Risk Assessment Tool-II (JSORRAT-II). In: Risk Assessment of Youth Who Have Sexually Abused. Ed. Prescott DS. Oklahoma City, OK: Wood N’ Barnes, 2006: 222–36. 31. Cooke DJ, Michie C. Limitations of diagnostic precision and predictive utility in the individual case: A challenge for forensic practice. Law and Human Behavior. 2010; 34: 259–74. 32. Hanson RK, Howard PD. Individual confidence intervals do not inform decision-makers about the accuracy of risk assessment evaluations. Law and Human Behavior. 2010; 34: 275–81.

Further reading  391

33. Sreenivasan, S, Weinberger LE, Frances A, Cusworth-Walker S. Alice in actuarial-land: Through the looking glass of changing Static-99 norms. Journal of the American Academy of Psychiatry and the Law. 2010; 38: 400–406. 34. Vincent GM, Chapman J, Cook NE. Risk-needs assessment in juvenile justice: Predictive validity of the SAVRY, racial differences, and the contribution of needs factors. Criminal Justice and Behavior. 2011; 38: 42–62. 35. Elkovitch N, Viljoen JL, Scalora MJ, Ullman D. Assessing risk of reoffending in adolescents who have committed a sexual offense: The accuracy of clinical judgments after completion of risk assessment instruments. Behavioral Sciences and Law. 2008; 26: 511–28. 36. Reitzel LR, Carbonell JL. The effectiveness of sexual offender treatment for juveniles as measured by recidivism: A meta-analysis. Sex Abuse. 2006; 18: 401–21. 37. Worling JR, Litteljohn A, Bookalam D. 20-year prospective follow-up study of specialized treatment for adolescents who offended sexually. Behavioral Sciences and the Law. 2010; 28: 46–57. doi:10.1002/ bsl.912. 38. Bengis SM, Cunninggim P. Beyond Psychology: Brain-Based Approaches That Impact Behavior, Learning, and Treatment. In: Current Perspectives: Working with Sexually Aggressive Youth & Youth with Sexual Behavior Problems. Eds. Long RE, Prescott DS. Holyoke, MA: NEARI Press, 2006: 45–62. 39. Ellerby L, McGrath RJ, Cumming GF, Burchard BL, Zeoli S. Current Practices in Canadian Sexual Abuser Treatment Programs: The Safer Society 2009 Survey. Brandon, VT: Safer Society Press, 2010. 40. Letourneau EJ, Henggeler SW, Borduin CM, Schewe PA, McCart MR, Chapman JE, Saldana L. Multisystemic therapy for juvenile sexual offenders: 1-year results from a randomized effectiveness trial. Journal of Family Psychology. 2009; 23(1): 89–102. 41. Hanson RK, Bussière MT. Predicting relapse: A meta-analysis of sexual offender recidivism studies. Journal of Consulting and Clinical Psychology. 1998; 66(2): 348–62. 42. Kemper TS, Kistner JA. Offense history and ­recidivism in three victim-age-based groups of

juvenile sex offenders. Sexual Abuse: A Journal of Research and Treatment. 2007; 19: 409–24. 43. Kraemer BD, Salisbury SB, Spielman CR. Pretreatment variables associated with treatment failure in a residential juvenile sex-offender program. Criminal Justice and Behavior. 1998; 25: 190–202. 44. Kimonis ER, Fanniff A, Borum R, Elliott K. Clinician’s perceptions of indicators of amenability to sex offender-specific treatment in juveniles. Sexual Abuse: A Journal of Research and Treatment. 2011; 23: 193–211.

FURTHER READING Hanson RK, Morton Bourgon KE. The accuracy of recidivism risk assessments for sexual offenders: A metaanalysis of 118 prediction studies. Psychological Assessment. 2009; 21(1): 1–21. Hunter JA, Hazelwood RR, Sleisinger D. Juvenile sexual homicide. FBI Law Enforcement Bulletin. 2000; 69(3): 1–7. Miccio Fonseca LC. MEGA: A new paradigm in protocol assessing sexually abusive children and adolescents. Journal of Child and Adolescent Trauma. 2009; 2: 124–41. Nisbet IA, Wilson PH, Smallbone SW. A ­prospective longitudinal study of sexual recidivism among adolescent sex offenders. Sexual Abuse: A Journal of Research and Treatment. 2004; 16(3): 223–234. Office of Juvenile Justice and Delinquency Prevention. National Report Series Bulletin: Juvenile Arrests 2009. Washington, DC: U.S. Department of Justice, 2011. Prescott DS, Longo RE. Introduction. In: Current Perspectives: Working with Sexually Aggressive Youth and Youth with Sexual Behavior Problems. Eds. Long RE, Prescott DS. Holyoke, MA: NEARI Press, 2006: 45–62. Worling JR. Personality-based typology of adolescent male sexual offenders: Difference in recidivism rates, victim-selection characteristics, and personal victimization histories. Sexual Abuse: A Journal of Research and Treatment. 2001; 13(3): 149–66. Worling JR, Curwen T. Adolescent sexual offender recidivism: Success of specialized treatment and implications for risk prediction. Child Abuse and Neglect. 2000; 24(1): 965–82.

55 The clinical care of women in secure hospital services ANNIE BARTLETT Introduction 393 393 How services are organized 395 How to help women in secure hospital services Conceptual models 395 Individual clinical needs 395

Relationship with the hospital 395 Treatment and outcome 396 Future directions in clinical care 396 References 396

INTRODUCTION

occupied by women over the past 30–40 years has altered radically in the light of changing fashions in forensic care. Prior to the establishment of medium-security units, there were substantial numbers of women in special ­hospitals. High-security populations of men and women were recognized to be different. 3,4 Women were known to be less likely than men to have a history of offending behavior and to come to the hospital from the criminal justice system. They were more likely to have had previous psychiatric contact. As medium-security facilities were being established around the country, significant numbers of women were still being admitted to what were then termed special hospitals, now termed high-security environments. Hamilton noted 101 women and 465 men admitted over a 3-year period from 1977–1979. Hamilton also observed that women could be admitted to highsecurity care following property offenses. 5 By the early 1990s, there was considerable concern about how the special hospitals were functioning as a whole and specifically how they treated women.6,7 Ashworth Special Hospital (Maghull, Merseyside, UK) was criticized for failing to understand that “women patients have special difficulties which, on the whole, had not been sufficiently appreciated at Ashworth.”7 Further criticism in the Ashworth report included an accusation of insensitivity to the needs of women, in ­particular, their care histories and their exposure to physical and sexual violence. It was considered that the hospital compounded the women’s previous trauma histories by disempowering them and by abusive institutional practices. Considerable changes then occurred in the care of women in high security. The UK Mental Health

The approach to women in secure hospital beds has changed in the past 15 years. These women have concurrent mental health problems and offending behavior; the nature and degree of their mental health problems and the extent of their offending vary. They are a heterogeneous but also a small group. In England and Wales, secure hospital services for women have evolved; since 2000 they have been significantly restructured. Their current configuration is very different from men’s secure services. This restructuring is a result of increasing recognition by caregivers that women present with complex health and social care needs whose roots are often in adverse experiences in childhood, rather than just the biology of mental illness. The Department of Health (DH), rather than clinicians or academics, has led this restructuring effort, publishing influential policy on treatment needs. This chapter reviews the historical and current secure hospital provision for women. It discusses the extent to which this provision has met and still meets women’s clinical needs and describes a conceptual model appropriate for up-to-date clinical care. It outlines treatment issues and outcomes and concludes with a discussion of possible future directions in clinical care.

HOW SERVICES ARE ORGANIZED Since the Butler and Glancy reports in the mid-1970s,1,2 the secure hospital estate has included high-, medium-, and lowsecurity facilities. The proportion and total numbers of beds

393

394  The clinical care of women in secure hospital services

Act Commission  (MHAC) continued to be concerned;8 it pointed toward the difficulties in managing a minority group within the largely male culture of high security. The MHAC expressed concern about the absence of interventions for self-harm, eating disorder, and sexuality. All  three  high-security ­ hospitals—Broadmoor (Crowthorne, Bershire, UK), Ashworth, and Rampton (Rampton, Nottinghamshire, UK)—continued to provide services to women patients. The MHAC recognized improvements and initiatives in individual hospitals but noted that Ashworth continued to struggle with poor day facilities, high sickness rates, and a lack of clinical leadership. It went on to suggest that significant numbers of women detained in high security were in fact over-­ contained, which was confirmed.10,11 Women also stayed longer in special hospitals than men did.12 Profiling of more up-to-date cohorts of women in high security emphasized that they differed from the men, as in earlier generations. They still were less likely to have criminal convictions and more likely to have psychiatric histories. Women in high security were more likely than men to be held under the Mental Health Act category of psychopathic disorder, indicating significant personality problems linked with violence. By 2002, the combination of concerns about high-security provision had led to a reduced proportion of women in the high-security population. In 1991, women were 20% of the high-security population,13 but by 2002 they were only 14%.14 It was thought likely that the size of the high-security female population would continue to decrease as other services were developed. Women’s services at Ashworth were closed, and only Broadmoor and Rampton were left to provide highsecurity services. This was again reviewed with the subsequent closure of services for women at the Broadmoor high-security site. These changes also recognized that the levels of physical security provided at high-security sites are inappropriate for the majority of women. Currently, Rampton Hospital can provide 60 beds in high-security care for women. Women’s Enhanced Medium Secure Services (WEMSS) developed as the high-security estate contracted with three units opening in 2007, and many women from high security were moved into this new, experimental kind of facility. Medium-security facilities have developed since the 1970s. Initially they provided mixed accommodation for men and women, in contrast to the high-security facility. The MHAC expressed concern about the capacity of the developing and established regional secure units (now termed medium-security units) to care for women. It pointed out that in mixed units, there would be only one or two women in any given unit. The MHAC noted that this led to isolation of women and problems similar to those experienced in high security. The ratio of men to women in medium-security hospital units was estimated to range from 3:1 to 7:1.15–19 By 2002, the DH was clear that mixed wards in secure hospitals were not appropriate for women. Small numbers

of women in close proximity to men with histories of ­serious violence was not therapeutic and might be dangerous. It recommended single-sex units and also “women’s specific programmes of care.”14 The DH’s detailed recommendations for care in medium- and low-security facilities included suitable training of staff members, physical designs that recognized the need for child and family visiting areas, crisis suites, and access to a range of occupational, therapeutic, and educational facilities that were for women only. The DH emphasized that security needs for women were unlikely to be determined by the physical security of the unit and encouraged good relational and procedural security. It went on to argue that the distinction between medium- and low-security care might be irrelevant. Studies of the distribution of women in the developing medium-security facility indicated substantial reliance on the independent sector treatment centers.19,20 It was also clear that the independent sector had moved faster than the NHS in providing single-sex services for women. In fact, both staff and patients had mixed feelings about provision of single-sex services. In part, this correlated with whether or not the staff was working in women’s units or in mixed units. 21 Despite the reservations of some patients and staff, the DH firmly set the direction, with recommendations for female staffing levels at 70% for women’s secure hospital care; for womenonly activities to be the norm; for physical care needs to be addressed, including gender-specific ones; and for psycho-dynamically informed therapeutic work that could incorporate an understanding of women’s histories of abuse and trauma. By 2011, only 1 in 16 of low- and medium-security beds for women in England and Wales remained mixed. 22 High- and medium-security units historically have been provided by designated forensic provider services. However, both the NHS and the independent sector also provide low-security hospital units that were less well mapped and in which the characteristics of the detained women were much less clear.23 Harty and colleagues have indicated that 24% of women’s beds at the low-security level are currently for women with learning difficulties.22 The national geography of secure hospital provision at medium- and low-security levels indicates that some facilities are not clearly linked to centers of high population. One third of women in medium- and low-secure hospital beds are placed in facilities outside their home area.24 Women may have difficulties resettling in their local areas upon discharge from the hospital because care planning is hampered by distance. Services to relocate women from secure bed facilities are widely recognized as patchy.25 The DH reviewed the overall provision for women who need secure care. Its recommendations seem likely to promote both easy access to appropriate secure facilities and straightforward discharges to appropriate local community settings to maximize sustained recovery. This action represents a belated initiative in comparison with the amount of energy that has been spent

How to help women in secure hospital services  395

studying hospital-based services. This was clearly demonstrated in the service specification for secure care services for women,14 which provided detailed guidance about inpatient services but scant guidance on community placements available. There have been financial incentives to provide bed facilities, and a disproportionate level of growth in forensic spending for men and women.26 As a result, it is unsurprising that cheaper community services have been relatively neglected.

HOW TO HELP WOMEN IN SECURE HOSPITAL SERVICES Conceptual models Along with the shift in service provision outlined in the preceding section, there has been an explicit conceptual shift from “medical model” thinking to a biopsychosocial approach.27 This approach relies on the idea of gender-­ specific needs, not gender blindness. It is characterized by an awareness of the complex health needs of women patients and the requirement for holistic care informed by attachment theory, relational rather than physical security and the recovery model of care.28,29 This shift has had implications for staff training. Staff members should be equipped to articulate and embody this change in conceptual model. At the most practical level, it means staff assessments, daily interactions, and specific treatment interventions to identify and respond to this reframing of clinical and social care needs. Accomplishing these tasks includes reconsidering what constitutes an assessment of an individual, relying less on cross-sectional views and more on a developing and shared narrative, informed by the views of the woman and her response to the therapeutic environment.

Individual clinical needs Key to understanding the clinical needs of women in secure hospital care is a comprehensive diagnostic profile. It is widely accepted that women patients in secure facilities are likely to be comorbid for at least two diagnosable disorders. Diagnosis as a technique underpins the legitimacy of any medically led intervention. To establish types and degrees of mental illness, assessing for personality disorder and drug and alcohol use is central to effective care planning, but it is not enough. In secure hospital populations of women, histories of trauma and acts of deliberate self-harm are common30,31 and salient. In this sense, some of the clinical dilemmas posed by women in these facilities echo those found in the prison population, where rates of deliberate self-harm among women are much higher than for men. The majority of women in secure hospital facilities have a major mental illness18,32 that can be addressed in a ­gender-blind fashion. Common additional diagnoses of personality disorder, most particularly borderline personality disorder and drug and alcohol use as well as histories of

trauma, must be viewed as probably connected. Deliberate self-harm can be a coping mechanism but also potentially life-threatening; its presentation and meaning are likely to fluctuate, often in relation to reliving experiences associated with past trauma. This highlights one of the central difficulties in the clinical care of this population of women. It is uncertain how needs derived from historical, severe, and persistent trauma, particularly sexual trauma, should be addressed. Both the paradigm of borderline personality disorder and that of complex, post-traumatic stress disorder can be used. The key to helping such women arrive at a successful understanding of their own difficulties and helping staff work well with these women is understanding the nature of any linkage between these phenomena rather than treating them as if they were separate problems.

Relationship with the hospital While it is essential to identify women’s individual problems, it is equally important to understand their relationship to the institution. Clinical issues, including marked distress, can emerge from this relationship; such issues resonate with historical experiences and invoke established maladaptive personal response styles.33,34 Sarkar and Di Lustro35 recently drew attention to this issue, highlighting affect regulation and dysfunctional attachment styles that complicate the care of women in secure facilities. The overall safety of the unit is particularly important given that many women detained in these facilities have a history of intrusive violent experiences; this can make them feel unsafe with caregivers. Staff members must understand such experiences to avoid violating women’s boundaries. Few women choose to go to secure hospital facilities. A discourse of empowerment in clinical work can be at odds with compulsory admission, a fundamental act of disempowerment. This paradox can jeopardize a woman’s ability to articulate agreement or disagreement with other clinical care decisions. Recommendations by informed advocates can be beneficial. Discontinuities in the delivery of care can play into attachment styles that are sensitive to change in personnel or institutions themselves as women are moved around the hospital system. Secure hospitals are hierarchical. Core staff groups are run though line management systems, which can echo women’s past experiences with powerful, usually male, figures that have led to abuse. More positively, secure hospitals that are well run provide an opportunity for women to experience good role models, both male and female. This can help place their previous experiences into perspective. The relationship of a given woman patient to her environment also varies during a period of detention. Much can be learned by examining a woman’s style of relating to the institution that is caring for her. Central issues of trust can mean that material will only be disclosed midstream during an episode of care. Women frequently display varied behavior during the course of an

396  The clinical care of women in secure hospital services

admission; it is inevitable that this might be seen as violence to others or violence to self, but it can also be framed as an aspect of attachment to be discussed and acknowledged. This is part of developing a repertoire of words rather than actions to display and articulate negative states of mind. Comprehensive formulation is based on an understanding of the woman’s individual mental health needs and the impact of the institution. Gender-specific physical health and social care needs are also part of effective care planning. Risk assessment procedures in secure hospitals are both routine and of variable relevance to care planning. Much of women’s offending is relational; if the woman is violent, her victim will often be her partner or her children. Fire setting accounts for a high proportion of offenses by women in secure hospitals; it can be examined as an “acting out” behavior, that is, a communication of undigested distress. Standardized risk assessments often are developed in a ­gender-blind fashion. Their applicability to women in secure hospitals is debated.36,37 The use of both Health of the Nation  Outcome Scales (HoNOS) and the Historical-Clinical-Risk Management 20 (HCR-20) has become common. Whatever its merits in terms of actuarial risk assessment, the advantage of the HCR-20 is that it generates risk scenarios that help encourage gender sensitivity in risk assessment.

TREATMENT AND OUTCOME Forensic hospital services have suffered over many years from an inability to describe the treatment they offer. In part they offer many patients routine, pharmacologically based treatment for mental illness. However, women’s services have trialed specific treatment initiatives that are in line with DH guidelines on ­gender-specific services.37–39 These are aimed at women with significant personality disorders. Evaluation has been limited. Such interventions are intrinsically difficult to evaluate because they occur within an episode of hospitalization, during which a number of other confounding factors may come into play. The consequence is few guidelines to standardize the delivery of specific treatments in women’s secure hospitals. It is tempting to suggest that forensic services remain very much a lottery in terms of treatment delivery, although the Royal College of Psychiatrists’ Quality Network has begun to address this problem. This issue is compounded by the modest number of quality standards from the DH devoted to treatment.40 It is also true, from the analysis of treatment needs outlined earlier, that it may not be packages or programs of therapy (anger management, dialectical behavior therapy, and so forth) that promote health and well-being, but something that is harder to pin down, such as the climate of the unit. More attention has been paid to women’s treatment outcomes following discharge. Comparisons have usually been with men discharged from the same unit, and care needs to be taken in interpreting these studies because the men and women admitted to these units are strikingly different in terms of their criminological and clinical needs.

Inconsistent findings have been obtained for comparative rates of ­reconviction between men and women after discharge. Steels and colleagues found women to be less likely to be reconvicted than men following care in high security, as did Coid’s team in examining discharge from seven medium-­security units.41,42 Maden and colleagues attempted to control for the differences between men and women in the cohort, and much of the difference was explained by their different ­profiles.9 Sahota’s team found equivocal support for the idea that women were less likely to be reconvicted but found differences in their 20-year cohort of mortality ratios; women were more likely to be dead post discharge than the men.38 Women were also more likely to be readmitted to a psychiatric hospital and to be violent without that violence leading to conviction. However, the main point of these follow-up studies is, as Sahota and colleagues remark, that the overall prognosis for women who have been detained in secure facilities is poor. Social re-integration is difficult.43 New follow-up studies are needed because the changes in service delivery post 2000 may have altered outcomes.

FUTURE DIRECTIONS IN CLINICAL CARE There is a need for a national strategy for female mentally disordered offenders, whether in secure care or in the community. Service delivery should derive from evidence based service specifications. This would influence services provided by both the independent sector and the National Health Service. It might promote pathways of care, not just hospital facilities, and might promote specialized service delivery, as is seen in services for men. More guidance on low-security provisions would be particularly useful. Also, linking the availability of specialist treatment to performance monitoring would promote equity of service delivery; it would also pave the way for more robust treatment trials across services. This would build on the advice that the DH produced a decade ago. Predominantly single-sex provision to mentally disordered women has now been achieved. There remains much to be done to demonstrate that these services now help women acquire autonomy and regain independence.

REFERENCES 1. HMSO. Report of the Committee on Mentally Abnormal Offenders (Butler Report). CMND 6244. London: Home Office and Department of Health and Social Security, 1975. 2. HMSO. Revised Report of the Working Party on Security in NHS Psychiatric Hospitals (Glancy Report). London: Home Office and Department of Health and Social Security, 1974. 3. Tennent G, Parker E, McGrath P, McDougall J, Street D. Female patients in the three English special hospitals: A demographic survey of admissions 1961– 1965. Medicine, Science and the Law. 1976; 16(3): 200–207.

References 397

4. Tennent G, Parker E, McGrath P, Street D. Male admissions to the three English special hospitals: A demographic survey 1961–1965. British Journal of Psychiatry. 1980; 136: 181–90. 5. Hamilton J. Special Hospitals in Secure Provision: A Review of Special Services for the Mentally Ill and Mentally Handicapped in England and Wales. Ed. Gostin L. London: Tavistock, 1985. 6. NHS Health Advisory Service. DHSS Inspectorate Report on Services Provided by Broadmoor. 1988. HAS-SSI-88.SHI. 7. Department of Health. Report of the Committee of Inquiry into Complaints About Ashworth Hospital. Vols. 1 and 2. London: Home Office and Department of Health and Social Security, 1992. 8. Mental Health Act Commission. The Mental Health Act Commission. Eighth Biennial Report. 1997–1999. London: The Stationery Office, 1999. 9. Maden A, Skapinakis P, Lewis G, Scott F, Burnett R, Jamieson E. Gender differences in reoffending after discharge from medium-secure units: National cohort study in England and Wales. British Journal of Psychiatry. 2006; 189: 168–172. 10. Maden A, Curle C, Meux C, Burrow S, Gunn J. The treatment and security needs of patients in ­special hospitals. Criminal Behaviour and Mental Health. 1993; 3: 290–306. 11. Bartlett AEA, Cohen A, Backhouse A, Highnet N, Eastman NLG. Security needs of South West Thames Hospital patients: 1992 and 1993. No way out? Journal of Forensic Psychiatry. 1996; 7(2): 256–70. 12. Butwell M, Jamieson E, Leese M, Taylor P. Trends in special (high-security) hospitals: 2: Residency and discharge episodes, 1986–1995. British Journal of Psychiatry. 2000; 176: 260–65. 13. Special Hospital Services Authority (SHSA). Development Plan 1991–1996. London: SHSA, 1991. 14. Department of Health. Women’s Mental Health: Into the Mainstream. Strategic Development of Mental Health Care for Women. London: Department of Health, 2002. 15. Higgo R, Shetty G. Four years’ experience of a regional secure unit. Journal of Forensic Psychiatry. 1991; 2: 202–210. 16. Milne S, Barron P, Fraser K, Whitfield E. Sex differences in patients admitted to a regional secure unit. Medicine, Science and Law. 1995; 35: 57–60. 17. Murray K. The use of beds in NHS medium secure units in England. Journal of Forensic Psychiatry. 1996; 7: 504–524. 18. Coid J, Kahtan N, Gault S, Jarman B. Women admitted to secure psychiatric facilities: Comparison of men and women. Journal of Forensic Psychiatry. 2000; 11(2): 275–95.

19. Hassell Y, Bartlett A. The changing climate for women patients in medium secure units. Psychiatric Bulletin. 2001; 25: 340–42. 20. Lelliot P, Audini B, Duffett R. Survey of patients from an inner London health authority in medium secure care. British Journal of Psychiatry. 2001; 178: 62–66. 21. Mezey G, Hassell Y, Bartlett A. Safety of women in mixed-sex and single-sex medium secure units: Staff and patient perceptions. British Journal of Psychiatry. 2005; 187: 579–82. 22. Harty M, Somers N, Bartlett A. Women’s secure hospital services: National bed numbers and distribution. Journal of Forensic Psychiatry and Psychology. 2012; DOI:10.1080/14789949.2012.717300. 23. Department of Health. Consultation on Low Secure Services and Psychiatric Intensive Care. London: Department of Health, 2012. 24. Bartlett A, Somers N, Fiander M, Harty M. Pathways of care of women in secure hospitals: Which women go where and why. British Journal of Psychiatry. 2014, 205: 298–306. DOI: 10.1192/bjp. bp.113.137547. 25. Somers N, Bartlett A. Women’s secure hospital care pathways in practice: A qualitative analysis of clinicians views in England and Wales. BMC Health Services Research. 2014, 14: 450. http://www. biomedcentral.com/1472-6963/14/450. 26. Mental Health Strategies. 2009/10 National Survey of Investment in Adult Mental Health Services: Report Prepared for Department of Health. London: Mental Health Strategies. 2010. 27. Denman C. Sexuality: A Biopsychosocial Approach. Basingstoke, UK: Palgrave McMillan, 2004. 28. Bartlett A, Walker T, Harty M, Abel KM: Health and social care services for women offenders: Current provision and a future model of care. The Journal of Forensic Psychiatry & Psychology. 2014. DOI:10.1080/ 14789949.2014.944202. 29. Bartlett A and Somers N: Are women really difficult? Challenges and solutions in the care of women in secure services. The Journal of Forensic Psychiraty & Psychology. 2016. DOI:10.1080/14789949.2016.1244281. 30. Heads TC, Taylor PJ, Leese M. Childhood experiences of patients with schizophrenia and a history of violence: A special hospital sample. Criminal Behaviour and Mental Health. 1997; 7(2): 117–30. 31. Bland J, Mezey G, Dolan B. Special women, special needs: A descriptive study of female special hospital patients. Journal of Forensic Psychiatry. 1999; 10(1): 34–45. 32. Bartlett A, Johns A, Fiander M, Jhawar H. London Secure Units Benchmarking Study. London: NHS London, 2007. 33. Heney J, Kristiansen CM. An analysis of the impact of prison on women survivors of childhood sexual abuse. Women and Therapy. 1997; 20(4): 29–44.

398  The clinical care of women in secure hospital services

34. Henderson D, Scaeffer J, Brown L. Genderappropriate mental health services for incarcerated women: Issues and challenges. Family and Community Health. 1998; 21(3): 42–53. 35. Sarkar J, Di Lustro M. Evolution of secure services for women in England. Advances in Psychiatric Treatment. 2011; 17: 323–31. 36. De Vogel V, De Ruiter C. The HCR-20 in personality disordered female offenders: A comparison with a matched sample of males. Clinical Psychology and Psychotherapy. 2005; 12(3): 226–40. 37. Long C, Dickens G, Sugarman P, Craig L, Mochty U, Hollin C. Tracking risk profiles and outcome in a medium secure service for women: Use of the HoNOS-Secure. International Journal of Forensic Mental Health. 2010; 9(3): 215–25. 38. Aitken G. Women and secure settings. The Psychologist. 2006; 19(12): 726–29. 39. Long CG, Fulton B, Dolley O, Hollin CR. Dealing with feelings: The effectiveness of cognitive behavioural group treatment for women in secure settings. Behavioural and Cognitive Psychotherapy. 2011; 39: 243–47.

40. Department of Health. Health Offender Partnerships. Best Practice Guidance: Specification for Adult Medium Secure Services. London: Department of Health, 2007. 41. Steels M, Roney G, Larkin E, Jones P, Croudace T, Duggan C. Discharged from special hospital under restrictions: A comparison of the fates of psychopaths and the mentally ill. Criminal Behaviour and Mental Health. 1998; 8(1): 39–55. 42. Coid JW, Yang M, Zhang T, et al. Patients discharged from medium secure forensic psychiatry services: Reconvictions and risk factors. British Journal of Psychiatry. 2007; 190(3): 223–29. 43. Sahota S, Davies S, Duggan C, Clarke M, Huband N, Owen V. Women admitted to medium secure care: Their admission characteristics and outcome as compared with men. International Journal of Forensic Mental Health. 2010; 9:2, 110–17.

56 Elderly offenders GRAEME A. YORSTON Offense types 399 Sexual offenses 399 Homicide 399 Mental disorders 400 Delirium 400 Dementia 400 Psychosis 400 Personality disorder 400 Substance abuse 400

The elderly in the criminal justice system 401 Arrest 401 Trial 401 Prison 401 Women 401 Psychiatric services 401 Treatment issues 402 402 Risk assessment References 402

The populations of developed countries have been steadily aging over the past 50 years, and this process is set to continue for some time. Though older people are more likely to be the victims of crime than the perpetrators, a small proportion of older people do commit crimes. Older offenders deserve special consideration by forensic psychiatric services because the mental disorders of late life, the environments older people live in, and the social issues affecting older people can be significantly different from those of younger adults, and meaningful risk assessment and management must take account of these differences. The age at which somebody becomes “older” is debatable, and it is better to consider age-related needs arising from neurodegenerative disorders, multiple physical comorbidities and life-cycle events than chronological age alone.

rarely reaches the attention of the criminal justice system. Older adults can and do commit more serious sex crimes, however, accounting for approximately 1% of convictions for these offenses in the United Kingdom, with broadly comparable figures from other countries. Frontal lobe damage can lead to sexual offending, but the proportion of older sex offenders with suspected or proven organic diagnoses varies considerably in published case series, and modern research in this area is urgently needed. Other diagnoses reported in the literature include antisocial ­personality disorder, alcoholism, learning disability, depression, and schizophrenia. Though research has consistently shown that older adults are capable of committing the most serious violent sexual offenses, there has been a tendency to minimize the seriousness of offending by this group in the past. Several studies have shown lower rates of recidivism for older offenders,1–3 but some of these failed to account for the reduced time at risk of reoffending by elderly men. It should also be borne in mind that the lower recidivism rate is of little help in assessing risk in individual cases, which should be approached in a structured manner, and the potential for serious harm should never be underestimated on the basis of age alone.

OFFENSE TYPES Despite the ageing population, statistical data from the United Kingdom and United States show the number of convictions of people over the age of 60 to be remarkably stable over the past 15 years. Broadly speaking, the elderly account for around 1% of recorded crime, though this figure varies considerably according to the type of crime.

Sexual offenses Sexually inappropriate behavior is a common problem in dementia and is a recognized side effect of medication for Parkinson’s disease. Generally, it is mild in severity and

Homicide There have been few psychiatric studies of elderly homicide offenders, though the individual case-study literature is much richer. In a comparison of older and younger homicide and attempted homicide suspects in Canada,4 much 399

400  Elderly offenders

lower rates of previous convictions and past hospitalization for mental illness were found in the elderly group. Half of the elderly group had psychotic diagnoses (none were found in those under the age of 30), 19% had an organic mental disorder (none in the younger group), 50% had alcohol problems (31% in the younger group), and only 13% had antisocial personality disorder (compared to 68% of the younger group). Surprisingly, though, fewer of the elderly group were found not guilty by reason of insanity (19%, compared to 30% for younger offenders). In contrast to younger partner homicides, which typically occur against a background of infidelity, jealousy, and money disputes and are fueled by alcohol or drugs, elderly homicides often occur in apparently close, loving relationships, with no obvious warning signs. Knight5 cited the case of a woman in her 70s who killed her husband with repeated brutal blows to the back of his head with the heavy iron base of an ice-cream display sign while he was sitting and watching television. No rational explanation for the act could be obtained. Extreme brutality is often used in elderly couple homicides, and some also involve what Knight termed bizarre postmortem bondage, such that sexual motives for the crime may be suspected. He cites the case of a man who tied up his wife in a chair with twine and cord after killing her and then bound her face with towels and cloths secured by more twine. Though the psychiatric literature emphasizes the differences between elderly and younger homicide offenders, criminological data from US studies show that though elderly homicide rates vary among different US states, they correlate with non-elderly rates, which themselves strongly correlate with urbanization and poverty. This suggests that the same societal pressures influence young and old alike.6 Other US studies have shown that the elderly are more likely to kill family members, to use firearms, and to carry out the offense in the home.7,8 The majority of elderly homicides are committed by men, but a study of 179 homicides by people over the age of 60 in Cincinnati and Detroit9 found that women accounted for 18% of cases. Homicide followed by suicide is more common in older adults.10

MENTAL DISORDERS Delirium Delirium of metabolic or other causes, superimposed on the early stages of dementia or a pre-existing depressive illness, can lead to fatal aggression. Some of the bizarre, apparently motiveless homicides described in the literature have been the result of delirium, often occurring as a side effect of medication.

Dementia There are isolated case reports of crime associated with dementia, but given that it is so common, it is surprising

that there are not more. Experience suggests that individuals with more than a mild degree of dementia are easily identified as such and are not dealt with by the criminal justice system. This is not the case for those with very early dementia or fronto-temporal dementia with a well-­preserved social façade. Dementia can present with a change in behavior: either the emergence of new behaviors that were not present previously or a change in the type, frequency, and character of existing behavior. Old-age psychiatrists are familiar with the evaluation of such issues by taking careful histories from caregivers and relatives, but forensic psychiatrists are generally more used to assessing individuals through detailed mental state examinations, which may reveal little in early dementia. In a study of referrals to a regional medium-security unit in England, it was found that forensic psychiatrists did not routinely use standardized rating scales for the assessment of cognitive functioning.11

Psychosis Unlike the psychosis of younger adults in which schizophrenia is the diagnosis most commonly associated with serious aggression and homicide, homicidal psychosis in the elderly is more commonly depressive in nature and characterized by nihilistic delusions, and it is often the partner who is the victim. Often one or both of the couple are ill, leading to worries of how one would cope without the other and the conclusion that they would both be better off dead. In such cases, the depression can be relatively mild on the surface and easily missed by those unfamiliar with assessing older adults; the use of an age-appropriate rating scale is therefore recommended.12

Personality disorder By definition, personality disorders cannot begin in old age, but a change in circumstances can unmask a personality disorder that had previously been compensated for by some means. Key life events including retirement, death of a partner, loss of independence, or entry into a nursing home can precipitate personality problems previously hidden within the family. These may cause simply annoyance or minor distress or may be associated with serious aggression or fire-setting.

Substance abuse In the past, drug abuse was uncommon in older people, but this is changing, and old-age psychiatry services are now beginning to see people with active drug problems. At present, drugs do not present major problems in UK older adult secure hospital services, unlike in services for younger patients, but this is likely to change over the coming years. Alcohol abuse is also being increasingly recognized in late life, and alcohol problems are common among older men in prison in the United States.13 When drinking is linked to offending behavior, it has serious implications for risk

Psychiatric services  401

management. The assessment of older offenders with a history of alcohol abuse is further complicated by the possibility of alcohol-related brain injury.

THE ELDERLY IN THE CRIMINAL JUSTICE SYSTEM

older prisoners. Mental disorder is often missed in older prisoners, with only 12% of those diagnosed with depression being prescribed appropriate treatment.17 UK studies of prisoners have found few cases of dementia, but a US study of “geriatric evaluees” found 44% with an organic diagnosis.13

Arrest

Women

Anecdotal evidence suggests that the police may be reluctant to get involved in offenses committed by elderly people with obvious mental health difficulties. This is particularly noticeable if either the perpetrator or the victim suffers from dementia, presumably because of difficulties in obtaining evidence. This can lead to very serious offenses being inadequately investigated, which then makes risk assessment almost impossible and distorts crime statistics. A study of a special police project in England14 showed that nearly onethird of those interviewed were identified as “psychiatric cases” and diverted to health or social services.

The number of older women in prison has risen sharply over the past 10 years. Many of these women are long-term prisoners, though there are a few who commit serious offenses for the first time in late life. It is likely that they have at least the same prevalence of mental health problems, if not greater, as their younger peers, but because numbers are small, little formal research has been conducted. A sociological study of older women prisoners in the United Kingdom found that there were a number of older women from ethnic minorities, many serving long sentences for drug trafficking offenses, who suffered the double isolation of being different because of their age and different because of their culture.18

Trial In determining fitness to stand trial in older adults, physical health and perceptual issues must be considered: for example, whether defendants are able to see and hear adequately, whether they need shorter court sessions because of fatigability, and whether they need extra toilet breaks or different seating. The main question to be answered in determining fitness to plead in older adults, however, is whether the defendant is able to follow the course of proceedings in court. The answer can be very obvious for someone with severe dementia or for someone with relatively mild or wellmanaged mental health problems, but in many cases of mild to moderate dementia, the issue is far from clear. Standard cognitive testing in such cases can be helpful; in serious cases, however, fuller neuropsychological evaluation is recommended, which should include tests of malingering and suggestibility.

Prison The number of older people in prison has risen sharply over the past 20 years in the United Kingdom and the United States, largely as a result of changes in sentencing by the courts. “Three strikes and you’re out” sentences were first introduced in the United States in 1993 and in the United Kingdom in 1998, with the result that recidivist violent offenders in particular remain in prison well into old age. Many US states have been obliged to develop nursing home wings for older prisoners, and the UK prison service is beginning to take seriously the needs of older inmates. In studies of remanded and sentenced older prisoners, high levels of psychiatric and physical morbidity have been found.15,16 Up to 5% are psychotic. In contrast to younger prisoners, in whom schizophrenia is the most common psychotic illness, depressive psychosis is most common in

PSYCHIATRIC SERVICES A number of studies have shown that older adults make up between 1% and 3% of referrals to forensic mental health services in the United Kingdom.19 There have been several descriptive studies of the elderly in high security, but these mainly focused on diagnostic issues. In a study at Broadmoor high-security hospital in England, the heterogeneity of older mentally disordered offenders in terms of diagnosis, assessed needs, and expressed preferences was highlighted.20 Despite having a ward specifically for older vulnerable patients, the 16 patients over the age of 65 identified in the study were spread across nine different wards in the hospital. Older patients have some similarities with one another because of their age, but the range of problems they present and their needs appear to be just as diverse as those of younger patients. It would be wrong to confine them all together solely on grounds of chronological age. This important issue also emerged in some of the earlier qualitative work in prisons when it was found that not all older inmates wanted to be housed together; some liked the hustle and bustle and enjoyed a high status in mixed-age units because of their age and life experience.21 Nursing homes for older adults often cope with high levels of minor physical aggression and sexually disinhibited behavior. However, they are not equipped to deal with more serious aggression or predatory sexual behavior. The understanding of risk issues and how to assess and manage them is often highly sophisticated for the common behavioral problems of dementia, but for behavior driven by antisocial personality traits, it is usually lacking. This means that there is a lack of suitable facilities for older offenders who have been assessed and require ongoing nursing care in an environment that is also able to manage their risky

402  Elderly offenders

behavior. In the United Kingdom, specialist hospital units have been set up for those who require inpatient assessment and treatment, but a lack of appropriate placements to discharge stabilized patients, though not necessarily to a state where the risks they pose to others have been substantially reduced, means that many remain in the hospital for longer than would otherwise be necessary.

TREATMENT ISSUES The most important consideration in the treatment of the mental health problems of elderly offenders is location. For less serious offenders, normal treatment by their community mental health team in conjunction with their general practitioner is appropriate. For those in custody, treatment by a visiting psychiatrist and prison in-reach team may be sufficient, but for others assessment and treatment in a hospital will be required. For some of these, it may be appropriate for an old-age psychiatrist to manage the case within their own service, with advice from the local forensic psychiatric team, but in other cases the individual may need treatment in a secure hospital. Largely because of concerns about the vulnerability of older adults in standard forensic psychiatric services, a number of specialist secure units for older adults were established in the United Kingdom beginning in 2000, taking elements of older adult and forensic psychiatric service models but adapting them to ensure that security is maintained without unnecessary levels of physical security. Pharmacological treatments are no different for elderly offenders with mental health problems than for their community peers, but the risk/ benefit balance is tilted more toward drug treatment than would be the case in standard old-age psychiatric practice. Antipsychotics in schizophrenia tend to be used at doses more typical of working-age adult services and are often used in dementia as well. Acetylcholinesterase inhibitors need to be used with caution because they can result in increased agitation and aggression. Anti-libidinal medication can be useful in the treatment of sexual offenders with personality disorders and organic mental health problems, though the evidence base for this is still very limited. Offense-related psychological therapies are important in older offenders, but programs usually need to be adapted to meet the needs of older people.

RISK ASSESSMENT The unstructured clinical assessment that was the cornerstone of forensic psychiatric practice a generation ago has been largely replaced by a range of actuarial and structured clinical assessment tools backed by a substantial body of research. The problem of using these tools with older adults is that none of them has been validated for this group, and many tend to focus on past behavior or negative characteristics. In the absence of instruments designed specifically for the elderly, the use of structured clinical risk assessment

tools is recommended to ensure a systematic approach to the gathering of risk information, but the social context, physical health status, and unpredictable effects of the mental disorders of late life must be included in all risk assessments of older people.

REFERENCES 1. Fazel S, Sjöstedt G, Långström N, Grann M. Risk factors for criminal recidivism in older sexual offenders. Sexual Abuse: A Journal of Research and Treatment. 2006; 18: 159–67. 2. Hanson K. Recidivism and age: Follow-up data from 4673 offenders. Journal of Interpersonal Violence. 2002; 17: 1046–62. 3. Barbaree H, Blanchard R, Langton C. The development of sexual aggression through the life span: The effect of age on sexual arousal and recidivism among sex offenders. Annals of the New York Academy of Sciences. 2003; 989: 59–71. 4. Hucker SJ, Ben-Aron MH. Violent Elderly Offenders—A Comparative Study. In: Elderly Criminals. Eds. Wilbanks W, Kim PKH. Lanham, MD: University Press of America, 1984: 69–81. 5. Knight B. Geriatric homicide—Or the Darby and Joan syndrome. Geriatric Medicine. 1983; 13: 297–300. 6. Willbanks W. The elderly offender: Relative frequency and patterns of offences. International Journal of Aging & Human Development. 1984/1985; 20: 269–81. 7. Kratcoski PC, Walker DB. Homicide Among the Elderly: Analysis of the Victim/Assailant Relationship. In: Older Offenders—Perspectives in Criminology and Criminal Justice. Eds. McCarthy B, Langworthy R. New York: Praeger, 1988: 63–75. 8. Goetting A. Patterns of homicide among the elderly. Violence and Victims. 1992; 7: 203–15. 9. Kratcoski PC. Circumstances surrounding homicide by older offenders. Criminal Justice and Behavior. 1990; 17: 420–30. 10. Cohen D, Llorente M, Eisdorfer C. Homicide-suicide in older persons. American Journal of Psychiatry. 1998; 155: 390–96. 11. Curtice M, Parker J, Wismayer F, Tomison A. The elderly offender: An 11-year survey of referrals to a regional forensic psychiatry service. Journal of Forensic Psychiatry and Psychology. 2003; 14: 253–65. 12. Yesavage JA, Brink TL, Rose TL, Lum O, Huang V, Adey M, Leirer VO. Development and validation of a geriatric depression screening scale. Journal of Psychiatric Research. 1983; 17: 37–49. 13. Lewis CF, Fields C, Rainey E. A study of geriatric evaluees: Who are the violent elderly? Journal of the American Academy of Psychiatry and the Law. 2006; 34: 324–32.

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14. Needham-Bennett H, Parrott J, Macdonald AJD. Psychiatric disorder and policing the elderly offender. Criminal Behaviour and Mental Health. 1996; 6: 241–52. 15. Fazel S, Hope T, O’Donnell I, Jacoby R. Health of elderly male prisoners: Worse than the general population, worse than younger prisoners. Age and Ageing. 2001; 30: 403–7. 16. Fazel S, Hope T, O’Donnell I, Jacoby R. Hidden psychiatric morbidity in elderly prisoners. British Journal of Psychiatry. 2001; 179: 535–59. 17. Kingston P, LeMesurier N, Yorston G, Wardle S, Heath L. Psychiatric morbidity in older prisoners: Unrecognized and undertreated. International Psychogeriatrics. 2011; Apr 14: 1–7 [Epub].

18. Wahidin, A. Older Women and the Criminal Justice System: Running Out of Time. London: Jessica Kingsley, 2004: 168–78. 19. McLeod C, Yorston G, Gibb R. Referrals of older adults to forensic and psychiatric intensive care services: A retrospective case-note study in Scotland. British Journal of Forensic Practice. 2008; 10: 36–40. 20. Yorston G, Taylor PJ. Older patients in an English high security hospital: A qualitative study of the experiences and attitudes of patients aged 60 and over and their care staff in Broadmoor Hospital. Journal of Forensic Psychiatry and Psychology. 2009; 20: 255–67. 21. Aday RH. Aging Prisoners: Crisis in American Corrections. Westport: Praeger, 2003: 113–42.

57 Ethnic minority offenders DAVID NDEGWA References 409

Much of the discourse on black or black British (African Caribbean, African, or Black Other as described in the 2001 census) offending has focused on the search for explanations for the observed over-representation in the criminal justice system (CJS). Arguments about the extent of over-representation in the CJS have been addressed by the annual UK Ministry of Justice statistics following the 1991 Criminal Justice Act, while those in psychiatric hospital settings have been addressed by the Count Me In census conducted by the Health Care Commission and later the Care Quality Commission between 2005 and 2010. The Count Me In census confirmed the over-representation of black patients in those admitted compulsorily to hospitals and receiving what have been perceived as coercive interventions. More research needs to be conducted to explain the observed phenomena. Such research would aid in the design of interventions to address violence and offending in institutional and community environments while at the same time informing community-based preventative interventions. To address the question of whether the determinants of offending in the white and black population are the same or whether there are specific aspects related to ethnicity, one must employ a broad-based approach to testing whether current understandings in criminology explain what is observed. There is a need for more qualitative research, for example, research on offense narratives, to ascertain the validity of current theories and to identify previously missed explanations for behavior before focusing on quantitative research, which may run the risk of simply attempting to replicate what has been found in other ethnic groups. Eric Silver, writing on associations between mental disorder and violence, listed the theories from criminology used in understanding violence.1 These include the social learning approach, the social stress approach, the informal social control approach, rational choice, the etiological approach, criminal careers, and social disorganization. He recommends a wide scope of data collection on criminological

risk factors, including data that address these theories. He also recommends a within-person longitudinal design suggested by Mulvey and colleagues,2 in which the timing of risk factors is carefully measured in relation to the occurrence of violence. This approach is needed in studies of violence and crime in black people with mental disorders and those without. The experience of black people in the criminal justice system is regularly described in statistics on race and the CJS published by the Ministry of Justice under Section 95 of the Criminal Justice Act 1991. The data in these reports suggest that little has changed over the years. The 1999 Commission for Racial Equality (CRE) fact sheet3 summarized the observed pattern as follows: Black people are five times more likely to be arrested, and they are likely to be charged with weaker evidence. Once charged, they are less likely to receive bail. Cases involving blacks are likely to be terminated by the Crown prosecution service on grounds of evidence or public interest. There is variation in court sentencing practice. Perhaps because of the number of black people who plead not guilty and have their cases go to trial, those convicted tend to get longer sentences. The incarceration rates remain high. The 2003 CRE fact sheet4 reported these to be 188/100,000 for white people, 1615/100,000 for black, 1704/100,000 for black Caribbean, 1274/100,000 for black African, and 1695/100,000 for black other. In 2001, black people made up 7.2 prisoners/1,000 of the prison population compared to 1.4 prisoners/100,000 for whites. Reconviction rates over 2 years were 62% for whites and 56% for blacks in 2001. Black people were heavily represented in those convicted of robbery and drug-related offenses. Of those receiving the new Indeterminate Sentences for Public Protection (IPP) in 2008, 14% were black people compared with 78% who were whites. The 2008 Sainsbury Centre for Mental Health Report5 noted that one in five of those on IPPs had received psychiatric treatment of any 405

406  Ethnic minority offenders

kind, and a similar number were on medication. It noted that those persons convicted of robbery were a significant but declining population, while sex offenders accounted for an increasing population. A total of 115 individuals on IPPs were in secure hospitals, and the suicide rate for those on IPPs in general was higher than that of the general prison population. Most recent attempts at seeking explanations for crime in the black population have focused on offenses such as street crime, knife and gun crime, and gang-related crime, which frequently make the media headlines in large urban areas and where black people are significantly represented as victims or suspects. Research tends to show that crime patterns are influenced by local population characteristics, and one cannot make generalizations about the national picture. The simplest explanation for crime is that black people tend to reside in areas where there is a high prevalence of factors commonly associated with crime— unemployment, social disorganization, poor housing, and poverty—and their involvement in crime is largely explained by these factors. Recent UK studies and an inquiry into crime in young black people and their overrepresentation in the criminal justice system offer insights into the role of factors other than those mentioned, which may increase understanding and lead to effective crime reduction interventions. The 2007 Home Affairs Select Committee Report6 on black youth’s over-representation in the CJS provided a detailed analysis of the aforementioned patterns. A cross-government action plan designed to address the issues described, and subsequent reports of the government responses (see reports in 20097), show improvements in tackling disproportionality and reductions in numbers of young people caught up in the CJS. The report pointed out that policies needed to take into account the reported differences if they were going to have any effect. The report described social exclusion as the primary cause of over-representation. It noted that young black people were disproportionately subject to social economic disadvantage, and that educational underachievement was a symptom and cause of disadvantage. They noted that educational underachievement and disaffection were accompanied by high levels of social exclusion among black young people. Deprivation and underachievement meant that young black people lacked positive role models to which to aspire. The report noted that other issues in black communities compounded disadvantage. Family and parenting factors contribute to over-representation. Young black people’s distinctive reaction to disadvantage also caused involvement in crime. The report noted that criminal justice factors play an indirect and direct role in promoting overrepresentation; young black people who had offended were more likely to come into contact with the system again. The perception as well as the reality of discrimination promoted involvement with the CJS. In black communities and the media there has been a great deal of interest in black-on-black crime. According to

Home Office statistics in 2005,8 black people were five times more likely to be murdered than their white counterparts in England and Wales. Where suspects were identified, the majority of homicides were intraethnic, and black murder victims were much more likely to be shot than white or Asian victims. In a 2007 article in The Guardian,9 former Prime Minister Tony Blair described a distinctive black culture that was fostering knife and gun crime. He added that the black community needed to be mobilized in denouncing this gang culture that was killing young blacks and that the problem would not be stopped by denying that it was not young black kids who were involved as perpetrators. He emphasized that recent violence involving guns and knives should not be treated as part of a general crime wave, and there needed to be an intense focus on young minority Britons, with the gang leaders being taken out of circulation. The prime minister’s views were backed by the commission for race equality. In the United States significant resources are concentrated on preventing black-on-black crime, with the description of the problem as a significant public health issue.10 Fitzgerald and colleagues conducted a study that focused on patterns of and motivation for the involvement of young people in street crime.11 They noted that offending related to four sets of development that were likely to continue to affect future patterns of offending. These were: 1. Technological advances (as symbolized by the mobile phone) 2 . Patterns of consumption where there were an increasing number of items seen as essential and fashionable 3. Social fragmentation, which was seen particularly in areas where social ties were weak 4. Economic polarization, where the proximity of others who were more fortunate heightened the sense of relative deprivation Smith, in a Home Office research study, noted that robbery was disproportionately concentrated in a small number of police basic command units.12 Visible ethnic minorities were over-represented as offenders in some basic command units but not in others. The study cautioned that these findings on ethnicity could not be extrapolated to give an overall national picture. Berthold noted that the disaffection of young black youths who were unsuccessful in the education system and were unemployed were detached from family and other commitments, which put them at risk of alienation and resentment.13 Lisa Arai and colleagues, in a review of the literature on generational changes in UK black-born Caribbeans, noted that resentful young men already vulnerable to the effects of discrimination and social exclusion were not well disposed toward their hardworking black sisters and would probably not be any more inclined toward others in their orbit.14 Cameron, citing research in Jamaica on male survivability.15 Gayle wondered whether black schoolboys were

Ethnic minority offenders  407

deliberately under-performing to avoid undermining their masculinity.16 Commentators have also noted the youths’ adoption of negative stereotypes (given to them by others) that in turn justifies this antisocial behavior. Youth of all backgrounds appear to join gangs for similar reasons. Members of ethnic minority gangs talk of racism, discrimination, and stigmatization as motivating factors. In some countries gang youths might use ethnic discrimination as justification for some criminal activities or might describe gang violence as a reaction to stereotyping, exclusion, and everyday racism or to physical aggression against them as minorities.17 Lane and Wood summarize characteristics of individual members of gangs in the United States and the United Kingdom.18 Members are usually young on entry, between 12 and 18 years old. Once a member, some continue membership well into their 20s or even older. Gangs are predominantly composed of males. Gangs reflect the ethnic makeup of the neighborhood; some are racially homogenous, while others are mixed. Individual risk factors for joining a gang include learning difficulties and mental health issues. Members tend to come from backgrounds of low socio-economic status, neighborhoods with existing gangs, areas that have high rates of juvenile delinquency, and families with issues such as poor parental management. There also is a high incidence of familiar criminality— gang-involved family members who provide young people with a home environment that reinforces gang-related and delinquent behavior. Delinquency and pressure from these peers increase the likelihood of antisocial behavior and gang membership. The researchers note that in the literature there is no single factor that can fully explain gang membership. UK research shows that gang crimes include robbery, drug trafficking, weapon possession, and the use of firearms to settle minor disputes. Psychological factors elicited from current literature show that self-esteem has a dynamic relationship with gang membership. It plays a central role in why a young person joins a gang, participates as a member, and decides to leave the gang. Leaving a gang requires a high level of self-esteem in order to resist pressure from the gang. Gangs reflect universal needs in young people for status, identity, and companionship. In their study of psychological and behavior characteristics of gang members, Lane and Wood recruited participants from five London schools. The study examined gang members, peripheral youth, and nongang youth across measures of criminal activity: the importance they attached to status, their levels of moral disengagement, their perceptions of outgroup threat, and their attitudes toward authority. Of the 798 high school students who participated in the study, 59 were identified as gang members, 75 as peripheral youths, and 664 as nongang youth. Gang members and peripheral youths were more delinquent than gang youth overall. Gang members committed more minor offenses than nongang youth, and peripheral youth committed more violent offenses than nongang youth. Gang members were more antiauthority than nongang youth, and both gang and peripheral youth

valued social status more than nongang youth. Gang members were also more likely to blame their victims for their actions and use euphemisms to sanitize their behavior than nongang youth, while peripheral youths were more likely than nongang youths to displace responsibility onto their superiors. In their discussion, the researchers note that the most successful intervention programs targeting delinquency address social, cognitive, and behavioral processes; however, no current gang prevention programs include cognitive, behavioral interventions. Lane and Wood note that the study indicates that social cognitive processes deserve more consideration than they currently receive in the development of interventions that tackle gang activity. They note that longitudinal research would be the most informative method for examining gangs. It would help clarify developmental processes involving gang membership, add crosssectional snapshots to understanding cognitive processes that underlie involvement in gangs and criminal activity, and help to devise interventions and target gang-involved youth. The Office of National Statistics (ONS) survey on psychiatric morbidity in English prisons19 did not find statistically significant differences between black and white prisoners who were remanded or sentenced with probable psychosis and antisocial personality disorder. There was no apparent relationship between prevalence of neurotic symptoms and ethnicity. While there may be differences in prevalence in local prisons, these differences are not apparent when one takes a national sample. It is interesting to note that the prevalence of personality disorder was not different in a study using a research assessment and diagnostic tool in a prison setting at a time when personality disorder did not feature much in hospital case note diagnosis. Research by Bruce20 shows that when an assessment tool is used, the prevalence of antisocial personality disorder in hospitalized black and white patients with a comorbid diagnosis of psychosis is the same, but there are differences in measures of met and unmet needs. Further analysis of the prison population of men with antisocial personality disorder found that black prisoners had fewer risk factors in their background and a history normally associated with conduct disorder, but they had adolescent or late-onset criminality.21 Previous research suggests that environmental factors such as peer influences are important in the etiology of adolescent-onset conduct disorder.22 The conduct disorder that usually leads to antisocial personality disorder in adulthood has been found more often in black males compared to white males.23 Recently, Hodgkins and colleagues showed a strong relationship between antisocial behavior with aggression and convictions for violence among men with psychosis.24 Men of black Caribbean ethnicity have been found to be three times more likely to have a criminal record and eight times more likely to have committed a violent offense prior to their first episode of psychosis compared to those of British ancestry.25

408  Ethnic minority offenders

Black men are approximately 5.6 times as likely as white men to be admitted to medium-security units, while black women are 2.9 times as likely as white women.26 A number of theories have been proposed to explain this phenomenon. In a study of South East London admissions to forensic services, Guite27 found that in the six boroughs studied, there was a 9.6-fold difference in the number of mentally disordered offenders per head of population between the highest and the lowest borough. There was a 12.8-fold variation in the number of people in high-security hospitals per head of population between the boroughs within the sector, a 10-fold variation in the proportion of patients who were black, and a 6-fold variation in number of drugrelated offenses per head of the population. The sector had a population of 1.5 million, of whom 15% were black. Taking all these factors into account, the explained variation between sectors reduces from 9.6 to 2-fold. This meant that the vast majority of comparisons between the boroughs were accounted for by different levels of poverty, deprivation, and proportion of the population who were black. The remaining and unexplained 2-fold variation could be due to unaccounted-for socio-economic factors, service structure, or service provision factors. In summary, two key sets of factors were associated with increased numbers of offenders who were mentally disordered: (1) poverty and deprivation and (2) being black. These factors often overlap, but when looking at offending, they are compounded because black people with schizophrenia were 340% more likely to be convicted of an offense on average, and white people with schizophrenia were 40% less likely to be convicted. Coid found that variations in compulsory hospitalization could not be attributed entirely to racial bias. Community-based services may be less effective in preventing escalating criminal and dangerous behavior associated with mental illness in African/Caribbean people, which to admission to secure units.21 Other explanations have focused on the high incidence and prevalence of severe mental illness and of violent offending in the black population. In a recently reported systematic review of the incidence and prevalence of schizophrenia and other psychosis in England, covering a 60-year period between 1950 and 2009, schizophrenia had a pooled annual incidence of 15 cases 100,000 people. There was a much higher incidence in younger men compared with women and for black and minority ethnic (BME) groups compared with the majority. Incidence was relatively stable over time. Any increases that were found could be explained by changes in the ­ethnic makeup of the relevant community. There was evidence of variation according to social disadvantage, with high rates in more disadvantaged communities and neighborhoods. None of these effects was dependent on study quality. Affective psychosis had a pooled annual incidence of 12 cases per 100,000, unlike in schizophrenia, and men and women had similar incidence that decreased with age. Affective psychosis was more common in BME groups, but its incidence did not appear to change since 1950. In contrast, there was no evidence of any geographical or neighborhood effects on

incidence of schizophrenia. Prevalence studies were difficult to pool; however, studies suggested overall that 4 of every 1,000 people have or have had an active psychotic disorder over the past year. This prevalence increased with age but had not risen over the 60 years under review. Prevalence of psychotic disorder was consistently much higher in judicial, custodial, and homeless shelters and in residential homes than in the general population. The proportion of the BME groups in an area had an important bearing on incidence of psychosis there. The increased rates in BME groups are consistent across studies and are not confined to schizophrenia. The rates were demonstrated in the highest quality studies investigating the issue and did not require sophisticated statistical methods to show the effect. The review did not show why somebody in a BME group was more likely to develop psychosis. Factors such as age, sex, ethnicity, and socio-economic disadvantage were important in all communities, including BME groups. Social factors in an urban environment, including indicators of low community cohesion, were associated with increased incidence of schizophrenia. Some of the studies in the review, for example, the Aesop (Aetiology and Ethnicity of Schizophrenia and Other Psychosis) study,28 show that schizophrenia was nine times more common in African/Caribbeans and six times more common in black Africans than in white British people. Manic psychosis was eight times more common in African/Caribbeans and six times more common in black Africans than in white British people.29 Singh and colleagues reviewed the literature on detention and ethnicity and analyzed detention rates of BME groups.30 They also explored the explanations offered for ethnic differences in detention rates. The researchers found that black patients were 3.83 times, BME patients 3.35 times, and Asian patients 2.06 times more likely to be detained than white patients. The most common explanations were misdiagnosis and discrimination against BME patients, high incidence of psychosis, and differences in illness expression. The team concluded that although BME status predicts psychiatric detention, most explanations offered for the excess number of detentions of BME patients were largely unsupported, with no robust research evidence. To fully understand the over-representation of black patients in medium-security units, one needs to examine differences between them and other populations in those factors that determine whether a case is forensic, such as the presence of a substantial risk to others that needs to be managed in a secure ward setting. Apart from issues related to the incidence and prevalence of severe mental illness, judgments on dangerousness are therefore important. There is more literature attempting to explain overrepresentation of black people in institutions, though as described earlier, this literature is more about hypotheses that have not been subjected to rigorous research. The overrepresentation of the diagnosis of schizophrenia in black people suffers from the same problems in terms of ensuring that it is not related to bias or the use of inappropriate

References 409

assessment or diagnostic approaches and tools. In the case of diagnosis, the problems described by the author31 have not been addressed. The problems in diagnosis relate to the validity of the instruments used; while they might be appropriate for the white population for which they were developed, they have not been tested to be used across cultures. Insights from the mathematics and anthropology of measurement have not been applied to the development of tools for use across cultures.32 The linguistic, conceptual norm, and scale equivalence remain unknown. The extent of interpretive bias in studies relying on interviews is also unknown. These concerns need to be addressed given the high incidence and prevalence of schizophrenia reported in the United Kingdom and the Netherlands, which differs markedly from that in the rest of the world. Shapley and colleagues have reviewed a number of psychological, social, and biological hypothesis that might explain the high incidence of psychosis.33 The literature on differences in symptom profiles and outcomes34 needs to be taken into account in explaining whether one is seeing true schizophrenia or whether diagnosis of other psychoses has been missed. Several researchers35 have illustrated the importance of incorporating insights from sociology, socio-political context, and anthropology in epidemiologic studies. On the assessment of dangerousness, Loring and Powell showed that even if clear-cut diagnostic criteria were given to clinicians,36 the sex and race of patients and clinicians affected diagnosis and assessment of other problems. Clinicians were given vignettes of the same case and were assessed on whether, when additional information on race and gender was given, there was a change in their assessment. When no identifying information was given, the diagnosis given was the correct one. When assessing the case where the race was given as black, both black and white clinicians described suspiciousness, violence, and dangerousness more often. Spector and colleagues reviewed the literature on the use of compulsory admissions in Britain and of seclusion in the United States. In the review, they found that there was some evidence for their assertion of racial bias in perception of dangerousness, which influenced patient management.37 Bowers and colleagues reviewed literature on inpatient aggression and violence.38 They found 11 studies that included information comparing the ethnicity of aggressive and nonaggressive patients. Nine of the studies reported no significant differences between aggressive and nonaggressive patients. One study found a significant association between being nonwhite and committing an assault, whereas another study found Caucasian patients were more

likely to be aggressive than non-Caucasian patients. The researchers felt that combining these studies might not be valid in attempts to find the combined relative risk. In the studies analyzed, no effect was found in either acute or forensic services.

REFERENCES 1. Eric Silver 2006 2. Mulvey et al. 1986 3. 1999 CRE fact sheet 4. 2003 CRE fact sheet 5. 2008 Sainsbury Centre for Mental Health Report 6. 2007 Home Affairs Select Committee Report 7. 2009 reports 8. 2005 Home Office statistics 9. 2007 article in the Guardian 10. Ndegwa 1998 11. Fitzgerald et al. 2003 12. Smith 2008 13. Berthold 1999 14. Lisa Arai et al. 2002 15. Cameron 16. Gayle 2002 17. D Peterson et al. 2008. 18. Emma Lane and Jen L Wood 2010 19. Singleton N et al. 1998 20. Matt Bruce (personal communication) 21. Coid 2002 22. McCabe et al. 2001 Moffit and Caspi 2001. 23. Meltzer 2000 24. Hodgkins et al. 2007, 2008 25. Hodgins et al. 2011 26. Coid 2002 et al. 27. Hilary Guite 2003 28. Aesop study 29. Kirkbride J et al. 2006. 30. SP Singh et al. 2007. 31. Ndegwa 2002 32. Marsella A J, et al. 1989. 33. M.S Shapley et al. 2001 34. Adebimpe V R et al. 1981 and 1982, Littlewood R et al. 1981, Mckenzie K et al. 1995, Mukhejee S et al. 1983, Hickling et al. 1999, Kirov G et al. 1999 35. G. Canimo et al. 1994, 1996, 2008, N Krieger 1987, 1999, 2001, 2011, N.Kanami 2011, J.M.Waldram 2006 36. Loring & Powell 1988 37. Spector R. et al. 2001 38. Len Bowers et al. 2011

58 Deaf offenders with mental health needs SIMON GIBBON, AMY IZYCKY, AND MANJIT GAHIR Deafness: Definition and prevalence 411 Deafness and mental health problems 411 Deaf offenders 412 Why do deaf people have increased rates of some offenses? 412 Current service provision for deaf mentally disordered offenders 412

Deaf prisoners 413 Conclusion 413 Suggestions for further reading 413 References 413

DEAFNESS: DEFINITION AND PREVALENCE

English, its use may be affected by the person’s educational and social background. There is no single universal sign language, and different countries have different sign languages. Some deaf people do not view themselves as having a disability but rather as being member of a minority language group.3 Not everyone who has some degree of hearing loss will use sign language to communicate. The majority of those who become deaf in later life and some individuals with early onset deafness have learned a spoken language as their first language and so prefer to communicate using a combination of oral and written methods. For these individuals, their hearing loss is part of them, but it may not necessarily define them as culturally Deaf. As a result, many individuals who refer to themselves as deaf relate more to the hearing world and hearing culture rather than to the Deaf culture.

There are approximately 10 million deaf and hard of hearing people in the United Kingdom, of whom 3.7 million are of working age.1 Deafness is more than an audiological measurement that defines an individual’s degree of hearing loss. Deaf people form a heterogeneous group, and the age of onset of their deafness and degree of hearing impairment have a significant effect upon the individual’s communication preference and cultural identity.2 Those who become deaf in early childhood, before the development of full spoken language (prelingual deafness), are more likely to use sign language such as British Sign Language (BSL), and belong to the Deaf * community and share its associated values and belief system. They are proud to be Deaf and share a unique set of defining life experiences with other members of the Deaf community. In the United Kingdom, 800,000 people are either severely or profoundly deaf, of which approximately 70,000 are BSL users.1 These individuals are probably most likely to refer to themselves as being Deaf. BSL is the main type of sign language used in the United Kingdom. It is not the same as gesture and is a form of visuo-spatial language with its own grammar and syntax. There are regional variations in signs used (analogous to the accents of spoken languages), and just as with spoken * Throughout this chapter when the term deaf is used, a reference is made to all individuals who are deaf and hard of hearing. The term Deaf is used more specifically to refer to those with a hearing impairment who view themselves as belonging to distinct linguistic and cultural group.

DEAFNESS AND MENTAL HEALTH PROBLEMS It is estimated that the total lifetime prevalence of mental health problems is 40% in the deaf population compared to 25% in the hearing population. Although rates of psychotic and affective illness are similar to those of the hearing population, deaf people appear to be at increased risk of organic syndromes, learning disability, and adjustment disorder.4 Compared with hearing people, deaf people also have higher rates of psychological problems, emotional distress, and physical health problems.5 When working with deaf people with mental health problems, key areas of difference include communication and culture.6 These differences mean that deaf people 411

412  Deaf offenders with mental health needs

may be at increased risk of both under- and overdiagnosis. Mental health symptoms or impaired functioning may be mistakenly attributed to deafness or aspects of the deafness (such as use of BSL word order or role shift)7 being mistaken for signs of mental disorder.7 Nuances of sign language are easily misinterpreted, and gesturing and pointing may be falsely perceived as indicators of aggression.8 Deaf people with suspected mental health problems who use sign language as their first language are likely to need a specialist assessment by a clinician experienced in working with this group.4,9

DEAF OFFENDERS Deaf people have been found to be overrepresented in both the UK and US secure settings.10,11 Violent and sexual offending has also been found to be more common in deaf offenders than in hearing offenders.12,13 In Miller and Vernon’s study of a Texas sample,13 64% of their deaf sample were incarcerated for violent offenses compared to 49% of the hearing prisoners. With regard to sexual offenses, 32% of the deaf sample were being detained for these compared to 12% of hearing offenders. In 2001, Young, Howarth, Ridgeway and Monteiro conducted a file review of 5,034 referrals to the three specialist community mental health services in the United Kingdom over a 31-year period.7 Of the total, 431 (8.5%) were found to be offenders. Of these 431 cases, a diagnosis was recorded for 385, with 181 (47%) being found to be mentally disordered. The breakdown was 36% personality disorder, 25% psychotic, 19% mentally impaired or learning disabled, and 20% other. Of 385 patients with suspected mental disorder, it was estimated that 237 (61%) would have benefitted from at least an assessment in a specialist medium secure service for deaf people. A similar case file review methodology was also used to assess deaf sex offenders referred for psychiatric assessment.14 It was found that 25% of those referred were considered to be suffering from mental health problems; depression was most common, followed by pervasive developmental disorders and schizophrenia. Forty-eight percent of those referred had a past psychiatric history.

Why do deaf people have increased rates of some offenses? The possible reasons that deaf people are overrepresented in secure settings and have higher rates of some offending behaviors are likely to be complex and multifactorial. They are summarized by O’Rourke and Grewer (2005): “...organic brain injury related to aetiology of some hearing loss, to psychosocial deprivation, lack of information regarding appropriate sexual behaviour, deprivation of normal emotional relationships through maturing in a linguistically inaccessible environment, and the experience of childhood sexual abuse”.15

Harry and Dietz10 suggest that it is not prelingual deafness per se that contributes to criminality, but that it is the fact that prelingual deafness is associated with many other factors known to be associated with criminality. These include deficits in brain functioning, educational underachievement, low social status, social isolation, and unemployment. Hindley et al 28 also confirm that there is evidence to suggest that language and cultural mismatches play a significant part in offending by deaf people. The intense difficulty that some deaf people may have in expressing their thoughts, emotions, and wishes in an audiocentric world may cause some to become violent (“communication frustration”—see Izycky et al. p.386,16 for a case example). There is disproportionate incidence of brain damage in the people who are deaf and this may also contribute to the increased incidence of violent offending in this population.17 Rubella when contracted in utero causes prelingual deafness that is also associated with an increased prevalence of autism, with individuals commonly presenting with deficits in social intelligence and communication alongside cognitive deficits. Haskins 6 found some deaf patients with Rubella had difficulty befriending other deaf people and had a history of job failure due to altercations with colleagues because of rigid cognitive styles and the inability to appreciate another’s point of view. This developmental trajectory could result in not only a higher prevalence of offending but also a higher rate of mental health problems. Carvill and Marston18 explain how sensory impairments are more prevalent in individuals who also have intellectual disabilities and, therefore, this presentation can lead to much higher rates of emotional and behavioral problems than in the general population. However, Miller et al.8 report that the typical deaf violent offender presents with average intelligence, but with a significantly reduced reading age compared to other deaf people. Indeed, 34% of Miller et al sample could be deemed to be functionally illiterate. It should also be noted that there may be considerable difficulties in assessing, interviewing, charging, and trying deaf suspects; such difficulties may cause the criminal justice system to be reluctant to take action against deaf people who have committed relatively minor offenses. This may mean that they are denied the deterrent effect and support from probation and similar agencies that conviction may bring, and that their offending may then continue and escalate.13,15

Current service provision for deaf mentally disordered offenders Provision of forensic services for deaf people is highly variable, and there are reports of ignorance around understanding the needs of the deaf community that ultimately results in an unequal degree of service provision.19 Shipman20 provided empirical evidence of how the British judicial system

References 413

does not appear to be proactive in meeting the communication needs of deaf people in court. Following a high-profile homicide committed by a mentally ill deaf man,21 the Department of Health published a consultation document entitled “Sign of the Times,”22 which was followed by the “Towards Equity and Access” report.4 These reports highlighted the relative lack of specialist provision for deaf people with mental health problems. They also recommended the development of specific centers of expertise and care pathways for deaf people with mental health problems who present a risk to others. The UK National Health Service (NHS) provides a National High Secure Service for Deaf Men at Rampton Hospital in Nottinghamshire.16,23 There is no other specialist NHS provision for deaf mentally disordered offenders. The independent sector provides a small number of medium- and low-security specialist services: Alpha hospital, Bury; St. George Healthcare, Warrington; and St Andrew’s Healthcare, Northampton.24 Treatment programs and interventions need to be adapted in order to make them culturally and linguistically accessible to deaf mentally disordered offenders. Interventions need to give information visually and often need to use role play.25 This may make offense-related interventions particularly problematic. The lack of validated assessment tools also makes risk assessment more difficult.15 The specialist needs of deaf patients in secure mental health settings have been acknowledged by the Royal College of Psychiatrist’s Quality Network for Forensic Mental Health Services, which has published nationally agreed “Standards for Deaf People in Secure Care.”26

of access, it is often reported that deaf prisoners frequently fall victim to abuse and bullying. Within a prison environment, communication and cultural understanding become a challenge and can create miscommunication, frustration, and conflict, with many prison officers resorting to writing notes even though deaf people may not read or write English.28 Orders are given orally or through auditory signals, that in turn disadvantage deaf prisoners and may lead to disciplinary action when they do not respond.31 It is not uncommon for deaf prisoners to experience considerable injustices compared to their hearing peers, with no real access being provided to the reception procedure, legal advice, or the rules or expectations of the provision.11,29 Deaf prisoners are likely to have difficulties accessing Offending Behavior Programs (such as the Sex Offender Treatment Programme and Enhanced Thinking Skills) and rehabilitation opportunities.31,32,33 It is widely acknowledged that interpreter provision for such programs is inadequate and they are hence made inaccessible. This lack of access may mean that deaf offenders serving indeterminate sentences are unable to meet the needs of the parole board and so spend longer periods of time in prison or at inappropriate levels of security.4,7,10 Although there are no formal figures on the number of deaf prisoners with mental health problems in the United Kingdom, it is reasonable to predict that communication deprivation, isolation, and the stresses of prison life are likely to increase mental health problems in deaf prisoners who in turn are expected to be at greater vulnerability for psychological distress.15

DEAF PRISONERS

CONCLUSION

Many problems exist in trying to identify and quantify how many deaf prisoners exist, as deafness is a potentially hidden disability that may often not be identified or reported. For example, the UK Ministry of Justice does not keep official statistics on the number of deaf prisoners, and previous surveys do not make any distinction between deaf and hard of hearing prisoners or those who use a signed language. Gahir and colleagues27 report that their survey of UK prisons identified 135 deaf or hard of hearing prisoners with only a minority (9.6%) being sign language users. The authors concluded that this was likely to be an underestimate and that prison staff appeared to have difficulty in meeting the needs of deaf prisoners. Deaf prisoners may be regarded as serving a “double sentence” of imprisonment and isolation.28 They are often deprived of effective interaction with others throughout their incarceration.29 Reed30 comments that a lack of affirming conversation, compounded by the stark visual reality of the prison environment, can weigh heavy on a deaf individuals’ mind. There are difficulties in establishing contact with deaf visitors, and Reed30 finds that the families of the deaf prisoners may fear being outcast by the local deaf community if they visit and so tend not to. Further to this lack

In the course of this chapter, we have attempted to identify the existing research into the relationships between deafness, mental disorder, and offending. A number of factors can be identified that can be postulated to cause the observed higher rates of violent and sexual offending among deaf people. The need for specialist input and services for mentally disordered deaf offenders has also been discussed.

SUGGESTIONS FOR FURTHER READING Austen S, Jeffrey D. (Eds). Deafness and Challenging Behaviour: The 360 o Perspective. Chichester: Wiley, 2006. Hindley P, Kitson N. (Eds.) Mental Health and Deafness. London: Whurr, 2000.

REFERENCES 1. Action on Hearing Loss. About Deafness and Hearing Loss—Statistics. 2012. Available from: http://www.actiononhearingloss.org.uk/your-hearing/about-deafness-and-hearing-loss/statistics.aspx

414  Deaf offenders with mental health needs

2. Austen S, Coleman E. Controversy in Deafness: Animal Farm meets Brave New World. In: Deafness in Mind: Working Psychologically with Deaf People Across the Lifespan. Eds. Austen S, Crocker S. London: Whurr, 2004: Chapter 1. 3. Ladd P. Understanding Deaf Culture: In Search of Deafdom. Clevedon: Multilingual Matters, 2003. 4. Department of Health. Mental Health and Deafness. Towards Equity and Access. London: Department of Health Publications, 2005. 5. Fellinger J, Holzinger D, Dobner U, Gerich J, Lehner R, Lenz G. Mental distress and quality of life in a deaf population. Social Psychiatry and Psychiatric Epidemiology. 2005; 40: 737–42. 6. Haskins B. Serving deaf adult psychiatric inpatients. Psychiatric Services. 2004; 55(4): 439–41. 7. Young A, Howarth P, Ridgeway S, Monteiro B. Forensic referrals to the three specialist psychiatric units for deaf people in the UK. Journal of Forensic Psychiatry. 2001; 12(1): 19–35. 8. Miller K, Vernon M, Capella M. Violent offenders in a deaf prison population. Journal of Deaf Studies and Deaf Education. 2005; 10(4): 417–25. 9. Glickman N. “Do you hear voices?” Problems in assessment of mental status in deaf persons with severe language deprivation. Journal of Deaf Studies and Deaf Education. 2007; 12(2): 127–47. 10. Harry B, Dietz P. Offenders in a silent world: Hearing impairment and deafness in relation to criminality, incompetence and insanity. Bulletin of the American Academy of Psychiatry and Law. 1985; 13(1): 85–96. 11. O’Rourke S, Reed R. Deaf People and the Criminal Justice System. In: Deafness and Challenging Behaviour: The 360o Perspective. Eds. Austen S, Jeffrey, D., Chichester: Wiley, 2007. 257–74. 12. Young A, Monteiro B, Ridgeway S. Deaf people with mental health needs in the criminal justice system: A review of the UK literature. Journal of Forensic Psychiatry. 2000; 11(3): 556–70. 13. Miller K, Vernon M. Deaf sex offenders in a prison population. Journal of Deaf Studies and Deaf Education. 2003; 8(3): 357–62. 14. Iqbal S, Dolan M, Monteiro B. Characteristics of deaf sexual offenders referred to a specialist mental health unit in the UK. Journal of Forensic Psychiatry and Psychology. 2004; 15(3): 494–510. 15. O’Rourke S, Grewer G. Assessment of deaf people in forensic mental health settings: A risky business! Journal of Forensic Psychiatry and Psychology. 2005; 16(4): 671–84. 16. Izycky A, Gibbon S, Baker K, Gahir M. Application of therapeutic community principles to a high secure deaf service. Therapeutic Communities. 2007; 28, 372–89. 17. Vernon M, Greenberg S. Violence in deaf and hard-ofhearing people: A review of the literature. Aggression and Violent Behaviour. 1999; 4(3): 259–72.

18. Carvill S, Marston G. People with intellectual ­disability, sensory impairments and behaviour ­disorders: A case series. Journal of Intellectual Disability Research. 2002; 46(3): 264–72. 19. Adshead S-L, du Feu M. Mental health service provision for the deaf community. Progress in Neurology and Psychiatry. 2005; 9(7), 26–30. 20. Shipman S. The British Judicial System—Is it proactive in meeting communication needs of deaf people within a variety of legal settings? Deaf Worlds. 1996; 2(12): 2–8. 21. Mischon J, Sensky T, Lindsey M, Cook, S. Report of the Independent Enquiry Team into the Care and Treatment of Daniel Joseph, Merton Sutton & Wandsworth Health Authority/Lambeth Southwark & Lewisham Health Authority, London. Available from: www.deafinfo.org.uk/policy/the_daniel_joseph_ report.pdf 22. Department of Health. A Sign of the Times. Modernising Mental Health Services for People Who Are Deaf. London: Department of Health Publications, 2002. 23. Gahir M. High Secure Care for Deaf People in England and Wales. In: Deafness & Challenging Behaviour: The 360o Perspective. Eds. Austin S, Jeffery D. Chichester: Wiley & Sons, 2006. 275–91. 24. Gibbon S, Doyle C. The development and future of deaf forensic mental health services. British Journal of Forensic Practice. 2011; 13(3): 191–96. 25. Glickman N. Cognitive-Behavioral Therapy for Deaf and Hearing Person with Language and Learning Challenges. Abington, MA: Routledge, 2009. 26. O’Rourke S, Gibbon S, Hough W. Standards for Deaf People in Secure Care. London: Royal College of Psychiatrists, 2011. 27. Gahir M, O’Rourke S, Monteiro B, Reed R. The unmet needs of deaf prisoners a survey of ­prisons in England and Wales. International Journal on Mental Health and Deafness. 2011; 1(1): 58–63. 28. Hindley P, Kitson N, Leach V. Forensic Psychiatry and Deaf People. In: Mental Health and Deafness. Eds. Hindley P, Kitson N. London: Whurr, 2000. 206–31. 29. Denmark JC. Crime and Deaf People. In: Deafness and Mental Health. Ed. Denmark JC. London: Jessica Kingsley, 1994. 112–19. 30. Reed M. “Like a book you cannot close”: Deaf ­perspectives on justice. Deaf Worlds. 1996; 1(12): 17–23. 31. Vernon M, Miller K. Obstacles faced by deaf people in the criminal justice system. American Annals of the Deaf. 2005; 150(3): 283–91. 32. Schneider NR, Sales BD. Deaf or hard of ­hearing inmates in prison. Disability & Society. 2004; 19(1): 77–88. 33. Rickford D, Edgar K. Deaf Prisoners. Troubled Inside: Responding to the Mental Health Needs of Men in Prison. London: Prison Reform Trust, 2005.

59 Military psychiatry MARTIN DEAHL Structure of the UK armed forces Leaving the armed forces Military law Summary justice Court martial Mental health provision for service personnel Unique stresses of service life Mental health problems in the armed forces

415 415 416 416 416 416 417 417

Alcohol and the military 417 Post-traumatic stress disorder 418 Gulf war illness 418 Antisocial behavior 418 Conclusion 418 References 418 Further reading 419

The UK armed forces, approximately 200,000 strong, ­represent a small but important minority group. There are also more than 2,000,000 service veterans in the United Kingdom, and most psychiatrists will encounter serving or ex-service personnel and their families. A basic understanding of the armed forces is necessary to adequately assess these individuals, particularly when deciding the extent to which mental health problems are attributable to military experience.

(which, at present, may occur as often as every 18 months) cause ­dislocation and disruption of family life and are a major cause of stress in military personnel and their families. Royal Air Force (RAF) and Royal Navy (RN) personnel tend to have greater occupational stability, moving less often than members of the other forces as a result of the specialist and highly technical nature of many of their roles. They are also more likely to have higher levels of educational attainment, and these factors may, in part, explain their lower rates of psychiatric referral compared to the Army.

STRUCTURE OF THE UK ARMED FORCES Demographically, the UK armed forces are highly atypical. No members are under 16 years of age and very few are over 60. Thirty percent of army personnel are aged 18–24, compared to 7% of the overall UK population. Although the proportion of serving women has risen in recent years, females still account for less than 10% of service personnel, and the armed forces remain a male-dominated environment. The British Army is by far the largest of the three services. comprising approximately 97,000 personnel and accounting for approximately 90% of referrals to military mental health services. The volunteer reserve is made up of about 35,000 Territorial Army (TA) members who serve alongside their regular colleagues on operations. Serving personnel are “posted” to specific appointments and units, changing job and location approximately every 3 years. Operational postings to conflict zones such as Afghanistan typically last 6 months but can be substantially shorter for specialist personnel (such as medical staff), who may deploy frequently. Operational “tours”

LEAVING THE ARMED FORCES Most individuals who join the armed forces “sign up” for a 4-year contract. During basic training, there is a 6-month “window” during which those who feel military life is not for them can leave without question. Thereafter it becomes much more difficult to leave until completion of the contract, and “unhappy soldiers” wanting to leave the army account for a considerable proportion of referrals to military mental health services. Conversely, service personnel can be compelled to leave the armed forces for a number of reasons: ●● ●●

●● ●●

For misconduct. After being given a custodial sentence by a civilian court (for civilian offenses). On medical grounds. Administratively after admitting to taking illicit substances, or failing a random urine drug screen (there is zero tolerance for illicit drug use). 415

416  Military psychiatry

Any individual who has a history of mental illness that was not disclosed at the time of joining the service can also be administratively discharged. Service personnel recommended for medical discharge are referred to a formal “medical board,” chaired by an occupational physician, which makes a final decision independent of the psychiatrist making the recommendation. Finally, individuals may be discharged after being found “temperamentally unsuitable” (TU). Individuals deemed TU, although not mentally ill, often have personality difficulties and have difficulty coping with military discipline and the demands of service life.

a character representative and advise the accused on proceedings. The maximum sentence that can be handed down is 90 days’ detention. Officers are rarely dealt with summarily. The potential for injustice in these circumstances is balanced against the military imperative for prompt action to maintain service discipline, and the accused has wideranging rights of appeal against any decision. Commanding officers are pivotal to the application of military law and can exercise considerable discretion, being best placed to understand the context of an offense and balance justice against the wider needs of the organization in an individual case.

MILITARY LAW

Court martial

The armed forces have their own disciplinary and legal framework as well as unique structures to deliver justice. Personnel in all three armed forces are subject to the provisions of the Armed Forces Act 2006(AFA 06), implemented in  2009.1 This was a major legal reform enacted to render existing military law compliant with civil legislation as well as to harmonize the previously disparate legal codes of each of the three individual services. It is an overarching principle that all military personnel are also subject to UK civilian law and that any civilian criminal proceedings take precedence over military legal action. When a serviceman is charged with a civilian offense, he will be tried by the civil authority (where he is treated no differently from any other citizen) and dealt with subsequently by the military authorities. There are, however, a number of offenses unique to the military (such as absence without leave, disobeying orders, and so forth) that are not recognized by civilian courts and are dealt with exclusively by the military legal process. Individuals are subject to military law on and off duty. Potential offenses are many and wide-ranging, and in individual cases commanders apply what is known as the “service test”—posing the question “is an individual’s behavior or conduct prejudicial to good order and discipline?”—before deciding whether further action should be taken. A number of minor offenses and breaches of regulations may be dealt with, at the accused commander’s discretion, by “administrative” rather than disciplinary action. An accused facing administrative action has the opportunity to elect either to be dealt with summarily by the commanding officer, or to proceed to trial by court-martial.

Some offenses remain sufficiently serious that only the more formal structure of the court martial can properly deal with them. A major overhaul of the court-martial system has recently taken place to bring court-martial proceedings into line with civilian practice.2 The new rules stipulate the processes for court proceedings and sentencing of the accused to ensure a balanced and fair investigation in an “open hearing” as per civil courts. The selection of officers to sit on a court martial is, for obvious reasons, made from outside the accused’s immediate chain of command, and in the interest of impartiality, a civilian judge is selected by the Judge Advocate General (JAG). The JAG is answerable to the Queen, via the Lord Chancellor, and is therefore independent of the armed forces. A range of sentences is available to the court martial. The most serious offenses are dealt with by transfer to civilian prison accompanied by “dismissal with disgrace.” There is then a hierarchy of punishments for offenses of gradually decreasing seriousness, including detention in the Military Corrective Training Centre (MCTC) in Colchester Garrison with, and then without, dismissal; reduction in rank; reprimands; and fines. The MCTC is divided into “A Wing,” where detainees continue service post-detention and undertake continuing military training and rehabilitation, and “D Wing,” where dismissal from service follows detention and individuals are able to train in and undertake courses to prepare as much as possible for life outside the services. Service personnel who are given a custodial sentence by a civilian court and sent to a civilian prison are automatically dismissed from the service.3

Summary justice

MENTAL HEALTH PROVISION FOR SERVICE PERSONNEL

There is a long tradition of summary justice in the m ­ ilitary, although the powers of the commanding officer are now very strictly defined. If found guilty, an accused may elect either to take his or her punishment immediately or to be granted a stay of sentence to consider whether he or she wishes to appeal. The hearing is not a trial, although a thorough investigation of the case is required to ensure that the full facts are included. Lawyers are not permitted to be present at summary dealing, but AFA 06 gives the accused the right to appoint a “nominated Assisting Officer” to act as

Mental health provision in the armed forces is community based around 15 Departments of Community Mental Health (DCMHs) in the United Kingdom with overseas units in Germany, Cyprus, and Gibraltar. DCMHs assess, treat, and conduct occupational assessments on personnel referred from primary care. They also educate and advise commanders and general practitioners. DCMH capacity is enviable by National Health Service (NHS) standards, ­seeing routine referrals within 2 weeks and emergencies within

Mental health problems in the armed forces  417

24  hours. DCMHs are manned by approximately 150– 200 military mental health professionals, mostly nurses, with one or two consultant psychiatrists at each DCMH ­supported by Ministry of Defense (MOD)–employed civilian social workers and clinical psychologists. In the United Kingdom, the DCMH provides outpatient mental health care to all regular serving personnel but not their families. Care is extended to families and other entitled staff (such as MOD civilians, teachers, and shopkeepers) overseas. Military personnel with a major mental illness who satisfy the necessary criteria can be detained, just like any other citizen, in NHS hospitals under the 1983 Mental Health Act. (There are no military inpatient units.) Informal inpatients are admitted to one of the United Kingdom’s network of eight NHS Trusts, each with links to its local DCMH and special experience in treating service personnel. There are no uniformed consultant forensic psychiatrists or secure mental health care provision, and mentally disordered offenders in the armed forces are dealt with through the civilian healthcare and criminal justice systems. Service veterans have no entitlement to treatment within the military system, although TA and reservists who have served on operations since 2003 and whose mental health problems are thought to be related to their service can selfrefer to the Reserves Mental Health Programme (RMHP). If mental health problems are deemed service related, individuals may receive treatment at their nearest DCMH. This is particularly useful for individuals requiring psychological therapies such as cognitive-behavioral therapy (CBT) and eye movement desensitization and reprocessing (EMDR), as waiting lists are generally much shorter than those in the NHS. Any veteran, regular or reservist, with physical or psychological problems believed attributable to service experience may also be referred to the “Medical Assessment Programme” (MAP) based in London. Although no treatment is provided, the MAP will diagnose and “signpost” to appropriate NHS facilities for further treatment.

UNIQUE STRESSES OF SERVICE LIFE Service life is characterized by transition and social change.4 Changes include the transition from the adrenaline-fueled “high” and excitement of operations to “normal” ­family life as well as the transitions associated with frequent changes of job, role, and geographical mobility with ­consequent family disruption and upheaval. Everyday life may seem monochromatic and dull to many whose operational ­experience may have been one of the most formative and rewarding periods of their life, triggering an existential “midlife” ­crisis. Returning spouses expect to come back to the ­former status quo; however, their families have become more self-­ sufficient and independent. Expectations of returning s­ervice personnel and their families may differ widely, resulting in tension, discord, and uncertainty, and young children may show ambivalence toward a returning parent. These issues are compounded by the effects of alcohol, which is frequently used to excess by returning

service personnel. Many returning service members have greatly reduced ­ tolerance to alcohol because they were largely ­abstinent while deployed. A tendency toward “risky” behavior (such as reckless driving and fighting) is well documented following return from operations. These acute transitions are paralleled by the less dramatic, chronic, but more pervasive and enduring challenges of adjustment to civilian life after leaving the structured and sheltered milieu afforded by the armed forces. Between 2008 and 2009, a total of 21,880 men and women left the UK Regular Forces to enter civilian life. In many respects ­military life represents Goffman’s model of a “total institution,” and the outside world can appear infinitely more complex. With rank go status and identity, both of which are lost on transition to civilian life; as one soldier put it: “You go from being a somebody to a nobody.” The security of military life in terms of occupation, finance, accommodation, and welfare is lost; uncertainty replaces predictability.

MENTAL HEALTH PROBLEMS IN THE ARMED FORCES Despite the unusual demographic distribution of the armed forces, psychiatric disorders seen in military practice reflect those seen in other occupational settings. DCMHs receive more than 3,000 referrals per year, of which approximately 300 are admitted to inpatient care.5 Adjustment disorders, depression, anxiety disorders, and alcohol abuse are most frequently seen; psychoses are relatively rare. Post-traumatic stress disorder (PTSD) accounts for a small minority of cases, even following combat exposure. Many of the adjustment disorders involve young “unhappy soldiers,” often with relationship problems, wishing to leave the military. Other overrepresented groups include older noncommissioned officers (NCOs) struggling to cope with the additional responsibilities of rank, and individuals facing the uncertainties of retirement and discharge from the service.6 Stigma militates against help seeking, and mental health problems may manifest in a variety of ways including domestic and occupational breakdown, social exclusion, criminality, homelessness, self-harm, and substance abuse, in addition to the more typical presentations of mental illness.

Alcohol and the military Being able to “hold one’s drink,” an enduring facet of service life, is unifying in one sense but worrying from a health perspective. There are higher patterns of “hazardous” drinking in the military than in the civilian population, particularly evident in young people, single people, those in the navy or army, and those with combat experience. Young service women show particularly worrying levels of alcohol misuse. Between 16% and 20% of troops deployed to Iraq or Afghanistan abuse alcohol after returning to the United Kingdom. Alcohol abuse is also the only mental disorder that has shown an increased prevalence among personnel deployed to Iraq or Afghanistan.7

418  Military psychiatry

Post-traumatic stress disorder PTSD occurs infrequently in the UK military and accounts for 4.2% of troops deployed on combat operations,7 although this is at odds with the US literature, in which much higher rates have been reported.8 A diagnosis of PTSD should always be made with care. On the one hand, it is both tempting and easy to jump to conclusions and diagnose PTSD in error (arguably the least stigmatizing psychiatric diagnosis). This is especially true when assessing a distressed serviceman or veteran, particularly one who has served in Iraq or Afghanistan, whose problems are more often rooted in the transitional adjustment difficulties discussed earlier, which are less tangible, lack an obvious diagnostic label or the potential for financial gain, and often invite painful introspection on the part of the patient that he or she may prefer to avoid. On the other hand, some psychiatrists (especially when preparing court reports) may show ambivalence or even skepticism toward military and ex-military personnel because of their concerns about being deceived by factitious accounts of post-traumatic psychopathology and by frank malingering. Baggaley, writing about “Military Munchausen’s Disorder,”9 distinguishes between individuals whose combat-related accounts are wholly fictitious and those who did have genuine combat experience but who tend to over-elaborate and dramatize these accounts. He provides helpful guidelines to identify such deceptions. Also, Resnick has provided guidelines to identify malingering in relation to PTSD.10 Such guidelines are valuable in these times, when there are copious media accounts about the allegedly adverse effects of military experience. Certainly, it is important to be alert to misrepresentations, deliberate and otherwise, but psychiatrists should not be prejudiced by what all evidence suggests are relatively infrequent instances. Any DCMH can rapidly corroborate (or otherwise) a service history, including deployment on operations and membership in elite organizations such as the Special Air Service (SAS).

Gulf war illness “Medically unexplained symptoms” have been reported during and after all modern wars and especially in the United Kingdom following the first (1991) Gulf war.11 Typical symptoms include fatigue, dizziness, nausea, and gastrointestinal complaints for which there is no explanation. Explanations for these symptoms remain contentious, but underlying mental health problems are not uncommon. Some of these presentations may be a proxy for an underlying mental illness or the adjustment issues described earlier in this chapter. There are also positive benefits of the sick role, including status, recognition, and (sometimes) financial gain. Chronic psychopathology among some veterans may be an integral (and indispensable) element of their core identity and worn as a “badge of honor.”12 It must be remembered, however, that there are still authorities who

believe that these symptoms have an underlying but as yet undiscovered physical pathology.

Antisocial behavior US studies of antisocial behavior (ASB) have found that combat experience is associated with increased aggression, criminality, and risk taking.13 However, UK research suggests that service personnel bring their propensity to ASB with them into the military rather than its resulting from the effects of military service. Thirty-four percent of service personnel admit to pre-enlistment ASB, and ­members of this group are twice as likely to display further ASB compared to their peers.14 According to government estimates, nearly 3,000 of the 82,000 UK prisoners (approximately 3.5%) are ex-servicemen, and 22% were convicted within 5 years of leaving the service. Violence against the ­person (33%), ­sexual offenses (25%), and drug offenses (11%) predominated.15

CONCLUSION Serving personnel and veterans experience the same mental health problems as society at large. It is tempting for professionals and patients alike to attribute psychopathology to service experience, particularly when individuals have deployed on operations and when there is the possibility of financial reward, or mitigation in a criminal case. It is equally tempting to dismiss subjective accounts of distress as malingering or attribute them to troubled lives that may, in fact, be the consequence rather than a cause of psychopathology. A balanced, informed assessment, approached with an open mind and without prejudice, must consider an individual’s service experience in the context of his or her life story and personality, and requires an understanding of the unique demands of service life and its impact on the individual and his or her family.

REFERENCES 1. Armed Forces Act 2006. London: The Stationery Office, 2006. Available from: http://www.legislation. gov.uk/ukpga/2006/52/contents. 2. The Armed Forces (Court Martial Rules) 2009. London: The Stationery Office, 2009. Available from: http://www.legislation.gov.uk/uksi/2009/2041/ contents/made. 3. Van Staden L, Fear NT, Iversen AC, French CE, Dandeker C, Wessely S. Transition back into civilian life: A study of personnel leaving the U.K. armed forces via “military prison.” Military Medicine. 2007; 172: 925–30. 4. Deahl MP, Klein S, Alexander DA. The costs of conflict: Meeting the mental health needs of serving personnel and service veterans. International Review of Psychiatry. April 2011; 23(2): 201–9.

Further reading  419

5. Defense Analytic Services and Advice (DASA). UK Armed Forces Mental Health Report 2010— Annual Summary. Ministry of Defense. London: The Stationery Office, 2011. Available from: http://www.dasa.mod.uk/applications/newWeb/www/index.php?page = 48&thiscontent = 1290&pubType = 0&date = 2011-05-04&disText = 2010 Summary&from = historic&topDate = 2011-05-04&PublishTime = 09:30:00. 6. Finnegan A, Finnegan S, McGee P, Srinivasan M, Simpson R. Predisposing factors leading to depression in the British Army. British Journal of Nursing. 25 Nov 2010; 19(21): 1355–62. 7. Fear NT, Jones M, Murphy D, Hull L, Iversen AC, Coker B, et al. What are the consequences of deployment to Iraq and Afghanistan on the ­mental health of the UK armed forces? A cohort study. Lancet. 2010; 375: 1783–97. 8. Creamer M, Wade D, Fletcher S, Forbes D. PTSD among military personnel. International Review of Psychiatry. April 2011; 23(2): 160–65. 9. Baggaley M. “Military Munchausen’s”: Assessment of factitious claims of military ­service in psychiatric patients. Psychiatric Bulletin. 1998; 22, 153–54. 10. Resnick PJ. Guidelines for Evaluation of Malingering in PTSD. In: Posttraumatic Stress Disorder in Litigation: Guidelines for Forensic Assessment. 2nd ed. Ed. Simon RI. Washington, DC: American Psychiatric Press, 2003: 187–206.

11. Deahl MP. Smoke, mirrors, and Gulf War illness. Lancet. 2005; 365: 635–39. 12. Friedman MJ. Veterans’ mental health in the wake of war. New England Journal of Medicine. 2005; 352: 1287–90. 13. Killgore WDS, Cotting DI, Thomas JL, Cox AL, McGurk D, Vo AH, et al. Post-combat ­invincibility: Violent combat experiences are associated with increased risk taking propensity following ­deployment. Journal of Psychiatric Research. 2008; 42: 1112–21. 14. MacManus D, Dean K, Iversen A, Hull L, Jones N, Fahy T, et al. Impact of pre-enlistment antisocial behaviour on behavioural outcomes among UK military personnel. Social Psychiatry and Psychiatric Epidemiology. 2012; 47(8): 1353–8. 15. Defense Analytic Services and Advice (DASA). Estimating the proportion of prisoners in England and Wales who are ex-Armed Forces— further analysis. Ministry of Defence. London: The Stationery Office, 2010. Available from: http:// www.dasa.mod.uk/applications/newWeb/www/ index.php?page = 48&thiscontent = 550&pubType = 3&date = 2010-09-15&PublishTime = 13:00:00.

FURTHER READING Iversen AC, Greenberg N. Mental health of regular and reserve military veterans. Advances in Psychiatric Treatment. 2009; 15: 100–106.

60 Asylum seekers HEATHER McKEE AND IAN H. TREASADEN History of asylum seekers in United Kingdom 421 Public opinion with regard to refugees 422 422 Legislation affecting asylum seekers 422 United Nations 422 United Kingdom law 422 European Union law 422 Individual refugee status determination 423 Detention and illegal entry Deportation 423 423 Mental health of asylum seekers Interpreters 423 423 Mental health problems

Anxiety 424 Depression 424 Post-traumatic stress disorder (PTSD) 424 Rape 424 424 Drug abuse in asylum seekers 424 Access to healthcare services 425 Human trafficking (form of slavery) Research into the mental health of refugees and 425 asylum seekers Legal aspects, including applications of the 425 Mental Health Act 1983 References 426

An asylum seeker is one who is awaiting a decision from the state where he or she has made a claim to be accepted as a refugee. A refugee is a person who has fled his or her home or country after suffering persecution due to a number of factors such as race, religion, nationality, political opinion, or other such social group. As a consequence of World War II there were large numbers of people from Eastern Europe displaced, and as a result refugees were recognized as a legal group. Under the United Nations Convention relating to the Status of Refugees of 1951, Article 1A(2), a refugee was defined as a person who “owing to a well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political ­opinion is outside the country of nationality and is unable or, owing to such fears, is unwilling to avail himself of the protection of that country.” This definition was further broadened in 1967 by the Convention Protocol to include people who fled war or violence in their home country; women and children were also considered to need further attention.

throughout recorded history, e.g., during Roman times in the West and by the Egyptians, Greeks, and Hebrews. This was political asylum, which is similar to modern-day refugee law. In medieval times churches could offer asylum or sanctuary to people accused of crimes. Now, large numbers of refugees still try to escape war, internal unrest, and persecution by their own governments because of their ethnic, political, or religious origins and also because of their social activities, such as levels of education as occurred in Cambodia, sexual orientation in Uganda, and so on. Current estimates of refugee numbers in the world vary from 20 to 50 million. In the lead-up to World War II, Germans who were persecuted under Nazi rule, such as Jews, and communists, sought to immigrate to the United Kingdom to escape from the trauma. There were strict immigration caps on those who could enter, and some were turned away, possibly to their deaths. It is thought that only about 50,000 were admitted. After the war was over, because there was a gap in the UK labor market for unskilled jobs, many people were specifically brought to the United Kingdom to work, and arranged migration has continued until the present time. This remains controversial even though necessary skills such as nursing have to be supplemented. The United Kingdom is a signatory to the United Nations Convention Relating to the Status of Refugees. The UN is an international body and, by being a member, the

HISTORY OF ASYLUM SEEKERS IN UNITED KINGDOM Persons persecuted for political opinions and religious beliefs have been fleeing from their own country and seeking refuge and protection in other soverign countries

421

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United Kingdom has agreed not to return a refugee to a place where he or she might again be subjected to persecution. This is known as the principle of nonrefoulememt. This issue arises out of the memory of nations failing to provide a safe haven to refugees fleeing certain genocide at the hands of the Nazi regime and in other genocides such as in Rwanda. However, there is now increasing realization that the total number of potential asylum seekers exceeds the capacity of many countries to satisfactorily accommodate them.

PUBLIC OPINION WITH REGARD TO REFUGEES General reactions to immigration in the United Kingdom, examined by the aid of public opinion polls, show confusion about categories of migrants, and people do not seem to easily differentiate between refugees and other migrants. It would appear from these polls that a large majority of the population has been opposed to immigration since at least the 1960s and that opposition to refugees is greater in the United Kingdom than in the rest of Europe. Research shows that immigrants with necessary skills, such as ­doctors, nurses, or care workers, are favored more highly than others. Most people, surprisingly perhaps, seem to believe that there are no problems with immigrants in their local area. On the other hand, there is concern by some human rights organizations that suggest that opposition to high levels of immigration by refugees could be based on racism. There is also concern about detaining children in immigration detention centres for long periods of time and about dawn raiding of families and the treatment of people in detention.

LEGISLATION AFFECTING ASYLUM SEEKERS Immigration law is very complex, and there are frequent changes to the pathway through the process.

United Nations The Office of the United Nations Commissioner for Refugees (UNHCR), also known as the UN Refugee Agency, has a UN agency mandate to protect and support refugees. After the end of World War II there was a large refugee crisis in Europe. The International Refugee Organisation (IRO) was formed in response, and this evolved into the UNHCR. Although it was originally to be in effect only for 3 years, the mandate has been altered and broadened since 1951 “to  provide, on a non-political and humanitarian basis, international protection to refugees and to seek permanent solutions for them.” Although the signing of the convention in 1951 was prompted by the refugees in Europe, the convention was needed afterward to coordinate refugees not only

in Europe but also in Hungary, China, Africa, Central America, and so on.

United Kingdom law The framework of UK immigration law is still based on the Immigration Act 1971. This controls entry, residence, and departure from the United Kingdom, and the act has been supplemented over the years by other relevant acts. These include the Immigration Act 1988, the Asylum and Immigration Appeals Act 1993, the Asylum and Immigration Act 1996, and the Human Rights Act 1999, especially Article 3 (Prohibition of Torture or Inhuman or Degrading Treatment) and Article 8 (The Right for Respect for Private and Family Life, the Home and Correspondence). The United Kingdom is also bound by decisions made under the European Court of Human Rights (ECHR) at Strasbourg. Some very unpopular decisions have been made at the ECHR concerning the United Kingdom, and periodically there are discussions about developing a version of the Human Rights Act relevant only to the United Kingdom. The 1971 Act is also supplemented by the Immigration and Asylum Act 1999 and the National Immigration and Asylum Act 2002.

European Union law The European Union (EU) had a big effect on the United Kingdom’s immigration law. The EU laws affect free movement within the union with minimum restriction at borders, and there is also coordination of immigration and asylum matters at a political and policy level. The United Kingdom opted out of the EU Schengen arrangements but reserved the right to opt into any measure adopted under the European Commission Treaty. The UK has now decided to leave the European Union.

INDIVIDUAL REFUGEE STATUS DETERMINATION Until an individual claim for refugee status is fully examined, the asylum seeker cannot be returned to the country from which he or she has escaped because of a well-founded fear, treatment that amounts to persecution, any or all of the Convention reasons, being outside his or her country and being unable or unwilling to obtain protection from the home country. Refugee status determination procedures generally consist of: ●● ●● ●● ●● ●● ●● ●●

Registration and identification of an asylum seeker Legal advice Opportunity to contact the UNHCR Time to prepare a request Personal interview with a qualified officer A decision by an appropriate authority Opportunity to appeal

Mental health problems  423

DETENTION AND ILLEGAL ENTRY Article 31 of the Refugee Convention also applies to asylum seekers as they have not yet been assessed to see if they are refugees. It states that refugees coming directly from a life-threatening situation should not be punished as long as they are coming directly from the country where they fear persecution and present themselves directly and show good cause. Many asylum seekers are often forced to enter a country illegally as they are not able to get passports or tickets. An additional current difficulty is that asylum seekers are entering one country, but wishing to reside in another country of the European Union. Asylum seekers can be detained as long as this is clearly based on national legislation in line with international human rights law. Detention is permitted: ●● ●●

●●

●●

To verify identity where it is disputed For a preliminary period to determine the elements of a claim To deal with cases where asylum seekers have destroyed travel or identity documents To protect national security and public order where there is evidence of criminal antecedents.

A state may consider less restrictive options than detention, such as reporting to designated places, such as police stations, on bail, provide a guarantor, and live in collective accommodation.

DEPORTATION In the United Kingdom the Home Office can deport someone on the grounds that his or her presence is “not conducive to the public good.” This is a vague term and can include people who are convicted of criminal offenses but for whom the court did not recommend deportation or if it is alleged that they have made a marriage of convenience. If the Home Secretary decides that one’s presence in the United Kingdom is not conducive on the grounds of national security, an appeal can be made to the Special Immigration Appeals Committee (SIAC).

MENTAL HEALTH OF ASYLUM SEEKERS There are many reasons why asylum seekers could suffer from mental ill health, but this is not to imply that they all do. An  asylum seeker is separated from his or her family and community and often cannot tell where the family is, cannot contact them, or may have suffered bereavement. Often the host nation is not very welcoming and does not understand what the asylum seeker is going through, and it may be racist or derogatory. The asylum seeker often describes suffering even before exile, and this period itself can be prolonged. Asylum seekers usually have to live in a lower socioeconomic status than

previously and in an unfamiliar culture, and are frequently on their own. Psychiatrists may be approached for help with treating mental health problems of asylum seekers or for a report for the court on someone who does not understand their language, way of working, or culture. It may be difficult for the person to talk to a stranger about his or her feelings. The individual may not trust anyone with information concerning his politics or his escape. Refugee community organizations can play an important role in assisting such individuals and can provide some degree of cultural familiarity.

INTERPRETERS Often an asylum seeker is not fluent in the same language as the psychiatrist, who may thus need to work with the aid of an interpreter. Working with an interpreter requires experience and thought. It is important to make sure that the asylum seeker feels happy about the interpreter. In sexual abuse cases, the sex of the interpreter will be important, and sometimes, although the interpreter and asylum speaker speak a common language, they will not understand each other because of different dialects. It is also important that the asylum seeker feels safe with the country, or part of the country, that the interpreter is from and does not perceive the interpreter to have differing politics. Establish guidelines with the interpreter before the interview, and, if suitable, try to use the same interpreter throughout the case. Allow more time for the meeting, and do not talk in jargon. Ask the interpreter to translate everything that is said and to not give the asylum seeker advice or deduce what the asylum seeker means. The person seeking asylum must be reassured about the confidentiality of the material brought to the interview. Always talk directly to the asylum seeker and speak simply, rephrasing when necessary. Some languages may not have a word equivalent to one you use frequently. It is important to observe nonverbal communication. The practitioner should feel free to interrupt if the interpreter and asylum seeker are talking together for a long time and ask for a summary up to that point. Afterwards, the practitioner should ask the interpreter if he or she has any feedback about cultural norms and has any other comments.

MENTAL HEALTH PROBLEMS Mental health problems seen in asylum seekers can have a number of predisposing factors, and while there is no psychiatric problem that is specific to them, anxiety symptoms are common. Predisposing factors can be attributed to the fact that the person has had to flee from home and family without being able to make appropriate future plans. Asylum seekers are removed from their native culture, may be living in poverty, and may suffer from isolation and boredom. At the same time they can experience many

424  Asylum seekers

problems in their new community, such as not knowing the language, being unfamiliar with the food, and experiencing racism. The asylum seeker may have suffered from major mental health problems such as schizophrenia, bipolar disorder, or personality disorder previously in his or her home state. The asylum seeker may also have had learning difficulties which makes him or her more vulnerable, including politically. These disorders will present at the same rate as in the United Kingdom. In addition to the above factors, the person might have suffered psychological trauma over a prolonged time period. He or she may have witnessed and experienced atrocities such as being present at the murder of family members, been detained in deprived circumstances, been mutilated and tortured, or been the victim of sexual abuse. Any of these traumas can lead to depression, post-traumatic stress disorder (PTSD), or deterioration of a previous psychiatric problem. The most common symptoms that occur after someone has been tortured are anxiety; depression; paranoia; and psychosomatic symptoms, such as headache and backache.

and legal recognition and is widely used in court. It is easy to learn about the symptoms, so it is important to assess the spontaneity of symptoms, as they are totally subjective. Observations to assess objectivity are important and include useful signs such as anxiety, sweating, rapid pulse, and so on. It is also useful to allow the sufferer to describe symptoms without suggestions as to which symptoms a practitioner would expect to be present.

Anxiety

There is little data about asylum seekers and refugees abusing drugs in the United Kingdom. They rarely access drug services because of barriers such as language problems, lack of awareness of the availability of services, fear of admitting substance abuse, and stigma of substance abuse. The circumstances that they find themselves in involve the following risk factors:

Asylum seekers may show anxiety symptoms when they complain of fear of policemen or other people in uniform, or of the sound of sirens. They are also frightened by sudden loud noises and experience nightmares.

Depression Depressive symptoms are expressed by sleep disturbance, loss of interest, and weight loss. There is a sense of loss, with no sense of a future in life, and there can be suicidal ideation. Asylum seekers may complain of poor concentration and memory, and they can appear to be slow and unwell. It is important to assess the severity of depression and the risk of suicide, especially given the isolated life that an asylum seeker can live.

Post-traumatic stress disorder (PTSD) PTSD is a constellation of symptoms occurring after witnessing an event that involved actual or threatened death or serious injury. It is associated with long-standing anxiety and is described in the DSM-5 diagnostic manual. The symptoms indicate that the traumatic event is unwillingly reexperienced through flashbacks, dreams, and memories. The victim often doesn’t like to talk about his or her experience and will say “I have told the solicitor” or “it  is in my statement,” and may show numbing of responsiveness, avoid stimuli associated with the trauma, and have difficulty sleeping, but yet remain easily startled. Symptoms have to be present and troubling for at least 3 months to be designated as PTSD. The diagnosis of PTSD has psychiatric

RAPE It is difficult for a victim of rape to develop the confidence to talk to a stranger about it, especially in the case of male rape. Victims may not disclose the rape until much later and only when specifically questioned about it. They find it difficult to talk about it in court. They may show all or none of the aforementioned PTSD symptoms and may feel ashamed and guilty. Recurring anxiety is usually present if they have also contracted human immunodeficiency virus (HIV) or acquired immune deficiency syndrome (AIDS), and they may experience sexual dysfunction.

DRUG ABUSE IN ASYLUM SEEKERS

●● ●●

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●●

●●

Vulnerability to mental health problems Experiencing difficulty in accessing education, which is a protective factor Not being allowed to work (There is evidence that unemployed Somali men have an increased use of khat and other drugs.) Homelessness: Young asylum seekers inappropriately housed with drug users Experiencing racism: It has been shown that this is a risk factor for drug users.

There are many gaps in our knowledge about young asylum seekers and problematic drug use. Some have linked drug abuse with PTSD, which asylum seekers are susceptible to.

ACCESS TO HEALTHCARE SERVICES All asylum seekers in the United Kingdom are entitled to full National Health Service (NHS) health care and support. Healthcare professionals and asylum seekers are often unaware of this. Asylum seekers are moved around the country and have difficulty registering with general practitioners who are often reluctant to book interpreters.

Legal aspects, including applications of the Mental Health Act 1983  425

HUMAN TRAFFICKING (FORM OF SLAVERY) The United Nations Office on Drugs and Crime (UNODC) definition of human trafficking is the active recruiting, transporting, transferring, harboring, or receiving of a person through the use of force, coercion, abduction, fraud, or other means for the purpose of exploiting them. Every country is affected by trafficking whether as a country of origin, transit, or destination for victims. The UN knows of victims of human trafficking in 127 countries and exploitation in 137 countries. Women are involved in 77% of trafficking cases worldwide, and 87% of these women are sexually exploited. Some have been forced to work 16 hours a day and have sex with up to 30 men a day without any of the safeguards that prostitutes would normally use. The police believe that about 4,000 women have been brought into the United Kingdom and forced to work as prostitutes. The criminal gangs who bring these women into the country sell them for £7,000–8,000 each. They will then be exploited sexually, or used for forced labor, slavery, or removal of organs. The UNODC offers help to states to draft laws and to create antitrafficking strategies. It also assists with resources to implement them. States receive help with the development of local capacity and expertise, as well as encouraging cross-border cooperation in investigations and prosecutions. The UNODC publishes global reports on trafficking in persons biennially. It also engages in raising awareness on the issues of trafficking such as the Blue Heart campaign against human trafficking.

RESEARCH INTO THE MENTAL HEALTH OF REFUGEES AND ASYLUM SEEKERS The first significant studies into refugees’ mental health were conducted after World War II and showed a relationship between the severity of war experiences and psychiatric disorders.1 Numerous studies were conducted on South East Asian refugees fleeing to the West followed the Vietnam War. These began to emphasizes the relationship of cultural variables and the presentation of distress and psychosocial factors related to displacement. Increasing attention is now being given to the meaning of traumatic events to the individual, rather than to their number and severity. Tribe in 20092 reviewed the literature on the mental health of refugees and asylum seekers, and pointed out that arrival in another country or “safe place” may not in itself give such individuals peace of mind due to the intricacies of having to navigate the asylum system and obtain basic welfare and safety needs, all in a foreign country with a different culture and/or language. They also must come to terms with the severe losses frequently associated with flight and the loss of belief in an imagined future. With the number of asylum seekers, refugees and internally displaced people increasing worldwide, countries are resorting to increasingly restrictive policies, including detention. In fact, some countries such as Malta strictly stipulates in law initial mandatory detention3. A review of

ten studies4 showed consistently high levels of mental health problems among detainees, with anxiety, depression, PTSD, self-harm and suicidal ideas all common, with evidence to suggest an independent adverse effect of detention on mental health. Time in detention has been found to be associated with severity of distress. Initial improvement in mental health occurs subsequent to release, but longitudinal results have shown the negative impact of detention persists. Ways to meet the challenges of mental health needs of asylum seekers include cultural competence training, availability of interpreters, a cultural consultant/broker and appropriate adaption of the modes of therapy.5 A community based integrated healthcare package through primary care, the mhGAP intervention guide, has been developed by the World Health Organization and others and has been used to beneficial effect in Syria, Iraq and Turkey.6 In parallel to the support offered to asylum seekers and refugees, it is important to provide education and support for citizens of host countries, especially those economically deprived, to counter resentment.7 Declarations concerning refugee and asylum mental health have been produced by a number of organizations in recent years: ●●

●●

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The World Federation for Mental Health Cairo Declaration on the Mental Health of Refugees, Internally Displaced Persons and other Populations Affected by Conflict; a Call for Action (2015). The World Psychiatric Association Position Statement; Europe, Migrant and Refugee Crisis, in collaboration with the Centre for Applied Research and Evaluation (2016). The World Psychiatric Association – Associacion Psiquiatrica America Latina (WPA-APLA) Declaration on Refugee and Asylum Seeker Mental Health (2016). The Position Statement of the European Society of Child and Adolescent Psychiatry on Mental Health of Child and Adolescent Refugees (2016).

LEGAL ASPECTS, INCLUDING APPLICATIONS OF THE MENTAL HEALTH ACT 1983 An asylum seeker has left their own country, lodged an application for asylum and is seeking formal refugee status. A refugee has been found to have fled their own country due to a well founded belief that they are at risk of persecution and have had their asylum claim accepted, i.e. has formal refugee status. An economic migrant enters a country without permission for employment. An illegal immigrant illegally enters a country without permission, or breaches the conditions of staying, e.g. of a student visa or overstaying, or has committed a criminal offence. Usually an illegal immigrant will be subject to deportation but can appeal to the Immigration Appeal Tribunal or higher courts, including on the basis of breach of human rights.

426  Asylum seekers

Under the Mental Health Act 1983 in England and Wales, Section 86 allows the removal of alien patients detained under Part II (civil orders) or Part III (subject to orders arising from criminal proceedings or under sentence), with the authorisation of the Secretary of State, if it is considered in the patients “best interests” and is agreed by a First-tier Mental Health Tribunal. Patients who have been subject to Sections 37/41 may be deported once conditionally discharged if they are considered at risk of causing harm. The Ministry of Justice has to approve the deportation, but will usually want to see evidence of planned psychiatric input by the receiving country upon deportation. In the presence of serious medical conditions or mental illness, placement in detention centres is avoided wherever practical. Under Section 48, it is possible to transfer to and detain in a psychiatric hospital those held in a detention centre or prison under immigration legislation. While failed asylum seekers are not eligible for housing or other benefits, if they have been compulsory detained under the Mental Health Act 1983, they are eligible for Section 117 aftercare without charge, as would be the case for other discharged patients who have been formally detained in hospital under the Mental Health Act 1983 for treatment. The UK Borders Agency decides when an individual is deported, not infrequently at very short notice, which makes planning by psychiatric services for deportation difficult. Deportation may be delayed in “very exceptional” circumstances on mental health grounds, such as a high risk of suicide. Clinically this can be difficult to manage, as such individuals may not be currently suicidal, but threaten to kill themselves if deported. Liaising with other countries about the return of psychiatric patients is often very difficult, including due to differing legislations. Just because a country provides a lesser psychiatric service than the UK will not in itself be grounds to contest deportation. The UK Borders Agency has details of each countries psychiatric services.

Extradition requires a treaty between the surrendering country and the receiving country (e.g. for trial or to return an absconding offender). An individual cannot be extradited from the United Kingdom or Republic of Ireland, if charged with a political offence or if the alleged offender might face the death penalty. Extradition hearings may be adjourned if an individual has a significant medical or mental illness that might be improved with further treatment. Rarely extradition may be refused if an individual suffers from a severe mental disorder unlikely to improve with treatment.

REFERENCES 1. Krupinski, J, Stoller, A, Wallace, L. (1973) Psychiatric Disorders in Eastern European Refugees now in Australia. Social Science and Medicine. 7: 31–49. 2. Tribe, R. (2002) Mental Health of Refugees and Asylum Seekers. BJPsych. Adances 8: 240–247. 3. Taylor-East, R., Rossi A., Carnana, J., Grech, A. (2016) The Mental Health Services for Detained Asylum Seekers in Malta. BJPsych. International 13: 32–35. 4. Robjant, K., Hassan, R., Katona, C. (2009) Mental Health Implications of Detaining Asylum Seekers; systematic review. BJPsych. 194(4): 306–312. 5. Sen, P. (2016) The Mental Health Needs of Asylum Seekers and Refugees – Challenges and Solutions. BJPsych International. Vol. 13 No.2 30–32. 6. Hughes, P. Hijazi, Z., Saeed, K (2016) Improving Access to Mental Healthcare for Displaced Syrians; case studies from Syria, Iraq and Turkey. BJPsych. International. Vol. 13 No. 4 84–86. 7. Christodoulou, G.N., Abou-Saleh, M.T. (2016) Greece and the Refugee Crisis; Mental Health Context. Vol. 13 No. 4 89–91.

3

Part     Legal Aspects of Forensic Psychiatry

61 The criminal justice system of England and Wales Natalie Wortley 62 Police and Criminal Evidence Act Kevin Kerrigan 63 Mentally disordered detainees at the police station Frank Farnham and David V. James 64 Court diversion and liaison John A. Dent 65 Criminal proceedings and sentencing Ian H. Treasaden 66 Forensic social work and safeguarding adults at risk of harm Ian H. Treasaden 67 The parole board Claire Barkley 68 National Probation Service, National Offender Management Service, and Multi-Agency Public Protection Arrangements Ian H. Treasaden 69 Fitness to plead Tim Exworthy and Penelope Brown 70 Not guilty by reason of insanity (McNaughten rules) Rafiq Memon 71 Diminished responsibility Ian H. Treasaden 72 The defense of loss of control Raana Din 73 Infanticide Michael C. Craig 74 Automatism Irshaad O. Ebrahim and Christopher Idzikowski 75 Amnesia Natalie Pyszora and Michael Kopelman 76 Mutism Basant K. Puri and Ian H. Treasaden 77 False confessions and suggestibility Gisli H. Gudjonsson 78 Psychiatric aspects of miscarriages of justice Adrian Grounds

429 435 441 445 451 463 465

471 477 483 487 495 501 507 511 517 519 523

428  Legal aspects of forensic psychiatry

79 Mental Capacity Act 2005 Robert Brown 80 Mental Health Act 1983 Robert Brown 81 Mental health tribunals Carole Burrell 82 Care quality commission Robert Brown

529 533 539 549

61 The criminal justice system of England and Wales NATALIE WORTLEY Introduction 429 429 Aims and objectives of the criminal justice system Sources of law 429 Criminal justice agencies 430 Crown Prosecution Service 430 Charging decisions 430 430 Criminal courts Classification of offenses 430

Criminal Procedure Rules 432 Pre-trial issues 432 Plea 432 Disclosure 432 Burden of proof 433 Trial process 433 References 433

INTRODUCTION

The common law is underpinned by the doctrine of judicial precedent, which relies upon the hierarchical structure of the court system (Figure 61.1). The doctrine of precedent means that courts are bound by the previous decisions of superior courts and usually also are compelled to follow the decisions of courts of equal standing in the hierarchy. The purpose of the doctrine is to promote finality and certainty in the law. A criminal case will be heard in a magistrates’ court, a youth court, or the Crown Court. Decisions made by these courts are not binding in future cases, although they may be persuasive. For example, a magistrates’ court does not have to follow a decision made by the Crown Court, although it may take a Crown Court decision into account and may choose to follow it. Similarly, the Crown Court is not bound by its own previous decisions. A person convicted by a magistrates’ court or youth court has a right of appeal to the Crown Court.1 Alternatively, either the prosecution or the defense may appeal to the High Court if the appeal involves a point of law.2 The High Court is also able to hear applications for judicial review of decisions made by magistrates’ courts and youth courts.3 Decisions of the High Court are binding upon lower courts and usually bind the High Court in future cases.4 Appeals by way of case stated and judicial review may be used to challenge decisions of the Crown Court in matters not relating to trial on indictment (e.g. decisions relating to appeals from magistrates’ courts).5 When a defendant

This chapter provides an overview of the criminal justice system in England and Wales and introduces some fundamental concepts and themes. It explores the aims and objectives of criminal justice and the sources of criminal law. It also considers some of the key rules and procedures that are involved in bringing a criminal case before the courts.

AIMS AND OBJECTIVES OF THE CRIMINAL JUSTICE SYSTEM Criminal law governs the relationship between an individual and the state, and the majority of cases are prosecuted in the name of the Crown. The aims of the criminal justice system are to protect individuals and their property and to maintain social order by convicting and punishing offenders. The agencies involved in the criminal justice system are therefore responsible for detecting and investigating crime, prosecuting offenders, and administering punishment.

SOURCES OF LAW The sources of law in England and Wales are statutory law and common law. Statutory law is the body of law created by Parliament, whereas “common law” in this context means law that has developed through decisions of the courts (i.e. judge-made law).

429

430  The criminal justice system of England and Wales

Supreme Court

Court of Appeal – Criminal Division

(Appeal relating to trial on indictment)

High Court – Divisional Court

(Appeal not relating to trial on indictment) Crown Court (court of first instance and appeals from magistrates’ courts)

Magistrates’ court/youth court (courts of first instance)

Figure 61.1  The appellate structure of the criminal courts of England and Wales.

wishes to challenge a Crown Court decision relating to trial on indictment,6 he must appeal to the Criminal Division of the Court of Appeal.7 The prosecution also has limited rights of appeal to the Court of Appeal.8 Decisions of the Court of Appeal are binding upon the High Court and all other lower courts, and the Court of Appeal usually will follow its own previous decisions.9 Decisions of the Supreme Court (formerly the House of Lords) are binding upon all inferior courts. The Supreme Court usually considers itself bound by its own previous decisions but will depart from a previous decision if it appears right to do so.10

CRIMINAL JUSTICE AGENCIES In addition to the courts, the core agencies of the criminal justice system are the police, the Crown Prosecution Service, the National Offender Management Service (incorporating the Probation Service and the Prison Service), and the Youth Justice Board.

Crown Prosecution Service Most criminal offenses are investigated by the police, although certain other public bodies have investigatory powers (such as the Department of Work and Pensions, Immigration Enforcement, and Her Majesty’s Revenue and Customs). The police were also responsible for prosecuting offenses until the Crown Prosecution Service (CPS) was established in 1986.11 The CPS is the main prosecuting authority for England and Wales. It is an independent body employing over 2,100 prosecutors, who are responsible for advising the police and other investigators on lines

of inquiry, determining the appropriate charge(s) in more serious and complex cases, preparing cases, and presenting cases in court.12 Independent barristers are also instructed by the CPS to conduct a proportion of cases. Even after the CPS was formed, the police retained the power to prosecute specified proceedings, such as uncontested minor road traffic offenses.13 In 2012 the list of specified proceedings was extended, and the police can now prosecute a range of low-level offenses without involving the CPS.14 In addition, individuals have the right to bring prosecutions, although the Director of Public Prosecutions (the head of the CPS) has the power to take over a private prosecution.15

Charging decisions The general principles that CPS prosecutors must follow are set out in the Code for Crown Prosecutors. The Code provides a two-stage test to be applied when deciding whether a suspect should be charged with an offense. The first stage is satisfied if there is sufficient admissible, reliable, and credible evidence to provide a realistic prospect of conviction.16 The second stage requires prosecutors to consider whether it is in the public interest to institute criminal proceedings.17 One factor that may tend against prosecution is if “the suspect is, or was at the time of the offence, suffering from any significant mental or physical ill health,” unless the offense is serious, or there is a risk of repetition or a need to safeguard others.18

CRIMINAL COURTS Offenders under the age of 18 usually will be tried in a youth court unless the offense is particularly serious.19 An  adult defendant will be tried either summarily or on indictment.20 Summary trials take place in the magistrates’ court before a district judge, or before three lay magistrates who are assisted by a legally qualified clerk. Trial on indictment takes place in the Crown Court before a judge sitting with a jury of 12 randomly selected members of the public. In a Crown Court trial, the judge makes all decisions of law and the jury makes decisions of fact. For example, in a case involving a charge of wounding with intent to do grievous bodily harm following a knife attack, the judge may be called upon to decide questions concerning the admissibility of evidence, but the jury will decide whether it was the defendant who attacked the victim and what his state of mind was at the time the wound was inflicted.

Classification of offenses Criminal offenses may be indictable only, summary only, or triable either way. Indictable only offenses are the most serious criminal offenses, such as murder, rape, and robbery. After an initial appearance in the magistrates’ court, a defendant charged with an indictable only offense will be sent directly to the Crown Court.21 Summary only offenses

Criminal courts  431

are the least serious criminal offenses. They include minor road traffic offenses such as speeding, other minor offenses such as assault and battery, and many regulatory offenses. Offenses that are triable either way include theft, assault occasioning actual bodily harm, and dangerous driving. As the name suggests, these offenses may be tried in either the Crown Court or the magistrates’ court.22 The trial venue for an either way offense will depend upon the facts of the case. For example, a minor theft involving property of low value and with no aggravating features can be tried summarily, whereas theft involving property of high value, or where the victim is particularly vulnerable, is likely to be sent to the Crown Court for trial. In determining the question of jurisdiction, one of the most important considerations is whether the sentencing powers of the magistrates’ court would be sufficient if the defendant were to be convicted of the offense.23 The magistrates’ court can only impose a maximum of 6 months’ imprisonment for a single offense, or 12 months’ imprisonment in total if the defendant is convicted of two or more offenses that are triable either way.24 In contrast, the Crown Court may impose

any sentence up to the maximum available for the relevant offense. Where an offense is triable either way, the defendant will first be asked to indicate whether he would plead guilty or not guilty if the case were to proceed to trial.25 If he indicates a guilty plea, he is convicted of the offense and the magistrates’ court will either sentence him or, if the court considers its sentencing powers to be insufficient, it will commit him to the Crown Court for sentence.26 If the defendant indicates a not guilty plea, the court will determine the appropriate venue for trial at an “allocation hearing” (Figure 61.2).27 If the magistrates’ court decides that the case is more suitable for trial on indictment, for example because the facts of the case mean that its sentencing powers would clearly be insufficient, then the defendant will be sent to the Crown Court for trial.28 If the magistrates’ court decides that the case is more suitable for summary trial, the defendant may ask the court to indicate what sentence it would pass if he pleaded guilty at that stage. The defendant then has a choice whether to plead guilty, accept summary trial, or elect trial by jury in the Crown Court.29

Court asks the Defendant (D) whether he will plead guilty or not guilty

D pleads guilty

D indicates that he will plead not guilty, or does not indicate a plea

D is convicted of the offense(s)

Allocation hearing

Sentence

Adjourn for pre-sentence reports

Commit to Crown Court for sentence

Court decides case is more suitable for summary trial

Court decides case is more suitable for trial on indictment

D can ask for an indication of sentence

D pleads guilty

Figure 61.2  Allocation of either-way offenses.

D is asked whether he consents to summary trial

D consents to summary trial

D does not consent to summary trial

Summary trial

D is sent to Crown Court for trial

432  The criminal justice system of England and Wales

Accepting summary trial usually results in a speedier trial and lower costs, but Crown Court trial is associated with lower rates of conviction.

Criminal Procedure Rules The criminal courts are bound by the Criminal Procedure Rules (CrimPR). The overriding objective of the CrimPR is to ensure that cases are dealt with justly, which includes: acquitting the innocent and convicting the guilty; dealing with the parties fairly; recognizing the rights of a defendant; respecting the interests of victims, witnesses, and jurors; dealing with cases efficiently and expeditiously; and dealing with a case in ways that take into account the gravity of the offense alleged, the complexity of the issues, the severity of the consequences, and the needs of other cases.30 The CrimPR are divided into sections that cover various stages of the court process, including preliminary proceedings, custody and bail, disclosure, evidence, trial, and sentencing. The CrimPR are supplemented by the Criminal Practice Direction (CPD), which deals with matters ranging from court dress to the criteria to be applied when passing a life sentence. CrimPR 2015 r3.9(3) provides that “every reasonable step” should be taken to facilitate the participation of witnesses and defendants in criminal proceedings. This rule may require modifications to the trial process where a witness or defendant is vulnerable, for example as a result of mental disorder or disability. CPD I 3E recommends that a “ground rules hearing” should take place to plan the questioning of a vulnerable witness or defendant. Questioning should not be “over-rigorous or repetitive” and must take account of the individual’s communication needs. The court may restrict the content and form of questioning if there is a risk that a vulnerable witness may fail to understand, become distressed, or acquiesce to leading questions. If the defendant is vulnerable, CPD I 3G provides that the court should also consider particular modifications, such as: ●●

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Holding the proceedings in a courtroom where all of the participants are on the same level. Permitting the defendant to sit with members of his family and another supporting adult, such as a social worker, in a place where he can communicate easily and informally with his legal representatives. Ensuring that throughout the proceedings, everything that takes place is explained in terms that the defendant can understand. Conducting the trial in accordance with a timetable that takes into account the defendant’s ability to concentrate, with frequent and regular breaks if required. Allowing the defendant to give evidence by live link, rather than from the courtroom, if it is in the interests of justice to do so and would enable the defendant to participate more effectively as a witness in the proceedings.

●●

●●

Considering whether the judge and counsel should dispense with the wearing of robes and wigs. Restricting the ability of members of the public and reporters to sit in the courtroom.

A court may appoint an intermediary to facilitate communication with a witness who has communication needs. However, where a vulnerable defendant has communication needs, the trial process should be adapted. A court will rarely direct the appointment of an intermediary to assist a defendant.2

PRE-TRIAL ISSUES All criminal cases involving adults commence in the magistrates’ court. Irrespective of whether a case is subsequently sent to the Crown Court, there may be further court hearings before a trial takes place. A defendant will be remanded on bail or remanded into custody in between court hearings.31 In addition to the question of bail, issues that commonly arise at pre-trial hearings include plea, disclosure, and arrangements for the trial.

Plea Prior to trial, a defendant will be asked to enter a plea of guilty or not guilty to the charge. A defendant is said to be unfit to plead if he has insufficient understanding of the proceedings to enable him to be tried for the offense. 32 The criteria for determining unfitness to plead and the consequences for the defendant are considered in Chapter 65. A defendant who pleads guilty is convicted of the offense. The court will either proceed straight to sentence or adjourn for pre-sentence reports to be prepared (see the Trial Process section later in this chapter). When a defendant pleads not guilty, the parties and the court will begin preparation for trial.

Disclosure The prosecution must serve on the defense any evidence the prosecutor intends to rely upon at trial. This is likely to include witness statements and exhibits, such as photographs, interview transcripts, and other documentary evidence. The prosecution is also under a duty to “disclose” any evidence that will not be relied on but that might reasonably be considered capable of undermining the case for the prosecution or assisting the case for the defendant.33 Evidence is disclosed by giving a copy to the defendant or allowing him to inspect it.34 In a trial on indictment, the defendant is then under a duty to serve a “defence statement,” which is a document identifying the nature and particulars of his defense.35 The prosecution has a continuing duty to keep the question of disclosure under review and to provide further disclosure if appropriate.36

References 433

BURDEN OF PROOF The prosecution bears the burden of proving all the elements of the offense with which the defendant is charged and disproving any defenses that are raised by the defendant.37 The relevant standard of proof is proof beyond reasonable doubt, which means that the magistrates, district judge, or jury must be “satisfied so they feel sure” of the defendant’s guilt.38 At common law, the only exception to the general principle that the prosecution bears the burden of proof is the defense of insanity. There are also a limited number of ­statutory defenses that place the burden of proof on the defendant, including the defense of diminished responsibility. Whenever the defendant bears the burden of proof, the relevant standard is proof on the balance of probabilities. The criminal justice system in England and Wales is adversarial in nature. Its goal is to establish whether the prosecution can prove the defendant’s guilt to the required standard. This is in contrast to many continental countries, such as France, which have inquisitorial systems. The adversarial system is sometimes perceived as promoting the rights of defendants over and above the rights of the victims of crime. Successive governments have passed legislation designed to remedy this alleged imbalance, such as Acts of Parliament designed to help victims and witnesses give the best possible evidence.39 Some of these measures have now been extended to vulnerable defendants.40 In the past it was suggested that defendants could use the burden and standard of proof to “ambush” the prosecution by raising new issues at trial, when it was too late for the prosecution to investigate them. The requirement for the provision of a “defence statement” and the advent of  the  CrimPR, which require early identification of the issues in a case, are designed to reinforce the principle that a criminal trial is “not a game…. It is a search for truth…the object being to convict the guilty and acquit the innocent.”41

TRIAL PROCESS A criminal trial commences with an opening speech by the prosecution advocate to introduce the case and summarize the evidence that the prosecution intends to call. Witnesses are then called to testify in whatever order the prosecutor deems appropriate. A witness will be examined-in-chief by the prosecutor and then cross-examined by the defendant’s advocate before being re-examined by the prosecutor. In certain circumstances a witness’s attendance at court may be excused and his statement can be read to the jury, for example if the defense agrees with the contents of the statement.42 At the conclusion of the prosecution case, the defense may make a submission of no case to answer. The trial judge must direct an acquittal if there is no evidence that the defendant committed the offense with which he is charged, or if the prosecution evidence is so tenuous that “taken at

its highest…a jury properly directed could not properly convict upon it.”43 However, a case must not be stopped if the strength or weakness of the evidence depends upon the view to be taken of a witness’s reliability, which is a matter for the jury.44 If a submission of no case to answer is not made, or if it is refused, the trial proceeds and the defense may call evidence. The defendant may give evidence himself, although he cannot be compelled to do so.45 When a defendant does not give evidence, inferences may be drawn against him.46 This means that the jury is entitled to draw common-sense conclusions from his silence. For example, the jury may conclude that the defendant remained silent because he had no answer to the prosecution case, or none that would stand up to cross-examination. However, a conviction cannot be based solely on an inference from silence,47 and the trial judge must direct the jury not to draw an adverse inference if it appears to the court that the defendant’s physical or mental condition makes it undesirable for him to testify.48 After the conclusion of the defense case, the prosecution and defense advocates will usually make closing speeches. The judge will then sum up the case to the jury, reminding the jury of the evidence that has been called and giving directions on the law. When the jurors retire to consider their verdict, they will initially be told to reach a unanimous verdict. Only after at least 2 hours and 10 minutes have elapsed may the judge direct the jury that he can accept a majority verdict, which is a verdict upon which at least 10 of 12 jurors agree.49 If the jury returns a guilty verdict, either the defendant will be sentenced immediately or the case will be adjourned for a report to be prepared by a probation officer. Additional reports, such as psychiatric reports, may also be ordered in an appropriate case. AUTHOR’S NOTE: The law is stated as I believe it to be on 31st January 2016.

REFERENCES 1. Magistrates’ Courts Act 1980, s.108. 2. Ibid., s.111. 3. Senior Courts Act 1981, ss.29 and 31. 4. Younghusband v. Luftig [1949] 2 KB 354. 5. Senior Courts Act 1981, ss.28–29 and 31. 6. i.e. Crown Court trial. 7. Criminal Appeal Act 1968, ss.1 and 9. 8. Criminal Justice Act 1972, s.36; Criminal Justice Act 1988, s.36; Criminal Justice Act 2003, Part 9. 9. Young v. Bristol Aeroplane Co. Ltd. [1944] KB 718; R v. Taylor [1950] 2 KB 368; R v. Gould [1968] 2 QB 65. 10. Practice Statement (Judicial Precedent) [1966] 1 WLR 1234; Austin v. Southwark London Borough Council [2010] UKSC 28. 11. Prosecution of Offences Act 1985, s.1.

434  The criminal justice system of England and Wales

12. “Facts about the CPS” (Crown Prosecution Service, 31 March 2014). Available from: www.cps.gov.uk/ about/facts.html. Accessed 12 June 2015. 13. Prosecution of Offences Act 1985, s.3(2)(a). 14. Prosecution of Offences Act 1985 (Specified Proceedings) Order 1999, SI 1999/904 (as amended by SI 2012/1635, SI 2012/2067, SI 2012/2681 and SI 2014/1229). 15. Prosecution of Offences Act 1985, s.6. 16. Crown Prosecution Service, The Code for Crown Prosecutors (CPS 2013) paras 4.4–4.6. 17. Ibid., 4.7–4.12. 18. Ibid., 4.12(b) 19. Crime and Disorder Act 1998, ss.51 and 51A. 20. An indictment is a formal, written accusation of crime. 21. Crime and Disorder Act 1998, s.51. 22. Interpretation Act 1978, Sch 1. 23. Magistrates’ Courts Act 1980, s.19(3)(a); Sentencing Council, “Allocation Guideline” in Magistrates’ Court Sentencing Guidelines: Definitive Guideline (1 Oct 2012). 24. Magistrates’ Courts Act 1980, s.133. 25. Ibid., s.17A. 26. Powers of Criminal Courts (Sentencing) Act 2000, s.3. 27. Magistrates’ Courts Act 1980, s.19. 28. Ibid., s.21. 29. Ibid., s.20.

30. CrimPR 2015 r1.1. 31. Bail Act 1976, s.4 and sch.1. 32. R v. Pritchard (1836) 7 C. & P. 303; R v. M (John) [2003] EWCA Crim 3452; Criminal Procedure (Insanity) Act 1964, s.4. 33. Criminal Procedure and Investigations Act 1995, s.3. 34. Ibid., s.3(3). 35. Ibid., ss. 5 and 6A. 36. Ibid., s.7A. 37. Woolmington v. DPP [1935] AC 462. 38. R v. Summers [1952] 1 All ER 1059. 39. See, for example, Youth Justice and Criminal Evidence Act 1999 Part 2, Chapter 1. 40. For example, Police and Justice Act 2006, s.47; CPD I 3F.3 and 3G.12-13. 41. Auld LJ, A Review of the Criminal Courts of England and Wales (September 2001) Chapter 10, para 154; R v. Gleeson [2003] EWCA Crim 3357. 42. Criminal Justice Act 1967, s.9. 43. R v. Galbraith [1981] 1 WLR 1039. 44. Ibid. 45. Criminal Evidence Act 1898, s.1. 46. Criminal Justice and Public Order Act 1994, s.35. 47. Ibid., s.38(3). 48. Ibid., s.35(1)(b). 49. Juries Act 1974, s.17 and CPD VI 39Q.

62 Police and Criminal Evidence Act KEVIN KERRIGAN Introduction 435 Arrest 435 Reasonable suspicion 436 Necessity 436 Formalities of arrest 436 Search powers following an arrest 436 Detention in the police station 437 Rights and entitlements for detainees 437

Special provision for mentally disordered or mentally vulnerable suspects 437 Risk assessment 437 Medical attention 438 Appropriate adult 438 Conclusion 438 References 438

INTRODUCTION

This chapter focuses primarily on the police station, and as such Code C on Detention, Treatment and Questioning is the most relevant.5 Although they do not have the force of law, the codes are admissible in legal proceedings, and compliance with the codes may well affect decisions of the courts, such as those relating to the admissibility of evidence.6

This chapter introduces the framework of police powers and safeguards in the Police and Criminal Evidence Act 1984, commonly referred to a PACE, and its various Codes of Practice.1 The Act was passed following the Royal Commission on Criminal Procedure 19812 and sought to balance two potentially competing interests. On the one hand, police powers were significantly expanded to meet a perceived need to ensure the police had the legal tools at their disposal to conduct effective investigations. On the other hand, suspects’ rights and interests were addressed by enhanced safeguards and procedural entitlements. This included clearly defined limits on periods of detention, oversight and approval by senior officers, and access to legal advice or other support during detention. As will be seen, provision was made for detainees with a suspected mental disorder or other vulnerability. PACE has been in force for more than 30 years and during that time has evolved and expanded, having been amended on numerous occasions. It does not attempt a full codification of the law (other statutes provide for and regulate the exercise of police powers and residual common law powers),3 but it is the most comprehensive legal and procedural framework to date in respect to police powers to investigate crime. The Codes of Practice have doubled in number so that there are now eight codes covering: Stop and Search; Search and Seizure; Detention, Treatment and Questioning; Identification; Audio Recording of Interviews; Video Recording of Interviews; Arrest and Terrorism detainees.4

ARREST The Divisional Court in Rice v. Connelly emphasized an important principle of English law: “... though every citizen has a moral duty, or, if you like, a social duty to assist the police, there is no legal duty to that effect, and indeed the whole basis of the common law is the right of the individual to refuse to answer questions put to him by persons in authority, and to refuse to accompany those in authority to any particular place; short, of course, of arrest.”7 This case reminds us that coercive powers must be authorized by law. PACE provides the police with extensive powers to arrest and detain citizens, but this is subject to specified criteria and limits. There are approximately 900,000 arrests per year in England and Wales for recorded crime.8 The police have the power to arrest a person without a warrant for any offense so long as (i) they have reasonable suspicion that the arrested person committed the offense and (ii) the arrest is “necessary.”9 435

436  Police and Criminal Evidence Act

There is no definition of an arrest in PACE. At common law, a person is under arrest when he or she is no longer at liberty to go where he or she pleases. An arrest is normally accompanied by physically seizing or touching the person, although a person can be arrested by words alone (i.e., by being told that he or she is under arrest). The essential ingredient of an arrest is compulsion so that it is clear the suspect is not free to leave.10

Reasonable suspicion A key limitation on police powers of arrest is the concept of “reasonable suspicion.” This is partly subjective and partly objective. The arresting officer must (i) suspect that the person is guilty of an offense (the subjective element), and (ii)  the grounds for that suspicion must be grounds that an ordinary person would regard as reasonable (the objective element).11 This does not mean that the arresting officer must have personal knowledge of the matters that support the arrest, but must form his or her own personal suspicion that can be reasonably justified. For example, an officer may rely on apparently reliable information from police informants or an entry in the Police National Computer despite not knowing the origin or rationale for the entry.12

Necessity On the assumption that there is reasonable suspicion, the second precondition to a lawful arrest is that it is considered necessary to arrest the suspect. The necessity conditions include: to enable the person’s real name or address to be ascertained, to prevent the person from causing injury to himself or herself or another, to protect a child or vulnerable person, to allow the prompt and effective investigation of the offense, and to prevent a prosecution from being hindered by the suspect disappearing. PACE Code G recognizes that an arrest is an obvious and significant interference with the right to liberty so that a person should not be arrested merely because there is a power to do so, and less intrusive alternatives should be considered, for example, inviting the suspect to attend the police station voluntarily. As long as the officer applies his or her mind to alternatives short of arrest, he or she can still arrest if he or she considers arrest to be a sensible option notwithstanding that there could be viable alternatives. The courts are reluctant to subject police decisions to overly demanding scrutiny. If, on the information available to the officer, he or she had reasonable grounds to believe arrest to be necessary, it is likely to be lawful.13

Formalities of arrest To be lawful, an arrest must comply with certain formalities in relation to information provided to the suspected ­person.14 The police must tell the arrested person:

●●

●●

The fact that he or she is under arrest. The precise form of words used to communicate the fact of arrest is not important. The officer may, for example, state, “I’m taking you into custody,” “You are under arrest,” or, more colloquially, “You’re nicked.” The grounds for the arrest. Depending on the circumstances and information available, the police may need to do more than just identify the suspected offense and may need to provide some modest detail to enable the suspect to properly understand what he or she is being arrested for.15

These important provisions are intended to ensure that citizens know how and why their rights are being interfered with.16 The police must provide this information as soon as practicable following arrest, and it will normally be done at the same time as the person is arrested.17

Search powers following an arrest An arrested person may be searched if there are reasonable grounds to believe that he or she might be a “danger to himself or others” (s.32(1) PACE). He or she may also be searched under s.32(2)(a) for anything “which he might use to assist him to escape from lawful custody” or “which might be evidence relating to an offence” (this is not necessarily the offense for which he or she was arrested). The officer must have “reasonable grounds for believing” he or she will find such things concealed on the arrested person and must search only to the extent necessary to find them. If the offense for which the person has been arrested is an indictable offense (i.e., it can be tried in the Crown Court), Section 32(2)(b) of PACE permits the police to “enter and search any premises in which he was when arrested or immediately before he was when arrested for evidence relating to the offence.” Note that this power to search for evidence is limited to searching for evidence relating to the offense for which he or she was arrested, whereas search of the person is for evidence of any offense. The officer must also have reasonable grounds for believing that there is such evidence on the premises. Further, this search power is not limited to the suspect’s own premises but covers anywhere he or she was prior to the arrest. For example, if a suspect who is being chased by the police runs through a shop or office and is caught outside, the officers may return to those premises to search them without the consent of the owners. The main power of search in respect of premises is found in Section 18 of PACE and also relates to arrest for offenses that are indictable. The section permits an inspector to authorize a search of any premises occupied or controlled by the arrested person if he or she has reasonable grounds for suspecting that there will be evidence relating to that or a connected or similar indictable offense. PACE itself provides little guidance for the police in the exercise of powers of search. Code of Practice B provides guidance and safeguards for the occupiers of property,

Special provision for mentally disordered or mentally vulnerable suspects  437

including notification, recording, limits on the timing, extent of searches, and so on.18 The power of seizure of evidence comes either from the section giving the search power or from the Section 19 general power of seizure. Section 19 augments the powers in Sections 18 and 32. Section 19 allows seizure of anything the officer has reasonable grounds for believing to be “obtained in consequence of the commission of an offence” or “evidence in relation to an offence he is investigating or any other offence.” The officer must be “lawfully on the premises,” and it must be “necessary” to seize the property to prevent it being “concealed, lost, damaged, altered or destroyed.”19

in custody if the custody officer reasonably fears that his or her release would lead to one of the risks outline PACE Section 38 (e.g., the defendant absconding, committing further offenses on bail, or interfering with the course of justice).

RIGHTS AND ENTITLEMENTS FOR DETAINEES As mentioned earlier, the PACE framework is intended to balance police powers with safeguards for suspects. Key rights of detained persons include the following: ●●

Detention in the police station An arrested person must be taken to a designated police station (i.e., one that is approved for detaining arrested suspects) as soon as practicable. Once in the police station, responsibility for the arrested person passes from the arresting officer to the Custody Officer, who may be a police or a civilian employee. The Custody Officer is independent of the investigation, and his or her role is to ensure that detention is in accordance with PACE and the Codes of Practice. This is a key safeguard in the police station as it promotes fair treatment and independent oversight.20 The Custody Officer must first decide whether to authorize the detention of the arrestee and may do so to secure or preserve evidence or to obtain evidence by questioning.21 The maximum period of detention is normally 24 hours from the time of arrival at the station under arrest, and this is subject to regular reviews by a Review Officer, who is usually an inspector. At any point during police detention, a person may be released from custody on bail subject to a duty to return at a later date (e.g., if the police need to conduct further inquiries into the offense before deciding how to proceed). If this happens, the “detention clock” is paused and only recommences when the person returns to the police station as arranged. Continued detention after 24 hours is only available for indictable offenses and requires the authorization of an officer of at least the rank of superintendent, who may approve detention for up to an additional 12 hours, that is, up to 36 hours but only if the detention is still necessary and the investigation is being conducted diligently and expeditiously. Detention for more than 36 hours cannot be authorized by the police, but Section 43 of PACE enables the police to apply to a Magistrates’ Court for a warrant of further detention, which may be granted in chunks of up to 36 hours up to an overall maximum of 96 hours (4 days). Special extended powers relate to terrorist suspects. At the end of the authorized period of detention, the suspect must either be released or charged. If he or she is charged, he or she must be released with or without bail or may be remanded in police custody pending the first available court hearing. He or she may only be remanded

●● ●● ●●

Right to a solicitor (PACE Section 58) Right to have someone informed (PACE Section 56) Right to read the Codes of Practice (Code C) Right to remain silent (a common-law right that has been qualified by statute)

The detainee must be informed of the right to a solicitor at various stages throughout the detention, for example, when detention is authorized, prior to an interview in the police station, and prior to an identification procedure. There must be posters on display setting out this right, and written notice of it must be given to the detainee. Access to a solicitor and the right to have someone informed of arrest may be delayed for up to 36 hours in limited circumstances (where, in more serious cases, it would lead to interference or harm to evidence or persons, alert other suspects, or hider recovery of property), although it is much less likely that it would be justifiable to delay access to a solicitor. In R v. Samuel,22 the Court of Appeal said that the right to a solicitor was “fundamental” and the circumstances where it could be justifiably believed that a solicitor, who is an officer of the court, would unlawfully pass information would be rare and would inevitably relate to an individual solicitor as opposed to solicitors in general. In any event, if access to a particular solicitor is delayed, a suspect must be given a right to select an alternative.23 In addition, there is a wide range of entitlements in Code of Practice C, which are designed to ensure that the suspect is treated fairly and humanely. These include access to medical attention; food and refreshments; a clean, warm cell; adequate replacement clothing; a telephone call; and, at the custody officer’s discretion, exercise and visits.24

SPECIAL PROVISION FOR MENTALLY DISORDERED OR MENTALLY VULNERABLE SUSPECTS Risk assessment Code C requires a risk assessment to take place in the police station.25 This entails the Custody Officer considering whether detained persons present any specific risks to themselves or police personnel, and recording identified risks and any steps taken in consequence. The list of

438  Police and Criminal Evidence Act

risks is lengthy but includes: “Medical/mental condition,” “Medication issued,” “Special needs,” and “Suicide/selfharm.” Suspects should be asked about any illness, injury, treatment, or medication; about any mental health problems or depression; and whether they have previously tried to harm themselves.

Medical attention There are several circumstances in which the police should call an appropriate healthcare professional (a registered nurse or doctor). These include if the suspect appears “to be suffering from a mental disorder or appears to need clinical attention.”26 Code C states that the custody officer should seek advice about: ●●

●● ●●

any risks or problems the police need to take into account when making decisions about the detainee’s continued detention; when to carry out an interview if applicable; and the need for safeguards.27

The custody officer is responsible for deciding whether the detained person is fit for an interview but should consult about this. This assessment involves determining and considering the risks to the suspect’s physical and mental state if the interview takes place and what safeguards are necessary to allow the interview to take place. No interview is permitted if it would cause significant harm to the detainee’s physical or mental state.28 A record should be made of all clinical guidance and decisions in the custody record.

Appropriate adult Three categories of people are entitled to additional help in the police station. These are as follows: ●● ●●

●●

A juvenile (someone under the age of 17)29 A mentally disordered person (someone who suffers from a mental disorder as defined in Section 1 of the Mental Health Act 1983) A mentally vulnerable person (someone who because of his or her mental state or capacity may not understand the s­ ignificance of what is said, of questions, or of his or her replies).30

Anyone falling into the above categories must have an appropriate adult allocated to them to: ●● ●●

●●

advise the person being questioned observe whether the interview is being conducted ­properly and fairly facilitate communication with the person being interviewed.

The appropriate adult must be present at any police ­interview31 and at other significant stages of the detention

(e.g., when rights are explained to the suspect, at identification procedures, during searches, etc.). The Code of Practice makes clear that the appropriate adult can request a solicitor on behalf of the suspect even if the suspect himself has not sought legal advice. The appropriate adult’s role is an important one in that it is designed to reduce the risk of vulnerable suspects providing unreliable, misleading, or self-incriminating statements. 32 Nevertheless, there is currently no requirement that the appropriate adult have any particular status or be specially trained. Often the role is performed by a member of the suspect’s family. Whether this is conducive to an effective role being performed is perhaps open to question.33

CONCLUSION PACE has led to a large expansion of formal police powers and at the same time an increase in the regulation of police conduct and an enhancement of suspects’ rights and entitlements. Specific attention is given to mentally vulnerable suspects via additional safeguards implemented by the police and the provision of an appropriate adult to assist at key stages during the investigation.

REFERENCES 1. Police and Criminal Evidence Act 1984 c.60 and The Police and Criminal Evidence Act Codes of Practice SI 2008/167. PACE relates primarily to England and Wales with similar provisions for Northern Ireland in the Police and Criminal Evidence (Northern Ireland) Order 1989 and a separate regime applicable in Scotland. 2. Royal Commission on Criminal Procedure, Cmnd. 8092, January 1981. 3. For example, powers of a constable to prevent a breach of the peace; see R v. Howell [1982] QB 416. 4. The Codes are regularly amended and updated. The latest versions are available on the gov.uk website: https://www.gov.uk/guidance/ police-and-criminal-evidence-act-1984-pace-codesof-practice (accessed December 7 2016). 5. Code C also contains a useful Annex E that summarizes the provisions relevant to mentally disordered or mentally vulnerable suspects and Annex G on fitness to be interviewed. 6. The Codes are admissible in evidence and must be taken into account when relevant: PACE Section 67(11). 7. Rice v. Connelly [1966] 2 QB 414 per Lord Parker at page 419. 8. Arrest statistics data tables: police powers and procedures year ending 31 March 2016, Home Office 27 October 2016. 9. Police and Criminal Evidence Act 1984 Section 24. 10. Alderson v. Booth [1969] 2 All ER 271.

References 439

11. O’Hara v. Chief Constable of the Royal Ulster Constabulary [1997] AC 286. 12. Hough v. Chief Constable of Staffordshire [2001] EWCA Civ 39, as long as the officer actually forms a suspicion rather than merely relying on the entry or instructions from fellow officers (R v. Olden [2007] EWCA Crim 726). 13. Hayes v. Chief Constable of Merseyside Police [2011] EWCA Civ 911. But see B v Chief Constable of Northern Ireland [2015] EWHC 3691 (Admin), which confirmed that “necessity” connotes more than merely desirable or more convenient. An offer by suspects to be interviewed under caution at a police station in England meant an arrest not necessary for prompt and effective investigation in Northern Ireland. 14. PACE Section 28. 15. The requirement is to convey in simple, nontechnical language the essential legal and factual grounds for arrest, but detailed outlines of the case against the suspect are not required: Taylor v Chief Constable of Thames Valley [2004] 1 W.L.R. 3155. 16. Code of Practice C Section 10.4 (and see Code G Section 3) in addition requires the officer to caution a suspect on arrest in relation to his or her right to remain silent, although failure to do so will not of itself make the arrest unlawful. 17. Wilson v. Chief Constable of Lancashire Constabulary [2000] Po.L.R. 367. 18. The current version of Code B (Section 1.3–1.3A) emphasizes the importance of the rights to privacy and personal property so that powers of entry, search, and seizure should be fully and clearly justified and officers should consider if the necessary objectives can be met by less intrusive means. It goes on to say that powers must be used fairly, responsibly, and with respect for occupiers. 19. This power has been significantly extended by Sections 50–52 of the Criminal Justice and Police Act 2001, which creates a seize now, sort later power whereby the police can take large amounts of material that may contain items they can search for but where it is not reasonably practicable to ascertain their ­relevance in situ. They can even take items they have no power to seize if they cannot reasonably be separated from material that the police are lawfully seizing.

20. PACE Section 39 and see Code C, particularly Section 3. 21. PACE Section 37(2). 22. R v. Samuel (1988) 87 Cr App R 232. 23. Code C Annex B paragraph 3. 24. Code C paragraphs 8 and 9. 25. PACE Code C paragraphs 3.6–3.10. See also College of Policing Authorized Professional Practice on risk assessment: https://www.app.college.police.uk/appcontent/detention-and-custody-2/risk-assessment/ (accessed December 7, 2016). 26. PACE Code C paragraph 9.5. 27. PACE Code C paragraph 9.13. 28. Code C para 12.3. Annex G of Code C gives guidance on the assessment of fitness for interview. 29. R. (on the application of HC) v Secretary of State for the Home Department ruled that Code of Practice C violated Article 8 of the European Convention on Human Rights by failing to afford protection to 17 year olds. This led to a new paragraph 1.5A extending protection to this group except in limited circumstances. 30. PACE Code of Practice C Note for Guidance 1G. This is wider than the statutory definition in the Mental Health Act and indicates a precautionary approach in the PACE framework. It also suggests that where there is any doubt the police should be treated as mentally vulnerable. 31. In so-called urgent cases (where there is a risk of harm to evidence, people, or property, or the a ­ lerting of other suspects) a superintendent can authorize an interview in the absence of the ­appropriate adult only for as long as it takes to avert the relevant risk (Code C paragraphs 11.18–11.20). 32. R v. Aspinall [1999] 2 Cr. App. R. 115. 33. Despite previous governments committing to introduce a statutory role for police authorities to ensure that an effective appropriate adult scheme is ­operating in their police area, no legislation has been forthcoming and there remains an unsatisfactory situation where appropriate adults are mandated by section 38 of the Crime and Disorder Act 1998 for children but not for vulnerable adults. The National Appropriate Adult Network National Standards have been approved by the Home Office. See PACE Review, Home Office, March 2010.

63 Mentally disordered detainees at the police station FRANK FARNHAM AND DAVID V. JAMES Prevalence of mental disorder in detainees The legal framework Relevant legislation Powers of detention Roles and responsibilities Custody sergeant

441 442 442 442 442 442

442 Appropriate adult 443 Appropriate health care professional Realities 443 443 Diversion initiatives Legal cases 444 References 444

The police are in the front line in dealing with mental illness in the community. Their everyday work involves encounters with people with psychiatric problems in the context of disturbed behavior, social disintegration, and exclusion as well as reported crime. The mentally ill commit criminal offenses through public disorder, substance use, survival offending, psychotically driven law-breaking, and criminal activity disinhibited by illness. Only a small proportion of contacts will lead to detention. In England and Wales, there are three ways in which a mentally disordered person may find him- or herself being detained at a police station: (1) arrest on suspicion of a ­criminal offense, (2) removal to a place of safety by a police officer under section 136 of the Mental Health Act, or (3) removal upon the issuing of a warrant by a magistrate under section 135 of the Act.

with the apparent prevalence of mental disorder among those arrested on suspicion of a criminal offense. The number of arrests for notifiable offenses in England and Wales in 2010–2011 was 1,360,451. The proportion likely to be suffering from mental disorder can be gauged from extrapolating from individual studies of police station detainees, both in the United Kingdom and in similar jurisdictions. Two police station surveys in London in the 1990s, based on records or observational study rather than examination, suggested that 1.2%–1.6% of those arrested showed signs of serious mental illness.4,5 A later London study6 found that 30% of police detainees were dependent on crack or heroin and that significant mental health problems were present in 18% of those detainees. A Belfast study found that almost 1% of police detainees suffered from a learning disability.7 A recent, methodologically rigorous study of 150 police detainees in Melbourne8 found that a quarter of detainees had previously been admitted to a psychiatric hospital, and three-quarters met current criteria for a diagnosable mental disorder. The most common disorders were substance dependence (54%) and mood disorders (40%). A third met diagnostic criteria for both a mental illness and a substance use disorder. The odds of being classified with mood (OR = 10.1), anxiety (OR = 2.2), psychotic (OR = 15.4), and substance use disorders (OR = 26.3) were all significantly higher than in the general population. In summary, it would appear that psychotic disorder is present in anywhere from 2%–15% of those arrested. This equates to between 27,000 and 204,000 people per year, with the b ­ etter studies indicating the higher end of this range.

PREVALENCE OF MENTAL DISORDER IN DETAINEES It is impossible to know exactly how many mentally ill people the police deal with each year, but up to 15% of incidents with which the police deal are thought to have some kind of mental health dimension.1 Concerning those actually detained by police, more detailed approximations can be made. During one year, 17,400 people in England and Wales were detained under section 136 of the Mental Health Act.2 In 2008–2009, the number of place-of-safety detentions in hospitals under section 135 was 264,3 although it is probable that an equal number were taken to police stations rather than hospitals. These numbers are very small compared

441

442  Mentally disordered detainees at the police station

THE LEGAL FRAMEWORK Relevant legislation The account that follows concerns England and Wales. The most important legislative provisions in terms of the mentally ill at police stations are contained in the Mental Health Act 1983 (as amended by the Mental Health Act 2007), the Mental Health Act Code of Practice issued pursuant to s118 of the act, the Police and Criminal Evidence Act 1984 (PACE), and the Codes of Practice issued pursuant to s66. Code C of PACE summarizes all the provisions relating to mentally disordered and otherwise mentally vulnerable people at the police station (see Chapter 62).

Powers of detention Section 136 of the Mental Health Act provides that a police constable on finding a person in a public place “who appears to him to be suffering from mental disorder and to be in immediate need of care and control” may remove that person to a place of safety. No medical evidence is required to substantiate the diagnosis of mental disorder prior to the removal. The officer need only have a reasonable belief that the person is mentally disordered and that it is necessary to remove him in the interests of that person or for the protection of others. Section 135 of the act provides for a magistrate, on application by an approved mental health professional (AMHP; usually a social worker), to issue a warrant authorizing a police constable to enter a private premises for the purpose of removing to a place of safety a person believed to be suffering from mental disorder. The person must either have been, or currently be, ill-treated, neglected, or kept otherwise than under proper control, or living alone and unable to care for himself. When executing the warrant, the officer must be accompanied by an AMHP and a registered medical practitioner. The removal to a place of safety under sections 135 and 136 is with a view to considering an a­ pplication under Part II of the Act or making other arrangements regarding treatment or care. The maximum length of time a person can be detained is 72 hours from arrival at the place of safety. Even though a person detained under sections 135 and 136 is not under arrest, the PACE Codes of Practice apply, and therefore the person has all the rights under PACE of a person arrested on suspicion of a criminal offense. Detention under the Mental Health Act has no age limit; children and youths of any age can be removed and detained under sections 135 and 136.

ROLES AND RESPONSIBILITIES Healthcare in police stations is commissioned by local police forces, of which there are 43 in England and Wales. This contrasts with other areas of the criminal justice process, in which healthcare falls under the remit of the National Health Service (NHS). Both major

government-sponsored reviews of services for mentally disordered offenders in England and Wales in the past 20 years10,11 have pointed out the poor provision for this group at police stations and have outlined ways in which the situation needs to be improved. The principal personnel involved with a mentally ill ­person at the police station are the custody sergeant, the appropriate health care professional, the appropriate adult, and (when called in) the AMHP and the medical practitioner approved under section 12 of the Mental Health Act.

Custody sergeant APPROPRIATE ADULT

When the custody officer suspects that a person may be mentally disordered or otherwise mentally vulnerable, the  detainee must be treated as such for the purposes of the PACE codes of practice, and an appropriate adult must be called to visit the police station and see the person. “Mentally vulnerable” is defined within the codes as “any person who, because of their mental state or capacity” may not understand the significance of what is said, of questions, or of their replies. A decision by the AHCP that a suspect is fit to be detained and interviewed does not relieve the custody officer of his duty to call the appropriate adult (R v. Aspinall, 1999). CARE AND TREATMENT OF DETAINED PERSONS

Under PACE, the custody sergeant has an obligation to call an AHCP when a person who appears to be suffering from a mental disorder or appears to need clinical attention is brought to the station—or, if that person is already detained, subsequently appears to be mentally disordered.

Appropriate adult In the case of a person who is mentally disordered or otherwise mentally vulnerable, the appropriate adult is ­ defined in Code C as “a relative, guardian or other person responsible for his care or custody; someone who has experience of dealing with mentally disordered or mentally vulnerable people but who is not a police officer or employed by the police or, failing either of the above, some other responsible adult aged 18 or over who is not a police officer or employed by the police.” The Home Office “Guidance for Appropriate Adults” outlines the rights of detained persons and the rights of the appropriate adult and summarizes their roles and responsibilities. The appropriate adult’s rights include (1) to be told why the detained person is being held, (2) to speak to the detained person in private, (3) to inspect the custody record, (4) to intervene in an interview, and (5) to ask for a break in any interview either to seek legal advice or to consult with the detainee. An appropriate adult can exercise the right to legal advice even if the detainee has declined it. All important procedures concerning the detainee must take place in the presence of the appropriate adult.

Diversion initiatives  443

Appropriate health care professional Appropriate health care professional is the term used throughout the PACE Codes for the medical practitioner called to see a detainee requiring “clinical attention.” With regard to mentally disordered detainees, the AHCP’s main tasks are to decide whether the detainee is fit to be detained or interviewed, and to make recommendations about the detainee’s immediate health needs. The Codes were amended in 2003 to provide for other medical professionals such as nurses or paramedics to administer health care in custody suites. The previous Codes used the term police surgeon. In practice, AHCPs are generally referred to as forensic physicians, except in London where they are still known as forensic medical examiners and in Northern Ireland as forensic medical officers. In London, most AHCPs are still general practitioners, whereas in other parts of the country they tend to be nurses or paramedics. AHCPs are now paid a sessional rate for the work rather than being paid according to the number of detainees they are called to see. The BMA Medical Ethics Department has issued a guidance document entitled “Health Care of Detainees in Police Stations.”12 This document draws attention to the entitlement of detainees to standards of health care equal to those in the NHS and sets out the parameters of good ethical practice. However, there is currently no guarantee that the AHCP will have particular training in mental health issues. In assessing whether the detainee should be interviewed, the AHCP should consider how his mental state might affect his ability to understand the nature and the purpose of the interview, to comprehend questions, to appreciate the significance of his answers, and to make rational decisions about whether he wants to say anything.13 Annex G.4 of the PACE Codes states that it is essential that AHCPs “consider the functional ability of the detainee rather than simply relying on a medical diagnosis, e.g. it is possible for a person with severe mental illness to be fit for interview.” Conversely, the police sometimes assume that fitness for an interview means that the person does not have a significant degree of mental illness, although the person may in fact nevertheless satisfy the grounds for compulsory detention set out in the Mental Health Act. The AHCP can refer a detained person to psychiatric ­services for a Mental Health Act assessment. The custody sergeant is also able to do so by contacting the duty AMHP or community psychiatric team for the detainee’s area of residence. An assessment is usually conducted in the police station. The responsibilities of the attending psychiatrist have been set out elsewhere.14

REALITIES In practice, the various provisions at the police station do not gel into a coherent system and are limited in efficacy. One study15 found that in practice, the appropriate adult was rarely called. In an analysis of more than 21,000

custody records in four police stations in cities in the East Midlands of England, the appropriate adult was contacted in only 38 instances (0.016%). Based on the lowest or most conservative estimate of the number of people with mental illness in the population, there should have been about 400 instances (1.9%), and on the more generous estimate about 3,000 (14%). The main decisions at the police station are made by the custody officer, who has limited knowledge of mental disorders. His primary concern is with legal matters about the person’s detention and to “dispose” of those arriving in custody as quickly as possible. The role of the AHCP tends to be narrowed, in a brief interview, to making judgments about fitness to be detained and fitness to be interviewed, rather than conducting a full mental state examination. And the delays in acquiring the services of an AMHP act as a disincentive to initiating assessments under the Mental Health Act. A major review by the Revolving Doors agency4 in the 1990s concluded that despite the high level of contact between police and the mentally disordered, “the opportunity to put people in contact with health and social services was not taken.” One detailed study16 highlighted particular failures in provision of care for those with a mental disorder who are detained by police: an overreliance on self-­reporting, a lack of inter-agency coordination, a lack of training of custody officers in mental health issues, inconsistencies in the training of forensic medical examiners, and delays in the attendance of relevant personnel. The Mental Health Act’s Code of Practice advises with regard to section 136 that “a police station should be used as a place of safety only on an exceptional basis,” and this is reflected in all guidance documents.9 The Bradley report,10 in common with others before it, points out that police stations do not have the facilities necessary for the welfare of such people and detention there is likely to be damaging to their health. However, during a 1-year period (2005–2006), more than 11,500 people were detained in a police cell as a place of safety under section 136 of the Mental Health Act, compared with 5,900 people in a hospital.2 Successive governments have been broadly accepting of the recommendations made by major reviews of the problem. However, their implementation has thus far been impaired by financial issues and by a lack of central coordination. Bradley sees the transfer of services at the police station to the NHS as a potential solution that should be pursued “at the earliest opportunity.”10

DIVERSION INITIATIVES A solution adopted in several large cities16,17,18 has been the introduction of police station liaison schemes, in which psychiatric nurses from the NHS are attached to police station custody suites. Their role is to improve the identification of mental disorder; to take a detailed history and conduct a mental health examination; to acquire details of health records from psychiatric services; to decide upon and arrange appropriate interventions, including

444  Mentally disordered detainees at the police station

arranging Mental Health Act assessments; to prepare typed reports; and to follow cases through, informing relevant agencies as to developments.16 One scheme in London assessed 1.1% of all custody cases at three police stations over a 31-month period, this being a similar proportion to those given in the observational studies for severe mental illness in custody cases. A need for admission was identified in 34% of referrals and was achieved in 31%, 91% on the day of assessment.16 In effect, the nurses played a coordinating role, catalyzing the effective involvement of existing services and ensuring the sharing of knowledge between agencies where appropriate. There are some similarities between such UK police diversion schemes and pre-­booking scheme systems in the United States, in which mentally ill people who commit minor offenses are directed toward care rather than being charged.19 Psychiatric diversion schemes at police stations should not be seen in isolation, but rather as part of an integrated spectrum of services at police stations, courts, and prisons.20 There are very few areas in which this ideal has been properly established. Although the Bradley report recommended that all police custody suites have access to criminal justice mental health teams,10 the great majority of police stations in England and Wales have no such access, and cooperation between police and mental health services comprises a patchwork of informal links developed through the necessities of day-to-day practice.

LEGAL CASES R v. Aspinall (1999), 2 Cr App R 115.

REFERENCES 1. Bather P, Fitzpatrick R, Rutherford M. Police and Mental Health (Briefing 36). London: Sainsbury Centre for Mental Health, 2008. 2. Docking M, Grace K, Bucke T. Police Custody as a “Place of Safety”: Examining the Use of Section 136 of the Mental Health Act 1983. (IPCC Research and Statistics Series: Paper 11). London: Independent Police Complaints Commission, 2008. 3. NHS Information Centre for Health and Social Care. In-patients Formally Detained in Hospitals under the Mental Health Act 1983 and Patients Subject to Supervised Community Treatment: 1998–99 to 2008–09. Leeds: NHS Information Centre for Health and Social Care, 2009. 4. Revolving Doors. The Management of People with Mental Health Problems by the Paddington Police. London: Revolving Doors Agency, 1994. 5. Robertson G, Pearson R, Gibb R. The entry of ­mentally disordered people to the criminal justice system. British Journal of Psychiatry. 1996; 169: 172−80.

6. Payne-James JJ, Wall IJ, Bailey C. Patterns of illicit drug use in police custody in London, UK. Journal of Clinical Forensic Medicine. 2005; 12: 196–98. 7. Scott D, MacGilloway S, Donnelly M. The mental health needs of people with a learning disability detained in police custody. Medicine, Science and the Law. 2006; 46: 111–14. 8. Baksheev GN, Thomas SDM, Ogloff JRP. Psychiatric disorders and unmet needs in Australian police cells. Australian and New Zealand Journal of Psychiatry. 2010; 44(11): 1043–51. 9. Hampson M. Raising standards in relation to Section 136 of the Mental Health Act 1983. Advances in Psychiatric Treatment. 2011; 17: 365–71. 10. Bradley Rt Hon Lord. Lord Bradley’s Review of People with Mental Health Problems or Learning Disabilities in the Criminal Justice System. London: House of Lords, 2009. 11. Reed J. Review of Mental Health and Social Services for Mentally Disordered Offenders and Others Requiring Similar Services: Vol. 1: Final Summary Report. London: HMSO Cm. 2088, 1992. 12. British Medical Association. Health Care of Detainees in Police Stations: Guidance from the BMA Medical Ethics Department and the Faculty of Forensic and Legal Medicine. London: British Medical Association, 2009. 13. Ventress MA, Rix KJB, Kent JH. Keeping PACE: Fitness to be interviewed by the police. Advances in Psychiatric Treatment. 2008; 14: 369–81. 14. Kent J, Gunasekaran G. Mentally disordered detainees in the police station: The role of the psychiatrist. Advances in Psychiatric Treatment. 2010; 16: 115–23. 15. Nemitz T, Bean P. Protecting the rights of the mentally disordered in police stations: The use of the appropriate adult in England and Wales. International Journal of Law and Psychiatry. 2001; 24: 595–605. 16. James DV. Police station diversion schemes: Role and efficacy in central London. Journal of Forensic Psychiatry. 2000; 11(3), 532−55. 17. Chung MC, Cumella S, Wensley J, Easthope Y. A description of a forensic diversion service in one city in the United Kingdom. Medicine, Science and the Law. 1998; 38: 242−50. 18. Riordan S, Wix S, Kenny-Herbert J, Humphreys M. Diversion at the point of arrest: Mentally disordered people and contact with the police. Journal of Forensic Psychiatry. 2000; 11(3): 683−90. 19. Steadman HJ, Stainbrook KA, Griffin P, Draine J, Dupont R, Horey C. A specialized crisis response site as a core element of police-based diversion ­programs. Psychiatric Services. 2001; 52(2): 219−22. 20. James DV. Diversion of mentally disordered people from the criminal justice system in England and Wales: An overview. International Journal of Law and Psychiatry. 2010; 33(4): 241–48.

64 Court diversion and liaison JOHN A. DENT Introduction 445 Background 445 Options for diversion prior to appearance at magistrates’ court 446 First appearance at the magistrates’ court 446 Role of the psychiatric liaison team at the magistrates’ court 447

Fitness to plead and the magistrates’ court 447 Collecting information 447 Psychiatric reports produced for the magistrates’ court 448 Liaison 448 Possible disposals 449 Impact of court diversion 449 References 449

INTRODUCTION

the health needs of the mentally disordered offender are addressed at the appropriate level of security and the legal process is facilitated. The chapter also looks at some of the reasons why delays occur and why outcomes are sometimes less than ideal. People appearing before the magistrates’ court may be either in custody or returning after being granted bail by the police or at an earlier hearing. This chapter is not concerned with providing psychiatric reports for patients on bail, although some diversion and liaison teams provide this service. Such patients are unlikely to require diversion, and the issue of providing a report that may be used for a psychiatric defense is dealt with elsewhere in this book. Those in custody will either be arriving from cells in police stations if they have just been arrested or be returning from a remand prison.

Anyone who has sat in the public gallery of a magistrates’ court or visited a remand prison will be aware of the ­number of people appearing in court or on remand who are manifestly mentally disordered. It is almost instinctive for most people to be appalled by this and to feel that something must be done to relieve the distress of those involved. However, this is not a new problem; in 1939 Penrose postulated a reciprocal relationship between the number of mentally ill in prison and the number of beds available in asylums.1 This would appear to be borne out. The rising concern about the number of mentally ill in the criminal justice system coincides with a fall in psychiatric inpatient bed numbers to historically low levels from their peak in the mid-1950s. However, this association does not prove a causal relationship, and more recently authors such as Cummings have warned that Penrose’s theory is an oversimplification and obscures changes in the patterns of use of both prison and secure mental health facilities.2 In all UK jurisdictions there is provision for moving mentally disordered people out of the criminal justice system into the health system. In England and Wales this can be done in theory at any point in the legal process from arrest onward. This chapter looks at the various pathways that lead mentally disordered people into custody, and the options for diverting them at different stages. It examines the role of court diversion and liaison teams in this context as they try to collate information, assess mentally disordered remand prisoners, and work with the court to help advise on the most appropriate disposal following conviction such that

BACKGROUND Although people remanded into custody are still presumed innocent, they may have been refused bail either because they are charged with serious offenses such as murder, manslaughter, or rape, or more frequently, because the decision not to grant bail has been based on a perceived risk that the defendant will fail to appear for trial, intimidate witnesses, or commit further offenses. In England and Wales, the remand population represents about 15% of the total prison population. Like the rest of the prison population it contains large numbers of mentally disordered offenders, although the exact figures vary widely depending on the sensitivity of the screening method used. There is a shortage of up-to-date reliable statistics about the prevalence of mental disorders in prisoners in the 445

446  Court diversion and liaison

United  Kingdom. The most comprehensive survey was conducted in 1997 and published in 1998 by the Office of National Statistics (ONS), indicating a prevalence of psychosis in unconvicted prisoners of 10% in males and 14% in females.3 The same study team estimated the prevalence of learning disability (known as mental retardation in the United States), defined as an IQ of less than 70 derived from scores on the Ammons Quick Test. The prevalence of learning disability was approximately 11% in both female and male remand prisoners. More recent studies have included specific learning difficulties such as dyslexia and autistic spectrum disorders and produce higher estimates.4 Factors associated with mental disorders in the general population, such as unemployment and poor housing, are over-represented in the prison population. About one-third of female and one-half of male prisoners were excluded from secondary school (up to age 16), and the majority have no qualifications. The ONS study found that 25% of men on remand and 40% of women reported a history of attempted self-harm. The remand population may be at particular risk because of uncertainty about the outcome of the trial and the fact that trauma relating to the alleged offense and the circumstances of arrest are recent. This may be compounded by the fact that in the United Kingdom, particularly in London, remand prisoners are more likely to be housed in old Victorian prisons. Patients on remand are often moved repeatedly between prisons owing to overcrowding and may be transported in secure vehicles over long distances to attend court. They may also have less access to recreation and spend longer times locked in their cells compared with sentenced prisoners.5 In 2009 remand prisoners represented 16% of the prison population but accounted for 50% of self-inflicted deaths.6

OPTIONS FOR DIVERSION PRIOR TO APPEARANCE AT MAGISTRATES’ COURT Following the first contact of a mentally disordered person with police, officers have considerable discretion. If the person is manifestly unwell in a public place, he or she can be moved to a place of safety under section 136 of the Mental Health Act 1983 (amended 2007), where the person can then undergo a formal assessment for consideration of a disposal under Part II of the Mental Health Act. What constitutes a place of safety varies from area to area, but it may include a dedicated suite in an acute psychiatric unit, an accident and emergency department, or a police station. Police stations should be used only when there is an immediate serious threat of violence or danger to people providing care or support. The local community mental health team may be called to conduct their assessment at the police station. An arrested person can be held for questioning for up to 24 hours at a police station. (This can be extended to

36  hours by application to the police superintendent, and for terrorist offenses up to 7 days.) While in police custody, an individual is entitled to medical care as laid down by the local code of practice. This is provided by forensic medical examiners, custody nurses, mental health liaison nurses, or paramedics. Forensic medical examiners are doctors, often general practitioners who have had additional training to assist in police stations, although their role is independent of the police. They provide medical care for the arrested person and may also be involved in the collection of forensic evidence in the case of rape victims or victims of assault. They may be called to deal with physical health problems, acute intoxication and withdrawal of drugs, and self-harm, as well as acute psychiatric problems. Since the enactment of the Police and Criminal Evidence Act 1984 (amended 2000), there has been a code of practice that covers police interviews of young persons (under 17 years of age) and cases in which “an officer has any suspicion, or is told in good faith, that a person may be mentally disordered or otherwise mentally vulnerable.” The police are required to seek the advice of an appropriate adult, the forensic medical examiner, and/or a psychiatrist. This has led in some areas to the development of volunteer schemes of “appropriate adults.” The interview evidence obtained by the police will be admissible in such cases only if an appropriate adult has been present during the interview and the forensic medical examiner and/or psychiatrist has advised that the person is fit to be interviewed. In some areas a mental health nurse may be attached to the police station on an on-call basis and can provide additional screening for mental health problems at this stage. Mental health nurses may also be involved in advising on a person’s fitness to be interviewed. They will liaise with local community mental health teams and may be part of a larger multi-disciplinary court diversion team. Following the interview, the police will then have a number of options: to release the person if there is insufficient evidence, to release the person on bail for further questioning, or to charge the person.

FIRST APPEARANCE AT THE MAGISTRATES’ COURT All criminal proceedings are initiated at the magistrates’ court, and about 90% are dealt with there. The maximum sentence is usually 6 months’ imprisonment or a fine up to £5,000, but when a more severe sentence might be considered (in the event of conviction), the magistrates’ court may decline jurisdiction or transfer the case for sentencing to the Crown Court following conviction. Some serious offenses can be tried only at the Crown Court and are referred to as “indictable only.” In such cases, after the charges have been made (the indictment), the case will be transferred directly to the Crown Court, where a plea

Collecting information  447

and directions hearing will be heard at the next available slot, often 6 weeks later. A decision will be made whether the defendant will be remanded into custody or bailed in the interim; this may be an area in which probation services and the psychiatric diversion team are called on for advice. Most minor cases are usually dealt with at the magistrates’ court. Some are “summary only,” that is, there is no option for a jury trial at the Crown Court, in which case a plea is taken and the trial heard by the magistrates who will also pass sentence. However, the magistrates may still refer the case to the Crown Court upon conviction if a more severe sentence is considered necessary. For some intermediate cases, the defense can opt for trial at Crown or magistrates’ court, although the magistrates’ court may decline jurisdiction.

ROLE OF THE PSYCHIATRIC LIAISON TEAM AT THE MAGISTRATES’ COURT The first court diversion and liaison scheme providing advice to the Bow Street and Marlborough Street magistrates’ courts was set up in 1989.7 They have since developed in an ad hoc manner, so that by 2005 the National Association for the Care and Resettlement of Offenders (NACRO) had approximately 136 schemes in its database. However, the delivery model and coverage of the schemes were extremely variable, with large parts of the United Kingdom not covered.8 Historically, some psychiatric liaison teams have screened all defendants appearing at magistrates’ courts. This may be appropriate when there are small numbers of defendants or when the staff available to do the screening does not consist of approved mental health practitioners or psychiatrists. The local psychiatric hospital or community mental health team can then be approached to assess the small numbers of defendants identified with mental health concerns who are likely to require formal diversion. However, in busier magistrates’ courts, especially in central London, a referrals system is operated with referrals accepted from anyone concerned about the mental health of a defendant: judges, magistrates, defense and prosecution solicitors, prison staff, police, prison in-reach teams, community mental health teams, police liaison nurses, and forensic medical examiners. Most of these will have had formal training in mental health and/or considerable experience in working with mentally disordered offenders. It should be stressed that the models of psychiatric diversion and liaison in England and Wales are still evolving. The Bradley Report9 tried to identify the pathways whereby the mentally ill are diverted and areas where intervention would be most effective. It highlighted the lack of accurate data, comparable across different sites, and recommended extension of Criminal Justice Mental Health Teams with agreed common elements to cover the whole country. As a response to the Bradley Report, the Department of Health has supported the development of a Criminal Justice Mental

Health Network, with established diversion teams being given enhanced resources and support in collection of a national minimum data set.

FITNESS TO PLEAD AND THE MAGISTRATES’ COURT The issue of fitness to plead can be raised by the defense, prosecution, or judge and is decided by the judge in the Crown Court on the written or oral evidence of two or more registered medical practitioners, at least one of whom must be duly approved under section 12 of the Mental Health Act 1983 (amended 2007). At the first hearing in the magistrates’ court, it is useful for the court diversion team to flag concerns about a person’s potential fitness to plead so that the appropriate reports can be obtained if the case is proceeding to trial at the Crown Court. It may also help the Crown Prosecution Service (CPS) in deciding whether it is in the public interest to proceed with the prosecution. In the case of summaryonly or either-way cases being tried at the magistrates’ court, the court has the option for disposal by section 37, subsection (3), without conviction The defense solicitor may enter a “not guilty” plea on his or her client’s behalf, particularly if the offense is one where criminal intent (mens rea) needs to be proved by the prosecution. If the offense is relatively minor, for example a public order offense, consideration might be given to use of a civil section, bearing in mind that the CPS can drop a case at any stage if it is not deemed to be in the public interest to pursue it.

COLLECTING INFORMATION It is useful to meet with the patient’s solicitor to ascertain whether the solicitor anticipates any difficulties taking instruction from his or her client. The solicitor may have some idea of any communication difficulties, the need for an interpreter, the client’s psychiatric history, or even some indication as to how the client intends to plead or other charges the client may be facing. When interviewing the patient, time is limited, and the circumstances of the interview are often difficult. The prisoner may have had little sleep if he has come directly from a police station, and he may have been transported long distances in a cramped prison transit van. The prisoner may have been transferred between multiple prisons because of overcrowding, may speak poor or no English, may be intoxicated or in withdrawal from drugs and/or alcohol, may be very angry about the perceived injustice of his situation, or may be traumatized by the circumstances of his offense and arrest. The interview itself may occur in a custody suite, where communication is through a plate glass partition. If the patient is less cooperative, he or she may need to be observed

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Table 64.1  Sources of information • National Health Service databases • Probation database • Crown Prosecution Service file including computerized list of previous convictions • Previous assessments by the police liaison nurse • Information relating to previous hospital admissions • General practitioner’s records • Information from hostels • Information from relatives or other informants • Inmate medical records from prison • Escort record • Police custody record

and interviewed through the “wicket”—the small letter box–shaped opening at head level in the door of a police cell. However, this depends on local security policies and may not always be an option. Custody suites can be very noisy, and the concrete walls often make for difficult acoustics. Therefore, any collateral information that can be gained before interviewing the patient will help focus the interview on the most salient aspects. If the team has an administrator, that person’s role will be important in starting the search for collateral information, possibly on days when the full psychiatric team is not present. Possible sources of information are listed in Table 64.1. Where the inmate has not given consent or lacks capacity, clinical judgment will need to be exercised as to whether the information requested is necessary for the immediate care of the inmate or the protection of others, and whether it would be appropriate to consider the General Medical Council guidelines on sharing confidential information. Information requested for clinical purposes should not be routinely copied to the court, but any relevant information should be summarized in the report provided by the diversion team.

PSYCHIATRIC REPORTS PRODUCED FOR THE MAGISTRATES’ COURT In preparing the report, the psychiatric liaison team has a responsibility to both the defendant and the court. The team must be acting in the best interests of the defendant at all times. While facilitating the smooth running of the court case, the team should not be drawn into commenting on issues of guilt and innocence or of prejudicing the defendant’s right to a fair trial. This is particularly important when commenting on risk to the public or using collateral information that has been provided in confidence. Prior to performing an assessment, it is important to advise the defendant of the purpose and nature of the interview, that a report is being prepared for court, and that the contents of the discussion will not be confidential. Psychiatric reports prepared for the magistrates’ court are

routinely circulated to prosecution and defense solicitors and probation officers and may find their way into prison medical records. Ideally the defendant will still cooperate fully and give permission for other sources of information to be freely used, such as discharge summaries, general practitioner (GP) records, or discussions with relatives. Unfortunately, in practice this is rarely the case; defendants with suspected mental disorders may be suspicious and guarded for any number of reasons. In some cases they can be completely mute. The reasons for a lack of cooperation should be explored and attempts made to establish a rapport. When the defendant is suspected of lacking capacity to consent, the assessment can take place under common law if it is in his or her best interest. However, information obtained in these circumstances should not be used for any other purpose, for example, in helping the court to establish guilt or innocence. In all cases it is important not to include anything prejudicial to the defense, and to avoid encouraging defendants to say anything that might incriminate themselves unless they are clearly fit to plead and have stated their intention to plead guilty. The following should be considered: A person who is mentally disordered or otherwise mentally vulnerable must not be ­ interviewed regarding their involvement in a criminal offense or asked to provide or sign a written statement under caution or record of interview in the absence of an appropriate adult (Paragraph 11.15 Police and Criminal Evidence Act 1984 Code C).

LIAISON Most mentally disordered defendants have had previous contact with psychiatric services. Trying to locate the previous psychiatric assessments or discharge summaries relating to a particular client requires knowledge of the patient’s address, GP, date of birth, and any aliases. In some cases the defendant is happy to volunteer accurate information. In others it is necessary to search on the Internet, check catchment areas with the emergency bed service, phone local GPs or community mental health teams, access the National Health Service (NHS) Spine, or check local health databases such as Rio and Jade. If the defendant has recently arrived from abroad, it may be necessary to speak with the relevant embassy or consulate or track down a hospital with the aid of a translator and the Internet. Once a decision has been reached that a defendant needs diversion, one must avoid delay in finding a hospital that is prepared to accept the defendant. Boundary disputes between Mental Health Trusts are common. Some facilities may be reluctant to accept responsibility because of the long-term commitment of resources, and diversion teams need to be familiar with local protocols to establish

References 449

catchment areas and be prepared to work through the hospital management hierarchy when facing resistance from bed managers. In particular the rights of the homeless, refugees, and asylum seekers to emergency treatment need to be protected. When all else fails and the court is “minded to make a hospital order,” it has powers under section 39 of the Mental Health Act to demand the health authority with responsibility for commissioning to explain what arrangements can be made for admission. Just the mention of this is sometimes enough to overcome resistance. Apart from providing advice on diversion, the team also has a general liaison function. They may give advice on accommodation and drugs and alcohol, or work alongside drug counseling services and homeless organizations that provide this function. If the defendant is not thought to require urgent diversion under the Mental Health Act but a mental disorder is suspected, the remand prison may be alerted to the arrival of the defendant, or arrangements may be facilitated for the catchment area team to assess the patient on remand. This might be appropriate with patients in whom personality disorder is suspected. If there is a high risk of self-harm, asking the prison officers escorting the defendant or his or her manager to initiate a specific care planning system used in prisons for inmates at risk of self-harm (Assessment, Care in Custody, and Teamwork, or ACCT) will help ensure increased observation.

POSSIBLE DISPOSALS The legal framework under which patients are moved from court or custody to the hospital includes the following: 1. Civil detentions: Made under Part II of the Mental Health Act 1983 (amended 2007) sections 2, 3 and 4; these can be made when the CPS agrees to drop the charges, in which case voluntary admission to the hospital should also be considered. 2. Court disposals: Prison transfers are made under Part III of the Act and relate to patients detained by direction of the court while on remand, or after conviction, or transferred from prison under warrant from the Secretary of State for Justice under sections 35, 36 (Crown Court only), 37, 38, 44. 3. Place of safety orders: These are made under Part X of the Act section 135, and allow temporary detention while assessment is made. 4. The Bail Act 1976: The diversion team may give evidence as to the suitability for bail in liaison with probation as it is possible to refuse bail if the court is satisfied that the defendant should be kept in custody for his own protection. This may sometimes be the only option when a person is mentally disordered or homeless and it has not been possible to establish the responsible authority. Bailing a person to hospital is also possible. 5. Guardianship orders under Part I section 7 Mental Health Act 1983.

6. Noncustodial disposals: These include probation orders, conditional discharge with condition of psychiatric treatment, and community orders with a mental health treatment requirement.

IMPACT OF COURT DIVERSION Currently, an inner London magistrates’ court diversion team may divert an average of two patients from custody in an average week, while in less busy areas, this total may be two a month or fewer. A study conducted by James and colleagues showed that diversion from custody results in a decrease in the number of admissions in 2 years subsequent to the appearance in court, compared with the previous 2 years, but no reduction in bed nights. However, outcomes were good in terms of reduced morbidity, and men diverted from custody were half as likely to reoffend in 2 years compared with those given other disposals.10 Despite the development of diversion services and prison in-reach teams, the length of time patients remain in custody once they have been identified as having mental health problems requiring diversion to a hospital continues to give cause for concern. The average wait for male prisoners at one London prison in one 18-month period prior to 2009 was 102 days.11 Diverting patients at court has the advantage that the Mental Health Act specifies that the receiving hospital must find a bed within certain time constraints (28 days for section 37 or 7 days for section 35). However, the Bradley Report recommends that a target maximum waiting time for all patients should be 14 days. Nonetheless, with current pressure on beds within both prisons and psychiatric facilities, it is hard to see how any proposal to move more mentally disordered prisoners into psychiatric facilities can be possible without existing patients being displaced, possibly back to prison.12

REFERENCES 1. Penrose LS. Mental disease and crime: Outline of a comparative study of European statistics. British Journal of Medical Psychology. 1939; 18: 1–15. 2. Cummins I. The Relationship Between Mental Institutions Beds, Prison Population and the Crimes Rate. In: Prison Mental Health: Vision and Reality. London: RCN, NACRO, Centre for Mental Health, 2010: 22–25. 3. Singleton N, Meltzer H, Gatward R. Psychiatric Morbidity Among Prisoners in England and Wales. London: Office for National Statistics, 1998: 11. 4. Loucks N. No One Knows: Offenders with Learning Difficulties and Learning Disabilities. Review of Prevalence and Associated Needs. London: Prison Reform Trust, 2007: 2–3. 5. Prison Reform Trust. Innocent Until Proven Guilty: Tackling the Overuse of Custodial Remand. London: Prison Reform Trust, 2011: 2.

450  Court diversion and liaison

6. HM Chief Inspector of Prisons for England and Wales. Annual Report 2008–09. London: HMIP, 2010: 21–2. 7. Joseph P, Potter M. Mentally disordered homeless offenders – Diversion from custody. Health Trends. 1990; 22: 51–53. 8. Spurgeon D. Diversionary tactics. Safer Society (NACRO). 2005 (summer): 26. 9. Lord Bradley. Lord Bradley’s Review of People with Mental Health Problems or Learning Disabilities in the Criminal Justice System. London: Department of Health, 2009.

10. James D, Farnham FR, Moorey H, et al. Outcome of psychiatric admission through the courts. Research Development and Statistics Occasional Paper 79. London: Home Office, 2002: 85. 11. Forrester A, Henderson C, Wilson S, Cumming I, Spyrou M, Parrott J. A suitable waiting room? Hospital transfer outcomes and delays from two London prisons. Psychiatric Bulletin. 2009; 33: 409–12. 12. Isherwood S, Parrott J. Audit of transfers under the mental Health Act from prison—The impact of organization change. The Psychiatrist. 2002; 26: 368–70.

65 Criminal proceedings and sentencing IAN H. TREASADEN Criminal responsibility 451 Mentally disordered offenders involved with the police and courts 452 Court procedure 452 Mental abnormality as a defense in court 453 Unfit to plead: Criminal Procedure (Insanity and Unfitness to Plead) Act 1991 453 Not guilty by reason of insanity (“special verdict”; insanity defense; McNaughton rules): Criminal Procedure (Insanity and Unfitness to Plead) Act 1991 454 Diminished responsibility 454 Automatism 455 Homicide 455 Infanticide 456 Amnesia 456 Drugs and alcohol 456

Sentencing 456 Section 37: Hospital order 456 Section 38: Interim hospital order 458 Section 41: Restriction order 458 Section 37: Guardianship order 458 Section 45A: Hospital and limitation directions 458 After sentencing 459 Transfer direction from prison (Section 47 of the Mental Health Act 1983) 459 Transfer of persons kept in custody during her Majesty’s Pleasure (Section 46 of the Mental Health Act 1983) 459 Comparison of legal provisions for mentally disordered offenders in the United Kingdom and the Republic of Ireland 459 Sentencing: Non–mental health disposals 459

In this chapter, the following topics, primarily in relation to England and Wales, will be considered:

and most elsewhere in the world, although North Carolina in the USA has a starting age of 7 years. The age criminal responsibility begins in the UK has been criticized by the U.N. Committee on the Rights of the Child. It is questionable how adept psychiatrists are in judging responsibility, as opposed to diagnosing mental disorder. Most offenses require some form of intent (mens rea), as well as an unlawful act (actus reus). These offenses are divided into those that require specific intent (intention to act as an individual did and also intended certain consequences), for example, murder, rape, arson with intent to endanger life, burglary and indecent exposure, and those that require only basic intent (intention only to act as the individual did). Some minor offenses, such as driving offenses, do not require mens rea. Certain mental states interfere with the defendant’s (patient’s) intent (mens rea) and may give rise to defenses in law to the offenses. Insanity has always been regarded as a defense in English law. For example, a judge in King Alfred’s time was hanged for having ordered the hanging of an insane man. By the early eighteenth century, for insanity to be a defense in law it had to be such as to cause the subject to act like a wild beast—devoid of all reason and memory. However, in 1780

●● ●● ●● ●●

Detention at a police station Court procedure Disposal/sentencing Comparison of legal provisions for mentally disordered offenders in the United Kingdom and the Republic of Ireland.

Ultimately, nowadays, the aim of the criminal justice system is to try to “divert” as many mentally disordered people away from the criminal justice system as possible.

CRIMINAL RESPONSIBILITY Criminal responsibility is a legal concept and currently begins at the age of 10 years in England and Wales and 8 years in Scotland (Doli Incapax), although, confusingly, a child may not come before the criminal courts there until the age of 12 years (Criminal Justice and Licensing (Scotland) Act 2010.) In the Republic of Ireland it begins at 10 years of age. These ages are all lower than for countries in Europe

451

452  Criminal proceedings and sentencing

a soldier was acquitted of murder because he was found to be suffering from a delusion about the victim as a result of insanity.

MENTALLY DISORDERED OFFENDERS INVOLVED WITH THE POLICE AND COURTS Following an arrest, an individual may be: Admitted informally to a psychiatric hospital or ●● Compulsorily detained under civil sections of the Mental Health Act 1983 (e.g., Section 2, 3, 4, or 136) and/or ●● Cautioned by the police, as long as the individual accepts his or her guilt or ●● Charged and taken to court (either on bail or not). ●●

In any event, the police will check to determine whether or not the individual is an absconding patient. If so, the police will return him or her to the hospital under Section 18 (Return and readmission of patients absent without leave) or Section 138 (Retaking of patients escaping from custody). In the Police & Criminal Evidence Act 1984 (PACE), discussed in detail in Chapter 64, there is a code of practice, Code C, that covers the detention, treatment, and questioning of a person by a police officer. If  the individual is suspected to be mentally disordered by a police officer, an appropriate adult must be informed and asked to go to the police station. This should ideally be an individual trained or experienced in dealing with mentally disordered people rather than an unqualified relative. An appropriate adult should be present while the individual is told his rights and can advise the person being interviewed, observe the fairness of the interview, and facilitate communication with the interviewee. The appropriate adult may also require the presence of a lawyer. For summary only offences (i.e. those that can only be tried by a magistrates court), a decision is taken by the police to prosecute, but for more serious cases the decision is passed to the Crown Prosecution Service (CPS), which will also consider the public interest and the likely adverse effects of prosecution of a mentally disordered individual.

1. Remand to a hospital for a report, under Section 35 2. Remand to a hospital for treatment, under Section 36 3. Remand to a hospital of other prisoners (including those on remand in custody), under Section 48. At many Magistrates, Courts there are court diversion teams in attendance on certain days. These teams are typically made up of a psychiatrist plus a community psychiatric nurse (CPN) and sometimes a social worker, and are there to assess mentally disordered defendants. The benefit of these teams is that they allow defendants in custody to be assessed quickly and diverted into the mental health system if appropriate. The scheme also allows for the courts and prosecution to be appraised of a defendant’s condition more quickly than otherwise may be the case. Such court diversion schemes have now been extended to a number of Crown Courts, such as the Central Criminal Court, Old Bailey. SECTION 35: REMAND TO A HOSPITAL FOR A REPORT

This order can be made under Subsection (3)(a) “if the court is satisfied on the written or oral evidence of a registered medical practitioner that there is reason to suspect the accused person is suffering from mental disorder; and (b) the court is of the opinion that it would be impractical for a report on his mental condition to be made if he were remanded on bail.” A hospital bed must be available within 7 days. If awaiting a bed, the accused must be kept in a “place of safety,” such as a “police station, prison or remand centre or any hospital the managers of which are willing temporarily to receive him” (Section 55(1)). The remand is for a maximum period of 28 days, although it is renewable for additional periods of 28 days, without the necessity of the patient attending court, up to a maximum of 12 weeks. Part IV provisions on Consent to Treatment do not apply, so an individual cannot be treated without his or her consent except in an emergency under common law. Some psychiatrists therefore also detain such individuals under Section 3 when they wish to treat them without their consent, and the Code of Practice states that this may be considered if there is a delay in getting to court. The use of Section 36 might, however, then be more appropriate.

COURT PROCEDURE

SECTION 36: REMAND TO A HOSPITAL FOR TREATMENT

The presumption is always in favor of remanding an individual on bail rather than in custody. Bail could include a condition of residence in a psychiatric hospital, although the individual would be an informal voluntary patient there unless otherwise detained under the Mental Health Act 1983. Where a person might otherwise be remanded to prison, the Mental Health Act 1983 allows for the following three possibilities:

This may only be used by the Crown Court and is an alternative to remand to custody. It can apply to those waiting for trial or sentence. It requires the written or oral evidence of two doctors that the individual is “suffering from mental disorder of a nature or degree which makes it appropriate for him to be detained in hospital for treatment” and appropriate medical treatment is available. It cannot be used for those charged with murder.

Mental abnormality as a defense in court  453

The remand is for a maximum of 28 days, although this may be renewed for additional periods of 28 days, without the necessity of the patient attending court, up to a maximum of 12 weeks. Part IV provisions of Consent to Treatment apply. A hospital bed must be available within 7 days, and the individual must meanwhile be kept in a “place of safety” (Section 55(1)). Problems arise if an individual has to wait for more than the maximum 12 weeks of the order to appear in the Crown Court. In these circumstances, detention under a civil ­section or the use of Section 48 may be required.

Unfit to plead: Criminal Procedure (Insanity and Unfitness to Plead) Act 1991 A mentally disordered defendant may assert that he is unfit to plead (under “disability” in relation to trial). This refers to the time of trial. The defendant would have to prove, using medical evidence, in a Crown Court hearing, that he or she was not fit to do at least one of the following (based on the original test used in R v. Pritchard (1836), Pritchard was deaf and mute and was charged with beastiality with a donkey): ●●

SECTION 48: REMAND TO A HOSPITAL OF OTHER PRISONERS (INCLUDING THOSE ON REMAND IN CUSTODY)

●●

This section gives the Secretary of State, Ministry of Justice powers to direct the transfer to a hospital of a person waiting for trial or sentence and who has been remanded in custody. It also applies to those detained under the Immigration Act 1971 and civil law prisoners. The Secretary of State, Ministry of Justice, requires two medical reports, which do not need to specify the availability of a bed at a particular hospital, stating that a person is suffering from mental disorder of a nature or degree that makes it appropriate for him or her to be detained in a hospital for medical treatment and that he or she is in urgent need of such treatment. The period of detention is variable and can continue to the time of sentence. This order increasingly has been used to divert severely mentally ill (psychotic) offenders from custody to a hospital, even when the need may not be “urgent.” It has the advantage that it does not require a court hearing to impose the order. On occasion, for instance, when an acutely mentally ill offender has appeared in court, such an individual may only nominally be remanded to a named custodial facility and, by arrangement with the Ministry of Justice, can instead be transferred directly to hospital without being actually placed in custody.

●●

MENTAL ABNORMALITY AS A DEFENSE IN COURT In some cases, a person charged with an offense offers evidence of his or her mental disturbance to either: ●● ●●

Excuse his or her being tried (not fit to plead), or Agree to having done the act but not to have been fully responsible at the time (insanity or diminished responsibility, or automatism or infanticide).

Thus, in these cases, the psychiatric evidence is presented as part of the arguments to the court and is heard before conviction.

●● ●●

Instruct counsel (“so as to make a proper defence”) Appreciate the significance of pleading Challenge a juror Examine a witness Understand and follow the evidence of court procedure.

Note that the defendant does not have to be fit to give evidence himself or herself. If it appears that a defendant is unfit to plead but may, in time and with treatment, become fit to do so, then the case is often adjourned to allow for that improvement in the defendant’s mental state. If, however, the defendant does not become fit to do so, then the unfitness to plead procedure will have to be followed. If raised by the judge or the prosecution, this defense must be proved beyond reasonable doubt, but if raised by the defense, it only has to be proved on the balance of probabilities. This is a very rare plea and is only likely to be successful in cases such as severe disorders of intellectual development (learning disability) or for patients who are extremely paranoid, for example, about the court or their legal representatives. Physical illness, such as pneumonia, may also result in unfitness to plead and stand trial. It has been criticized for its lack of specific emphasis on the accused’s decision making capacity. The procedure requires that first there is a trial (with a jury) to determine whether or not the defendant is fit to plead. The jury will have to hear evidence (written or oral) from at least two Section 12 Mental Health Act 1983 approved doctors before reaching their decision. If the jury finds that a defendant is fit to plead, then he or she will stand trial as normal in front of a different jury. If a defendant is found unfit to plead, then there is also a second trial, but only to determine whether or not the defendant committed the act alleged (actus reus) and does not consider his or her mental state (mens rea). If found unfit to plead and to have committed the act, then a defendant can only be sentenced to a hospital order, guardianship order, supervision and treatment order, or an absolute discharge. Historically, the concept originates from dealing with deaf mutes. In medieval times, defendants were pressed under weights to give a plea, without which they could

454  Criminal proceedings and sentencing

not be convicted, executed, or their property given to the Exchequer. Hence the phrase “press for an answer.” In Scotland, individuals are found unfit to plead (“incapable of participating effectively in a trial”) more commonly, including in cases where in England they would be convicted and detained under a Section 37 hospital order. Fitness to plead is also more often an issue in the United States, where the term competency is used. Note that the unfit to plead procedure in England and Wales relates to Crown Court cases; there is no such procedure in the magistrates’ Court. In less serious cases, where there is evidence that the defendant is mentally disordered, then cases can be dealt with in the magistrates’ court under Section 37(3) of the Mental Health Act 1983. This procedure allows for the facts of an alleged offense (actus reus) to be proved so that the court is satisfied that the defendant “did the act or made the omission charged”, again without regard to the defendant’s mental state at the time of the offense. If the defendant is proved to have committed the act, he or she will be made the subject of a section 37 hospital order. Fitness to plead is considered in detail in Chapter 69. MUTE DEFENDANTS

On rare occasions one may be asked to help the court decide whether an offender who appears to be mute (i.e., has no speech at all) is being mute “by malice or a visitation of God.” If mute “by malice,” the case proceeds with a not guilty plea entered on the defendant’s behalf. If mute “by visitation of God,” for example if deaf and dumb, the question of fitness to plead will arise with a view to disposal under the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991. Mutism is considered in detail in Chapter 76.

Not guilty by reason of insanity (“special verdict”; insanity defense; McNaughton rules): Criminal Procedure (Insanity and Unfitness to Plead) Act 1991 Historically, this defense arose from the case of McNaughton in 1843. McNaughton, believing himself to be poisoned by Whigs, attempted to shoot Prime Minister Robert Peel, missed (or alternatively misidentified), and shot and killed Peel’s secretary. Because McNaughton was deluded and insane, he or she was acquitted, but this caused a great deal of argument in the country, which included Queen Victoria who said “Insane he may be, but not guilty he is not”, and the Law Lords were asked to issue guidance for the courts in response to five questions. Their guidance is known as the McNaughton rules. In this defense, the offender is arguing that he or she is not guilty (not deserving of punishment) by reason of his or her insanity. It has to be proved to a court, on the balance of probabilities, that at the time of the offence, the offender labored under such defect of reason that he or she met the McNaughton rules:

1. That by reason of such defect from disease of the mind, he did not know the nature or quality of his or her act (this means the physical nature of the act), or 2. Not know that what he or she was doing was wrong (­forbidden by law). 3. If an individual was suffering from a delusion, then his or her actions would be judged by his or her relationship to the delusion, that is, if he or she believed his or her life to be immediately threatened, then he or she would be justified in striking out, but not otherwise. Technically, this plea may be put forward for any offense, but in practice it is usually put forward only for murder or other serious offenses. In fact, such a plea is rare. Under the Criminal Procedure Act 1991, if found not guilty by reason of insanity, the judge has freedom to decide on the sentencing and disposal of the defendant, that is, discretionary sentencing, including detention in a hospital under forensic treatment orders of the Mental Health Act 1983. Defendants found not guilty by reason of insanity of a homicide offense are entitled to inherit from the deceased as they have been found not guilty, unlike the situation for those found guilty of manslaughter on the grounds of diminished responsibility. This is considered in detail in Chapter 70.

Diminished responsibility As a reaction against the fact that mentally disordered people who had killed were still being hanged despite the McNaughton rules, a movement was created to bring in a defense of diminished responsibility, that is, the responsibility of the offender is not totally absent because of mental abnormality, but is only partially impaired. Therefore, he or she would be found guilty, but the sentence would be modified. This was first made law in the Homicide Act 1957. It applies only to a charge of murder. The murder charge is reduced to manslaughter on grounds of diminished responsibility. Subsequently, the Homicide Act 1957 was amended by the Coroners and Justice Act 2009, Section 52 (Persons suffering from diminished responsibility (England and Wales)), Subsection 1, which states: A person (“D”) who kills or is a party to the killing of another is not to be convicted of murder if D was suffering from an abnormality of mental functioning which: (a) arose from a recognised medical condition (b) substantially impaired D’s ability to do one or more of the things mentioned in Subsection(1A), and (c) provides an explanation for D’s acts and omissions in doing or being party to the killing

Mental abnormality as a defense in court  455

(1A) Those things are: (a) to understand the nature of D’s conduct; (b) to form a rational judgement; (c) to exercise self-control SUCCESSFUL PLEA

The effect of a successful plea is to reduce the charge from murder to manslaughter. Murder carries a statutory sentence of life imprisonment, but the court is free to make any sentence at all (discretionary sentencing) with regard to manslaughter, including a hospital or a community rehabilitation order or, indeed, a life prison sentence, in which case such individuals, perhaps because they have a mental disorder but are considered not treatable, may spend longer in custody than those convicted of murder. The verdict “unties the Judge’s hands.” In addition to a report supporting the plea of diminished responsibility, the psychiatrist may also, if appropriate, wish to arrange for the appropriate hospital treatment and offer the appropriate section recommendations to the court to help them with their sentencing. Diminished responsibility is considered in more detail in Chapter 71.

defense of automatism should be regarded as evidence of insanity (insane automatism) and to return a special verdict of “not guilty by reason of insanity,” which would allow for discretionary sentencing, including detention in a hospital. While historically sleepwalking and night terrors have been accepted as automatisms and have led to acquittal, case law (from the decision of Lord Justice Lawton) now differentiates non insane automatism, due to external causes (extrinsic factors), for example, hypoglycemia caused by insulin, from insane automatism, due to disease of the mind caused by mental illness or brain disease (intrinsic factors), for example, diabetes, epilepsy, and even hysterical dissociative fugue states, in which a special verdict of “not guilty by reason of insanity” should be returned. Automatism is considered in detail in Chapter 74.

Homicide Homicide is the killing of another human being. It may be lawful or unlawful. It includes: ●●

Automatism This is a rare plea generally restricted (though not entirely) to cases of homicide. The defendant pleads that at the time of the offense his or her behavior was automatic (no mens rea). The law uses this term to mean a state almost near unconsciousness. It refers to unconscious, involuntary, nonpurposeful acts where the mind is not conscious of what the body is doing. There is a separation between the will and the act, or the mind and the act (“Mind does not go with what is being done.” Bratty v. A.G. in Northern Ireland 1961). Automatism is an extremely rare plea and has been successfully pleaded, particularly in cases of homicide, for offenses occurring during hypoglycemic attacks, sleepwalking, or sleep, for example, fighting tigers and snakes in dreams. (Theoretically, this should be during night terrors in slow wave sleep, as during dreams, involving complex visual images, one should be paralyzed in rapid eye ­movement (REM) sleep, but it has been argued that such offenses may occur as an individual wakes from a dream.) Such must be the degree of automatism that there is no capacity to form any intent to kill or commit any other offence, or any capacity to control actions. In certain cases, such as offending while sleepwalking, the accused has walked free from the court on the understanding that he or she will always lock his or her bedroom door. Where a defense of non-insane automatism is put forward, the subject is hoping to receive a total acquittal. However, the law has become aware that some automatism states are really the result, in the legal sense, of a disease of the mind, such as epilepsy, which may recur, and therefore, in such cases, the jury may be invited to consider that the

●● ●●

Murder: unlawful killing with malice aforethought (intention to kill or cause grievous bodily harm). In the United Kingdom, murder results in a mandatory life sentence. Manslaughter Suicide pact

Homicide is considered in detail in Chapter 31. MANSLAUGHTER

Manslaughter may be categorized into three groups, namely: ●● ●● ●●

Voluntary manslaughter Involuntary manslaughter Corporate liability

The third of these will not be considered further here.

Voluntary manslaughter These are cases of homicide in which the defendant would be guilty of murder if it were not for the availability of one of the following partial defenses: ●●

●●

Diminished responsibility (Coroners and Justice Act 2009, Section 52). Loss of control (previously provocation) (Coroners and Justice Act 2009, Section 53)

LOSS OF CONTROL (PREVIOUSLY PROVICATION)

Provocation (originally Section 3 Homicide Act 1957) was the sudden or temporary loss of control under provocation that might make a “normal” person kill. Whether this occurred was for the jury to decide, although a psychiatrist’s opinion could be requested. Psychiatric evidence about the propensity of individuals with certain vulnerable

456  Criminal proceedings and sentencing

personalities or conditions, such as learning disability, to be provoked was accepted as admissible. Following criticism that this defense was used inappropriately by individuals who kill after losing their temper, and that it is not sufficiently tailored to those who kill out of fear of serious violence (e.g., those subject to prolonged domestic violence), this defense was replaced in the Coroners and Justice Act (2009), Section 53, with a new partial defense of loss of control for people who (i) kill in response to fear of serious violence or (ii) have a justified sense of being seriously wronged. Again this is for the jury to decide, but psychiatric evidence may be admissible. ●●

Killing in pursuance of a suicide pact (Section 4, Homicide Act 1957)

A suicide pact is defined as being a common agreement between two or more people, having for its object the death of all of them, whether or not each is to take his or her own life. The burden of proof is on the individual, but only on the balance or probabilities (not beyond reasonable doubt).

Involuntary manslaughter

Crown Prosecution Service to use this plea for such mothers. It does not apply to adopted children or to any child other than the youngest (otherwise, a manslaughter plea has to be used), as it is possible to have two children born within 1 year. When originally introduced, many such mothers had acute organic confusional puerperal psychoses. Now few do, and infanticide is rather an historical anachronism. Now, about one in six mothers have functional puerperal psychoses. The rest are not dissimilar from those who otherwise batter their children. It usually results in a sentence of a community rehabilitation order, often with a condition of psychiatric treatment (outpatient or, more rarely, inpatient).

Amnesia Amnesia is not in itself a defense, but the underlying condition may be, for example, post-traumatic state, epileptic fits, or acute psychosis. In the 1959, Podola appeal case (the amnesia of Podola, who killed a policeman, was, in fact, not genuine), it was ruled that even if amnesia is genuine, it is no bar to trial. Amnesia may be feigned by lying or caused by:

Involuntary manslaughter refers to cases of homicide without malice aforethought. It can take several forms, including the following:

●●

An unlawful and dangerous act: “constructive manslaughter”; the actus reus consists of an unlawful act that is dangerous and causes death. Gross negligence: the actus reus consists of a breach of a duty of care that the accused owes to the victim, with the result that the breach leads to the victim’s death, e.g., medical manslaughter.

●●

●●

●●

While a conviction for manslaughter carries a maximum but not mandatory life sentence, it “unties the judge’s hands” and allows for flexible sentencing, including hospital orders, unlike the mandatory life sentence of those convicted of murder.

Infanticide Under the Infanticide Acts 1922 and 1938 (Section 1), infanticide is defined as having occurred when a woman by any wilful act caused the death of her child under the age of 12 months (from the 1938 Act), but at the time of the act or omission, the balance  of her mind was “disturbed by reason of her not being fully recovered from the effect of giving birth to the child (from the 1922 Act) or the effect of lactation (from the 1938 Act) consequent upon the birth of the child.” This is technically an offense rather than a defense. The grounds for this plea, as an alternative to murder, are less stringent than those for diminished responsibility (i.e., there is no need to prove abnormality of mind), nor do they require proof of a mental disorder such as mental illness. It is the policy of the Director of Public Prosecution and the

●● ●● ●●

Hysterical amnesia (denial) Failure of registration owing to over arousal Alcohol Other psychoactive drugs Head injury.

Forty to fifty percent of those charged with homicide claim amnesia for the actual act. Amnesia is considered in detail in Chapter 75.

Drugs and alcohol This is covered in Chapter 22.

SENTENCING The following sentences available under the Mental Health Act l983 are detailed in Table 65.1: ●● ●● ●● ●● ●●

Hospital order—Section 37 Interim hospital order—Section 38 Restriction order—Section 41 Guardianship order—Section 37 Hospital and limitation directions—Section 45A.

In addition, a community rehabilitation order with a condition of psychiatric treatment is available. Each of these is now considered in turn.

Section 37: Hospital order This may be made by the Crown Court or a magistrates’ court, the latter being able to make such an order without conviction under Section 37(3) as long as the court is satisfied that the offender “did the act or made the omission

Sentencing 457

Table 65.1  Forensic treatment orders for mentally abnormal offenders

Grounds

Made by

Medical recommendation

28 days. Renewable at 28-day intervals. Maximum 12 weeks 28 Days. Renewable at 28-day intervals. Maximum 12 weeks 6 months. Renewable for further 6 months and then annually

None

Usually without limit of time. Effect: leave, transfer, or discharge only with consent from Justice Secretary 12 weeks. Renewable at 28-day intervals. Maximum 12 months

As Section 37

Two doctors: one approved under Section 12

Until earliest date of release (EDR) from sentence

Secretary of State, Ministry of Justice

Two doctors: one approved under Section 12

Until date of trial or sentence

Secretary of State, Ministry of Justice

–

Until end of Section 47 or 48. Effect: leave, transfer, or discharge only with consent of Justice Secretary

Once in the first 6 months. Then once in the next 6 months. Thereafter, once a year Once in the first 6 months. Then once in the next 6 months. Thereafter, once a year As for Sections 47 and 48 to which applied

Section 35: Remand to hospital for report

Mental disorder

Magistrates’ or Crown Court

Any doctor

Section 36: Remand to hospital for treatment

Mental disorder. (Not if charged with murder)

Crown Court

Two doctors: one approved under Section 12

Section 37: (Hospital and Guardianship Orders) (Section 37(3): without conviction)

Mental disorder. Convicted or rarely merely accused of an imprisonable offence. Added to Section 37. To protect public from serious harm

Magistrates’ or Crown Court

Two doctors: one approved under Section 12

Crown Court

Oral evidence from one doctor

Mental disorder. To establish if Section 37 order is appropriate Mental disorder

Magistrates’ or Crown Court

Two doctors: one approved under Section 12

Secretary of State, Ministry of Justice

Section: 48 Urgent transfer to hospital of remand prisoner

Mental disorder

Section 49 Restriction direction

Added to Section 47 or Section 48

Section 41: Restriction Order

Section 38: Interim Hospital Order

Section: 47 Transfer of sentenced prisoner to hospital

Maximum duration

Eligibility for appeal to First-tier Tribunal (Mental Health)

None

During second 6 months. Then every year. Mandatory every 3 years

None

458  Criminal proceedings and sentencing

charged”. The individual has to be charged with an imprisonable offense, not just any offense. For this sentence to be made, a hospital bed must be available within 28 days, beginning from the date of the order. The patient, meanwhile, must be kept in a “place of safety” (Section 55(1)). The availability of a bed within 28 days and the evidence of two registered medical practitioners, at least one of whom is approved under Section 12 of the Mental Health Act 1983, are essential before the court can impose such an order.

If conditionally discharged, the usual conditions relate to supervision, residence, and medical treatment. The main advantage of this order for professionals is that it facilitates the long-term management of mentally abnormal serious offenders by specifying the conditions of their discharge (such as place of residence—for example, a supervised hostel, and compliance with psychiatric treatment, including medication) upon threat of recall to the hospital. If recalled to hospital, the individual is subject to a mandatory First-tier Mental Health Tribunal hearing within the first 8 weeks.

Section 38: Interim hospital order If the court is uncertain that a full Section 37 hospital order is appropriate, this can be tested out by making an interim order. It can be made for up to 12 weeks in the first instance and then renewed by the court for periods of up to 28 days at a time to a maximum of 1 year. The patient does not have to attend court in person when the order is renewed. This order is also useful for psychiatrists who are uncertain as to whether the individual’s mental disorder is going to be amenable to psychiatric treatment, as may, for example, occur in cases of personality disorder. If, in the end, a Section 37 hospital order is not considered appropriate, the court can use its discretion to otherwise sentence the individual, including to prison.

Section 41: Restriction order Section 41(1) states that “where a hospital order is made in respect of an offender by the Crown Court, and it appears to the court, having regard to the nature of the offence, the antecedents of the offender and the risk of him or her committing further offences if set at large, that it is necessary for the protection of the public from serious harm so to do, the court may, subject to the provisions of this section, further order the offender shall be subject to special restrictions set out in the section, without limit of time; and the order under this section shall be known as a ‘Restriction Order’.” Though rare, a magistrates court may under section 44 commit a patient to hospital under section 43, pending a crown court making a restriction order, if it is satisfied the criteria for making a hospital order are met. Until the amending Mental Health Act 2007, the order could be made for a fixed period of time as opposed to “without limit of time.” The latter, however, better reflects the therapeutic uncertainty of how quickly an individual will progress. One of the two doctors recommending Section 37 must attend court to give evidence, but it is for the court to decide if a Section 41 restriction order should be imposed. The main restrictions are that the patient can only be absolutely or conditionally discharged, given leave of absence, or transferred to another hospital with the approval of the Secretary of State, Ministry of Justice. A restriction order therefore is an added safeguard, so that the decision to grant leave of absence, transfer or discharge is not left to the responsible medical officer alone.

Section 37: Guardianship order The grounds for a guardianship order are the same as for a Section 37 hospital order. It is used rarely. A proposed guardian must agree to it. If the patient absconds from a place where he is required to live, he or she may be apprehended and returned there. There are, however, no effective sanctions for a patient refusing to cooperate with psychiatric treatment (such as medication), although attendance to see a psychiatrist can be enforced. Many social services departments are reluctant to use this order for mentally abnormal offenders, although, again, it can facilitate the management of a mentally abnormal offender in the community.

Section 45A: Hospital and limitation directions This was brought in by the Crime (Sentences) Act 1997 (see Table 65.2) on October 1, 1997. It is referred to as the “hybrid order,” as it is a prison sentence accompanied by hospital and limitation (equivalent to a restriction order) directions. It is only available to the Crown Court and while originally it was for persons suffering from the legal category of psychopathic disorder alone, since the amending Mental Health Act 2007, Table 65.2  Mentally disordered offenders and the Crime (Sentences) Act 1997 1. Mandatory life sentence for second “serious offence” (attempted murder, manslaughter, rape, and attempted rape) unless exceptional circumstances (which do not include mental disorder alone) 2. Hospital direction and limitation directions (equivalent to restriction order) for mental disorder 3. Transfers to hospital Court and Secretary of State for Justice specify unit Secretary of State for Justice consent required for transfer of restricted patients between hospitals, even if in the same Trust 4. Interim hospital order Maximum duration extended from 6 months to 1 year

Can use before a hospital direction

After sentencing  459

those with any form of mental disorder are eligible to be so detained. Written or oral evidence from two doctors is required and the appropriate medical treatment test applies. The England and Wales Court of Appeal (Criminal Decision) has produced clear definitive guidance in the case of R v. Vowles and others (2015) EWCA Crim 45 about when and in what circumstances it is best to use Section 45A, Section 37 with or without a Section 41 restriction order, Section 38 or a determinate or indeterminate sentence following which the Secretary of State can exercise powers to transfer to hospital under Sections 47 with or without a Section 49 restriction order. COMMUNITY REHABILITATION ORDERS WITH A CONDITION OF PSYCHIATRIC TREATMENT

Community rehabilitation orders can be made in any court for any offense other than one with a fixed penalty (such as murder, which carries a mandatory life prison sentence), but they do require conviction. Supervision by a probation officer is for a specified period between 6 months and 3 years. In cases where there is a condition of psychiatric treatment, the court will require evidence from a doctor approved under Section 12 of the Mental Health Act 1983. Conditions may include that the subject receive treatment as an inpatient or in a nursing home and/or as an outpatient at a specified hospital or place from or under the direction of a named doctor. Outpatient treatment is by far the most common. The court must explain the requirements of the order to the offender and obtain the offender’s consent. If the individual subsequently refuses to cooperate with psychiatric treatment, the doctor can only report this to the supervising probation officer, who may take proceedings on these grounds for breach of the community rehabilitation order. Detention in a hospital under the civil provisions of the Mental Health Act 1983 is an alternative disposal, if appropriate, in such circumstances, but it is not a formal court sentence.

AFTER SENTENCING Transfer direction from prison (Section 47 of the Mental Health Act 1983) This allows the Secretary of State for Justice to order the transfer of a sentenced prisoner following conviction if he or she is suffering from a mental disorder. The patient is subject to consent to treatment provisions. This order can continue until the earliest date of release, whereupon a notional Section 37 hospital order automatically follows without the need for further completion of legally required medical recommendation reports. Frequently a restriction direction is also made under Section 49 that has the same effect as a restriction order under Section 41. Such individuals can be returned to prison to complete a sentence before

their earliest date of release, for example, if they recover from their mental illness or they no longer require inpatient treatment. Individuals most frequently transferred from prison on this order are those who either develop mental illness during a prison sentence or for whom the mental illness was missed at the time of sentence.

Transfer of persons kept in custody during her Majesty’s Pleasure (Section 46 of the Mental Health Act 1983) This relates to persons under the age of 18 years convicted of murder. It also applies to members of the armed forces. It  has the same effect as a hospital order with restrictions without limit of time.

Comparison of legal provisions for mentally disordered offenders in the United Kingdom and the Republic of Ireland This is shown in Table 65.3.

Sentencing: Non–mental health disposals The suggested purposes of sentencing are often mutually incompatible and include punishment (“just deserts”); incapacitation, such as by imprisonment to protect the public during the length of a sentence; deterrence; reparation; and rehabilitation. Sentencing by a State obviates the need for revenge by the victim, and individuals are sent to prison as punishment, not for punishment. In deciding the appropriate sentence, the trial Judge or magistrates should consider the seriousness of the offense; aggravating and mitigating factors; pre-sentence reports from probation officers, psychiatrists, and others; and sentencing guidelines, for example, in England and Wales, the Sentencing Advisory Council and directions from the Lord Chief Justice and the Court of Appeal. Custodial sentences can be determinate of fixed maximum length or indeterminate life sentences. Life sentences may be mandatory, such as for murder, or discretionary, such as for manslaughter down, in seriousness of the offence, to aggravated burglary. The trial judge will also set a minimum term (tariff) to be served, after which the prisoner may appeal to the Parole Board for release on license during which he or she must report to a probation officer. For those subject to determinate sentences, a prisoner may be released on parole after the parole eligibility date (PED) (halfway through a sentence). At the non-parole release date (NPD) (two-thirds of the custodial sentence), the prisoner will be automatically released. This is later than the expected date of release (EDR) (which can vary and depend on a Parole Board’s decision). At the sentence expiry date (SED), the license expires for most sentences. Extended sentences for public protection (EPP) are available for those considered to be dangerous and who have been convicted

460  Criminal proceedings and sentencing

Table 65.3  Comparison of legal provisions for mentally disordered offenders in the UK and the Republic of Ireland

Police Detention of mentally disordered person found in public place Detention of mentally disordered person in private premises

England & Wales

Scotland

Northern Ireland

Republic of Ireland

Mental Health Act 1983

Mental Health (Care and Treatment) (Scotland) Act 2003

Mental Health (Northern Ireland) Order 1986

Mental Health Act 2003

Section 136

Section 297

a130

Section 12

Section 135

Section 293

a129

Section 12

Section 35 Section 36

Criminal Procedure (Scotland) Act 1995 Section 52B–J Section 52K–S

a42 a43

– –

Section 48

Section 52K–S

a54

–

R v. Prichard 1836 Test of decisionmaking capacity Sections 2–3 and sch 1–2 CP(IUP) A1991 McNaughten rules 1843 Sections 1&3 sch 1–2 CP(IUP)A 1991 Section 2 Homicide Act 1957 as amended by Coroners and Justice Act 2004

HMA v. Wilson Stewart v. HMA (1942) Sections 54–57 CP(S) A 1995

R v. Prichard

R v. Prichard

a49 and 50A

Section 4, Criminal Law (Insanity) Act 2006 Doyle v. Wicklow County Council 1974 Section 5, Criminal Law (Insanity) Act 2006 Section 6, Criminal Law (Insanity) Act 2006

Mental Health Act 1983

Criminal Procedures (Scotland) Act 1995

Pretrial

Remand to hospital for treatment Remand to hospital for assessment Transfer of untried prisoner to hospital Trial Criteria for fitness to plead

Procedure relating to a finding of unfitness to plead Criteria for insanity at the time of the offence Procedure relating to a finding of insanity at the time of the offence Criteria for diminished responsibility

Postconviction but presentence Remand to hospital for assessment Remand to hospital for treatment Interim hospital/compulsion order Transfer of untried prisoner to hospital Sentence Compulsory treatment in hospital under MHA Restriction order

Section 35 Section 36

HMA v. Kidd (1960)

CJ(NI)A 1966

Sections 54 and 57

a50 and 50A CJ(NI)O 1996

Galbraith v. HMA (2001) Culpable Homocide

CJ(NI)O 1996

Section 52B–J Section 200 Section 52K–S

Mental Health (Northern Ireland) Order 1986

Mental Health Act 2003

a42

–

a43

–

Section 38 Section 48

Section 53 Section 52B–J Section 52K–S

– a54

– Previous legislation applies

Section 37

Section 57A

a44

–

Section 41

Section 59

a47

– (Continued)

After sentencing  461

Table 65.3 (Continued)  Comparison of legal provisions for mentally disordered offenders in the UK and the Republic of Ireland England & Wales Hybrid order (hospital disposal with prison sentence) Compulsory treatment in community under MHA Guardianship Intervention order for incapable adult Psychiatric probation order

Scotland

Northern Ireland

Republic of Ireland

Section 45A

Section 59A

–

–

–

Section 57A

–

–

Section 37 –

Section 58(1A) Section 60B

a44 –

– –

sch 2 (p5) Powers of Criminal Courts (Sentencing) Act 2000

Section 230

sch 1 (p4) CJ(NI)O 1996

–

Postsentence

Transfer of sentenced prisoners to hospital Restriction direction for transferred prisoner

Section 47

Mental Health (Care and Treatment) (Scotland) Act 2003 Section 136 a53

Section 49

All

of a serious sexual or violent offence, for example extending sentences by 5 to 10 years. Noncustodial sentences include community sentences with a variety of requirements, including for mental health treatment, drug rehabilitation and drug testing, and alcohol treatment, as well as activities, curfews, exclusion zones, and electronic tagging. Other sentencing disposals include an absolute discharge (admonition with a reprimand in Scotland), conditional discharge (no punishment unless the individual re-offends within the specified period), and binding over to keep the “Queen’s (or King’s) Peace.” Ancillary orders may be added to other sentences, such as for compensation, and also include banning orders, such as banning from football matches or from alcohol drinking;

a55

–

Previous legislation applies –

confiscation or forfeiture and restitution orders; parenting orders; and disqualifications from driving. Orders for costs can also be made. Civil injunctions include restraining orders, sexual offender prevention orders (SOPOs), and violent offender orders, which prevent an individual from entering areas or places at specified times and prohibiting him or her from contacting certain people. The Sex Offenders Register (for a fixed period or for life) requires those placed on it to register their address with the police who will most likely manage the case under MAPPA arrangements. For young offenders, both an acceptable behavior contract (ABC) and antisocial behavior order (ASBO) are available.

66 Forensic social work and safeguarding adults at risk of harm IAN H. TREASADEN Forensic social work The National Quality Principles and Best Practice Guidance for the Provision of Social Work Services in Medium Secure Units (2010)

463

463

The Care Act 2014 464 Safeguarding adults at risk of harm 464 Safeguarding Adults Boards 464 References 464

FORENSIC SOCIAL WORK The role of forensic social workers varies with the location of their work, but they are important members of the forensic multidisciplinary team and their knowledge overlaps with that of other professionals on such teams. In this Chapter, reference is made to guidance and legislation for the UK, but the principles apply elsewhere.

The National Quality Principles and Best Practice Guidance for the Provision of Social Work Services in Medium Secure Units (2010)

●●

●●

●●

●●

This guidance illustrates the tasks undertaken by forensic social workers and includes the following: ●● ●●

●●

●●

●● ●●

Establishing contact with users and their families and/ or carers, and establishing who is the nearest relative and ensuring they are fully aware of their rights and responsibilities Establishing contact with the responsible local authority and ensuring it is taking Section 117 responsibility for the user and identifying the named care manager for future liaison and Care Programme Approach (CPA) attendance Contacting the responsible probation service when appropriate and obtaining relevant background information, including a list of previous convictions Liaising where appropriate with the victim liaison officer Undertaking a full social care assessment, including establishing issues relating to housing and finances and completing a social background report as per the target

●●

●●

●●

of the National Health Service (NHS) Commissioning for Quality and Innovation (CQUIN) organization (payment framework) Processing requests for child visits, liaising with the child’s legal guardian or parent and relevant children and family services agency. On occasion, this may involve attending child protection case conferences Attending multidisciplinary team (MDT) meetings, including ward rounds and CPA meetings, where can contribute a social perspective Preparing reports for and attending CPAs, manager’s hearings, and First-tier mental health tribunals Liaising with external agencies for the purpose of identifying community-based services and activities, as appropriate, in accordance with the social inclusion agenda Undertaking home assessments prior to any home visits by the patient Making multi-agency public protection arrangement (MAPPA) notifications as required Liaising with appropriate forensic psychiatry community teams Performing caregiver’s assessments

In addition, forensic social workers often take the lead within multidisciplinary teams on child protection/safeguarding issues and on safeguarding adult issues. They may also have to undertake Appropriate Adult work, for example, if a patient is being formally interviewed by the police. If they are approved mental health practitioners (AMHPs), they may also have duties involving undertaking formal Mental Health Act assessments including regarding the need for detention in hospital. 463

464  Forensic social work and safeguarding adults at risk of harm

The Care Act 2014 The Care Act, which came into force in 2015, places an emphasis on prevention and wellbeing and personalization of care with personal budgets to meet an individual’s social care needs. Starting in 2016, individuals will receive full financial support if they have less than £118,000 of assets, but with a cap on care costs of £72,000. Under this Act, an individual has a right to choose where to receive services and how his or her goals might be met. This is based on the principle that people are best placed to judge their own needs. Local authorities must work with all providers to ensure that individual choices are not reduced by commissioning policies. Caregivers now have equal rights to services as ­service users. Under Section 10, the needs of caregivers must be assessed. If it appears that a patient has needs for care and support, the local authority must undertake an assessment of such needs. As Local Authority Boroughs vary in their service provision, national thresholds for providing care will be established. If an individual is of no fixed abode before detention in a hospital and was transferred from prison, the responsible local authority will now be the one that covers the prison (not the offense location). If a patient who lives in area A is admitted to a medium secure unit in area B, the patient can now opt to be resettled in area B.

SAFEGUARDING ADULTS AT RISK OF HARM The UK Department of Health’s No Secrets guidance1 defines a vulnerable adult as an individual aged 18 years or over who requires safeguarding and protecting because he or she is at risk of harm. In the United Kingdom, increasing awareness of the need to safeguard adults followed the abuse of people with learning disabilities at Winterbourne View Hospital2 and the Francis report3 inquiring into the care provided at Mid-Staffordshire NHS Foundation Trust. Types of abuse of vulnerable adults include: ●● ●● ●● ●● ●●

Physical abuse Sexual abuse Financial or material abuse Neglect and acts of omission Discriminatory abuse, e.g., racism

Frailty is not synonymous with being at risk, but adults at risk of harm can include those with severe mental illness, those with learning disabilities, those who lack capacity, and those with drug and alcohol problems. A health professional may suspect abuse, for instance, when visiting a care home, if an individual there appears to be neglected. Red flags include unexplained injuries, behavioral changes, and changes in personal circumstances due to exploitation by the family or others. The person being abused may find it difficult to report abuse due to feeling frightened. Clearly, such individuals should be interviewed when the alleged abuser is not present and be accompanied during the interview by a trusted person if they wish. It is

important to be clear with the individual what will happen with the information disclosed. The Health and Social Care Information Centre reports4 that there were more than 95,000 referrals for adults safeguarding in 2010–2011 in England. Sixty-two percent were women, and 61% were aged 65 years or older. Forty-nine percent had a physical disability, 23% mental health difficulties, 20% learning disabilities, and 7% substance abuse problems. The UK General Medical Council has highlighted the central role of doctors in protecting patients. The safety of patients must come first. A doctor should make inquiries if a third party reports concerns to him or her. Risk factors for abuse in vulnerable adults include lack of mental capacity, either permanent or temporary, physical dependence on others, low self-esteem, social isolation, previous history of abuse, and negative experiences of disclosing abuse. Staff in hospitals and care homes must be supported by their organizations in raising concerns and be suitably trained and supervised to this end. While in England and Wales, statutory requirements for safeguarding adults are set out in the Department of Health document No Secrets, in Scotland the relevant Act is the Adult Support and Protection (Scotland) Act 2007. The Care Quality Commission has, of course, a central role in monitoring safeguarding practice in England and Wales. Serious case reviews emphasize lack of information sharing between agencies.

Safeguarding Adults Boards These boards were set up by the Care Act 2014 and require local authorities, the NHS, and the police to develop and publish shared plans for safeguarding, and report annually on progress. Local authorities must make, or ask others to make, inquiries when an adult appears to be in need of care and support or may be at risk of abuse and neglect. Safeguarding Adult Reviews (SARs) must take place if there are untoward events, with a view to learning l­essons. An independent advocate for the patient should be appointed if required. Relevant information must be disclosed by agencies.

REFERENCES 1. Department of Health. No Secrets: Guidance on Developing and Implementing Multi-Agency Policies and Procedures to Protect Vulnerable Adults from Abuse. London: Department of Health, 2000. 2. Flynn M. South Gloucestershire Safeguarding Adults Board. Winterbourne View Hospital: A Serious Case Review. Bristol: South Gloucestershire Council, 2012. 3. Francis R. Report of the Mid Staffordshire NHS Foundation Trust Public Enquiry. London: The Stationery Office, 2013. 4. NHS Information Centre, Social Care Team. Abuse of Vulnerable Adults in England 2010–11. Experimental Statistics Final Report. London: Health and Social Care Information Centre, 2012.

67 The parole board CLAIRE BARKLEY Background 465 Role 465 Membership 465 Nature of the work 466 Oral hearings 466

Roles of psychiatrist members 467 468 Report writing for the Parole Board Reference 469 Further reading 469

BACKGROUND

The parole board’s  budget for 2010–2011 was £10.98 ­ illion. The budget for 2011–2012 is £10.5 million. The m costs of the board are largely driven by workload. Members’ fees and travel and subsistence represent nearly 60% of the board’s budget and expenditures. Members are paid a fee for the day when sitting on panels. In common with other public bodies, the board is reviewing nonessential expenditures in an attempt to become more productive, eliminate waste, and find significant savings.

The Parole Board for England and Wales was established in 1968 under the Criminal Justice Act 1967. It became an independent executive nondepartmental public body (NDPB) on July 1, 1996, under the Criminal Justice and Public Order Act 1964. As with other such arm’s-length bodies, or quasi-autonomous non-governmental ­organizations (QUANGOs), it is an independent body that has a role in the process of government but is neither a government department nor part of one. Appointments to the boards of such bodies are known as public appointments. Changes were announced in March 2011 that transferred responsibility for the board’s governmental sponsorship from the Access to Justice group of the Ministry of Justice to Her Majesty’s Court Services. This marks the parole board’s transition from a primarily advisory role to being an increasingly court-like body. Members of the board include judges, psychiatrists, psychologists, probation officers, and independent members. The members are supported by the secretariat based in Grenadier House, London.

ROLE The role of the parole board is to conduct risk assessments on prisoners to ensure that the public is protected. Its mission statement is as follows: The Parole Board is an independent body that works with its criminal justice partners to ­protect the public by risk assessing prisoners to decide whether they can be safely released into the community.

MEMBERSHIP Recruitment is managed by an independent recruitment organization and usually takes place annually, but specific groups such as psychiatrists and independent and judicial members are recruited only in years when there is a need to boost numbers. It is recognized that the proportion of younger members and black and ethnic minority members is insufficient, and the board is making efforts to encourage applications from such under-represented groups. As with other public appointments, the recruitment process is testing and lengthy. It involves a competency-based application form, an assessment center, a group exercise, and an interview. The selection panel is involved in benchmarking and sees only anonymized applications until the assessment center stage. It includes representation from the board itself (including a psychiatrist member on the recruitment panel in the case of psychiatrists) and from the sponsoring body, plus a representative from the Office of the Commissioner for Public Appointment (OCPA). The board provides training, mentoring, and appraisal for its members, and their tenure is currently for 5 years with the option to renew for an additional 5 years subject to satisfactory performance and appraisal. It is not permissible 465

466  The parole board

to continue to work consecutively for longer than 10 years. This ensures renewal and refreshment of the board’s membership, although such is its appeal that some members have returned after a break of a year. This requires a fresh application. Some independent members work virtually full-time on the board, but many psychiatrists combine the work with National Health Service (NHS) or other positions. Psychiatrists are expected to commit 35 days per year at a minimum. The core competencies of board members include good analytical skills, excellent communication skills, sound judgment, a commitment to promoting equality, teamwork skills, basic information technology skills, and some familiarity with the workings of the criminal justice system. Most, but not all, members are forensic psychiatrists.

NATURE OF THE WORK The board has a role in relation to certain categories of ­determinate sentence prisoners. These include discretionary conditional release (DCR) prisoners serving more than 4 years whose offense was committed before April 4, 2005, and prisoners given extended sentences for public protection (EPPs) for offenses committed on or after April 4, 2005. The parole board considers whether it is safe for these ­prisoners to return to the community once they have completed the minimum time they must spend in prison. Many prisoners, such as those serving determinate sentences of more than 12 months sentenced on or after April 2005, are now released automatically. The board considers re-release of those who have been recalled to custody. The board has a role in deciding upon the release of and recommending the transfer to open conditions of indeterminate sentence prisoners. These include lifers (mandatory life, discretionary life, and automatic life sentence prisoners and Her Majesty’s Pleasure detainees) and prisoners given indeterminate sentences for public protection (IPPs). The Criminal Justice Act 2003 introduced IPPs and gave the board the responsibility of deciding whether these prisoners are safe to be released once they reach the end of their sentence. Within 2 years of its introduction, the IPP population had grown to 2,500, giving the board a huge increase in its workload. The IPP sentence has now been discontinued, but many members of this population remain in the system. The Criminal Justice Act also gave the board the role of deciding upon release of extended sentence prisoners. Together with the role in relation to lifers, this now focuses the board’s work on the most serious and dangerous prisoners. The board can direct the release of life-sentenced prisoners or recommend that they be transferred to open conditions. Its role in assessing risk to the public operates once the punishment (or tariff) element of the sentence has been satisfied. Release thereafter depends upon considerations of public safety. Psychiatrists are currently reserved for oral hearings rather than paper panels. They do not generally chair the

oral hearing panels, but any individual members can opt to be considered for additional training and selection to work in other capacities as members. This can include becoming a panel chair for cases that do not require a judicial chair. Others are involved in intensive case management (ICM) before hearings to deal with preliminary matters and ensure that cases are given appropriate time on the day and that directions are made to ensure an efficient process. There are opportunities for all members to participate in the wider functions of the board by assisting with training events, becoming an appraiser or mentor, or sitting on its various committees.

ORAL HEARINGS The oral hearings take place wherever the prisoners are held, which can include prisons, Young Offender Institutions, secure mental health facilities, and secure children’s homes run by local authorities. There are generally two hearings per day, and members can both give their availability to sit well in advance (at least 3 months ahead) and opt to take short-notice vacancies. Hearings are allocated to panels of three members in blocks of a single day to several days at most. Members are usually allocated hearings at locations within a couple of hours’ travel from their bases, and attempts are made to ensure that panels are drawn from a wide pool to avoid the same people sitting too frequently as the same panel of three. The panel has the benefit of reviewing the detailed dossiers sent to members some weeks in advance of the hearing, which allows preparation and detailed examination of reports. Panel members do not meet the prisoner until the hearing (unlike first-tier mental health tribunals, where the medical member will have interviewed the patient beforehand). The panel is conducted in a fashion broadly similar to a first-tier mental health tribunal. A dedicated room with suitable boardroom-style table and chairs and sufficient room for observers and witnesses is usually allocated at the establishment for such hearings. Members take their own notes and hear evidence over the course of several hours. Witnesses are not sworn in but are invited to come forward to a specific witness chair, unless there are very few witnesses, in which case the key people may be invited to sit around the table. The board operates on a civil standard of proof. Witnesses can be many and varied. Usually, but not invariably, they include the prisoner, who is usually legally represented but can opt to represent himself. Key individuals include the offender manager (OM, or home probation officer) and the offender supervisor (OS), who is based at the establishment. There may be a representative of the Secretary of State, a lifer manager, and other professional witnesses such as prison and independent psychologists and/or psychiatrists. Prison officers can give evidence on occasion, and sometimes family members or friends of the prisoner attend as witnesses or simply as observers. The families of

Roles of psychiatrist members  467

victims can give evidence in writing and can also attend in person to read a pre-agreed report concerning the impact of the index offense them. The prisoner is not obliged to hear this and can withdraw while it is read. This situation can be emotionally challenging for all concerned and also requires careful planning and sensitive handling. Video links and teleconferencing may be used if ­w itnesses are unable to attend in person. The board is also testing a hearing center based in Bristol (referred to as a “Parole Hub”) to improve efficiency so that prisoners can be transferred to a central location from several establishments in the vicinity. Once evidence has been heard, the panel will decide in private whether to direct release or to recommend open conditions. If release is directed, then the detailed conditions will be specified in the reasons. The panel will not announce the decision on that day but will work as a team on drafting the written reasons, which are sent to the board for administrative processing and then on to the prisoner, the legal representative, and the establishment within 14 days. This drafting and sharing of the reasons among panel members and with the secretariat is done by secure e-mail using dedicated parole board laptops. Much of the work is therefore completed by panel members away from the hearing itself and can be done on one’s own time.

●● ●●

●●

●● ●●

●● ●●

●●

●●

Particular skills include: ●● ●● ●● ●●

●●

ROLES OF PSYCHIATRIST MEMBERS Whenever the prisoner is known or suspected to have mental health problems, a psychiatrist will be allocated to that panel. If there is an offense that is poorly understood in terms of its brutality, sadistic features, motivation, or underlying mental health factors, there will inevitably be psychiatric evidence to hear. Cases of arson and serious sexual offenses will also usually require a psychiatrist on the panel. In the weeks before the hearing, the panel members will study the dossiers and notify the chair if there appears to be anything amiss, such as missing reports or a need for further information on a particular matter. On the day of the hearing the panel gathers approximately an hour before the official start time to discuss preliminary views, decide upon questions, and ensure that everything is in order. Before that, the psychiatrist will decide and agree as an equal member of the panel how risk-related matters will be covered in the hearing. If the prisoner has specific requirements, for example, is learning disabled, has sensory impairments, is elderly and frail, or is actively mentally unwell, advice about how to question, when to allow breaks, and the general conduct of the hearing are discussed. Psychiatrists bring expertise in the following areas to bear on the proceedings: ●● ●● ●●

Assessing personality. Diagnostic skills (mental health). Interpretation of the reports of others in addition to those of psychiatrists (reports they are usually very familiar with, e.g., psychological reports).

A holistic formulation approach to the offender. General medical training (awareness/knowledge of other illnesses—often useful when prisoners have multiple health issues—can improve the effectiveness of hearing). Knowledge of NHS services and how these function in practice. Knowledge of treatment options. Knowledge of prison life and how it works, often from working many years in such places. Knowledge of secure hospitals and how they work. Knowledge of how mental or physical illness affects offending, risk, and the management of risk. Experience of managing risk, especially in the community. Spotting when a further assessment is required (for a subsequent hearing).

●●

Scientific approach to risk assessment. Interpretation skills. Interview skills, including listening skills. Understanding how risk assessment informs risk ­management in practice. Analytical skills, including readiness to challenge or review opinions in light of emerging information. Experience of managing complex cases over time, for example, multiple pathologies. They bring an understanding of the following:

●● ●●

●●

●● ●●

●●

Limitations of proposed interventions. Limitations of reports, psychological assessments, and psychiatric reports. Multi-factorial basis of behavior development: genetic, cultural, modeling, and so forth. Transference/counter-transference. Multi-disciplinary teamwork, including on the panel and the prison team. How some prisoners may influence their team into unwittingly colluding with them.

Psychologists on the board have expertise in applying a psychological framework to cases from both a theoretical understanding and practical experience in working with all types of offenders. Some cases clearly require a specialist member of a particular discipline, but many panels would benefit from either a psychiatrist or a psychologist. These overlap cases can involve personality issues that the panel needs to u ­nderstand and may involve expert witnesses from both backgrounds. In practice there is little disagreement between the two groups, much professional respect, and an understanding that they bring similar skills to bear, albeit from different backgrounds. The key areas may be the facility in teamwork and the familiarity with actuarial methods

468  The parole board

of risk assessment and structured clinical assessments of risk, such as the Historical, Clinical, Risk Management-20 tool. The panel may be considering whether to direct release. The robustness of any resettlement plan will be crucial, so the panel may wish to hear from the mental health team that will be supervising the individual in the community. This can include written and oral evidence. The panel will usually be broadly familiar with the way in which mental health services are organized, but it often falls to the psychiatrist on the panel to probe the details of the plan to see if it is sufficiently strong. There may be conflicting reports and advice on mental health in the dossier, and the hearing of additional oral ­evidence may be helpful if mental health is itself related to risk to others. The expert witnesses will likely need to be questioned on the points of disagreement during the hearing; therefore, the ability to do so in a thorough and inclusive manner, concentrating on the relevant features, is a key skill for panel members. The participation of a psychiatrist whose prime duty is protecting the public rather than focusing on the prisoner himself can give rise to ethical issues. The prisoner is self-evidently not a patient of the psychiatrist member of the panel. Very occasionally, however, medical matters that require intervention are brought to a panel’s attention. While this is clearly not the remit of the panel, as a registered medical practitioner, the psychiatrist member must consider the principles of Good Medical Practice (GMP) and ensure that appropriate arrangements are made to address the particular issue. An example includes a situation arising from the non-attendance of a particular prisoner at his own hearing. He was reportedly uncooperative with no explanation given and was seen in his cell by one of the panel members. He was found to be acutely mentally ill, and the psychiatrist member determined that he required an urgent psychiatric assessment. This was arranged via the prison authorities, and transfer to the hospital occurred the same day. Another case involved a prisoner with moderately severe renal failure who complained at a hearing that he was not receiving the required diet in spite of medical instructions from his renal specialist that the prison should provide this. The psychiatrist member discussed this with the panel and addressed this with the governor with the assistance of the prisoner’s legal representative, and the matter was rectified. Sitting as a panelist is both enjoyable and demanding. There is clear understanding among members of the seriousness of the work and also the need to have a strong mutually supportive membership. Occasionally, as in clinical practice, decisions are made that result in adverse ­outcomes. These cases can cause significant stress, and the board therefore provides an independent counseling and support service for members. Much of the actual support comes in practice informally from other members. Outcomes where there have been serious further offenses after release are referred to the review committee, which has

representation from the board itself and also independent membership. Media coverage about the work of the board is often based on a few notorious cases and can cause controversy. Individual panel members are not identified in such cases, and any legal challenges about decisions taken by panels are to the board itself and not a matter for the individual members to defend.

REPORT WRITING FOR THE PAROLE BOARD As with all report writing, the report must address the key issues, which in this case are the current residual risks posed to the public and whether these have been identified correctly, addressed, and reduced to a level consistent with whatever is being proposed, such as either a move to open conditions or release. A treating psychiatrist may be required to produce a report on his or her patient going through parole processes, and this is especially the case when a prisoner has been transferred to a secure mental health setting and is therefore located in the health system. These reports are not simply for the purpose of describing the health issues and any clinical progress made but must concentrate upon the relationship (if one exists) between the mental disorder and the identified risk to the public. The extent to which the disorder is manageable in the proposed setting and the specific plans to do so are important aspects of the report. Generalities about follow-up by mental health services are less helpful than specific details of named individuals or teams and what, how, when, and where they will be involved. Treating doctors need to ensure that their duty to their patient does not detract from due consideration of the propensity of their patient to be a risk to others. In cases of lifers, this is referred to as the “life and limb” test.1 An independent report may be commissioned especially for risk assessment for the purpose of the hearing itself. A psychiatrist may be asked to produce such reports, often when the case is especially complex or there are differences of opinion or a need to find a way to break a stalemate in a prisoner’s progress. Getting a clear instruction of what is required is vital. The report is expected to justify its conclusion based on identified evidence, and the psychiatrist should be aware of the roles of the OM, OS, and other key individuals. Psychiatrists who work in prison settings are familiar with the case record (CR; previously known as the IMR or inmate medical record) but may never have seen other prison files. These can be made available to report writers and can significantly enhance the clinician’s background understanding of the situation. These files provide detail of the day-to-day events on the wing and important information concerning custodial behavior, performance in education or work, breaches of security, adjudications and warnings, drug testing results, the prisoner’s status in terms of IEPS (incentives and earned privileges), and sentence planning documentation.

Further reading  469

The  sentence plan makes clear the expectations of the ­prisoner and whether he or she has engaged in a meaningful way with what has been proposed as the steps necessary to demonstrate a reduction in risk posed to the public. The prisoner will usually have been recommended to undertake offending behavior work such as the generic cognitive-based program Thinking Skills, Sex Offender Treatment Programme (SOTP), or Controlling Anger and Learning to Manage (CALM) to address specific identified risk factors of sexual offending and anger management, respectively. The psychiatrist will be able to access the reports from these and to assess the impact on the prisoner. It is expected that core work to reduce risk should take place before a move to open conditions since there is more freedom in open conditions and prisoners often have outside work and home leave, which potentially can subject the public to risk if these matters have not been satisfactorily addressed. When the core work has been completed in closed conditions, it is often appropriate to use the open conditions as an opportunity for thorough testing and reinforcing of relapse prevention strategies. This is especially relevant when the problems include alcohol or drug dependency. Booster work and relapse prevention work are often most useful in open conditions. The report needs to address the current issues of risk to the public and should include only the amount of detailed medical information necessary to support the risk assessment, since the medical aspects are not themselves the focus. Care should be taken in the handling of any thirdparty information, as the prisoner will usually expect to see the report. If there are conflicting views expressed in previous reports and the current expert is being asked to decide which is preferred, it is essential for the psychiatrist preparing any independent report to have the opportunity to meet the prisoner and to see the previous parole decisions and reasons, plus all of the relevant conflicting reports. The psychiatrist will need to arrive at the prison early and be prepared to wait if necessary. This also gives the psychiatrist the opportunity to meet the OM, OS, and other witnesses and to share relevant documentation, such as any update in custodial conduct and changes to the risk assessment prepared by the OM (referred to as OASys2). considerable time has elapsed since the report was If  ­ ­written, then a brief interview with the prisoner to check mental state and any other significant changes, as close to the hearing as ­possible, is advisable.

The psychiatrist will be invited to the hearing if the panel wishes to hear oral evidence and wishes to clarify anything in the report. Where there are differing views, the panel will consider and weigh the evidence. Experts who differ can be asked to discuss the specific points of agreement and difference to assist the hearing in focusing on the points of difference. Well-prepared reports with appropriate headings and/or numbered paragraphs, headers, pagination, and references will greatly assist the panel in its consideration of the reports. The panel members will each have paginated dossiers, but the expert psychiatrist may not have the benefit of everything in front of the panel. The ease with which points in reports can be identified and located for everyone to read can greatly enhance the efficiency of the hearing. Sometimes experts are invited to reserve their evidence until after others have spoken so that they can incorporate their opinions of the evidence into the final views expressed to the panel. Higher-level trainees and consultants who wish to prepare such reports can benefit from the opportunity to observe a panel. This can be arranged by contacting the board, usually with the support of a psychiatrist member contact. Provided that the prison authorities, the chair, and the prisoner agree, such requests can usually be accommodated.

REFERENCE 1. Arnott H, Creighton S. Parole Board Hearings: Law and Practice. 2nd ed. London: Legal Action Group, 2010.

FURTHER READING Douglas KS, Hart SD, Webster CD, Belfrage H, Eaves D. HCR: Assessing Risk for Violence. Version 3, Draft 1.0. Burnaby, Canada: Mental Health, Law, and Policy Institute, Simon Fraser University, 2008. General Medical Council. Good Medical Practice. London: General Medical Council, 2006. The Parole Board for England and Wales. Parole Board Annual Report 2009–2010. London: The Stationery Office, 2010.

68 National Probation Service, National Offender Management Service, and Multi-Agency Public Protection Arrangements IAN H. TREASADEN National probation service National offender management service The offender management approach Risk assessment Offender behavior programs Victim liaison units Multi-Agency Public Protection Arrangements Who is managed by MAPPA?

471 471 472 472 472 472 472 473

NATIONAL PROBATION SERVICE Probation originated in the United States and allowed convicted offenders to have their sentence delayed and possibly reduced if they could prove themselves to have been rehabilitated while under the supervision of a local voluntary worker. Probation spread to the United Kingdom and Europe in the twentieth century. Probation was originally welfare orientated in the United Kingdom until 1993, when the emphasis changed to probation becoming more of a punishment. Since that time, supervision arrangements have been emphasized rather than rehabilitation, and public protection has been paramount. Among the tasks of probation officers are: ●● ●●

●● ●●

Preparing presentence reports Monitoring offenders sentenced to prison and when they are released Advising the Parole Boards Providing direct practical support, counseling, and treatment, often in groups.

Probation officers also participate in the multi-agency youth offending team for those children 10–17 years old. Forensic psychiatrists often need to liaise with probation officers, for example, when proposing sentencing by way of

Risk identification 473 MAPPA third-party disclosure 474 Agencies with a duty to cooperate 475 Mental health professionals 475 Potential risks at MAPPA meetings 475 Risk management authority in Scotland 475 References 475

community rehabilitation orders with a condition of out- or inpatient treatment or in their joint management of those on license. Both psychiatrists and probation officers also participate in Multi-Agency Public Protection Arrangements (MAPPAs). Community rehabilitation orders require the offender’s consent, and it is best practice for psychiatrists to only recommend them subject to the probation officer’s agreement. Making a patient subject to such an order with a condition of inpatient psychiatric treatment does not legally empower hospital staff to prevent that individual from leaving the hospital. Staff can only notify the probation officer, who may then deem that the individual is in breach of the order and return him or her to court for resentencing. In Scotland, there is no probation service, but the local authority employs criminal justice social workers. In Northern Ireland, the probation service places a greater emphasis on rehabilitation.

NATIONAL OFFENDER MANAGEMENT SERVICE Following an unpublished review in 2003 by Lord Carter of correctional services, the National Offender Management Services (NOMS) was set up as an executive agency of the Ministry of Justice, bringing together the H.M. Prison 471

472  National Probation Service, National Offender Management Service, and Multi-Agency Public Protection Arrangements

Service and the National Probation Service for “end to end management” of offenders, i.e. all through an offender’s pathway.

The offender management approach This approach was developed by NOMS in 2005. A single Offender Manager, a probation officer, now manages an offender throughout the offender’s contact with NOMS, either directly in the community or indirectly for those in custody with the assistance of prison officers or another probation ­officer. The role of the Offender Manager involves Assessment, Sentence Planning, Implementation, Review, and Evaluation (ASPIRE). It is based on consistency, commitment, consolidation, and continuity (the four Cs). It adopts four offender management approaches on the basis of risk and need: ●● ●● ●● ●●

Tier 1: Punish Tier 2: Punish and help Tier 3: Punish, help, and change Tier 4: Punish, help, change, and control

The highest level of support and supervision is given for Tiers 3 and 4 on the basis that resources should follow risk. It has been found to be most effective when offenders are actively involved in the process.

Risk assessment The criminal justice agencies use the Offender Assessment System (OASys) and the Risk Matrix 2000 (an actuarial risk tool that differentiates sexual violence, non-sexual violence, and overall violence). Areas covered on OASys include offending history; analysis of offense, especially risk of serious harm; accommodation; education; training and employability; finances and their management; lifestyle and associates; relationships; drug abuse; alcohol abuse; emotional well-being; thinking and behavior; and attitudes. Offenders are assessed using OASys pre-sentence, after interventions and throughout the sentence. OASys is used to establish the risk of serious harm (ROSH) in terms of this being low, medium, high, or very high. It can also identify likely victims, particularly members of the public, prisoners, a known adult, children, staff, and self. It is often used to inform MAPPA. This has been further developed to provide percentage risks of reoffending over 1–2 years, and to develop actuarial risk tools: OASys Violence Predictor (OVP), OASys General Reoffending Predictor (OGP), and an Offender Group Reconviction Scale (OGRS). While of proven predictive value, it is not clear if these tools remain valid for those with mental disorders, particularly mental illness, which itself is a dynamic risk factor that depends on control of the mental disorder.

Offender behavior programs These are used in custody and in the community, and include programs for: ●●

●●

●● ●●

●●

General offending, such as the Thinking Skills Programme (TSP) and Enhanced Thinking Skills (ETS) Aggression and violence, such as anger management programs Domestic violence Sex offending, such as the Sex Offender Treatment Programme (SOTP) and Internet Sex Offender Group Programme. Substance abuse.

These programs have been found, but not always consistently, to reduce offending rates, but not always on a ­sustained basis.

Victim liaison units These units are managed within local probation services (trusts) and are to ensure that the interests of victims of crime are taken into account. They are statutorily based, including under Section 69 of the Court Services Act 2000 and the Domestic Violence, Crime and Victims Act 2004. The latter act extended the duty to victims to be taken into account for restricted mentally disordered offenders as was already the case for offenders otherwise. In the cases of restricted detained forensic psychiatric inpatients, the victim liaison officer is informed by the Ministry of Justice (technically the Secretary of State, Ministry of Justice) and/or the First-tier Tribunal when the patient applies for a mental health tribunal, is conditionally discharged, when the patient is returned to prison, or if he or she absconds from the hospital (e.g., the victim may be told when a restricted patient is conditionally discharged, but not the patient’s exact new location). The Ministry of Justice Mental Health Unit notifies the victim liaison unit when restricted patients are given leave, transferred to another hospital, or conditionally discharged, and also, if they have previously been found unfit to plead, are being sent for trial. The victim liaison unit will not give the victim exact details of the leave that is granted. The Mental Health Act 2007 extended the duty to the victim for unrestricted cases. The victim liaison officer can relay the views of the victim to the hospital managers, who in turn will pass this on to the responsible clinician.

MULTI-AGENCY PUBLIC PROTECTION ARRANGEMENTS Multi-Agency Public Protection Arrangements (MAPPAs) were introduced in 2001 under the Criminal Justice and Court Services Act 2000 and subsequently strengthened by the Criminal Justice Act 2003, as the statutory arrangements for managing sexual and violent offenders. MAPPA’s aim is to help to reduce the re-offending behavior of sexual

Multi-Agency Public Protection Arrangements  473

and violent offenders in order to protect the public, including previous victims, from serious harm. ●● ●●

●●

MAPPA is statutory. MAPPA is made up of the responsible authority (police, probation, or prison) and duty to cooperate agencies (health, social services (children and adults) youth offending teams, employment services, housing, ­electronic monitoring services). The most up-to-date MAPPA guidance must be ­followed (or reasons provided for following older ­guidance) (the latest update of the guidance was at the time of writing, in 2016).

The duty to cooperate is not straightforward and does not authorize mental health professionals to report to other agencies personal and clinical information about patients that is irrelevant to risk management. Mental health professionals, however, cannot simply cite patient confidentiality to refuse cooperation. Also, it is the mental health trust that has a duty to cooperate.

●●

●●

●●

CATEGORY 3: OTHER DANGEROUS OFFENDERS

These offenders have committed an offense that indicates the capacity to cause serious harm to the public that requires a multi-agency approach at level 2 or 3 to manage the risks. To register a Category 3 offender, the responsible authority must: ●●

●●

Who is managed by MAPPA? MAPPA offenders are managed at one of three levels according to the extent of agency involvement needed and the number of different agencies involved. The great majority are managed at Level 1 (ordinary agency management). This involves the sharing of information but does not require multi-agency meetings. CATEGORY 1: REGISTERED SEXUAL OFFENDERS

These offenders must notify the police of their name, address, and personal details (per the Sexual Offenses Act 2003). CATEGORY 2: VIOLENT OFFENDERS (AND OTHER SEXUAL OFFENDERS)

This category includes those who have been sentenced to 12  months or more in custody and are now living in the community subject to probation supervision or made subject to an eligible mental health order by the court. This includes individuals detained in a hospital under: ●● ●● ●● ●●

hospital order (Section 37) hospital order with restrictions (Sections 37 and 41) hospital direction (Section 45a) sentenced prisoner transferred to hospital (Sections 47 and 49).

Mental health will lead where the person may have: ●●

●●

committed a relevant violent or sexual offense, and be liable to detention under Part III (Patients concerned in criminal proceedings or under sentence) of the MHA 1983, or may be receiving care under a community treatment order.

who were directed to the hospital under Section 47 or 49 but whose prison release date has passed (“Notional Section 37s”). subject to Section 37 or 41 who are subject to conditional discharge. Probation will lead for individuals: ●● Who were directed by the sentencing court to be admitted to the hospital under Section 45A ●● Who were directed to the hospital by the Ministry of Justice under Sections 47 or 49.

establish that the person has committed an offense that indicates that he or she is capable of causing serious harm to the public, and reasonably consider that the offender may cause serious harm to the public that requires a multi-agency approach at Level 2 or 3 to manage the risks.

LEVEL 1: ORDINARY AGENCY MANAGEMENT

This level is used in cases in which the risks posed by the offender can be managed by the agency responsible for supervision/case management of the offender. This does not mean that other agencies will not be involved, only that it is not necessary to actively manage the offender through multi-agency meetings. LEVEL 2: MULTI-AGENCY PUBLIC PROTECTION MEETING

Individuals are managed at level 2 if an active multi-agency approach is required. LEVEL 3: MULTI-AGENCY PUBLIC PROTECTION MEETING

This level is used: ●●

●●

●●

where it is determined that the management issues require active conferencing, and where it is determined that the management issues require senior representation in order to be able to commit significant resources at short notice, and/or where there are significant media issues and/or public interest in the case.

Risk identification Serious harm is defined for the purposes of MAPPA as “An event, which is life threatening and/traumatic, from which recovery, whether physical of psychological, can be expected to be difficult or impossible.”

474  National Probation Service, National Offender Management Service, and Multi-Agency Public Protection Arrangements

“Risk of serious harm is the likelihood of this event happening. It should be recognized that the risk of serious harm is a dynamic concept and should be kept under regular review” When making decisions about risk management, MAPPA must:

●● ●● ●● ●●

●● ●● ●● ●● ●●

●● ●●

●● ●●

●●

ensure decisions are grounded in evidence use reliable risk assessment tools collect, verify, and thoroughly evaluate information record and account for decision-making communicate with relevant others and seek relevant missing information work within MAPPA policies and procedures take all reasonable steps to minimize the risk of further offending match risk management interventions to risk factors maintain contact with offenders at a level commensurate with the level of risk of harm, and respond to escalating risk, deteriorating behavior, and noncompliance.

This will ensure that decisions can be evidenced and defended, if necessary. The MAPPA document set includes: ●● ●● ●● ●● ●● ●● ●● ●●

●●

●● ●● ●● ●● ●●

●●

●●

MAPPA A: Referral to a Level 2 or 3 meeting MAPPA B: Minutes of Level 2 or 3 MAPP meeting MAPPA C: MAPP Meeting Agenda MAPPA D: Confidentiality and Diversity Statement MAPPA E: MAPPA Level 2 or 3 Attendance MAPPA F: Offender Information Sharing Report MAPPA G: MAPPA Level 2 or 3 Transfer MAPPA H: Initial Notification of MAPPA Offender (YOT) MAPPA I: Initial Notification of MAPPA Offender Patient (Mental Health) MAPPA J: Notification to Jobcentre Plus MAPPA K: Audit of Level 2 and 3 MAPPA Cases MAPPA L: Audit of Level 2 and 3 MAPP Meetings MAPPA M: Minutes Executive Summary MAPPA N: Notification of MAPPA Serious Further Offence MAPPA O: MAPPA Serious Case Review: Report Template MAPPA P: Notification to Housing Benefit Single Point of Contact (SPOC)

The MAPPA document set also clarifies issues such as the following: ●● ●● ●● ●●

Timings of meetings Minute structures and contents Requirements for executive summaries or minutes Violence and sex offender register (ViSOR), a dangerous persons database recording requirements (name, date of

birth, address, National Insurance number, bank, and passport details) Arrangements for contacting national MAPPA team Risk management plan format Review dates Information about confidentiality and storage of records

Violence and sex offender register (ViSOR) recording is required for those who must register with the police under the Sex Offenders Act 2003, those who have been sentenced to more than 12 months in prison for violent offenses, and those considered at risk of serious offending. In 2010, the Supreme Court of the United Kingdom ruled it was incompatible with human rights legislation for someone to have to register indefinitely. As a result, an appeal process is available to the local police force.

MAPPA third-party disclosure Third-party disclosure should be proportionate, lawful, accurate, necessary, and supportive of risk reduction and rehabilitation. Third-party disclosure is governed by the following legislation: ●●

●● ●● ●● ●●

The common law power for the police to share information for policing purposes (for the prevention and detection of crime) Data Protection Act (1998) Human Rights Act (1998) Children Acts (1989) and (2004) Criminal Justice and Immigration Act (2008)

Third-party disclosure must be considered at all MAPPA meetings: ●● ●●

●●

when grooming behaviors may take place if there is a condition in a Sex Offender Prevention Order (SOPO) or in a license excluding offenders from a specific location and/or having contact with named persons where others (including other service users) may be at risk

Third-party disclosure should be considered: ●● ●●

●●

●●

where there is a need to protect past or potential victims where the public may be at risk through the offender’s employment, training, or education for schools and colleges if grooming behaviors need to be prevented Where a person may be in a position to actively assist in the risk management of an offender

When third-party disclosure is being considered, it is important to: ●●

Make an informed decision (via the Level 2 and 3 MAPP meeting) as to what level of disclosure is required

References 475

●●

●● ●●

Consider the details of the key triggers for offending behavior and the requirements for successful risk management Consider alternatives to disclosure Consider mechanisms and procedures for support for both victims and offenders.

The reason for the decision must be recorded in the MAPP meeting minutes. The record should include exactly what information is to be disclosed, to whom, by whom, and within what time frame.

Agencies with a duty to cooperate Duty to cooperate agencies include the following: ●●

●●

●● ●●

●● ●●

Local authority: youth offending teams, social care services (children and adults), housing authority, education Primary care trusts, other NHS trusts and NHS Commissioning Board Department for Work and Pensions (Jobcentre Plus) Registered social landlords who accommodate MAPPA offenders UK Borders Agency Electronic monitoring providers.

MAPPA depends upon agencies committing to prioritizing required actions, but the “duty to cooperate”: ●●

●●

●●

does not require an agency to do anything other than what it is required to do by statute. requires the duty-to-cooperate agencies to cooperate only insofar as this is compatible with their existing statutory responsibilities requires respect for different roles and boundaries; and influencing, not command and control of one agency by another, to ideally obtain a consensus for a way forward.

Duty to cooperate agencies should provide guidance for their staff on information sharing with MAPPA and should contribute to MAPPA Serious Case Reviews (SCRs).

Mental health professionals These professionals should: ●●

●● ●● ●● ●●

establish policies and procedures for mental health trusts concerning transferred prisoners and probation liaison establish escalation processes within the trust consider if individual patients are MAPPA eligible notify such cases by MAPPA referral keep the ViSOR dangerous persons database up to date.

Potential risks at MAPPA meetings Risks include the following: ●● ●●

●●

The power of initial impressions Allowing assessment of impact to overwhelm judgment of likelihood Strong opinions dominating the discussion and attempting through force of argument rather than ­evidence to push for a particular course of action

One London forensic psychiatry team’s experience1 of interacting with MAPPA has pointed out the crucial role and contribution of mental health teams, the additional burden in the absence of increased resources, ambiguity about “duty to cooperate,” conflict between criminal justice system members’ views about risk and those with a forensic mental health prospective, and lack of ­cooperation of nonpatient offenders with mental health teams. The Royal College of Psychiatrists2 has produced useful guidance for psychiatrists in England and Wales for working with MAPPA.

RISK MANAGEMENT AUTHORITY IN SCOTLAND This risk management authority was set up in 2003 for the assessment and management of serious violent and sexual offenders at risk to the public. It has a particular remit for the small number of offenders sentenced to lifelong restrictions, not necessarily just those with mental disorder, and monitors the risk management plans of such offenders. The risk management authority is involved in developing policies, research, setting standards, and accrediting practitioners, who can include psychiatrists, psychologists, and social workers. If a psychiatrist takes on the role of accredited practitioner, his assessments are solely orientated to the protection of the public. This has been considered to potentially ethically conflict with the normal role of the psychiatrist.

REFERENCES 1. Young S, Gudjonsson GH, Needham-Bennett H. Multi-agency public protection panels for dangerous offenders: One London forensic team’s experience. Journal of Forensic Psychiatry and Psychology. 2005; 16(2): 213–327. 2. Taylor R, Yakely J. Working with MAPPA: Guidance for Psychiatrists in England and Wales. Royal College of Psychiatrists’ Faculty of Forensic Psychiatry: Faculty Report FR/FP/O1. London. 2013.

69 Fitness to plead TIM EXWORTHY AND PENELOPE BROWN Introduction 477 Historical background 477 478 Legal criteria Effective participation 478 Procedure 478 Trial of the facts 478 Disposals 479

Numbers 479 Fitness to plead in other jurisdictions 479 Scotland 479 United States 479 Jersey 480 Reformulating fitness to plead 480 References 480

INTRODUCTION

defence at a time when his mind is in that situation as not to appear capable of so doing” (proceedings in the case of John Frith, 1790). In 1836, Pritchard, who was deaf and dumb, was charged with bestiality. He was able to read and write and indicated that he was not guilty, but witnesses gave evidence that he had no understanding of the trial proceedings. In his summary, the judge told the jury:

According to natural justice, an accused person has a right to be present at his trial not only in body but also in mind. Fitness to plead is a legal construct and denotes whether the accused is able to enter a plea to a criminal charge and to take part in his trial. It is concerned with the defendant’s mental condition at the time of the court proceedings and not at the time of the alleged offense. This chapter primarily considers the law and procedure in England and Wales, where being unfit to plead is sometimes referred to as being “under disability” in relation to trial.

HISTORICAL BACKGROUND In medieval times the importance of entering a plea was connected to forfeiture laws. A trial could not proceed unless the defendant entered a plea, and, if found guilty, the man’s property was seized by the Crown. It was necessary to distinguish between those unwilling to enter a plea (mute of malice) and those unable to plead through natural causes (mute by visitation of God). This was determined by the procedure of peine forte et dure (meaning “strong and hard punishment”) and involved placing increasing weights upon the chest of the accused. Unless the accused entered a plea, death would ensue. Not until the second half of the eighteenth century was there any attempt to inquire into the mental condition of an accused who did not enter a plea.1 In 1790, in one of the earliest cases in which this was considered, the Lord Chief Justice remarked, “No man shall be called upon to make his

The question is, whether the prisoner has sufficient understanding to comprehend the nature of this trial, so as to make a proper defence to the charge.… There are three points to be inquired into: First, whether the prisoner is mute of malice or not; secondly whether he can plead to the indictment or not; thirdly, whether he is of sufficient intellect to comprehend the course of proceedings on the trial, so as to make a proper defence—to know that he might challenge any of you to whom he may object—and to comprehend the details of the evidence, which in a case of this nature might constitute a minute investigation.…It is not enough, that he may ­ have a general capacity of communicating on ordinary matters (R v. Pritchard [1836]). This assessment of cognitive abilities became the test for fitness to plead, commonly known as the “Pritchard ­criteria,” and comprises both fitness to plead and fitness to stand trial. The judge did not consider the defendant’s ability to instruct counsel.2 This issue was raised in R v. Davies (1853) and is now incorporated into the Pritchard test. 477

478  Fitness to plead

BOX 69.1: The pritchard criteria ●●

●●

●● ●● ●● ●●

Does the person understand the nature of the charge? Does he understand the meaning of entering a plea? Does he understand the consequence of the plea? Is he able to instruct a solicitor? Can he understand the details of the evidence? Can he follow the proceedings of the trial so as to make a proper defense, for instance to challenge a juror?

LEGAL CRITERIA The criteria for determining fitness to plead, derived from nineteenth century case law rather than statute, are summarized in Box  69.1.3 Failure to fulfill any of the criteria renders the accused unfit to plead. However, to be unfit it is neither sufficient nor necessary to be suffering from mental disorder. This was highlighted in R v. Robertson. The defendant had a clear understanding of the legal procedure but suffered from delusions. The Court of Appeal held that being incapable of acting in one’s best interests or making proper decisions was not sufficient to warrant a finding of disability. Amnesia for the offense and short-term memory deficits have also been found to be insufficient to render someone unfit to plead (see R v. Podola [1960] and R v. M, K & H [2001]). The current criteria can be criticized for failing to adequately protect the mentally unwell from unfair trial and punishment. In R v. Murray the accused, contrary to legal advice, chose to plead guilty to murder rather than manslaughter. The consensus among the experts was that she was fit to plead in the legal sense, but that “psychiatric understanding and the law in relation to mentally ill defendants do not always sit together comfortably,” and the judge welcomed reform of the law.

EFFECTIVE PARTICIPATION The concept of “effective participation” in criminal trials has developed from Article 6, European Convention on Human Rights (ECHR), which “guarantees the right of an accused to participate effectively in a criminal trial” (Stanford v. UK [1994]). The extent of the concept in relation to fitness to plead was explored in the European cases of T and V v. United Kingdom, which concerned the murder trials of two boys. They argued that they were denied a fair trial because, through a combination of emotional immaturity and feeling traumatized and intimidated, they had limited ability to instruct their lawyers, to give evidence, or to understand and follow proceedings. The European Court of Human Rights held that there had been a violation of Article 6.

“Effective participation” has been held to mean “that the accused has a broad understanding of the nature of the  trial process and of what is at stake for him or her, including the significance of any penalty which may be imposed… (and)  should be able to understand the general thrust of what is said in court” (SC v. UK [2005]). In  England and Wales a Practice Direction sets out steps to improve the understanding of and participation in legal proceedings of “vulnerable defendants” (those with a mental disorder or significant impairment of intelligence and social functioning).4

PROCEDURE In contrast to the criteria, the procedure to deal with “unfit” defendants is outlined in the statutes. Under the Criminal Procedure (Insanity) Act 1964, a finding of being under disability resulted in mandatory and indefinite committal to a psychiatric hospital, irrespective of the seriousness of the offense and without testing the prosecution’s evidence. The serious limitations of this outcome were exemplified by the case of Glenn Pearson, who had to be admitted to the ­hospital after originally being charged with stealing five pounds and three light bulbs. He did not suffer from a mental disorder but was said to be “profoundly deaf and of limited intelligence.”5 The Criminal Procedure (Insanity and Unfitness to Plead) Act 1991 made two changes. A trial of the facts required the jury to be satisfied that the accused “did the act or made the omission charged against him as the offence.” Second, the range of disposals was increased to allow the judge greater discretion.

Trial of the facts If the defendant is found fit to plead, a plea is entered and legal proceedings continue in the usual manner. For those unfit to plead, the proceedings move to a “trial of the facts.” It is not a trial in the conventional sense but has been described as striking “a fair balance between the need to protect a defendant who has, in fact, done nothing wrong and is unfit to plead at his trial and the need to protect the public from a defendant who has committed an injurious act which would constitute a crime if done with the requisite mens rea” (R v. Antoine [2000]). If the jury determines that the accused did not commit the act, then he is acquitted. However, if the jury is satisfied beyond reasonable doubt that the accused did commit the act, a “finding” to that effect (which is not a conviction) is recorded and the court considers disposal. The issue under contention is limited to the physical elements of the act (actus reus) and does not include the mental element (mens rea). This means that self-defense cannot be raised, for example, because it requires consideration of the defendant’s state of mind and intention. The House of Lords held in Antoine that mens rea was not relevant to the trial of the facts. This decision overruled

Fitness to plead in other jurisdictions  479

a Court of Appeal judgment (Egan [1998]) that the prosecution had “to prove all the ingredients of the offence” at the trial of the facts.

Disposals The 1991 Act introduced four disposal options: absolute discharge, guardianship, a supervision and treatment order (subsequently shortened to a “supervision order”), or a hospital order (with or without a restriction order). The Domestic Violence, Crime and Victims (DVCV) Act (2004) later removed guardianship as an option. An absolute ­discharge is suitable when the alleged offense was trivial and treatment or supervision in the community is not indicated. A supervision order is unique to the 1991 Act. It requires the person to cooperate with supervision and with treatment for up to 2 years. The order is based on two medical recommendations that the medical condition of the defendant is “such as requires and may be susceptible to treatment but is not as to warrant the making of an admission order….” (Home Office Circular 93/91). Treatment can take place in an inpatient setting as an informal patient or as an outpatient. The person’s consent is not required for the order, but cooperation has to be likely because there is no sanction for a breach. An admission order permits the court to admit the accused to the hospital, with the option of adding a restriction order employing the criteria of section 41 of the Mental Health Act. The court requires medical evidence to ­determine fitness to plead, but this might not address the criteria for detention in a hospital. Now the 2004 Act no longer obliges the court to pass an admission order if the detention criteria are not met, for example, if the mental disorder is not severe enough. This is necessary to avoid violation of Article 5, ECHR (the right to liberty). European jurisprudence has established that deprivation of liberty will be lawful only if the individual suffers from “a true mental disorder…of a kind or nature warranting compulsory confinement” (Winterwerp v. Netherlands [1979]).

NUMBERS Up to 70% of the prison population has a diagnosable ­mental disorder, and approximately 4% suffer from serious psychotic illnesses,6 yet remarkably few defendants are found unfit to plead. In the late nineteenth century, findings of unfitness to plead became increasingly frequent, when 100–165 per 100,000 prisoners in non-murder trials were found unfit.7 However, in the twentieth century, there was a marked decline, with 10–20 cases per year from a prison population of around 40,000 in the 1980s.8 Typically they were charged with serious offenses such as murder or rape. The mandatory disposal for those found unfit provided a disincentive to raise the issue. The flexibility in disposal options introduced in 1991 led to an upturn in findings of unfitness, with between 70 and

80 cases per year at the turn of the twenty-first century.9 The  majority were given admission orders (approximately 65%, of which two-thirds had restriction orders attached), with the remaining usually receiving supervision orders. The numbers continue to increase, but in a prison population of more than 85,000 in the United Kingdom, they remain surprisingly low.

FITNESS TO PLEAD IN OTHER JURISDICTIONS In most European countries where the legal system is inquisitorial, the concept of being “unfit to plead” does not exist. Only after the facts of the case have been established is the mental state of the accused considered, at which point he or she may be found “irresponsible” and exempt from punishment. However, in English-speaking countries in the developed world, where the adversarial model persists, ­fitness to plead is considered before trial.

Scotland In Scotland, being unfit to plead is referred to as “insanity in bar of trial” and occurs more frequently than in English courts because it is available to the High and Sheriff Courts in both indictable and summary offenses, whereas in England it is only available in the Crown Court. The criteria for determining unfitness are similar to the Pritchard criteria but are laid out in statute (Criminal Procedure [Scotland] Act 1995) and include “any other factor which the court considers relevant.” If a defendant is found unfit to plead in Scotland, he or she also undergoes a trial of facts, but mens rea is considered in this trial.

United States In the early twentieth century, the US courts diverged from the English concept of fitness to plead as a purely cognitive ability, and considered mental capacity (competence) for properly appreciating one’s situation and rationally assisting in one’s defense. The test for adjudicative competence, the American equivalent to the Pritchard criteria, derives from the case of Dusky v. United States (1960). The Supreme Court found that to be competent to stand trial, a defendant should have “…sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding…and a rational as well as factual understanding of the proceedings against him.” By the year 2000 the frequency of competency evaluations was 50,000–60,000 per year. The Due Process Clause of the Fourteenth Amendment requires all trial courts to consider competency to stand trial whenever there is a “bona fide doubt” about the defendant’s adjudicative capacity.10 This has led to evaluations of large numbers of competent defendants in order to avoid the possibility of prosecuting an incompetent person. Screening tests have been d ­ eveloped in the United States for this purpose.

480  Fitness to plead

Jersey Jersey is a British Crown Dependency in the Channel Islands but with its own legal system independent of England and Wales. The Criminal Justice (Insane Persons) Law 1964 codifies the disposal options of defendants found “insane as to be unfit to plead to the accusation or unable to understand the nature of the trial,” yet it was not until the twenty-first century that the legal test for unfitness to plead was first considered in Jersey case law. In O’Driscoll (2003) there were concerns that the defendant was not fit to plead. The court was reluctant to adopt the nineteenthcentury Pritchard criteria and believed that English law did not adequately support a defendant’s effective participation in the trial. Instead the court adopted a new approach to determining fitness to plead, more akin to the US standard and the civil test for mental capacity. To be fit to plead, the defendant must be able to: 1. Understand the nature of the proceedings so as to instruct his lawyer and to make a proper defense. 2. Understand the substance of the evidence. 3. Give evidence on his own behalf. 4. Make rational decisions in relation to his participation in the proceedings (including whether to plead guilty), which reflect true and informed choices on his part.11 In the first case to test the new law in Jersey (Harding [2009]), a defendant with a personality disorder was found unfit to plead as changes in her emotional state impaired her ability to make rational decisions. It is unlikely that she would have been unfit to plead according to Pritchard criteria.

REFORMULATING FITNESS TO PLEAD In 1975 the Butler Committee reviewed the treatment of mentally disordered offenders in the criminal justice ­system.12 The committee identified shortcomings in the law relating to fitness to plead, some of which led to the procedural changes in the 1991 Act, but no changes were made to the Pritchard criteria. Criticism of how fitness to plead is determined has persisted from lawyers and psychiatrists alike.13 Rogers and colleagues found a consensus among ­barristers that the Pritchard criteria do not adequately reflect the core capacities underlying fitness to plead and that consideration should be given to the disparity between civil and criminal tests for capacity.14 According to the Mental Capacity Act 2005, to have mental capacity one must be able to retain information as well as use and weigh it to come to a decision. Delusional disorders, such as schizophrenia, have been shown to lead to high rates of incapacity for treatment decisions,15 yet the rates of unfitness to plead in mentally disordered defendants is comparatively low. It is possible that if the test for fitness to plead were as stringent as the test for mental capacity, cases such as Robertson and Murray would have been found unfit.

In 2010 the Law Commission sought to address the shortfalls in the way fitness to plead is assessed.16 The commission found that the Pritchard criteria placed a disproportionate emphasis on intellectual abilities and ­ recommended changing the test for fitness to plead to ­follow the Mental Capacity Act’s test for mental capacity. It also suggested routine screening and the use of structured assessment tools to determine whether an individual is fit to plead. The Law Commission also suggested that mens rea be considered in the trial of the facts. Whether these changes will be implemented, and whether they lead to increasing numbers of findings of unfitness and better protection of mentally disordered offenders, remain to be seen. For the time being, despite considerable advances in psychiatric thinking, in England and Wales the test for determining fitness to plead remains the same as it did in Victorian times.

REFERENCES 1. Walker N. Crime and Insanity in England, Vol. 1: The Historical Perspective. Edinburgh: Edinburgh University Press, 1968: 221–23. 2. Grubin D. What constitutes fitness to plead? Criminal Law Review. 1993; Oct: 748–58. 3. James DV, Duffield G, Blizard R, Hamilton LW. Fitness to plead. A prospective study of the interrelationships between expert opinion, legal c­ riteria and specific symptomatology. Psychological Medicine. 2001; 31: 139–50. 4. Practice Direction: Criminal proceedings: Further Directions [2007] 1 WLR 1790. 5. Emmins CJ. Unfitness to plead: Thoughts prompted by Glen Pearson’s case. Criminal Law Review. 1986; Sept: 604–18. 6. Fazel S, Danesh J. Serious mental disorder in 23000 prisoners: A systematic review of 62 surveys. Lancet. 2002; 359: 545–50. 7. Grubin, D. Fitness to Plead in England and Wales. Hove: Psychology Press, 1996. 8. MacKay RD. The decline of disability in relation to the trial. Criminal Law Review. 1991; Feb: 87–97. 9. Mackay RD, Mitchell BJ, Howe L. A continued upturn in unfitness to plead- more disability in relation to the trial under the 1991 Act. Criminal Law Review. 2007; Jul: 530–45. 10. Mossman D, Noffsinger SG, Ash P, et al. AAPL Practice Guideline for the Forensic Psychiatric Evaluation of Competence to Stand Trial. Journal of the American Academy of Psychiatry and Law. 2007; 35, Supplement 4: S3–S72. 11. Mackay R. The insanity defence—Recent developments in Jersey and Guernsey. Jersey Law Review. 2003: 7(2). 12. Home Office and DHSS. Report of the Committee on Mentally Abnormal Offenders (The Butler Report), Cmnd. 6244. London: HMSO, 1975.

References 481

13. Scott-Moncrieff L, Vassall-Adams G. Capacity and unfitness to plead: A yawning gap. Counsel. 2006; Oct: 2–3. 14. Rogers T, Blackwood N, Farnham F, et al. Reformulating fitness to plead: A qualitative study. Journal of Forensic Psychiatry and Psychology. 2009; 20: 815–34.

15. Owen G, Richardson G, David AS, et al. Mental capacity to make decisions on treatment in people admitted to psychiatric hospitals: Cross sectional study. British Medical Journal. 2008; 337: 40–42. 16. Law Commission. Unfitness to Plead: A Consultation Paper. CP No. 197. Norwich: The Stationery Office, 2010.

70 Not guilty by reason of insanity (McNaughten rules) RAFIQ MEMON Introduction 483 The McNaughten rules 484 484 Interpretation of the four elements of the rules 484 Defect of reason 484 Disease of the mind

INTRODUCTION In 1843 Daniel McNaughten was charged with the murder of Edward Drummond, the private secretary to Sir Robert Peel, the Prime Minister. At the start of his trial, on being told to enter a plea, he said, “I was driven to desperation by persecution.”1 The Crown outlined the background to what became a seminal case. McNaughten was a wood-turner from Glasgow. In July 1842 he went to a gun shop, where he bought the pistols that would be used in the homicide the following January. For many days prior to the offense, McNaughten had been observed loitering around the public offices and houses in Whitehall. He was noted to observe the people going in and out, and he had been spoken to by soldiers and the police. On January 20, 1843, Mr. Drummond was walking along when McNaughten approached from behind and shot him with a pistol. He withdrew a second pistol when a policeman who had been watching from across the street ran over and seized him. A struggle ensued and a second shot was fired. This hit the pavement resulting in no injury. McNaughten made the following signed statement: The Tories in my native city have compelled me to do this. They follow and persecute me wherever I go, and have entirely destroyed my peace of mind. They followed me to France, into Scotland, and all over England; in fact, they follow me wherever I go. I cannot get no rest for them night or day. I cannot sleep at night in consequence of the course they pursue towards me. I believe they have driven me into

485 Not knowing the nature and quality of the act 485 Not knowing he was doing what was wrong Conclusion 486 References 486

a c­ onsumption. I am sure I shall never be the man I formerly was. I used to have good health and strength, but I have not now. They have accused me of crimes of which I am not guilty; they do everything in their power to harass and ­persecute me; in fact, they wish to murder me. It can be proved by evidence. That’s all I have to say. This statement is a clear account in McNaughten’s own words of his profoundly deluded mental state in the period leading up to the offense. Several witnesses, including doctors, corroborated McNaughten’s story of persecution that he falsely believed to be real. He originally thought Catholic priests and Jesuits were the persecutors, then “the Tories” and police also. The geography of persecution extended to wherever he went: Glasgow, Edinburgh, Liverpool, London, and Boulogne. His mind and body could not escape them. He told the doctors that when he saw his victim, years of suffering rose up, and he believed that he could obtain his long-sought peace of mind by killing him. He said the man he fired at was one of the “crew” that had been following him. The jury found McNaughten not guilty on the ground of insanity.2 He was returned from court back to prison custody. On March 13, 1843, he was admitted to Bethlehem Hospital. Less than 2 months had passed since the shooting of Mr. Drummond. In 1864, he was transferred to the newly built Broadmoor Asylum for the Criminally Insane. He died there the following year aged 52 from apparent heart failure. 483

484  Not guilty by reason of insanity (McNaughten rules)

THE McNAUGHTEN RULES The case and the ensuing controversy provoked debate in the House of Lords, and questions were put to them in abstract form to determine the wording of the insanity defense and how it should be arrived at. In what later became known as the McNaughten Rules, the House of Lords stated: The jury ought to be told in all cases that every man is to be presumed to be sane, and to ­possess a sufficient degree of reason to be responsible for his crimes, until the contrary be proved to their satisfaction; and that, to establish a defence on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing, or, if he did know it, that he did not know he was doing what was wrong.3 To this day this ruling stands as the law of England and Wales. Variations of it have been imported into other English-speaking jurisdictions around the world. The rules are made up of four elements: 1. 2. 3. 4.

Defect of reason. Disease of the mind. Not knowing the nature and quality of the act. Not knowing that what one is doing is wrong.

Subsequent case law determined the meanings attached to these four elements. If these were a series of hurdles, then for the defense to succeed, the defendant must cross the first two before crossing the third and/or fourth. This metaphor of hurdles is referred to again in this chapter’s conclusion. For now, however, we move to a consideration of some cases.

INTERPRETATION OF THE FOUR ELEMENTS OF THE RULES Defect of reason The courts have given a narrow interpretation to the term defect of reason. In R v. Kemp (1957),4 Devlin stated, “A defect of reason is by itself normally enough to make the act irrational and therefore to deny responsibility in law, but it was not intended by the rule that it should apply to defects of reason which were caused simply by brutish stupidity without rational power.” Further, neither confusion nor absent-mindedness amounts to a “defect of reason,” as determined in R v. Clarke (1972)5 at the Court of Appeal. In that case, a woman suffered from depression, which resulted in her becoming forgetful, according to the medical evidence of her own general practitioner and a consultant psychiatrist. She went

shopping at a supermarket and before proceeding to the checkout ­transferred some goods from the basket into her own bag. She was charged with theft and claimed she was absent-minded as a result of depression and had no intention of stealing. At the Court of Appeal, Ackner stated that this was a case of “a woman who retained her ordinary powers of reason but who was momentarily absent-minded or confused and acted as she did by failing to concentrate properly on what she was doing and by failing adequately to use her mental powers.” This was held to be outside the McNaughten Rules, and so no defense of insanity arose. Uncontrollable urges do not count as defects of reason as they are defects of will and not defects of reason, as exemplified by the Court of Appeal in R v. Kopsch (1925).6 Mr. Kopsch had originally been convicted of the murder of a woman and sentenced to death. On arrest, he said that he had strangled her with his necktie at her request. It was suggested at trial that he lost his conscious mind and acted instead under the direction of the subconscious part of his mind. At appeal, the Lord Chief Justice said: “The fantastic theory of uncontrollable impulse…if it were to become part of our criminal law, would be merely subversive….The jury may well have thought that the defence of insanity in this case, as in so many cases, was the merest nonsense.” The appeal failed. Whether the defect of reason is temporary or permanent does not matter. In R v. Sullivan (1984)7 the defect occurred during an epileptic fit, which by nature is a transient p ­ henomenon. That case is considered in further detail below.

Disease of the mind In contrast to the narrow approach taken to “defect of ­reason” discussed earlier, the legal meaning of “disease of the mind” has been widely interpreted. It is not limited to severe mental illness as implied by the wording. The next two cases provide examples. R v. Sullivan (1984), at the House of Lords, concerned the appellant Mr. Sullivan, who had an established diagnosis of epilepsy. The doctors giving evidence said that epilepsy was not a disease of the mind. However, the court ruled that ­epilepsy was a disease of the mind. The details of the case are as follows. One day, Mr. Sullivan visited a neighbor and suffered a seizure, during which he kicked the head and body of a friend, resulting in injuries. Mr. Sullivan had no memory of the assault. At trial, he pleaded not guilty to causing grievous bodily harm with intent and inflicting grievous bodily harm. His defense was of sane automatism, but the judge ruled it would have to be a defense of insanity. Mr. Sullivan then changed his plea to guilty of assault and was convicted, resulting in a probation order. He appealed. Lord Diplock said: “Mind in the McNaughten Rules is used in the ordinary sense of mental faculties of reason, memory and understanding.…It matters not whether the aetiology of the impairment is organic, as in epilepsy, or functional, or whether the impairment itself is permanent or is

Interpretation of the four elements of the rules  485

transient and intermittent, provided that it subsisted at the time of the commission of the act. The purpose of the legislation relating to the defence of insanity…has been to protect society against recurrence of the dangerous conduct.” Therefore, epilepsy was held to be a disease of the mind. R v. Kemp (1957) determined that arteriosclerosis was a “disease of the mind.” Mr. Kemp suffered arteriosclerosis, which caused a temporary loss of consciousness, during which he struck his wife with a hammer, causing a grievous wound to her and resulting in his being charged with grievous bodily harm. Medical opinion agreed that he suffered from arteriosclerosis, but the doctors differed as to whether this amounted to a disease of the mind. One doctor said the physical disease caused a melancholia that was a disease of the mind. Another doctor said that a temporary cutting off of the blood supply did not amount to a disease of the mind, although had the disease process progressed to degeneration of brain cells, then there would have been a disease of the mind. Devlin said, “The object of the limitation imposed upon the words ‘defect of reason’ by the words ‘from disease of the mind’…was to prevent an accused from escaping the consequences of an otherwise criminal act by relying upon his own natural or brutish stupidity.” In his judgment, the words were not included to distinguish between diseases of mental origin and diseases of physical origin. Further, he said, “Hardening of the arteries is a disease which is shown on the evidence to be capable of affecting the mind in such a way as to cause a defect, temporarily or permanently, of its reasoning, understanding and so on…and so is a disease of the mind…within the meaning of the Rules.” Another factor that determines “disease of the mind” is the direction of causality. Internal causes may be diseases of the mind, but external causes are not. The following three cases illustrate this. R v. Burgess (1991)8 determined that sleepwalking was caused by an internal factor and that this was therefore a disease of the mind. Using a bottle and a video recorder, Mr. Burgess attacked a woman as she was asleep and grasped her around the throat. She suffered lacerations requiring sutures. He was charged with wounding with intent to do grievous bodily harm. His defense was that he lacked mens rea as he was sleepwalking at the time and suffered ­non-insane automatism. He had no memory of hitting her either with the bottle or with the video recorder. However, the judge ruled that the evidence amounted to insanity. In R v. Hennessy (1989),9 a diabetic was charged with motoring offenses. As a result of lack of endogenous insulin, he entered a hyperglycemic state at the time of the offenses, which he said were committed in a state of automatism. He had not taken his prescribed insulin for some days. Medical evidence was that anxiety or depression also could have increased the blood sugar level. He pleaded not guilty, but after the trial judge ruled the case was one of insanity, he changed it to guilty. He was convicted and sentenced. This case was another example of internal causation. The case of R v. Quick (1973)10 concerned a nurse, Mr.  Quick, who together with another nurse was charged

with the assault of a patient. At trial, Mr. Quick wished to use a defense of automatism on the grounds that he had no memory of the assault owing to hypoglycemia caused by taking prescribed insulin, drinking alcohol, and eating little. He pleaded not guilty. The trial judge ruled the appropriate defense was insanity, so Mr. Quick changed his plea to guilty, resulting in conviction. However, at the Court of Appeal, Lawton said, “The question is whether a person who commits a criminal act while under the effects of hypoglycaemia can raise a defence of automatism, as the defendant submitted was possible, or whether such a person must rely on a defence of insanity if he wishes to relieve himself of responsibility for his acts.” After considering various cases, he continued, “Judges should follow in a common sense way their sense of fairness....A malfunctioning of the mind of transitory effect caused by the application to the body of some external factor such as violence, drugs, including anaesthetics, alcohol and hypnotic influences cannot fairly be said to be due to disease.” So this was a case of external causation and not a disease of the mind.

Not knowing the nature and quality of the act The Court of Appeal in R v. Codere (1916)11 clarified that the “nature and quality” of the act meant its physical nature and quality; it has nothing to do with the morality of the act. A narrow approach has been applied. Mr. Codere, a lieutenant in the Canadian Infantry, was convicted of the murder of a sergeant, also a Canadian. At trial, evidence was given that he was mentally abnormal and not responsible for his actions and that he could not carry on a sustained conversation. Medical evidence from one doctor indicated that he suffered delusions and was not of sound mind. However, another doctor said he knew the difference between right and wrong and could not be certified insane. At appeal, his counsel said in reference to the McNaughten Rules, ‘‘Nature of the act refers to its physical aspect; quality refers to its moral aspect.” Further, “If the criminal is incapable of reasonably understanding the heinousness of his act, he does not know that the act is wrong.” In response to this the Lord Chief Justice said, “The Court cannot agree with that view of the meaning of the words ‘nature and quality’….In using the language ‘nature and quality’ the judges were only dealing with the physical character of the act, and were not intending to distinguish between the physical and moral aspects of the act.” The court concluded the appellant was not insane, and the application was dismissed.

Not knowing he was doing what was wrong In R v. Windle (1952),12 the Court of Appeal held that the word wrong means legally wrong, not morally wrong. Windle was convicted of murdering his wife by poisoning her with aspirin and was sentenced to death. Doctors on both sides said he knew that what he did was against the law. The trial

486  Not guilty by reason of insanity (McNaughten rules)

judge ruled that there was no evidence of insanity and withdrew the issue from the jury. On appeal Lord Goddard referred to a previous ruling in Rex v. Rivett (1950)13 and said that the real test was one of responsibility. He said, “Courts of law can only distinguish between that which is in accordance with law and that which is contrary to law….It would be an unfortunate thing if it were left to juries to consider whether some particular act was morally right or wrong. The test must be whether it is contrary to law.” Therefore, a narrow meaning was applied, and the appeal failed because Windle knew he was doing something legally wrong.

CONCLUSION Most mentally disordered offenders know what they are doing in the physical sense of the term. And they also know what they are doing is against the law. So they fall down on both the third and fourth hurdles, at least one of which must be crossed to form the final part of a ­successful insanity defense. Therefore, the overwhelming ­majority of defendants fall outside the ambit of the insanity defense. Its complex construction and specific meaning is such that only a small number of defendants meet its e­ xacting requirements. In  practice, there is room for legitimate ­

­ isagreement among experts involved in a particular case. d But the courts are the ultimate arbiter of who is and who is not insane. The references below largely comprise their ­rulings. The law has been evolving for the best part of two centuries since McNaughten’s trial and will continue to do so.

REFERENCES 1. The Queen against Daniel M’Naghten (1843), 4 St. Tr. (n.s.) 847. 2. Dalby JT. The case of Daniel McNaughton: Let’s get the story straight. American Journal of Forensic Psychiatry. 2006; 27:17–32. 3. M’Naghten’s Case (1843), 10 Cl & F 200. 4. R v. Kemp (1957), 1 QB 399. 5. R v. Clarke (1972), 56 Cr App R 225. 6. R v. Kopsch (1925), 19 Cr App Rep 50. 7. R v. Sullivan (1984), AC 156. 8. R v. Burgess (1991), 2 QB 92. 9. R v. Hennessy (1989), 89 Cr App R 10. 10. R v. Quick (1973), QB 910. 11. R v. Codere (1916), 12 Cr App R 21. 12. R v. Windle (1952), 2 QB 826. 13. Rex v. Rivett (1950), 34 Cr App R 87.

71 Diminished responsibility IAN H. TREASADEN Introduction 487 Historical development of diminished responsibility 487 Current legal criteria for diminished responsibility 488 under Coroners and Justice Act 2009 Sentencing of those found guilty of manslaughter on 489 grounds of diminished responsibility 489 Sentencing under the Mental Health Act 1983 489 Custodial sentences 489 Issues regarding procedure 489 The burden of proof 489 Judges’ directions

490 The jury 490 Medical evidence 490 Problems of definition Abnormality of mental functioning (previously 490 abnormality of mind) Substantially 492 Psychiatric evidence 492 492 Developmental immaturity 493 Clinical assessment of diminished responsibility 493 Conclusions References 493

INTRODUCTION

Points against the McNaughton rules include the following:

Homicide is the killing of another human being. It may be lawful or unlawful. In the United Kingdom, the focus of this chapter, unlawful homicide includes both murder, an offense of common law defined as an unlawful killing with malice aforethought, that is, either with intent to kill or with intent to cause grievous bodily harm, and also manslaughter. Manslaughter may be categorized into voluntary manslaughter, in which the defendant would be guilty of murder if not for the availability of a number of partial defenses, including diminished responsibility (Sections 52 and 53, Coroners and Justice Act 2009) (culpable homicide in Scotland), loss of control (previously provocation) (Section 54, Coroners and Justice Act 2009), and in pursuance of a suicide pact. Involuntary manslaughter refers to cases without malice aforethought, such as manslaughter by an unlawful act or gross negligence manslaughter. A third category is corporate manslaughter. The defense of diminished responsibility arose as a reaction to the fact that mentally disordered individuals who had killed were still being hanged despite the insanity defense based on the McNaughton rules (not guilty by reason of insanity), arising from the case of Daniel McNaughton in 1843.1

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Few individuals are mad enough to fit the rules. Even McNaughton would not have fitted them. The rules assume a doctrine that mind is made up of separate independent compartments, of which cognition is most important (a Victorian view). The rules are too unfair, as abnormal mental states do not fit into rigid categories. The rules ignore the importance of emotional disturbance and failure of will when cognition is normal.

HISTORICAL DEVELOPMENT OF DIMINISHED RESPONSIBILITY A movement was therefore created to bring in a defense of diminished responsibility, as had existed in Scotland since 1867 (HM Advocate v. Dingwell;2 partial insanity), as a statutory partial defense only to the offense of murder. This was made law in the Homicide Act 1957 which, under Section 2, allowed the charge of murder to be reduced to manslaughter on the grounds of diminished responsibility. Subsequently, in cases where individuals are charged

487

488  Diminished responsibility

with murder, the plea of not guilty by reason of insanity has been largely replaced by manslaughter on grounds of diminished responsibility. Under the 1957 Homicide Act (Section 2), as a defense against the charge (only) of murder, the offender could plead that at the time of the offense, he or she had diminished responsibility, on grounds of which he or she had to show that at the time: 2 (1) where a person kills or is party of the killing of another, he shall not be convicted of murder if he was suffering from such abnormality of mind (whether arising from a condition of arrested or retarded development of mind or any inherent causes or induced by disease or injury) as substantially impaired his mental responsibility for his acts and omissions in doing or being a party to the killing. (2) On a charge of murder it shall be for the defense to prove that the person charged is by virtue of this section not liable to be convicted of murder. (3) A person who but for this section would be liable, whether as principle or as accessory, to be convicted of murder shall be liable instead to be convicted of manslaughter. Since the introduction of Section 2 of the Homicide Act 1957, which was seen as being beneficial, medical science and psychology have moved on and the grounds were considered to have become out of date. The elasticity and vagueness of the terms “abnormality of mind” and “substantially impaired his mental responsibility for his acts” were particularly criticized. The mandatory death sentence itself for murder was abolished in 1965.

CURRENT LEGAL CRITERIA FOR DIMINISHED RESPONSIBILITY UNDER CORONERS AND JUSTICE ACT 2009 Subsequently, the Homicide Act 1957 was amended by the Coroners and Justice Act 2009, Section 52 (Persons suffering from diminished responsibility (England and Wales)), Subsection 1, which states: A person (“D”) who kills or is a party to the killing of another is not to be convicted of murder if D was suffering from an abnormality of mental functioning which: (a) arose from a recognised medical condition (b) substantially impaired D’s ability to do one or more of the things mentioned in Subsection(1A), and (c) provides an explanation for D’s acts and omissions in doing or being party to the killing (1A) Those things are: (a) to understand the nature of D’s conduct; (b) to form a rational judgement;

(c) to exercise self-control (1B) For the purposes of Subsection (1) (c), an abnormality of mental functioning provides an explanation for Ds conduct if it causes, or is a significant contributory factor in causing, D to carry out that conduct. The term abnormality of mental functioning implies that it is more dynamic than the previous static abnormality of mind. In practice, this change in definition makes little difference. The reference to a recognised medical condition is more medically based than the previous reasonable man test of what is abnormal, and there must now be a direct causal relationship between it and the offense. This implies a need for expert psychiatric evidence. The Ministry of Justice in a 2010/13 circular online implied that one should refer to ICD and DSM definitions, though there was “scope for conditions not specified in such a list.” The new definition refers to “substantially impaired” mental capacities rather than substantial impairment of mental responsibility. It is therefore now a capacity test. In Northern Ireland, Section 5 of the Criminal Justice Act (Northern Ireland) 1966 (c. 20) (effect, in cases of homicide, of impaired mental responsibility), which used the term mental abnormality, has been amended similarly by the Coroners and Justice Act 2009, Section 53 (Persons suffering from diminished responsibility (Northern Ireland)), Subsection 2. In Scotland, the relevant case law is Galbraith v. HM Advocate. 3 Galbraith killed her husband and was convicted of murder after having been abused by him for many years. She suffered from post-traumatic stress disorder (PTSD). On appeal, a definition of diminished responsibility was given as abnormality of mind, other than one caused solely by consumption of drink or drugs, or by psychopathic personality, which need not “border on insanity,” and which has the effect that the accused’s ability to determine or control his actions was substantially impaired. In the Republic of Ireland, under Section 6 of the Criminal Law (Insanity) Act 2006, the equivalent legal definition is if the defendant did the act at a time when he suffered from a mental disorder that did not amount to insanity, but rather diminished substantially responsibility for the act. The defense of diminished responsibility only applies to murder or being an accessory to murder. It only comes into play if mens rea for murder is present, and, as such, it has been used where a defense of insanity would have no hope of success. As for an insanity plea, the burden of proof is on the accused. Diminished responsibility is not a complete defense. It is a mitigating factor and, if successful as a defense, the judge has discretion in sentencing, though may still impose a life sentence of imprisonment, with little advantage for running the defense for those so sentenced. For offenses other than murder, such mitigation is reflected in the sentencing, but the fixed penalty for murder prevents that.

Issues regarding procedure  489

The defense of diminished responsibility often plays less of a role than is imagined. From 1980 to 1986, there were 70–85 successful pleas annually, but now there are fewer than 35 cases per year. This reflects not only a fall in the homicide rate (including due to better emergency medical care), but also a less sympathetic view by the courts, and probably society, to this group of mentally abnormal offenders and a postulated change in attitude by the Crown Prosecution Service in relation to targets. Those who commit multiple homicides are now rarely successful in making such a plea. In contrast Walker had shown4 that the proportion of people avoiding a murder conviction on the basis of any psychiatric defense was substantially unchanged following the introduction of diminished responsibility. This suggested juries and the courts were already exercising their discretion in not ­convicting mentally abnormal offenders of murder. Regarding the effect of the new 2009, due to its restrictive requirement of a “recognised medical condition,” it may lead to an increase in successful pleas of diminished responsibility by those with psychopathy and depression, or it may reduce successful pleas by excluding cases that were previously successful.

SENTENCING OF THOSE FOUND GUILTY OF MANSLAUGHTER ON GROUNDS OF DIMINISHED RESPONSIBILITY The trial and sentencing of those charged with murder is undertaken by a Crown Court. The effect of a successful plea of diminished responsibility is to reduce the charge from murder to manslaughter. Murder carries a statutory sentence of life imprisonment, but the Crown Court is free to make any sentence at all with regard to manslaughter, including an absolute discharge, such as for those whose abnormality mental functioning was temporary, a community rehabilitation (probation) order or a hospital order, or a life prison sentence. In addition to a report supporting the plea of diminished responsibility, the psychiatrist may also, if he considers it appropriate, wish to arrange for the appropriate hospital treatment and offer the appropriate Mental Health Act 1983 section (detention) recommendations to the court to help them with sentencing.

Sentencing under the Mental Health Act 1983 About half of those who plead diminished responsibility successfully are made subject to Section 37 hospital orders under the Mental Health Act 1983.5 In such cases, nearly all hospital orders are coupled with restriction orders under Section 41 of the Mental Health Act 1983, “to protect the public from serious harm.” The average time spent in a hospital for such restricted patients is approximately 9 years before discharge.6

Custodial sentences If an individual is convicted of manslaughter, on grounds of diminished responsibility, the individual may still receive a custodial sentence, including a life sentence, albeit without the power to recommend a minimum term to be served. Those sent to prison after successfully pleading diminished responsibility usually receive sentences of up to 10 years.7 However, those still given a life sentence following a successful plea of diminished responsibility may spend longer in custody than those convicted of murder,8 perhaps reflecting the concern in such cases that, while abnormality of mental functioning was identified in these cases of diminished responsibility, no treatment detained under the Mental Health Act 1983 was offered.

ISSUES REGARDING PROCEDURE The burden of proof The burden of proof of establishing the defense of diminished responsibility is on the defendant but only on a balance of probabilities, because the defense is not an element of the crime of murder.9 As only the defendant can raise the partial defense of diminished responsibility, there is the risk that a defendant who lacks insight may not want to put this plea forward. In these circumstances, one may need to consider the defendant’s fitness to plead.

Judges’ directions Following any medical evidence as to the accused’s mental state at the time of the offense called by the defense and the prosecution, the judge must direct the jury as to the meaning of diminished responsibility, reminding them about the breadth of the definition, namely, that it is wider than insanity and also mental disorder as defined in the Mental Health Act 1983 and includes abnormalities in perception, understanding, and judgment.10 The jury then makes the decision as to whether the defense has been successfully made out. Where there is incontrovertible evidence, the jury should be directed by the judge to accept the medical evidence, but it is the jury’s decision. If the defense argues diminished responsibility, the prosecution can present evidence that the individual is insane. If an accused wishes to prove he or she is insane, the prosecution may put forward evidence that his or her defense only amounts to diminished responsibility (Section 6, Criminal Procedure (Insanity) Act 1964) but must prove it beyond reasonable doubt. The partial defenses of diminished responsibility and loss of control (previously provocation) are theoretically distinct with the respective grounds for homicide being internal and external causes, but in practice both may be applicable to a homicide. Loss of control is a general defense to murder not confined to mentally abnormal offenders.

490  Diminished responsibility

Where a defendant pleads guilty to manslaughter on grounds of diminished responsibility, the prosecution and judge often accept such a plea, with fewer than 15% of such cases leading to trial.11 If the judge does not accept the accused’s plea, most defendants will be convicted of murder.

The jury Even where there is unanimous medical evidence supporting diminished responsibility, it is a matter for the jury to decide (R v. Khan (2009)12). Khan bludgeoned his roommate to death with a cricket bat. He appealed his conviction for murder on the grounds the trial judge should have directed the jury to deliver a diminished responsibility verdict. The Court of Appeal ruled that the decision was for the jury and upheld the conviction. While the jury has to accept expert medical evidence in relation to abnormality of mental functioning, it is entitled to take a different view as to whether this “substantially impaired” the defendant’s mental capacities. The jury may also give more weight to alternative explanations, for example, where the defendant has a history of previous violence when not mentally disordered.

Medical evidence A judge may, but does not have to, accept a plea of diminished responsibility where medical evidence is unchallenged.13 Dell14 found in only 13% of her sample that doctors disagreed but where they did, the defense was likely to fail. As pointed out by the Butler Report, diminished responsibility is “a device for … untying the hands of the judge in murder cases,”15 while it also allows for a display of public sympathy for certain types of murderer. Difficulties arise when sympathy is absent but the defendant is clearly has an abnormality of mental functioning, as may have pertained in the case of the Yorkshire Ripper, Peter Sutcliffe,16 where the judge refused to accept the prosecutions opinion that a verdict of manslaughter on grounds of diminished responsibility should be accepted and given the unanimous medical evidence supporting this.

PROBLEMS OF DEFINITION Two of the elements of the defense of diminished responsibility, “abnormality of mental functioning” and “substantial impairment,” have no definitive legal or medical definitions.

Abnormality of mental functioning (previously abnormality of mind) The change from abnormality of mind under Section 2 of the Homicide Act 1957 to abnormality of mental functioning under Section 52 of the Coroners and Justice Act 2009 has probably not been especially significant in practice. Abnormality of mental functioning is left to the defendant

or his or her medical advisors to define and is not synonymous with the category of mental disorder in the Mental Health Act 1983. Initially narrowly interpreted, abnormality of mind from the Homicide Act 1957 was much more widely than disease of the mind in the McNaughton rules regarding not guilty by reason of insanity. The meaning of the then Section 2 of the Homicide Act 1957 “abnormality of mind” was explained by Lord Parker CJ in the Court of Appeal in the case of R v. Byrne17 as affecting at the time of the offense the individual’s perception, judgment (between right and wrong, between good and bad), or the voluntary control of (capacity to control, a legal concept) his or her actions: A state of mind so different from that of ordinary human beings that the reasonable man would term it abnormal. It appears to us to be wide enough to cover the mind’s activities in all its aspects, not only the perception of physical acts and matters, and the ability to form a rational judgement whether an act is right or wrong, but also the ability to exercise willpower to control physical acts in accordance with that rational judgement. The expression ‘mental responsibility for his acts’ points to consideration of the extent to which the accused mind is answerable for his physical acts, which must include a consideration of the extent of his ability to exercise willpower to control his physical acts. Byrne had “irresistible urges,” as a result of which he strangled a girl in a YMCA and mutilated her dead body. Byrne admitted the killing but raised the defense of diminished responsibility. The defense failed and he appealed the verdict on the grounds of misdirection in the closing arguments. His appeal was allowed. A verdict of manslaughter was substituted for murder, but the sentence of life imprisonment was not altered. Medical evidence showed that he was a sexual psychopath suffering from violent deviant sexual desires that he found difficult or impossible to control. Medical evidence from three doctors suggested his mental abnormality (“perverted sexual desire,” sexual psychopathy) did not amount to insanity. The issue for the Court of Appeal was whether this amounted to diminished responsibility. The appeal was allowed and a verdict of manslaughter substituted for murder. The long-term effect of this judgment was not only to introduce the concept of irresistible impulse to English Law, but also to allow a wide range of less serious mental conditions to come within the scope of abnormality of mind. This case indicates clearly that abnormality of mind (now mental functioning) involves considering whether the defendant’s mind (now mental functioning) is sufficiently different from a normal mind to be classified as abnormal. This is wider than the “defect of reason” for the purposes of the insanity defense, which cannot apply to the inability to resist urges but only whether there is a complete involuntariliness on the part of the accused.

Problems of definition  491

Lord Parker, in this same case, continued his authoritative interpretation of the term abnormality of mind: whether the accused was at the time of the killing suffering from ‘any abnormality of mind’ in the broad sense in which we have indicated above is a question for the jury. On this question medical evidence is, no doubt, important, but the jury are entitled to take into consideration all the evidence including the acts or statements of the accused and his demeanour. They are not bound to accept the medical evidence, if there is any other material before them which, in their good judgement, conflicts with it and outweighs it. The aetiology of the abnormality of mind (namely whether it arose from a condition of arrested or retarded development of mind or any inherent causes or was induced by disease or injury) does, however, seem to be a matter to be determined on expert evidence…. Juries took full advantage of the poorly defined concept of abnormality of mind, especially when sympathetic with the defendant, for instance, if he or she was under excessive stress. The diminished responsibility defense has been used where a defense of insanity would have no hope of success. Examples include: ●●

●● ●●

●● ●●

●●

mercy killing, e.g., drowning a severely handicapped son in a river18, and killing a terminally ill loved one19,20 premenstrual syndrome21 depression,22 including when the subject kills his or her spouse in a state of reactive depression individuals who kill in jealous frenzies individuals who are subject to an “irresistible impulse” to kill (cited more often in the United States) subjects who kill and who are “deranged” by psychopathic disorder.

Mental disorders that have been considered an abnormality of mind in case law include: ●●

●● ●●

●●

●●

schizophrenia and paranoid psychosis, as in R v. Sanderson (1994),22 where Sanderson killed his girlfriend after hitting her a hundred times with a wooden stave, where drug use exacerbated or caused a paranoid psychosis Morbid jealousy, as in R v. Vinagre (1979)24 Paranoid personality disorder, as in R v. Martin (Anthony) (2002),25 who shot a burglar of his isolated farmhouse Post-natal depression and premenstrual syndrome, as in R v. Reynolds (1988),26 where the defendant killed her mother Battered woman syndrome, as in R v. Ahluwalia (1992),27 the case of a wife who set fire to her violent abusive husband while he was sleeping.

PERSONALITY DISORDER

Problems particularly arise in cases of those suffering from personality disorder, including psychopathic disorder, as to whether a distinction can be drawn between such individuals and “wickedness” and other offenders in terms of moral or criminal responsibility28, including diminished responsibility. Whether an individual’s personality disorder is considered to meet the grounds for diminished responsibility can often depend on the opinion of the particular clinician undertaking the assessment. This can lead to circular arguments as to whether a greater propensity to lose one’s temper implies less responsibility, whether diminished responsibility means less power to resist temptation, and whether the irresponsible should be punished less than the responsible. ALCOHOL AND DRUG CONSUMPTION

The problem of deciding on the presence or cause of a defendant’s abnormality and of mental functioning is compounded by alcohol or drug consumption. Temporary effects of alcohol or drugs are not normally considered grounds for diminished responsibility. In the case of Dietschmann,29 the defendant was charged with the murder, by punching and kicking, of Nicholas Davies, while the defendant was drunk but also described as suffering “from an adjustment disorder, which was a depressed grief reaction to the death of his Aunt, Sarah, with whom he had a close emotional physical relationship.” The prosecution case was that he would not have killed if he had been sober. He was convicted of murder and his appeal was dismissed by the Court of Appeal. However, the House of Lords allowed his appeal on the grounds of where abnormality of mind is present, the fact he would not have killed had he not also been drunk did not necessarily prevent the defense being available. In the case of Tandy,30 permanent injury to the brain caused by alcohol was recognized as an abnormality of mind. Tandy, an alcoholic who normally drank Cinzano, after drinking nine-tenths of a bottle of vodka (90% proof, greater than Cinzano), strangled her 11-year-old daughter later that day, whom Tandy knew to have been abused by her husband. The effect on Tandy herself of the latter was not taken into consideration. She pleaded diminished responsibility, and the judge directed the jury that if they concluded she had voluntarily taken her first drink of the day, she could not claim that the resultant abnormality of mind was due to the disease of alcoholism. The appellant was convicted of murder and appealed, but the appeal was dismissed. However, it was noted that where alcoholism has reached the stage where the brain has been injured so that there is gross disturbance of judgment and emotional responses, this may constitute an abnormality of mind. This does not depend on there being demonstrable brain damage (e.g., R v. Wood (2008)31), but alcohol dependence is not necessarily an abnormality of mind (e.g. R v. Stewart (James) (2009)32, an alcohol dependent homeless man who killed another homeless man, and his conviction for murder was upheld). It depends on the degree of dependency,

492  Diminished responsibility

Table 71.1  Diminished Responsibility: Legal Bibliography Cases HM Advocate v. Dingwell (1867) 5 IRV 466 HM Advocate v. Galbraith (2002) JC1 R v. Ahluwalia (1992) 4 ALL ER 889 (CA) R v. Brown (1993) Crim LR 961 R v. Byrne (1960) 2 QB 396 (CA) R v. Cox (1968) 1 WLR 308 R v. Dietschmann (2003) UKHC 10 R v. Jones (1979) Times December 4th R v. Khan (2009) EWCA 1569 R v. Lambert: R v. Ali and R v. Jordon (2001) 1 ALL ER 1014 (CA) R v. Lloyd (1967) 1 ALL ER 107 R v. Martin (Anthony) (2012) 1Cr App R 27 R v. Price (1971) The Times, 22 December R v. Reynolds (1988) Crim LR 679 (CA) R v. Sanderson (1994) 98 CR App R 32 (CA) R v. Seers (1984) 879 CR App R261 (CA) R v. Stewart (James) (2009) EWCA Crim 593 R v. Smith (1982) Crim LR 531 R v. Sutcliffe (1981) The Times and Guardian, May R v. Tandy (1989) 1 WLR 350 R v. Vinagre (1979) 69 CR App R 104 (CA) R v. Walton (1977) AC 788 (PC) R v. Wood (2008) EWCA Crim 1305 Statutes Criminal Law (Insanity) Act 2006, Section 6, Republic of Ireland Criminal Procedure (Insanity and Unfitness to Plead) Act 1991 Coroners and Justice Act 2009, Sections 52, 53 Homicide Act 1957, Sections 2, 3, 4 Mental Health Act 1983, Sections 37, 41 Murder (Abolition of Death Penalty) 1965, Section 1(2)

the ability to control the drinking and to choose to drink or not, and the capability to abstain from alcohol and for how long. Overall these cases imply that where there is an irresistible craving or compulsion to drink, this represents an abnormality of mental functioning, albeit due to alcohol dependence syndrome.

Substantially Substantially is also undefined and it is for the jury to decide, although doctors may give their opinion. It is insufficient to show that an accused was suffering from abnormality of mental functioning at the time of the killing. It also has to be shown that his or her mental capabilities for the crime had been substantially impaired by that abnormality. In R v. Lloyd,33 a case in which a man strangled his wife to death while suffering from depression, some guidance was

given: Substantial does not mean total … at the other end [it] does not mean minimal or trivial. It is something in between. Thus, it appears a question of degree and, where medical evidence conflicts, it is a question properly for the jury. Table 71.1 provides a legal bibliography of cases and statutes discussed in this chapter relevant to diminished responsibility.

Psychiatric evidence The Royal College of Psychiatrists34 has argued that psychiatric evidence of diminished responsibility is inevitably distorted when it must be made relevant to a verdict rather than a sentence. This can result in the “role confusion” of psychiatrists having to act as fact finder and expert witness. The Royal College of Psychiatrists commented that it was common for the courts to accept or even encourage psychiatric experts to go beyond giving an opinion on abnormality of mind, now abnormality of mental functioning, and comment upon whether the defendant should be seen as “substantially impaired” and also express a view on what lawyers call “the ultimate issue”—on matters of fact as to whether the defendant met all the criteria to warrant reduction of first-degree murder to second-degree murder on the grounds of diminished responsibility. The College believed that this should be resisted but did consider that it was less likely to be such an issue with the new definition of diminished responsibility under the Coroners and Justice Act  2009. A  further advantage of the new definition was seen to be a resulting increased clarity about what impact on capacity the effects of abnormality of mental functioning must have, such as whether it substantially impaired capacities.

Developmental immaturity Prior to the Coroners and Justice Act 2009, the Law Commission had recommended, but the Government had declined, that it should be possible to bring in a verdict of diminished responsibility on the grounds of the developmental immaturity of an offender who was under 18 years of age at the time he or she played his or her part in a killing. This was widely supported by consultees, including the Royal College of Psychiatrists, who, however, recommended it should be extended to those under 21 years of age. Other consultees were noted to consider that the proposal did not go far enough to prevent child offenders being convicted of serious offenses of homicide. Some 10-year-old killers, of course, may be sufficiently advanced in their judgment and understanding that a conviction for murder would be justified, though the Royal College of Psychiatrists35 warned of the risk of overestimating judgment and understanding due to the eagerness to please and the suggestibility, especially of learning disabled children, who may have learned legal or psychological phrases and thus present with a superficial understanding of the process in an attempt to control a new situation by attempting to sound competent and streetwise.

References 493

The Royal College of Psychiatrists also noted that the frontal lobes of the brain are important in the development of self-control, in managing large amounts of information in consciousness from many sources, in planning actions and in controlling impulsivity, but that the frontal lobes were not felt to be mature until approximately 14 years of age.

is even an argument that diminished responsibility should be extended to all offenses. Otherwise, why should a partial defense be available if the individual kills but not if he stole or raped or, indeed, attempted to kill. The most important points in favor of diminished responsibility are that: ●●

CLINICAL ASSESSMENT OF DIMINISHED RESPONSIBILITY One should aim to interview the defendant as soon as possible after the alleged offense, even without statements and other reports, as this is more likely to indicate the defendant’s mental state at the time of the offense. Always aim to interview an informant, such as the defendant’s next of kin. Be aware, however, that subtle evidence of brain injury that can be detected by formal psychological testing, brain scans and/or electroencephalogram may be very important in the court deciding whether the defendant has diminished responsibility. Even if the defendant denies the offense, one can comment on his or her mental state for the time of the offense. In a court report, if one is arguing diminished responsibility is present, it is usual to also discuss sentencing by way of hospital disposal such as under Sections 37 and 41. If, however, one is not recommending a hospital disposal, it is best to omit this in the report as it may adversely influence the jury. One can address this in a separate sentencing report.

CONCLUSIONS As stated in the report on the Royal Commission of Capital Punishment,36 which led to the creation of the diminished responsibility defense, there are degrees of insanity, and sanity and insanity shade into each other. Similarly, there is no clear distinction between responsibility and irresponsibility, and the defense of diminished responsibility was introduced to bring the law into line with these observations. The original driver for the introduction of the defense of diminished responsibility to murder was that the penalty for murder was then death (the death penalty was abolished in 1965). Now the diminished responsibility defense serves to mitigate the one remaining mandatory fixed life imprisonment penalty in English law by allowing the court to flexibly sentence. Clearly, in the absence of such a mandatory punishment of life imprisonment, which, due to the special stigma of murder in society, would be hard politically in the United Kingdom to remove (though other countries, such as the Netherlands, do not have it), there would be less need for such a defense. However, a mentally disordered individual might not be able to come within the defense of insanity because of its narrowness, and, in the absence of diminished responsibility, he or she would be convicted of murder, even if reform might allow discretionary sentencing as opposed to a mandatory sentence of life imprisonment. Conversely, there

●●

it allows for an overall assessment of the person it allows more flexible sentencing.

In conclusion, in spite of the criticisms arising from the previous Homicide Act 1957 legal wording of diminished responsibility, there was little conclusive evidence as to whether the definition needed to be made broader or narrower. The theoretical advantages of reform under the Coroners and Justice Act 2009 of diminished responsibility may be outweighed by the risk of potentially unintended consequences resulting from interpretations by the courts and juries, which only time and the Court of Appeal will reveal.

REFERENCES 1. West DJ, Walk A. Daniel McNaughton. His Trial and the Aftermath. London: Gaskell Books, 1977. 2. H.M. Advocate v. Dingwell (1867) 5 IRV 466. 3. H.M. Advocate v Galbraith (2002) JC1. 4. Walker N. Crime and Insanity in England. Volume 1: The Historical Perspective. Chapter 9 Edinburgh: Edinburgh University Press, 1968. 5. Mackay RD. The Diminished Responsibility Plea in Operation in Appendix B in consultation paper: Partial Defences to Murder. Law Commission report 290 CM6301 2006. 6. Ashworth A. Sentencing and Criminal Justice. 4th ed. Cambridge: Cambridge University Press, 2005: 376. 7. Ashworth A. Principles of Criminal Law. 4th ed. Oxford: Oxford University Press, 2003: 284–285. 8. Dell S. Murder into Manslaughter. The Diminished Responsibility Defence in Practice (Maudsley Monographs). Oxford: Oxford University Press, 1984. 9. R v. Lambert (2002) 2 AC 545(HC). 10. R v. Brown (1993) Crim LR 961. 11. Dell S. Murder into Manslaughter. The Diminished Responsibility Defence in Practice (Maudsley Monograph). Oxford: Oxford University Press, 1984: 39. 12. R v. Khan (2009) EWCA 1569. 13. R v. Cox (1968) 1 WLR 308. 14. Dell S. Murder into Manslaughter. The Diminished Responsibility Defence in Practice (Maudsley Monograph). Oxford: Oxford University Press, 1984. 15. Home Office and DHSS. Report of the Committee on Mentally Abnormal Offenders (Butler Report). CMNO 6244 s.19.8, s.2. 1975.

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16. R v. Sutcliffe (1981) The Times and Guardian, May. 17. R v. Byrne (1960) 2 QB 396. 18. Price R. The Times. December 22, 1971. 19. R v. Gray (1965) 129 JPN 819. 20. R v. Jones (1079) Times December the 4th. 21. R v. Smith (1982) Crim LR 531. 22. R v. Seers (1984) 79 CR App R261 (CA). 23. R v. Sanderson (1994) 98 CR App R 32 (CA). 24. R v. Vinagre (1979) 69 CR App R 104 (CA). 25. R v. Martin (Anthony) (2012) 1 CR App R 27. 26. R v. Reynolds (1988) Crim LR 679 (CA). 27. R v. Ahluwalia (1992) 4 All ER 889 (CA).

28. Wooton B. Diminished Responsibility: A Layman’s View. Law Quarterly Review. 1960; 76.244. 29. R v. Dietschmann (2003) UK HL 10. 30. R v. Tandy (1989) 1 WLR 350. 31. R v. Wood (2008) EWCA Crim 1305. 32. R v. Stewart (James) (2009) EWCA Crim 593. 33. R v. Lloyd (1967) 1 All ER 107. 34. Law Commission (2005) CP 177 para. 6.26. 35. Royal College of Psychiatrists. Child Defendants. Occasional Paper OP 56. 2006. 36. Report of the Royal Commission on Capital Punishment. CMD 8932. 1953.

72 The defense of loss of control RAANA DIN Introduction 495 Historical origins of defense of provocation 496 Criticism of case law leading to reform in the Coroners and Justice Act 2009 496 Coroners and Justice Act 2009 497 Conclusions 498

Assessment of whether the new law will be clearer and public confidence increased 498 Relevance of defense for those with mental disorders: Will justice be improved for them? 499 References 500

INTRODUCTION

The classic common-law definition of provocation was that of Devlin in the case of R v. Duffy:4

Provocation or, since the England and Wales Coroners and Justice Act 2009, the new partial defense to murder of loss of control, is a form of voluntary manslaughter, that is, the defendant has the mens rea for murder. In essence, provocation has been regarded as the situation in which a defendant kills someone in the heat of the moment, having momentarily lost his or her control. Provocation was originally a matter for a jury or court to decide alone, determining what would provoke a normal person to suddenly or temporarily lose control and kill. Increasingly, however, psychiatrists were reluctantly drawn into this defense by being asked to submit evidence of psychiatric conditions that might increase the propensity of certain vulnerable individuals to be provoked. To prevent the use of this defense by those who lose self-control at the slightest provocation, the loss of self-control has been judged against how an average person might have reacted in the same situation, i.e., if the average person might have done the same in the same circumstances. It is only a partial defense and only to a charge of murder, not even attempted murder.1 The Court of Appeal accepted in Marks2 that provocation could be a defense to a charge of being an accessory to murder. In cases other than murder, the presence of provocation can lead to mitigation by way of reducing the sentence, which is impossible in the case of murder where currently there is a mandatory fixed sentence of life imprisonment. However, this does not preclude the imposition of a life sentence.3 Provocation started as a common-law defense, and, as such, its definition arose from the examination of case law.

Provocation is some act, or series of acts, done by the dead man to the accused which would cause in any reasonable person, and actually causes in the accused, a sudden and temporary loss of self-control, rendering the accused so subject to passion as to make him or her for the moment not master of his mind. This came to be considered too restrictive. Significant changes that in fact widened the defense resulted from Section 3 of the Homicide Act 1957. The Section 3 definition of the Homicide Act 1957 was: Where, on a charge of murder, there is ­evidence on which the jury can find that the person charged was provoked (whether by things done or by things said or by both together) to lose his self-control, the question whether the provocation was enough to make a reasonable man do as he did shall be left to be determined by the jury, and in determining that question the jury shall take into account everything both done and said according to the effect which, in their opinion, it would have had on a reasonable man. While provocation was termed a defense, the burden of proof still remained on the prosecution.5,6 However, the defense was criticized as being too subjective.

495

496  The defense of loss of control

Further changes resulted from subsequent case law, and most recently with the new partial defense to murder of loss of control under the England and Wales Coroners and Justice Act 2009, which came into effect on April 10, 2010. Such provisions now also apply in Northern Ireland, where Section 7 of the Criminal Justice (Northern Ireland) Act 1966, similar to the Section 3 provisions for provocation of the Homicide Act 1957 in England and Wales, no longer has effect. In Scotland, based on Robertson v. HM Advocate (1994), SC(JC) 245, provocation requires a loss of self control, but there must be a proportionate relationship between the provocation and the reaction. It usually results in a conviction for culpable homicide. In the Republic of Ireland, provocation is defined as the sudden and temporary loss of self control in any reasonable person (R v. Duffy). In some US and Australian states, provocation can be a defense to any offenses against the person.

HISTORICAL ORIGINS OF DEFENSE OF PROVOCATION Provocation has a long history as a common-law defense to murder. Although the doctrine has much earlier roots, it emerged in its recognizable form in the seventeenth and eighteenth centuries. It comes from the Restoration period and age of gallantry, in which gentleman habitually carried lethal weapons and acted in accordance with a code of honor that required insult to be personally avenged by instant retaliation, at a time when the mandatory penalty for premeditative murder was death. To show anger in “hot blood” for a proper reason as an appropriate response was not merely permissible but the badge of a man of honor. The human frailty to which this defense of provocation made allowance was the possibility that the man of honor might overreact and kill when lesser retaliation would have been appropriate. Provided that he did not grossly overreact in

the extent or manner of his retaliation, the offense would be manslaughter and execution avoided. As Lord Hoffman7 stated, “the doctrine of provocation has always been described as a concession to human frailty and the law illustrates Kant’s dictum that, from the crooked timber of humanity, nothing straight can be made.”

CRITICISM OF CASE LAW LEADING TO REFORM IN THE CORONERS AND JUSTICE ACT 2009 Table  72.1 lists factors that have been cited over the years in case law as increasing an individual’s propensity to provocation. Forensic psychiatrists, like others, became increasingly concerned about cases in which justice did not seem to be served for those who killed out of fear of serious violence and not following a sudden loss of control. Much of the criticism focused on the fact that the cases appeared to distinguish between men and women. Women are more likely to kill their spouses as a result of planning due to “slow burn” than men, who tend to kill in the heat of the moment, resulting in the fact that men were more likely to secure the defense of provocation than were women. Insufficient attention may have been given to the fact that a woman may feel powerless against a physically stronger husband and thus may not be able to act on the spur of the moment. As a result, she may have to wait to strike until her husband is asleep or otherwise incapacitated, for example, with alcohol. The defense of battered woman syndrome de-emphasized the defense of provocation by the victim, instead focusing on the accused’s mental condition, which in turn can lead to a finding of diminished responsibility rather than provocation. This occurred in the case of Ahluwalia,8 with the accused’s depression being considered an internal “abnormality of mind” within the law of diminished ­responsibility. In this case, the defendant killed her husband, following

Table 72.1  Factors that have been cited in case law as increasing proneness to provocation • Characteristics of a defendant, for example, an addict taunted about his addiction (e.g., glue sniffing in R v. Marshall [1996] AC 90), a man taunted about his sexual impotence or even pedophilia (R v. Camplin [1978] AC 705) • Age and sex • Psychiatric disorders, for example, organic brain damage (Luc Thiet Thuan v. Queen [1997] AC 131 PC), depression (R v. Smith (Morgan) [2001] 1 AC 146), and post-traumatic stress disorder and personality disorder (R v. Thornton [1996] 1 WLR 1174), but not reaching grounds for diminished responsibility • Episodic discontrol • Over-possessiveness and jealousy, including over-possessiveness of land (R v. Dryden [1995] 4 All ER 987) • Past history altering perception of provocation, for example, “final straw” in someone previously abused or initiation of a behavioral pattern by a victim that had previously led to abuse of defendant • Self-induced provocation, where the defendant’s own behavior predictably causes provocative conduct in a victim • Mistaken perception of provocation • Provocation by a lawful act • Cumulative provocation • Temporary states, such as eczema or premenstrual tension

Coroners and Justice Act 2009  497

a  long history of violence and abuse, by pouring gasoline over him and setting him on fire. However, as there was evidence of planning and no “sudden and temporary” loss of control, the court rejected the argument that the requirement for a “sudden” loss of control should not apply in this “slow burn” case. However, the court found a compassionate way out by holding that there was evidence that the defendant had suffered from diminished responsibility as a result of endogenous depression (not battered woman syndrome, which was only later recognized by the courts), a defense that through no fault of the defendant, was not raised at the trial. Arguments supported this at the retrial, resulting in a finding of manslaughter on grounds of diminished responsibility. The finding was probably influenced by public sympathy for the case. Such women may not wish to be classified as having a defense of diminished responsibility through mental disorder. In Thornton,9 the trial judge thought the accused should have sought alternatives, such as walking out on her husband. However, in practice such individuals may have nowhere to go to, especially when children are involved and the women are economically dependent on their husband, leaving aside other psychological issues such as learned helplessness. Smith10 noted that it “is perhaps one of the consequences of the mandatory penalty for murder that defenses will be artificially extended so as to untie the judge’s hands in hard cases.” From a battered person’s perspective, a better defense in England was often self-defense, as this would lead to total acquittal. English juries have allowed even limited evidence of self-defense to enable them to acquit a battered person. Proposals for reform were made by the Law Commission in its reports Partial Defences to Murder in 200411 and Murder, Manslaughter and Infanticide in 2006,12 followed by the Ministry of Justice and Home Office’s report, Murder, Manslaughter and Infanticide: Proposals for Reform of the Law.13 Reform followed with the passage of the Coroners and Justice Act in November 2009, which introduced the new partial defense to murder of loss of control.

CORONERS AND JUSTICE ACT 2009 The culmination of the government’s response to the proposals for reform was incorporated into the Coroners and Justice Act 2009, which came into effect in April 2010. Section 56 of this act abolished the common-law partial defense of provocation, and consequently Section 3 of the 1957 Homicide Act, and replaced it with a new partial defense to murder of “loss of control.” Section 54 outlines the criteria that need to be met for the new partial defense of loss of self-control to be successful. Subsection (1) lists these as: (a) the defendant’s conduct resulted from a loss of self-control, (b) the loss of self-control had a qualifying trigger (which is defined in section 55), and

(c) a person of the defendant’s sex and age with an ordinary level of tolerance and self-restraint and in the circumstances of the defendant might have acted in the same or similar way to the defendant. It is of note that (b) and (c) of subsection (1) are akin to the previous defense of provocation’s respectively “subjective” (from the perspective of the defendant) and “objective” conditions. Subsection (2) clarifies that the loss of control need not be sudden. However, it will remain open for the judge (in deciding whether to leave the defense to the jury) and the jury (in determining whether the killing did, in fact, result from a loss of self-control and whether the other aspects of the partial defense are satisfied) to take into account any delay between a relevant incident and the ­k illing—that is, it shall not apply where the defendant acted in a considered desire for revenge. This is likely to assist defendants who have killed as a result of a “slow burn” ­reaction to being victims of prolonged, repeated domestic violence in that they will no longer need to prove a “sudden and temporary” loss of control. It may also apply to those who may obsessionally ruminate on a provocation before losing control. Subsection (3) clarifies that the reference to the defendant’s circumstances in subsection (1)(c) means all of those circumstances, except those whose only relevance to the defendant’s conduct is that they affect the defendant’s ­general level of tolerance and self-restraint. Thus, a defendant’s history of abuse at the hands of the victim could be taken into account in deciding whether an ordinary person might have acted as the defendant did, whereas the defendant’s generally short temper could not. Consequently, the jury should consider whether a person of the defendant’s sex and age with an ordinary level of tolerance and self-restraint and in the defendant’s specific circumstances might have acted as the defendant did. Subsection (3) is likely to result in a wider range of circumstances than was allowable under previous case law. The jury will be able to consider such circumstances even if they do not affect the gravity of the triggering conduct. Subsection (4) specifies that those acting in a considered desire for revenge cannot rely on the partial defense, even if they lose self-control as a result of a qualifying trigger. Subsection (5) clarifies where the burden of proof lies. If sufficient evidence of the partial defense is raised, the burden of disproving the defense beyond reasonable doubt rests with the prosecution. It will be a matter of law, and therefore for a judge to decide, whether sufficient evidence has been raised to leave the partial defense to the jury. This differs from the position with the previous partial defense of provocation where, if there was evidence that a person was provoked to lose his or her self-control, the judge was required by Section 3 of the 1957 Act to leave the partial defense to the jury, even where no jury could reasonably conclude that a reasonable person would have reacted as the defendant did. When there is sufficient evidence for the issue to be considered by the jury, the burden will be on

498  The defense of loss of control

the  prosecution to disprove it. This is the same burden of proof as other defenses, including self-defense. Under subsection (7), when the defense is successful, the defendant will be guilty of manslaughter instead of murder. The burden of proof rests with the defense, although a judge may find there is sufficient evidence to raise the issue. Under Section 55, the qualifying triggers for a loss of self-control occur when the loss of self-control is attributable to a fear of serious violence (subsection 3; the fear trigger), which accommodates victims of domestic violence who kill violent and abusive partners, in response to certain things done or said (or both; subsection 4) or to a combination of both fear of serious violence and a response to certain things said or done (subsection 5). In cases where the defendant lost self-control because of his or her fear of serious violence from the victim, as in the complete defense of self-defense, this will be a subjective test, and the defendant will need to show that he or she lost selfcontrol because of a genuine fear of serious violence, whether or not the fear was, in fact, reasonable. The fear of serious violence could be in respect of a child or other relative of the defendant, but it could not be a fear that the victim would in the future use serious violence against people generally. Under subsection (4), the thing(s) done or said must amount to circumstances of an extremely grave character and cause the defendant to have a justifiable sense of being seriously wronged. Whether a defendant’s sense of being seriously wronged is justifiable will be an objective question for a jury to determine (assuming that there is sufficient ­evidence for the defense to be left to the jury). The effect of all this will be to substantially narrow the potential availability of a partial defense in cases where a loss of control is attributable to things done or said compared to the current partial defense of provocation (where no threshold exists in relation to the provoking circumstances). Subsections (6)(a) and (b) specifically exclude selfinduced provocation. Under subsection (6)(c), if a person kills another because that person has been unfaithful, the defendant will not be able to claim the partial defense. Case law restricts the definition of sexual infidelity.11 This does not prevent other things done or said from potentially amounting to qualifying triggers if (ignoring the sexual infidelity) they amount to grave circumstances that give the defendant a justifiable sense of being seriously wronged, for example, sexually abusing the defendant’s child. Overall, the qualifying triggers are narrower than under previous legislation. Section 56 abolished the common-law defense of provocation. However, as the new legislation was not retrospective, previous case law is likely to remain relevant for the time being.

CONCLUSIONS As the Law Commission stated in its November 2006 report regarding reform of the law of murder, manslaughter, and infanticide, “The law governing homicide in England and Wales is a rickety structure set upon shaky foundations.”

Past criticisms of the law on provocation have, as has been shown, included its inappropriate use by those who kill after losing their temper and the fact that the law was not sufficiently tailored to those who kill out of fear of serious violence—for example, not taking into account “slow burn” responses to domestic violence. Another issue raised was whether it was right to allow only provoked anger rather than merely provoked fear of a degree less than for self-defense. Questions of equality also were raised regarding gender, sexual orientation, and “honor killings.” In particular, concern was raised as to whether the partial defense of provocation was too easily adopted by men who killed their female partners and claimed they were provoked by the victim’s infidelity or ending of the relationship. In contrast was the concern that it was too hard for such a defense to be adopted by women who kill abusive partners, partly because this was not provocation in the sense that the Section 3 Homicide Act 1951 statute intended, and partly because the requirement for loss of self-control may fit better with men’s reaction to provocation than women’s.

Assessment of whether the new law will be clearer and public confidence increased An important effect of the Coroners and Justice Act 2009 with its new partial defense to murder of loss of control relates to the balance it strikes in terms of the sympathy and excuse offered to mentally disordered offenders. It is likely that a greater number of defendants will be able to plead this defense successfully, especially female defendants with psychiatric sequelae of trauma. However, most mental health concerns, which will now be excluded from the self-control limb of provocation, would now have to be absorbed into the partial defense of diminished responsibility. One important difference from the previous law is that only a trigger of grave character will suffice. A second difference is that it is a test of whether the words and/or conduct cause the defendant to have a justifiable sense of being seriously wronged, the important words being justifiable and seriously. The combination of these two words should restrict the operation of the defense of loss of self-control. As for the first difference, this would prevent examples such as the crying of a 17-day-old baby as being provocation,14 because this would not constitute a “ justifiable sense of being seriously wronged.” A third difference is that the court is now prevented from taking into account matters only of relevance to the defendant’s conduct because they bear simply on his or her general capacity for self-control. Under the new legislation there is no mention of sudden or immediate loss of control. This leaves the issue of whether a partial defense of loss of control would be allowed where there was a considerable delay between the “qualifying trigger” and the killing.

Conclusions 499

The proposals will, however, mean that those who act out of fear of violence will be able to rely on the defense of loss of self control. The merits of the new legislation are that it rationalizes this previously unsatisfactory area of law. It also is likely to reduce the frequency of appeals to the Supreme Court by increasing the proportion of cases disposed of by guilty pleas. It will reduce the number of male defendants successfully using the plea of loss of control after killing following the sexual infidelity of a partner compared to the previous defense of provocation. These merits, together with the likely greater number of battered women successfully using this plea, are likely to increase public confidence in the justice of this new legislation.

Relevance of defense for those with mental disorders: Will justice be improved for them? The position following the case of Holley15 in 2005 appeared to be that psychiatric conditions that reduce self-control can no longer be used to assist partial defenses to murder, such as provocation, unless they are so significant as to amount to diminished responsibility. The defendant suffered from the recognized medical condition of alcoholism. He claimed that his longtime girlfriend had taunted him by stating that she had had sex with another man. He killed her following alcohol consumption by striking her with an axe he was using to chop wood. The trial judge directed the jury to ignore the effect of alcohol when considering provocation. The defendant was convicted of murder. This was supported on appeal. The decision in Holley primarily was made because the majority held that the 1957 Act requires it, not because it would necessarily be just, and the new legislation confirms this situation. Under the new legislation, there may be less reliance on psychiatric evidence because defendants generally will need to portray themselves as ordinary people who are grossly frightened or harmed and lose control, acting out of a justified sense of anger. Whether this will be the case awaits the outcome of case law and appeals in relation to this relatively new legislation. However, it is likely that mental disorder will still inform the court’s decision, for example, through low intelligence resulting from brain damage, as in Luc Thiet Thuan,16 or provoking words about mental disorder, such as name calling. Mental disorder might also be relevant in juries’ consideration of the gravity of the fear claimed by a mentally disordered defendant; for example, a defendant with posttraumatic stress disorder may be more in fear of additional trauma than those without the condition. Also, those with abnormal paranoid (persecutory) ideas as a result of severe psychotic mental illness may perceive the victim in a more threatening manner than normal. Such paranoid ideation may also be relevant to the impact on the individual regarding his justifiable sense of being wronged. Therefore, if asked to consider a defense of loss of control, clinicians should look for evidence in the defendant

of a ­psychiatric disorder, such as battered woman syndrome, that may increase the perceived gravity of a qualifying ­trigger, but also for psychiatric disorders that result in impairment of the defendant’s general capacity for self-restraint and tolerance of a provoking trigger, which may preclude the defense of loss of control. Some of the difficulties in the area of loss of control/ provocation, particularly in relation to defendants with recognized psychiatric conditions, arise from the inherent mismatch of law and psychiatry. In defendants with psychiatric disorders, there can be pure abnormal killing directly arising from symptoms such as delusions (false beliefs) due to severe psychotic mental illnesses, but also triggered abnormal killing indirectly linked to mental disorder through a general reduced tolerance of stress and increased impulsivity. While diminished responsibility and loss of control (­previously provocation) should be legally incompatible, the former internally and the latter externally caused, in psychiatric practice they can be psychologically ­compatible. Those with an “abnormality of mental functioning” for the purposes of diminished responsibility may have increased vulnerability to triggering, and consequently there may be crossover with provocation. Indeed, aspects of an “abnormality of mental functioning” may also result in “mental characteristics” relevant to provocation. There is thus probably a spectrum in practice of those from pure diminished responsibility to pure loss of control (provocation). It is likely that over the years, juries and the courts have been searching for natural justice within the spectrum. It is, however, possible for a defendant to plead loss of control and diminished responsibility in tandem. The jury will be asked to consider the defense of diminished responsibility first, and it this fails, then loss of control. Over time, there has been evolution from an emphasis of “sudden loss of mastery over the mind,” as shown in R  v.  Duffy,* through Section 3 of the Homicide Act 1957, which incorporated “things said” to things done as provocation, to the current Coroners and Justice Act 2009 with removal of the requirement of sudden loss of control. Provocation was relatively ignored by psychiatrists as a possible medical defense, but following cases such as Camplin17 and Newell,18 psychiatric conditions were considered as “characteristics” affecting sensitivity rather than reactivity. For instance, depression may increase the vulnerability to provocation but also lower the threshold for violence. From relevant characteristics, the case of Morhall19 allowed consideration of “circumstances.” The new legislation of loss of control now refers to “circumstances” rather than “characteristics.” The Royal College of Psychiatry, in its evidence to the Law Commission detailed in Partial Defences to Murder in 2004, noted the clinically frequent co-occurrence of anger and fear. However, ­consequent suggestions that diminished responsibility and provocation (now loss of control) might be incorporated as one defense have never been adopted, although probably the real problem in this area remains the mandatory life sentence for murder.

500  The defense of loss of control

REFERENCES 1. R v. Bruzas (1972), Crim LR 367. 2. R v. Marks (1998), Crim LR 676. 3. R v. Whitfield (1976), 63 Cr App R39. 4. R v. Duffy (1949), 1 All ER 932n. 5. R v. L Chun Chen (1963), AC 220. 6. R v. Rolle (1965), 1 WLR 1341. 7. R v. Smith (Morgan) (2000), 4 All ER 289. 8. R v. Ahluwalia (1992), 4 All ER 889. 9. R v. Thornton (1996), 2 All ER 1023 CA. 10. R v. Smith, J.C. (1992), Crim LR 194. 11. Law Commission. Report No. 290. Partial Defences to Murder. London: Law Commission, 2004.

12. Law Commission. Report No. 304. Murder, Manslaughter and Infanticide (“The Murder Report”). London: Law Commission, 2006. 13. Ministry of Justice and Home Office. Murder, Manslaughter and Infanticide. Proposals for Reform of the Law. London: Ministry of Justice and Home Office, 2008. 14. R v. Doughty (1986), 83 Cr App R 319, CA. 15. Attorney-General for Jersey v. Holley (2005), UK PC 15th June. 16. R v. Luc Thiet Thuan (1997), AC 131. 17. DPP v. Camplin (1978), 2 All ER 168, HL. 18. R v. Newell (1980), 71 Cr Ap p R 331. 19. R v. Morhall (1996), AC 90 HL.

73 Infanticide MICHAEL C. CRAIG Introduction 501 Neonaticide 501 Infanticide 502 Fathers and infanticide 502

Prevention 503 Conclusion 503 References 503

INTRODUCTION

is that biological factors frequently play a significant role in the etiology of infanticide. However, this assumption may be incorrect, particularly in the case of neonaticide, as is outlined in the next section.

The term infanticide is derived from the Latin words infans and caedere, meaning, respectively, “incapable of speech” and “to kill.” Infanticide is generally understood to refer to the killing of a child under 12 months old. The killing of a “newborn” infant, usually during the first 24 hours of life, is often referred to as neonaticide.1 It is difficult to get accurate figures on the incidence of infanticide/neonaticide as many cases are probably never discovered and official gores are therefore likely to be an underestimate.1,2 In addition a controversial body of evidence suggests that up to 10% of cases of sudden infant death syndrome (SIDS) may ultimately be unidentified cases of infanticide. 3 Despite these caveats, conservative estimates of infanticide/neonaticide within industrialized countries suggest that the incidence ranges between 2.4 per 100,000 to 7.0 per 100,000.4 Further, it has been ­estimated that 40% of cases occur within the first 4 weeks, 5 with neonaticide accounting for 20%–25% of discovered victims.6 These figures suggest that one is at greatest risk of being a homicide victim during the first 24 hours of life.7 This finding has contributed to neonaticide being considered a separate entity within the infanticide literature. The distinction between neonaticide and infanticide is not, however, made explicit in the England and Wales Infanticide Act (1938). This permits a woman to be convicted of manslaughter, and not murder, if she “causes death of her child under the age of 12 months by wilful act or omission, but at the time of the act or omission the balance of her mind was disturbed by reason of her not having fully recovered from the effect of her having given birth to the child or by reasons of the effect of lactation consequent on the birth of the child.”8 The assumption behind the Infanticide Act

NEONATICIDE The practice of neonaticide was relatively common in many ancient civilizations. Ritual killing of neonates with structural or aesthetic abnormalities is documented among the Aztecs, ancient Chinese, Mardudjara Aborigines of Australia, and some African cultures.9 In ancient Greece and ancient Rome, neonaticide was, in some instances, enforced by law. Weak and/or deformed babies were destroyed for eugenic reasons and to reduce their perceived burden on the state.9 Neonaticide of females has been reported to be more common. Census figures from medieval England, for example, “showed a very marked predominance of male children over female children, strongly suggesting deliberate female infant homicide.”10 Explanations for this gender bias have included a simple “preference of sons,”9 a wish “to exert male dominance over the household,”11 and an effective method of population control.12 In the industrialized world, the development of antenatal screening and gender equality have contributed to the virtual eradication of these historical causes for neonaticide. An analysis of neonaticide rates in England and Wales from 1982 to 1988, for example, reported that victims were equally likely to be girls (n = 20) as boys (n = 25).5 However, risk factors that are as likely to play a significant a role today include pregnancies associated with ­feelings of shame (e.g., following rape or incest, or outside of wedlock). This is supported by a review of 37 case reports of neonaticide between 1751 and 1968.1 The review reported that the stigma of having an illegitimate child is 501

502 Infanticide

“the primary reason for neonaticide in unmarried women today as it has been through the centuries.” This determination is supported by a more recent study of 11 cases of neonaticide, in which all but one of the victims was born out of wedlock.13 Other characteristics of neonaticidal mothers include young age (usually late teens to mid-20s), poor education, single status, emotional immaturity, and still living with parents. Passivity has been reported to be another key trait of mothers who commit neonaticide instead of terminating the pregnancy.14 This trait has been reported to be associated with conscious concealment of the pregnancy in more than 90% of cases.15 In other cases a psychological process known as “denial” is an associated characteristic.16,17 The incidence of denial at 20 weeks’ gestation has recently been found to be as high as 1 in 475 pregnancies, with 1 in 2,500 of these cases persisting until delivery.18 During denial the normal signs of pregnancy are usually rationalized away and complications such as vaginal bleeding misinterpreted.19–22 The strength of denial can be so powerful that labor pains may be interpreted as colic or menstrual pains, and delivery as a bowel movement.2 Although a psychotic form of denial has also been reported, this variant was absent in a review of 81 neonaticidal women who had either concealed or denied their pregnancies.23 Indeed, mental illness is relatively uncommon in cases of neonaticide and when evident appears to play a relatively minor role in the homicidal behavior. In summary, a neonaticidal mother is typically a poorly educated, emotionally immature young woman, living at home with her parents, who after concealing a pregnancy delivers alone outside of a medical setting. The neonate is subsequently left to die from passive neglect or is killed by active, usually nonweapon methods, such as drowning, strangulation, or suffocation.24 These features are distinct from those associated with infanticide.

INFANTICIDE In the historical literature, many of the factors motivating infanticide have been documented to be similar to those associated with neonaticide. However, in the industrialized world, the hallmark example of a woman who commits infanticide is very different from that of the neonaticidal mother. Essentially, women who commit infanticide tend to be better educated, over 25 years old,1 and usually married or living with their partner, and use weapon as well as nonweapon methods of killing.5,25 Psychiatric morbidity is more frequently associated with infanticide than with neonaticide.26 Psychiatric symptoms may be partially attributable to physiological changes post partum:27 the risk of becoming psychotic in the month following childbirth has been estimated to be 25 times greater than at other times. Further, the incidence of unipolar depressive episodes has been reported to double28 and the rate of inpatient admissions triple29 post partum. Approximately 10%–20% of women experience a depressive

episode during the postnatal period.30 The incidence of severe mental illness associated with infanticide ranges from 25%–75% across different studies.1,31–33 However, it has also been reported that women who killed children less than 6 months old were not usually classified as mentally ill but as “battering mothers.” Among those women in whom mental illness was implicated as the cause of their actions, infant homicide was often found to be an extension of a suicidal act (on the grounds that there would be no one left to care for the child). Occasionally the primary motive was altruistic, based on a delusional belief that a terrible fate awaited the infant. Although psychiatric morbidity is a risk factor, most women who are mentally ill do not harm their children, and many women who commit infant homicide are not mentally ill. In addition to differences in the characteristics of neonaticidal versus infanticidal mothers, there may also be differences in the characteristics of the infant. In particular, it has been reported that in the first few months boys are significantly more likely to be victims of infanticide than girls.5,25 The reasons for this are unclear, but some suggest that this may be due to an increased physical vulnerability of males, consistent with the higher number of deaths among male infants from any cause. Alternatively, parents may think that male babies are more robust and are consequently more aggressive to them. Other suggestions include the possibility that male infants interact with the ­environment in a different way, perhaps by being more active, assertive, or vocal, and are hence more likely to elicit a murderous response.

FATHERS AND INFANTICIDE Studies to date suggest that mothers are significantly more likely to commit neonaticide. However, for other infants aged from one day to one year old, the pattern varies between studies.34,35 A recent study of infanticide in England and Wales found that 84 fathers and 68 mothers were recorded as being the suspects in 169 infanticides between 1982 and 1988. If one assumes that there is an equal risk for the perpetrator to be the mother or the father, this difference does not reach statistical significance. However, this assumption probably underestimates the risk of fathers being the perpetrators because there are many single-parent families, and in most cases the single parent is the mother. Although the Infanticide Act does not recognize mental illness among fathers who commit infant homicide, postnatal mental illness has been reported to occur in men as well as women. A recent meta-analysis, for example, reported that prenatal and postpartum depression was evident in about 10% of men and was relatively higher in the 3- to 6-month postpartum period.36 Further, the risk of psychiatric morbidity (predominantly a major depressive episode or generalized anxiety disorder) was reported to be more than 40% in spouses of women admitted to an inpatient mother and baby unit.37

References 503

PREVENTION The majority of publications on infanticide and neonaticide have paid little attention to preventive strategies. However, the literature to date suggests that strategies are likely to differ with respect to prevention of neonaticide compared to infanticide. The majority of risk factors for neonaticide conspire against prevention. A shy, timid, passive, poorly educated adolescent living with her parents who is concealing her pregnancy or in a state of denial without significant psychiatric symptoms is less likely to come into contact with the medical profession. The problem is compounded by the observation that 95% of women who commit neonaticide deliver at home, and only 15% receive any antenatal care.13 Some suggest that the place where physicians can best intervene is through the provision of effective family planning methods for women at risk.38 However, to date ­studies have not analyzed the methods of contraception used by mothers who have committed neonaticide. It is probable, however, that these methods have been suboptimal and that an improvement in both education and the provision of family planning among young women would be of great benefit. It has also been suggested that liberalization of abortion laws would reduce neonaticide1 However, a study looking at data from 39 nations reported the absence  of an association between the strictness of abortion laws and the incidence of neonaticide.39 Moreover, in England and Wales, the incidence of infant homicide changed little after  19855 despite passage of the Abortion Act 1967. The absence of a relationship between abortion laws and neonaticide rates may be attributable to the effects of passivity and concealment in women who go on to commit neonaticide instead of terminating the pregnancy. Healthcare workers should perhaps be especially alert to the potential danger to the unborn child in cases where a woman conceals a pregnancy or absents herself from antenatal care. In cases where concealment or denial of the pregnancy extends into the third trimester, inpatient management may be appropriate, “if necessary with assistance of involuntary commitment proceedings.”40 The risk factors for infanticide offer greater potential for preventative strategies than those for neonaticide. The antenatal clinic and postnatal follow-up provide opportunities for identifying high-risk cases. In Britain, midwives are in a strong position to identify postpartum mental illness, yet research into postnatal depression suggests that they fail to identify many cases.41 This could be improved by more widespread use of screening procedures such as the 10-item Edinburgh Postnatal Depression Scale in all women post partum.42 Increasing the frequency of home visits has met with some success in the prevention of child abuse and neglect.43 It has been postulated that this should be extended to women at higher risk of committing infant homicide.44 For example, cross-training healthcare professionals to enable them to deal with domestic violence has been suggested.45

However, there are no data on the relationship between infant abuse and infant homicide. In addition, men who committed infant homicide usually were not abusive before the offense. Covert video surveillance has been used to investigate parents who had reported apparent life-­ threatening events in their children and were suspected of having “induced” the illness (Munchausen’s syndrome by proxy). In one study, abuse was detected in 33 of 39 cases, with recordings of intentional suffocation in 30.46 Although none of these parents had evidence of psychotic illness, many had an underlying personality disorder. It is unclear how often such behavior leads to infant homicide (or a misdiagnosis of SIDS), but some people have argued that covert video surveillance should be used in selected cases. This remains an area of significant controversy. A final preventative strategy is the provision of “places of safety” where mothers can anonymously abandon an infant. This strategy existed in the form of foundling wheels during the twelfth to eighteenth centuries. Foundling ­ wheels were cylinders built into an outside wall of a church or convent that acted like a revolving crib. Mothers anonymously placed an unwanted infant into the cylinder, turned it around so that the infant was inside the building, and then rang a bell. More recently this approach has been adapted by hospitals and community centers in a number of international cities. Modern versions of the foundling wheel, known as baby hatches, consist of a door or flap in an outside wall that leads to an internal insulated bed with sensors to alert caregivers when a baby has been deposited. In the absence of appropriate studies, it is not possible to confirm whether this approach leads to a significant reduction in the number of neonaticides and infanticides. Although it is likely that in some cases this system leads to a viable alternative to infant homicide, these hatches are considered to be unacceptable by many countries and are illegal in the United Kingdom.

CONCLUSION Studies to date suggest that there are significant differences in the perpetrators of and in the factors motivating homicide during the first 24 hours of life (i.e., neonaticide) compared to homicide during the first year of life (i.e., infanticide). This chapter has explored the nature of these differences and considered how this knowledge may be used to reduce the risk of infant homicide. However, research into infant homicide remains limited, and more studies are needed to further minimize the risk of infanticide.

REFERENCES 1. Resnick P. Murder of the newborn: A psychiatric review. American Journal of Psychiatry. 1970; 126(10): 1414–20. 2. Marks MN. Characteristics and causes of infanticide in Britain. International Review of Psychiatry. 1996; 8: 99–106.

504 Infanticide

3. Levene S, Bacon CJ. Sudden unexpected death and covert homicide in infancy. Archives of Disease in Childhood. 2004; 89(5): 443–47. 4. Porter T, Gavin H. Infanticide and neonaticide: A review of 40 years of research literature on ­incidence and causes. Trauma Violence Abuse. 2010; 11(3): 99–112. 5. Marks MN, Kumar R. Infanticide in England and Wales. Medicine, Science, and the Law. 1993; 33(4): 329–39. 6. Pitt SE, Bale EM. Neonaticide, infanticide, and filicide: A review of the literature. Bulletin of the American Academy of Psychiatry and the Law. 1995; 23(3): 375–86. 7. Criminal Statistics. London; 1976. 8. Infanticide Act 1938. Ch 36. Available at: legislation. gov.ukukpga/Geo6/1-2/36/contents. 9. Laughlin CD. Pre- and perinatal anthropology III: Birth control, abortion and infanticide in cross cultural perspective. Pre- and Perinatal Psychiatry Journal. 1994; 9(1): 85–101. 10. Kellet RJ. Infanticide and child destruction—The historical legal and pathological aspects. Forensic Science International. 1992; 53: 1–28. ­ nalysis 11. Freeman MMR. A social and ecologic a of systematic female infanticide among the Netsilik Eskimo. American Anthropologist. 1971; 73: 1011–18. 12. Ember M. Warfare, sex ratio and polygamy. Ethnology. 1974; 13: 197–206. 13. D’Orban PT. Women who kill their children. British Journal of Psychiatry. 1979; 134: 560–71. 14. Gummersbach K. Die kriminalpsychologische Personlichkiet der Kindes modernnen und ihre Wertung im gerichtsmedizinischen Gutachten. Weiner Medizinische Wochenschrift. 1938; 88: 1151. 15. Putkonen H, Collander J, Weizmann-Henelius G, Eronen M. Legal outcomes of all suspected neonaticides in Finland 1980–2000. International Journal of Law and Psychiatry. 2007; 30(3): 248–54. 16. Atkins EL, Grimes JP, Joseph GW, Liebman J. Denial of pregnancy and neonaticide during adolescence: Forensic and clinical issues. American Journal of Forensic Psychology. 1990; 17(1): 5–33. 17. Wilkins AJ. Attempted infanticide. British Journal of Psychiatry. 1985; 146: 206–8. 18. Jenkins A, Millar S, Robins J. Denial of pregnancy— A literature review and discussion of ethical and legal issues. Journal of the Royal Society of Medicine. 2011; 104(7): 286–91. 19. Brezinka C, Huter O, Biebl W, Kinzl J. Denial of pregnancy: Obstetrical aspects. Journal of Psychosomatic Obstetrics and Gynecology. 1994; 15(1): 1–8. 20. Brockington I. Pregnancy and Mental Health. In: Motherhood and Mental Health. Brockington I. Oxford: Oxford University Press, 1996: 61–134.

21. Gerchow J. Die arzlich-forensische Beurteilung von Kindesmorderinnen. Halle, Germany: Carl Morlag Verlag, 1957. 22. Finnegan P, McKinstry E, Robinson GE. Denial of pregnancy and childbirth. Canadian Journal of Psychiatry. 1982; 27: 672–74. 23. Hatters Friedman S, Resnick PJ. Child murder by mothers: Patterns and prevention. World Psychiatry. 2007; 6(3): 137–41. 24. Meyer C, Oberman M. Mothers Who Kill Their Children: Understanding the Acts of Moms from Susan Smith to the “Prom Mom.” New York: NYU Press, 2001. 25. Marks MN, Kumar R. Infanticide in Scotland. Medicine, Science and the Law. 1993; 36(4): 299–305. 26. Sadoff RL. Mothers who kill their children. Psychiatric Annals. 1995; 25(10): 601–5. 27. Emery JL. Infanticide, filicide and cot death. Archives of Disease in Childhood. 1985; 60: 505–7. 28. Eberhard-Gran M, Eskild A, Tambs K, Samuelsen SO, Opjordsmoen S. Depression in ­postpartum and non-postpartum women: Prevalence and risk factors. Acta Psychiatrica Scandinavica. 2002; 106(6): 426–33. 29. Munk-Olsen T, Laursen TM, Pedersen CB, Mors O, Mortensen PB. New parents and mental disorders: A population-based register study. Journal of the American Medical Association. 2006; 296(21): 2582–89. 30. O’Hara MW, Swain AM. Rates and risk of postnatal depression—A meta-analysis. International Review of Psychiatry. 1996; 8: 37–54. 31. Kauppi A, Kumpulainen K, Vanamo T, Merikanto J, Karkola K. Maternal depression and filicide: Case study of ten mothers. Archives of Women’s Mental Health. 2008; 11: 201–6. 32. Lewis CF, Baranoski MV, Buchanan JA, Benedek EP. Factors associated with weapon use in maternal filicide. Journal of Forensic Science. 1998; 43(3): 613–18. 33. Krischer MK, Stone MH, Sevecke K, Steinmeyer EM. Motives for maternal filicide: Results from a study with female forensic patients. International Journal of Law and Psychiatry. 2007; 30(3): 191–200. 34. Daly M, Wilson W. Homicide. New York: Aldine de Gruyter, 1988. 35. Xie L, Yamagami A. How much of child ­murder in Japan is caused by mentally disordered ­mothers? Internal Medicine Journal. 1995; 2(4): 309–13. 36. Paulson JF, Bazemore SD. Prenatal and postpartum depression in fathers and its association with maternal depression: A meta-analysis. Journal of the American Medical Association. 2010; 303(19): 1961–9.

References 505

37. Harvey I, McGrath G. Psychiatric morbidity in spouses of women admitted to a mother and baby unit. British Journal of Psychiatry. 1988; 152: 506–10. 38. Goldstein RD. Risk factors for infant homicide. New England Journal of Medicine. 1999; 340(11): 895. 39. Lester D. Roe v Wade was followed by a decrease in neonatal homicide. Journal of the American Medical Association. 1992; 267: 3027–28. 40. Slayton RI, Soloff PH. Psychotic denial of thirdtrimester pregnancy. Journal of Clinical Psychiatry. 1981; 42: 471–73. 41. Briscoe M. Identification of emotional problems in postpartum women by health visitors. British Medical Journal (Clinical Research Ed.). 1986; 292: 1245–47. 42. Cox JL, Holden JM, Sagovsky R. Detection of postnatal depression: Development of the ten-item Edinburgh postnatal depression scale. British Journal of Psychiatry. 1987; 150: 782–86.

43. Olds D, Eckenrode J, Henderson CR. Longterm effects of home visitation on maternal life course and child abuse and neglect: Fifteen year ­follow-up of a randomized trial. Journal of the American Medical Association. 1997; 278: 637–43. 44. Brenner RA, Overpeck MD, Trumble AC, DerSimonian R, Berendes H. Deaths attributable to injuries in infants, United States, 1983–1991. Pediatrics. 103(5): 968–74. 45. Overpeck MD, Brenner RA, Trumble AC, Trifiletti LB, Berendes H. Risk factors for infant homicide in the United States. New England Journal of Medicine. 1998; 339(17): 1211–41. 46. Southall DP, Plunkett MCB, Banks MW, Falkov AF, Samuels MP. Covert video recordings of life-­ threatening child abuse: Lessons for child ­protection. Pediatrics. 1997; 100(5): 735–60.

74 Automatism IRSHAAD O. EBRAHIM AND CHRISTOPHER IDZIKOWSKI Introduction 507 Automatism in the United States 508 508 The British and common-law view

References 510 510 Further reading

“And I see men become mad and demented from no manifest cause and at the same time doing many things out of place, and I have known many persons in sleep groaning and crying out, some in a state of suffocation, some jumping up and fleeing out of doors, and deprived of their reason till they awaken and afterwards becoming well and rational as before, although they be pale and weak.”

The seminal legal definition is that of Lord Denning in Bratty v. A-G for Northern Ireland:

Hippocrates, 400 BC

INTRODUCTION In the United Kingdom and the United States and those jurisdictions based on UK law, for a person to be convicted of a crime, the law requires that the defendant has committed a criminal act (actus reus) and that he had a knowing intent to commit that act (mens rea). It is this element that must be shown to be lacking when a defense of automatism is used.1–4 The legal definition of automatism is based on the ­doctrine of mens rea, the fundamental basis of English law. Everyone who has reached the age of discretion is, unless the contrary is proved, presumed by law to be sane and accountable for his actions. Actus non fecit reus mens sit rea means the deed does not make a man guilty unless his mind is guilty. Unless the offense is a statutory one that carries an absolute liability (e.g., driving with a raised blood alcohol level), the doctrine of mens rea, or the presence of a guilty mind, can only be negated by certain considerations. Legally, automatisms are divided into two categories: (1) sane, or non-insane in the United Kingdom (arising from an external cause, e.g., a blow to the head or a bee sting), and (2) insane (arising from an internal factor such as a brain disorder, e.g., a stroke or epilepsy).

...an act which is done by the muscles without any control by the mind, such as a spasm, a reflex action, or a convulsion; or an act done by a person who is not conscious of what he is doing, such as an act done while suffering from concussion or while sleepwalking. Fenwick provides a comprehensive medical definition of automatism: An automatism is an involuntary piece of behaviour over which an individual has no control. The behaviour is usually inappropriate to the circumstances, and may be out of character for the individual. It can be complex, co-ordinated and apparently purposeful and directed, though lacking in judgment. Afterwards the individual may have no recollection or only a partial and confused memory for his actions. In organic automatisms there must be some disturbance of brain function sufficient to give rise to the above features.1 The medical concept of automatism—complex behavior in the absence of conscious awareness or volitional intent— is straightforward; the legal concept is quite different. It is sometimes easy medically to distinguish these two categories. For example, an attack by a swarm of bees resulting in a reflex turning of the steering wheel of a car is clearly a sane  automatism. An epileptic fit arising from a damaged brain and leading to a violent killing is clearly an insane automatism. But between these two extremes the medical and legal grounds do not coalesce happily. From a medical 507

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point of view, any abnormality of brain function that has led  to a disorder of behavior will usually contain components of both sane and insane automatism. For example, the blow to the head (external) only produces the automatism because it disrupts the functioning of the neurons in the brain (internal). It makes little sense to say that an offense committed in a confusional state following the injection of insulin is sane, while a similar state from too much insulin secreted by the pancreas is insanity.

AUTOMATISM IN THE UNITED STATES Legally, automatism has been defined by U.S. courts as “a  defense against criminal liability for those defendants who perform illegal conduct in a state of unconsciousness or semi-consciousness.” It may also apply to “behavior performed in a state of mental unconsciousness or ­dissociation without full awareness, i.e., somnambulism, fugue.” Although the automatism defense classically involves conditions such as convulsions, reflexes, and other acts that are performed without any conscious direction, the defense also applies to those who perform complex actions in a coordinated, directed fashion, but with substantially reduced awareness. Consequently, courts have recognized this defense in cases in which the defendant’s impaired consciousness was associated with epilepsy, somnambulism, concussion, or physical or emotional trauma.5 There is a lack of general consensus on the automatism defense in the United States. Some courts have held that automatism is a variation of the general defense of excuses, interpreting the disorder as a defect of reason that prevented the defendant from knowing the nature and quality of his actions (People v. Higgins), while other courts have accepted automatism as a form of insanity (Tibbs v. Commonwealth). Still others have accepted automatism as a separate defense, specifically excluding insanity as part of the description (People v. Martin, Fulcher v. State). In Jones v. State, the court addressed automatism as a failure-of-proof defense that goes to the voluntary act requirement of the Modal Penal Code (MPC), stating that “automatism applies to involuntary acts totally beyond the control and knowledge of the defendant.” The MPC includes somnambulism and convulsions as conditions that fail to meet the voluntary act requirements that can give rise to an automatism defense.5

THE BRITISH AND COMMON-LAW VIEW The British courts divide automatism into two types: noninsane and insane, as defined earlier. In Canada, automatism is classed as either mental disorder automatism (equivalent to insane in the United Kingdom) or non–­mental disorder automatism (equivalent to non-insane in the United Kingdom). In Canada, sleepwalking is held to be non–­ mental disorder (sane) automatism, and in the United Kingdom it is held to be insanity. The history of the automatism defense and the sane ­versus insane paradigms is best illustrated by examining

the key legal cases. In 1955, in the case of R v. Charlson, the defendant assaulted his son and threw him out a window. The defendant was found to have a brain tumor and epilepsy, and the court accepted that his actions were a result of these conditions, which were then legally defined as sane automatisms. The defendant was acquitted because it was held at the time that a brain tumor and epilepsy could not be classified as insanity. However, two years later in the case of R v. Kemp, the defendant, who suffered from cerebrovascular disease, assaulted his wife with a hammer, and the court found that the most likely explanation for his behavior was an ­automatic act carried out as a result of a disease of the mind. Therefore this was an insane automatism. This was contrary to the conclusion reached in the Charlson case, where a disease of the mind was judged sane. As a result of the Kemp case, organic brain disease was classified as insane automatism because the behavior arose from an internal cause. This was confirmed for sleepwalking in the case of R v. Burgess, as it was held on the medical evidence that sleepwalking was a disease of mind and hence an insane automatism. The court ruled similarly for epilepsy in 1983, in the case of R v. Sullivan. In the case of Bratty v. A-G for N. Ireland in 1963, Bratty, charged with killing a girl who was a passenger in his car by strangulation, claimed he was epileptic and in an automatic state as a defense. Lord Denning of the appeal court ruled that any mental disorder that had manifested itself in violence and was prone to recur was a disease of the mind and an insane automatism. Furthermore, Lord Denning wanted to make certain that those individuals who were habitually violent as a result of a medical condition would be detained in a hospital. He said, “At any rate, it is the sort of disease for which a person should be detained in hospital rather than being given an unqualified acquittal.” This view was reinforced in the case of R v. Sullivan, where it was reasoned that the insanity defense in the United Kingdom was intended to protect the public from recurrences of dangerous conduct, and Sullivan, an epileptic, was detained in a mental hospital. The 1973 case of R v. Quick has also contributed to the present definition of automatism. Quick, a psychiatric nurse, had insulin-dependent diabetes and had been charged with assaulting a patient while hypoglycemic after eating a small breakfast and drinking alcohol. Because this behavior was a consequence of an insulin injection (an external factor), the plea of sane automatism was made. This was upheld in the court of appeal because the court felt that diabetes per se did not cause a disease of the mind, but the insulin that was prescribed did—that is, it was an external factor. The court in R v. Quick also stated that external factors within the control of the individual (alcohol/drugs) would not constitute a defense when the incapacity was self-induced, that is, when recklessness can be shown. In Scotland, the case of Finnegan v. Heywood has reinforced this contention of recklessness, where it was held that because the sleepwalker

The British and common-law view  509

knew that drinking alcohol precipitated his sleepwalking attacks, sleepwalking could not be used as a defense; he was responsible for drinking the alcohol and was aware of the consequences of alcohol consumption.1,2,6 The legal definition, however, does not contain any reference to an illness being acute or chronic. In R v. Kemp, in discussing the defendant’s cerebral arteriosclerosis, which was said to have caused the automatism at the time of the offense, Lord Justice Devlin said, “In my judgement the condition of the brain is irrelevant. So is the question of whether the condition of the mind is curable or incurable, transitory or permanent.…Temporary insanity is sufficient to satisfy them” (the McNaughten rules; see Chapter 70).6 In Scotland a landmark ruling in the 1991 case of Ross v. HM Advocate still forms the basis of the sane automatism defense. Ross had consumed beer that had been laced with LSD and subsequently assaulted another person. The defense was based on the involuntary ingestion of drugs resulting in automatism due to an external factor. The High Court found that the essential requirements needed for this type of defense were that the accused must have experienced a “total alienation of reason amounting to a complete absence of self control” due to “some external factor which was outwith the accused’s control [and] which he was not bound to foresee.”7 The 1989 Crimes Bill in New Zealand started moving the automatism debate from the mens rea test of automatism to the actus reus test. It states that “the real test is one of involuntariness. If the accused was not wholly unconscious but nevertheless acted involuntarily, he or she would be ­protected from criminal responsibility.…”8 In Canada in 1971, the automatism defense was extended to include automatism induced by psychological trauma, a state of dissociation also referred to as psychological blow automatism. The first Supreme Court case dealing with psychological blow automatism was R v. Rabey. In this case, a 42-year-old man accused of murdering his wife while apparently in a dissociative state raised the defenses of ­provocation and non-insane automatism based on a psychological blow. The jury ruled that the accused was not suffering from a disease of the mind, and the accused was convicted of manslaughter. The law of automatism was rewritten in the Stone case. Before that case, unconsciousness was viewed as the predominant element in a state of automatism. The Stone case clarified that unconsciousness need not exist in a state of automatism; rather, the important element in automatism is whether criminal behavior is involuntary. Automatism was redefined as a state of impaired consciousness in which an individual, though capable of action, has no voluntary control over that action, and two types of automatism were delineated (insane and non-insane). It was also determined that a single approach to all cases involving claims of automatism should be taken because automatism may arise in different contexts, such as psychological blow automatism, somnambulism, and extreme intoxication (e.g., ­a lcoholic blackout) akin to a state of automatism.

A further clarification of automatism following this principle is provided by Yeo4 in discussing the Canadian case of R v Stone: ●●

●●

●●

●●

●●

●●

●●

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Automatism comprises involuntary conduct involving a complete lack of capacity to contain one’s conduct. Unconsciousness or impaired consciousness is not essential for a state of automatism to exist. Evidence of unconsciousness or impaired consciousness is relevant, not because it is essential to a finding of automatism, but to show that the defendant’s conduct was involuntary. Expert evidence should be directed at showing whether the defendant’s conduct was involuntary rather than whether s/he was unconscious or semi-unconscious at the time of the alleged offence. To help decide whether a defendant was suffering from mental disorder automatism or non-mental disorder automatism, the triers of fact should consider whether the cause of the automatic state was due to an internal or external cause, and also whether the defendant poses a continuing danger to the community. When considering these factors, the triers of fact should not regard them as conclusive of the issue nor as mutually exclusive factors. Rather, they should take a holistic approach with the overarching concern being whether societal protection requires the defendant to undergo medical treatment. If so, the finding should be one of mental disorder automatism. Expert evidence should be directed at showing whether or not the defendant continued to be a danger to society and in need of medical treatment. In cases of mental disorder automatism, expert evidence should concentrate on showing whether the defendant’s conduct was involuntary and not whether s/he did not appreciate the nature and quality of her/his act or know that it was wrong. Upon a finding that the defendant suffered from mental disorder automatism, the court should concentrate on the special verdict of not responsible on account of mental disorder, without being required to determine further whether the defendant did not appreciate the nature and quality of her/his act or did not know that it was wrong. (This therefore did not follow the McNaughten rules).

Physicians giving expert testimony must remember that a medical diagnosis is not a defense. Thus, having epilepsy, a cerebral tumor, or a sleep disorder is not a defense on its own. It is only the state of mind at the time the offense was carried out that is significant, for example, that an automatism was present at that time. The legal categorization also does not take into account the severity of the offense. A  severe and prolonged attack in a confusional state following a head injury is a sane automatism; walking naked through a crowded hotel bar in a sleepwalking episode is insanity. The legal definition does not contain any reference to time. This issue arose again from the case of R v. Kemp.

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In  discussing the cerebral arteriosclerosis that was said to have caused the automatism at the time of the offense, Lord Justice Devlin said, “Thus the law is not concerned with time. A minor flick of the hand in a brief epileptic myoclonic jerk—a matter of half a second—which knocks a vase off a shelf and injures a passer-by is insanity, as is a cerebral tumour leading to automatic confusional states lasting for months.”4,9 In both the legal and medical professions, mainly in Canada and Australia, there has been recent discussion of the value of keeping a mens rea automatism defense. The 1989 Crimes Bill in New Zealand argued that the mens rea test of automatism may at times be difficult to define, and thus “the real test is one of involuntariness. If the accused was not wholly unconscious but nevertheless acted involuntarily, he or she would be protected from criminal responsibility.…This shifts the emphasis from the mens rea to the actus reus.”8 The Canadian court in Stone made another fundamental shift in the law on automatism in terms of the burden of proof. In R v. Parks it was the Crown that had the onus to prove all aspects of the act, whereas in the Stone case the affirmative onus was on the defense to prove voluntariness or lack thereof. The categorization of sane (non-insane) and insane automatism as applied to sleepwalking, for example, has also divided the medico-legal community. In Canada sleepwalking is held to be sane automatism, while in the United Kingdom and United States sleepwalking is held to be insanity. However, we can expect the legal view to continue toward the enhancement of the actus reus with a diminishing emphasis on the mens rea. Commentators have also stressed a need for the triers of fact to consider whether the defendant poses a continuing danger to the community and the responsibility of the court to take a holistic approach. The overarching concern is whether societal protection requires the defendant to undergo medical treatment and, if so, the finding should be one of mental disorder (insane) automatism. This was demonstrated in 2008 when the Canadian Court of Appeal ruled that a defendant, previously acquitted owing to nonmental disorder automatism and whose verdict was reclassified as “not criminally responsible on account of mental disorder,” should have regular monitoring by mental health professionals (R v. Luedecke). In the United Kingdom, since the amendment of the Criminal Procedure (Insanity and Unfitness to Plead) Act (1991) by the Domestic Violence, Crime and Victims Act 2004, it matters less whether the classification is sane or insane automatism, except where there is a statutory ­sentence. In the case of insane automatism, the act now allows the judge to give an absolute discharge or a supervision order, or to send the defendant to a hospital with a

restriction order (Section 41 of the 1983 Mental Health Act), if necessary, which can prevent the release of the defendant for life without special permission from the Home Secretary. If the court finds the defendant not guilty owing to sane automatism, then there can only be an absolute discharge. In the United States, the approach to automatism varies from state to state, leaving inconsistencies in the assessment of crimes related to medical causes of automatic behavior.10–12

REFERENCES 1. Fenwick P. Somnambulism and the law: A review. Behavioral Sciences and the Law. 1987; 5: 343–57. 2. Fenwick P. Automatism and the law. Lancet. 1989; 2: 753–54. 3. Fenwick, P. Sleep and sexual offending. Medicine, Science and the Law. 1996; 36: 122–34. 4. Yeo S. Clarifying automatism. International Journal of Law and Psychiatry. 2002; 25: 445–58. 5. Schopp RF. Automatism, Insanity, and the Psychology of Criminal Responsibility: A Philosophical Inquiry. New York: Cambridge University Press, 1991. 6. Fenwick. P. Automatism, medicine and the law. Psychological Medicine Monograph. 1990 Suppl. 17: 1–27. 7. Beaumont G. Automatism and hypoglycaemia. Journal of Forensic and Legal Medicine. 2007; 14: 103–107. 8. Government, Crimes Bill 1989, introduced in May 1989, xxvii, 156 p. See on Clause 19, “Involuntary acts” pp. iv–v and 14. 9. R v. Kemp (1957), 1 QB 399: 407. 10. McCall Smith A, Shapiro CM, eds. Forensic Aspects of Sleep. New York: John Wiley and Sons, 1997. 11. Bourget D, Whitehurst L. Amnesia and crime. Journal of the American Academy of Psychiatry and the Law. 2007; 35: 469–80. 12. Glancy GD, Bradford JM, Fedak L. A comparison of R v. Stone with R v. Parks: Two cases of automatism. Journal of the American Academy of Psychiatry and the Law. 2002; 30: 541–47.

FURTHER READING Bratty v. A-G for NI (1963), AC 386, House of Lords. R v. Charlson (1955), 1 AII E.R. 859. R v. Kemp (1956), 3 AII E.R. 249, 249–51. R v. Sullivan (1983), 2 AII E.R. 673, 675–676, AC 156 House of Lords (1984). R v. Quick (1973), 3 WLR 26, Court of Appeal. People v. Higgins (1959), 5 N.Y. 2d 607, 186 N.Y.S. 2d 623, 159 N.E. 2d 179.

75 Amnesia NATALIE PYSZORA AND MICHAEL KOPELMAN Fitness to plead 511 Criminal responsibility 511 Diminished responsibility 512 Insanity 512 Loss of control 512 Voluntary intoxication 512 Involuntary intoxication 512 Automatism 512 Malingering 513

Assessing amnesia and underlying causes 513 Duration of amnesic episode 513 Causation of amnesia 513 Assessment of the amnesic defendant 514 Neuropsychiatrist’s assessment of the amnesic defendant 515 Conclusion 515 References 515

Amnesia does not provide a defense in itself in criminal cases. However, its presence is potentially relevant in relation to the following:

in 2 cases.1 A study carried out in Brixton prison in London found that all the amnesic men on remand in the study were regarded as fit to plead.2 However, in rare instances when amnesia reflects a neurological disorder affecting the defendant’s ability to follow legal proceedings, it could occasionally affect ‘fitness to plead’ (see discussion later in this chapter).

●● ●● ●●

Fitness to plead. Criminal responsibility. Malingering.

These areas are examined in turn before a review of the literature on factors associated with amnesia. We then provide a guide to the assessment of the amnesic defendant, including advice on when the forensic psychiatrist should recommend further specialist assessments by a neuropsychiatrist or neuropsychologist. All recommendations relate to UK jurisdiction unless otherwise indicated. Although this chapter focuses on the relevance of amnesia in criminal cases, guidance on assessment is equally relevant to civil cases.

FITNESS TO PLEAD The concept of fitness to plead, or competency to stand trial, is confined to countries relying on an adversarial system of justice such as England, but not in countries with an inquisitorial approach. The legal position in the United Kingdom has been that amnesia as such does not affect fitness to plead. The seminal case on amnesia is that of R v. Podola44 (Box 75.1). A study of all those found unfit to plead in England and Wales between 1976 and 1988 reported that although amnesia for an offense was mentioned in 14 (5%) of cases, it appeared to be the prime reason underlying the psychiatric recommendation

CRIMINAL RESPONSIBILITY Amnesia for the offense does not stop offenders from being held legally responsible for their actions and does not provide a defense in itself. The presence of amnesia in itself does not imply that at the time of the offense, the defendant did not know right from wrong,3,4 and it does not have any implications with respect to the defendant’s motives or conduct at the time of the crime.5 It is often assumed that a claim of amnesia is synonymous with denial of the offense. However, a study that explored the pleas of 207 defendants who had been given a life sentence for serious crimes (predominantly homicide) showed that a­ mnesic offenders were actually less likely to deny their offense, that is to say they did not do it, than non-amnesic offenders.6 The presence of amnesia may indicate the presence of an underlying or associated mental or physical disorder (see later discussion in this chapter) that would provide a medical or legal defense. One study has examined issues at trial for those who claimed amnesia for their offense, finding that amnesic offenders were more likely to use defenses of diminished responsibility, provocation, and Majewski lack of intent, even if these were unsuccessful.6 The expert witness will therefore 511

512 Amnesia

BOX 75.1: R v. Podola 1959 On July 13, 1959, Podola shot and killed a policeman. He was arrested three days later as the prime suspect. The police rammed the door to his apartment just as he was opening it and hit him in the face, after which the police landed on top of him. Podola was admitted to the hospital the next day. He spent three days there, during which he was monosyllabic but found to be engaging in a difficult jigsaw puzzle and playing chess. He was amnesic for all events prior to his arrest. He was diagnosed with severe retrograde amnesia, postconcussional syndrome, and cerebral contusion. The defense attempted to establish that Podola was unfit to plead on the grounds that he was unable to instruct counsel owing to amnesia for the whole of his past life. The case came to trial in September. Medical evidence concluded that an organic basis for Podola’s amnesia was unlikely. The issue then revolved around whether his amnesia was hysterical or malingered. The Crown highlighted that he had no other hysterical features and that he retained various (procedural) skills, therefore implying that his amnesia was malingered. Of course, this assumption is now known to be neuropsychologically unsound. The jury found his amnesia to be not genuine and therefore found him fit to plead. Thus, the issue of whether he would have been competent, had his amnesia been genuine, was never examined, but the case is still quoted in relation to amnesia and fitness to plead. Podola was convicted of murder and sentenced to death.

need to consider whether any of these ­underlying disorders are present when the defendant claims amnesia for his or her offense. Possible defenses and associated disorders are outlined in the following paragraphs. For further detail on the legislation and the role of psychiatric evidence for each defense please see Chapters 69–74 and 76–77.

Diminished responsibility Amnesia may be associated with an underlying mental disorder, most commonly depression and psychosis, 2 which would provide a defense of diminished responsibility. Alcohol dependence may provide a defense of diminished responsibility if the defendant is suffering from alcoholism, which would render the taking of the “first drink” of the day involuntary (R v. Tandy).45

Insanity If the defendant was “labouring under a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing, or, if he did know it, that he did not know he was doing what was wrong,” then this is a defense of insanity.

Loss of control Amnesia commonly occurs in the context of a “crime of passion,” when a defendant is violent toward a spouse or sexual partner in a state of heightened emotion. The defense of loss of control (previously provocation) may well be relevant in these circumstances.

Voluntary intoxication Generally, voluntary intoxication with alcohol or drugs (which may be associated with amnesia) will not provide a defense. However, voluntary intoxication may negate specific intent (DPP v. Majewski).46

Involuntary intoxication Intoxication with drugs or alcohol may be associated with amnesia, as highlighted earlier. The defendant may claim that the intoxication was involuntary. This issue was examined in the case of R v. Kingston.47 In this case the House of Lords ruled that involuntary intoxication was a defense only if the defendant was so intoxicated that he could not form intent.

Automatism Automatism can be defined as “an abrupt change in behavior in the absence of conscious awareness or mental formation associated with certain, specific clinical disorders, such as epilepsy, parasomnias, hypoglycaemia, or head injury.”7 Automatism, by definition, occurs when there is a significant disturbance of consciousness. Afterward, the individual may have no recollection, or only partial or confused memory, of his or her actions.8,9 The presence of automatism negates criminal responsibility altogether. Amnesia for a criminal offense may, albeit very rarely, indicate the presence of an underlying disorder that would provide a defense of automatism.10–15 Automatism may result from an external factor (e.g., an injection of insulin, anesthetic, or blow to the head) or an internal factor such as a “disease of the mind” (e.g., dementia, epilepsy, or brain tumor). The distinction between external and internal factors is of fundamental importance for the defendant, as those found “sane” will be acquitted at trial, whereas those found “insane” will receive a disposal under the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991 (see Chapter 74). Psychogenic automatism has not been extensively accepted in the courts in the United Kingdom, although it has in other countries. It has been defined as “a complex sequence of behavior which appears to be well motivated and directed, with no evidence of organic confusion.”9 In  the case of R v. Issitt48 in the UK, this clear principle was established: if it can be shown that there was a clear set of purposeful acts with the mind apparently functioning in the presence of a hysterical amnesia for the events, then automatism can not be used as a defense, although the

Assessing amnesia and underlying causes  513

medical evidence can be used in mitigation. Other countries have also examined this issue in court.16 The fundamental issue is that during a dissociative state, control over one’s actions may be diminished, making it relevant in establishing criminal responsibility.17 The Canadian and Australian courts have taken contrasting approaches to crimes committed by individuals while in a state of dissociation.18 In Canada, dissociative states are seen as falling within the defense of mental disorder (insane automatism), while in Australia, evidence of dissociation generally leads to a complete acquittal (sane automatism). Research has shown that a large number of homicide offenders will experience a dissociative state at the time of the offense.19,20

MALINGERING Many people, especially within the legal profession, believe that amnesia is easily faked and practically impossible to disprove, and that many criminal defendants may submit claims of amnesia simply to avoid punishment.21 There may be several motivations for falsifying amnesia.17 Feigned amnesia may serve to support a legal defense, to elicit sympathy from jurors or family members, to raise doubt about involvement in a crime, or to avoid using the much more risky and more cognitively taxing approach of explicit deception (e.g., concocting an alibi). In psychopathic offenders, it may simply reflect pathological lying or “duping delight.” Some have argued that most who present with isolated amnesia for the past are either feigning or have dissociative amnesia (defined in part by the absence of an observed neurological abnormality).22 The potential incentives to feign or exaggerate memory impairments, in both criminal and civil litigation, for secondary gain have been recognized.21 In the United States, significant amnesia may still render a defendant either temporarily or permanently incompetent to stand trial, or make an adjournment for recovery of memory advisable.10 It is important to recognize that some offenders have little to benefit from malingering amnesia, such as those who admit their guilt,23 and many claims of amnesia are likely to be genuine.17 Some evidence for this is provided by the fact that amnesia also occurs in sanctioned homicides; for example during combat killings,24 and a knowledge of common patterns of amnesia and associated factors should aid the forensic practitioner in assessing defendants claiming amnesia for their offense.

ASSESSING AMNESIA AND UNDERLYING CAUSES Amnesia is commonly encountered when assessing defendants, especially perpetrators of violent crimes. Studies describe rates of amnesia for homicide or serious violence that vary between 23% and 70%.6,19,25–27,29–32 Despite this, the exact etiology of such amnesic episodes is often poorly understood and poorly explained by the expert witness. The expert witness needs to have knowledge

of the evidence on associations between offending and amnesia to do the following: ●●

●●

Provide an opinion whether the amnesia in a particular case is associated with the presence of a mental or physical disorder that has been described in the literature as a recognized association, and therefore the likely genuineness of such a claim. Be able to explain possible causation of amnesia to the court.

Key aspects of the literature are summarized later. It is important to remember that there is rarely one factor working alone, so that the picture of the amnesia and its etiology in most cases is complex. However, most of the literature to date suggests that psychogenic factors are more common than organic factors in the context of amnesia for offending.33

Duration of amnesic episode Descriptions of the length of the amnesic gap in criminal offenders have varied in the literature33 and are generally unhelpful, being described as ranging from “a few seconds to the offender’s whole life,”25 to “hours to days,”34 to “less than 24 hours with the majority less than 30 minutes.”28 However, a more systematic assessment of 31 amnesic life sentence prisoners found that amnesic offenders generally fell into one of two groups: (1) those with long amnesic gaps, averaging 2 hours and apparently mediated by alcoholic blackouts and/or dissociation; and (2) those with short amnesic gaps of approximately 1 minute that appeared to be mediated by intense emotional arousal in the context of crimes of passion.20

Causation of amnesia Memories must be encoded for them to be retrieved later; therefore, any factors that impair registration, encoding, or processing of memory will in turn affect recall. Various neurological, substance, endocrine, and psychological factors have been implicated in amnesia for offenses. These are highlighted in the paragraphs that follow. NEUROLOGICAL IMPAIRMENT

Various organic factors may affect registration of memory. The main body of literature in this area has been reviewed previously by Kopelman,14,15,35 who divided organic memory impairment into discrete and persistent loss. Medical disorders that produce a discrete episode of memory loss include toxic confusional states (including alcohol intoxication), head injury, epileptic seizures, alcoholic blackouts, hypoglycemic attacks, post–electroconvulsive therapy confusional states, sleepwalking, and transient global amnesia syndrome. Persistent memory impairment occurs within the amnesic syndrome, which can result from a number of possible pathologies or as part of a dementing illness.

514 Amnesia

However, no association has been found between amnesia for criminal offenses and global organic pathology,2,6 and the only study to assess visual and verbal memory function formally in a cohort of amnesic violent offenders did not find any association with neuropsychological impairment.20 ALCOHOL AND DRUG INTOXICATION

More than half of all offenders who commit a violent crime are intoxicated with alcohol at the time of the offense.36–38 Some previous studies have suggested that amnesic o ­ ffenders are even more likely to be intoxicated with drugs and/or alcohol at the time of the offense than non-amnesic offenders.27–30 Offenders claiming amnesia are also more likely to have a previous history of alcohol dependence2,6,34 and previous “blackouts,” such as transient amnesic episodes.6 Alcoholic blackouts have been defined as “amnesia for events occurring during a drinking episode, where events are ordinarily memorable in a sober state.”39 These have been categorized into two types: (1) “fragmentary” blackouts, with islets of preserved memory and shrinkage of the amnesic gap over time, and (2) “en bloc” blackouts, where islets of memory are rare and the amnesia rarely recovers.40 The problem of drug intoxication in association with amnesia has received relatively little attention in the offender literature, and accounts have generally been anecdotal. The empirical evidence for drug intoxication in the context of offending is equivocal, 2,28,29 and no robust studies have been done to examine the issue, although amnesia in the context of drug intoxication is quite common in clinical practice. Any drug that depresses the central nervous system can lead to confusion and amnesia.9 PSYCHIATRIC DISORDER

Amnesia is more common in those with a history of psychiatric disorder,2,6 most commonly psychosis and depression. There is some evidence that personality factors may also be important, specifically hysterical personality,27,28 and both mental illness and personality will be important when considering a defendant’s vulnerability to suffering an extreme emotional reaction or dissociation during a violent offense. One study found that its amnesic subjects had significantly higher rates of antisocial personality disorder than nonamnesic subjects, although there was no difference in scores between the two groups on the screening version of the Psychopathy Checklist.32 DISSOCIATION

Research has clearly shown dissociation in the victims of violent crime41 and in those experiencing other traumatic events.42 Although there have been papers written since the 1960s19 describing dissociation in violent offenders, only more recently has this phenomenon been investigated empirically.20,43 Certain factors may help to explain why some offenders experience dissociation during a particular type of offense and others do not; for example, concurrent or preexisting psychopathology is often found in dissociative amnesia,22 some people have an innate capacity to

dissociate,17 and unpremeditated crimes may be particularly associated with amnesia.17 INTENSE EMOTIONAL AROUSAL

Amnesia in this context typically has its onset at the height of the emotional arousal, such as during an argument, and may include the beginning of the attack. Typically, the offender has a continuous amnesic period for several seconds or minutes until he “comes around” and usually realizes what he has done. This pattern of memory loss is most likely the result of a failure of encoding, secondary to the intense emotional arousal. “Crimes of passion” occur in the context of emotionally aroused states and are often associated with amnesia.2,6,19,34 Such states have also been described as “red-outs.”3 It is interesting that when neurological impairment is absent, amnesia is rare in nonviolent crimes although more common in violent crime.2 This is consistent with the level of emotional arousal being far lower in nonviolent crimes such as fraud and theft. REPRESSION

Repression is worthy of mention because studies in the earlier part of the twentieth century generally argued in favor of repression as the cause of amnesia in violent offenders,25,27,28,34 and the protective element of amnesia against possible suicide was recognized.25 Some authors have used measures related to the idea of repression, such as over-­ control, to explain amnesia. Although there is no direct empirical way of measuring repression of a memory, one study found that there was no direct correlation between amnesia and repressive coping style.20

ASSESSMENT OF THE AMNESIC DEFENDANT A full history needs to be obtained, including the following: ●●

●● ●●

●● ●●

●● ●● ●●

Medical history (head injury, epilepsy, diabetes, sleepwalking, current medication). Past psychiatric history and personality assessment. Past history of childhood sexual and physical abuse or other trauma, and previous dissociative symptoms. Alcohol and drug history. Evidence of psychiatric disorder at the time of the offense. Evidence of dissociation at the time of the offense. Alcohol and drug intoxication at the time of the offense. Exact pattern of the amnesia (last thing remembered, next continuous memory, and any islets of memory, as well as length of amnesic gap). It is vital that the defendant gives an account of what he or she actually remembers, not what the defendant has been told has happened.

Witness statements and police interviews must be examined, and any inconsistencies in the account of the amnesia noted. Witness accounts of behavior during the amnesic gap

References 515

provide valuable information. The amnesia may improve with time, but accounts should be consistent. Neuropsychological and psychometric testing may be of value where neuropsychiatric and psychological factors appear significant. An electroencephalogram (EEG) and magnetic resonance imaging (MRI) should be completed when appropriate. Malingering instruments are increasingly used in criminal cases in the United Kingdom but may be of limited value when there is a discrete episode of memory loss. In a case of amnesia for an offense, a neuropsychiatrist’s opinion will be helpful when there is any suspicion of concomitant neurological memory disorder as well as in those rare cases when the question of an automatism can be raised. The defendant’s solicitor should be advised to instruct a suitably qualified expert. It is probable that the neuropsychiatrist may request a further assessment by a neuropsychologist, as well as such investigations as an MRI brain scan or EEG. When neurological memory disorder is found, it can have potential relevance to such issues as fitness to plead and stand trial, presence or absence of automatism, diminished responsibility, and mitigation at sentencing.

NEUROPSYCHIATRIST’S ASSESSMENT OF THE AMNESIC DEFENDANT Concomitant memory disorder may arise with a history of heavy alcohol or substance abuse, a past history of head injury or multiple head injuries, some cases of epilepsy, or small vessel disease (secondary to hypertension, hyperlipidemia, diabetes, antiphospholipid syndrome, or heavy smoking), or when the question of dementia is raised. Curiously, the last commonly seems to be an issue in fraud cases. When such disorders arise, thereby potentially contributing to or accounting for the memory disorder, the neuropsychiatrist will want to take an appropriate neuropsychiatric history to assess the mental and cognitive state in the light of this and to arrange appropriate neuropsychological, neuroimaging (MRI, CT), or EEG (in cases of epilepsy) investigations. The neuropsychologist will evaluate current IQ and reasoning ability against estimated premorbid IQ and will include measures of memory, naming, executive function, and other aspects of cognitive function as appropriate. He or she may well want to include tests of mental “effort” or “symptom validity.” In a putative automatism, the neuropsychiatrist will evaluate the person’s description of what happened, the accounts of any observers in their witness statements, and the previous history of automatism as documented in the medical records. It is extremely unlikely that a person will commit an offense in a state of automatism, if there is no past history and documentation of previous automatism, related to the underlying disease. When epilepsy is implicated, an up-to-date EEG (and MRI) will be helpful. Where a parasomnia is postulated, a formal sleep study (polysomnography) is indicated. If hypoglycemia is postulated, blood glucose records around the time of the alleged offense,

as well as in preceding (and subsequent) days, can be very helpful. Likewise, in head injury, the neuropsychiatrist will want to inspect documentation of the nature of the blow, any loss of consciousness, the extent of retrograde and posttraumatic amnesia, accident and emergency records, and neuroimaging and/or neurosurgical findings. In such cases, a neuropsychological opinion may be required when there is evidence of chronic, underlying cognitive disorder or when documentation of the incident or previous automatism is scant, and when tests for simulation or “symptom validity” may be helpful.

CONCLUSION In summary, amnesia for an offense does not provide a defense in itself or directly affect criminal responsibility. However, in rare instances when the amnesia reflects a neurological disorder affecting the defendant’s ability to follow legal proceedings, it could occasionally affect fitness to plead, and the presence of amnesia may be associated with an underlying disorder that would provide a defense. It is clear that a claim of amnesia for the offense is not synonymous with denial of guilt or malingering, despite many within the criminal justice system believing this to be the case. Careful assessment of the amnesic defendant needs to be undertaken in all cases, including assessment by a neuropsychiatrist or neuropsychologist where indicated.

REFERENCES 1. Grubin, D. Fitness to Plead in England and Wales. Maudsley Monograph 38. Hove, UK: Psychology Press, 1996. 2. Taylor PJ, Kopelman MD. Amnesia for criminal offences. Psychological Medicine. 1984; 14: 581–88. 3. Swihart G, Yuille J, Porter S. The role of state-­ dependent memory in ‘red-outs.’ International Journal of Law and Psychiatry. 1999; 22: 3–4: 199–212. 4. Goodwin DW. Alcohol amnesia. Addiction. 1995; 90: 315–17. 5. Rubinsky E, Brandt J. Amnesia and criminal law: A clinical overview. Behavioural Sciences and the Law. 1986; 4(1): 27–46. 6. Pyszora NM, Barker AF, Kopelman MD. Amnesia for criminal offences: A study of life sentence prisoners. Journal of Forensic Psychiatry and Psychology. 2003; 14(3): 475–90. 7. Kopelman MD. Amnesia and Offending. In: Forensic Psychiatry: Clinical, Legal and Ethical Issues. 2nd ed. Eds. Gunn J, Taylor P. London: Hodder Education, 2012: 302–308. 8. Fenwick P. Murdering whilst asleep. British Medical Journal. 1986; 293: 574–5. 9. Fenwick P. Automatism, medicine and the law. Psychological Medicine. 1990; Monograph Supplement 17.

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10. Schacter DL. Amnesia and crime: How much do we really know? American Psychologist. 1986; 41: 286–95. 11. Fenwick P. Murdering while asleep. British Medical Journal (Clinical Research Edition). 1986; 288(6435): 1938–9. 12. Fenwick P. Somnambulism and the law: A review. Behavioural Sciences and the Law. 1987; 5: 343–57. 13. Hindler CG. Epilepsy and violence. British Journal of Psychiatry. 1989; 155: 246–49. 14. Kopelman MD. Disorders of memory. Brain. 2002a; 125: 2152–190. 15. Kopelman MD. Psychogenic Amnesia. In: Handbook of Memory Disorders. 2nd ed. Eds. Baddeley MD, Kopelman MD, Wilson BA. Chichester: John Wiley & Co., 2002. 16. Febbo S, Hardy F, Finlay-Jones R. Dissociation and psychological blow automatism in Australia. International Journal of Mental Health. 1993–94; 22: 39–59. 17. Porter S, Birt AR, Yuille JC, Herve HF. Memory for murder: A psychological perspective on dissociative amnesia in legal contexts. International Journal of Law and Psychiatry. 2001; 24: 23–42. 18. McSherry B. Getting away with murder? Dissociative states and criminal responsibility. International Journal of Law and Psychiatry. 1998; 21(2): 163–76. 19. Tanay E. Psychiatric study of homicide. American Journal of Psychiatry. 1969; 125(9): 1252–58. 20. Pyszora N. Amnesia for Criminal Offences in a Cohort of Life Sentence Prisoners. PhD Thesis, University of London, 2006. 21. Wiggins EC, Brandt J. The detection of simulated ­amnesia. Law and Human Behaviour. 1988; 12(1): 57–78. 22. Cercy SP, Schretlen DJ, Brandt J. Simulated Amnesia and the Pseudo-Memory Phenomena. In: Clinical Assessment of Malingering and Deception. 2nd ed. Ed. Rogers R, New York: Guilford Press, 1997: 85–107. 23. Stein A. Murder and Memory. New York: WAW Institute, 2001: 443–51. 24. Van der Hart O, Brown P, Graafland M. Traumainduced dissociative amnesia in World War 1 combat soldiers. Australian and New Zealand Journal of Psychiatry. 1999; 33: 37–46. 25. Leitch A. Notes on amnesia in crime for the general practitioner. Medical Press. 1948; 219: 459–63. 26. Guttmacher MS. Psychiatry and the Law. New York: Grune and Stratton, 1955. 27. O’Connell BA. Amnesia and homicide: A study of 50 murderers. British Journal of Delinquency. 1960; 10: 262–76. 28. Bradford J, Smith SM. Amnesia and homicide: The Podola case and a study of thirty cases. Bulletin of the American Academy of Psychiatry and the Law. 1979; 7: 219–31. 29. Parwatiker SD, Holcomb WR, Menninger KA. The detection of malingered amnesia in accused ­murderers. Bulletin of the American Academy of Psychiatry and Law. 1985; 13(1): 97–103.

30. Guöjónsson GH, Pétursson H, Skúlason S, Siguröardóttir H. Psychiatric evidence: a study of psychological issues. Acta Psychiatrica Scandinavica. 1989; 80: 165–69. 31. Guöjónsson GH, Hannesdottir K, Pétursson H. The relationship between amnesia and crime: The role of personality. Personality and Individual Differences. 1999; 26: 505–10. 32. Cima M, Merckelbach H, Hollnack S, Knauer E. Characteristics of psychiatric prison inmates who claim amnesia. Personality and Individual Differences. 2003; 35: 373–80. 33. Kopelman MD. Crime and amnesia: A review. Behavioural Sciences and the Law. 1987b; 5: 323–42. 34. Hopwood JS, Snell HK. Amnesia in relation to crime. Journal of Mental Science. 1993; 79: 27–41. 35. Kopelman MD Amnesia: Organic and ­psychogenic. British Journal of Psychiatry. 1987a; 150: 428–42. 36. Hamilton J, Kopelman MD, Maden A, Taylor PJ, Strang J, Johns A, Gunn, J. Addictions and Dependencies: Their Associations with Offending. In: Forensic Psychiatry: Clinical, Legal and Ethical Issues. Eds. Gunn J, Taylor PJ. Oxford: ButterworthHeinemann Ltd., 1993: 435–89. 37. Pétursson H, Guöjónsson GH. Psychiatric aspects of homicide. Acta Psychiatrica Scandinavica. 1981; 64: 363–72. 38. Leong GB, Silva JA. Psychiatric–legal analysis of criminal defendants charged with murder: A sample without major mental disorder. Journal of Forensic Sciences. 1995; 40(5): 858–61. 39. Goodwin DW. Two species of alcoholic ‘blackout.’ American Journal of Psychiatry. 1971; 127(12 June): 1665–70. 40. Goodwin DW, Crane JB, Guze SB. Phenomenological aspects of the alcoholic ‘blackout.’ British Journal of Psychiatry. 1969; 115: 1033–38. 41. Mechanic MD, Resick PA, Griffin MG. A ­comparison of normal forgetting, psychopathology, and ­information-processing models of reported ­amnesia for recent sexual trauma. Journal of Consulting and Clinical Psychology. 1998; 66(6): 948–57. 42. Spiegal D, Cardena E. Disintegrated experience: The dissociative disorders revisited. Journal of Abnormal Psychology. 1991; 100(3): 366–78. 43. Evans C, Mezey G. The Nature of Memories of Violent Crime among Young Offenders. In: Offenders’ Memories of Violent Crimes. Ed. Christianson S. Chichester: Wiley, 2007: 3–35. 44. R v. Podola (1959), 43 Cr, App R. 220. 45. R v. Tandy (1989), 1 All ER 267. 46. DPP v. Majewski (1976), 2 All ER 142. 47. R v. Kingston (1994), 3 All ER 353. 48. R v. Issitt (1978), RTR 211.

76 Mutism BASANT K. PURI AND IAN H. TREASADEN Definition 517 Etiology 517

Mute defendants 517 References 518

DEFINITION

MUTE DEFENDANTS

Mutism, derived from the Latin mutus, refers to the inability to speak, although some mute patients may generate nonverbalized sounds such as grunts.1

The study of mute defendants has thus far been, at the time of writing, little researched. Three informative case reports have been published by Haw and Cordess, and one by Daniel and Resnick.2,3 The case by Daniel and Resnick, of a male defendant who remained mute for 10 months, describes his use of mutism in his malingering; as the authors point out, clinicians must clearly adopt a high index of suspicion for this possibility. As part of the evaluation of cases of mutism in defendants, Daniel and Resnick recommend a comprehensive evaluation that includes: “neurologic workup, repeat interviews, observation of the defendant at unsuspected times for communicative speech with other inmates, study

ETIOLOGY The main causes of nonelective mutism have been enumerated by Moore and Puri and are listed in Table 76.1. In forensic cases, the possibility of malingering as a cause of elective mutism must always be borne in mind (see the following discussion). Table 76.1  The main sources of mutism Stroke As presentation of certain aphasias Motor aphasia (David and Bone 1984; Masdeu and O’Hara 1983) Transcortical motor aphasia (Alexander and Schmitt 1980; Bogousslavsky and Regli 1990) Aphemia (Mendez 2004; Schiff et al. 1983) Bilateral infarction of the lenticular nucleus (Evyapan Akkus 2006) Bilateral infarction of the posterior limb of the internal capsule (Helgason et al. 1988) Infarction of the periaqueductal gray (Esposito et al. 1999) Neurodegenerative disorders Frontotemporal lobar degeneration (Neary et al. 1993; Snowden et al. 1992) Alzheimer’s disease (Mayeux et al. 1985) Primary progressive aphasia (Gorno-Tempini et al. 2006)

Other syndromes characterized by mutism Catatonia (Kraepelin 1990) Depression (Benegal et al. 1992) Akinetic mutism (Cairns et al. 1941) Traumatic brain injury (Levin et al. 1933) Miscellaneous causes of mutism Intrinsic laryngeal pathology Medications Tacrolimus (Wijdicks et al. 1994) Cyclosporins (Valldeoriola et al. 1996) Phenytoin (Berigan and Watt 1994) Cerebellar lesions Postsurgical (Catsman-Berrevoets et al. 1999; Crutchfield et al. 1994; Van Dongen et al. 1994) Intracerebellar hemorrhage (Coplin et al. 1997) Tumor (Akil et al. 2006) Corpus callosotomy (Quattrini et al. 1997) Source: Moore DP and Puri BK. Textbook of Clinical Neuropsychiatry and Behavioral Neuroscience, 3rd ed. London: Hodder Arnold, 2012.

517

518 Mutism

of handwriting sample, collateral nursing documentation, and, if necessary, Pentothal interviews to establish authenticity of mutism.3 Regarding the legal situation in England and Wales in respect of mute defendants, rarely, one may be asked to help the court decide whether an individual who appears to be mute (i.e. with no speech at all) is being mute ‘by malice or a visitation of God’. If mute ‘by malice’, then the case proceeds with a not guilty plea entered on the defendant’s behalf. If  ‘by visitation of God’, for example if the defendant is deaf and dumb, then the question of fitness to plead arises, with a view to disposal under the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991.4

REFERENCES 1. Moore DP, Puri BK. Textbook of Clinical Neuropsychi­ atry and Behavioral Neuroscience. 3rd ed. London: Hodder Arnold, 2012. 2. Haw CM, Cordess CC. Mutism and the problem of the mute defendant. Medicine, Science, and the Law. 1988; 28: 157–64. 3. Daniel AE, Resnick PJ. Mutism, malingering, and competency to stand trial. The Bulletin of the American Academy of Psychiatry and the Law. 1987; 15: 301–8. 4. Treasaden IH. Forensic Psychiatry. In: Psychiatry: An Evidence-Based Text. Eds. Puri BK, Treasaden IH. London: Hodder Arnold, 2010.

77 False confessions and suggestibility GISLI H. GUDJONSSON False confessions 519 Police interviewing and psychological vulnerabilities 520 520 Suggestibility and compliance Definitions 520

The gudjonsson suggestibility scales 521 Application 521 Conclusions 522 References 522

In his recent book, Garrett1 reviewed the first 250 cases of DNA exonerations in the United States. The majority of the convictions were for rape (68%), murder (9%), and both rape and murder (21%). Forty (16%) involved cases of false confessions, and most worryingly, Garrett discovered “… that all but two of those exonerated reportedly confessed to details about the crime that only the killer or rapist could have known. Those specific facts must have been improperly disclosed to exonerees, most likely by police” and were incorporated into their confession statement and subsequently used to convict them. This supports the view of Kassin and Gudjonsson2 that suggestibility and compliance are key psychological factors relevant to police-induced false confessions. This chapter gives a brief review of the literature on false confessions and then focuses on the role of suggestibility and compliance. The key premise behind this chapter is that while false confessions are multifaceted, they usually involve two key factors: (1) custodial and interrogative pressure, and (2) psychological vulnerabilities.3 There are a number of psychological vulnerabilities relevant to eliciting a false confession during a police interview, including traits of suggestibility and compliance.4,5

technology.1 It is also important to note that since the 1980s our knowledge of the epidemiology, nature, and causes of false confessions has grown, and this has resulted in some countries changing their police procedures and practices to reduce the risk of false confession.4,5 The emerging evidence reveals that false confessions are more common than previously thought; they sometimes occur in the absence of any kind of mental disorder; they are typically multifaceted in nature; and, when police induced, they are often accompanied by apparent “special knowledge” that must have ­originated either deliberately or inadvertently from the police but is nevertheless used persuasively in court to convict the defendant. In the United Kingdom, some miscarriage of justice cases involving false confession evidence have had profound impact on the criminal legal system. An early example involves the “Confait Case,” which resulted in the establishment of the Royal Commission on Criminal Procedure. It published its report in 1981, and the recommendations provided led to radical new legislation (The Police and Criminal Evidence Act 1984, PACE), electronic recording of i­ nterviews, and improved police training.6 However, even with the publication of this influential report, the legal profession, academics, and clinical practitioners apparently still found it unthinkable that anybody would confess or plead guilty to a serious crime of which they were innocent. This attitude would change with the freeing of the “Guildford four,” the “Birmingham six,” and appellants in other landmark cases in the United Kingdom,7 which resulted in the creation of the Royal Commission on Criminal Justice and subsequently the Criminal Cases Review Commission.8 A similar change in attitude and legal practice took place in Norway following a major miscarriage of justice involving false confession to murder.7 In contrast,

FALSE CONFESSIONS There are several different definitions of a false c­ onfession. Kassin and Gudjonsson2 define false confession in the context of custodial interrogation as “any detailed admission to a criminal act that the confessor did not commit.” Unfortunately, in cases of innocent defendants, it is often difficult for them to prove their innocence after giving an incriminating false confession, although this is becoming easier in cases of rape and murder with improved DNA

519

520  False confessions and suggestibility

not many changes have taken place in the United States, in spite of more than 250 DNA exonerations. According to Gudjonsson and Pearse, 3 “Authorities in the United States have been less responsive than those in the United Kingdom in addressing issues associated with the negative aspects of deceptive police interview techniques and in actively doing something to reduce the likelihood of miscarriage of justice resulting from police-induced false confessions.” False confessions fall into two distinct psychological types: voluntary or police-induced.9 Voluntary false ­confessions often result from a need for attention, a wish for notoriety, protecting the real perpetrator (e.g., a peer or a spouse), or some psychopathology, such as need for punishment or revenge, or an inability to distinguish what is real and what is a fantasy.5,10 Police-induced false confessions also fall into two distinct types: compliant and internalized false confessions. Compliant false confessions occur when interviewees are not able to cope with the custodial and interrogative pressures and give a false confession to escape from the immediate stress of the situation. In contrast, internalized false confessions generally result from subtle manipulation of the interviewee’s belief in his or her guilt (e.g., being persuaded by police that there is incontrovertible evidence of the interviewee’s involvement in the crime in spite of the suspect’s having no recollection of committing the crime). Gudjonsson and Pearse3 have compared and contrasted the manipulative interrogation techniques typically used by US interrogators, referred to as the “Reid Technique,” with those of the UK “PEACE” model. (PEACE is an acronym for Preparation and planning, Engage and explain, Account and clarification, Closure, and Evaluation). The PEACE model has been in continuous use in the United Kingdom since 1993, and, unlike the Reid Technique, it is neither guilt presumptive nor overtly confrontational, which makes it widely assumed that it is less likely to elicit false confessions than the Reid Technique.3 However, in the past UK officers have been found on occasion to resort to Reid-style interrogation to break down a defendant’s resistance, but this has not been viewed favorably by the court.11 Leo and Drizin12 argue that the types of police-induced false confessions, compliant and internalized, result from a sequential pathway of three key errors: 1. Misclassification error: The police erroneously classify an innocent person as being a guilty suspect, typically on the basis of flawed behavioral indicators of deception. 2 . Coercion error: Believing firmly in the suspects’ guilt, the interviewer feels justified in applying coercive tactics consisting of threats and/or inducements. 3. Contamination error: The police either deliberately or inadvertently provide suspects with salient crimerelated detail that is subsequently presented in court as independent “special knowledge.”

Police interviewing and psychological vulnerabilities The main objective of police questioning, whether interviewing victims, witnesses or suspects, is to gather relevant information about a suspected or reported crime. In the interests of fairness and justice, it is essential that the information obtained is accurate (i.e., truthful and precise) and complete, is obtained fairly, and meets legal criteria for evidential purposes.4 Police interviewing is a dynamic and interactive social process. The outcome of this process is influenced by a number of variables: contextual (e.g., strength of the ­evidence, seriousness of the offense, presence of a lawyer and an “appropriate adult”), custodial (i.e., nature and duration of the custodial confinement and questioning), and individual differences or vulnerability (e.g., age of suspect, intelligence, mental health, personality). Within this conceptual framework, psychological vulnerabilities refer to a psychological characteristic or mental state that renders a witness prone, in certain circumstances, to providing information that is inaccurate, unreliable, or misleading. Psychological ­v ulnerabilities, such as suggestibility and compliance, represent potential “risk factors” rather than being definitive markers of unreliability.4 This is consistent with the letter and spirit of Code C of Practice of the Police and Criminal Evidence Act.13

SUGGESTIBILITY AND COMPLIANCE Definitions Suggestibility refers to the tendency of the individual to respond in a particular way to suggestions. A suggestion refers to the properties contained within a stimulus (e.g., expectation, leading potential), whereas the term suggestibility refers to characteristics of the person who is being incited to respond (i.e., it is an individual difference variable). A suggestion only has the potential to elicit a response; whether it does depends on the susceptibility of the person to suggestions, the nature of the suggestion, and the context in which the suggestion occurs.7 Suggestibility is different from the concept of compliance. The main difference is that suggestibility, unlike compliance, implies personal acceptance of the information. Compliance refers to the tendency of the individual to go along with propositions, requests, or instructions, often for some instrumental gain (e.g., to please somebody or to avoid conflict and confrontation). The other main difference is that whereas suggestibility can be measured by an experimental procedure in the form of a “mini” interrogation and is therefore not susceptible to ­self-report bias, compliance is difficult to measure in this way and often has to rely on self-report or ratings from participants and independent informants.7 Generally speaking, suggestibility is more closely related to internalized false confessions than compliance because it is

Suggestibility and compliance  521

related to changes in belief system (i.e., change in personal acceptance of the information provided) as well as overt behavior (i.e., giving in to leading questions and interrogative pressure). Gudjonsson and Clark14 provide a model that helps to further the understanding of interrogative suggestibility and the process and outcome of the police interview. It  integrates the “leading questions” and “negative feedback” aspects of suggestibility first introduced by Gudjonsson.15 It  views suggestibility as arising out of the way the individual interacts with others within the social and physical environment. The main premise of the model is that ­interrogative suggestibility is dependent upon the coping strategies that people can generate and implement when faced with two important aspects of the interrogative situation: uncertainty and expectations. When asked questions during a police interview, the interviewee cognitively processes this information and then employs one or more strategies of general coping. This involves the interviewee’s having to cope with uncertainty and interpersonal trust on the one hand and certain expectations on the other. According to the model, these three components are essential prerequisites for the suggestibility process and can be manipulated experimentally.

The Gudjonsson Suggestibility Scales There are two parallel forms of the Gudjonsson Suggestibility Scales (GSS), referred to as GSS 1 and GSS 2. They are described in detail in a manual of guidance to researchers and practitioners, along with the Gudjonsson Compliance Scale (GCS).15 The GSS 1 and GSS 2 are identical in terms of free recall narratives and interrogative questions, administration, and scoring criteria. The difference is that the GSS 1 has a forensically relevant story, whereas the GSS 2 does not. The two scales can be used interchangeably, but since the GSS 2 is slightly less complex than the GSS 2 narrative, it is recommended for use with children and those with learning disabilities. Both scales measure the extent to which the individual can be misled by leading questions (“yield”) and how he or she responds to interrogative pressure, implemented in the form of negative feedback (“shift”). These are different types of suggestibility, each reflecting different kinds of vulnerabilities during questioning. Generally speaking, yield is more related to cognitive processes (i.e., IQ, memory, confidence) and shift to anxiety and coping. Verbal memory and confabulation can also be measured for clinical and research purposes. (Confabulation is the tendency to fill gaps in one’s memory by producing imagined material.) In contrast to the GSS 1 and GSS 2, the GCS is a 20-item self-report measure that consists of two main factors: (1) eagerness to please and (2) avoidance of conflict and confrontation.16 Grisso17 provided a favorable review of the early ­validation of the GSS 1. Since Grisso’s reviews, the GSS 1 and GSS 2 have been translated into several languages and are used internationally for research and clinical and

forensic applications. False confessors have been shown to have higher GSS and GCS scores than non-false confessors.7 However, these tests do not directly measure false confessions; they only measure susceptibility to giving misleading or false information under certain circumstances (i.e., when led and pressured). The GSS 1, GSS 2, and the GCS are favorably reviewed in the All Mental Measurement Yearbook from the Buros Institute.18

Application The GSS 1, GSS 2, and GCS were designed to measure individual differences and vulnerabilities that are relevant to police interviews (i.e., susceptibility to giving misleading information if led or pressured in an interview). These tests were first accepted in the Court of Appeal in the United Kingdom in 1991 (the case of Engin Raghip) and in 2001 in the House of Lords (the case of Donald Pendleton). The scales also have been accepted in court cases in the United States and elsewhere.7,19 In view of the transparency of the items and its self-report nature, the GCS often presents more problems in court than the GSS 1 and GSS 2. A high compliance score may be construed as self-serving, and independent corroboration of pre-existing high compliance from reliable informants or salient background information is often helpful. The GSS 1 and GSS 2 are less susceptible to “faking” than the GCS owing to the behavioral nature of the tests, and they are difficult to fake unless people have good prior knowledge of the measures and precisely how and what they measure. The GSS 1, GSS 2, and GCS are not designed to measure whether a confession is false. Instead, they measure vulnerabilities that are potentially relevant and important in some cases when confessions are disputed. The idea that the three scales directly measure whether a confession is false is the most common misconception of the scales in court cases. Currently, there are no psychological instruments available for detecting whether a confession is false. What expert witnesses should focus on are vulnerabilities that may assist the court in determining the “reliability” and “safety” of the self-incriminating statement that the defendant made during police questioning. Lawyers often ask mistakenly for an assessment of suggestibility when in reality there were no leading questions or pressure in the interview and suggestibility is not relevant to the assessment. A similar misconception relates to lawyers instructing expert witnesses to test for suggestibility in cases where it is alleged that people were coerced into crime by others, usually co-defendants, when the issues are more related to compliance.20 Elevated scores on suggestibility and compliance are commonly found in cases where convictions have been overturned on appeal.4 Nevertheless, there are many reasons why suspects give false confessions, and each case needs to be considered on its own merits. Test scores, even if pertinent to the case, should not be interpreted in isolation to other information, including salient background

522  False confessions and suggestibility

information and the nature of the interrogation and other custodial pressures.

CONCLUSIONS The understanding of the epidemiology, nature, and causes of false confessions has improved immensely since the 1980s, when scientists first began to seriously research the phenomenon. As a result, police practice and procedures have improved; there is now greater awareness of ­psychological vulnerabilities during police interviews and the risks of false confessions; there is better procedural protection for suspects who are psychologically vulnerable during detention and interviewing; and the courts have responded by more readily accepting relevant psychological and psychiatric expert evidence. Related to these fundamental changes in police and legal practice has been the development of the empirical measurement of interrogative suggestibility and compliance, which has aided in the assessment of psychological vulnerabilities during police questioning. However, the GSS 1, GSS 2, and GCS do not directly assess whether a confession is false. In fact, no psychological instruments are available for this specific purpose. It is important for psychometric tests to be used only in conjunction with other assessment tools. This includes an assessment or clinical interview and a careful consideration of other salient material in the case.

REFERENCES 1. Garrett LG. Convicting the Innocent: Where Criminal Prosecutions Go Wrong. Cambridge, MA: Harvard University Press, 2011. 2. Kassin SM, Gudjonsson GH. The psychology of confessions: A review of the literature and issues. Psychological Science in the Public Interest. 2004; 5: 33–67. 3. Gudjonsson GH, Pearse J. Suspect interviews and false confessions. Current Directions in Psychological Science. 2011; 20: 33–37. 4. Gudjonsson GH. Psychological vulnerabilities during police interviews. Why are they important? Legal and Criminological Psychology. 2010; 15: 161–75. 5. Gudjonsson GH. The Psychology of False Confessions: A Review of the Current Evidence. In: Police Interrogations and False Confessions. Eds. Lassiter D, Meissner CA. New York: American Psychological Association, 2010: 31–47. 6. Williamson T. Psychology and Criminal Investigation. In: Handbook of Criminal Investigation. Eds. Newburn T, Williamson T, Wright A. Devon, UK: Willan Publishing, 2007: 68–91.

7. Gudjonsson GH. The Psychology of Interrogations and Confessions. A Handbook. Chichester: John Wiley & Sons, 2003. 8. Elks L. Righting Miscarriages of Justice? Ten Years of the Criminal Cases Review Commission. London: Justice, 2008. 9. Kassin SM, Drizin SA, Grisso T, et al. Police-induced confessions: Risk factors and recommendations. Law and Human Behavior. 2010; 34: 3–38. 10. Gudjonsson GH, Sigurdsson JF. False Confessions in the Nordic Countries: Background and Current Landscape. In: Forensic Psychology in Context: Nordic and International Approaches. Ed. Granhag PA. Devon, UK: Willan Publishing, 2010: 94–116. 11. Pearse J, Gudjonsson GH. Measuring influential police interviewing tactics: A factor analytic approach. Legal and Criminological Psychology. 1999; 4: 221–38. 12. Leo RA, Drizin SA. The Three Errors: Pathways to False Confession and Wrongful Conviction. In: Police Interrogations and False Confessions. Eds. Lassiter GD, Meissner CA. New York: American Psychological Association, 9–30. 13. Home Office. Police and Criminal Evidence Act 1984, Codes of Practice—Code C Detention, Treatment and Questioning of Persons by Police. London: The Home Office, 2008. 14. Gudjonsson GH, Clark NK. Suggestibility in police interrogation: A social psychological model. Social Behaviour. 1986; 1: 83–104. 15. Gudjonsson GH. Suggestibility, intelligence, memory recall and personality: An experimental study. British Journal of Psychiatry. 1983; 142: 35–7. 16. Gudjonsson GH. The Gudjonsson Suggestibility Scales Manual. Hove, UK: Psychology Press, 1997. 17. Grisso T. Evaluating Competencies: Forensic Assessments and Instruments. New York: Plenum Press, 1986. 18. Janoson M, Frumkin B. Review of the Gudjonsson Suggestibility Scales. In: The Seventeenth Mental Measurements Yearbook [Internet]. 2010. Available from: http://www.unl.edu/buros, 2007. 19. Frumkin IB. Psychological Evaluation in Miranda Waiver and Confession Cases. In: Clinical Neuropsychology in the Criminal Forensic Setting. New York: Guilford Press, 2008: 135–75. 20. Gudjonsson GH, Sigurdsson JF, Einarsson E, Bragason OO, Newton AK. Interrogative suggestibility, compliance and false confessions among prisoners and their relationship with attention deficit hyperactivity disorder (ADHD) symptoms. Psychological Medicine. 2008; 38: 1037–44.

78 Psychiatric aspects of miscarriages of justice ADRIAN GROUNDS Introduction 523 Definitions and frequency 523 Causes 524 Consequences 524 524 Psychiatric disorder

Other forms of distress 524 524 Problems of adjustment on release 525 Clinical assessment 526 Treatment and support References 527

INTRODUCTION

of exonerated cases and surveys of court personnel, have suggested wrongful conviction rates of 0.5%–1% for all felonies and 1%–5% for serious felonies. The lowest figure of 0.5% would equate annually to approximately 5,000 wrongful convictions and 2,000 individuals sentenced to prison in the United States. 3,4 In England and Wales, the Court of Appeal (Criminal Division) deals with appeals against Crown Court convictions and sentences; the Crown Courts deal with appeals from Magistrates’ Court cases. In the reporting year 2014–2015 (October–September), the Court of Appeal allowed 121 appeals against Crown Court convictions,5 and Crown Courts allowed 2,694 appeals against Magistrates’ Courts’ verdicts.6 In the United Kingdom, those who have exhausted the normal appeals process but continue to claim wrongful conviction can apply to the Criminal Cases Review Commission (CCRC) for a review of their case. The CCRC was established in 1997 on the recommendation of the Royal Commission7 following a series of notorious miscarriages of justice8 and was the first publicly funded, independent body established to investigate claims of wrongful conviction. The only two other jurisdictions with equivalent bodies are Scotland9 and Norway. The CCRC has extensive powers of investigation, and it can refer cases back to the Court of Appeal if new evidence or argument establishes a real possibility that the conviction will be overturned. In recent years, the CCRC has received about 1,500 applications per year,  and referred  30–40 cases per year to the Court of Appeal, of which about two-thirds result in the convictions being quashed or sentences varied.10 A number of university-based Innocence Projects have been established in the United Kingdom through the initial work of Dr. Michael Naughton at the University of Bristol.

When assessing, treating, and managing individuals who have criminal convictions, clinicians in forensic mental health services generally assume that the convictions are correct. While this assumption will usually be a justified and necessary starting point, it is important to remember that miscarriages of justice can also occur, and their causes and consequences need to be understood.

DEFINITIONS AND FREQUENCY The term miscarriage of justice can be widely applied, but its usual conception is wrongful criminal conviction.1 Wrongful convictions are not restricted to cases of factual innocence but also include convictions that are wrongly obtained, for example, because of false or fabricated e­ vidence or an unfair trial. The frequency of wrongful convictions is difficult to estimate because of formidable methodological difficulties. A relatively old survey conducted for the UK Royal Commission on Criminal Justice in 1993 indicated that judges and prosecution barristers considered that approximately 2% of convictions following jury trial in the Crown Courts in England and Wales were “problematic” because they went against the evidence (equivalent to approximately 200 cases per year currently). Defense barristers thought this was the case in 17% of convictions (equivalent to approximately 2,000 cases per year). These estimates were based on small numbers, however.2 In the United States, estimates of the incidence of wrongful convictions (in the narrow sense of convictions of the factually i­nnocent) have varied and been the subject of academic debate. Two recent reviews, drawing on studies

523

524  Psychiatric aspects of miscarriages of justice

These seek to assist individuals who claim factual ­innocence,11 and they draw on the pioneering work of the first Innocence Project established in New York that subsequently spread to other states and jurisdictions.12

CAUSES Errors leading to wrongful conviction can relate to the ­evidence, police and prosecution practice, and the criminal justice process. Important specific causes include eyewitness misidentification, perjury and unreliable testimony by witnesses, false confessions, police misconduct, defective forensic science, flawed expert evidence, nondisclosure of significant material to the defense, poor representation by defense lawyers, and defective summing up to the jury by the judge. As described in Chapter 77, of particular ­importance for forensic psychiatry practice is the possibility of unreliable admissions being made by vulnerable arrestees in police interrogation.13,14

CONSEQUENCES Although there is extensive academic literature on the causes of wrongful convictions, there is much less on their consequences. The general features of a personal series of (currently) 62 cases referred for psychiatric assessment between 1992 and 2015 are briefly summarized below. Preliminary findings when the series was smaller have been described previously.15,16 Most of the assessments were conducted in connection with applications for compensation for miscarriage of justice, usually after convictions had been quashed by the Court of Appeal following referral by the CCRC. One should exercise caution in making generalizations based on a modest ad hoc sample of this kind that carries risks  of bias, and lacks a comparison group, but in the absence of methodologically strong studies of larger, representative samples, the overview may have some provisional utility. At the time of assessment, most of the wrongly convicted (53) had been released for more than 2 years. The assessments were based on documentary sources, clinical records, extensive interviews, and collateral history obtained from third parties (relatives and long-standing friends). Clinical diagnoses were made according to ICD-10 criteria.17 Thirty-four (55%) individuals had been convicted of murder and sentenced to life imprisonment; the remainder had been convicted of other offenses. The duration of their wrongful imprisonment averaged 9.4 years (range 3 months–­27 years). Their mean age at arrest was 31; their mean age on release was 40.

Psychiatric disorder Many of the wrongfully convicted were described by friends and families as changed in personality: they had become more withdrawn, mistrustful, estranged, and difficult to live with. In 35 cases (56%), the descriptions of personality change

fitted the diagnostic category of “enduring personality change after catastrophic experience” (F62.0, ICD-10). (The key features are (i) enduring personality change, manifested as inflexible and maladaptive characteristics that impair interpersonal, social, and occupational functioning; and (ii) evidence of characteristics that were not previously seen, such as a hostile or mistrustful attitude toward the world, social withdrawal, feelings of emptiness or hopelessness, a chronic feeling of threat, and estrangement.) In 34 cases (55%), there were characteristic symptoms of post-traumatic stress disorder, usually related to specific events that caused terror while in police or prison custody. While in prison, 35 individuals (56%) had suffered from depressive disorders and 22 (35%) abused drugs (cannabis predominantly) to reduce tension and dysphoria. Since release, 46  individuals (74%) had suffered from depressive ­disorders, 8 had paranoid symptoms, 10 had drug dependence, and 9 had alcohol dependence. The post-release depressive disorders tended to be chronic and unremitting. Ten of the individuals who had depression and anxiety had a previous history of such ­conditions, but most had no histories of psychiatric illness prior to their arrests. There was more continuity, however, in relation to histories of drug and alcohol abuse.

Other forms of distress In 11 cases (18%), there were reports of assaults and b ­ eatings after their arrests. (Most of these arrests were in the 1970s.) Twenty-one of the individuals (34%) reported verbal threats, deprivation of food and sleep, or exhaustion when in police custody. Nine (18%) individuals made false or unreliable confessions under the pressure of police interrogation. In prison, 32 of the individuals (52%) reported terror of violence from other prisoners, and 4 reported serious assaults. There was a range of other forms of severe ­distress relating to prison conditions and difficulties of family visits and separations. After release, there were strong and unresolved feelings of loss. In 28 cases (45%), there was intense, chronic anger, and bitterness among the individuals and their families; usually there had been no apology, and those perceived to be at fault in the prosecution had not been brought to justice.

Problems of adjustment on release PRACTICAL SKILLS

Those whose convictions were quashed when they were in prison were released suddenly and without the careful preparation, support, and supervision from statutory services that is normally provided for long-term prisoners. Twenty-five (40%) individuals described marked and embarrassing difficulties in coping with ordinary tasks in the initial days and weeks, for example, crossing busy roads, going into shops, and using new technology. Fifteen (24%) individuals were unable to manage money responsibly and spent recklessly after release. Some felt stigmatized in their

Clinical assessment  525

communities, sensing that neighbors and the police still regarded them as guilty. Some became isolated and anxious about going out, fearing ­hostility or re-arrest. SOCIAL AND FAMILY CIRCUMSTANCES

At the time of their arrests, 26 individuals were living in intact families with their partners and children. In these 26 families, there were 55 children under the age of 16, of whom 33 were under the age of 6. Substantial numbers of young children experienced in effect the sudden loss of a parent, with the consequent risk of adverse effects that can result from parental imprisonment.18 Among these 26  ­families, 13 partnerships ended during the imprisonment and 4 ended after release. Nine of the 26 individuals were living with their partners at the time of assessment. At the time of assessment, 27 individuals (40%) were ­living with partners, 9 were living with parents or relatives, and 27 (44%) were living alone, of whom 8 were ­living ­isolated lives without close friends. Thirty-one of the individuals (50%) reported marked loss of hope and sense of purpose for the future. ADAPTATION TO PRISON

They had often developed habits and forms of adaptation to the prison environment that could lead to difficulties of adjustment on release. For example, some found it difficult after living in the predictable, ordered environment of a prison cell to tolerate living in a household where o ­ thers would keep moving possessions and household items. Others habitually felt and behaved as if they remained in a prison regime. Typically, they had learned to deal with emotional pressures and stresses in prison by trying to ­suppress painful feelings, avoiding communication, and isolating themselves. They used similar strategies of withdrawal, uncommunicativeness, and self-isolation after release. While this may have been adaptive in a prison context, it was maladaptive in a family setting. NOTORIETY

Those wrongly convicted of particularly notorious offenses commonly reported continuing sensitivity, apprehension, and fear when in public places with strangers, and anxiety that others, such as the police, continued to perceive them as guilty. A few who had highly successful careers before their arrests knew that, notwithstanding the quashed convictions, their professional reputations and prospects had been irrevocably lost. LONG-TERM DETENTION

There were particular problems related to detention over many years. Individuals imprisoned for 15 years or more lost a generation of family life. Men who had entered prison as fathers of young children left prison as grandfathers whose families had grown up without them. They sometimes had difficulties in relating to their children and other relatives in a way that was appropriate to the age the child or relative had become. Those who had young children at the time

of arrest often described estrangement and a loss of closeness that could not be restored. Families had adapted to living without the imprisoned parent, and substantial problems and conflicts could arise when the wrongly c­ onvicted ­person tried to return to family households. RELATIONSHIP DIFFICULTIES

Difficulties in family and close relationships were prominent. All reported that prison visits had been emotionally stressful. Sometimes the imprisoned individual stopped visits because the attachment was too painful. Commonly during the years of imprisonment, the individuals and their relatives had tried to hide their own worries and hardships, and reassure each other that they were all right when this was not the case. Over the years, this led to mutual incomprehension and lack of knowledge about what they had each gone through. EMPLOYMENT DIFFICULTIES

Of the 38 individuals who had been in work when arrested and were of working age on release, 19 (50%) had remained unemployed since release from prison. The psychiatric conditions of interviewees could impair fitness to work as a result of specific symptoms, such as depressed mood, irritability, impaired concentration, paranoid fears, and social ­withdrawal. In addition, there were subtler but disabling difficulties arising from the experience of wrongful imprisonment, such as inability to tolerate authority, pervasive mistrust, lack of confidence, social stigma, and apprehension about self-disclosure. EFFECTS ON FAMILIES

The families of the wrongly convicted also suffered from a range of losses, psychological problems, and other hardships because of the miscarriage of justice. Some described being victimized and ostracized. After release, there was permanent estrangement in many previously close family relationships. Partners and family members often found it exceptionally difficult to cope with the emotional difficulties of the released individuals. Some families and ex-­prisoners admitted that the years of imprisonment had been easier to cope with than the years since release.

CLINICAL ASSESSMENT The psychiatric, social adjustment, and family difficulties that can result from wrongful conviction and imprisonment are complex and require a careful and comprehensive approach to clinical assessment. An exclusive focus on identifying specific diagnoses will be insufficient; this is only part of a full clinical understanding of the psychological impact of these events on the individual and his or her ­family. Wrongful conviction typically changes the life courses of those involved and leads to irrevocable personal losses. Although the successful appeal may be appear to be the end of the ordeal, their previous lives cannot be reconstituted and the task of coping after release can be very difficult.

526  Psychiatric aspects of miscarriages of justice

Adequate clinical assessment is likely to be time-­ consuming. Care may need to be taken in setting up and pacing interviews, and establishing trust. First, a full, corroborated history of the individual’s ­personal history and circumstances prior to arrest should be sought to obtain a baseline description of the ­individual’s strengths, vulnerabilities, family context, and probable life prospects at that time, and to judge how the subsequent events impacted the individual. Second, a detailed longitudinal account should be obtained of the individual’s experiences and psychological reactions in the criminal justice system— at arrest, in police custody, on reception to prison, while awaiting trial, following conviction and sentence, and during the years in prison. Although prison medical records should always be sought, frequently they will be unavailable, and if they are, they will sometimes be of limited help, particularly in the case of individuals who were reluctant or mistrustful in relation to seeking help in prison. Third, a detailed account should be obtained of the ­individual’s reactions, symptoms, and functioning since release, covering the areas summarized earlier in this ­chapter. It is especially important also to obtain information from relatives or close friends who have known the individual well both before and since the years in prison, and this may reveal more than the wrongly convicted person is able to describe or acknowledge. Reports may be requested to assess “psychiatric ­damage” for compensation for miscarriage of justice. Reports may also be requested if wrongly convicted individuals take civil proceedings against the police or prosecuting authorities. As a signatory to the UN International Covenant on Civil and Political Rights (ICCPR), the United Kingdom is obliged (under Article 14(6) of the ICCPR) to provide compensation when convictions are quashed and there has been a miscarriage of justice, and the statutory scheme for implementing this international obligation is enacted in s.133 of the Criminal Justice Act 1988. However, the statutory meaning of miscarriage of justice in this context is now very narrow. It was amended in s.175(1) of the AntiSocial Behaviour, Crime and Policing Act 2014 to apply only if “a new or newly discovered fact shows beyond reasonable doubt that the person did not commit the offence.” In  ­practice, this standard will not be met in many cases when the Court of Appeal quashes convictions because they are unsafe. In consequence, many wrongly convicted people after release are likely to be ineligible for compensation and dependent on state benefit provisions and National Health Service (NHS) care.

TREATMENT AND SUPPORT In the United Kingdom, there are two small, publicly funded services that provide practical advice and support to wrongly convicted people after release, principally in relation to housing and social security benefits. The  Miscarriages of Justice Support Service (MJSS) at the

Royal Courts of Justice Advice Bureau has been funded by the Ministry of  Justice and covers England and Wales. The Miscarriages of Justice Organisation (MOJO Scotland) has been funded by the Justice Department of the Scottish Government and is based in Glasgow. However, these small services do not provide specialist clinical care. The psychiatric and psychological support needed by wrongly convicted people is broadly of two kinds. First, those suffering from psychiatric conditions such as depressive and post-traumatic stress disorders may need appropriate specialist treatment in line with The National Institute for Health and Care Excellence (NICE) guidance for those conditions. Second, there may be a need for longer term ­psychological support to help individuals in the tasks of facing the personal losses that have accumulated over the years, trying to work through some of the anger and bitterness that is commonplace, and gradually finding a c­ onstructive way of living and sense of purpose for the future. The latter may take many years to achieve. The wrongly convicted may have developed profound mistrust of the criminal justice system and others, and find it exceptionally hard to come to terms with what has happened to them because it lacks legitimacy. A separate area of work required in some cases is family therapy to help wrongly convicted individuals and their relatives and partners develop a better understanding of each other’s difficulties, and strategies for coping with them. More generally, long-term individual and family support may entail helping the wrongly convicted and their families come to terms with the disabilities and changes that have taken place, and trying to prevent the development of ­secondary problems. The family and social adjustment difficulties that can be experienced by wrongly convicted individuals after the return home are similar to those that have been described in the literature on combat veterans;19 and, in the more complex forms of post-traumatic stress disorders the individual treatment approach may need to focus not only on traumatic memories and anxiety reduction but also on the longer term reestablishment of secure interpersonal relationships.20 Most professionals working in health and community services will have little or no experience working with wrongly convicted people, and may therefore have difficulty in recognizing and properly appreciating their complex problems. Furthermore, those who have been wrongly ­convicted may be mistrustful of authorities that have let them down, and they may have had adverse experiences of psychiatric and psychological professionals in prison. They may be highly sensitive to indications that they are not understood. Some of the interviewees in the series discussed earlier in this chapter gave examples of seeking help from doctors and local mental health services but quickly becoming disillusioned because they felt patronized, or treated dismissively or inappropriately. Severe and sometimes masked problems can result in individuals being unable to respond to conventional referral expectations (such as replying to letters, phoning to confirm appointments, traveling to

References 527

appointments, sitting in outpatient waiting areas, etc.). Some become effectively housebound because of chronic depression, paranoid anxiety, or social avoidance. Thus they may need an assertive, proactive approach from professionals who will go out to visit them and work to engage them, repeatedly if necessary. Conventional modes of mental health service organization may also hinder access. The needs of this group are typically too complex and long term for primary care ­psychological services alone. They also do not fit easily within defined secondary mental healthcare pathways; specialized psychological trauma services may not be able to assist because the problems are more complex than their treatment programs will cover; and forensic services may not take them if they are not convicted offenders needing ongoing risk management. Arguably, however, forensic mental health services would be best placed to take the lead because their clinical staff understand how the criminal ­justice system and imprisonment can impact people.

REFERENCES 1. Nobles R, Schiff D. Understanding Miscarriages of Justice: Law, the Media and the Inevitability of a Crisis. Oxford: Oxford University Press, 2000. 2. Zander M, Henderson P. Crown Court Study. The Royal Commission on Criminal Justice Research Study No. 19. London: HMSO, 1993. 3. Zalman N. Qualitatively estimating the incidence of wrongful convictions. Criminal Law Bulletin. 2012; 48: 221–79. 4. Gross SR. How Many False Convictions Are There? How Many Exonerations Are There? In: Miscarriages of Justice: Causes and Remedies in North American and European Criminal Justice Systems. Eds. Huff CR, Killias M. New York: Routledge, 2013: 45–60. 5. Court of Appeal (Criminal Division). 2014–15 Annual Report. London: Court of Appeal, 2015. Available from: https://www.judiciary.gov.uk/wp-content/ uploads/2015/12/coa-criminal-division-annualreport-2014-15.pdf. 6. Ministry of Justice. Criminal Court Statistics Bulletin: July to September 2015 (main tables). London: National Statistics, 2015. Available from: https:// www.gov.uk/government/statistics/criminal-courtstatistics-quarterly-july-to-september-2015.

7. Great Britain Royal Commission on Criminal Justice. Report of the Royal Commission on Criminal Justice. Viscount Runciman of Doxford, Chairman. Cm. 2263. London: HMSO, 1993. 8. Mullin, C. Error of Judgment: The Truth about the Birmingham Bombings. 4th ed. Dublin: Poolbeg, 1997. 9. Chalmers J, Leverick F. The Scottish Criminal Cases Review Commission and its referrals to the appeal Court: The first 10 years. Criminal Law Review. 2010; 8: 608–22. 10. Criminal Cases Review Commission Annual Report and Accounts 2013/14. (HC207). London: The Stationary Office, 2014. 11. Roberts S, Weathered L. Assisting the factually innocent: The contradictions and compatibility of Innocence Projects and the Criminal Cases Review Commission. Oxford Journal of Legal Studies. 2009; 29: 43–70. 12. Scheck B, Neufeld P, Dwyer J. Actual Innocence: When Justice Goes Wrong and How to Make It Right. New York: Signet, 2001. 13. Gudjonsson GH. The Psychology of Interrogations and Confessions: A Handbook. Chichester: Wiley, 1998. 14. Jones S. Under pressure: Women who plead guilty to crimes they have not committed. Criminology and Criminal Justice. 2011; 11: 77–90. 15. Grounds AT. Psychological consequences of ­wrongful conviction and imprisonment. Canadian Journal of Criminology and Criminal Justice. 2004; 46: 165–82. 16. Grounds AT. Understanding the Effects of Wrongful Imprisonment. In: Crime and Justice: A Review of Research 32. Ed. Tonry M. Chicago, IL: University of Chicago Press, 2008: 1–58. 17. World Health Organization. The ICD-10 Classification of Mental and Behavioural Disorders: Clinical Descriptions and Diagnostic Guidelines. Geneva: World Health Organization, 1992. 18. Murray J, Farrington DP. The Effects of Parental Imprisonment on Children. In: Crime and Justice: A Review of Research 37. Ed. Tonry M. Chicago, IL: University of Chicago Press, 2008: 133–206. 19. Solomon Z. Combat Stress Reaction. The Enduring Toll of War. New York: Plenum Press, 1993: 103–30. 20. Courtois CA, Ford JD. Treatment of Complex Trauma. New York: Guilford Press, 2013.

79 Mental Capacity Act 2005 ROBERT BROWN Introduction 529 The five principles 529 529 Lack of capacity Best interests checklist 530 Interventions relying on Section 5 531 Deprivation of liberty 531

Lasting power of attorney 531 Advance decisions 531 Codes of practice 532 Status of the codes 532 Conclusion 532 References 532

INTRODUCTION

2 . A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success. 3. A person is not to be treated as unable to make a decision merely because he makes an unwise decision. 4. An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests. 5. Before the act is done, or the decision is made, regard must be had to whether the purpose of which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action.

The Mental Capacity Act (MCA) was implemented in England and Wales in October 2007. It has provided some coherence for what was previously an uncomfortable and complicated mix of statute and common law. The MCA definition of incapacity would apply to decisions under the Mental Health Act 1983 (MHA), but there are some areas of forensic law where case law has given specific meaning to lack of capacity. This is covered elsewhere in this book. When the MHA does not provide authority for treating patients who are subject to compulsion, the MCA may again be relevant—for example, for treatments that are not for a mental disorder. If a patient has capacity, he or she would be able to refuse such treatments, but clinicians might be able to rely on the MCA in situations where a patient lacks capacity to agree to the treatment. In essence the MCA provides a statutory framework for decision making on behalf of people who lack the capacity to consent to their care or treatment. This chapter provides a summary of the key parts of the act. More detailed explanations and guidance on how to assess capacity are available elsewhere.1,2

THE FIVE PRINCIPLES The MCA starts with five principles that should be applied by anyone who is relying on the act for any purpose. The principles are intended to protect people who lack capacity, and to help them participate in decision making as fully as possible. Section 1 of the Act states the following: 1. A person must be assumed to have capacity unless it is established that he lacks capacity.

LACK OF CAPACITY The test for incapacity is outlined in Sections 2 and 3 of the act. Section 2 states the following: For the purpose of this Act, a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain. This is sometimes referred to as the “diagnostic test.” In  practice this approach means that anyone seeking to intervene needs to determine whether there is a specific decision to be made now. If so, is the person unable to make the decision because of an impairment of, or a disturbance in, the functioning of the mind or brain, whether this be temporary or permanent? 529

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If the potential decision maker answers no to either of these questions, the MCA will not apply. If the answer is yes to both questions, the decision maker must then apply what is sometimes referred to as the “functional test.” The question is whether the person is able to make his or her own decision. This test must be applied before the decision maker is able to make decisions on behalf of the person. Section 3 of the MCA outlines the following test for determining whether a person is incapable of making his or her own decisions. A person is unable to make decisions for himself if he is unable

The checklist is summarized at the beginning of Chapter 5 of the Code of Practice to the MCA. ●●

●●

●●



1. To understand the information relevant to the decision 2. To retain the information 3. To use or weigh that information as part of the process of making the decision, or 4. To communicate his decision (whether by talking, using sign language, or any other means). The decision maker (D) must decide what information about the decision is relevant and give that information to the person (P) in a way that the person can understand. The level of information necessary is sometimes covered by specific case law, for example, consent to medical treatment. If P shows that he is able to use that information to weigh the benefits and/or risks of the proposed action and understands the consequences of inaction, retains the information for long enough to weigh the information, and finally communicates a decision, then P would be regarded as having capacity. So if the potential decision maker is satisfied that the person is able to meet all four of the requirements (1–4) the decision maker must regard the person as having the capacity to make the decision in question, and would have no authority to make that decision on the person’s behalf. On the other hand if the decision maker believes, on the balance of probability, that the person is unable to demonstrate any one of the four requirements, then the person would be seen to lack the capacity to make the decision in question. The decision maker would then be able to make the decision on the person’s behalf so long as he or she is acting in the person’s best interests. The procedure for this is covered by Section 4.

BEST INTERESTS CHECKLIST There is no definition of best interests in Section 4 of the act. Rather there is a checklist of factors that any decision maker must consider in determining what would be in P’s best interests. The aim of the checklist is to ensure that any decision made is in the best interests of the incapacitated person. The approach taken is a broad one, enabling the points to be applied in all decisions and p ­ ossible actions.

●●

●●

●●

●●

Encourage participation. ●● Do whatever is possible to permit and encourage the person to take part, or to improve his or her ability to take part, in making the decision. Identify all relevant circumstances. ●● Try to identify all the things that the person who lacks capacity would take into account if he was making the decision or acting for himself. Find out the person’s views. ●● Try to find out the views of the person who lacks capacity, including: – The person’s past and present wishes and feelings—these may have been expressed verbally, in writing, or through behavior or habits. – Any beliefs and values (e.g., religious, cultural, moral, or political) that would be likely to influence the decision in question. – Any other factors the person would be likely to consider if he was making the decision or acting for himself. Avoid discrimination. ●● Not make assumptions about someone’s best interests simply on the basis of the person’s age, appearance, condition, or behavior. Assess whether the person might regain capacity. ●● Consider whether the person is likely to regain capacity (e.g., after receiving medical treatment). If so, can the decision wait until then? If the decision concerns life-sustaining treatment. ●● Not be motivated in any way by a desire to bring about the person’s death. They should not make assumptions about the person’s quality of life. Consult others. ●● If it is practical and appropriate to do so, consult other people for their views about the person’s best interests and to see if they have any information about the person’s wishes and feelings, beliefs, and values. In particular, try to consult: – Anyone previously named by the person as someone to be consulted on either the decision in question or on similar issues. – Anyone engaged in caring for the person. – Close relatives, friends, or others who take an interest in the person’s welfare. – Any attorney appointed under a Lasting Power of Attorney or Enduring Power of Attorney made by the person. – Any deputy appointed by the Court of Protection to make decisions for the person. ●● For decisions about major medical treatment or where the person should live, and where there is nobody who fits into any of the above categories, an Independent Mental Capacity Advocate (IMCA) must be consulted.

Advance decisions  531

When consulting, remember that the person who lacks capacity to make the decision or act for himself still has a right to keep his affairs private, so it would not be right to share every piece of information. Avoid restricting the person’s rights. ●● See if there are other options that may be less restrictive of the person’s rights. Take all of this into account. Weigh all of these factors to determine what is in the person’s best interests. ●●

●●

●● ●●

For significant interventions, decision makers should record their decision-making process, because this will provide authority for their actions and help protect them from liability. Some local authorities and trusts have designed their own forms to help with this process.

INTERVENTIONS RELYING ON SECTION 5 Section 5 of the MCA means that decision makers can carry out acts in connection with the care or treatment of people provided they have met the requirements of the act. D can make decisions and carry out actions for or on behalf of P provided that the following occurs: ●●

●●

●●

Before doing the act D takes reasonable steps to establish that the person lacks capacity in relation to the matter. When doing the act D believes P lacks capacity in relation to the matter. The act will be in the person’s best interests (determined in accordance with Section 4).

If these conditions are fulfilled D would be protected from liability, assuming that D does not exceed the limitations detailed as follows or act negligently. Section 6 lists the conditions that must be met if Section 5 acts are to be regarded as lawful where there is an element of restraint. Restraint can be used provided that the following occurs: ●●

●●

The decision maker believes that the restraint is necessary to do the act to prevent harm to the person. The act is a proportionate response to ●● The likelihood of the person suffering harm. ●● The seriousness of that harm.

In addition Section 5 acts must not conflict with a person’s advance refusal of treatment, the authority of an attorney appointed by the person, or the authority of a deputy appointed by the court of protection. Restraint must also fall short of deprivation of liberty if someone is relying on the MCA. When the person is causing harm to others, the MCA cannot be relied on. In these circumstances decision makers need to consider whether the MHA or common law would provide a way of intervening to protect others.

DEPRIVATION OF LIBERTY If D concludes that the care or treatment that is planned amounts to a deprivation of liberty, then the following provisions are available if the criteria are met: ●●

●● ●●

●●

A personal welfare order made by the Court of Protection under Section 16. The Deprivation of Liberty Safeguards (DOLS). Life-sustaining treatment, or treatment to prevent a deterioration, while awaiting a decision by the Court of Protection (Section 4B). Detention under an appropriate section of the MHA.

The Court of Protection can make a personal welfare order where a person lacks capacity. The order can include decisions about where the person lives, what contact the person should have with others, consent to treatment issues, and who is responsible for the person’s health care. The court can also make orders in relation to a person’s property and affairs. Section 4B allows life-sustaining treatment or treatment to prevent a deterioration in someone’s condition if an application is being made to the Court of Protection for a determination on lack of capacity or best interests. The DOLS amended the MCA in April 2009. The safeguards provide a procedure for the lawful deprivation of liberty of individuals living in nursing homes or in hospital settings. The DOLS apply to people aged 18 or over who lack capacity and who have a mental disorder. The need for a procedure prescribed by law, even for compliant hospital patients, arises because of Article 5 of the European Convention on Human Rights.3

LASTING POWER OF ATTORNEY Any adult (18 or older) who has capacity can make a Lasting Power of Attorney (LPA) to cover either personal welfare decisions or property and affairs. The document must be witnessed and registered. The information required depends on whether it is a personal welfare matter or a financial one. LPAs provide for the appointment of someone (the donee) who can make decisions on behalf of the donor once the latter loses the capacity to make his or her own decisions. If a person loses capacity before he has made an LPA, the Court of Protection could intervene either by making a one-off decision or by appointing a deputy to make certain decisions on behalf of that person. Donees are sometimes referred to as appointees.

ADVANCE DECISIONS An advance decision can be made by a capacitated adult aged 18 or older. It would need to be clear what treatment cannot be given and under what circumstances. If the specific treatment is proposed and the person at that point lacks capacity in relation to the treatment decision, then the

532  Mental Capacity Act 2005

advance decision may be valid and applicable. Those relying on an advance decision need to believe on the balance of probabilities that it is indeed valid and applicable to the situation in question. Advance decisions need not be in writing unless they are for life-sustaining treatment. Advance decisions are limited to refusals of medical treatment (they cannot cover social care). Also, they cannot be used to require a specific treatment to be given. With the exception of electroconvulsive therapy, an advance refusal of treatment for mental disorder can be overridden if a person is detained under a section of the MHA to which Part 4 applies.

CODES OF PRACTICE There are two Codes of Practice to the MCA. The first code was laid before Parliament to coincide with the implementation of the act in two stages in 2007. It was broadly welcomed and provided clear guidance to working within the provisions of the act just as it came into effect. The second code is a supplement to the first one and was written to provide guidance to the workings of the DOLS, which were introduced by  ­amendments to the MCA made by the MHA 2007. The DOLS and the related code were introduced in 2008. Schedule A1 of the revised MCA covers DOLS, but most people will find it easier to look at the code first because the addition to the act is poorly drafted. This is unfortunate because the main body of the MCA is a model of clear drafting.

Status of the codes The codes apply in both England and Wales. The publication of the codes is a requirement of Section 42 of the MCA, which provides a list of areas that the codes must cover. Section 42(4) makes it “the duty of a person to have regard to any relevant code if he is acting in relation to a person who lacks capacity and is doing so in one or more of the following ways: (a) as the donee of a lasting power of attorney, (b) as a deputy appointed by the court, (c) as a person carrying out research in reliance on any provision made by or under this Act (see sections 30 to 34), (d) as an independent mental capacity advocate, (da) in the exercise of functions under schedule A1, (db) as a representative appointed under Part 10 of Schedule A1, (e) in a professional capacity, (f) for remuneration. The introduction to the main code notes the following: The Act applies more generally to everyone who looks after, or cares for, someone who lacks capacity to make particular decisions for themselves. This includes family carers or other carers. Although these carers are not legally required to

have regard to the Code of Practice, the guidance given in the Code will help them to understand the Act and apply it. They should follow the guidance in the Code as far as they are aware of it. Staff working with the MCA should also be aware that Section 42(5) makes the code relevant to some court and tribunal situations. It states the following: If it appears to a court or tribunal conducting any criminal or civil proceedings that— (a) a provision of a code, or (b) a failure to comply with a code, is relevant to a question arising in the proceedings, the provision or failure must be taken into account in deciding the question. This is similar to the position with the MHA code, with which staff will be familiar, but with the MCA this is stated in the act itself rather than merely in the code. Both codes contain helpful checklists. In the DOLS code these are more accessible because they are together at the end of the code just before the annexes. There are three checklists, and they cover key points for nursing homes and hospitals (managing authorities) and for local authorities and National Health Service bodies (supervisory bodies) with regard to the DOLS. They are invaluable for those who are unfamiliar with the details of the provisions. There are lists in the main code on matters such as the best interests checklist and key factors in determining when there is a deprivation of liberty. These are included in the relevant chapters.

CONCLUSION The introduction of the MCA 2005 in England and Wales has helped to clarify the position on decision making on behalf of those who do not have capacity to make specific decisions. The act cannot be relied on when a person is a risk to others, and here the MHA 1983, criminal law, and aspects of common law are relevant. However, there are many areas where the MCA will apply, and practitioners need to be familiar with key aspects of the new law. The Codes of Practice to the MCA provide useful checklists to help with this process.

REFERENCES 1. Brown RA, Barber P, Martin M. The Mental Capacity Act 2005: A Guide for Professionals. 3rd ed. London: Sage, 2015. 2. Letts P, ed. Assessment of Mental Capacity: A Practical Guide for Doctors and Lawyers. 3rd ed. London: The Law Society, 2010. 3. Council of Europe. The European Convention on Human Rights. Rome: European Court of Human Rights, 1950.

80 Mental Health Act 1983 ROBERT BROWN Introduction 533 Mental disorder definition 533 Civil admissions under Part II 533 Part III: Patients concerned in criminal proceedings or under sentence 536

Mental health tribunals 537 537 Police powers under Section 136 References 537

INTRODUCTION

of the mind which includes s­ ignificant ­impairment of intelligence and social functioning,” but this must also be associated with abnormally aggressive or seriously irresponsible conduct on the part of the patient.

This chapter provides a general overview of the Mental Health Act 1983 (MHA) including the amendments that were made by the Mental Health Act 2007. The 1983 act covers England and Wales only. Within the British Islands there is separate legislation for Scotland, Northern Ireland, Guernsey, Jersey, and the Isle of Man. Ireland has its own mental health law. The main emphasis in this chapter is on detention under the act. Details on consent to treatment rules can be found in the Chapter 82 on the Care Quality Commission. More comprehensive coverage on the act generally can be found elsewhere.1,2,3,4

MENTAL DISORDER DEFINITION The definition of mental disorder for all short-term detentions (anything up to 28 days) is “any disorder or disability of the mind,” but a person should not be seen as suffering from a mental disorder by reason only of dependence on alcohol or drugs. The definition is deliberately very broad, and the key to its interpretation can be found in the case of Winterwerp v. The Netherlands5 in that the disorder must be a true mental disorder based on objective medical expertise and not a mere deviation from society’s norms. In this regard it is helpful that the recommendations for civil detention come from doctors, as do the first reports to court for a forensic section. Once a patient is detained on an application by an approved mental health professional (AMHP) or by order from the court, the responsible clinician (RC) will not necessarily be a doctor. For compulsion under longer-terms sections (e.g., Sections 3, 7, or 37), the definition of mental disorder becomes more complicated for learning disabled patients. A learning disability is defined as “a state of arrested or incomplete development

CIVIL ADMISSIONS UNDER PART II Section 131 promotes the use of informal admission wherever possible. This is not necessarily on a voluntary basis, as the patient may lack the capacity to agree to admission to the hospital. So long as the patient is not in effect to be deprived of his liberty, he should be admitted informally. An important related case is HL v. UK,6 where the court concluded that an informally admitted patient had indeed been deprived of his liberty unlawfully. The key to the decision of the European Court is Article 5 of the European Convention on Human Rights,7 especially the right to liberty and security of person. This article states the following: No one shall be deprived of their liberty except for specific cases and in accordance with procedure prescribed by law e.g. after conviction, lawful arrest on suspicion of having committed an offence, lawful detention of person of unsound mind, to prevent spread of infectious diseases. Everyone deprived of liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of the detention shall be decided speedily by a Court and release ordered if the detention is not lawful. The court concluded that HL was “deprived of his liberty” within the meaning of Article 5.1 of the European Convention on Human Rights. It was not crucial that 533

534  Mental Health Act 1983

the door to his hospital room was locked or lockable. The court determined that the key factor in the case was that the healthcare professionals treating and managing HL exercised complete and effective control over his care and movements. It was clear that he would be released from the hospital to the care of Mr. and Mrs. E only when those professionals considered it appropriate. HL was under continuous supervision and control and was not free to leave. The court accepted that HL was suffering from a mental disorder of a kind or degree warranting compulsory confinement. However, the court found that there had been a breach of Article 5.1 in that there was an absence of procedural safeguards to protect against arbitrary deprivation of liberty in relying on the common-law doctrine of necessity. Article 5.4 was also breached in that the applicant had no right to have the lawfulness of his detention reviewed speedily by a court. Judicial review and habeas corpus proceedings were not adequate. Such patients should be detained under the MHA. If they cannot be detained long-term because of the nature of their learning disability, the Deprivation of Liberty Safeguards (DOLS, described in Chapter 79) should be used. In the Supreme Court judgment of the Cheshire West case (2014), the level of restrictions that would be seen as a deprivation of liberty was lowered significantly. Any patient for whom the restrictions could be seen as attributable to the state and who lacks capacity to agree to the restrictions, who is subject to continuous supervision and control, and who is not free to leave will be seen as deprived of liberty and will need to be subject to detention under the MHA or the MCA as appropriate. The effect of this judgment has been to dramatically increase the use of DOLS and detention under the MHA, especially in cases such as dementia or significant learning disability. Where the MHA is used the relevant sections are set out in the following paragraphs. A Section 2 detention is for assessment (or for assessment followed by medical treatment) rather than for observation, as was the case with the 1959 act.8 This is because, in the words of the UK Department of Health and Social Security’s 1981 white paper,9 “it implies more active intervention to form a diagnosis and to plan treatment.” Two doctors need to sign recommendations based on their examinations of the patient. Section 12 requires at least one doctor to have special experience in the diagnosis or treatment of mental disorder, and one should preferably have previous acquaintance with the patient. The recommendations need to state, with regard to the patient, as per Section 2(2): (a) He is suffering from mental disorder of a nature or degree which warrants the ­detention of the patient in a hospital for assessment (or for assessment followed by medical treatment) for at least a limited period, and (b) He ought to be so detained in the interests of his own health or safety or with a view to the protection of other persons.

An application to the hospital must be based on these two medical recommendations and may be made by either an AMHP or the patient’s nearest relative. The Code of Practice10 states a preference for the AMHP to be the applicant, and there are only a handful of exceptions to this each year. Section 11(3) requires the AMHP to inform the nearest relative of his or her rights to discharge the patient under Section 23. This, together with Section 25, allows the nearest relative to discharge the patient if the relative has given 72 hours’ written notice to the hospital managers of their intention to discharge the patient. The RC may block this only if he or she able to produce within the 72 hours a report certifying that in the opinion of that clinician, the patient, if discharged, would be likely to act in a manner dangerous to other persons or to himself. Thus the term “a danger to themselves or others” is an incorrect description of the criteria for initial detention and should be avoided unless referring to the RC blocking power. When only one doctor is available and waiting for a second doctor would involve “undesirable delay,” it is possible to effect an admission under Section 4. Apart from the urgent necessity for admission, grounds are basically the same as for Section 2. Section 3 allows a patient to be compulsorily admitted to the hospital and detained there for up to 6 months in the first instance. If the grounds are still met, detention may be renewed for 6 more months and after that for a year at a time. The renewal process involves the RC’s examining the patient within the last 2 months of the period of detention, obtaining the agreement of another professional who has been professionally concerned with the patient that the grounds for Section 3 are met, and submitting a report to the hospital managers. An admission under Section 3 is for treatment, and two doctors sign recommendations based on their examinations of the patient. As with Section 2, at least one doctor must be approved under Section 12 and one should preferably have previous acquaintance with the patient. The recommendations will state the following: ●●

●●

●●

He is suffering from mental disorder of a nature or degree that makes it appropriate for him to receive medical treatment in a hospital. It is necessary for the health or safety of the patient or for the protection of other persons that he should receive such treatment and it cannot be provided unless he is detained under this section. Appropriate medical treatment is available for him.

Again the AMHP is the usual applicant and must contact the nearest relative unless this is not reasonably practicable or would involve unreasonable delay. If the nearest relative objects to the application, it may not be made. If the AMHP thinks the nearest relative is acting unreasonably, the professional may make an application to the County Court under Section 29 for the relative’s displacement. It is possible for an admission to be under either Section 2 or 3, and it is a matter of professional judgment of the

Civil admissions under Part II  535

criteria involved. The guidance in the new code8 is significantly different from that in the previous edition. Combined with the effects of the appropriate medical treatment test and the requirement to name the relevant hospital in the medical recommendation for a Section 3 detention, the number of Section 3 applications from the community has fallen, whereas the number of Section 2 applications has risen. Section 5 allows for detention of a person under Section 2 or 3 even if he or she is already an inpatient. It also contains provisions for preventing inpatients from leaving the hospital when an assessment for detention under one of these sections is incomplete. Under Section 5(2) the doctor or approved ­clinician in charge of a patient’s treatment (or,  if they are absent, one nominee) may sign a form stating that the patient should be detained under Part II of the Act. The form is filed with the hospital managers, who may detain the patient for up to 72 hours to enable a full assessment of the need for a Section 2 or 3 admission to take place. The patient could at this point be in any hospital, not necessarily a psychiatric unit. The power cannot be used to extend a Section 2 or 3 that is about to expire. For patients already receiving psychiatric treatment, there is also provision under Section 5(4) for specified nurses to detain them for up to 6 hours, during which time Section 5(2) could be considered. Guardianship is a form of community compulsion that is used relatively infrequently in England and Wales. It may be applied through a civil route under Section 7 or, rarely, via the courts under Section 37. Under Section 7 an AMHP’s application is based on two medical recommendations and is made to the local authority. The use of guardianship varies considerably between local authorities. Some local authorities (notably in London) are loath to use guardianship. There appears to be no satisfactory explanation for these differences apart from the preferences of staff and the willingness of local authority managers to support the use of guardianship. Where it is used, it lasts up to 6 months and is then renewable for a further 6 months and then yearly. No one under the age of 16 can be received into guardianship. A guardianship application may be made in respect of a patient on the following grounds: (a) He is suffering from mental disorder of a nature or degree which warrants his reception into guardianship under this section. (b) It is necessary in the interests of the welfare of the patient or for the protection of other persons that the patient should be so received. If the mental disorder is learning disability, this must be associated with abnormally aggressive or seriously irresponsible conduct. Section 8 gives the guardian authority to determine where the patient should live; that the patient should appear at places and times so specified for the purpose of medical treatment, occupation, education, or training; and to require access to the patient to be given, at any

place where the patient is residing, to any medical practitioner, AMHP, or other person so specified. Section 17 allows the RC to grant leave to any patient liable to be detained under Part II of the act to enable the patient to be absent from the hospital. Hospital order (Section 37) patients may also be granted leave by the RC, but restricted patients may be granted leave only with the permission of the secretary of state for justice. Leave may be subject to any conditions the RC thinks necessary in the interests of the patient or for the protection of others. It may be granted indefinitely, on specified occasions, or for a specific period. It may not go beyond the renewal date for the section. Community treatment orders (CTOs, Section 17A) were introduced as an essential part of the Mental Health Act 2007 reforms. They provide a new framework for ensuring that certain patients receive compulsory care and treatment within the community. Section 17(2A) requires the RC to consider the use of a CTO in any case where he is granting leave that will exceed 7 consecutive days. A CTO can only be made when a patient is liable to be detained in a hospital for treatment. Patients of any age who are liable to be detained under Sections 3, 37, 45A, 47, and 48 can be made subject to a CTO by their RC, if they obtain the agreement of an AMHP, and if the criteria set out in Section 17A(5) are met, as follows: (a) The patient is suffering from mental disorder of a nature or degree which makes it appropriate for him to receive medical treatment. (b) It is necessary for his health or safety or for the protection of other persons that he should receive such treatment. (c) Subject to his being liable to be recalled as mentioned in paragraph (d) below, such treatment can be provided without his continuing to be detained in a hospital. (d) It is necessary that the responsible clinician should be able to exercise the power under section 17E(1) below to recall the patient to hospital. (e) Appropriate medical treatment is available for him. The relevant form requires that the RC and the AMHP both state that these criteria are met. The AMHP also needs to state that it is appropriate to make the CTO, and, when discretionary conditions are set, that the RC and the AMHP agree that they are necessary or appropriate. Patients subject to a CTO have the following two conditions attached to the order:

1. A condition that the patient make himself available for examination by the RC when extension of the CTO is considered. 2. A condition that, if required, he make himself available for examination by the second opinion appointed doctor (SOAD).

536  Mental Health Act 1983

The RC may also specify discretionary conditions if he or she obtains the agreement of the AMHP. Any discretionary conditions must be considered necessary or appropriate for one or more of the following purposes: ●● ●● ●●

Ensuring that the patient receives medical treatment. Preventing risk of harm to the patient’s health or safety. Protecting other persons.

Failure by the patient to comply with a mandatory condition provides grounds to recall a patient, but this is not true of failure to comply with a discretionary condition. Notice of recall must be in writing and can only take place if either the patient has failed to comply with a mandatory condition or the patient requires medical treatment in the hospital for his mental disorder, and there would be a risk of harm to the health or safety of the patient or to others if the patient was not recalled to the hospital for treatment of the mental disorder. In deciding whether to recall a patient to the hospital, the RC may take into account any failure to comply with a discretionary condition. The RC together with an AMHP may then revoke a CTO in writing if the criteria for detention under Section 3 are met. The effect of revocation is that the patient remains in the hospital under his or her original detention section but will start a new detention period of 6 months from the time of revocation.

PART III: PATIENTS CONCERNED IN CRIMINAL PROCEEDINGS OR UNDER SENTENCE Some patients are detained in the hospital or received into guardianship as a result of a court order. Part III of the MHA covers these situations as well as those where the secretary of state can direct people to be transferred from prisons to a hospital. Section 35 allows the court to remand a patient to a hospital for reports if the following occur: ●●

●●

The court is satisfied, on the written or oral evidence of a registered medical practitioner, that there is reason to suspect that the accused person is suffering from mental disorder. The court is of the opinion that it would be impracticable for a report on the patient’s mental condition to be made if he were remanded on bail.

The remand is for a maximum 28 days, although the court may renew this for additional periods of 28 days to a maximum of 12 weeks. Part IV provisions on consent to treatment do not apply, so patients should not be treated without their consent except in an emergency under common law or in situations where the Mental Capacity Act (MCA) can be relied on. Section 36 is the remand of an accused person to a hospital for treatment. This may be used only by the Crown Court and is restricted to those cases where it would be an alternative to

a remand in custody. It applies to people waiting for trial or sentencing and requires the written or oral evidence of two doctors that the person is suffering from a mental disorder of a nature or degree that makes it appropriate for him to be detained in a hospital for treatment. There also needs to be appropriate medical treatment available. The remand is for a maximum of 28 days, although the court may renew this for additional periods of 28 days to a maximum of 12 weeks. Part IV provisions on consent to treatment apply. Under Section 37, when an offender is convicted, a hospital or guardianship order may be made by the Crown Court. A magistrates’ court may also make an order, even if there has not been a conviction, if the court is satisfied that the offender committed the act or made the omission in question. In either case the following needs to be true: (a) the court is satisfied, on the written or oral evidence of two registered medical practitioners, that the offender is suffering from a mental disorder and that either (i) the mental disorder from which the offender is suffering is of a nature or degree which makes it appropriate for him to be detained in a hospital for medical treatment and, appropriate medical treatment is available to him; or (ii) in the case of an offender who has attained the age of 16 years, the mental disorder is of a nature or degree which warrants his reception into guardianship under this Act; and (b) the Court is of the opinion, having regard to all the circumstances including the nature of the offence and the character and antecedents of the offender, and to the other available methods of dealing with him, that the most suitable method of disposing of the case is by means of an order under this section. The order lasts for up to 6 months in the first instance. It may be renewed for an additional 6 months and then for a year at a time. The effect of a hospital order is very similar to the person’s being subject to Section 3. Part IV applies for consent to treatment purposes. Under Section 37/41, to make a restricted hospital order, the court needs the same evidence as is required for a hospital order. In addition, one of the doctors must attend court to give evidence in person. Only the Crown Court can impose restrictions, and they must be without a time limit. The grounds are that it appears to the court, “having regard to the nature of the offence, the antecedents of the offender and the risk of his committing further offences if set at large, that it is necessary for the protection of the public from serious harm.” The effect is that the patient can be discharged, given a leave of absence, or transferred to another hospital only with the approval of the justice secretary. The secretary of

References 537

state may discharge the patient absolutely or conditionally. If conditionally discharged, the patient will be subject to compulsory aftercare from a supervising clinician. A social supervisor is also appointed (often an AMHP). Section 38 states that when a court is trying to decide whether a full hospital order is needed, it can check this by making an interim hospital order. The order can be made for up to 12 weeks in the first instance and can be renewed by the court for periods of up to 28 days at a time, to a maximum of one year. Two doctors must give written or oral evidence. The court will then receive reports on how the patient reacts to treatment. Part IV of the MHA applies, so treatment may be given as with Section 37. Section 45A involves a prison sentence combined with a requirement for hospital treatment with limitation directions. Until the recent reforms its use was limited to patients with psychopathic disorder. Now that the classification has been abolished by the 2007 act, the measure is open to people with any kind of mental disorder, and it remains to be seen if its use increases. The order is available only to the Crown Court. The grounds set out in subsection (2) are as follows: (a) that the offender is suffering from mental disorder; and (b) that the mental disorder from which the offender is suffering is of a nature or degree which makes it appropriate for him to be detained in a hospital for medical treatment; and (c) that appropriate medical treatment is available for him. The written or oral evidence from two doctors is required. Under Section 47, it is possible for a prisoner to be transferred to a psychiatric hospital even after sentencing. The secretary of state for justice can order the prisoner’s transfer under Section 47 if satisfied by reports from at least two doctors in regard to the following: (a) that the said person is suffering from mental illness, psychopathic disorder, severe mental impairment or mental impairment; and (b) that the mental disorder from which that person is suffering is of a nature or degree which makes it appropriate for him to be detained in a hospital for medical treatment and, (c) in the case of psychopathic disorder or mental impairment, that such treatment is likely to alleviate or prevent a deterioration of his condition. The transfer direction has the same effect as a Section 37 hospital order made without restrictions, and the patient is subject to consent to treatment provisions. Commonly, a restriction direction is also made under Section 49. This has the same effect as a restriction order under Section 41, described earlier. If the offender was sentenced to a fixed

term of imprisonment, the restriction lifts on the expiry of the sentence (allowing for remission). Section 48: Removal to hospital of other prisoners, gives the secretary of state for justice powers to direct the transfer to a hospital of a person who is waiting for trial or sentence, and who has been remanded into custody. Two medical reports are needed stating the following: (a) that person is suffering from mental disorder of a nature or degree which makes it appropriate for him to be detained in hospital for medical treatment; and (b) he is in urgent need of such treatment; and (c) appropriate medical treatment is available for him. Part IV provisions on consent to treatment apply to this group of patients.

MENTAL HEALTH TRIBUNALS Tribunals can discharge patients who are subject to compulsion (even those on restriction orders). They are covered in Chapter 81.

POLICE POWERS UNDER SECTION 136 If a constable finds in a public place a person who appears to be suffering from mental disorder and to be in immediate need of care or control, the constable may, if he thinks it necessary to do so in the interests of that person or for the protection of other persons, remove that person to a place of safety. A person removed to a place of safety may be detained there for a period not exceeding 72 hours, during which he will be examined by a doctor and be interviewed by an AMHP, and any necessary arrangements will be made for his treatment or care. Section 136(2) makes it clear that an assessment should be carried out by both an AMHP and a doctor. If the doctor arrives first and concludes that admission to a hospital is unnecessary, or if the person agrees to informal admission, the individual should still be seen by an AMHP. Only if the doctor concludes that the person is not mentally disordered at all should the person be released before the arrival of the AMHP. If it is discovered that a patient who has been arrested under Section 136 is currently subject to a CTO or is on Section 17 leave, the code (paragraph 15.16) advises that the RC be contacted. After hours, there will normally be a senior clinician on duty who will be designated by the responsible hospital as the patient’s RC.

REFERENCES 1. Barber P, Brown R, Martin M. Mental Health Law in England and Wales. London: Sage, 2017. 2. Fennell P. Mental Health Act: Law and Practice. 2nd ed. Bristol: Jordans, 2011.

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3. Hale B. Mental Health Law. 5th ed. London: Sweet and Maxwell, 2011. 4. Jones R. Mental Health Act Manual. 19th ed. London: Sweet and Maxwell, 2016. 5. Winterwerp v. Netherlands (1979), 2EHRR387. 6. HL v. UK (2004), 40EHHR761. 7. Council of Europe. The European Convention on Human Rights. Rome: The European Court of Human Rights, 1950.

8. Mental Health Act 1959. London: Parliament of the United Kingdom, 1959. 9. Department of Health and Social Security. Reforming Mental Health Legislation. Cmnd 8405. London: HMSO, 1981. 10. UK Department of Health. Mental Health Act 1983, Code of Practice. London: The Stationery Office, 2015.

81 Mental health tribunals CAROLE BURRELL Introduction 539 Access 540 Applications 540 References 541 Rules and procedure 541 Tribunal composition 541 “The overriding objective” 542 Parties 542 Notification of the proceedings to others, including “victims” 542 Information and reports 542 Representatives 543 Medical examination 543

Listing of hearings 543 Public or private hearing? 543 Hearing procedure 544 Withdrawals 544 Adjournments 544 Decisions 544 545 Appeals, reviews, and “re-sectioning” Criteria, discretion, duties and powers 545 Criteria, discretion and duties 545 Powers 546 Conclusion 547 References 547

INTRODUCTION

who continued to be denied access were those detained in a hospital as a consequence of an interim measure employed by the criminal courts, which was understandable, given the fact that the court’s reason for directing the (alleged) offender to a hospital would not be as a final disposal but specifically for the preparation of a report 2 or for treatment3 or to “test” the appropriateness of imposing a hospital order.4 That remains the case. The Tribunals, Courts and Enforcement Act 2007 (TCEA), most of which came into effect on the same day as most of the MHA 2007 (November 3, 2008), led to a radical reorganization of tribunals generally, including the MHRT. In fact, the Mental Health Review Tribunal was confined to history, in England if not in Wales.5 Instead patients, their lawyers, hospitals, and professionals had to recognize a new body, the First-tier Tribunal created by the TCEA and into which the old MHRT (and other tribunals) merged. The Health, Education and Social Care Chamber is one of several Chambers sitting within the First-tier Tribunal. It covers four jurisdictions including mental health dealing with applications and referrals of the cases of patients subject to the provisions of the MHA 1983. When exercising this jurisdiction it is properly called the First-tier Tribunal (Mental Health) and commonly referred to as the Mental Health Tribunal. The old MHRT Rules were replaced by the Tribunal Procedure (First-tier Tribunal)

The Mental Health Review Tribunal (MHRT) arrived on the mental health landscape following the implementation of the Mental Health Act 1959. The MHRT was recognition of the need for detained mental health patients to have access to an independent and impartial body with the power to review the patient’s detention and to order the patient’s discharge from it. However, the Act did not provide access to the MHRT for all those patients detained under its provisions. By way of example access by patients detained under a hospital order with restrictions attached, was by means of a reference by the secretary of state and the MHRT powers in such cases were very limited. In 1981 the European Court of Human Rights in the case of X v. United Kingdom1 recognized that this omission breached the rights of such patients (specifically the right under Article 5(4) of the European Convention on Human Rights (ECHR) to take proceedings at reasonable intervals before a court to review the lawfulness of the detention), and shortly thereafter amending legislation was enacted to remedy the position. The subsequent Mental Health Act 1983 (MHA 1983) retained the MHRT and provided for the vast majority of detained patients to have access thereto, either by means of an application or subsequent to a reference by hospital managers or the secretary of state. Among those patients

539

540  Mental health tribunals

(Health, Education and Social Care Chamber) Rules 2008, some of which are expressly stated to be solely applicable to mental health cases and others described as not applicable at all. In many ways the new tribunal (referred to within this chapter as the MHT) is the old MHRT under a new name. Much of the case law that developed over the years about the functioning of the MHRT (particularly since October 2000 when the Human Rights Act 1998 took effect) is still of direct relevance. However, there are some differences between the old and the new Rules, and the criteria to be applied by the MHT and the extent and nature of its duties and powers have been affected by the MHA 2007 amendments to the MHA 1983. In addition, and of particular significance, is the fact that since November 2008, challenges to tribunal decisions have not been to the High Court but rather to the Upper Tribunal (Administrative Appeals Chamber), also a creation of the TCEA. In its comparatively short life, the Upper Tribunal has made notable contributions in respect of MHT procedural matters, and on issues relating to criteria and powers.

ACCESS Chapter 6 of the Reference Guide to the MHA 19836 (first published in 2008 to coincide with the MHA 2007 amendments to the MHA 1983 taking effect and updated and re published in 2015) contains helpful tables indicating when detained patients and their nearest relatives can apply to the MHT, and when an obligation is imposed on the hospital managers or secretary of state to refer patients to the MHT.7 Specific points to note follow.

Applications ●●

●●

●●

Section 2 patients (whose detention lasts for up to 28 days other than in very limited circumstances when it may be extended) can apply to the MHT within 14 days starting with the day on which the detention commenced. Patients detained pursuant to Section 3, can apply once during the first period of detention (which is for up to 6 months) and once in each subsequent period of detention following renewal. Unlike the Section 3 patient, the Section 37 (“hospital order”) patient cannot apply during the first 6 months of detention. This reflects the fact that an independent judicial body, namely the sentencing court, has considered the appropriateness of hospital detention at the outset, and imposed the hospital order, which is not the case with Section 3 patients. The hospital order patient is entitled to apply to the MHT once during each period of renewal of the hospital order. He or she can request a review and discharge by the hospital managers at any time as can most detained patients although it is important to note that the managers can not discharge restricted patients without the consent of the secretary of state.

Those few individuals placed on Section 37 guardianship orders are entitled to apply during the first 6 months. ●● As far as community treatment order (CTO) patients are concerned: (1) The patient acquires the right to apply to the MHT once per compulsion period, but if the “hovering” treatment order is a Section 37 hospital order, the right to apply is not acquired until 6 months have elapsed since the hospital order was first made by the court. (2) If the CTO is revoked (Section 17F), the “hovering” Section 3 treatment order takes effect again, and the patient once more becomes liable to be detained. However, the patient is treated as if admitted to the hospital under the treatment order on the day on which the CTO was revoked (Section 17G(5))—and the patient acquires the right to apply to the MHT within 6 months of the revocation, the application being in relation to the detaining treatment order. If the “hovering” treatment order is a Section 37 hospital order, the patient’s right to apply to the MHT on revocation is the same as in the case of the “hovering” Section 3 treatment order save that the patient cannot apply until 6 months have elapsed since the hospital order was first made by the court. ●● The addition of a Section 41 restriction order to a hospital order does not affect when a patient can apply to the MHT. It is of considerable relevance however when considering the MHT’s powers (and the powers of hospital managers). ●● Patients detained under Section 45A (a hospital direction and limitation direction) may not apply to the MHT until the second 6 months of detention, and then once during each subsequent 12 month period. ●● Those patients placed on hospital orders following a finding of unfitness to plead or not guilty by reason of insanity are in the same position as those subject to a Section 37 hospital order. ●● Patients transferred from a prison to a hospital under either Section 47 or Section 48 can apply once within the first 6 months following transfer, and once during the second 6- month period and then once during each subsequent 12- month period. The restriction direction (under Section 49) that is invariably attached does not affect this, although it does very much limit the MHT’s powers. ●● The conditionally discharged patient who has been recalled to hospital can make an ­application to the MHT during the second 6-month period after the date of recall, but not during the first 6 months following recall. He or she can then apply once during each subsequent 12-month period. The logic behind the lack of an earlier right to apply is the fact that the secretary of state has a statutory duty under Section 75 MHA 1983 to refer the case of a recalled conditionally discharged patient within 1 month of recall. ●●

Rules and procedure  541

●●

●●

●●

●●

●●

A conditionally discharged patient can apply for an absolute discharge between 12 months and 2 years after the date of the conditional discharge, and once during each subsequent 2-year period. As far as “nearest relatives” are concerned, the nearest relative of a Section 2 patient has no right of access to the MHT. Access in respect of a Section 3 patient is limited to one application within the period of 28 days from the nearest relative being informed that the responsible clinician has issued a barring report preventing the nearest relative’s order, for the patients discharge (pursuant to Section 23 MHA 1983), from taking effect. Where the patient is subject to a Section 37 hospital order or a Section 47 prison transfer order, and provided the patient is not subject to a restriction order or restriction direction, the nearest relative can apply to the MHT once during the period between 6 months and 12 months following the date of the order, and once during each subsequent 12-month period. Unlike the nearest relative of a Section 2 or Section 3 patient, he or she cannot order the patient’s discharge. Similarly, the nearest relative of a Section 37 guardianship order cannot order discharge but can apply to the MHT once within the 12-month period from the date of the order, and once during each subsequent 12-month period. What about the nearest relative of a patient subject to a CTO? If the “hovering” treatment order is a Section 37 hospital order, the nearest relative has no right to order discharge but does have the right to apply to the MHT with the same frequency as the patient. If the “hovering” treatment order is Section 3, the nearest relative can order discharge by giving 72 hours’ notice in writing. If the responsible clinician bars the discharge (only possible on grounds of “dangerousness”), the nearest relative can apply to the MHT within 28 days of being informed of the responsible clinician’s barring report.

References ●●

●●

●●

Section 3 patients whose cases have not previously been considered by the MHT (other than following an appli­ cation/reference made while detained under Section 2 or Section 4 MHA 1983) will have their cases referred to the MHT by the hospital managers of the detaining hospital at 6 months from the date on which the patient was first detained (i.e., not from when the patient was first detained under Section 3). Hospital managers are obliged to refer Section 37 hospital order patients (and Section 3 patients) when the MHT has not considered the patient’s case for 3 years (1 year when the patient is under 18 years of age), the time running from the date of detention or the date of the last MHT hearing. There is no duty on the relevant social services authority to refer guardianship patients to the MHT. What about CTO patients? There must be a referral by the hospital managers to the MHT at the end of the first 6 months since the day on which the patient

●●

●●

●●

was detained for treatment (or for assessment if there was a preceding Section 2), but only if the “hovering” treatment order is a Section 3, and then every 3 years— presuming there has been no prior consideration of the patient’s case by the MHT. In addition, if the CTO is revoked, the hospital managers must refer the patient’s case to the MHT “as soon as possible” after revocation. The secretary of state for health is empowered to refer the case of an unrestricted patient at any time; the secretary of state for justice has a similar power in respect of restricted patients. The secretary of state for justice is obliged to refer the case of a restricted patient detained in a hospital (excluding conditionally discharged patients) whose case has not been considered by the MHT within the preceding 3 years. The secretary of state is also under a statutory duty to refer to the MHT the case of the conditionally discharged patient who has been recalled to hospital. The reference must be made within 1 month of the recall.

RULES AND PROCEDURE As previously indicated, the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 (the Rules), govern how the MHT goes about its  task. From time to time these Rules have been (and will continue to be) amended, most recently on August 21, 2015. The Practice Direction: First-tier Tribunal Health Education and Social Care Chamber: Statements and Reports in Mental Health Cases (PD), made by the senior president of tribunals (SPT) sets out the statements and reports (and their content) which must be sent to the MHT prior to the hearing. The most recent version of the PD is dated October 28, 2013. In addition, from time to time the SPT introduces and/or amends supplementary provisions of relevance including Practice Statements. There is insufficient space within this chapter to consider the Rules and the PD and other supplementary provisions in great detail. What follows is an attempt to highlight some significant procedural issues.

Tribunal composition The Practice Statement: Composition of Tribunals in relation to matters that fall to be decided by the Health, Education and Social Care Chamber, made by the SPT in the exercise of powers granted to the SPT by the First-tier Tribunal and Upper Tribunal (Composition of Tribunals) Order 2008 dated December 16, 2015 recognizes that MHT decisions made at or following a hearing must be made by: ●● ●●

●●

A tribunal judge; and A tribunal member who is a registered medical practitioner; and A tribunal member who has substantial experience in health or social care matters

542  Mental health tribunals

Most MHT judges and other members (often called “medical members” and “specialist members” respectively) are part-time. In recent years 21 full time salaried judges have been appointed. Not only do they sit on MHT hearings, but they also are responsible for decisions in respect of interlocutory matters and applications for leave to appeal against MHT decisions (revisited later in this chapter). There is also a salaried medical member, whose primary task is to provide support and guidance to medical members. MHTs considering applications or references in respect of restricted patients must be presided over by judges designated to hear such cases, such as Crown Court judges or their equivalent, or certain salaried judges “ticketed” to hear such cases. In determining whether a conflict of interest might prevent them from sitting, MHT members must ask themselves the well-established question formulated in 2002 by the House of Lords in Porter v. Magill:8 “Would the fair-minded and informed observer, having considered the facts, conclude that there was a real possibility that the tribunal was biased.” The ministry of justice has recently undertaken a review, initiated a consultation and proposed changes over panel composition in tribunals generally, calling for the system to be streamlined.9 If its recommendations for greater flexibility are realized, the MHT panel may, in the future, consist of a single member (a judge) with medical and specialist members deployed only in cases where their expertise is deemed necessary by the SPT (whose functions include ensuring tribunals are accessible, fair and speedy pursuant to Section 2(3) TCEA). Change of this sort will only be ­possible by the introduction of amending legislation.

“The overriding objective” Rule 2 states that the overriding objective of the Rules is to enable the MHT to deal with cases “fairly and justly.” It then expands on this laudable aim, by identifying that this will include: 1. Dealing with cases in a manner that is proportionate to the importance of the case, the complexity of the issues, the anticipated costs and the resources of the parties 2. Avoiding unnecessary formality and seeking flexibility in the proceedings 3. Ensuring, so far as practicable, that the parties are able to participate fully in the proceedings 4. Using any special expertise of the tribunal effectively 5. Avoiding delay, as far as compatible with proper consideration of the issues There is an obligation on the parties (see the following section) to help the tribunal further the overriding objective and to cooperate with the tribunal generally.

Parties A “party” in a MHT case is defined in Rule 1(3) as being the following: ●● ●● ●●

●●

The patient The responsible authority The secretary of state (if the patient is a restricted patient) The nearest relative but only if he or she has made the MHT application.

Party status offers certain entitlements, most obviously the right to see any submitted reports (subject to Rule 14[2]; see the following discussion).

Notification of the proceedings to others, including “victims” Rule 33 outlines who is entitled to receive notification of the MHT proceedings, including (1) the patient’s nearest relative (unless the patient with capacity requests otherwise), and (2) “any other person who, in the opinion of the Tribunal, should have an opportunity of being heard.” This latter category could clearly include victims of offenses committed by the patient. In any event, certain “victims” have certain entitlements in respect of a forthcoming MHT hearing. Full details appear in the, Practice Guidance on Procedures Concerning Handling Representations from Victims in the First-Tier Tribunal (Mental Health).10 In summary, victims of offenders who have committed specified sexual or violent offenses have the right (1)  to be informed if the patient is to be discharged, (2) to be informed about any conditions attached to that discharge that relate to contact with them or their families, and (3) to make representations about the conditions to which the patient should be subject if conditionally discharged or discharged onto a community treatment order. These rights have been in force since July 1, 2005, in respect of restricted patients, the arrangements being applied mainly by the probation service and the mental health unit of the ministry of justice. Beginning on November 3, 2008, these rights were extended to unrestricted patients, resulting in new duties being placed on hospital managers, responsible clinicians, approved mental health professionals, and national health service (NHS) bodies responsible for NHS patients in independent hospitals.

Information and reports Rule 32 lists various obligations (including time limits) of the responsible authority and the secretary of state to supply information and documents; the nature of those obligations depends on the status of the patient. Failure to comply with the obligations can result in the issuing of a noncompliance direction (akin to a court order) from the MHT administrative center in Leicester.

Rules and procedure  543

Rule 32 also refers to the PD concerning the statements and reports to be delivered to the MHT (see Rules and Procedure section above) and sets out the time frame for compliance. As  far as clinicians, nurses, and care coordinators are concerned, the PD specifies what must be included within their reports. The clinical report must be countersigned  by the responsible clinician if not the author. In  response  to the frequent lack of timeliness in the delivery of statements and reports to the MHT, a new  procedure was introduced in 2015 by the deputy president of tribunals to encourage compliance with the time limits in Rule 32. The warning that persistent defaulters are likely to find themselves referred to the Upper Tribunal for the imposition of a financial penalty has secured far greater compliance. In recognition of the potential sensitivity of some of the information contained within reports, provision is made within the Rules for the MHT to direct that certain information not be disclosed to a party (most obviously, the patient). The test in Rule 14(2) that the report author must satisfy is a demanding one. The MHT must be satisfied that (1) ­disclosure is likely to cause the party or some other person serious harm, and that (2) with regard to the interests of justice, it is proportionate to give a nondisclosure direction.11 The MHT may direct that disclosure of the document be granted to the patient’s representative, provided it is satisfied that disclosure to the representative would be in the interests of the party and the representative would not be likely to disclose it either directly or indirectly to any other person without the consent of the MHT. So a solicitor representative would receive the nondisclosed document but would be under a strict obligation not to share it with the client unless given permission to do so by the MHT.

Representatives Rule 11 acknowledges that a party may appoint a representative (whether a legal representative or not) to provide ­representation in the hearing. In practice the patient is usually represented by a specialist Law Society accredited mental health solicitor and with the benefit of non means tested public funding, with no other parties being represented other than in high-profile restricted patient cases (in which case it is probable that both the responsible authority and the secretary of state will be legally represented). If the patient has not appointed a representative, the MHT may appoint a legal representative for the patient if (1) the patient has stated they do not wish to conduct their own case or that they wish to be represented, or (2) the patient lacks capacity to appoint a representative, but the MHT believes it to be in the patient’s best interests for the patient to be represented.

Medical examination Rule 34 establishes the circumstances in which the MHT medical member must, so far as is practicable, examine the

patient before the MHT hearing in order to form an opinion of the patient’s mental condition. Rule 34 states that “Prehearing examinations” of this type occur: ●●

●●

●●

When the MHT is considering the case of a Section 2 patient unless the MHT is satisfied that the patient does not want an examination When the patient or his or her representative requests such an examination take place When the MHT directs it to occur.

In practice the MHT medical member should visit the patient a few days before the hearing and report back to the other two members of the MHT panel shortly before the hearing starts. To ensure compliance with various court rulings on this practice that have been delivered since the Human Rights Act 1998,12 a summary of what the medical member has reported should be given at the commencement of the hearing.

Listing of hearings Section 2 cases must be heard by the MHT within 7 days after the date on which the MHT received the application.13 Recalled conditional discharge patients must have their cases referred to the MHT by the secretary of state and must be heard within 5–8 weeks after the date on which the MHT received the reference.14 For all other cases coming before the MHT there is no prescribed time limit for the MHT hearing. That said, because of the courts’ recognition of the requirement in Article 5(4) ECHR that reviews of detentions should be decided “speedily,” considerable effort is now made by the tribunal service to list unrestricted cases (other than Section 2) within 8 weeks and restricted cases within 16 weeks.15 Three working days’ notice must be given of Section 2 hearings, and 21 days’ notice of other hearings unless parties consent to a shorter notice period or “in urgent or exceptional circumstances” (Rule 37(4)).

Public or private hearing? All hearings must be held in private unless the MHT considers that it is in the interests of justice for the hearing to be held in public (Rule 38). The Upper Tribunal grappled with this rule in the case of AH v. West London MHT and SSJ,16 and concluded that the relevant questions in deciding whether a public hearing should be permitted are the following: ●●

●●

Is it consistent with the subjective and informed wishes of the applicant (assuming he is competent to make an informed choice)? Will it have an adverse effect on his mental health in the short or long term, taking into account the views of those treating him and any other expert views?

544  Mental health tribunals

●●

●●

Are there any other special factors for or against a ­public hearing? Can practical arrangements be made for an open hearing without a disproportionate burden on the authority?

Under Rule 38 the MHT may give a direction excluding the following from any hearing or part of it: ●●

●●

●●

●●

Any person whose conduct the MHT considers disrupting or likely to disrupt the hearing Any person whose presence the MHT considers likely to prevent another person from giving evidence or making submissions freely Any person the MHT considers should be excluded in order to give effect to a non disclosure direction under Rule 14(2) (withholding information likely to cause harm) Any person whose attendance would defeat the purpose of the hearing

Hearing procedure The procedure to be adopted at each MHT hearing is a matter for the individual MHT panel, which must keep the provisions of Rule 2 in mind. Practice regarding who “goes first” in respect to giving evidence (the patient or the responsible authority?) varies across the country. The panel must ensure that all p ­ arties have the opportunity to pre­ sent their evidence and ask questions of others’ evidence. The  MHT panel itself, in an inquisitorial role, will fully participate by asking questions of all. If a party fails to attend a hearing, the MHT may proceed with the hearing if it is satisfied that (Rule 39): ●●

●●

The party has been notified of the hearing or that reasonable steps have been taken to notify the party of the hearing and It is in the interests of justice to proceed with the hearing.

Where the missing party is the patient, the MHT may proceed where satisfied that: ●●

●●

The Rule 34 requirements in relation to the pre-hearing medical examination have been satisfied and The patient has decided not to attend the hearing or is unable to attend the hearing for reasons of ill health.

Generally in order to make a decision which disposes of the proceedings the MHT must hold a hearing (Rule 35). Where the case is that of a CTO patient aged over 18 years, whose case is referred to the MHT, the MHT can dispose of the case without a formal hearing taking place. The circumstances in which a so called “paper hearing” can occur are set out in Rule 35(3): ●●

Where the patient’s representative has stated in writing that the patient does not wish to be represented at the MHT hearing or to attend;

●●

Where the patient has stated in writing that he or she does not wish to attend or be represented at the MHT hearing and the MHT is satisfied that the patient has the capacity to make that decision.

Withdrawals A patient or the nearest relative (when he or she is the applicant) may apply to the MHT, either in writing or orally at the hearing, to withdraw the MHT application (Rule 17). The MHT must consent to the withdrawal request for it to be effective. In deciding whether to agree, the MHT will make up its own mind, should refuse consent if in doubt and should question who made the withdrawal request and why, following the approach set out in AMA v Greater Manchester West Mental Health NHS Foundation Trust.17 After a MHT application has been successfully withdrawn, an application for the case to be reinstated can be made within 28 days. Withdrawal is a useful option for the patient because it preserves his or her right to apply again during that period of detention. No application can be made to withdraw a mandatory (as opposed to a discretionary) reference to the MHT.

Adjournments The MHT has the power to adjourn a case at any time (Rule 5(3)(h)). In reaching a decision whether to adjourn, the MHT must have Rule 2 (“the overriding objective”) firmly in mind. The MHT must balance the need to avoid delay against the requirement to act justly and fairly. When adjourning a case, the MHT will invariably issue “directions” (for example, in respect of updated reports and witness attendance at the adjourned hearing) to seek  to ensure that the hearing can proceed on its next scheduled date. Such directions are similar to court orders and should be complied with, although it is possible to apply for any direction to be amended, suspended, or set aside. The MHT has the power to summons witnesses to attend a hearing as a witness, to answer questions or to produce documents (Rule 16).

Decisions Where a decision falls to be decided by the MHT panel, the MHT makes that decision unanimously or by ­majority. Subject to Rule 14(2) (the nondisclosure provisions), Rule 41 ensures that the MHT must provide the following to each party as soon as reasonably practicable (within 7 days—or, in the case of Section 2 patients, within 3 working days) after making a decision that finally disposes of all issues in the case (except a reviewed or appealed decision): ●● ●●

A decision notice stating the MHT decision Written reasons for the decision

Criteria, discretion, duties and powers  545

●●

Notification of any right of appeal against the decision and the time within which, and the manner in which, the right of appeal may be exercised

Over the years there have been many successful challenges to MHRT, and now MHT, decisions on the grounds of inadequacy of the reasons for the tribunal’s decision. Tribunal panels need to ensure that their reasons (1) set out their reasons with reference to the relevant detention criteria, (2) identify areas of dispute over law and evidence and explain how the MHT resolved such disputes, (3) give clear unambiguous reasons for the decision reached, (4) explain the facts that the MHT found as a result of the evidence and the conclusions reached by the MHT on those facts.18 They must also ensure that any orders they make are within their powers. In practice, in most instances the parties are told of the decision, if not the full reasons, immediately after the hearing. When a violent reaction is anticipated, the MHT will limit communication of the decision to written notification only.

Appeals, reviews, and “re-sectioning” Prior to the creation of the First-tier and Upper Tribunal structure, the primary means of challenging MHRT decisions was by seeking judicial review within the High Court. Part 5 of the Rules outlines a variety of newly devised means for challenging MHT decisions, which are cheaper and speedier than the previous High Court judicial review route. The position is complex, and clearly legal advice should be sought by both patients and professionals if dissatisfied with a MHT decision. In summary: ●●

●●

●●

●●

●●

Rule 44 enables the MHT to correct clerical or accidental errors in a decision Rule 45 empowers the MHT to set aside a decision following a procedural irregularity coming to light and in the interests of justice. Rules 46–49 detail the process for seeking permission to appeal to the Upper Tribunal and set out the basis upon which the MHT might review the decision (in practice, by one of the salaried judges) where satisfied of an error of law. If the MHT refuses permission to appeal to the Upper Tribunal then the applicant can renew the request for permission to appeal by petitioning the Upper Tribunal itself. Section 9(2)(a) TCEA gives the MHT the power to review a decision of its own initiative.

Assuming the case proceeds to the Upper Tribunal as an appeal against the MHT decision, the parties to the appeal will be the patient, the nearest relative (if the original applicant), the responsible authority, and (in the case of restricted patients) the secretary of state. In practice, when the patient is the appellant, the responsible authority and the secretary of state often do not participate in the appeal hearing. Judicial review proceedings are still a possibility,

with the Upper Tribunal empowered to conduct and rule on such proceedings. If there is cogent evidence that danger and risk are likely to result from an MHT decision to discharge a section, thus enabling the patient to leave the hospital, the MHT (in the form of a salaried judge) may be persuaded to suspend the effect of the discharge decision pending the determination of any application for leave to appeal against, and any appeal or review of, that decision (Rule 5(3)(l)). It is now well established that a “re-sectioning” of the patient following an MHT decision to discharge the section is unlawful, except in certain circumstances. The appropriate way to challenge an MHT decision with which there is disagreement is the same as for challenging any court decision, namely, by seeking to successfully appeal the decision. The circumstances in which “re-sectioning” might be considered lawful were addressed in 2003 by the House of Lords in the case of R v. East London and the City Mental Health NHS Trust and another ex parte Von Brandenburg.19 In this case the former senior Law Lord, Lord Bingham, referring to the approved social worker (ASW) whose role is now carried out by the approved mental health professional, stated that: [A]n ASW may not lawfully apply for the admission of a patient whose discharge has been ordered by the decision of a mental health review tribunal of which the ASW is aware unless the ASW has formed the reasonable and bona fide opinion that he has information not known to the tribunal which puts a significantly different complexion on the case as compared with that which was before the tribunal. He continued, “It is impossible and undesirable to attempt to describe in advance the information which might justify such an opinion,” but he did give three hypothetical examples: ●●

●●

●●

That the patient had on an earlier date attempted to kill himself, and the approved mental health professional concludes that this fact would have significantly affected the MHT’s risk assessment Clear evidence that the patient has no intention of complying with medication despite giving an assurance at the hearing that he would be compliant That the patient’s mental condition has significantly deteriorated.

CRITERIA, DISCRETION, DUTIES AND POWERS Criteria, discretion and duties When considering an application or reference, the MHT must apply the criteria in Part V MHA 1983.20 The criteria vary depending on the section applicable to the individual patient whose case is under consideration.

546  Mental health tribunals

Thus, when considering the case of an unrestricted patient such as the patient subject to Section 3 or Section 37, the MHT has a discretion to discharge the section (which is rarely exercised) and must discharge it if not satisfied in regard to any of the following criteria: ●●

●●

●●

That the patient is then suffering from mental disorder or from mental disorder of a nature or degree which makes it appropriate for him or her to be liable to be detained in a hospital for medical treatment. That it is necessary for the health or safety of the patient or for the protection of other persons that the patient should receive such treatment. That appropriate medical treatment is available for the patient

In the case of a Section 3 patient, the MHT must also discharge the section (when the case has come before the tribunal as a consequence of an application by the nearest relative whose direction for discharge of the section has been barred by the responsible clinician) if not satisfied that the patient, if released, would be likely to act in a manner dangerous to self or other persons. In the case of a restricted patient subject to Section 37/41, the MHT has no discretionary power to discharge. The MHT must discharge a Section 37/41 restricted patient conditionally if it is not satisfied that the criteria above are made out. Such a patient will only be granted an absolute discharge if, in addition to not being satisfied as to one or more of the aforementioned criteria, the MHT is also satisfied that it is not appropriate for the patient to remain liable to be recalled to the hospital for further treatment. These criteria are also relevant when the MHT considers the case of a transferred prisoner subject to Sections 47/49 and 48/49 or a patient subject to Section 45A (a hospital and limitation direction) (considered further later in this chapter). The criteria to be applied when considering the cases of patients subject to Section 2, to guardianship, or to a CTO are similarly outlined in Part V MHA 1983. STATUTORY TERMS

Over the years the courts, and now the Upper Tribunal, have grappled with the meaning of expressions and phrases in the criteria, such as mental disorder,21 nature or degree,22 in a hospital,23 medical treatment,24 and appropriate medical treatment is available.25 As far as discharge is concerned: ●●

●●

In the case of unrestricted patients, it means discharge from being liable to be detained (rather than discharge from hospital) or from being subject to guardianship or a CTO. In the case of restricted patients, the term has been the subject of much judicial consideration in recent years. This issue in particular can arise with restricted patients in the context of conditions that may be associated with their conditional discharge. The Court of Appeal has recently

confirmed that the MHT has no power “to impose conditions on a conditional discharge that extend to the imposition of an objective deprivation of liberty”.26 BURDEN AND STANDARD OF PROOF

It is not the patient’s responsibility to prove that he or she should not be liable to be detained or subject to compulsion in the community. In the case of R (on the application of AN) v. MHRT and Interested parties,27 the Court of Appeal concluded that all the criteria outlined earlier are susceptible to proof on the balance of probabilities and that the burden of satisfying the MHT that the grounds for the patient’s continued detention are made out, rests on the detaining authority.

Powers The full extent of MHT powers varies depending on the section that the patient is subject to.28 In respect of unrestricted patients, the options are the following: ●● ●● ●●

No discharge Immediate discharge Discharge on a specified date and time in the future

There is no power to impose conditions on any discharge. In a case where the MHT does not discharge the patient, there is a power to recommend the following: ●●

●●

Leave or transfer to another hospital or into guardianship with a view to facilitating discharge on a future date In the case of Section 3 and Section 37 patients, that the responsible clinician consider whether to make a CTO

The MHT has the power to reconsider the patient’s case further if any such recommendation is not acted upon. As far as guardianship patients and CTO patients are concerned, the options are solely the following: ●● ●●

No discharge Discharge

There is no power to vary the terms of the guardianship or the conditions of a CTO. In the case of Section 37/41 patients, the options are the following: ●● ●● ●● ●●

No discharge Absolute discharge Conditional discharge Deferred conditional discharge

A deferred conditional discharge is a provisional MHT decision. Its aim is to give those responsible the opportunity to put in place the arrangements as required in order that the patient can meet the conditions specified by the MHT.

References 547

The MHT has no power to direct the necessary arrangements are made, such as specific aftercare or the allocation of a supervising clinician. Ever since the case of R (on the application of IH) v. Secretary of State for the Home Department (1) Secretary of State for Health (2),29 after a period fixed by the MHT, the case will come back before the MHT and the decision will be reviewed with all options being available to the MHT. There is no power to delay the discharge of a Section 37/41 patient to a fixed time and date. There is no legislative provision for formal recommendations in respect of leave or transfer to another hospital. In the case of patients subject to restriction directions (i.e., transferred prisoners under Section 47 or 48, subject under Section 49) or limitation directions (i.e., under Section 45A), the powers are very limited. They have been drafted in recognition of the fact that prior to the ­authority to detain the patient in the hospital, there was an authority to detain in prison. The prison detention ­authority is in effect in abeyance during the hospital admission. The MHT approaches such cases initially as if the patient were subject to the provisions of Section 37/41. If it is satisfied that the criteria for an absolute or a conditional discharge are met, the MHT is then guided by the provisions of Section 74 MHA 1983. In regard to Section 48 patients (i.e., most commonly, patients transferred while awaiting trial): ●●

●●

If the absolute discharge criteria have been met, the secretary of state must direct a return to prison If the conditional discharge criteria have been met, the secretary of state must direct a return to prison, unless the MHT has recommended that the patient remain in the hospital. Such a recommendation would be made if the MHT feared relapse on return to prison

Conditionally discharged patients may secure an absolute discharge or a variation in conditions from the MHT.

CONCLUSION In recent years there has been a move towards streamlining MHT procedures such as the introduction of paper hearings and proposals in relation to panel composition for reasons aimed at cost effectiveness, accessibility and fairness. The courts and, latterly the Upper Tribunal have played a significant role in seeking to ensure that the patient subject to liability to detention in hospital or compulsion in the community, receives a fair hearing. Measures have been introduced to ensure that relevant Rules and Practice Directions are properly respected and observed. However, along with this commendable trend is the fact that the MHT powers remain limited. It has no power to direct that a patient subject to Section 3 or Section 37 move out of the hospital and into the community on a CTO; it has no power to vary the terms of a CTO; it has no power to direct the provision of aftercare services; and it has no power to direct (or even formally recommend) the transfer of a restricted patient to conditions of lesser security and in relation to these areas at least, the Mental Health Act 2007 could be seen as a missed opportunity.30

REFERENCES

In regard to Section 47 patients (i.e., patients transferred after conviction) and Section 45A patients: ●●

●●

If the absolute discharge criteria have been met, the MHT can then go on to direct such a discharge provided the secretary of state serves notice of his or her agreement within the following 90 days. In the absence of such notice, the hospital must return the patient back to prison at the end of the 90-day period. The secretary of state is most likely to agree if the patient is nearing his earliest date of release from the prison sentence that was imposed. If the conditional discharge criteria have been met, the MHT can go on to direct a conditional discharge if the secretary of state serves notice of his or her agreement within the following 90 days. In the absence of such a notice, the hospital must transfer the patient back to prison (at the expiration of the 90 days), unless the MHT has recommended that if the patient’s conditional discharge is not approved by the secretary of state, the patient should remain in the hospital.







1. (1982) 4 E.H.R.R. 188. 2. Section 35 MHA 1983. 3. Section 36 MHA 1983. 4. Section 38 MHA 1983. 5. Wales has retained a separate MHRT. See Section 65 and Schedule 2 of the MHA 1983. The Wales MHRT operates under the Mental Health Review Tribunal for Wales Rules 2008. Like its counterpart in England, appeals lie to the Upper Tribunal. For reasons of space, this chapter focuses on England, although much of its contents have relevance for the Wales MHRT. 6. Published for the Department of Health by The Stationery Office and lasted updated in 2015. 7. Derived from Part V MHA 1983. 8. Ministry of Justice “Transforming our Justice System: Summary of Reforms and Consultation” Cmnd 9321, 2016. 9. [2002] 2 AC 357. 10. https://www.judiciary.gov.uk/publications/­proceduresconcerning-handling-representations-from-victims/. Also see the Department of Health/Ministry of Justice publication, “Guidance on the Extension of Victims’ Rights under the Domestic Violence, Crime and Victims Act 2004” (October 2008). 11. In the cases of Dorset Healthcare NHS Foundation Trust v. MH [2009] UKUT 4 (AAC) and RM v. St. Andrew’s Healthcare [2010], UKUT 119 (AAC), the Upper Tribunal gave careful consideration to this Rule.

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12. For example, R (on the application of S) v. MHRT and Department of Health (Interested party) [2002] EWHC Admin 2522 and R (on the application of H) v. Ashworth Hospital Authority and others [2002], EWCA Civ 923. 13. Rule 37(1). 14. Rule 37(2). 15. https://www.gov.uk/mental-health-tribunal/ after-you-send-your-appeal. 16. [2010] UKUT 264 (AAC). 17. [2015] UKUT 36 (AAC). 18. Judge Knowles in HK v Llanarth Court Hospital [2014] UKUT 410 (AAC). 19. [2003] UKHL 58. 20. Specifically sections 72, 73, and 74 MHA 1983. 21. DL-H v. Devon P’ship NHS Trust v. Sos for Justice [2010], UKUT 102 (AAC). 22. R v. MHRT for the South Thames Region ex. p. Smith (1999), 47 B.M.L.R. 104.

23. R (on the application of DR) v. Mersey Care NHS Trust [2002], EWHC 1810 (Admin); R (on the application of CS) v. MHRT [2004], EWHC 2958 (Admin); SL v Ludlow Street Healthcare [2015], UKUT 398 (ACC). 24. B v. Croydon Health Authority (1995), W.L.R. 294; Section 145(4) MHA. 25. MD v. Nottinghamshire Health Care NHS Trust [2010], UKUT 59 (AAC); DL-H v. Devon P’ship NHS Trust v. Sos for Justice [2010], UKUT 102 (AAC); H-L v Partnerships in Care & SSJ [2013], UKUT 500 (AAC); WH v Llanarth Court Hospital [2015], UKUT 695 (AAC). 26. Secretary of State for Justice v MM; Welsh Ministers v PJ [2017] EWCA Civ 194 [18]. 27. [2005] EWCA Civ 1605. 28. Sections 72–75 MHA 1983. 29. [2003] UKHL 59. 30. Many thanks to John Horne, former Northumbria University Teaching Fellow for his input into the drafting of this Chapter.

82 Care Quality Commission ROBERT BROWN Introduction 549 Mental Health Act functions of the commission 549 Consent to treatment under the Mental Health Act 1983 550 Section 57 550 Section 58 550

Section 58A 550 Section 62 551 Section 63 551 Part 4A: Treatment of community patients not recalled to the hospital 551 References 552

INTRODUCTION

used to be Mental Health Act Commissioners but are now called Mental Health Act Reviewers, and they can do the following:

The Care Quality Commission (CQC) is responsible for monitoring the use of the Mental Health Act in England. It replaced the Mental Health Act Commission in 2009. In Wales the relevant body is the Health Inspectorate for Wales. The CQC also replaced the Commission for Healthcare Audit and Inspection and the Commission for Social Care Inspection. This chapter focuses on its functions under the Mental Health Act. This includes the appointment of second opinion appointed doctors (SOADs) and others to provide certificates for treatment under Sections 57, 58, and 58A and for patients subject to community treatment orders (CTOs). The chapter ­t herefore includes an outline of the consent to treatment provisions found in the act.

MENTAL HEALTH ACT FUNCTIONS OF THE COMMISSION Section 120 of the Mental Health Act 1983 requires the regulatory authority (the CQC) to keep under review and, when appropriate, to investigate the exercise of the power and the discharge of the duties conferred or imposed by the act related to the detention of patients or their reception into guardianship, or to relevant patients. In effect this covers patients liable to be detained under the act (including patients on Section 17 leave as well as those who are currently detained in the hospital), patients subject to CTOs, and patients subject to guardianship. The CQC is required to authorize people to visit and interview such patients in private. In England these people

(a) visit and interview in private any patient in a hospital or regulated establishment, (b) if the authorised person is a registered medical practitioner or approved clinician, examine the patient in private there, and (c) require the production of and inspect any records relating to the detention or treatment of any person who is or has been detained under this Act or who is or has been a community patient or a patient subject to guardianship. The CQC’s aim is to visit, at least once every 18 months, all psychiatric wards in England where patients are detained. Reviewers meet with detained patients to discuss their experiences and concerns, to ensure that they understand their rights, and to check that staff are using the act correctly. Reviewers now concentrate on particular areas so that they get to know ­hospitals in more depth. Many of the visits are unannounced. Section 120C gave new powers to the CQC to require the provision of records and documents by service providers to the commission. This can include such matters as the number of deaths or serious incidents; use of particular powers under the act; and statistical data on ethnicity, gender, and so on. The CQC also has powers to make decisions over the withholding of correspondence from certain patients. The CQC’s annual reports draw on the findings of the reviewers and SOADs. The first of these was published in October 2010.1

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The CQC employs its own staff (as well as appointing reviewers and SOADs), and it also has a service user reference panel consisting of 20 people who are, or have been, detained patients. The annual report contains comments and observations from members of the panel. The CQC appoints SOADs who have a key role in the operation of the consent to treatment provisions of Part IV of the act, which is considered in the sections that follow.

CONSENT TO TREATMENT UNDER THE MENTAL HEALTH ACT 1983 Section 145 provides the following definition of medical treatment: [N]ursing, psychological intervention and specialist mental health habilitation, rehabilitation and care…the purpose of which is to alleviate, or prevent a worsening of, the disorder or one or more of its symptoms or manifestations. Parts IV and IVA of the act then clarify the circumstances in which treatment for mental disorder may be given without the consent of a patient subject to compulsion. On the one hand these rules allow for compulsory treatment. On the other hand they provide certain safeguards involving a second medical opinion from outside the hospital for more serious forms of treatment in those cases where valid ­consent cannot be obtained from the patient. Absence of consent could be the result of either the patient’s objecting to the treatment or the patient’s being unable to give valid consent, perhaps because of mental incapacity. In the case of the most serious treatments such as psychosurgery, a second opinion and the consent of the patient are required. Because of the invasive nature of these treatments, the safeguards are also extended to informal patients. Detained patients who are not covered by Part IV of the act are in the same position as any other patients in a general hospital and cannot be treated without their consent except where the Mental Capacity Act applies or where common law would allow it, such as in an emergency. Generally, those patients liable to detention for periods of more than 72 hours are covered by Part IV, with the exception of people remanded for reports by the courts under Section 35. Sections 57, 58, and 58A outline which types of medical treatment attract specific rules. Some treatments require the approval of an SOAD who has been appointed by the secretary of state or the Welsh Ministers for this purpose. The categories of treatment specified in the act are discussed in the following sections.

Section 57 This section deals with any surgical operation for destroying brain tissue or for destroying the functioning of brain tissue (neurosurgery), and the surgical implantation of hormones to reduce male sex drive. This section covers informal as well

as detained patients. An SOAD and two other people who are appointed by the CQC need to certify in writing that the patient is capable of understanding the nature, purpose, and likely effects of the treatment in question and has consented to it. The SOAD then has to certify in writing that it is appropriate for the treatment to be given, having consulted two other persons who have been professionally concerned with the patient’s medical treatment. One of these consultees must be a nurse, and the other should be someone other than a nurse or a doctor. Neurosurgery under Section 57 is very rare; typically, there are only three or four cases per year in all of England and Wales. No referral concerning the surgical implantation of hormones to reduce male sex drive has been requested for the past 20 years.

Section 58 Section 58 covers medication for mental disorder after 3 months of treatment under detention. It does not cover medication if this is administered as part of electroconvulsive therapy (ECT) treatment because this is covered by Section 58A. The safeguards provided by Section 58 are that medication cannot be given unless the following occurs: ●●

●●

The patient has consented to the treatment and either the approved clinician in charge of it or a SOAD has certified in writing that the patient is capable of understanding its nature, purpose, and likely effects and has consented to it. An SOAD has certified in writing that the patient is not capable of understanding the nature, purpose, and likely effects of that treatment or is capable but has not consented to it, and that it is appropriate for the treatment to be given. The SOAD must have consulted two other persons who have been professionally concerned with the patient’s medical treatment. One of these must be a nurse and the other neither a nurse nor a registered medical practitioner; and neither can be the responsible clinician or the person in charge of the treatment in question.

Section 58A This section covers ECT and any medication administered as part of the ECT process. The rules apply to adult detained patients and to all patients under the age of 18, whether they are detained or not. No patient under 18 may be given ECT without the approval of an SOAD. This is the first occasion in which the Mental Health Act does not automatically take preference over the Mental Capacity Act. A competent refusal or a valid and applicable advance decision will prevent treatment from being given under Section 58A. ECT may not be given to an adult unless the following occurs: ●●

The patient has consented to that treatment and either the approved clinician in charge of it or an SOAD has certified in writing that the patient is capable of

Part 4A: Treatment of community patients not recalled to the hospital  551

●●

understanding its nature, purpose, and likely effects and has consented to it. An SOAD has certified in writing that the patient is not capable of understanding the nature, purpose, and likely effects of the treatment; that it is appropriate for the treatment to be given; and that this will not conflict with a valid and applicable advance decision or a decision made by a donee or a deputy or the Court of Protection. The SOAD must have consulted two other persons who have been professionally concerned with the patient’s medical treatment. One of these must be a nurse and the other neither a nurse nor a registered medical practitioner; and neither can be the responsible clinician or the person in charge of the treatment in question.

If the patient is under 18, a certificate from an SOAD is needed whether the patient has capacity or not. However, the certificate by itself is not sufficient authority to treat. The relevant clinician must also have the patient’s own valid consent or some other legal authority at the time of giving the treatment.

The act’s Code of Practice2 contains a number of pointers on treatment, encouraging staff to seek the patient’s consent whenever practicable and to record this, or the refusal as the case may be, in the notes. Paragraph 24.43 states the following: ●●

●●

Section 62 Section 62 covers urgent treatment. It provides for emergency situations (e.g., when a patient withdraws consent during a course of treatment), but it only allows treatment: (a) which is immediately necessary to save the patient’s life; (b) which (not being irreversible) is immediately necessary to prevent a serious deterioration of his condition; (c) which (not being irreversible or hazardous) is immediately necessary to alleviate serious suffering by the patient; or (d) which (not being irreversible or hazardous) is immediately necessary and represents the minimum interference necessary to prevent the patient from behaving violently or being a danger to himself or to others. In the case of ECT only (a) and (b) apply, so the risk level needs to be very high before the normal requirements can be dispensed with. The grounds outlined in (c) and (d) are no longer applicable for ECT. The definition of irreversible condition is one that has “unfavourable irreversible physical or psychological consequences,” and hazardous means “presenting a significant physical hazard.”

Section 63 This section covers treatment that does not require the ­consent of the patient. The implications are that apart from ECT and the Section 57 treatments, any treatment can be given in the first 3 months of a patient’s detention without his or her valid consent. After 3 months the safeguard of the SOAD’s involvement applies but only in relation to medication. Many other treatments can continue to be given without the SOAD safeguard.

Compulsory administration of treatment which would otherwise require consent is invariably an infringement of Article 8 of the Convention (respect for family and private life). However, it may be justified where it is in accordance with law (in this case the procedures in the Mental Health Act) and where it is proportionate to a legitimate aim (in this case, the reduction of the risk posed by a person’s mental disorder and the improvement of their health). Compulsory treatment is capable of being inhuman treatment (or in extreme cases even torture) contrary to Article 3 of the Convention, if its effect on the person concerned reaches a sufficient level of severity. But the European Court of Human Rights has said that a measure which is convincingly shown to be of therapeutic necessity from the point of view of established principles of medicine cannot in principle be regarded as inhuman and degrading. Paragraph 24.44 continues: Scrupulous adherence to the requirements of the legislation and good clinical practice should ensure that there is no such incompatibility. But if clinicians have concerns about a potential breach of a person’s human rights they should seek senior clinical and, if necessary, legal advice.

PART 4A: TREATMENT OF COMMUNITY PATIENTS NOT RECALLED TO THE HOSPITAL A patient on Section 17 leave in the community is covered by Part IV of the act, but a community patient (one subject to a CTO) is covered by the rules in Part 4A. To be made subject to Part 4, a community patient needs to be recalled to the hospital. Recalls may therefore occur to make it easier to give compulsory treatment to a mentally capable refusing patient. If a patient is subject to a CTO (and has not been recalled), he or she cannot be given treatment for mental disorder unless the requirements of Part 4A are met. These include the following: ●●

●●

The person giving the treatment must have the authority to do so. There must be a certificate (in most cases).

A form is needed for treatments that would require a certificate under Section 58 or 58A if the patient were detained. This includes medication after the initial 3-month period of detention, and ECT and any related medication. However,

552  Care Quality Commission

a certificate is not required for medication during the first month following a patient’s discharge from detention on to a CTO. This is the case even if the 3-month period for Section 58 has already expired or expires during this first month. The SOAD function when completing Part 4A certificates is to see whether the treatment is appropriate, not to certify whether a patient has capacity to consent to the treatment in question. This is an issue for the person who intends to administer the treatment. SOADs may make it a condition of their approval that particular treatments are given only in certain circumstances. They could specify that a certain treatment is to be given only if the patient consents. SOADs can also decide which treatments to approve should the patient be recalled to the hospital and whether to impose any conditions on that approval. Unless it states otherwise, a certificate will authorize medication even if the patient has capacity to refuse it. The SOAD must consult two people who have been professionally concerned with the patient’s medical treatment. Only one of these may be a doctor, and neither can be the patient’s responsible clinician or the approved clinician in charge of any of the treatments that are to be specified on the certificate. Where a patient has capacity to consent to treatment, this then provides the authority to treat. In other cases there may be a donee of a lasting power of attorney, or  a deputy who has been appointed by the Court of Protection, who is able to consent on the patient’s behalf.

Emergency treatment may be given without a certificate if it falls into one of the categories in Section 64G(5): (a) It is immediately necessary to save the patient’s life; or (b) It is immediately necessary to prevent a serious deterioration of the patient’s condition and is not irreversible; or (c) It is immediately necessary to alleviate serious suffering by the patient and is not irreversible or hazardous; or (d) It is immediately necessary, represents the minimum interference necessary to prevent the patient from behaving violently or being a danger to himself or ­others, and is not irreversible or hazardous. If it is necessary to use force against the patient to give the treatment, it can only be to prevent harm to the patient. The use of such force must be proportionate to the likelihood of the patient’s suffering harm, and to the seriousness of that harm. When a CTO patient is recalled by the responsible clinician (RC), he or she is covered by Part IV and can be treated accordingly.

REFERENCES 1. Care Quality Commission (CQC). Monitoring the Use of the Mental Health Act in 2009/10. Newcastle: CQC, 2010. 2. Department of Health. Mental Health Act 1983, Code of Practice. London: The Stationery Office, 2015.

4

Part     Assessment in Forensic Psychiatry

83 Clinical assessment Ian H. Treasaden 84 Psychological testing Derek Perkins and Daz Bishopp 85 Malingering Hannah Crisford and Hayley Dare 86 Drug screening Basant K. Puri and Ian H. Treasaden 87 Electroencephalography John Lumsden 88 Neuroimaging Basant K. Puri 89 Risk assessment: An overview Ian H. Treasaden 90 Violence assessment over the short term Johann Brink, Christopher D. Webster, Tonia L. Nicholls, Sarah L. Desmarais, and Mary-Lou Martin 91 Sexual violence Derek Perkins and Anisah Ebrahimjee 92 Report writing for the criminal court John O’Grady 93 Practical aspects of psychiatric report writing for the criminal courts Ian H. Treasaden 94 Report writing for the First-tier Tribunal Joan Rutherford 95 Report writing for the coroner’s court Lorna M. Tagliavini

555 559 567 573 577 583 587 597 603 613 619 627 635

83 Clinical assessment IAN H. TREASADEN Clinical or practical risk assessment Standardized structured risk assessment instruments

555 555

The principal work of forensic psychiatrists is the assessment of and preparation of psychiatric reports, including for the courts on mentally abnormal offenders and their treatment. In practice, however, nearly all general psychiatrists will have to undertake such work on either their own or new patients from time to time. In addition, forensic psychiatrists are also asked to provide advice on the management of aggressive and other severely behaviorally disturbed patients who may not have been formally charged with offenses or reached the court, for example, very aggressive inpatients in ordinary psychiatric hospitals. Forensic psychiatrists in the United Kingdom are  most often based in secure psychiatric hospitals, such as medium secure units or high secure (special) hospitals, e.g. Broadmoor Hospital in England, but frequently undertake work in prisons to provide reports for the courts on those on remand in prison awaiting trial and to advise the prison medical service on the psychiatric management of particular inmates. A forensic clinical assessment may be requested with a view to obtaining psychiatric expert opinion and advice and evidence on specific forensic psychiatric issues, such as those detailed in Table 83.1.

CLINICAL OR PRACTICAL RISK ASSESSMENT Clinical risk assessment requires information gathering, including by a full history from the subject, examination of past reports, records and/or statements (depositions) when available in Crown Court criminal cases, and from informants, including arresting police officers. Table  83.2 details the main elements of a forensic psychiatric clinical assessment. At a minimum, a clinical risk assessment and risk management plan should include: ●● ●●

Ask about history of violence. Request previous summaries, such as of in-patient care, and past psychiatric and probation reports.

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●●

●● ●●

Document the above and otherwise keep and use proper records. Make plans to manage the risk and document this. Inquire if and be particularly cautious in cases where treatment is refused, has been reduced, or being withheld.

To rely solely on an offender’s account may lead to an underestimate of the severity of the circumstances of an incident(s) or offense causing concern. For example, a paranoid psychotic patient may complain of being threatened and having to defend himself, when in fact the victim plausibly states that he was subject to an unprovoked assault. With incomplete information about previous convictions, a psychiatrist runs the risk of being discredited in court. One should always bear in mind that a clinical risk assessment is, however, unstructured, subject to subjective bias, sometimes based on the last case seen that went wrong, shows poor consistency, is difficult to quantify, and is inductive, that is, based on previous cases. A clinical assessment is more effective at eliciting evidence of mental illness and associated risk than personality disorder and its risks or the risk of sexual offending. There is no definite evidence that countertransference is predictive. Table 83.3 lists factors to be assessed and considered in a forensic psychiatric clinical assessment.

STANDARDIZED STRUCTURED RISK ASSESSMENT INSTRUMENTS Increasingly, clinical or practical risk assessment, involving consideration of the offender’s history, mental state, and environment, is being supplemented by standardized actuarial and/or dynamic risk assessment instruments, the instruments alone often being insufficient. Thus risk assessment = clinical assessment + standardized instrument assessment. Standardized risk assessment instruments are discussed in detail in Chapters 89 and 90. 555

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Table 83.1  Psychiatric expert evidence Fitness to plead Mental responsibility, e.g., not guilty by reason of insanity, diminished responsibility Mental disorder, e.g., mental illness, intellectual (learning) disability, personality disorder Is the client treatable? Have arrangements been made for such treatment, e.g., community rehabilitation (previously probation) order disorder with condition of out-patient psychiatric treatment, or in-patient treatment under Section 37 of the Mental Health Act 1983? Is the client dangerous? e.g., need for restrictions of Section 41 Mental Health Act 1983, placement in a high secure hospital or a medium secure unit Suggestions about non-psychiatric management, e.g., probation order, mental health care home or hostel

Table 83.2  Forensic psychiatric assessment 1. Full history and mental state examination of patient, including exploration of fantasies and impulses to offend 2. Objective account of offence, e.g., from arresting police officer or from statements (despositions) in Crown Court cases 3. Objective accounts of past offences, if any, e.g., obtain list of previous convictions 4. Additional information gathering, such as interviews with informants, e.g., relatives, reading a pre-sentence report from a probation officer, if prepared 5. Review of previous psychiatric records, e.g., to ascertain relationship of mental disorder to previous behaviour and response to psychiatric treatment and need for security

Table 83.3  Forensic clinical risk assessment The aim is to get an understanding of the risk from a detailed historical longitudinal overview, obtaining information not only from the patient, who may minimise his or her past history, but also from informants. Ideally, it should not be a one-off single interview assessment. 1. Reconstruct in detail what happened at the time of the offence or behaviour causing concern. Independent information from statements of victims or witnesses or police records should be obtained where available. Do not rely on what the offender tells you or the legal offence category, e.g., arson may be of a wastepaper bin in a busy ward or with an intent to kill. Possession of an offensive weapon may have been a prelude to a planned homicide. Offense = Offender × Victim × Circumstances/Environment (i) Offender: • alone or in group, e.g., gang (less inhibition in groups); • planned or impulsive (beware rationalisation of behaviour post-offence); • triggers, e.g., behavioural, emotional, physiological or situational; • provoked; • displaced aggression, e.g., mother kills baby to spite father; • recent discontinuation of medication; • disruption of therapeutic alliance, e.g., professional holidays; • during other criminal behaviour or deliberate self-harm. • Mental state at time of offence: link specific symptoms, e.g., delusions, or emotional state, e.g., overarousal, anxiety, fear, irritability, anger or suspiciousness, or disinhibition, to violence. • Degree and quality of violence: overall more violent, more risk. Bizarre violence seen in mental illness and severe psychopathic disorder. Is there satisfaction from inflicting pain? The more precarious the psychological defences, the more violence. More often not predictive of repetition, but reflects relationship with victim, e.g., resistance of victim to dying and arousal of offender. Paradoxically, less violence in general if victim fights back, except in rape and sexual assaults, where violence may increase. • Alcohol and/or drugs facilitating or precipitating aggression. • Use or possession of weapons, i.e. carrying means of destruction, e.g., knife, if loses temper, even if aim of carrying was only for self-protection. (ii) Victim: • Victim may be consciously or unconsciously provocative, e.g., if drunk, due to their own background, or if not aware of effect of own behaviour on offender. • Is violence against a particular named individual for specific reason e.g., relative, therapist, or against a particular type of victim, or against staff with whom in clinical contact or of an institution, or against the world in general? • Is victim merely an object of displaced aggression to others, e.g., from mother, society? • Is victim the real intended victim? If not, risk of repetition. (Continued)

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Table 83.3 (Continued)  Forensic clinical risk assessment (iii) Circumstances/environment: • Current stresses, particularly recent loss or threat of loss. • Circumstances, e.g., both offender and victim intoxicated in a public house. • Precipitating factors in social environment. Now removed? Can they be modified? • Culture: inhibiting or sensitising? Varies over time. (iv) Type of offense or behaviour: • Was offense or behaviour without warning or could it have been predicted? What caused it to cease? • Some behaviours are predictive of future dangerousness, including: • morbid jealousy; • sadistic murder; • sexual offender overwhelmed with aggression; • at least two offences of serious violence or sexual assault. 2. Behaviour after offence: • did the offender summon help for victim? • freezing; • regression: associated with future dangerousness; • manner of talking about the offence, e.g., dispassionate, guilt-free manner or capacity for sympathetic identification. Any ‘unfinished business’? • admission of guilt and transparency; • beware of protective psychological defence mechanisms, e.g., after homicide, leading to appearance of callous indifference. 3. Progress in custody and/or hospital: • capacity for self-control or explosiveness; • no relationships; • feelings of professionals, especially females, in cases of psychopaths and sex offenders; • reaction of other inmates/patients; • do his or her pets survive? 4. At interview (ideally, interview and mental state examination should take place on more than one occasion and should be repeated over time): • threats of violence (verbal anger alone is a poor predictor of violence); • expressed intent; • feeling of fear in interviewer; • impulsive: cannot delay gratification; • paucity of feeling for victim/indifference; • over- or undercontrolled; • depression; • morbid jealousy; • content of delusions, hallucinations etc., e.g., threat/control override, i.e. of paranoid or passivity content; • insight into mental disorder and offending: is violence regarded as unacceptable? • attempting to self-control? Help requested? 5. Assessment of personality traits: • informants and historical information important, especially when offender is also mentally ill; • impulsive, antisocial, lack of guilt, affectionless; • deceptive/lying (e.g., due to learned strategy to deal with overdominant or aggressive parents) compared with transparent; • inadequate personalities overall commit more serious offences than aggressive psychopaths; • jealous/paranoid: does he or she feel continually threatened? • poor self-image, low self-esteem; • over- or undercontrolled; (Continued)

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Table 83.3 (Continued)  Forensic clinical risk assessment • features of Brittain’s sadistic murderer syndrome (Work in positions of power over people and animals, e.g., a butcher, interests in Naziism, torture and weapons; collectors of and with room contents full of weapons, Nazi gear) ; • how does he or she handle stress, e.g., if by violence, is this egosyntonic or egodystonic? • formal psychometric testing of personality and intelligence may assist. 6. Life history: Age: younger more dangerous than older (dangerousness generally decreases with age, except for sadists and offences of retaliation against women). Sex: male more than female, except in psychiatric hospitals, where rates are similar. Family history: deprived, neglect, physical and/or sexual abuse by parents, alcoholic father, domineering mother, parental discord and violence. Been in care. Childhood: classic dangerous triad of enuresis, cruelty to animals and fire setting, although only cruelty to animals proven to be predictive of future violence. Conduct disorder. A bully or bullied. Employment: butchering, work in abattoir or for veterinary surgery, e.g., animals die in their care. Inability to sustain employment, e.g., due to problems of impulsivity or with authority or routine. Sexual history: if sexual offence and no previous relationships with women, sexual assaults will continue. Previous victimisation. Sadistic or violent sexual thoughts, fantasies, impulses or behaviour. Social restlessness: for example, frequent change of address or employment. Few relationships. Among groups where increased violence, e.g., homelessness. Previous medical history: head injury, brain damage (even minimal), temporal lobe epilepsy, extra Y chromosome. Abnormalities of electroencephalogram (EEG) or brain scans. Substance abuse history. Previous psychiatric history: diagnosis of psychopathy or dissocial or antisocial, or emotionally unstable - impulsive type personality disorder. Alcoholism or drug dependency. Low intelligence level. Dyslexia. Previous suicidal behaviour, especially if impulsive and/or violent and/or associated with risk to others. Relationship of offending to mental illness and its control by medication, etc. Compliance with treatment, especially medication. Attitudes to treatment. Previous forensic history: • violent/non-violent; • worse if early-onset, persistent and serious. Age first conviction. Number and type of convictions. Custodial and other types of sentences and response; • ask how close to violence he or she comes and his or her most violent act in the past; • when is violence most likely to happen? Learn from ‘near-misses’; • any evidence of escalation? Current support systems and protective factors.

CONCLUSION A clinical risk assessment should aim to identify the seriousness of the risk, that is, its nature and magnitude; and whether it is specific or general, conditional or unconditional, immediate, long term, or volatile. It should address whether the individual’s or situational risk factors have changed, and identify who might be at risk. From such a risk assessment, a risk management plan should be developed to modify the risk factors and specify response triggers. This should ideally be agreed upon with the individual. The plan should identify if there is a need for more frequent follow-up appointments, an urgent care program approach meeting or admission to hospital, detention under the Mental Health Act, physical security,

observation, and/or medication. If the optimum plan cannot be undertaken, reasons for this should be documented and a defendable backup plan specified. Risk assessments and risk management plans should be communicated to others on a “need to know” basis. On occasion, patient confidentiality will need to be breached if there is an immediate grave danger to others. Police can often do little unless there has been a specific threat to an  individual, whereupon they may warn or charge the subject. Very careful consideration needs to be given before informing potential victims to avoid their unnecessary anxiety. Their safety is often best ensured by management of those who present the risk. If a potential victim, however, needs to be urgently informed, the police prefer to do this themselves.

84 Psychological testing DEREK PERKINS AND DAZ BISHOPP Psychological assessment Case formulation Psychometric tests Test construction and validation Types of tests Projective tests Structured clinical judgments and risk assessment

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“I can measure the motion of bodies but I cannot measure human folly” Sir Isaac Newton

PSYCHOLOGICAL ASSESSMENT The main purposes of psychological assessments within forensic contexts include case formulation, risk assessment, treatment need assessment, potential treatability, and ­outcome evaluation. Assessments may also contribute to diagnosis—mental illness, personality disorder, or other mental health conditions—and may assist in decision making on such matters as community versus institutional disposal, and mental health versus criminal justice disposal. All these purposes are important and complementary elements in the treatment and management of forensic patients through different levels of security in the safest, most timely, and most cost-effective way. In conducting forensic psychological assessments, it is important to be as comprehensive and multimodal as possible. Comprehensive, in this context, means gathering information about all aspects of the offender/forensic patient (hereafter referred to as the patient): childhood attachments and experiences, educational and employment history, medical and psychiatric history, history of intimate relationships, parenting experiences, forensic history, and situations in which the patients might be at risk of further offending. Multimodal refers to the utilization of a range of data collection methods that have the potential to crossvalidate aspects of the assessment—for example, interview responses, collateral information from relevant others,

Self-report tests 563 Tests of cognitive functioning 563 Limitations of testing and issues for forensic practice 563 Summary and conclusions 564 References 564 Further reading 565

psychometric assessments, and psychophysiological tests— all of which would normally be conducted in the context of a thorough review of information already held on file.

CASE FORMULATION Recent literature1 has emphasized the importance of individual case formulation in driving both treatment planning and risk management by ensuring that any assessment procedures deployed are appropriate to the specific features and circumstances of the patients involved. This requires the assessor to pull together all aspects of the patient’s life (past, present, and projected future) to provide a reasoned account of the causes and maintenance of his or her offending. The approach emphasizes the importance of using a wide range (or battery) of assessments aimed at measuring underlying difficulties and strengths in the patient’s thinking, emotional responses, and behavioral repertoires that underpin risk to self and others, as well as considering the “protective” factors that may help prevent further offending. Individuals who are indeterminately detained in prison or in a psychiatric hospital will not generally be able to progress to lower levels of security or return to the community until a clear and robust formulation has been carried out. It is important that this formulation be understood and “owned” by both the patient and those responsible for his or her treatment and management. Having a clear formulation is an essential element in providing decision makers with assurances that all aspects of a patient’s history, current functioning, and future risk management are fully understood and integrated. It follows that where such a formulation has not been successfully completed, progress will be delayed. 559

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Another essential element in constructing a comprehensive risk assessment is to explore the reasons for a ­person’s offending behavior. One important way to do this is through a functional analysis of the offending behavior.2 Such approaches may be structured or unstructured and consider all aspects of the offenders’ functioning at the time of their offense. For example the offender’s attitudes (cognitive distortions), sexual interests, interpersonal relationships, and lifestyle may all operate as triggers to future offending. This type of analysis explores a set of “antecedents” for the offending behavior, for example, boredom, drinking alcohol, getting into arguments, having free time, and fantasizing about anticipated gratification from offending. The functional analysis also considers the “consequences” of offending that offenders have experienced in the past. For example, a violent offender may have experienced “positive reinforcement” (i.e., consequences that make the recurrence of the offending behavior more likely), for example, pleasure at controlling his environment, seeing fear on the face of the victim, or obtaining material rewards, as in the case of robbery or fraud. A sex offender’s behavior may have been reinforced by, for example, achieving temporarily relief from stresses in his life, a sense of power from controlling the victim, and sexual gratification though orgasm during the offense. There may also be adverse consequences for such offenders arising from their offending behavior, such as prosecution and imprisonment, loss of employment, and breakup of relationships, which may in turn serve to reduce the likelihood of the offending behavior. It is possible, of course, that such adverse consequences may become swept up into a cycle of negativity and hopelessness that feeds further offending. The importance of the functional analysis is that it contributes to the offense formulation and to an understanding of the offender’s specific risk factors, and it informs treatment targets. Any factor that is an antecedent to offending, such as social isolation or uncontrollable anger, can be translated into a treatment target. In carrying out an individualized case formulation, practitioners use a variety of evidence-based actuarial prediction tools, structured clinical assessments, and ­psychometric tests that will assist in the assessment of risk, need, and responsivity.3 All available information should be assembled into a formulation that can be discussed with the offender and other professionals working with him. It is the basis for understanding and summarizing his offending behavior and also enables future risks to be considered and remedial action taken (e.g., treatment programs or monitoring arrangements). The assessment of risk through specific tools for violent and sexual offending (see discussion that follows) is a developing process built on generations of research examining the efficacy of medicolegal judgments and identifying predictive correlates.4 Such methods have been developed in response to evidence that clinical judgment alone is relatively poor in assessing such issues

with forensic patients and that psychological tests, in the ­context of a thorough formulation, offer unique sources of information, without which assessors are likely to arrive at an incomplete understanding of patients’ risks and needs. 5 The use of structured and standardized assessment instruments is also helpful for conducting re-assessments as the same tools can be reliably applied over time by ­different practitioners in different situations. Patients will therefore often receive a tailored battery of psychological tests, which need to be considered alongside other information on their potential risks to self and/or others and strengths/protective factors, in assisting their progress through different levels of security. These tests are administered as part of the wider assessment process—collating background information, interviewing the patient and relevant others, and so forth—and may provide the basis for administering other specialized assessments, such as neuropsychological tests for patients with suspected brain disorders6 or psychophysiological tests such as the penile plethysmograph (PPG) for sex offenders.7

PSYCHOMETRIC TESTS The branch of psychology concerned with scientific measurement is psychometrics (from Greek, “measurement of the spirit or soul”). It was probably Francis Galton who made the first attempts to objectify intelligence and personality in terms of heritable traits that varied across the population and across species.8,9 This natural variability, in evolutionary terms, has enabled human attributes to be considered as measurable dimensions or continua. Psychometrics ­ developed from the pioneering work of Karl Pearson, Charles Spearman and Louis Thurstone, who offered a theoretical paradigm for psychological measurement and various methodological (e.g., the Thurstone Scale) and statistical procedures for uncovering latent traits (e.g., correlation and factor analysis) within data and for developing measurement scales. Psychological assessment as we know it today has developed from a long history of scientific interest in and measurement of human abilities, traits, and mood states. The main challenge psychology faced as a science was an inability to measure human attributes directly through o ­ bservation, coupled with a lack of units of measurement for describing the psychological quanta. Measurement had to be achieved indirectly using tests that theoretically tapped into different psychological characteristics (e.g., personality) based on self-reported behaviors, thoughts, and feelings. This approach is termed “representational” measurement in that most tests produce scores that represent the magnitude of the characteristics being measured.10 Intelligence tests, yielding IQ scores, are a good example because they are not directly measuring intelligence but extrapolating intelligence from subjects’ responses to a series of verbal and nonverbal tasks, which are collated into an IQ score. This in turn enables individuals to be compared to a normative

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range from the general population, for example, top 5% or bottom 1%. Psychometric tests in the forensic context can be used to help formulate more precisely the relationships between the characteristics of the person (e.g., dispositions or motives) and their risks or criminogenic needs. The assessor, acting as “scientist–practitioner,” can then make or refine hypotheses about the possible causes or functions of the offending behavior. There are a plethora of psychometric tests in use today. While many are useful, others should be treated with caution because they have been poorly constructed, have no theoretical basis, or are empirically questionable. The following sections highlight the major issues associated with the use of such tests, but for a more comprehensive discussion there are a number of useful texts11–13 as well as literature pertaining to specific tests.

Test construction and validation Both the theory and the methodology for developing ­psychological tests are encapsulated within what is sometimes termed classical test theory.13–15 The classical approach for test construction typically involves developing an item pool of relevant questions, testing these on appropriate populations, and then factor analyzing the items (a data reduction method for uncovering latent traits) to identify possible scales.13 Test construction is a constant process of refinement and validation, driven by research and supported by theory. As such, the use of tests requires a good understanding of the theories that surround the constructs being measured. Many tests in use today have developed within this classical paradigm, which emphasizes the concepts of reliability and validity. Reliability is concerned with optimizing the precision while minimizing the error within a particular scale. Essentially, this involves a range of correlational methods applied to a variety of samples, which ensures that the scale consistently measures what it purports to measure in different groups and across time. This is determined statistically through reliability coefficients such as Cronbach’s alpha,16 which has values between 0 (no ­reliability) and 1 (perfect reliability). As a rule of thumb, reliability should be greater than 0.7, although extremely high reliabilities (0.9) may be artifacts of the test’s construction (e.g., as a consequence of item repetition or because most respondents answer yes to most of the questions). Reliability varies across samples and across populations, and the test manual should be able to provide details of this, along with normative scale information and details of the test’s validity. Validity concerns the conceptual basis for the construct being measured (construct validity) in that a test must measure something psychologically meaningful17 and theoretically justified. In essence a scale must measure what it says it measures (does what it says on the label, so to speak). It can often be inferred from the item content whether a test is tapping into a relevant psychological domain and thus has

face validity. Another way to consider whether a test is valid is to correlate the scores with an alternative measure of the same construct and so determine concurrent ­validity. Tests also need to have some kind of predictive validity in supporting clinical decision making, whether that be for accurately identifying a clinical syndrome, such as psychopathy, or predicting the likelihood of an adverse event (risk of reoffending). Needless to say, the process of developing and validating a test can be time consuming, expensive, and technically challenging. For a test to be useful, it must be both valid and reliable, and one does not always follow from the other. It is possible for a test to be statistically reliable but still not be valid if the content does not reflect a theoretically justified construct. One of the down sides of psychological testing is that there are multiple tests for arguably similar concepts. Impulsivity, for example, is sometimes defined in terms of behavioral dyscontrol, but it may also be seen as reflecting poor judgment, risk taking, or sensation seeking, which are essentially different manifestations of the same underlying process. Hence, there are a range of scales for measuring impulsivity that reflect these semantic and sometimes theoretical differences. In recent years, the theory of measurement has been developed through item response theory (IRT),18 which attempts to fit items within a test to an underlying cumulative dimension. Rather than simply summing up items, the IRT approach models the item responses along a single continuum of severity such that the items themselves indicate the magnitude of the characteristic being assessed. This is quite a conceptual shift and not one that is widely understood because of its origins in psychometric theory, as well as the need for specialist software and very large samples on which to test the model. Examples of where this has been applied in forensic mental health include a Rasch scaling of schizotypy19 and a graded response model applied to psychopathy through the Psychopathy Checklist—Revised (PCL-R).20 Not surprisingly, the classic approach remains the most common approach to test construction and validation, despite its limitations. In summary, psychometric tests are linked to underlying and testable theories, have been objectively developed through progressive refinements and reliability and validly checks, and allow comparisons to be made between individuals and even groups. They can add a different dimension to assessment, either generating or testing hypotheses that emerge from, for example, file data or interviews; they can cover a wide range of issues relatively quickly; and this in turn can help focus an assessment on the main issues of concern. If psychometric tests suggested the relevance of issues related to, for example, impulsiveness, jealousy, or social inhibition, these tentative findings could be followed up with further data collection, collateral interviews, and ultimately clinical judgments. Psychometrics should not be used on their own, but they can provide an important part of the jigsaw puzzle of data from which a diagnosis or formulation can be made.5

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TYPES OF TESTS There are a range of different kinds of psychological tests in use today, some of which are perhaps overdue for retirement. Tests by their very nature reflect the theoretical zeitgeist of their time, so it is important to consider when a test was created and whether the language or scales are appropriate to the time and culture in which they are applied. For example, older tests of sexual deviance may include a measure of homosexuality because this was defined as a paraphilia in the early diagnostic manuals. Similarly, tests that have been developed in the United States may be worded in a way that makes less sense to someone in the United Kingdom. Tests fall into a number of groups depending on the method of administration or the kinds of constructs being elicited. The most common types of test are projective tests, self-report tests, and structured clinical ratings.

Projective tests Tests like the Rorschach21 and Thematic Apperception Test (TAT)22 are described as projective tests, having emerged at a time when psychodynamic theory was at its most influential. Projective tests involve showing the patient a set of ambiguous stimuli to which he or she can respond in an unstructured manner that allows unconscious or subconscious thoughts and feelings to be interpreted. The responses are interpreted through different systems that have been developed since their publication. However, there is always a danger of interpreting more than actually exists with projective tests, and there have been a number of cases of ­misidentification of sexual abuse in the United States, leading the eminent Richard Dawes to write: Now that I am no longer a member of the American Psychological Association Ethics Committee, I can express my personal ­opinion that the use of Rorschach interpretations in establishing an individual’s legal status and child custody is the single most unethical practice of my colleagues. It is done, widely. Losing legal rights as a result of responding to what is presented as a “test of imagination,” often in the context of “helping” violates what I believe to be a basic ethical principle in this society—that people are judged on the basis of what they do, not on the basis of what they feel, think, or might have a propensity to do.23

Structured clinical judgments and risk assessment There are a number of tests that are scored or rated by the clinician as opposed to the patient. These can be useful when the assessment concerns an attribute of the person that requires objective evaluation by a clinical team, for example, or when assessing a construct for which it may

not be in the patient’s interests to respond in an honest way, such as his or her risk. All risk assessments are forms of structured clinical judgment, although they vary in content, specificity, and predictive utility. With these kinds of assessments the assessor is required to consider a range of variables with established relevance to the offending behavior in question (e.g., violence or sex offending). On the basis of a combination of file and interview information, the assessor makes a judgment whether each factor is clearly present, partially present, or not present. One of the most common examples of this is the Historical–Clinical–Risk Management-20 (HCR-20),24 which developed from a large study of theoretically valid violence correlates, sometimes called the MacArthur study.4 One feature of risk assessment instruments is that they are heavily weighted on so-called static, or historical risk factors, that is, those aspects of the offender’s past behavior that cannot be altered. While such static factors contribute significantly to an individual’s risk assessment, they need to be regarded as a baseline or starting point from which to develop a more comprehensive risk assessment. For this purpose, it is important to consider the so-called dynamic risk factors, that is, those aspects of the individual’s functioning that, as well as being statistically associated with risk of reoffending, are potentially modifiable. These factors might include, for example, offense-supporting beliefs, cognitive distortions about offending behavior, and violent or sexually violent fantasies. Among these factors are typically such things as becoming isolated and alienated within the community; feeling lonely, depressed, or angry; dropping out of support and supervision arrangements; and relapsing into substance abuse.25 In discussing risk, most people immediately think of the likelihood (probability) that a person will be reconvicted of an offense, but it is just as important to think about the nature and severity of the likely risk. For example, is it likely to be a relatively minor offense or life-threatening behavior? We also need to think about the imminence of the risk. For example, is the risk likely to involve an offense scenario unfolding very quickly once the individual is at liberty, or is it more likely that the risk will emerge only after many months of, for example, involvement in a new relationship? In summary, we need to consider the underlying factors that contribute to risk (through risk assessments) alongside the nature and severity of the risk, the imminence of the risk, and the probability of the risk behavior’s being enacted over a specified period of time—1 year, 4 years, and so on.26 A number of other clinical assessments help support diagnoses of mental disorder. Personality functioning and indicators of personality disorder, for example, are typically assessed using the International Personality Disorder Examination (IPDE) (which can be used with either DSM-V or ICD-10 criteria) and the PCL-R,27 which brings together information on file with a structured interview to assess these facets: “interpersonal” (e.g., glibness, superficial charm, and manipulativeness), “affective” (e.g., deficits in empathy and remorse), “lifestyle” (e.g., irresponsibility,

Limitations of testing and issues for forensic practice  563

impulsiveness, and lack of direction), and “antisocial” (e.g.,  juvenile delinquency, criminal versatility, and poor behavioral controls).

Self-report tests The majority of psychological tests involve self-report questionnaires, which can usefully complement struc­ tured clinical judgments. Such questionnaires are generally simple to use but not always simple to interpret. The Millon Clinical Multi-Axial Inventory-III (MCMI-III),28 one of the most commonly used tests of personality dysfunction and other mental health issues,29 has three validity scales (covering disclosure, social desirability, and debasement) and scales for “clinical personality styles” and Axis 2 “severe personality pathology” (based on the DSM system) as well as Axis 1 “clinical syndromes” and “severe syndromes.” The profiles generated from such tests can be useful hypothesistesting or hypothesis-generating adjuncts to the structured clinical judgments of the IPDE and PCL-R, for example. The Minnesota Multiphasic Personality Inventory, Second Edition (MMPI-II),30 another widely used clinical personality assessment test, also has a number of scales related to personality functioning/mental disorders as well as features relevant to clinical and forensic assessment such as malingering and defensiveness. The Structured Clinical Interview for DSM-IV (SCID-II)31 has items that directly map to the symptoms of personality disorder as defined within the DSM. Tests such as the MCMI-III have scales that are theorized to measure the same disorders based on sets of items that are viewed as analogous to the content of each personality disorder. However, because the item content is different, we cannot say that Millon’s scale for borderline personality disorder, for example, is assessing exactly the same thing that is defined within a psychiatric manual. It is therefore important to consider the content of each question and be confident that the items are relevant indicators of the c­ oncept being measured (and are thus valid). In addition to these general personality and mental health screening tools, there are a wide range of specific attitudinal, emotional, and behavioral response tests that can be deployed on a case-specific basis to assess particular issues of concern. The Paulhus Deception Scale (PDS),32 for example, is a widely used assessment of socially desirable responding, both as a temporary response to situational demands (“impression management”) and as a more trait-like tendency to give honest but inflated self-descriptions (“self-deceptive enhancement”). The Social Problem Solving Inventory (SPSI-R)33 measures individuals’ typical orientation to social problem solving (whether they view the challenge of such problems positively or negatively) and their typical mode of dealing with such problems (rational, impulsive, or avoidant), which can provide a useful context for considering how patients are likely to deal with interpersonal demands. More specifically offense-focused, the State-Trait Anger Questionnaire, Second Edition (STAXI-2)34 is an assessment

of an individual’s experiences of angry feelings and his or her modes of expression (internally and externally directed) and perceived attempts at self-control. This, like many such tests, relies on the honest and insightful response to a series of questions that the individual answers about him- or ­herself. Such tests must therefore always be considered alongside the question of whether the individual is likely to be faking good or faking bad. Tests that go beyond self-appraisal to include the subject’s knowledge and judgment can helpfully complement such self-appraisal tests. The Hanson Empathy for Children Test,35 for example, requires the subject to consider a number of scenarios involving adults and children and to make judgments about how appropriate or otherwise is the adult’s behavior, and how the child would be feeling in each situation. This enables a subject’s empathy for children to be assessed, and results can be placed within norms for both “deviance” (failure to recognize abuse and the child’s likely distress) and “fake sensitivity” (endorsements that are extremely in the other direction, either through failure of judgment or trying to “fake good”).

Tests of cognitive functioning There are also specific tests for cognitive and neuropsychological functioning, for example, the widely used Wechsler Adult Intelligence Scale IV (WAIS-IV),36 which includes verbal and nonverbal subtests. Intellectual and cognitive assessment in forensic work can provide a crucial context for the patient’s ability to grasp and work with information and concepts of varying complexity as well as his or her capacity to manipulate or fake information. High-functioning patients may, for example, be able to maintain false accounts of events in ways that lower functioning patients could not.

LIMITATIONS OF TESTING AND ISSUES FOR FORENSIC PRACTICE Within forensic practice, it is important to understand and work within the limitations of psychological testing. Tests should be standardized on populations for which they will be used. For example, tests developed for a nonoffender population in North America should only be used with appropriate caution and caveats on offenders in the United Kingdom. Some tests can become outdated relatively quickly as attitudes and behaviors change within the target population, and test norms should therefore be updated periodically to take account of these changes. Tests applied to minority and ethnic groups may also be biased because of the language used and possible cultural differences. Practitioners should always work within the limits of a test’s demonstrated reliability and validity. This is particularly important when using a test to examine clinical change over time. All tests have an associated error that should be used to constrain interpretations. Small differences in test scores that are less than the known error level are often meaningless. When considering a change in test results over time, clinically significant changes need to be calculated

564  Psychological testing

from a range of statistical algorithms used to determine it. However, there is no universally agreed approach to examining reliable change in either the individual or the offender subgroups (e.g., sex offenders) and, importantly, there are many facets of the person that are unlikely to change. Forensic patients often present with multiple, complex needs that are difficult to untangle. The use of objective measures helps to rectify some of the more specific issues that might be addressed in treatment. In some cases incarceration may bring its own difficulties in promoting a low self-worth or potential suicidal ideation. Patients who have committed very violent crimes may be ashamed, depressed, or psychotic and therefore not necessarily willing or able to respond. Not surprisingly, they may view some assessments (e.g., risk) as particularly adversarial, so it is important to emphasize the benefits of open and honest responding. Conversely, it is important not to overinterpret or misinterpret test scores and so be guided by the manual and the wider literature.

SUMMARY AND CONCLUSIONS Psychological tests are extremely useful in guiding clinical judgments and will always be an essential part of the psychologist’s tool kit.5 They can help inform clinical team discussions, court decisions, and discharge planning. The tests must be used by those qualified to use them and with an understanding of the psychometric theory that underpins psychological science. The minimum qualification level for the use of a psychological test is MSc, and the guidelines for the use of tests can be found on the British Psychological Society website (www.britishpsychologicalsociety.co.uk).

REFERENCES 1. Jones L. Case Formulation for Individuals with Personality Disorder. In: Forensic Case Formulation. Eds. Sturmey P, McMurran M. Chichester: Wiley, 2011. 2. Lazarus, 1976. 3. Andrews DA, Bonta J, Hoge RD. Classification for effective rehabilitation: Rediscovering psychology. Criminal Justice and Behavior. 1990; 17(1): 19–52. 4. Monaghan J, Steadman HJ, Silver E. Rethinking Risk Assessment: The MacArthur Study of Mental Disorder and Violence. New York: Oxford University Press, 2003. 5. Meyer GJ, Finn SE, Eyde LD, Kay GG, Moreland KL, Dies RR, et al. Psychological testing and psychological assessment: A review of evidence and issues. American Psychologist. 2001; 45(2): 128-65. 6. Reitan RM. Manual for Administration of Neuropsychological Test Batteries for Adults and Children. Tuscon, AZ: Neuropsychology Laboratory, 1979. 7. Dean C, Perkins DE. Penile plethysmography. Prison Service Journal. 178(July): 20–5. 8. Galton F. Hereditary Genius. London: Macmillan, 1869.

9. Galton F. Inquiries into Human Faculty and Its Development. London: Macmillan, 1883. 10. Stevens SS. On the theory of scales and measurement. Science. 1946; 103 (2684): 677–80. 11. Kaplan RN, Sacuzzo, DP. Psychological Testing: Principles, Applications and Issues. 7th ed. Belmont, CA: Wadsworth, 2009. 12. Gregory RJ. Psychological Testing: History, Principles, and Applications. 6th ed. Boston: Allyn & Bacon, 2011. 13. Kline P. The Handbook of Psychological Testing. 2nd ed. London: Routledge, 2000. 14. Nunnally JC. Psychometric Theory. New York: McGraw-Hill, 1978. 15. Luce RD, Tukey JW. Simultaneous conjoint measurement. Journal of Mathematical Psychology. 1964; 1: 1–27. 16. Cronbach L. Coefficient alpha and the internal structure of tests. Psychometrika. 1951; 16(3): 297–334. 17. Barrett PT. What if there were no psychometrics? Commentary on Robert McGrath’s “Constructs, complexity, and measurement” target article. Journal of Personality Assessment. 2005; 85(2): 134–40. 18. Lord F. Applications of Item Response Theory to Practical Testing Problems. Hillsdale, NJ: Lawrence Erlbaum, 1980. 19. Kidd RT, Hammond S, Bishopp DCF. A cumulative model of schizotypy among offender patients. Criminal Behaviour and Mental Health. 1988; 8: 27–40. 20. Bolt DM, Hare RD, Vitale JE, Newman JP. A multigroup item response theory analysis of the Psychopathy Checklist-Revised. Psychological Assessment. 2004; 16: 155–68. 21. Rorschach H. Psychodiagnostics: A Diagnostic Test Based on Perception. (P. Lemkau & B. Kronenberg, Trans.). Berne, Switzerland: Huber, 1942. (Original work published 1921.) 22. Murray HA. Thematic Apperception Test. Cambridge, MA: Harvard University Press, 1943. 23. Dawes R. Rational Choice in an Uncertain World. New York: Harcourt Brace Jovanovich, 1988. 24. Webster C, Douglas KS, Eaves D, Hart SD. HCR-20: Assessing Risk for Violence, Version 2. Burnaby, British Columbia: Simon Fraser University, 1997. 25. Hanson RK, Morton-Bourgon KE. The characteristics of persistent sexual offenders: A meta-analysis of recidivism studies. Journal of Consulting and Clinical Psychology. 2005; 73: 1154–65. 26. Webster CD, Muller-Isberner R, Fransson G. Violence risk assessment: Using structured clinical guides professionally. International Journal of Forensic Mental Health. 2002; 1: 185–93. 27. Hare RD. The Hare Psychopathy Checklist—Revised (PCL-R). 2nd ed. Toronto: Multi-Health Systems, 2003.

Further reading  565

28. Millon T, Millon C, Davis R, Grossman S. M ­ CMI-III Manual. 4th ed. Minneapolis, MN: Pearson Education, Inc., 2009. 29. Archer RP, Buffington-Vollum JK, Vauter Stredny R, Handel RW. A survey of psychological test use ­patterns among forensic psychologists. Journal of Personality Assessment. 2006; 87(1): 84–94. 30. Butcher JN, Graham JR, Ben-Porath YS, Tellegen A, Dahlstrom WG, Kaemmer B. Minnesota Multiphasic Personality Inventory-2 (MMPI-II): Manual for Administration, Scoring and Interpretation. Rev. ed. Minneapolis: University of Minnesota Press, 2001. 31. First MB, Gibbon MSW, Spitzer RL, Williams JBW, Benjamin LS. Structured Clinical Interview for DSM-IV Axis II Personality Disorders, Users Guide. Arlington, VA: American Psychiatric Publishing, 1997. 32. Paulhus DL. Paulhus Deception Scales. Toronto: Multihealth Systems, 1998. 33. D’Zurilla TJ, Nezu AM. Development and preliminary evaluation of the social problem-solving inventory. Psychological Assessment: A Journal of Consulting and Clinical Psychology. 1990; 2: 156–63.

34. Spielberger CD. The State-Trait Anger Expression Inventory-2 (STAXI-2): Professional Manual. Odessa, FL: Psychological Assessment Resources, Inc, 1999. 35. Hanson RK, Scott H. Assessing perspective taking among sexual offenders, nonsexual criminals and non-offenders. Sexual Abuse: A Journal of Research and Treatment. 1995; 7, 259–77. 36. Wechsler D. Wechsler Adult Intelligence Scale. 4th ed. San Antonio, TX: Pearson, 2008.

FURTHER READING Harris GT, Rice ME, Quincy Fee L. Violent recidivism of mentally disordered offenders: The development of a statistical prediction instrument. Criminal Justice and Behaviour. 1993; 20: 315–35. Thornton D. Construction and testing: A framework for dynamic risk assessments. Sexual Abuse: A Journal of Research and Treatment. 2002; 14: 137–51. Thurstone LL. Attitudes can be measured. American Journal of Sociology. 1928; 33: 529–54.

85 Malingering HANNAH CRISFORD AND HAYLEY DARE Challenges of diagnosing mental illness: Early studies What is malingering? Why do a malingering assessment? Limits of this chapter How to assess for malingering Interviewing and observation

567 567 568 568 568 568

CHALLENGES OF DIAGNOSING MENTAL ILLNESS: EARLY STUDIES The concept of feigning mental illness to avoid criminal responsibility was considered as early as the tenth c­ entury.1 Rosenhan2 published one of the most famous studies, “On Being Sane in Insane Places,” which, despite its methodological limitations, raised questions about the potential to malinger. In part one of the study, eight healthy stooges presented themselves at psychiatric hospitals and pretended to have been hearing voices. They were all admitted and immediately presented as their usual selves (i.e., symptom free). Despite this, all but one were given diagnoses and medication, and spent on average 19 days in the hospital. In part two of the study, a psychiatric hospital that had been aware of part one of the experiment was informed that in the following 3 months one or more “stooges” would be admitted; consequently, staff members were asked to rate on a Likert scale how likely it was that any new admission was actually a “pseudo patient.” The twist in the experiment was that no stooges were actually sent to the hospital. The outcome of part two was that more than 41 of the 193 new hospital admissions were considered to be “pseudo patients” with qualified, experienced staff raising concerns for more than 19 of them. The study therefore demonstrates how difficult it can be to make a valid diagnosis or, as Rosenhan put it, “distinguish the sane from the insane.”

WHAT IS MALINGERING? The criteria for malingering are a much debated topic. Although to date the criteria have not been helpfully clarified by the Diagnostic and Statistical Manual of Mental

Psychometric assessment 568 Challenges of malingering assessment for the multidisciplinary team 569 Other related diagnoses 570 Outcome of malingering 570 References 570

Disorders (DSM), the DSM provides a useful starting point. The Diagnostic and Statistical Manual of Mental Disorders 4th Edition, Text Revision3 specified malingering as the “intentional production of false or grossly exaggerated physical or psychological symptoms motivated by external incentives” and noted that it should be suspected if “any combination of the following is seen: medicolegal context…; marked discrepancy between the person’s claimed stress or disability and objective findings; lack of cooperation during the diagnostic evaluation and in complying with the prescribed treatment regimen; the presence of Antisocial Personality Disorder.” Berry and Nelson4 highlighted conceptual concerns with this definition including the following: It is categorical (i.e., “yes or no”) and not dimensional; it is criminological or moralistic. In addition to this, Rogers5 commented that the definition focuses on negative characteristics or circumstances, and it assumes that malingerers will “fake bad” on nearly all diagnostic measures. Speculation about the intentions of the malingerer is likely to be just that, speculation; it can be extremely difficult to objectively discriminate on motivation.4 More recently, DSM-5 has placed malingering as a differential diagnosis under the criteria for factitious disorder, with malingering differing in having the motivation for personal gain. Despite the criticism, establishing a motivation to malinger is a frequently cited assessment goal, and it seems that it can ­ neither be ignored nor depended on as a criteria. Otto6 ­ highlights that the emphasis on one response style (i.e., ­malingering/symptom feigning) means that other response styles are not attended to and helpfully broadens the scope to consider other possible response styles, based on the work of Rogers,7,8 to include “(1) symptom feigning, (2) g­ uardedness/ disavowal, (3) false ­presentation of positive traits, (3) irrelevant 567

568 Malingering

responding,  (4)  random responding, (5) honest/candid responding, and (6)  hybrid responding.” Otto6 suggests that the hybrid response style, which consists of two or more of the  suggested styles, is the one commonly seen in forensic patients. Malingering is a complex phenomenon; care must be taken to complete thorough assessments, and psychologists are often asked to assist, bringing with them a range of assessment tools and skills to help identify and develop a formulation for individuals who may be malingering.

WHY DO A MALINGERING ASSESSMENT? This chapter focuses on malingering in the context of forensic psychiatry. However, it is worth noting the range of circumstances in which the possibility of malingering may be queried, for example: compensation claims, occupational health, military service, immigration, medication addiction, and court assessments (criminal pre-sentence, family court parenting assessments). In forensic psychiatry, most referrals for assessment of malingering are generated at two points in the care pathway: (1) pre-sentencing, during the legal process soon after an offense, when it is being established whether mental illness was a factor and if a mental health section, as opposed to prison sentence, is warranted; and (2) post-sentencing, when determining if a prisoner should be admitted to a psychiatric hospital for assessment and/or treatment (although often at the point of sentencing it is not uncommon for this to happen some years later). It is worth noting that individuals with a genuine diagnosis of schizophrenia or other genuine mental health d ­ ifficulties may also choose to “malinger” by reporting relapse or ­distorting/exaggerating symptoms. The clinician must also be mindful of specific disorders associated with deceptive behavior (e.g., eating disorders, substance abuse, personality disorder) and how this differs from a “malingered” psychiatric disorder. Assessments also need to consider the faking of cognitive ­deficits (e.g., learning difficulties, dementia, or amnesia) as such questions are often raised during legal processes.

LIMITS OF THIS CHAPTER There are certain limitations to what can be disclosed about malingering assessments in an attempt to protect the validity of the measures. The British Psychology Society (BPS) gives clear guidance in its “Statement on the Conduct of Psychologists Providing Expert Psychometric Evidence to Courts and Lawyers,”9 which highlights that tests can be invalidated if patients already have knowledge of the ­contents and objectives. The statement specifies the importance of maintaining the confidentiality of tests, discusses how to work with the courts when levels of disclosure are required, and recommends that the general nature of tests is explained rather than disclosing details. This requires particularly careful management when malingering is an issue. With the increasing availability of information via the Internet, it is particularly important that authors and clinicians do not compromise the integrity of such assessments.

HOW TO ASSESS FOR MALINGERING Interviewing and observation Singh and colleagues10 suggest a “systematic approach” when assessing for malingering that would include gathering as much historical information as possible via ­in-depth interviewing and reviewing previous records (e.g., medical, psychiatric, educational, professional). Care needs to be taken to maintain a genuine curiosity about the client who is suspected of malingering and to ask a wide range of open questions to gather in-depth information about symptoms. Interviews with family members, previous healthcare services, or current multidisciplinary staff providers, when possible, optimize the likelihood of reliable information gathering. When offenses are involved, police reports, witness statements, and autopsy reports should be requested whenever possible. In addition to data gathered from interviewing, Singh and colleagues10 highlight the role of observation, not just in the interview, but across time and situations (e.g., during socializing; ward rounds; and sessions at the gym or with other practitioners such as occupational therapists, probation staff, prison officers, or teachers). While there can be a reluctance to admit a potential malingerer from prison to hospital for assessment, this can maximize the level of observation possible and increases the validity and reliability of conclusions made. At a minimum it is essential that any assessment of malingering by a single practitioner be completed across a number of different days to allow for comparisons to be made of how an individual presents from session to session.

Psychometric assessment In parallel to observation and interview, there are now a wide range of psychometric assessments that can be administered to inform a malingering assessment. Any psychometric assessment should involve a range of purposefully selected tests, and the results must be integrated and put into the context of the wider assessment to inform the conclusions made. Conclusions should never hinge on one test alone. All tests administered must be included in the final report, whether they do or do not support a hypothesis, to ensure that a comprehensive objective opinion is provided. Broadly speaking, there are three main categories into which malingering psychometric tests fall: tests of effort, assessment of specific symptoms, and impression management scales. TESTS OF EFFORT

Although not symptom-specific, tests of effort can be a useful addition to a malingering assessment. They are designed as an adjunct to cognitive assessment when suboptimal effort can have a significant impact on the results. These tests are not obvious malingering tools (to those being assessed) because they are not related to symptoms

Challenges of malingering assessment for the multidisciplinary team  569

of mental illness and are very similar to standard cognitive assessment measures. In addition to being a useful part of a “test battery” for assessing malingering of psychosis, they are essential when legal questions relevant to learning disability are asked. The BPS document “Assessment of Effort in Clinical Testing of Cognitive Functioning for Adults”11 suggests a clear protocol for action to take if poor effort is detected during an assessment session, which includes the following: do not discontinue the session because further information needs to be gathered to enable a formulation; administer a range of tests to ensure that suboptimal effort was not just on one test; modify the assessment to include other relevant tests, or reduce testing if underperforming is consistent; and consider why someone may be underperforming and plan accordingly. Purpose-specific designed tests of effort can be used, such as the Test of Memory Malingering (TOMM),12 Word Memory Test (WMT),13 Rey-15 Item Test,14 and Validity Indicator Profile (VIP).15 There are also methods of using conventional psychometric tests, or more specifically subtests within them, to assess for malingering. For example a “rate of decay” calculation16,17 can be applied to the data generated on the Raven’s Progressive Matrices18 (an assessment of cognitive ability). The Wechsler Adult Intelligence Scale-III (WAIS-III)19 digit span and vocabulary subtests, as well as other subtest examples, are listed and reviewed in the BPS 2009 document and elsewhere. If using psychometric tests, assessors need to be well acquainted with the relevant literature and balance any conclusions made accordingly. For example, the TOMM is a well-respected measure, but when assessing individuals with intellectual disability, caution should be used and adjustments to the suggested cutoff criteria should be considered. 20

IMPRESSION MANAGEMENT SCALES

Questionnaire-based measures, commonly used by clinical psychologists in the field of forensic psychiatry, often have built-in “impression management” scales that can be used as part of a malingering assessment. Personality assessments have these as standard, but a range of questionnaire measures used for other clinical issues, such as anger and trauma, also utilize impression management questionnaires. Furthermore, structured parenting assessment measures, often used in the family courts, ­typically assess impression management, for obvious reasons. Impression management is assessed by measures such as the Personality Assessment Inventory (PAI)25 and Minnesota Multiphasic Personality Inventory-2 (MMPI-2),26 and other assessments, in a range of ways. In particular these assessments examine consistency in the way a person responds to similar items throughout the questionnaire; an inconsistent approach may raise questions about a responder (e.g., his or her attention to the process, understanding of the questions, and/or possible ulterior motives for presenting a scattered response). In addition to inconsistency, the measures examine individuals’ active attempts to distort responses, seeming to “look worse” than they are by exaggerating or endorsing bizarre symptoms. This is known as negative impression management or “faking bad.” Conversely, there are subscales that suggest a person is minimizing or ignoring deficits that most people will admit to (e.g., occasional ­irritability, the use of “white lies”) and therefore may underreport genuine symptoms (positive impression management or “faking good”). A number of these type of measures (e.g., MMPI-2, PAI) have a range of subscales that identify the specific types of malingering in addition to determining the severity.

ASSESSMENT OF SPECIFIC SYMPTOMS

Structured interview questionnaires specifically target psychotic symptomatology to determine whether individuals are deliberately distorting their symptoms. These questionnaires aim to enable assessors to better understand the response style of the interviewee; assessing for distortion and fabrication of symptoms. The M-Fast 21 is a screening tool consisting of 25 items administered through an interview that is relatively easy to integrate into a broader assessment. The Structured Interview of Reported Symptoms-2 (SIRS-2)22 is a more in-depth tool that takes 30–40 minutes to administer. Richard Rogers co-authored this tool and is well known for his expertise in the area. Although a well-respected tool, it is not without its drawbacks, and the authors themselves identify that it should form part of a wider assessment and battery of measures. Of note, a diagnosis of malingering on the SIRS is significantly correlated with acquiescence and yield suggestibility as measured by the Gudjonsson Suggestibility Scale, 23 which suggests that the SIRS-2 may wrongly classify suggestible and acquiescent individuals as malingerers. 24

CHALLENGES OF MALINGERING ASSESSMENT FOR THE MULTIDISCIPLINARY TEAM Patients referred for malingering assessments can present challenges to the multidisciplinary team. It can be a difficult process to return a malingering client to prison as he or she may still have significant difficulties and distress that remain unresolved. This can create dilemmas for caregivers who are responsible for returning a person to prison. If a multidisciplinary team is returning a client to prison, ­having a clear formulation that sets out the issues and includes a clear management plan for any remaining risk issues is important for all involved. Professional splits can be generated in multi-­disciplinary teams when individuals form different opinions on a patient being assessed for malingering, particularly when issues relevant to personality disorder are present. The impact of working with deception must not be underestimated. Asher27 commented that “the pride of a doctor who has caught a malingerer is akin to that of a fisherman who has

570 Malingering

landed an enormous fish”; such is the strength of feeling associated with dealing with deceptive behavior. Debates and discussions about differences in opinion can add depth  and insight to an assessment and so need reflective space to be processed. To prevent staff members from being “groomed” or isolated by an individual who is malingering, good communication is essential as is clinical and wardbased supervision (e.g., reflective practice).

OTHER RELATED DIAGNOSES Factitious disorders are separated from malingering in that the main and, importantly, the psychological motivation is to assume the sick role rather than other subconscious incentives or, conversely, as in malingering, more specific external incentives. Factitious disorders can involve either psychological or physical symptoms, or a combination of both. Munchausen syndrome comes under this umbrella. Such individuals fabricate or induce symptoms in themselves (or in another such as a child in Munchausen by proxy) to get care from others. Conversion disorder (which comes under somatoform disorder in DSM-IV, and under facticious disorder in DSM-5) is also different from malingering in that it is driven by unconscious processes, with the client experiencing symptoms and illness as being genuine. The onset is often sudden and debilitating (e.g., blindness or numbness). Ganser syndrome, once classified as a factitious ­d isorder, was classified under dissociative disorder NOS (DSM-IV) and was understood as a “functional psychological disorder with a hysterical/dissociative etiology.”28 It is mentioned in DSM-5 under dissociative disorders. Ganser syndrome was originally observed in prisoners awaiting trial 29 who presented with symptoms including confusion, hallucinations, and amnesia. Individuals with Ganser syndrome have a tendency to give approximate answers to questions, which subsequently became a defining symptom of the disorder. Drob and Meehan 28 suggest that screening criteria for Ganser syndrome should include the presence of (1) pseudo-dementia (or absurd or approximate answers to easy questions, or other implausible evidence of cognitive difficulties) and (2) dissociative and/or hysterical symptomatology (e.g., disorientation, loss of memory particularly in connection to an offense, unusual physical symptoms, hallucinations and delusions that are often bizarre, disturbance in personal identity, childlike behavior, and odd speech characteristics). The authors suggest that Ganser syndrome is distinct from factitious disorder and malingering based on the level of conscious awareness and summarize the differences by stating “malingerers are consciously aware they are distorting their presentation as well as the reasons for their ­distortion. Individuals with factitious disorder are consciously aware of their intentional distortion but do so for reasons outside of conscious awareness. Finally those who suffer from Ganser syndrome are neither fully conscious of

their distortions nor aware of their motives for doing so.” They suggest eight key areas that should be explored to help distinguish Ganser syndrome from malingering: 1. 2. 3. 4. 5.

Incentive to malinger. A history of lying and manipulation. Consistency over time. A history of dissociative or hysterical symptoms. The presence of subtle signs of dissociation that a malingerer is unlikely to be aware of. 6. A history of abuse or trauma associated with the development of dissociation. 7. A head injury linked to the syndrome developing. 8. Testing to indicate/exclude dissociative disorder. In terms of treatment Ganser syndrome can be short lived with fast recovery but has also been seen as a chronic disorder in the context of severe dissociative symptoms. Supportive therapy and antidepressants are indicated.

OUTCOME OF MALINGERING The presence of malingering can engender a withdrawal of the desire to clinically work with the individual or indeed justify the individual’s ongoing hospital placement. The experienced clinician will utilize the positive results of a malingering assessment to ascertain what the individual wishes to communicate and therefore provide a channel for exploration and discussion of the function of the malingering. The assessment and ultimate diagnosis of malingering requires not only a careful assessment of the presence of malingering, but also a detailed review and consideration of differential diagnoses and alternative explanations.30

REFERENCES 1. Resnick PJ. The detection of malingered mental illness. Behavioural Science Law. 1984; 2: 20–38. 2. Rosenhan DL. On being sane in insane places. Science. 1973; 179: 250–58. 3. American Psychiatric Association. Diagnostic and Statistical Manual of Mental Disorders. 4th ed., Text Revision. Washington DC: American Psychiatric Association, 2000. 4. Berry DTR, Nelson NW. DSM-5 and malingering: A modest proposal. Psychological Injury and Law. 2010; 3: doi: 10.1007/s12207-010-9087-7. 5. Rogers R. Models of feigned illness. Professional Psychology. 1990; 21: 182–88. 6. Otto RK. Challenges and Advances in Assessment and Response Style in Forensic Examination Contexts. In: Clinical Assessment of Malingering and Deception. 3rd ed. Ed. Rogers R. New York: The Guilford Press, 2008: 365–67. 7. Rogers R, ed. Clinical Assessment of Malingering and Deception. 2nd ed. New York: Guilford Press, 1997.

References 571

8. Rogers R. An Introduction to Response Styles. In: Clinical Assessment of Malingering and Deception. 3rd ed. Ed. Rogers R. New York: Guilford Press, 2008: 3–13. 9. The Psychology Testing Centre. Statement on the Conduct of Psychologists Providing Expert Psychometric Evidence to Courts and Lawyers. Leicester, UK: The British Psychology Society, 2007. 10. Singh J, Avasthi A, Grover S. Malingering of psychiatric disorders: A review. German Journal of Psychiatry. 2007; 10: 126–32. 11. McMillan T, Anderson S, Baker G, et al. Assessment of Effort in Clinical Testing of Cognitive Functioning for Adults. Leicester: The British Psychology Society, 2009. 12. Tombaugh TN. The Test of Memory Malingering (TOMM): Normative data from cognitively intact and cognitively impaired individuals. Psychology Assessment. 1997; 9: 260–68. 13. Green P, Allen LM, Astner K. The Word Memory Test: A User’s Guide to the Oral and ComputerAdministered Forms, US Version 1.1. Durham, NC: CogniSyst, 1996. 14. Rey A. L’examen Clinique en psychologie. Paris: University of France Press, 1964. 15. Frederick RI. Validity Indicator Profile Manual. Minnetonka, MN: NCS Assessments, 1997. 16. McKinzey RK, Podd MH, Krehbiel MA, Raven J. Brief report detection of malingering on Raven’s Standard Progressive Matrices: A cross validation. British Journal of Clinical Psychology. 1999; 38: 435–39. 17. Gudjonsson G, Shackleton H. The pattern of scores on Raven’s Matrices during “faking bad” and “nonfaking” performance. British Journal of Clinical Psychology. 1986; 25: 35–41. 18. Raven J, Raven JC, Court, JH. Manual for Raven’s Progressive Matrices and Vocabulary Scales. San Antonio, TX: Harcourt Assessment, 2003 (updated 2004).

19. Wechsler D. Wechsler Adult Intelligence Scale (WAIS-III). 3rd ed. San Antonio, TX: Harcourt Assessment, 1997. 20. Ray, CL. Assessment of feigned cognitive i­mpairment: A cautious approach to the use of the test of memory malingering for individuals with intellectual disability. Open Access Journal of Forensic Psychology. 2012; 4: 24–50. 21. Miller, HA. M-FAST: Miller Forensic Assessment of Symptoms Test Professional Manual. Odessa, FL: Psychological Assessment Resources, 2001. 22. Rogers R, Sewell KW, Gillard ND. Structured Interview of Reported Symptoms. 2nd ed. Lutz, FL: Psychological Assessment Resources, 2010. 23. Pollock, PH. A cautionary note on the determination of malingering. Psychology, Crime and Law. 1996; 3: 97–110. 24. Gudjonsson GH, Haward LR. Forensic Psychology: A Guide to Practice. Routledge: Chapman and Hall Incorporated, 1998. 25. Morey, LC. Personality Assessment Inventory Professional Manual. 2nd ed. Lutz, FL: Psychological Assessment Resources, 2007. 26. Butcher, JN, Graham, JR, Williams, CL, et al. Minnesota Multiphasic Personality Inventory 2: Manual for Administration and Scoring. Rev. ed. Minneapolis: University of Minnesota Press, 2001. 27. Asher R. Richard Asher Talking Sense. London: University Park Press, 1972. 28. Drob SL, Meehan K. The diagnosis of Ganser syndrome in the practice of forensic psychology. American Journal of Forensic Psychology. 2000; 18(3): 37–62. 29. Ganser SJ, Shorer CE. A peculiar hysterical state. British Journal of Criminology. 1965; 5: 120–26. 30. Iverson GL, Binder LM. Detecting exaggeration and malingering in neuropsychological assessment. Journal of Head Trauma Rehabilitation. 2000; 15(2): 829–58.

86 Drug screening BASANT K. PURI AND IAN H. TREASADEN Introduction 573 Reasons for drug screening 573 573 Windows of detection 573 Methods used Alcometer 573 573 Blood testing for Alcohol

Hair testing 574 574 Alcohol consumption 574 Immunoassay methods 574 Mass spectrometry 574 Characteristics of common drugs References 576

INTRODUCTION

relapse if they elevate again, though medical illness, such as hepatitis A, or medications, such as venlafaxine, may result in exceptions to this rule.

Substance abuse was discussed earlier in this book, in Chapter  22. This chapter briefly considers a few of the most common clinical methods to screen for psychoactive substances.

REASONS FOR DRUG SCREENING There are a variety of reasons why drug screening may be necessary in a forensic psychiatry context. For example, victims and potential suspects may need to be tested in cases of road traffic accidents (alcohol and other psychoactive substances), drug-facilitated sexual assault (so-called date rape), poisoning, fire setting, and (suspected) homicide. Forensic psychiatric patients who are permitted to go on leave may require routine screening upon return to the forensic unit. Testing, including when subjects admit to substance misuse: ●● ●● ●● ●●

Confirms abstinence Counters later denial of substance misuse Baseline for future comparison Can rule out misuse of other substances not disclosed

WINDOWS OF DETECTION ●● ●● ●● ●●

Blood up to 24 hours Oral fluids 0-3 days Urine 1-4 days Hair up to 1 year plus

In general, tests elevated during substance misuse which normalise during abstinence can be markers for

METHODS USED Alcometer At the time of this writing, breathalyzation using an alcometer device is routinely used to detect ethanol in exhaled breath. This provides a good index of the blood ethanol concentration. However, it may give false-positive readings. For example, a “restricted” forensic psychiatric patient returning from leave to a medium-security forensic unit in Edinburgh was found to have a false-positive result on breathalyzation; the cause was the prior disinfection of the alcometer by staff using an alcohol-based hand disinfection lotion.1

Blood Testing for Alcohol Whole blood phosphatidylethanol (PEth). This has a mean half-life of 4-6 days after a single dose of ethanol. Abstinence for the past month should not result in levels higher than 0.01 μmol/L. Serum % CDT more than 1.6. False positives are seen in severe liver disease, pregnancy and rare genetic anomalies. False negatives can be present in 20-40% of cases. It should return to normal after 2-4 weeks abstinence. Serum GGT above upper laboratory normal. False positives may occur in obesity, liver disease and with certain medications. False negatives occur in 40% of cases. It usually returns to normal after 2-6 weeks abstinence. 573

574  Drug screening

Blood MCV above upper laboratory normal. False positives occur in medical disorders and with anticonvulsant medication. False negatives occur in 70% of cases. Return to normal levels follow after 2-3 months of abstinence. If  raised, but CDT and GGT are normal, it may suggest heavy alcohol drinking up to one month ago.

Hair testing Head hair grows at about 1 cm per month (range 0.7-1.4 cm per month). If there is no scalp hair, including due to the actions of an individual to avoid testing, hair from elsewhere on the body may be used, though axillary hair has a higher risk of false positives. Drugs are absorbed through the keratin root, which allows approximate timing of past substance abuse, e.g. a 3 cm length will equate to a 2-3 month time-scale. Drugs or their metabolites detectable on a hair sample include common drugs of abuse, some new psychoactive substances in some laboratories, e.g. mephedrone and spice, and psychotropic medication.

Alcohol consumption

ethanol is predominantly incorporated via the respiratory tract, not via the skin, and is excreted as ETG in urine.

Immunoassay methods These techniques are based on the detection, measurement, and characterization of antibodies and include enzyme-linked immunosorbent assay (ELISA; see Figure 86.1), radioimmunoassay (RIA), and affinity chromatography (see Figure 86.2).

Mass spectrometry Various types of mass spectrometry (MS), sometimes in combination with high-performance liquid chromatography (HPLC), offer a highly sensitive means of identification. The principles of MS are illustrated in Figure 86.3.

CHARACTERISTICS OF COMMON DRUGS The half-lives, typical blood concentrations, and major metabolites of some commonly abused drugs (excluding alcohol/ethanol) are given in Table 86.1.2

Ethanol metabolite markers are on the surface of the hair, e.g. in sebum, and can move up and down the hair and thus can give no guide to the timescale of consumption. Episodic excessive alcohol abuse (binges) may not result in abnormal blood tests, but can be picked up with hair testing, though a negative hair test does not prove abstinence, which can only be proven by frequent blood and urine testing. Ethyl glucoronide (ETG) in hair is a minor metabolite of alcohol (0.5%). An ETG concentration of more than 7pg/ mg suggests repeated alcohol consumption. If greater than 30-50 pg/mg, this would suggest chronic excessive alcohol consumption. This marker will remain positive until new hair grows and replaces hair grown during excessive alcohol consumption. Hair bleaching and dying and frequent washing can produce false negatives. Fatty acid ethyl esters (FAEE) (20 esters) is a marker of chronic intake of high quantities of alcohol (1 ng/mg) and can be useful if one suspects a false negative ETG. Ethanol containing hand sanitisers are sometimes cited as a cause of false positive hair tests for alcohol. However,

Figure 86.1  The principle of ELISA. To detect antigen A, purified antibody specific for antigen A is linked chemically to an enzyme. The samples to be tested are coated onto the surface of plastic wells to which they bind nonspecifically; residual sticky sites on the plastic are blocked by adding irrelevant proteins (not shown). The labeled antibody is then added to the wells under conditions where nonspecific binding is prevented, so that only binding to antigen A causes the labeled antibody to be retained on the surface. Unbound labeled antibody is removed from all wells by washing, and bound antibody is detected by an enzyme-dependent color-change reaction. This assay allows arrays of wells known as microtiter plates to be read in fiber-optic multichannel spectrometers, greatly speeding the assay. Modifications of this basic assay allow antibody or antigen in unknown samples to be measured.3

Add anti-A antibody covalently linked to enzyme

Sample 1 (antigen A)

Sample 2 (antigenB)

Wash away unbound antibody

Enzyme makes colored product from added colorless substrate

Measure absorbance of light by colored product

Characteristics of common drugs  575

Antibody to antigen A bound to beads

Add a mixture of molecules

Wash away unbound molecules

Elute specifically bound molecules

Mixture depleted of antigen A

Purified antigen A

Figure 86.2  Affinity chromatography uses antigen–antibody binding to purify antigens or antibodies. To purify a specific antigen from a complex mixture of molecules, a monoclonal antibody is attached to an insoluble matrix, such as chromatography beads, and the mixture of molecules is passed over the matrix. The specific antibody binds the antigen of interest; other molecules are washed away. Specific antigen is then eluted by altering the pH, which can usually disrupt antibody–antigen bonds. Antibodies can be purified in the same way on beads coupled to antigen (not shown).3 Standard mass spectrometry (MS) Relative abundance

Peptide mixture

100

0 Ion source

Mass analyser

1000

Detector

2000

2500

Mass-to-charge ratio (m/z)

(a) Tandem mass spectrometry (MS/MS)

100 Relative abundance

Peptide mixture Inert gas MS1

1500

MS2

0 Ion source

Mass Fragmentation Mass filter analyzer (precursor ion (product ion selection) analysis)

Detector

200

600

1000

Mass-to-charge ratio (m/z) (b)

Figure 86.3  Mass spectrometry. (a) An ion source generates gaseous peptides or other molecules under conditions that render most molecules positively charged. Ions are accelerated into a mass analyzer, which separates the ions on the basis of their mass and charge by one of three major methods: 1. Time-of-flight (TOF) analyzers determine the mass-to-charge ratio of each ion in the mixture from the rate at which it travels from the ion source to the detector. 2. Quadropole mass filters contain a long chamber lined by four electrodes that produce oscillating electric fields that govern the t­ rajectory of ions; by varying the properties of the electric field over a wide range, a spectrum of ions with specific mass-tocharge ratios is allowed to pass through the chamber to the detector, while other ions are discarded. 3. Ion traps contain ­doughnut-shaped electrodes producing a three-dimensional electric field that traps all ions in a circular chamber; the properties of the electric field can be varied over a wide range to eject a spectrum of specific ions to a detector. (b) Tandem mass spectrometry typically involves two mass analyzers separated by a collision chamber containing an inert, high-energy gas. The electric field of the first mass analyzer is adjusted to select a specific peptide ion, called a precursor ion, which is then directed to the collision chamber. Collision of the peptide with gas molecules causes random peptide fragmentation, primarily at peptide bonds, resulting in a highly complex mixture of fragments containing one or more amino acids from throughout the original peptide. The second mass analyzer is then used to measure the masses of the fragments (called product or daughter ions). With computer assistance, the pattern of fragments can be used to deduce the amino acid sequence of the original peptide.4

576  Drug screening

Table 86.1  Characteristics of some common drugs

Drug

Typical blood concentration (mg/L)

Half-life (h)a

Amphetamine

7–34

0.02–0.20

Cannabis (THC)

20–57 (infrequent users) 3–13 days (frequent users) 0.7–1.5

0.001–0.010 (THC) 0.001–0.050 (carboxy-THC)

Diamorphine (heroin)

0.03–0.1 (diamorphine) 0.1–0.4 (6-MAM) 2–3 (morphine)

Diamorphine ND 0.01–0.10 (6-MAM) 0.01–0.10 (morphine) 0.1–0.5 (morphine-3-glucuronide)

Methadone Diazepam

15–55 21–37

0.03–0.30 0.05–2.00 (diazepam) 0.1–3.0 (desmethyldiazepam)

Methylenedioxymetamphetamine (MDMA) γ-Hydroxybutyrate (GHB)

5–9

0.10–0.35

0.3–1

80–250

Cocaine

0.05–0.30 (cocaine) 0.1–1.0 (benzoylecgonine)

Major metabolites (pharmacologically active or inactive) Benzoic acid, hippuric acid (both inactive) Hydroxy-THC (active) Carboxy-THC (inactive) Benzoylecgonine, methylecgonine (both inactive) 6-Monoacetylmorphine (6-MAM), morphine (both active), morphine-3glucuronide (inactive), morphine-6-glucuronide (active) EDDP, EMDP (both inactive) Desmethyldiazepam, temazepam, oxazepam (all active) Methylenedioxyamphetamine (MDA, active) Succinic acid (inactive)

Half-life – t½: the time taken for a concentration of a drug to decrease to half of the initial concentration. a From Baselt RC. Disposition of Toxic Drugs and Chemicals in Man, 9th edn. Seal Beach, CA: Biomedical Publications, 2011. Typical blood concentration: the range of whole blood concentrations likely from a therapeutic or typical abuse dose. EDDP, 2-ethylidene-1,5-dimethyl-3,3-diphenylpyrrolidine; EMDP is 2-ethyl-5-methyl-3,3-diphenylpyrrolidine; THC, tetrahydrocannabinol. ND, not detected.

REFERENCES 1. Rowe A, Crichton J, Mackintosh C, McFarlane A. False-positive results with an alcometer device. British Journal of Psychiatry: The Journal of Mental Science. 2010; 197: 75. 2. Stark M, Payne-James J, Scott-Ham M. Symptoms and Signs of Substance Misuse. 3rd ed. Boca Raton, FL: CRC Press/Taylor & Francis Group, 2015.

3. Murphy K. Janeway’s Immunobiology. 8th ed. New York: Garland Science, 2012. 4. Alberts B, Johnson A, Lewis J, et al. Molecular Biology of the Cell. 6th ed. New York: Garland Science, 2015.

87 Electroencephalography JOHN LUMSDEN Historical background of EEG in forensic psychiatry 577 Modern neurophysiological investigation in forensic psychiatry 578 EEG findings in relation to neuroleptic medication 579

Future opportunities for neurophysiology in forensic psychiatry 580 Conclusion 580 References 581 Further reading 582

Electroencephalography (EEG) is part of the modern ­d iscipline of clinical neurophysiology. EEG, the display of ongoing brain electrical activity, has been enriched by the addition of new branches to the EEG tree—for example, event related potentials (ERPs, the study of changes in the  EEG evoked by stimuli or motor responses), qEEG (quantitative EEG, utilizing the fast Fourier transform, to study brain electrical activity in the frequency domain), and magnetoencephalography (MEG, which registers magnetic field changes around the scalp that accompany electrical activity in the brain). When Kiloh and Osselton1 said in 1966 that “the electrical potential recorded in the form of an EEG are an expression of as yet ill-­u nderstood dynamic cerebral processes,” it might have been expected that more than 50 years later some progress would have been achieved in understanding the process of generation of brain electrical potentials. We are still in this position, though in some areas particular progress has been made. One thing to bear in mind is that neurophysiology is not a perfect science; a perfect version would record the activity of single neurons from the whole cranium and be able to handle the data. The addition of the aforementioned newer techniques and co-registration with neuroimaging techniques—such as positron emission tomography (PET), single-photon emission computerized tomography (SPECT), and magnetic resonance imaging (MRI)—have significant potential to delineate distinguishing features of particular mental disorders that may be helpful in the future in prevention of these conditions or more effective treatment. EEG, in its simplest form, involves the recording of brain electrical activity on the scalp. The normal EEG of  humans has been described in terms of frequency

(from low to higher frequency—delta, theta, alpha, beta) and localization, in respect of diurnal variation (wake versus sleep), and in particular disease processes. With mental ­d isorders (e.g.,  schizophrenia, mood disorders, and disorders of p ­ ersonality), the contribution of EEG is not comparable to the contribution it has made in the treatment of conditions such as epilepsy, space occupying lesions, and dementias, particularly in the era before neuroimaging.

HISTORICAL BACKGROUND OF EEG IN FORENSIC PSYCHIATRY EEG has had a role in psychiatry and forensic psychiatry since its inception. EEG studies of patients with particular psychiatric disorders can be useful.2 Stable records or  changes as a result of medication give additional information when incorporated into the clinical record. Neurophysiology has been also been instrumental in crystallizing notions of possible automatic behavior, for example automatisms (see Chapter 74). An automatism is present in an individual who behaves automatically when committing a crime. Conditions such as sleepwalking and epilepsy can potentially give rise to offending when the mind is absent. Intoxication can increase the risk of automatic behavior but is not an allowable defense in some jurisdictions because the act of becoming intoxicated is considered culpable. Fenwick 3 provides an authoritative account of the use of automatism as a defense. In respect to epilepsy, it is necessary to establish that in fact, the patient has ­epilepsy, and serial EEG recordings are a necessary part of this. One of the cases (Patient 9)4 is illustrative of the value of ambulatory recording: records documented frequent nocturnal 577

578 Electroencephalography

seizures  that may have contributed to a confusional state on awakening. The offense in this case occurred when the patient killed his mother by strangulation when she attempted to wake him one morning. Chesterman 5 reports an interesting case that resulted in a “not guilty by reason on insanity” verdict under the Criminal Procedures (Insanity and Unfitness to Plead) Act 1991. The defendant was found to have behaved unusually after drinking at the time of the offense and on a previous occasion. A number of investigations (including an alcohol challenge) confirmed the presence of anterior temporal sharp wave complexes that would support a diagnosis of epilepsy. MRI studies found left temporal lobe atrophy. Levenson, 6 however, advocates a cautious approach in the attribution of violence to ictal phenomena. EEG is also fundamental to the investigation of other automatisms, such as those associated with sleep. EEG investigations of mentally disordered violent offenders have returned various results, usually because of imprecision in the boundary of normality. Hill and Pond7 show a predominance of abnormal EEGs in homicide cases when the crime is motiveless, the murderer is insane, or it is a sex crime. Incidental killings (related to another crime) or crimes for which there was a clear motive were associated with a greater prevalence of normal EEGs. It is also worth noting that another early study of EEG and aggression8 noted that there were more normal EEG records among the group who had committed a solitary act of violence than among those who were habitually aggressive.

MODERN NEUROPHYSIOLOGICAL INVESTIGATION IN FORENSIC PSYCHIATRY Routine clinical investigation of forensic psychiatric patients using EEG methodology is as necessary as neuropsychological investigation and neuroimaging. Much of the value obtained relates to the exclusion of differential diagnostic categories or possible organic pathology.2 When pathology is noted, the consideration of this is fundamental to the care of the patient. Routine EEG recording with hyperventilation and photic stimulation is a good starting point. Further investigation using barbiturate-induced sleep, ambulatory recording, and sleep-deprived fasting records can be ­helpful. The use of alcohol challenge recording has decreased in recent years owing to the unpredictable nature of patients when presented with this challenge and the associated risks. Routine EEG investigation on admission invariably gives rise to a normal EEG. Arguably, many of the anomalous findings reported in this sort of population are normal variants.9 When a frankly abnormal EEG  is noted, consideration of whether this might be a contributory factor in promoting offending should be made. In Figure 87.1, a routine EEG of a patient with schizophrenia on admission reported phase

reversing spike activity focal to the right frontal region. On  further investigation (neuroimaging), a complete cavum septum pellucidum (CSP), a neurodevelopmental abnormality that has been associated with both schizophrenia and epilepsy and is proximal to the focal origin of the EEG abnormality, was noted. CSP is considered to be a “marker” of possible limbic system disturbance or dysfunction.10 These findings support the position that abnormal neural development may have played a significant part in the individual’s offending. EEG techniques, in combination with telemetry, video EEG, and pulse oximetry, can play a significant role in distinguishing between epilepsy and non-organic seizure disorder. Prevalence of non-organic seizures is relatively high among forensic patients, and this type of presentation is seen in both female and male patients. While the norm among this patient group is a mixed presentation consisting of some non-organic seizures and genuine epileptic seizures, distinguishing between these seizures and managing processes that are important in precipitating them are important for effective prescription of anticonvulsant pharmacotherapy. Further usefulness of neurophysiological recording in forensic psychiatry arises through quantitative EEG techniques and event-related potential recording. However, these techniques require considerable technical expertise and scientific support and are not part of routine practice. Arguably, for the full potential of clinical neurophysiology to be realized, they should be more routinely applied, but increased frequency of EEG investigation of an individual patient would come up against the barrier of patient compliance. Neurophysiological expertise can also have a significant impact on psychiatric care in terms of ensuring the delivery of therapeutic seizures in electroconvulsive therapy (ECT) when used as an adjunctive (fourth-line) treatment in special care cases in high-security ­psychiatry. This treatment option was initially proposed by James and colleagues.11 In the literature, qEEG findings support the prevalence of anomalous EEG findings in antisocial personality disorder. Increased prevalence of posterior temporal slow activity (PTSA; see Figure 87.2)12,13 is mirrored in Lindberg and colleagues’14 findings of reduced alpha power and increased theta and delta in homicidal men with antisocial personality disorder. qEEG in drug-free first-episode schizophrenic patients15 also found lower alpha power both in rest and under (10 Hz) photic stimulation. Different techniques in neuroscience offer significant potential for developing useful biomarkers to incorporate into illness models. Hahn and colleagues’16 utilization of functional magnetic resonance imaging (fMRI) data significantly increased the accuracy of classification of depressed patients. Many recent qEEG studies are helping to define the biological markers of severe mental illnesses in the same way.17,18 Comparable qEEG differences have been reported in association with aggression

EEG findings in relation to neuroleptic medication  579

Fp2-F4 F4-C4 C4-P4 P4-O2 Fp1-F3 F3-C3 C3-P3 P3-O1 Fp2-F8 F8-T4 T4-T6 T6-O2 Fp1-F7 F7-T3 T3-T5 T5-O1 X1-OV ECG Eyes closed

Spike & Wave

Figure 87.1  Routine EEG recording of an admitted schizophrenic patient. The EEG shows a paroxysm of spike and wave activity with frontal lobe focus, which supports a clinical diagnosis of epilepsy. The EEG is displayed in a ­bipolar derivation, with right hemisphere activity in red with channels 1–4 showing parasagittal leads and ­c hannels 9–12 showing temporal leads. Left hemisphere (gray) is displayed in channels 5–8 and 13–16; channel 17 is ECG.

and violence.14,19 These studies report increased activity in the theta range (4.34–7.8 Hz) in temporal leads for murderers compared to controls,19 and increased delta (0.8–3.9 Hz) and theta (4.7–7.8 Hz) in occipital leads in a group of homicidal men compared to controls.14 Thus, in statistical terms, it is possible to distinguish between violent offender and normal populations; it is then another matter to determine the reasons for these differences and whether they have any further potential in relation to diagnosis, prevention, or treatment. Event-related potential investigation has led to the potential of Go/No Go contingent negative variation (CNV) differentiation as a biomarker for dangerousness. Initially determined to be inversely related to impulsive psychometric traits,20 CNV differentiation was reported to be predictive of reconviction and violence.21 Localization studies using oxygen-15 PET22 and fMRI23 implicate anterior cingulate cortex in CNV generation. Thus, the use of ERPs to measure the brain’s electrical activity in regions that are putatively electrically silent in clinical EEG opens up further potential. Brain function in

the frontal cortex is likely to be of major significance in the investigation of impulsive violent offending. The significance of early-onset alcohol and drug abuse in the transformation of conduct-disordered adolescents into violent adults has recently acquired new impetus. It may be notable that full-potential cortication may be compromised by toxic levels of alcohol and drugs in adolescence and that CNV registers activation in this sensitive area.

EEG FINDINGS IN RELATION TO NEUROLEPTIC MEDICATION Change in EEG activity following treatment with neuroleptic medication can be an important area to consider. Earlier reports24 were undoubtedly important in honing clinical skills in respect of precipitous changes in medication doses to reduce risk of medication-induced seizures. More recently, the reintroduction of clozapine and the advent of atypical neuroleptics have increased the need for serial EEG investigation in patients on these drugs,

580 Electroencephalography

Fp2-F4 F4-C4 C4-P4 P4-O2 Fp1-F3 F3-C3 C3-P3 P3-O1 Fp2-F8 F8-T4 T4-T6 T6-O2 Fp1-F7 F7-T3 T3-T5 T5-O1 X1-OV ECG Eyes open

Figure 87.2  EEG recording in a patient referred as a result of a number of aggressive incidents in the context of alcohol use. The EEG (same presentation as in Figure 87.1) shows a regular and responsive alpha that attenuates on eye opening (gray cursor). There is a significant excess of slow (theta) activity intermixed with the alpha over posterior temporal ­electrodes (posterior temporal slow activity, PTSA).

because there are significant changes in particular associated with clozapine. 25 A more detailed explanation of the interaction of psychotropic drugs and EEG can be found elsewhere. 26

FUTURE OPPORTUNITIES FOR NEUROPHYSIOLOGY IN FORENSIC PSYCHIATRY Neurophysiology, in common with other neurosciences (neuropsychology, neuro-imaging, genetics, neuropharmacology), has great potential in elucidating the brain processes that facilitate criminal acts. That this potential may be more significant in relation to violence than other crimes (e.g., fraud) is axiomatic. Studies incorporating qEEG measures can help in differentiating subtle differences in psychiatric disorders, which may respond differentially to other treatment regimens. Neurophysiological techniques, for example incorporating training in increasing and decreasing selective slow cortical potentials, may have potential as treatment options for some groups of offenders. Similar techniques

(known as neurofeedback) have been used successfully in treating epilepsy27 and attention-deficit/hyperactivity disorder in children. 28

CONCLUSION While in some corners there may be a perception that the return delivered by EEG in forensic psychiatry, or even general psychiatry, over a 60-year period has been minimal, neurophysiology has maintained its perspective as a form of biological investigation of a range of disorders that increasingly are considered to have a bio-psycho-social basis. Another view might be that neurophysiological investigation for some individuals (see examples in this chapter) has played a crucial role in understanding the circumstances of the offense and contributes fundamentally to the care of that individual patient. As the heritability of a condition such as schizophrenia is considered to be approximately 93%, and as schizophrenia (in particular) is associated with an increased propensity to violence,29 it could be argued that we need all available resources to help untangle the puzzle that presents, in forensic s­ ciences, with an individual with

References 581

a mental disorder and an increased capacity for a range of antisocial behaviors, including violence. EEG is one tool in a rich toolkit of related neurosciences that will likely be deployed in further investigation of particular issues in relation to the prediction of proneness to crime, prevention of crime, and treatment of offenders and offender patients.

REFERENCES 1. Kiloh LG, Osselton JW. Clinical Electroencephalography. 2nd ed. London: Butterworth, 1966. 2. Fenton GW. The straightforward EEG in psychiatric practice. Proceedings of the Royal Society of Medicine. 1974; 67: 911–19. 3. Fenwick PBC. Automatism. In: Principles and Practice of Forensic Psychiatry. Eds. Bluglass R, Bowden P. Edinburgh: Churchill Livingstone, 1990. 4. Wong, MTH, Lumsden J, Fenton GW, Fenwick PBC. Epilepsy and violence in mentally abnormal offenders in a maximum security mental hospital. Journal of Epilepsy. 1994; 7: 253–58. 5. Chesterman P. Pathological intoxication and the criminal procedures (Insanity and Unfitness to Plead) Act (1991). Journal of Psychiatric Case Reports. 1995; 1: 69–77. 6. Levenson JL. Psychiatric issues in neurology, part 3: Epilepsy. Primary Psychiatry. 2008; 15: 21–25. 7. Hill D, Pond DA. Reflections on one hundred capital cases submitted to electroencephalography. Journal of Mental Science. 1952; 98: 23–43. 8. Williams D. Neural factors related to habitual aggression: Consideration of differences between those habitually aggressives and others who have committed crimes of violence. Brain. 1969; 92: 503–20. 9. Fisch BJ. Spehlmann’s EEG Primer. Amsterdam: Elsevier, 1991. 10. Raine A, Lee L, Yang Y, Colletti P. Neurodevelopmental marker for limbic maldevelopment in antisocial personality disorder and psychopathy. British Journal of Psychiatry. 2010; 197: 186–92. 11. James DV, Gray NS. Elective combined electroconvulsive and clozapine therapy. International Clinical Psychopharmacology. 1999; 14: 69–72. 12. Fenton GW, Tennent TG, Fenwick PBC, Rattray N. A study of posterior temporal slow activity in Special Hospital patients. Psychological Medicine. 1974; 4: 181–86. 13. Howard RC. The clinical EEG and personality in mentally abnormal offenders. Psychological Medicine. 1984; 14: 569–80. 14. Lindberg N, Tani P, Virkunnen M, Porkka-Heiskanen, Appelberg B, Naukkarinen H, Salmi T. Quantitative electroencephalographic measures in homicidal men with antisocial personality disorder. Psychiatry Research. 2005; 136: 7–15.

15. Wada Y, Takazawa Y, Kitazawa S, Zheng-Yan J, Yamaguchi N. Quantitative EEG analysis at rest and during photic stimulation in drug-naïve patients with first episode paranoid schizophrenia. European Archives of Psychiatry and Clinical Neurosciences. 1994; 244: 247–51. 16. Hahn T, Marquand AF, Ehlis A-C, Dresler T, KittelSchneider S, Jarczok TA, Lesch K-P, Jakob PM, Mourao-Miranda J, Brammer MJ, Fallgatter AJ. Integrating neurobiological markers of depression. Archives of General Psychiatry. 2011; 68: 361–68. 17. Bolwig TG, Hansen ES, Hansen A, Merkin H, Prichep LS. Toward a better understanding of the pathophysiology of OCD SSRI responders: QEEG source localization. Acta Psychiatrica Scandinavica. 2007; 115: 237–42. 18. John ER, Prichep L, Winterer G, Herrmann WM, diMichele F, Halper J, Bolwig TG, Cancro R. Electrophysiological subtypes of psychotic states. Acta Psychiatrica Scandinavica. 2007; 116: 17–35. 19. Gatzke-Kopp LM, Raine A, Buchsbaum M, LaCasse L. Temporal lobe deficits in murderers. Journal of Neuropsychiatry and Clinical Neuroscience. 2001; 13: 486–91. 20. Howard RC, Fenton GW, Fenwick PBC. Event-Related Potential in Personality and Psychopathology: A Pavlovian Approach. Chicester: Wiley Research Studies Press, 1982. 21. Howard R, Lumsden J. CNV predicts violent outcomes in patients released from special hospital. Criminal Behaviour and Mental Health. 1997; 7: 237–40. 22. Lumsden J, Howard R. The Contingent Negative Variation as a Predictor of Re-offending Behaviour. In: Psychological Perspectives on Serious Criminal Risk. Eds. Curran D, McCarney W. Leicester: British Psychological Society, 1999. 23. Nagai Y, Critchley HD, Featherstone E, Fenwick PBC, Trimble MR, Dolan RJ. Brain activity relating to the contingent negative variation: An fMRI investigation. Neuroimage. 2004; 21: 1231–41. 24. Toone BK, Fenton GW. Epileptic seizures induced by psychotropic drugs. Psychological Medicine. 1977; 7: 271–73. 25. Malow BA, Reese KB, Sato S, Bogard PJ, Malhotra AK, Su TP, Pickar D. Spectrum of EEG abnormalities during clozapine treatment. Electroencephalography and Clinical Neurophysiology. 1994; 91: 205–11. 26. Bauer G, Bauer R. EEG, Drug Effects and Central Nervous System Poisoning. In: Electroencephalography: Basic Principles, Clinical Applications and Related Fields. Eds. Niedermeyer E, Lopes da Silva F. Baltimore: Williams and Wilkins, 1999. 27. Kotchoubey B, Strehl U, Uhlmann C, Holzapfel S, Konig M, Froscher W, Blankenhorn V, Birbaumer N. Modification of slow cortical potentials in patients with refractory epilepsy: A controlled outcome study. Epilepsia. 2001; 42: 406–16.

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28. Strehl U, Leins U, Goth G, Klinger C, Hinterberger T, Birbaumer N. Self-regulation of slow cortical potentials: A new treatment for children with attentiondeficit hyperactivity disorder. Pediatrics. 2006; 118: 1530–40. 29. Swanson JW, Holzer CE, Ganju VK, Jono RT. Violence and psychiatric disorder in the community: Evidence from the Epidemiological Catchment Area surveys. Hospital and Community Psychiatry. 1990; 41: 761–70.

FURTHER READING Schomer DL, Lopes da Silva FH (Eds.). Niedermeyer’s Electroencephalography: Basic Principles, Clinical Applications and Related Fields. Philadelphia: Lippincott Williams and Wilkins, 2011. Boutros N, Galderisi S, Pogarell O, Riggio S. Standard Electroencephalography in Clinical Psychiatry: A Practical Handbook. Wiley Practical Handbooks for Psychiatry Series. Hoboken, NJ: John Wiley & Sons, 2011.

88 Neuroimaging BASANT K. PURI X-ray CT 583 MRI 583 583 T1- and T2-weighted imaging 583 Receiver coils

Safety 584 FLAIR 585 References 585

This chapter examines the two most important types of structural neuroimaging used in clinical assessment: computed tomography (CT) and magnetic resonance imaging (MRI). The results of some research studies utilizing neuroimaging techniques are described in Chapter 3 (Structural neuroimaging), Chapter 4 (fMRI and PET), and Chapter 5 (Neurospectroscopy).

MRI

X-RAY CT X-ray CT, previously known as computed axial tomography (CAT), is a digital form of structural neuroimaging that utilizes x-ray attenuation in conjunction with a tomographic technique that separates out axial or transverse images. Because magnetic resonance imaging (MRI) does not involve the use of ionizing radiation and allows high-resolution structural imaging, it is gradually replacing CT. MRI investigations are also usually noninvasive, unless a contrast agent is used (as is recommended when, for example, detailed imaging of the pituitary gland is required in cases in which a pituitary tumor is suspected). Some have expressed concern that the gadolinium used in such MRI contrast media may present a toxic burden to the body. Most MRI scans of the brain do not involve the use of a contrast medium, however. Another reason why CT might be preferred over MRI is in cases in which MRI is contraindicated, for example if the patient has a non–MRI-compatible artificial cardiac pacemaker (see the discussion later in this chapter). There is still controversy in the area of acute stroke imaging (in which the use of an intravenous contrast agent is usually needed for MRI scanning) as to whether CT or MRI is better. The two are compared in Table 88.1.1

T1- and T2-weighted imaging T1 is the longitudinal time constant and indexes the rate at which the longitudinal magnetization returns to its maximum value following a radiofrequency pulse. The value of T1 varies with the magnetic field strength. At a given field strength, the T1 is longer for cerebrospinal fluid (CSF) than for gray matter, and in turn longer for gray matter than for white matter. It is particularly short for fat. (With its higher concentration of myelinated sheaths, white matter clearly has a higher density of fat than does gray matter.) T2 is the transverse time constant and indexes the rate at which the transverse magnetization decays to its minimum value (that is, 0) following a radiofrequency pulse. In MRI scans of the brain, if scanning sequence parameters are chosen selectively to emphasize T1 characteristics (T1-weighted scans), white matter has a higher signal intensity (that is, it appears “whiter”) than gray matter, which in turn has a higher signal intensity than CSF. In a T2-weighted MRI scan, CSF has a higher signal intensity than gray matter or white matter, and such scans are also good for imaging cerebral edema (which also has a high signal intensity). These differences are shown in Figure 88.1, which also shows how an intravenous contrast agent (in this case, based on gadolinium) may enhance the imaging of some cerebral tumors.

Receiver coils Special receiver coils are becoming available that allow “parallel imaging” to be performed. These involve multiple imaging coils that record imaging data simultaneously using techniques such as SENSE (sensitivity encoding 583

584 Neuroimaging

Table 88.1  Comparison of CT and MRI in acute stroke imaging. CT

MRI

Availablity

Widely available

Scan duration Cost

Short Low (standard non-contrast); high (CTA/CTP) Yes Requires iodinated contrast for CT angiogram and perfusion Poor Poor (bony artefact) Limited Renal insufficiency (iodinated contrast)

Radiation Contrast type Sensitivity to early ischemia Posterior fossa visualisation Brain coverage (CT perfusion) Contraindications

Limited availability in most centres (especially for emergency use) Potentially longer Very high No Gadolinium is water-soluble (risk of nephrogenic systemic fibrosis with renal insufficiency) High Good Whole brain Severe renal insufficiency (gadolinium-based contrast); ferromagnetic material, e.g., pacemaker, aneurysm clips; claustrophobia; medical instability

Note: CTA, computed tomography angiography; CTP, computed tomography perfusion. Source: From Hsia AW. 10 questions about acute stroke imaging: CT versus MRI—”The Controversy.” Neurologist. 2009; 15(2): 105–7.

(a)

(b)

Gd Contrast (c)

Figure 88.1  (a) Sagittal T1-weighted MRI scan of the brain. (b) Sagittal T2-weighted MRI scan of the brain. (c) A positive contrast agent (Gd-DTPA) emphasizes the cerebral neoplasm by increasing the T1 effect. (Reproduced from Dowsett DJ, Kenny PA, Johnston RE. The Physics of Diagnostic Imaging. 2nd ed. London: Hodder Arnold, 2006.)

the Earth’s magnetic field. For example, while the strength of the latter, at the surface of the Earth, is approximately 30–60 μT, a field strength of 3 T inside the bore of a modern 3-tesla MRI scanner is 50,000–100,000 times stronger. The strength of the magnetic field falls with increasing distance from the main MRI magnet. Special magnetic shielding is also placed around the scanner. A warning contour, usually in yellow and black, is fixed to the floor around the scanner at a distance that corresponds to a field strength of 500 μT. This corresponds to a field strength of 5 G using the previous unit of magnetic field strength (flux density) of the gauss (1 gauss, 1 G = one ten-thousandth of a tesla; that is, 1 T = 10,000 G). Therefore, this contour is often still referred to as the “5-gauss line.” It can be very dangerous to bring freely mobile ferromagnetic materials within the 5-gauss line. Even a small piece of metal, such as a paper clip or a pen containing ferromagnetic components, can turn into an extremely dangerous, and potentially even lethal, object if it is brought within this contour. There is a strong attraction to the bore of the magnet, and such an object can fly into this part of the scanner, all the time accelerating while approaching the scanner so that its momentum increases correspondingly. If a person happens to be lying in the scanner at the time, this can clearly be very dangerous. In terms of the safety of individuals being considered for scanning, exclusions include the presence of any of the following:

for MRI) and SMASH (simultaneous acquisition of spatial harmonics) so that the image acquisition time is shortened. There are also advantages from parallel imaging in terms of reducing certain types of MRI artefacts.

●●

Safety

●●

The magnetic field strengths typically used during in vivo human scanning are very high compared with the strength of

●● ●●

●●

●●

Cardiac pacemaker Mechanical heart valve History of a foreign body in the eye (unless it is established that this is not going to be a danger, for example following a careful orbital x-ray workup) Occupation as a metal worker, grinder, or welder Metallic implant, metal prosthesis, orthopedic plates, screws Shrapnel

References 585

●● ●● ●● ●● ●● ●● ●● ●● ●● ●● ●● ●●

Aneurysm clip/hematostatic clip Ear implant Artificial eye Colored contact lens Interventional radiological device Pregnancy Intrauterine contraceptive device Implantable pumps or neurostimulators Allergies, if the subject is to receive a contrast agent A watch Any jewelry Anything in the patient’s pockets (such as keys, etc.).

In general, it is safest if patients do not wear makeup while in a scanner. At a high field strength (3 T or greater), tattoos may also pose a danger. Claustrophobic feelings inside the scanner are a relative contraindication. Some subjects are able to continue after verbal reassurance. Others can do so if a second person (who should also be carefully metal-checked first) is present; this second person might sit by the subject (on a nonmetallic chair) and perhaps gently hold on to a covered part of one of the subject’s lower limbs during the scan.

FLAIR FLAIR stands for fluid-attenuated inversion recovery and refers to a particular type of MRI sequence that produces a strong T2-weighting, suppresses the signal from CSF, and minimizes the contrast between gray matter and white matter, thereby producing images with significantly increased lesion-to-background CSF contrast and enhancing the visibility of lesions as well as their detectability, particularly in the peripheral subcortical and periventricular regions.2

Figure 88.2  Middle cerebral artery infarct. Non-dominant hemisphere FLAIR MRI scan showing a hyperintense infarct. (Reproduced from Graham DI, Nicoll JAR, Bone I. Adams & Graham’s Introduction to Neuropathology. 3rd ed. London: Hodder Arnold, 2006.)

Figure 88.2 is a FLAIR MRI scan showing a hyperintense middle cerebral artery infarct.

REFERENCES 1. Hsia AW. 10 questions about acute stroke imaging: CT versus MRI—”The Controversy.” Neurologist. 2009; 15(2): 105–7. 2. Kates R, Atkinson D, et al. Fluid-attenuated inversion recovery (FLAIR): Clinical prospectus of current and future applications. Topics in Magnetic Resonance Imaging. 1996; 8(6): 389–96.

89 Risk assessment: An overview IAN H. TREASADEN Violence, dangerousness, and risk Risk assessment background Ethics of risk assessment Violence and mental illness Risk assessment Clinical or practical risk assessment

587 587 587 588 589 590

Standardized structured risk assessment instruments 590 Risk assessment of suicide 593 Risk management 594 Conclusion 594 References 595

VIOLENCE, DANGEROUSNESS, AND RISK

RISK ASSESSMENT BACKGROUND

Violence is action, while dangerousness is a potential and a matter of opinion. The term risk is now used in professional practice in preference to dangerousness. Risk is, ideally, a matter of statistical fact. It emphasizes a continuum of levels of risk, varying not only with the individual but also with the context. Risk may change over time and, in principle, should be based on objective assessment. Dangerousness tends to imply an all-or-none phenomenon and a static characteristic of an individual. However, risk assessment is less important than risk management, though risk management does not imply risk elimination (as shown by the Global Financial Meltdown of 2008, which brought the question of the validity and reliability of scientific risk management into focus). Risk assessed as low, medium, high, or very high is often arbitrary. The meaning of risk can include:

Risk assessment developed from observations on released prisoners, empirical associations with reconviction, and its extension to forensic psychiatric patients. The Ritchie Report (1994)1 of the inquiry into the care and treatment of Christopher Clunis, who “avoidably” killed Jonathan Zito, identified failures in risk assessment and risk management, and inadequacies in communication and service provision. Christopher Clunis was given 20 different clinical diagnoses, was placed in approximately 20 different accommodations, and was seen by approximately 35 different professionals in the period prior to the offense. In response to increasing public concern that something needed to be done to improve the management of the group, albeit few in number, who are deemed at serious risk to others (e.g., predatory pedophiles), legislation was introduced in the United Kingdom to improve the risk management of such individuals. This included the Sex Offenders Act 1997, the Crime Sentences Act 1997, the Criminal Justice and Court Services Act 2000, Multi-Agency Public Protection Panels (MAPPS) 2001, and the Mental Health Act 2007.

●●

●●

●●

●●

Likelihood of offending: Risk measures are often over periods of 20 years. Immediacy of offending: Risk instruments say nothing about this. Frequency of offending: Sadistic murderers rarely kill again. Consequences of offending: Exhibitionists are at high risk of reoffending until apprehended but such offending has relatively low consequences.

For example, what does an 80% chance of offending mean? Is it 8 out of 10 individuals like this man will offend, or, given the same circumstances, this man will offend 8 out of 10 times? Is 80% merely a measure of subjective belief?

ETHICS OF RISK ASSESSMENT Ethical issues in risk assessment include whether it can be done adequately and, if so, whether it should be medically undertaken if no ameliorating treatment is available and its conclusions merely result in an increase the length of a custodial sentence of those deemed at serious risk. Risk assessment can also be stigmatizing. Other questions include whether it should be undertaken on every psychiatric patient or at least every forensic psychiatric patient seen. 587

588  Risk assessment

For psychiatry, key issues are what the risk is and whether it can be modified. However, evaluating whether residual risk is acceptable may be a political matter for society, mental health tribunals, and potential victims.

VIOLENCE AND MENTAL ILLNESS There is, in fact, no evidence of increasing rates on a sustained basis over time of homicide by the mentally ill in the United Kingdom (see Chapter 31, Homicide), in spite of this being the media and public’s perception, which, in turn, probably reflects only increasing awareness. Such homicides by the mentally ill (less than 50 per year in England and Wales) have a negligible effect, like terrorism (1 dead in the UK in 2016) on public safety compared to other factors, such as accidental deaths (17,000 per year), road traffic accidents (1,570 deaths per year) and drowning (200 cases per year). One cannot always expect a rational response to risk by the public in the presence of strong emotions such as fear, anger and sadness, generated by individual cases. In the past, factors associated with violence were said to be the same whether the offender was mentally ill or not, for example, personality disorder, impulsivity, anger, violent family background, and substance abuse. However, since 1992, studies have shown that having a diagnosis of mental illness is weakly associated with violence due to a subgroup with specific types of symptoms such as paranoid (persecutory) delusions (false beliefs) and delusions of passivity (being under external control). Thus certain symptoms, and not a particular psychiatric diagnosis alone, are associated with violence. Nevertheless, the risk of violence is still better predicted by being a young male than by a diagnosis of schizophrenia. 2 Psychiatrists are, in fact, better than chance or laypeople in predicting violence and better still at assessing situations where there is no risk. However, they tend to underestimate the risk of violence in females.3 Professionals also underestimate the high background base rates of violence in the community in general, for example, up to 40% of males may have been seriously violent by the age of 32 years.4 The majority of violence never results in criminal charges. This also applies to inpatients who are violent, where formal law involvement may be seen as serving little profitable purpose if the patient is to remain in the hospital. Among individuals with mental illness, affective disorders are under-represented in forensic psychiatric facilities. Violence is, however, increased in those with schizophrenia, especially those who have drifted out of treatment, and in young males with acute schizophrenia compared to those with chronic schizophrenia. Violence may directly arise from positive symptoms of mental illness, such as delusions (false beliefs) and hallucinations (e.g., voices, visions, etc.). Mental illness, especially schizophrenia, may, however, indirectly lead to violence through associated deterioration in social functioning and personality, so that such individuals become more antisocial and impulsive

with a lower tolerance to stress. This sometimes leads to disputes in court about the disposal to hospital or prison of such individuals with few or no positive psychotic symptoms, with such individuals being sometimes wrongly given an additional diagnosis of personality disorder to explain their violence. A mentally ill individual may also behave violently for “normal” emotional reasons, such as fear and anger, and at the same time, due to mental illness, experience accompanying corresponding psychotic symptoms, such as hallucinations of aggressive content. This does not mean such psychotic symptoms primarily cause the violence. Violence, law involvement, and imprisonment may themselves precipitate mental illness. For a mentally ill individual a key issue is whether the individual has a delusion of a content on which he might dangerously act (e.g., of persecution or infidelity), but, even then, not all morbidly jealous individuals, for example, assault their spouse. Twenty percent of people presenting to a hospital with their first episode of schizophrenia have threatened the lives of others, but among these half have already been ill for 1 year.5 Overall, however, it is unusual for a person with schizophrenia to present for the first time with serious violence. One established period of higher risk is within a few months of discharge from the hospital.6 Those with both schizophrenia and substance abuse have higher rates of violence than those with substance abuse alone, who, in turn, have higher rates than those with schizophrenia alone.2 Where countries have high homicide rates, such as the United States, it is usually due to high numbers of non–­ mentally ill offenders, their violence being related to criminal activities, drug dealing, and cultural and economic factors, and these countries thus have a lower proportion of mentally ill homicide offenders. Rates of mentally ill homicide offenders may be fairly constant across countries. Research has shown, but not universally,7 a consistent association between violence (but not serious sexual offending8) and delusions, particularly of threat/control override content such as, persecutory delusions, passivity delusions, and thought insertion.9 Such delusions, when present, may double the risk of violence, but still most people with such symptoms will not be violent. These findings are in keeping with the social psychology theory that violence in general is associated with an individual feeling threatened or losing control of his situation. Based particularly on the work of Steadman and Monahan’s group10 in the United States (The McArthur Foundation Violence Risk Assessment Study), in 1996 the Royal College of Psychiatrists11 in their booklet on “Assessment and Clinical Management of Risk of Harm to Other People” detailed warning signs that professionals should be aware of. These are:●● ●● ●● ●●

Beliefs of persecution, or control by external forces Previous violence or suicide attempts Social restlessness Poor compliance with medication or treatment

Risk assessment  589

●● ●● ●●

Substance abuse Hostility, suspiciousness, anger Threats.

Steadman and colleagues12 have developed a computer algorithm for risk assessment of violence (not homicide) (the Monahan-Steadman iterative classification tree). Psychiatric patients tend to peak for violent offending at a later age than the general population. It is important to be aware that the oft quoted “best predictor of future behaviour is past behaviour” (after Kvaraceus, 195413) is based on non-psychiatric populations and, in any case, accounts for only 5% of the variance. A history of previous violence is, of course, required for this to be relevant in any case. Among the severely (psychotic) mentally ill, delusions of threat/ control override are better predictors of violence than past behavior. Among all individuals, including the mentally ill, a history of expressed threats (as opposed to generalized anger), substance abuse, and a history of personal deprivation and/or abuse are all associated with violence. Lawbreaking behavior in general and violence in particular usually decrease when the basic needs of an individual are met. For example, an individual with schizophrenia who is violent often has a characteristic history of not only noncompliance with medication leading to relapse of his mental illness, but also of his being in a situation of social isolation and poor home conditions. Some individuals may even offend to remove themselves from their situation in the community to the security of a prison or hospital. The risk of self-harm or suicide is greater for those with schizophrenia, even if they have previously behaved seriously violently or killed in the past, than the future risk of homicide or serious harm to others. Compulsory admission under the Mental Health Act for reasons of a patient’s health is clearly better than at a later time for the protection of others as a last resort after someone has been hurt. In summary, the existing evidence suggests there is a link between mental illness and violence. Mental illness is a risk factor, but not a large one, and the risk is increased by substance abuse. Chapter 20 considers in detail the relationship between psychosis and violence.

RISK ASSESSMENT Risk assessment can only be a probability assessment. Dangerous behavior is rare and sporadic, so most of our worries about individuals never materialize. This can lull professionals into a false sense of security and to underestimate the risk. Risk assessment can be difficult, for example, predicting how an individual in conditions of security will behave outside such conditions with the availability of alcohol and illicit drugs and potential victims, or predicting intrafamilial violence among those with personality disorder.

When undertaking a risk assessment, it is necessary to look at factors not only in the individual, but also in his victim or potential victims and in the environment, including the security of interview rooms and safety of procedures for assessing an individual in the community. Remember offense = offender × victim × environment. Dangerousness is often associated with repetition, failure to respond to the countermeasures of society, unpredictability, and untreatability. The truly dangerous are by definition unpredictable. Those labeled at risk of serious harm to others include those previously convicted of dangerous offenses, those who use firearms and other weapons, and, by definition, those subject to restrictions to protect the public from serious harm, such as under Section 41 of the Mental Health Act 1983 of England and Wales, and those in High Secure hospitals. A legal offense category may not reflect the current risk. Short-term prediction is better than long-term prediction, and the risk of serious harm itself is often long-term and not obvious on short-term follow-up. False positive assessments of risk are made more often than false negative ones. Professionals tend to err on the side of caution but may be reluctant to take on individuals considered at serious risk of harming others due to negative countertransference feelings, such as those related to shock at past offenses or from fear of being held professionally responsible for the individual’s actions, and feeling overwhelmed by this. This, in turn, can lead to overestimating risks and inappropriate precipitate actions to cover oneself and displace responsibility onto others. The courts, however, expect professionals to give an opinion on dangerousness. On occasion, professionals inappropriately try to “rescue” dangerous untreatable individuals who they feel have been badly managed by others. Professionals must guard against overidentifying with the individual, denying what they do not wish to hear, and not acting on threats and behavior giving rise to concern, especially among those in the community who, if they had been inpatients and behaved in such a fashion, would cause great concern. Professionals must ask directly what thoughts, fantasies, impulses, and/or plans to be violent an individual has, such as of homicide, in a manner they would directly ask in a suicide assessment. Risk factors include dispositional factors, such as demographic factors; historical factors, including past violence; constitutional factors, environmental factors, including stress and social support; and clinical factors, including diagnoses, symptoms, and substance abuse. A summary of variables often sought in risk assessment include: ●●

●●

Demographics, for example, previous violence, age, sex. Such variables can be easily documented. Among the mentally ill, age under 35 and also male predominance are less predictive. Risk in females is underrated.3 The relationship of violence, if any, to when one is mentally unwell is of importance. Environmental factors. These are harder to document and include family support, poor social network, lack

590  Risk assessment

●● ●●

●● ●●

●● ●● ●●

●● ●●

of intimate relationships, unemployment, poverty, and homelessness. Availability of weapons. Substance abuse. Alcohol and cannabis are most common. Current context. Recent major life events, such as loss. Dispositional factors, for example, impulsivity, irritability, suspiciousness. Interests, such as cruelty, fantasies, weapons. Social functioning. Attitudes, such as to violence and previous and future victims. Poor engagement and compliance with services. Mental state, such as feelings, emotions, thinking, perception, behavior. Violence is associated with fear, anger, humiliation, and jealousy. Note should be made of tension; depression; paranoid ideas; delusions; hallucinations, including command hallucinations; clouding of consciousness and confusion; and anger and threats. Data on command hallucinations are equivocal in terms of risk prediction, but more positive for threat/control override delusional symptoms,9 such as paranoid delusions and delusions of passivity.

Table  89.1 summarizes established risk factors for violence. Risk may change rapidly over time. If risk is identified, then it must be managed and a risk management plan documented. However, concern may arise before a n ­ oncooperative patient is detainable under the Mental Health Act. Interventions may also temporarily increase the risk, such as following detention in hospital or enforced medication treatment. Whatever is done may not remove the entire risk. There is also the question of how many false positives of those deemed at risk are acceptable compared, for instance, to the price of one homicide. Serious harm often follows a sequence of decisions by professionals rather than one major error of ­judgment. There is also not much relationship between inpatient and outpatient violence.

Clinical or practical risk assessment Risk assessment requires information gathering, including by a full history from the subject, examination of past reports and records, and/or statements when available in Crown Court criminal cases, and from informants, including arresting police officers. As a minimum, a risk assessment and management plan should include the following: ●● ●●

●●

●● ●●

Ask about history of violence. Request previous summaries of inpatient care, and past psychiatric and probation reports. Document the above and otherwise keep and use proper records. Make plans to manage the risk and document this. Be particularly cautious in cases where treatment is refused, reduced, or being withheld.

Table 89.1  Risk factors for violence Demographic factors • Male • Young age • Socially disadvantaged neighbourhoods • Lack of social support • Employment problems • Criminal peer group Background history • Childhood maltreatment • History of violence • First violent at young age • History of childhood conduct disorder • History of non-violent criminality Clinical history • Psychopathy • Substance abuse • Personality disorder • Schizophrenia • Executive dysfunction • Non-compliance with treatment Psychological and psychosocial factors • Anger • Impulsivity • Suspiciousness • Morbid jealousy • Criminal/violent attitudes • Command hallucinations • Lack of insight Current ‘context’ • Threats of violence • Interpersonal discord/instability • Availability of weapons Source: National Mental Health Risk Management Programme (2007). Best Practice in Managing Risk. DoH: London. Appendix 2.

In Chapter 83 on clinical assessment, Table 83.3 shows factors to be considered in a clinical risk assessment with special reference to an offender. Clinical risk assessment is, however, unstructured, is usually biased by a few factors, is subject to subjective bias, is sometimes based on the last case seen that went wrong, shows poor consistency, is difficult to quantify, and is inductive, that is, based on previous cases. There is no evidence that countertransference is predictive.

Standardized structured risk assessment instruments Increasingly, clinical or practical risk assessment, involving consideration of the history, mental state, and environment, is being supplemented by standardized actuarial and/or

Risk assessment  591

dynamic risk assessment instruments, the latter alone often being insufficient. Thus, risk assessment = clinical assessment + standardized instrument assessment. Structured risk assessments can be used merely as aide mémoires and reference points rather than being numerically scored. The lack of standardized assessments may be one factor in the excess of females and those of AfroCaribbean origin in High Secure hospitals. Structured risk assessments are more useful at high levels of risk and less useful in predicting isolated dangerous acts such as homicide. They are also better at prediction in those with personality disorders rather than in psychoses, and better at predicting sex offending. Reliability is better with static rather than dynamic variables and hence less helpful in deciding on discharge. Some structured assessments may, however, record risk factors that are otherwise explainable clinically, such as lack of emotional expression resulting from antipsychotic medication treatment. ACTUARIAL RISK ASSESSMENT INSTRUMENTS

Actuarial Risk Assessment (ARA) instruments developed from the insurance industry and tend to measure static factors. An example for violence includes the 12 item Violence Risk Appraisal Guide (VRAG).14,15 The 12 items of VRAG are: ●● ●● ●● ●● ●● ●● ●● ●●

PCL-R score Problems at junior school Personality disorder Alcohol abuse Separation from parents before age 16 Failure of previous conditional release History of non-violent offending Never married

The above seventh items positively and following four items negatively correlate with the risk of violence: ●● ●● ●● ●●

Schizophrenia Extent of victimization Age Female

The assessment covers nine categories with a probability of violence over a 7-year time frame. For sex offenders, ARAs include, from the work of Hanson and Thornton,16,17 Static 99 and the Risk Matrix 2000. Police have used the Risk Matrix 2000 as a screen for cases referred to the Multi-Agency Public Protection Panels (MAPPAS). Risk factors in this instrument include being male, age group, and number of times in court for violent or sexual offenses. The risk identified, however, is over a prolonged period. Actuarial risk assessment instruments are objective, unbiased, and deductive. While good at identifying low risk, they tend to over-judge high-risk cases. Problems with actuarial risk assessment instruments include that first-time offenders score low; they are poor predictors of young and female offenders; they are blind

to current circumstances, such as a pedophile married to a female with children; and provide a lifetime rather than an immediate assessment of risk. They generally result in only a numerical value of risk and provide no information as to the cause of the current risk. DYNAMIC RISK ASSESSMENT INSTRUMENTS: STRUCTURED PROFESSIONAL JUDGMENT (SPJ) OR STRUCTURED CLINICAL ASSESSMENTS (SEA) INSTRUMENTS

Dynamic risk assessment instruments not only look at dynamic factors but frequently look at actuarial factors as well. The Historical-Clinical-Risk Management 20-Item instrument (HCR-2018) includes 10 historical factors, 5 present clinical factors, and 5 risk management factors. These are listed in Table 89.2. This instrument can be used as an inquiry guide or prompt rather than a numerical rating. Clinical (C) factors reflect current risk and are best to concentrate on if time precludes completing the full 20 items. In some countries the use of HCR-20 has become mandatory for particular groups of serious offenders. Apart from assisting in a formulation of risk, a second stage in using HCR-20 is the development of feared risk scenarios and their management. This approach originated from military planning exercises (“war games”). Factors that increase risk are identified, as are protective factors. Interventions and their priority are developed to manage Table 89.2  The 20 Items of the HCR-20 (Webster et al., 1997) Historical items H1: Previous violence H2: Young age at first violent incident H3: Relationship instability H4: Employment problems H5: Substance abuse problems H6: Major mental illness H7: Psychopathy H8: Early maladjustment H9: Personality disorder H10: Prior supervision failure Clinical items C1: Lack of insight C2: Negative attitudes C3: Active symptoms of major mental illness C4: Impulsivity C5: Unresponsive to treatment Risk management items R1: Plans lack feasibility R2: Exposure to destabilisers R3: Lack of personal support R4: Non-compliance with remediation attempts R5: Stress Note: The best validity is for items H2, 5, 8, 10; C2, 4; and R2 and 4.

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the risk. However, such scenario planning lacks established validity compared to the scoring of the 20  items. Increased levels of psychopathy also reduce the HCR-20 predictiveness. Hare’s Psychopathy Checklist—Revised (PCL-R)19 has two main components: (1) emotional/interpersonal traits (Factor  1), such as callousness, selfishness, and remorseless use of others, which are mainly static traits and (2) social deviance (Factor 2), that is, chronically unstable and antisocial lifestyle, which has some dynamic elements and may vary between countries, e.g. high scores in the USA compared to Scotland. It involves a structured interview and an expert rating form. It is for use in those age 18 or older. Items are scored on a 3-point scale. Scores range from 0–40. Only one-third of those with antisocial personality disorder reach the scale’s criteria for psychopathy (a score of greater than 30). Some argue such tools are superior to clinical risk assessment in those with personality disorder, while the reverse may be the case for those who are mentally ill. Candidates for the now ceased Dangerous Severe Personality Disorder (DSPD) Units program in England were defined as having more than a 50% risk of committing a serious offense due to a severe personality disorder, and the PCL-R was usually used preadmission, including to establish the risk. The PCL-R has been supplemented by a 12-item screening version (PCL-SV).20 Scores on this range from 0–24 and have been found to have good predictive validity for violence, when above a cut off score of 18. A revision to the PCL-R, the PCL-RTM: 2nd Edition, 21 with a 20-item symptom-construct rating scale with a Quickscore form to record and profile results, subdivides Factor 1 and Factor 2 each into two valid subscales. Factor 1 has been divided into Factor 1a Interpersonal (4 items) and Factor 1b Affective (4 items). Factor 2 is divided into Factor 2a Impulsive Lifestyle (5 items) and Factor 2b Antisocial Behaviour (5 items). The Violence Risk Scale–2nd Edition (VRS-2) was developed by Wong and Gordon.22 It has been found to be particularly useful in the assessment of sex offenders and can measure change. It includes 6 static variables, including age and age at first conviction, and 20 dynamic variables, including violent lifestyle, criminal personality, mental disorder, substance abuse, community relationships, community supervision, release to a high-risk situation, and anger and violence. Other dynamic risk assessment instruments include the Sexual Violence Risk (SVR-20) Scale, 23 the Spousal Assault Risk Assessment Guide (SARA), 24 and the Sex Offender Risk Appraisal Guide (SORAG), 25 a variation on the Violence Risk Appraisal Guide (VRAG). The Structured Risk Assessment (SRA) framework developed by Thornton16 for sex offenders now uses both the Risk Matrix 2000, based on static actuarial factors, as well as dynamic risk factors. Dynamic risk assessment tools that also look at protective factors include the Short Term Assessment of Risk and Treatability (START). This has 20 items covering 7 clinical

domains (violence to others, suicide, self-harm, self-neglect, unauthorized absence, substance abuse, and victimization). The Structured Assessment of Protective Factors for Violence Risk (SAPROF) was designed to be used with dynamic risk assessments such as HCR-20. A summary of risk assessment tools is shown in Table  89.3. Risk assessment of violence over the short term is considered in detail in Chapter 90. Actuarial variables should not override clinical variables as the latter are more likely to determine when and how an individual may behave dangerously. Uncertainty in risk assessment is due to the many variables involved, randomness, and the effects of human interaction and intervention. Dynamic variables are by definition subject to change and may be subject to interaction with other factors such as other people, which actuarial risk assessments are generally less helpful in predicting. The situation is comparable to weather forecasting, which may be accurate in the short term and also in broad terms in the longer term, such as winter compared to summer, but not specific enough to indicate where it might rain in a few days’ time. Standardized structured risk assessment instruments may provide evidence for getting people institutionalized but are less useful in getting them out of institutions. Other problems in risk assessment include: ●●

●●

●●

●●

The low base rate problem. For example, a rate of less than 1% for serious violence makes it difficult to predict such a rare event. Risk valuation following risk assessment estimation. For example, what action is warranted by a particular risk of violence? What is an acceptable false positive rate, such as for detaining patients? a parallel here may be the guidance given in Health and Safety legislation for setting standards for managing risk to be “as practical as possible”. The quality of a professional’s relationship and engagement with a patient determines the accuracy of a risk assessment, but the required consequential action, admission to secure forensic psychiatric facilities, often depends on bed availability. However, mental state examination by a professional may be of little use in assessing the risk of sex offending. Assessment scales have not always been developed in populations to which they are applied, for example, scales developed for non-psychiatric prison populations used for psychiatric cases.

Risk assessment allows for a longitudinal formulation of the individual and an assessment as to whether any risk is unconditional or conditional on particular factors, and whether these factors are amenable to change. The aim should be to produce a person-specific biography of the individual, allowing him to tell his own story, and then to negotiate a plan of action with that individual and other parties. Risk assessment for violence has many parallels with suicide risk assessment.

Risk assessment  593

Table 89.3  Risk assessment tools 1. Risk assessment of violence (a) Structured clinical • HCR-20 (Historic-clinical-risk management 20 item instrument): 20 fields combining static and dynamic risk factors. Supports development of risk management plan • Violence Risk Scale (VRS): strong dynamic element. Supports measurement of change and formulation of treatment plans • Offender Assessment System (OASys): Used by UK National Offender Management Service, e.g., Probation officers • Risk Assessment Guidance Framework (RAGF) • Risk Assessment, Management and Audit Systems (RAMAS) • Short-Term Assessment of Risk and Treatability (START): Seven risk-related domains. Informs decision-making regarding risk to self as well as to others (b) Actuarial • Violence Risk Appraisal Guide (VRAG) • Offender Group Reconviction Scale (OGRS): Used by National Offender Management Service • Risk of Reconviction (ROR) Score • Reconviction Prediction Score (RPS) 2. Hare’s Psychopathic Checklist-Revised: PCL-R and PCL-SV Measures presence and level of psychopathy. Proven predictor of risk of violence. Short-version (SV) can be used in nonforensic populations 3. Risk matrix 2000 (Previously Structured Anchored Clinical Judgement (SACJ)) Actuarial. Categorises sexual and violent offenders from low to very high risk 4.Spousal Assault Risk Assessment (SARA) Structured clinical assessment of spousal abuse 5. Sexual offending (a) Structured clinical • Structured Assessment of Risk and Need (SARN): Dynamic tool for working with sex offenders. Useful in developing treatment plans and measuring change • Risk of Sexual Violence Protocol (RSV) (previously SVR-20) (b) Actuarial • Static 99: Actuarial tool for measuring risk in sex offenders • Sex Offending Risk Appraisal Guide (SORAG) • Rapid Risk Assessment of Sex Offender (RRSOR) • Sex Offender Need Assessment Rating (SONAR)

Risk assessment of suicide The risk of suicide among psychiatric out- and inpatients referred to forensic psychiatrists is significantly higher than the risk for subsequent serious violence to others. Remember that the lifetime risk of suicide in schizophrenia is 4%–10% and in affective disorders is 10%–15%. Prisoners have a nine times higher suicide rate than the general population. The risk is higher in the first two months of being in custody, especially among the young on remand, who may not be formally mentally ill. History of substance abuse and violent offending also increase the risk, as may bullying, isolation and anxiety about future court proceedings.

More than 90% of suicide victims or attempters overall, however, have an Axis 1 (mainly untreated) mental disorder, most frequently a major depressive episode, substance abuse, and schizophrenia. Factors associated with high risk include previous suicide attempt, current suicidal thoughts, comorbid personality disorder, and a family history of suicide. The risk becomes very high if combined with the demographic of being male, and with psychosocial factors, which are low risk in themselves, including adverse childhood experiences, personal adverse life situations, and acute psychosocial stressors. Risk research tends to concentrate on identifying epidemiological statistical predictive associations, e.g. for suicide, which may help little clinically in individual cases, and does not identify with the individual

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cause or factors in self-harm and suicide. Risk scales such as Beck’s Hopelessness Scale and Suicide Intent Scale (SIS) are also of limited clinical usefulness in assessing individual risk of suicide.

RISK MANAGEMENT Once a risk assessment is made, it is essential to develop and document a risk management plan. In the community careful supervision by well-briefed professionals is required, and it is important to not ignore threats and to avoid provoking violence by appearing to precipitously reject requests for help. For an individual who has dangerously offended, a Mental Health Act 1983 Section 41 restriction order may need to be recommended to a Crown Court judge for him to add this to a Section  37 hospital order to “protect the public from serious harm” and to facilitate long-term psychiatric management, including in the community, particularly regarding compliance with psychiatric treatment there but also by specifying a suitable place of residence, with a power to recall to hospital. High Secure hospital placement may be required if an individual suffers from a mental disorder and is a “grave and immediate danger” to others, especially if also at risk of determined absconding. A medium secure unit may be indicated if a mentally disordered individual needs conditions of security less than that of a High Secure hospital, but more than an ordinary locked intensive care or local secure unit. Inquiries into homicides by psychiatric patients, the National Confidential Inquiry into Suicide and Homicide by People with Mental Illness, undertaken by the University of Manchester in England, and the Government responses to inquiry findings are discussed in Chapters 31 and 32. There may be further lessons yet to learn from the airline industry, where risk is high and safety paramount, which emphasizes system failure rather than individual blame. One apparent response by clinicians to such inquiries has been to increase the rates of detention under the Mental Health Act 1983, which has been most pronounced for civil Section 3 treatment orders for inpatient psychiatric treatment and for mental illness. While there has been no significant change in the number of Section  37 hospital orders for mentally disordered offenders, there has been an increase in Section 41 restriction orders imposed by the Crown Court to “protect the public from serious harm” which requires Ministry of Justice approval for leave, transfer, or discharge with conditions, including compliance with psychiatric management, specification of place of residence, and a power to recall to the hospital. Another response has been the development of assertive outreach programs. However, community treatment orders in England and Wales have not been found to be effective. 26 It may be that a general improvement in the provision of community psychiatric services is more likely to prevent serious harm by psychiatric patients than

ever greater use of standardized structured risk assessment instruments. Proactive measures to manage violence include adequate training of community mental health terms and the development of protocols for potential violent scenarios in hospitals and in the community, such as for home visits. Risk assessment should also lead to the identification of warning signs indicating early signs of relapse (relapse signatures) or increased risk. The importance of  good communication between general practitioners, hospital and social services, housing, police, and probation is paramount. To  this end, Multi-Agency Public Protection Arrangements (MAPPAs), which are discussed in Chapter 68, and Multi-Agency Risk Assessment Conferences (MARAC) for domestic violence and abuse have both been established to develop and coordinate risk management plans. Clearly, the better a patient is known, the more likely the accuracy of the risk assessment. The Royal College of Psychiatrists Research Unit 27 has identified as preventable causes of aggression or violence on psychiatric wards, flaws in the design of inpatient units, inadequate staffing, overreliance on agency staff, poor leadership, changes in client mix with a high proportion of patients with dual diagnoses, overcrowding, a high prevalence of substance abuse, high levels of boredom, and dissatisfaction of staff with appropriateness of training in the management of violence. The Royal College of Psychiatrists has also provided advice on safety for psychiatrists.28

CONCLUSION Practitioners should aim to determine how serious the risk is, assessing its nature and magnitude, and whether it is specific or general, conditional or unconditional, immediate, long-term, or volatile. They should consider if the individual’s or situational risk factors have changed, and who might be at risk. From such a risk assessment, a risk management plan should be developed to modify the risk factors and specify response triggers. This plan should ideally be agreed upon with the individual. The plan should assess whether there a need for more frequent follow-up appointments, an urgent care program approach meeting or, where the safety of continued community care of an individual prone to violence is in doubt, whether admission to the hospital (including detention under the Mental Health Act) may be required, as may increased physical security, observation, and/or medication. If the optimum plan cannot be undertaken, reasons for this should be documented and a defendable backup plan specified. Risk assessments and risk management plans should be communicated to others on a “need to know” basis. On occasion, patient confidentiality will need to be breached if there is an immediate grave danger to others. Police can often do little unless there has been a specific threat to an individual, whereupon they may warn

References 595

or charge the subject. Very careful consideration needs to be given before informing potential victims to avoid their unnecessary anxiety. Their safety is often best ensured by management of those who present the risk. If a potential victim needs to be informed, the police prefer to do this themselves. Inquiries into homicide have highlighted not so much the limitations of risk assessment, as real as these are, but the failure to communicate or to manage known risks.

REFERENCES 1. Ritchie J, Dick D, Lingham R. Report of the Inquiry into the Care and Treatment of Christopher Clunis. London: HMSO, 1994. 2. Swanson JW, et al. Violence and psychiatric disorder in the community: Evidence from Epidemiologic Catchment Area Survey. Hospital and Community Psychiatry. 1990; 41: 761–70. 3. Lidz CW, Mulvey EP, Gardner W. The accuracy of predictions of violence to others. Journal of the American Medical Association. 1993; 269: 1007–11. 4. Farrington DP. The Twelfth Jack Tizard Memorial Lecture: The development of offending and antisocial behaviour from childhood: Key findings from the Cambridge Study in Delinquent Development. Journal of Child Psychology and Psychiatry and Allied Disciplines. 1995; 36: 929–64. 5. Humphreys MS, Martin S, Johnstone EC, Macmillan JF, Taylor P. Dangerous behaviour preceding first admission for schizophrenia. British Journal of Psychiatry. 1992; 161: 501–5. 6. Taylor PJ. Schizophrenia and Crime: Distinctive Patterns in Association. In: Crime and Mental Disorder. Ed. Hodgins S. Beverly Hills, CA: Sage, 1993: 63–85. 7. Applebaum PS, Robbins PC, Monahan J. Violence and delusions: Data from the MacArthur Violence Risk Assessment Study. American Journal of Psychiatry. 2000; 157: 566–72. 8. Smith AD, Taylor PJ. Serious sex offending against women by men with schizophrenia: Relationship of illness and psychotic symptoms to offending. British Journal of Psychiatry. 1999; 174: 222–37. 9. Link BG, Stueve A, Phelan J. Psychotic Symptoms and Violent Behaviors, probing the components of “threat/control override” symptoms. Social Psychiatry and Psychiatric Epidemiology. 1998; Vol. 33. Supplement 1: S55–S60. 10. Steadman HJ, Mulvey EP, Monahan J, Robbins PC, Appelbaum PS, Grisso T, Roth LH, Silver E. Violence by people discharged from acute psychiatric ­in-patient facilities and others in the same neighbourhoods. Archives of General Psychiatry. 1998; 55: 393–401.

11. The Royal College of Psychiatrists Special Working Party on Clinical Assessment and Management of Risk. Assessment and Clinical Management of Risk of Harm to Other People. Council Report CR53. Royal College of Psychiatrists. London, 1996. 12. Steadman HJ, Silver E, Monahan J, Appelbaum PS, Robbins PC, Mulvey EP, Grisso T, Roth LH, Banks SA. Classification tree approach to the development of actuarial violence risk assessment tools. Law and Human Behaviour. 2000; 24: 83–100. 13. Kvaraceus W. Dangerous Youth. Columbus, OH: Columbus Press, 1966. 14. Harris GT, Rice ME, Quinsey VL. Violent recidivism of mentally disordered offenders: The development of a statistical prediction instrument. Criminal Justice and Behaviour. 1993; 20: 315–35. 15. Quinsey VL, Harris GT, Rice ME, Cormier CA. Violent Offenders: Appraising and Managing Risk. Washington, DC: American Psychological Association, 1998. 16. Hanson RK, Thornton D. Static 99: Improving Actuarial Risk Assessments for Sex Offenders. User Report 99-02. Ottawa: Department of the Solicitor General of Canada, 1999. 17. Hanson RK, Thornton D. Improving Risk Assessments for Sex Offenders: A comparison of three actuarial scales. Law and Human Behaviour. 2000; 24: 119–36. 18. Webster CD, Douglas, KS, Eaves, D, Hart SD. HCR20: Assessing Risk for Violence, Version 2. Vancouver, Canada: Simon Fraser University Mental Health, Law and Policy Institute, 1997. 19. Hare RD. Manual for the Hare Psychopathy Checklist-Revised. Toronto: Multi-Health Systems, 1991. 20. Hart SD, Cox DN, Hare RD. The Hare Psychopathy Checklist—Revised Screening Version (PCL-SV). Toronto: Multi-Health Systems, 1995. 21. Hare RD. Manual for the Hare Psychopathy Checklist—Revised (PCL-RTM): 2nd ed. Toronto: Multi-Health Systems, 2003. 22. Wong S, Gordon A. Violence Risk Scale (VRS). Department of Psychology and Research. Regional Psychiatric Centre. Saskatchewan, Canada: Solicitor General of Canada, 2000.  23. Boer DP, Hart SD, Kropp PR, Webster CD. Manual for the Sexual Violence Risk-20: Professional Guidelines for Assessing Risk of Sexual Violence. Vancouver, BC: British Columbia Institute on Family Violence, 1997. 24. Kropp PR, Hart SD, Webster CW, Eaves D. Manual for the Spousal Assault Risk Assessment Guide, 2nd ed. Vancouver, BC: British Columbia Institute on Family Violence, 1995. 25. Quinsey VL, Rice ME, Harris GT. Actuarial prediction of sexual recidivism. Journal of Interpersonal Violence. 1995; 10: 85–105.

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26. Burns T, Rugkasa J, Molodynski A, Dawson J, Yeeles K, Vazquez-Montes M, Voysey M, Sinclair J, Priebe S. Community Treatment Orders for patients with psychosis (OCTET): A randomised control trial. Lancet. 2013; 381(9878): 1627–33.

27. The Royal College of Psychiatrists’ Research Unit. The National Audit of Violence (2003–5). London: The Royal College of Psychiatrists, 2005. 28. The Royal College of Psychiatrists. Safety for Psychiatrists. Council Report CR-134. London: The Royal College of Psychiatrists, 2006.

90 Violence assessment over the short term JOHANN BRINK, CHRISTOPHER D. WEBSTER, TONIA L. NICHOLLS, SARAH L. DESMARAIS, AND MARY-LOU MARTIN Focus of the chapter 597 597 Conceptual and practical issues 598 Start items Signature risk signs 598 Health concerns 599 History 599 Risk factors (vulnerabilities) and protective factors (strengths) 599 Scaling risks, scaling strengths 599

Risk and strength specificity statements 599 Therapeutic alliances 599 Positive peer support 600 The seven start risk estimates: promoting comprehensive mental health evaluations and treatment planning to prevent overlapping 600 adverse events References 600 601 Further reading

FOCUS OF THE CHAPTER

evaluation, based on evidence from both the ­scientific and  the professional literatures. The evidence that all or most of the instruments developed over the past two decades possess at least a moderate degree of predictive accuracy is no longer in dispute. This applies whether the focus of these devices is actuarial or clinical, 2 and whether the research is conducted in correctional, forensic, or general mental health populations. Less clear is why it has proven difficult to create a scheme that breaks the “sound barrier” set around a prediction-outcome ­correlation of 0.40. 3 One reason for the existence of such a barrier is that as Saleem Shah remarked more than 30 years ago, some ­clinicians may be better at predicting violence than others. He  pointed out it is highly possible that the good predictors do not know they are good predictors any more than the poor predictors know they are poor predictors (because clinicians rarely, if ever, receive feedback regarding their predictive successes and their failures). When Shah’s proposition was tested in a research study,4 it proved correct: Two of four forensic psychologists achieved statistically significant prediction–outcome effects, and two did not. One yielded a chance effect. A similar pattern was found in individual nurses, social workers, psychologists, and correctional workers. The relatively poor predictors were “carried” by the relatively good ones, with an overall rather minor improvement over chance. There are doubtless many other reasons why a “­standout” violence-prediction scheme has not yet evolved

For more than a decade the authors of this chapter have been engaged in devising and testing a particular approach to risk assessment and management, the ShortTerm Assessment of Risk and Treatability (START).1 This scheme, which is within the structured professional judgment (SPJ) paradigm described in Chapter 89, is designed to evaluate multiple inter-related short-term risks, to assess clients’ vulnerabilities and strengths, to take account of clients’ particular risk-related idiosyncrasies in thinking and behavior, and to encourage formulation of a treatment plan. By short-term we mean periods ranging from 24 hours to 3 months. Although START provides many concepts that can be supported clinically and scientifically, it cannot be expected to cover all the needs of psychiatrists and other clinicians working in general and forensic mental health and correctional services. Assessing risk for violence over the very short term (i.e., a several hours, 1 day, 1 week, 1 month) is very different from assessing risk for violence over a long-term period (i.e., 5 to 10 years).

CONCEPTUAL AND PRACTICAL ISSUES Chapter 89 discussed the SPJ approach to assessing ­v iolence risk (Table  90.1). It is, therefore, assumed that readers will understand the value of completing comprehensive assessments that are applicable to the client under

597

598  Violence assessment over the short term

Table 90.1  Examples of well-known SPJ devices and their target outcomes or populations PCL-R LSI-R HCR-20 SVR-20 RSVP SARA EARL-20B EARL-21G SAVRY

Psychopathy Criminal recidivism Forensics, correctional, general mental health Sex offender Sex offender Spousal assaults Boys under 12 Girls under 12 Adolescents

or perhaps ever will evolve. One is that the item content of all these various guides is generally similar.5 Another reason is that despite unrelenting attention to the development of predictor scales, there has not been a similar determination to create and test outcome scales. With violence and related risks being measured in so many different and often poorly validated ways, it is no small wonder that much precision is lost. As previously mentioned, this discussion centers on a relatively new instrument called START. Its use is not expected to result in a dramatic burst through the statistical 0.40 “sound barrier.” Yet, START might perform exceptionally well if judged against different standards. By this, we mean the use of methods based on the detailed study of individual clients rather than on group-based, averaged data. The conduct of the client needs to be judged not so much against the performance of his or her peers, but against himself or herself over time and under well-monitored conditions.

START ITEMS The 20 dynamic items that form the basis of START are listed in Table 90.2. The START items were arrived at through review of the literature, communications with colleagues, and clinical application in forensic psychiatric settings. Many items similar in content appear in other risk assessment schemes.1 What distinguishes START from these other instruments, however, is the scoring of items as both vulnerabilities (risk factors) and strengths (protective factors). A three-point scale (0 = minimally present, 1 = moderately present, 2 = maximally present) is used for each item to indicate the presence of vulnerability and strength in this area evidenced by the client over the past 3 months or since the last assessment (whichever is more recent). In this way, clinicians score the same items both from a risk perspective (i.e., vulnerability) and from a health-­promotion point of view (i.e., strength). This is not an entirely new idea. Borum, Bartel, and Forth, for example, included six protective factors in the Structured Assessment for Violence Risk in Youth (SAVRY), 6 and de  Vogel and colleagues have produced a supplement to

Table 90.2  START items 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22

Social skills Relationships (TA: Y/N) Occupational Recreational Self-care Mental state Emotional state Substance use Impulse control External triggers Social support (PPS: Y/N) Material resources Attitudes Medication adherence Rule adherence Conduct Insight Plans Coping Treatability Case specific item Case specific item

Note: PPS = positive peer support; TA  =  therapeutic alliance; Y = yes, N = no.

the HCR-20 in which protective rather than risk factors form the basis of judgment.7

SIGNATURE RISK SIGNS To our knowledge, START is the only SPJ scheme that insists on consideration of risk factors that are idiosyncratic to the client, called “signature risk signs.” The notion is to identify “signatures” that precede risk behaviors, much like “signatures” are used to identify perpetrators of crimes. Such “early warning signs” in the forensic arena have been studied.8 Over time, clinicians in the various disciplines have come to know (but do not always record in a coherent, sustained fashion) that before a particular client decompensates or relapses, there often are clear (and seemingly unrelated) indications that this is about to happen; for instance, the client dons a particular jacket, cuts his or her hair in a particular way, breaks out in acne, and so on. These “early warning signs” or “signature risk signs” are often missed by clinicians less well-acquainted with the case, or, if noticed, are not recorded; and if not recorded, the pattern over time may not be identified and/ or not acted on in a preventative fashion. There are limits to how well the general can be applied to the particular, and attending to these idiosyncratic risk factors may improve predictive accuracy. The individual’s past behavior will, to an extent, be predictive of his or her future behavior. It is an obvious point, but one that is not often even mentioned in contemporary texts on risk assessment and management.

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HEALTH CONCERNS

SCALING RISKS, SCALING STRENGTHS

The connection between physical health and mental health is well established; yet, physical health concerns are rarely attended to during the risk assessment process. In our experience, it is vital not only to take a thorough medical history at the outset of the assessment but also to examine the client physically or arrange for such an examination. People with serious mental illness are likely to have poor physical health and a reduced life expectancy associated with longterm effects of antipsychotic medication and substance use, cardiovascular problems, diabetes, and infectious diseases, such as hepatitis. Often these conditions are not diagnosed or treated. Sometimes untreated or ­difficult-to-treat physical health conditions can contribute to or be associated with risks for violent behavior. Thus, identification of physical health concerns can be an important aspect of risk assessment and management.

When START was in the developmental phase, each item was rated on a 5-point scale in which there was a 0 in the center of each item with a –1 or –2 for risk and a +1 or +2 for strength. Under this approach, an item had to be scored as if it were a strength or a risk, or neither. In the current scheme, there is a 0 for risk and a separate 0 for strength. In this way, it is possible for a particular item to be scored as present with some aspects of risk and some aspects of strength. The use of two scales also allows for the possibility that what might present as a risk at one time might present as a strength at another time, as discussed earlier. The authors believe that this allows for a more “realistic” appraisal and offers, perhaps, the chance to exceed the 0.40 “sound barrier” outlined earlier.

HISTORY The evidence now seems clear that traumatic experiences in childhood or adolescence can cast a long shadow into adulthood with profound effects on physical, mental, and emotional health.9 Thus, assessments of ­v iolence risk over the short term, using START or otherwise, should be built on a foundation of historical information. The investigation of a client’s history needs to be thorough. Sometimes information is difficult, if not impossible, to track. Other times, thanks to modern-day technology and people’s desire to use it, detail simply falls into one’s hands (e.g., by way of blogs, Twitter, Facebook, and so forth). The one-page START Summary Sheet does not devote much space to history except to identify whether a history of various risks is present. However, historical information also may be noted through the identification of key items and critical items, and the signature risk signs. (The START manual supplies a full appendix on the topic.1)

RISK FACTORS (VULNERABILITIES) AND PROTECTIVE FACTORS (STRENGTHS) A major conceptual and practical challenge is that just because an item was defined to be a risk factor by the originators of a guide does not mean it will necessarily perform like one in actual practice. Gagliardi and colleagues, for example, found that a diagnosis of schizophrenia in a correctional population may reduce the likelihood of violence.10 Yet other studies have clearly shown a diagnosis of schizophrenia to be a risk factor, especially when other risk factors, such as substance abuse, are present.11,12 Indeed, a particular factor may serve as a risk factor in some circumstances and at other times act as a protective factor. For this reason, START has 20 defined “dynamic” items (with options to add an additional two “case-­specific items”) that are each rated as both risk and protective factors.

RISK AND STRENGTH SPECIFICITY STATEMENTS All of the many SPJ schemes now available leave the overall judgment of risk in the hands of the appraiser. It is possible for an individual to be deemed a high risk even though the items total to, say, 8 out of 40. Similarly, a person could be deemed low risk despite a total score of, say, 38 out of 40. Generally, the literature has shown that the broad judgments predict violence slightly better than the sum of scores from the 20 items. Yet it could well be that individual predictions could be generally sharpened were the evaluators invited to offer a “prediction-specificity statement.”11 This means a stipulation of what adverse outcomes might be expected to occur, to/from whom, under what conditions, and over what period of time. As such, START, like many other SPJ schemes, invites clinicians to complete a risk formulation that provides a brief description of the likely scenario(s). Similarly, it ought to be possible to improve assessments and management to achieve treatment or intervention success by asking clinicians to specify what kinds of improvements might be expected, by whom, with the assistance of what kinds of help or services, and over what time period.

THERAPEUTIC ALLIANCES Establishing and maintaining a therapeutic alliance with a forensic patient is important because of its positive influence on the patient’s recovery. Therapeutic Alliances has been included in the Relationships section of the 20 dynamic START items. Three UK studies highlight the significance of the therapeutic relationship. One study found that positive and supportive staff attitudes and relationships were helpful in the recovery of forensic patients, whereas negative interactions and relationships with staff negatively influenced the individual’s recovery.14 In  another study, a positive social climate in women’s secure mental health wards was found to be associated with higher levels of treatment engagement

600  Violence assessment over the short term

and therapeutic alliance.15 In the third study, a  strong association was found between forensic patients’ satisfaction and therapeutic relations with staff.16

POSITIVE PEER SUPPORT Research has shown that positive peer support demonstrates positive patient outcomes in people with serious mental illness. Positive peer support has been included in the social support section of the 20 dynamic START items. Positive peer support promotes the client perspective in recovery-oriented forensic services. Peer support can be an important part of the patient’s recovery in the hospital or in the community. Peer support is offered by peers who, ideally, have been trained to provide peer support services but such support may also come from pro-social, supportive friends. The peer support worker offers support and hope through his or her experiential knowledge of mental illness and/or addiction, and recovery. Most peer support workers receive formal training and ongoing supervision. The reciprocal relationship between the peer support worker and the patient focuses on the strengths and abilities of the patient in recovery. Peer support workers help patients to problem solve, socialize with others, access services, and transition from the hospital to the community. They are involved in role modeling, listening, problem solving, facilitation, and information sharing. Forensic peer specialists may also assist with supporting a patient’s adherence to conditions of supervision.17 More research is needed to explore the impact of positive peer support on the experiences and outcomes of forensic patients.

THE SEVEN START RISK ESTIMATES: PROMOTING COMPREHENSIVE MENTAL HEALTH EVALUATIONS AND TREATMENT PLANNING TO PREVENT OVERLAPPING ADVERSE EVENTS Although research and clinical work in mental health have focused largely on the risk of violence to others posed by individuals living with mental illness and personality disorders, the adverse outcomes common among individuals living with serious mental illnesses reflect a much wider range of behaviors and experiences. For instance, rates of victimization by others, substance abuse, self-neglect, suicide, self-harm, and homelessness are elevated in this population.18 To the extent that these outcomes co-occur, a comprehensive assessment and intervention strategy will produce the greatest benefits to client health and safety, as well as public safety.19 Thus, even though the referral question may be as “simple” as How likely is this person to act violently against others in the future, there will be other risks that should be considered, including risk for self-harm, suicide, use of alcohol and drugs, unauthorized absences from secure facilities or treatment settings, being victimized by others, and so on.

Table 90.3  Specific risk estimates 1 2 3 4 5 6 7 8

Violence Self-harm Suicide Unauthorized leave Substance abuse Self neglect Victimization Case specific risk

Attention to risk for diverse adverse outcomes is another unique contribution of START. START guides the evaluation of seven overlapping and interconnected risks commonly seen among mentally ill individuals and persons from other marginalized populations for whom START would be appropriate (inmates, probationers/parolees, civil psychiatric patients). Table 90.3 displays the seven risk estimates considered in a START assessment plus an eighth risk that is case specific. Reflecting the need to contribute to the validation of START and to monitor the prevalence, incidence, and severity of these diverse events, the START Outcome Scale (SOS)20 builds on the widely used Overt Aggression Scale21 simply by adding the additional START risk estimates (e.g.,  self-neglect, unauthorized leave) and expanding the categories of suicide and unauthorized leave to include suicide attempts/ideation and attempted unauthorized leave. The SOS is intended to be used for systematically measuring the incidence, prevalence, and severity of these diverse outcomes over the short term.

REFERENCES 1. Webster CD, Martin M-L, Brink J, Nicholls TL, Desmarais SL. Manual for the Short-Term Assessment of Risk and Treatability (START) (Version 1.1). Port Coquitlam, BC, Canada: Forensic Psychiatric Services Commission and St. Joseph’s Healthcare, 2009. 2. Singh JP, Grann M, Fazel S. A comparative study of violence risk assessment tools: A systematic review and meta-regression analysis of 68 studies involving 25,980 participants. Clinical Psychology Review. 2011; 31: 499–513. 3. Menzies RJ, Webster CD, Sepejak DS. Hitting the Forensic Sound Barrier: Prediction of Dangerousness in a Pre-Trial Psychiatric Clinic. In: Dangerousness: Probability and Prediction, Psychiatry and Public Policy. Eds. Webster CD, Bon-Aron MH, Hucker SJ. New York: Cambridge University Press, 1985: 115–43. 4. Shah SA. Dangerousness: A paradigm for exploring same issues in law and psychology. American Psychologist. 1978; 33: 224–38. 5. Otto R, Douglas KS. (Eds.) Handbook of Violence Risk Assessment. New York: Routledge, 2010.

Further reading  601

6. Borum R, Bartel P, Forth A. Manual for the Structured Assessment for Violence Risk in Youth (SAVRY). Odessa, FL: Psychological Assessment Resources, 2006. 7. de Vogel V, de Ruiter C, Bouman Y, de Vries Robbe M. SAPROF: Guidelines for the Assessment of Protective Factors for Violence Risk. [English version of the Dutch original]. Utrecht, The Netherlands: Forum Educatief, 2009. 8. Fluttert FA J, Van Meijel B, Nijman H, Bjorkly S. Preventing aggressive incidents and seclusions in forensic care by means of the ‘Early Recognition Method.’ Journal of Clinical Nursing. 2010; 19: 1529–37. 9. Norman RE, Byambaa M, De R, Butchart A, Scott J, Vos T. The long-term health consequences of child physical abuse, emotional abuse, and neglect: A s­ ystematic review and meta-analysis. PLoS Medicine. 2012; 9(11): e1001349. doi:10.1371/journal. pmed.1001349. 10. Gagliardi GJ, Lovell D, Peterson PD, Jemelka R. Forecasting recidivism in mentally ill offenders released from prison. Law and Human Behavior. 2004; 28: 133–55. 11. Monahan J, Steadman H, Silver E, Appelbaum P, Robbins P, Mulvey E, et al. Rethinking Risk Assessment: The MacArthur Study of Mental Disorder and Violence. Oxford, UK: Oxford University Press, 2001. 12. Van Dorn R, Volavka J, Johnson N. Mental disorder and violence: Is there a relationship beyond substance use? Social Psychiatry and Psychiatric Epidemiology. 2012; 47: 487–503. 13. Jackson J. A Conceptual Model for the Study of Violence. In: Impulsivity: Theory, Assessment and Treatment. Eds. Webster ED, Jackson MA. New York: Guilford, 1997: 233–47. 14. Mezey GC, Kavuma M, Turton P, Demetriou A, Wright C. Perceptions, experiences and meanings of recovery in forensic psychiatric patients. Journal of Forensic Psychiatry & Psychology. 2010; 21: 683–96.

15. Long CG, Anagnostakis K, Fox E, Silaule P, Somers J, West R, Webster A. Social climate along the pathway of care in women’s secure mental health service: Variation with level of security, patient motivation, therapeutic alliance and level of disturbance. Criminal Behaviour and Mental Health. 2011; 21: 202–14. 16. Bressington D, Stewart B, Beer D, MacInnes D. Levels of service user satisfaction in secure settings— A ­survey of the association between perceived social climate, perceived therapeutic relationship and satisfaction with forensic services. International Journal of Nursing Studies. 2011; 48: 1349–56. 17. Davidson L, Rowe M. Peer Support Within Criminal Justice Settings: The Role of Forensic Peer Specialists. Delmar, NY: The CMHS National GAINS Center, 2008. 18. Kooyman I, Dean K, Havey S, Walsh E. Outcomes of public concern in schizophrenia. British Journal of Psychiatry. 2007; 191 (suppl. 50): s29–s36. 19. Webb RT, Qin P, Stevens H, Mortensen PB, Appleby L, Shaw J. National study of suicide in all people with a criminal justice history. Archives of General Psychiatry. 2011; 68(6): 591–99. doi:10.1001/ archgenpsychiatry.2011.7. 20. Nicholls TL, Gagnon N, Crocker AG, Brink J, Desmarais S, Webster C. START Outcomes Scale (SOS). Vancouver, Canada: BC Mental Health & Addiction Services, 2007. 21. Yudofsky SC, Silver JM, Jackson W, Endicott J, Williams D. The Overt Aggression Scale for the objective rating scale of verbal and physical aggression. American Journal of Psychiatry. 1986; 143: 45–49.

FURTHER READING Department of Health. Best Practice in Managing Risk: Principles and Evidence for Best Practice in the Assessment and Management of Risk to Self and Others in Mental Health Services. London: Department of Health, United Kingdom 2007.

91 Sexual violence DEREK PERKINS AND ANISAH EBRAHIMJEE Societal context Sexual offenses and models of sexual offending Contact child sexual abuse Online child sexual exploitation Rape and sexual violence toward women Sexual homicides Female sexual offenders Integrated theory of sexual offending Risk, need, and responsivity (RNR)

603 603 603 604 605 605 607 608 608

SOCIETAL CONTEXT In the United Kingdom, sexual offending attracts disproportionately more public interest than the less than 2% of recorded crimes that it represents,1 contributing to what has sometimes been characterized as a “moral panic” about sexual offending.2 (There was an increase of 9% in all sexual offenses for the year ending June 2013 compared with the previous year (up from 51,252 to 55,812), partly a result of the Operation Yewtree investigation, initiated in October 2012 and connected to the Jimmy Savile inquiry). Knowledge about sexual offenses is limited and biased by its high “dark figure” (i.e., unreported offenses). The focus of the criminal justice system is susceptible to the disproportionate effect on public, media, and political attention of high-profile cases. This often results in changes in prioritizations, for example between alcohol-fueled “date rapes,” stranger-perpetrated child sexual assaults, or, current at the time of writing, historic sexual abuse by perpetrators from the entertainment industry. Such media-driven concerns can obscure the reality that most sexual offending is embedded in family and social networks. Sexual offenders have typically experienced insecure attachments as children. Ward and colleagues3 reported that 97% of a sample of violent and sexual offenders had experienced insecure attachments, with violent rapists being more prone to having a dismissive attachment style than the child molesters. Sexual offenders are also more likely than nonoffenders to have suffered abuse as children (sexual, physical, emotional, or neglect4). It is, however, incorrect

Good lives model (GLM) 608 The role of sexual deviance and paraphilias 608 Clinical assessment, formulation, and intervention 609 Comprehensive formulation 609 Risk assessment 610 Mental disorder and sexual offending 610 Treatment, management, and reintegration 610 References 611

to extrapolate from this that having experienced childhood abuse inevitably leads to sexual offending. Most abused children suffer a range of adverse consequences of the abuse at the time and later and do not go on to offend. Rather, many become champions of the need to eradicate sexual and physical abuse and provide support for sexual offense survivors through organizations such as the National Association for People Abused in Childhood (NAPAC); Survivors; and the Rape, Abuse, & Incest Network (RAINN).

SEXUAL OFFENSES AND MODELS OF SEXUAL OFFENDING The three major categories of sexual offending encountered within forensic clinical practice are child sexual abuse, sexual violence toward adults, and sexual homicides (see Table 91.1).

Contact child sexual abuse Estimates of child sexual abuse prevalence from the United Kingdom, North America, and Australia suggest that 7%–15% of children will experience some form of sexual abuse during their childhood.5–8 An international study of 21 countries showed a wider range of 7%–36% for women and 3%–29% for men.9 Most child sexual abuse is perpetrated by individuals known to the child from within the immediate or extended family, or by friends and acquaintances, which is a key element in the high levels of underreporting.10 603

604  Sexual violence

Table 91.1  Categories of sexual offending Child sexual abuse Includes (a) contact sexual offending, mainly by perpetrators known to victims but increasingly also Internetfacilitated, e.g., through social networking, chat rooms, and peer-topeer sharing of sexual abuse materials, etc. and (b) online child sexual exploitation material (CSEM) offending, increasingly prevalent with the growth and sophistication of the Internet

Sexual violence toward adults

Sexual homicides

Mainly offending against women, this includes (a) assaults within the legal sexual offense categories of, e.g., indecent assault, rape, and buggery; (b) sexually motivated offending but which is legally nonsexual, e.g., physical assaults, robberies, or burglaries; and (c) various types of noncontact sexual offenses, such as indecent exposure and voyeurism

This includes homicides that are either sexually motivated (so-called lust murder for example) or have occurred in a sexual context without having a primarily sexual motive for the killing, for example the unintended killing of a rape victim in the course of his or her resistance to the offense, or killing a victim in an attempt to try and avoid apprehension

Table 91.2  Preconditions for child sexual abuse Finkelhor’s precondition Motivation to offend Overcoming internal inhibitions’ to offend Overcoming external inhibitions Overcoming the child’s resistance

Description Described as sexual deviance (predominant sexual interest in children rather than adults) or emotional congruence (feeling more comfortable with children than with adults). Typically achieved through adopting permission-giving thoughts or “cognitive distortions” and/or the use of substances to disinhibit anxiety or guilt. Typically through getting into jobs, hobbies, or social situations that provide access to unprotected children, e.g., teaching, sports, religious groups, residential care, youth groups. Typically by either shaping the child’s expectations and experience that sex with an adult is acceptable or by threats and coercion. Even where children accept these devices at the time, they later come to realise the reality of their abuse.

Finkehor11 developed one of the most influential models of child sexual abuse based on the literature at that time, in which child sexual offenders typically meet four “preconditions” for offending to occur, as shown in Table 91.2.

Online child sexual exploitation The growth of the Internet has exponentially increased access to every kind of sexual material, including child sexual exploitation material (CSEM) via the many types of device currently available (laptops, smartphones, etc). It has enabled online social networking in all sections of the community, especially among children and young people. Online child sexual exploitation primarily concerns accessing images, movies, or “live” depictions of child abuse (visual material currently classified in increasing level of seriousness as A, B, or C). The ease of availability of CSEM on the Internet increases the demand for yet more abuse materials, and increasingly more extreme abuse materials, which in turn drives the commission of more contact sexual offenses to feed this market (see Table 91.3). As with other sexual offenders, some Internet offenders escalate in the frequency and severity of their behavior, for example accessing increasingly violent material or making the transition from viewing to contact offending. While there is no compelling evidence that viewing CSEM or “extreme pornography” (such as depictions of rape or

Table 91.3 SAP level A

B C

Description Possession of images involving penetrative sexual activity and/or images involving sexual activity with an animal or sadism Possession of images involving nonpenetrative sexual activity Possession of images of erotic posing

sexualized killing) is linked to sexually motivated offending in any simple, causative way, viewing and masturbating to such material has been clearly implicated in some high-­ profile court cases as playing a contributory role, for example, in the murders of Jane Longhusrt (2003), April Jones (2012), and Tia Sharp (2012). This transition from viewing to acting is an issue of current concern to those investigating and treating sexual offenders. Contrary to expectations generated by such cases, however, evidence from the Seto, Hanson, and Babchishin meta-analysis12 found that recidivism rates for sexual offending over a 6-year follow-up in a combined sample of 2,630 online offenders was less than 5%. Only 2% of CSEM offenders were found to have subsequently committed a contact sex offense, with 3.4% committing another CSEM offense and 4.2% committing a violent offense.13

Sexual offenses and models of sexual offending  605

In the context of Finkelhor’s model, it might be suggested that the ease of access to the Internet and its perceived anonymity provides the potential to facilitate online offending by removing some actual and perceived barriers to the offending (Table 91.4).

Rape and sexual violence toward women Community surveys suggest that about a third of women will experience some form of sexual victimization during their lives.14 While stranger rapes are the common stereotype, the proportion of rapes carried out by acquaintances or intimates (including ex-partners) is much higher.15 Studies of men convicted of rape have identified a number of common themes and typologies in which it is evident that an offender’s early attachments, experiences of abuse, and sexual and relationship history set the pathway to different kinds of sexual offense motives and behaviors (summarized in Table 91.516). DSM-V considered, but rejected, a possible new paraphilia category of “coercive paraphilic disorder,” concluding that the coercive and violent elements of rape are already adequately encompassed within the existing paraphilia category of sexual sadism.17 Rapist typologies, like paraphilia classifications, are not necessarily mutually exclusive, and rape offenders may exhibit mixed features of different typologies. Although the legal definition of rape is clear, the clinical formulation, and treatment of rape offenders is complicated

by the degree to which cultural/subcultural factors exist within any particular society or subculture (i.e., sexist, misogynist, rape-supportive attitudes are strongly implicated in rape offenses18). Rape might therefore be considered to be located at the end of a continuum of sexual attitudes and behaviors from the truly mutually consensual through the manipulative and exploitative, to the callous and violent, as highlighted by community samples.19

Sexual homicides Ressler, Burgess, and Douglas20 proposed a definition of sexual homicide that required the presence of one or more of a set of six “markers” for the offense, as set out in Figure 91.1. While acknowledging the value of clear definitions, Grubin21 noted that the term sexual homicide has been used to describe a variety of different offense behaviors and motives (Figure 91.2) and is in that sense an imprecise term. Perkins22 noted that, as with rape and child sexual abuse, sexual homicide offense “types” (Figure 91.2) are not necessarily mutually exclusive and elements from each may combine in different ways to unpin a particular offense. Arrigo and Purcell23 provided a clinically useful sexviolence-fusion model of sexual homicide (also known as compulsive sexual homicide) that links developmental and offense-maintenance factors. It describes a number of stages through which sexual homicide perpetrators typically move as their offending evolves, while also recognizing

Table 91.4 Finkelhor’s preconditions Motivation to offend Overcoming internal inhibitions to offend Overcoming external inhibitions

Online offending Believing that offending is not as bad as originally thought because it is so prevalent. Chat rooms desensitize and normalize child abuse, as well as putting like-minded people in touch with each other and reinforcing and/or shaping some online offenders’ deviant interests through access to increasingly extreme materials. Some online offenders have access to children who may then become the targets of contact offending.

Table 91.5  Sexual offense motives and behaviors Offense motive Deviant sexual interests Anger

Compensation

Antisociality Multiple perpetration rapes

Behavior Offenses driven by (or highly associated with) a deviant sexual interest in coerced sex, which can overlap with various legal and illegal paraphilias such as fetishism, sadism and necrophilia The displacement of currently experienced anger onto a victim (known or stranger) who represents a certain category of hated female (callous mother, nagging wife, etc.), in which the offense is seen as a form of symbolic revenge. Offenses that function as a form of compensation for an absence in the offender’s life of consensual sex, in which the offender may project elements of consensual sex into the offense behaviors, e.g., kissing or complimenting the victim Offenses carried out as part of a generally delinquent or psychopathic offending pattern, where the rape is one element of the offender’s more general antisociality and callousness Often associated with gang culture and collectively reinforced by sexist/hostile attitudes toward females, and in which the offenders’ motives are as much to do with relationships between group members as the sexual offenses

606  Sexual violence

Evidence of sexual activity (e.g., masturbation)

Evidence of sexual contact

Victim naked

Homicide can be classed as sexual if any of the following occur Object inserted into body cavity

Genitals exposed

Body in sexual explict position

Figure 91.1  Factors defining a sexual homicide (Ressler et al., 1988).

A planned attack carried out in order to gain sexual gratification from the killing : “lust murder” or erotophonophilia (REF)

Offence scenario

An unplanned and accidental killing during the commission of another offence, such as rape, by virtue of the level of force being used

An unplanned but nevertheless deliberate and angry killing in response to a victim’s resistance to a sexual assault

An unplanned but sadistically motivated attack carried out to achive sexual gratification from seeing the victim suffer, which escalated into killing the victim

A killing deliberately carried out to avoid apprehension for another offence (e.g., rape): it is therefore an instrumental act (detection avoidance) rather than an expressive act (as in sexual or anger driven)

Figure 91.2  Range of possible sexual homicide scenarios.

Sexual offenses and models of sexual offending  607

the relevance of certain constitutional vulnerabilities in such offenders, possibly related to the limbic system and anomalies in brain pathways for violence and sexual arousal (Table 91.6). In contrast to this sex-violence-fusion model, Schlesinger24 described an etiologically and motivationally distinct category of catathymic sexual homicide, which it is suggested results from unresolved sexual identity and relationship issues. Catathymic sexual homicides are described as being triggered by “a breakthrough of underlying sexual conflicts” in which the victim of the attack symbolizes a significant individual(s) in the offender’s life, and do not include Arrigo and Purcell’s hallmark feature of a fantasy-led escalation in sexual violence. While the catathymic killing provides the offender with ­temporary relief from these conflicts, reoffending risks remain until the underlying issues are identified and neutralized. As both types of homicide include sexual behaviors of extreme violence, it is important to be as clear as possible about offense typology/motivation, as each has different implications for risk assessment, management, and treatment. In other words, a more comprehensive formulation is required than a categorization of sexual homicide: for example, treatment or management targeted at deviant

sexual interests (notably sexual sadism) will be relevant for the compulsive (sex-violence-fusion) offenses but not for the catathymic offenses (Table 91.7).

Female sexual offenders About 5% of sex offenders are female. 25 Of imprisoned women, 2% are sex offenders compared with 14% of the male prisoner population. 26 Until the 1980s, knowledge of female sexual offending was very sketchy. Female offending was unrecognized due to such behavior violating societal expectations/stereotypes of women (passive, nurturers, nonsexual). Women offenders were assumed to have been coerced by men rather than operating under their own initiative; and their offending was not treated seriously, reflecting public and sometimes professional views that women’s offending was less harmful than male offending. 27 While most women become involved in child sexual abuse at the behest of a male co-perpetrator, 28 some are willing collaborators or indeed initiate the offending. Studies of female sexual offenders highlight various differences, but mainly striking similarities with their male counterparts in the motives and mechanisms involved. 29 Like male perpetrators, women can be driven by sexual

Table 91.6  Stages of sexual homicide perpetrators Stage 1.

2. 3.

4.

5. 6.

Description

Childhood inappropriate social environment

Dysfunctional family dynamics/disturbed childhood attachments that create “setting conditions” that will exacerbate the effects of the later stages of the individual’s pathway to offending Formative events For example, being sexually abused or abandoned, or other events that have a specific and traumatic impact on the developing child Patterned responses Notably withdrawal into a fantasy world of sexualized violence, into which the individual retreats and which is maintained by masturbation and fantasy rehearsal, but also includes other offense-facilitating traits (e.g., hostility, social alienation, and self-justification) Maintenance and exacerbation of these patterned responses occurs through exposure to: (a) personal “stressors” (e.g., rejection or ridicule that most people cope with) and (b) offense “facilitators” (notably substance abuse and offense-related pornography use) Actions toward other Violent sexual fantasies become enacted and reinforced through sexual gratification, and people the desire to repeat and extend the offending “Feedback loop” Past actions are reviewed and rationalized (“she deserved it”; “I deserve to have my way”) in the buildup to further offending

Table 91.7  Compulsive versus catathymic homicides Compulsive homicides Results from a developmentally escalating fusion of sex and aggression. Provides the offender with sexual gratification through killing. Future risk is linked to deviant sexual interests and offense-related paraphilias.

Catathymic homicides Unresolved sexual identity and relationship issues explode in response to an offense trigger. Offense creates relief from these internal conflicts, but this is only temporary until treatment occurs. Future risks are linked to unresolved psychosexual issues and their socio-emotional consequences.

608  Sexual violence

Table 91.8  Development, enactment, and maintenance of sexual offending Developmental factors Early attachments, abuse experiences, attitude development, salient sexual experiences, and prevailing sociocultural “messages”

Characteristics of the adult sex offender

Triggers to the offending behavior

Fixed belief system, cognitive distortions supporting offending, relationship intimacy difficulties, presence or otherwise of sexual deviance, and level of ability to control emotions

Internal: e.g., anger, offense-supporting cognitions, intoxication External: e.g., presence of antisocial peers, opportunities to offend

interest in children, sadistic paraphilic disorder, and beliefs and cognitive distortions that enable them to feel that they are in a loving, consenting and equal relationship with someone much younger, for example, the 30-year-old woman perpetrator describing her 14-yearold male “lover” as the most fulfilling “sexual relationship” she had ever been in.

Integrated theory of sexual offending Marshall and Barbaree’s integrated theory of sex offending16) remains a very helpful template for identifying and intervening in the three keys areas of the development, enactment, and maintenance of sexual offending (Table 91.8).

RISK: Empirically determined, and should determine the intensity of treatment

RESPONSIVITY: Central to the treatment delivery and achieving engagement and motivation, treatments should be designed and delivered in response to offenders’ particular abilities, personal styles and idiosyncrasies (including motivational factors)

RNR

NEEDs: Need to be addressed in treatment should be focused on empirically derived criminogenic factors

Figure 91.3  Risk, need, responsivity principles (Andrews and Bonta, 2010).

Risk, need, and responsivity (RNR) Fundamental human goods

Andrews and Bonta30,31 set out three key principles of riskneed-responsivity (RNR) for effective analysis and treatment of offenders, including sex offenders (Figure 91.3).

Good lives model (GLM) Ward, responding to concerns about a sole emphasis on managing risk factors, advocated a more holistic approach to sex offender treatment.3 The Good Lives Model (GLM) provides for: ●●

●●

●●

Greater focus on offenders’ psychological, educational, recreational, spiritual needs Offenders developing deploying skills and capabilities to secure their personal goals in acceptable ways The creation of a “good” but realistic lifestyle for individuals that meets their needs and is incompatible with offending.

A key element within the GLM is to encourage offenders to develop a conscious and reflective personal style because, like everyone else, they seek fundamental “human goods” (see Figure 91.4). It has been argued that with sex offenders, the problem is not usually about fundamental goals but the ways in which they go about trying to achieve them (through offending behaviors supported by associated attitudes and lifestyles).

Personal agency/autonomy

Interpersonal relatedness/intimacy

Emotional equilibrium

Figure 91.4  The Good Lives Model (Ward et al., 2006).

Subsequently, Yates and Ward,32 noting that the GLM is not incompatible with risk management principles, argued that treatment should: ●● ●●

●● ●●

Identify overarching life goals. Identify “human goods” implicated in offending (e.g., need for intimacy). Assess offenders’ self-regulation capacity. Identify internal and external barriers to and opportunities for offenders to attain their goods/goals.

This approach has now been incorporated in most sex offender treatment programs.

The role of sexual deviance and paraphilias Sexual offenses vary in terms of the extent to which offenserelated sexual interests (including paraphilias) are the primary motive for the offense. Offenses that are largely driven

Clinical assessment, formulation, and intervention  609

by sexual interest in offense behaviors are characterized by the rehearsal of offense fantasies (which are strengthened through masturbation) and offense escalation (as offenses become less sexually satisfying, more extreme fantasies are generated that in turn drive more extreme offending). In this way, some “lower level” offenses such as v­ oyeurism and exhibitionism can escalate into sexual assaults and even sexual homicide, although most such lower level offenders remain fixed at that level of offending.33 Offense-related sexual interests are mostly covered within the paraphilias described by DSM-V34 and ICD-10.35 Paraphilic disorders are defined into two groups within the DSM-V based on “anomalous activity preferences” and “anomalous target preferences.” The term paraphilia denotes any intense and persistent sexual interest other than sexual interest in genital stimulation or preparatory fondling with phenotypically normal, physically mature, consenting human partners. While some may feel distressed by their paraphilia(s), others do not and may indeed plan and relish their enactment even if social and sometimes legal problems result. A feature of paraphilias is their resistance to modification, in just the same way that nonoffenders would find it difficult, if not impossible, to reverse their (adult heterosexual or homosexual) sexual orientations. Table 91.9 lists legal and illegal paraphilias. A wide range of methods for assessing deviant sexual interest have been developed. These include psychometric assessments that seek to ascertain the offender’s sexual preferences by yes/no, true/false, or rating scale responses (e.g.,  the Multiphasic Sex Inventory36). A major problem with these methods is their high level of transparency, such that if offenders were determined to fake such tests they would be able to do so. Other psychometric assessments have avoided this problem by using methods that are harder to fake. For example, Hanson’s Empathy for Children Test requires the offender to read through a set of vignettes involving children and adults in which the child might or might not be expected to be distressed, and to rate how the child is likely feel in each vignette. The test is scored in terms of “deviant responses” and “fake sensitivity” responses. More direct measures of sexual deviance have been developed, notably the penile plethysmography (PPG): this is a direct measure of the offender’s erection response while listening to or viewing (a) material depicting offending

behavior and (b) for comparison purposes, consenting adult sexual behavior. As noted later, PPG assessed offense-related sexual interest is a key predictor of sexual reoffending, especially for child molesters. These assessments are therefore an important part of offense formulation and assessment of risk and therapeutic need. Extensively used in North America for many years, and now also in the United Kingdom, polygraphs measure heart rate, ectodermal, and breathing responses to a series of predetermined questions that enable the examiner to make judgements about the truth or otherwise of the offender’s answers. They are used to: (a) facilitate disclosure of previous offending (offenders who undertake polygraph testing generally reveal more offenses than nonpolygraphed offenders) and (b) assist the offender in the process of risk management and treatment (an offender will be asked whether or not he has avoided certain high-risk situations for his offending). Offenders undertaking these assessments have reported them to be helpful in maintaining their commitment to treatment and avoiding reoffending.37 Other innovative assessment methods have been developed, including the use of viewing time (VT) as an index of sexual interest, and implicit association tests (IATs) in which offenders’ mental associations between offense-related and non-offense-related stimuli and concepts are examined. The Explicit and Implicit Sexual Interest Profile (EISIP) developed by Banse, Schmidt, and Clarbour38 measures sexual interest in children by the use of (a) explicit questionnairebased self-reports of sexual interest, fantasy, and previous behavior and (b) implicit measures of sexual interest using VT and IAT tasks. These methods have been subjected to experimental validation and can potentially provide powerful complementary methods to the psychophysiological methods of the PPG and polygraph.

CLINICAL ASSESSMENT, FORMULATION, AND INTERVENTION Comprehensive formulation In conducting forensic psychological assessments, it is important to be as comprehensive and evidence-based as possible. Comprehensiveness requires gathering information about all

Table 91.9  Legal and illegal paraphilias Legal paraphilias

Illegal paraphilias

Fetishism Transvestic Sexual Masochism Pedophilia Frotteurism Voyeurism Exhibitionism Sexual sadism Necrophilia

involving nonliving objects involving cross-dressing involving the act of being humiliated, beaten, bound, or otherwise made to suffer Sexual activity with a prepubescent child or children Rubbing against and touching a nonconsenting person The act of observing an unsuspecting person who is naked, in the process of disrobing, or engaging in sexual activity Exposing genitals to unsuspecting strangers Sexual excitement to the psychological or physical suffering of the victim Sexual attraction to the dead

610  Sexual violence

aspects of the offender’s life, including: (a) early childhood attachments, any abuse experiences, family background/ dynamics; (b) an educational, sexual, employment, medical, psychiatric, and forensic history; (c) the current situation, including patterns of offending behavior, current relationships, social, sexual, occupational and legal circumstances and issues; and (d) future goals and plans, including situations in which the offender may be at high risk of further offending or conversely that will reduce those risks and facilitate reintegration into a nonoffending lifestyle.

Risk assessment Risk assessment needs to consider in addition to probability of reoffending (e.g., a 50% chance that the person will be reconvicted over the next 2 years) the likely severity of future offending (victim harm) and likely imminence of the risk (how soon after being at liberty would an offense be committed). Such risk analyses will determine the intensity of interventions required (treatment/management) as well as whether a mentally disordered offender, for example, will go to a high-security as opposed to a medium-security unit. Meta-analyses of sexual recidivism studies have highlighted a range of “static” (i.e., unchangeable) and “dynamic” (i.e., potentially changeable) risk factors predictive of sexual reoffending. A comprehensive risk assessment should include a standardized actuarial risk assessment instrument such as the Risk Matrix 2000 (for static risk), and a structured clinical judgment protocol (for dynamic risk), such as the Structured Assessment of Risk and Need (SARN). 39 Static risk assessment tools contain the following elements: (a) early onset of offending behavior; (b) extensive and diverse criminal history, including previous violent and sex offenses, contact and noncontact sexual offenses, stranger victims and male victims; and (c) poor or nonexistent relationship history. Dynamic risk predictors are generally differentiated into (a) stable dynamic: more traitlike but potentially modifiable features of the sex offender’s functioning and (b) acute dynamic: factors that can change rapidly and when they do are predictive of relapse. The two main dynamic predictors that have been identified are psychopathic personality traits and offense-related sexual interests/paraphilias. Key acute dynamic predictors include relapse into substance abuse, negative emotional states such as anger or depression, and disengagement from supervision or treatment. A multimodal functional analysis of the offending behavior (i.e., an analysis of the antecedents to/­predictive of offending and the consequences experienced by the offender—rewards and punishments—of his behavior) should also be formulated, thereby bringing together (a)  ­evidence-based criminogenic risks and needs derived from the published research and (b) risks and needs specific to the individual offender as determined by his personal history and analysis of his offending behavior.

Mental disorder and sexual offending The literature has for many years commented on the interface between mental disorder and sexual offending. While there are clearly demonstrated functional links between sex offending and both personality disorder and substance misuse, mental illness and sex offending are not so strongly associated. The coexistence of both phenomena should not be taken to imply a causal link, the danger here being that treating the mental illness would be seen as the solution to the sex offending risk.40 Smith and Taylor,41 for example, demonstrated that in only 20% of sex offenders with schizophrenia was there a direct functional link between the symptoms of their illness (delusions and hallucinations) and the sex offending, indicating that in 80% of cases sex offending risk would not be reduced by only treating the mental illness.

Treatment, management, and reintegration It is currently recognized that effective sex offender treatment needs to be comprehensive, multifaceted, and multiagency. Research has indicated that the management of deviant sexual interests, a major dynamic risk factor for sexual recidivism, can be usefully addressed through anti-­ libidinal medication and/or behavior modification techniques.42 If treatment responsivity is appropriately addressed, it has been demonstrated that sex offender treatment programs underpinned by the RNR and GLM can also be successfully applied to mentally disordered and learning disabled sex offenders, Simons, McCullar, and Tyler43 noting that the application of GLM principles led to enhanced treatment engagement and treatment completion. Lord and Perkins44 note that the majority of well-treated mentally ill sexual offenders and the less severely personality disordered offenders have relatively similar treatment needs and can generally receive at least some of their treatment in mixed diagnosis therapy groups. A wide range of specialized assessments, therapy services, consultations, and joint workings in the assessment and treatment of female sex offenders have also now been developed.45 Studies vary in their findings about the efficacy of treatment for the differing types of sex offense (rape, child abuse, etc.) in combination with the specific features of the offenders concerned (e.g., type and severity of the sexual offending involved, the presence of otherwise of offenserelated paraphilias and/or psychopathic traits, and the offender’s ability to engage with psychological or medical treatments). It is therefore vital to combine both empirically sound, structured assessments with a detailed and comprehensive formulation of each offender’s risks and needs in designing and managing their treatment, risk management, and community reintegration processes. Meta-analyses of the effects of psychological treatment with sex offenders have shown encouraging results. Lösel and Schmucker,46 for example, in a meta-analysis of 69 studies involving 22,181 sex offenders, reported a 37%

References 611

reduction in sexual recidivism as well as a 44% reduction in violent recidivism and a 31% reduction in general recidivism following sex offender treatment programs, significantly greater than for control and comparison groups. The effects of psychological and psychopharmacological treatments are beginning to be matched by community-based risk management, support, and potential reintegration offered by Circles of Accountability and Support (COSA), although they can be complementary rather than alternative approaches. COSA originated in North America as a “humane support and a realistic accountability framework” and is now widely available across the United Kingdom (see CIRCLES UK website). It is based on volunteers from the community, trained by and working alongside sex offender management professionals, assisting sex offenders (or “core members” as they are known) to reintegrate into the community—in effect bringing together the RNN, risk management/relapse prevention and GLM models in one system. Wilson and colleagues,47 in a 4.5-year follow-up study of 60 high-risk sex offenders and 60 matched controls, reported a sexual reconviction rate of 5% (COSA) versus 17% in the control group (down 70%) a violence reconviction rate of 15% (COSA) versus 35% control group (down 57%), and for all reconvictions 28% (COSA) versus 43% control group (down 35%).

REFERENCES 1. Home Office. Crime outcomes in England and Wales 2013 to 2014. Home Office Statistics Bulletin, pp. 1–42. Available from: https://www.gov.uk/government/statistics/ crime-outcomes-in-england-and-wales-2013-to-2014 2. Silverman J, Wilson D. Innocence Betrayed: Paedophilia, the Media & Society. Cambridge: Polity, 2002. 3. Ward T. Good lives and the rehabilitation of offenders: Promises and problems. Aggression and Violent Behavior. 2002; 7: 513–28. doi: 10.1016/ S1359-1789(01)00076-3 4. Jespersen AJ, Lalumiere ML, Seto, MC. Sexual abuse history among adult sex offenders and nonsex offenders: A meta-analysis. Child Abuse and Neglect. 2009; 33(2): 179–92. 5. Baker AW, Duncan SP. Child sexual abuse—A study of prevalence in Great Britain. Child Abuse and Neglect. 1985; 9: 457–67. 6. Cawson P, et al. Child Maltreatment in the United Kingdom: A Study of the Prevalence of Child Abuse and Neglect. NSPCC, 2000. 7. McGee H, Garavan R, de Barra M, Byrne J, Conroy R. The SAVI Report: Sexual Abuse and Violence in Ireland—A National Study of Irish Experiences, Beliefs and Attitudes Concerning Sexual Violence. Dublin: The Liffey Press and Dublin Rape Crisis Centre, 2002.

8. Creighton SJ. Fatal child abuse—How preventable is it? Child Abuse Review. 1995; 4: 318–28. doi: 10.1002/car.229 9. Finkelhor D. The international epidemiology of child sexual abuse. Child Abuse and Neglect. 1994; 18(5): 409–17. 10. Radford L, Corral S, Bradley C, Fisher H, Bassett C, Howat N, Collishaw S. Child Abuse and Neglect in the UK Today: Research into the Prevalence of Child Maltreatment in the United Kingdom. NSPCC, 2011. 11. Finkelhor D. Child Sexual Abuse: New Theory and Research. New York: Free Press, 1984. 12. Seto MC, Hanson RK, Babchishin KM. Contact sexual offending by men with online sexual offenses. Sexual Abuse. 2011; 23(1): 124–45. http://dx.doi.org/10. 1177/1079063210369013 13. Babchisin 14. Koss MP, Gidycz CA, Wisniewski N. Sexual experiences survey: A research instrument investigating sexual aggression and victimization. Journal of Consulting and Clinical Psychology, 1987; 50(1): 455–57. 15. Ullman SE, Siegel JM. Victim-offender relationship and sexual assault. Violence and Victims. 1993; 8: 121–34. 16. Marshall WL, Barbaree HE. An integrated theory of the aetiology of sexual offending. In: Handbook of Sexual Assault: Issues, Theories, and Treatment of the Offender. Eds. Marshall WL, Laws DR, Barbaree HE. New York: Plenum Press, 1990: 257–75. 17. Knight RA. Is a diagnostic category for paraphilic coercive disorder defensible? Archives of Sexual Behavior. 2010; 39: 419–26. 18. Swim JK, Hyers LL. Sexism: Evidence and Challenges to Documenting Its Prevalence. In: Handbook of Prejudice, Stereotyping, and Discrimination. Ed. Nelson TD New York: Psychology Press, 2008. 19. Koss and Oros 20. Ressler RK, Burgess AW, Douglas JE. Sexual Homicide: Patterns and Motives. New York: Lexington, 1988. 21. Grubin D. Sexual murder. British Journal of Psychiatry. 1994; 165: 624–29. doi: 10.1192/ bjp.165.5.624doi: 10.1192/bjp.165.5.624 22. Perkins DE. Diagnosis, Assessment and Identification of Severe Paraphilic Disorders. In: Sexual Homicide and Paraphilias. Eds. Harris A, Page C. Correctional Service of Canada, 2008. 23. Arrigo BA, Purcell CE. Explaining paraphilias and lust murder: An integrated model. International Journal of Offender Therapy and Comparative Criminology. 2001; 45: 6–31. 24. Schlesinger LB. Sexual Murder: Cathathymic and Compulsive Homicides. Boca Raton, FL: CRC Press, 2004. 25. Cortoni F, Hanson RK, Coache ME. The recidivism rates of female sexual offenders are low: A metaanalysis. Sexual Abuse: A Journal of Research and Treatment. 2010; 22(4): 387–482.

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26. MOJ 27. Davies M, Rogers P. Perceptions of male victims in depicted sexual assaults: A review of the literature. Aggression and Violent Behaviour. 2006; 11: 367–77. 28. Giguere R, Bumby K. Female Sexual Offenders. United States of America: Center for Sex Offender Management, 2007. 29. Eldridge H, Elliott IA, Ashfield S. Assessment of Women Who Sexually Abuse Children. In: Sexual Abuse Assessments: Using and Developing Frameworks for Practice. Ed. Calder MC. London: Russell House Publishing, 2009: 213–27. 30. Andrews DA, Bonta J. The Psychology of Criminal Conduct. 2nd ed. Cincinnati, OH: Anderson, 1998. 31. Andrews DA, Bonta J. Public Safety Canada Corrections Research: User Report 2007–06 [Internet]. 2010. Available from: www.publicsafety.gc.ca 32. Yates PM, Ward T. Good lives, self-regulation, and risk management: An integrated model of sexual offender assessment and treatment. Sexual Abuse in Australia and New Zealand: An Interdisciplinary Journal. 2008; 1: 3–20. 33. Bradford JM. The treatment of sexual deviation using a pharmacological approach. Journal of Sex Research. 2000; 37: 248–57. 34. American Psychiatric Association. Diagnostic and Statistical Manual of Mental Disorders. 5th ed. Washington, DC: Author, 2013. 35. World Health Organization. International Statistical Classification of Mental and Behavioural Disorders: Clinical Descriptions and Diagnostic Guidelines. 10th ed. Geneva, Switzerland: WHO Press, 2010. 36. Nichols H, Molinder I. Multiphasic Sex Inventory. Fincrest, WH: Nichols & Molinder Assessments, 1984. 37. Grubin D. Using the polygraph to manage risk in sex offenders. Assessment and Treatment of Sex Offenders: A Handbook. Eds. Beech AR, Craig LA, Browne KD. Chichester: Wiley, 2009: 145–61.

38. Banse, Schmidt and Clarbour 39. Thornton D. Constructing and testing a framework for dynamic risk assessment. Sexual Abuse: A Journal of Research and Treatment. 2002; 14: 137–51. 40. Garrett T, Thomas-Peter BA. Interventions with sexual offenders with mental illness. Assessment and Treatment of Sex Offenders: A Handbook. Eds. Beech AR, Craig LA, Browne KD. Chichester: Wiley, 2009. 41. Smith AD, Taylor PJ. Serious sex offending against women by men with schizophrenia: Relationship of illness and psychotic symptoms to offending. British Journal of Psychiatry. 1999; 174: 233–37. 42. Beech AR, Harkins L. DSM-IV paraphilia: Descriptions, demographics and treatment interventions. Aggression and Violent Behavior. 2012; 17: 527–39. 43. Simons DA, McCullar B, Tyler C. The utility of the self-regulation model to re-integration planning. Paper presented at the 27th Annual Conference of the Association for the Treatment of Sexual Abusers, Atlanta, GA. 2008. 44. Lord A, Perkins D. Assessing and treating sexual offenders with mental disorders. Journal of Forensic Practice. 2014; 16(2): 94–109. 45. Ashfield S. Female sexual abusers: A g ­ ender ­responsive perspective. The Lucy Faithful Foundation. 2010. Koss MP, Gidycz CA, Wisniewski N. The scope of rape: Incidence and prevalence of sexual aggression and victimization in a national sample of higher education students. Journal of Consulting and Clinical Psychology. 1987; 55: 162–70. doi: 10.1037/0022-006X.55.2.162 46. Lösel and Schmucker 2005 47. Wilson G. The Secrets of Sexual Fantasy. London: J. M. Dent & Sons, 1978.

92 Report writing for the criminal court JOHN O’GRADY Legal framework for expert evidence 613 Common knowledge 614 Body of knowledge 614 Knowledge and experience 614 Impartiality 614 Medico-legal practice 615 Getting started 615 Negligence and suit 615

Confidentiality and record keeping 615 Ethics 616 Assessment of risk 616 The report 617 Conclusion 617 References 618 Case law references 618

Psychiatrists who provide medicolegal reports for the criminal courts address issues at the interface of law and psychiatry, disciplines with markedly different purposes and philosophy. Psychiatry is concerned with the diagnosis, management, and understanding of mental disorders. The law is concerned with fact finding, justice, and, in the criminal courts, attribution of guilt. The role of the psychiatrist can be likened to that of a consultant to the court, assisting the court to understand the nature of mental disorder and its relevance to legal issues. This chapter describes the legal framework governing expert opinion evidence in court, identifies practice and ethical issues affecting psychiatrists in the criminal court, and provide guidance in developing skills for medicolegal work. The chapter draws upon previously published work by the author.1,2 The law on expert witness evidence is ­jurisdiction specific but the general principles are common across jurisdictions. This chapter uses the law in England and Wales to discuss expert evidence in criminal courts.

Lawton L.J. in R v. Turner3 established a “common knowledge” rule to limit expert evidence to such complex technical or scientific matters. He stated:

LEGAL FRAMEWORK FOR EXPERT EVIDENCE Witnesses in court may only give one form of evidence, evidence of fact. In jury trials, it is for the jury members, with the assistance of the judge, to draw inferences from and make judgments upon the facts before them. Expert witnesses on the other hand provides the court with opinion. The jury comprises lay members of the public who typically do not have knowledge of complex technical or scientific matters relevant to their decision making.

An expert opinion is admissible to furnish the Courts with scientific information which is likely to be outside the experience and knowledge of a Judge or a jury. If on the proven facts, a Judge or jury can form their own conclusions without help, then the opinion of an expert is unnecessary. In such a case if it is given dressed up in scientific jargon it may make judgement more difficult. The fact that an expert witness has impressive scientific qualifications does not by that fact alone make his opinion on matters of human nature and behaviour within the limits of normality any more helpful than that of the jurors themselves; but there is a danger that they may think it does … jurors do not need psychiatrists to tell them how ordinary folk who are not suffering from any mental illness are likely to react to the stresses and strains of life. Before allowing expert evidence to be put before the jury, the court must determine if that evidence is admissible. English courts have adopted an Australian test for admissibility Bonython, comprising three parts: ●●

First, whether the subject matter of expert evidence is beyond the “common knowledge” of judge and jury, making such evidence necessary for the court to be able to form a sound judgment on that subject matter 613

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●●

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Second, whether the expert’s evidence forms “part of a body of knowledge which is sufficiently organised or recognised to be accepted as a reliable body of knowledge or experience,” thereby making the expert evidence of special assistance to the court Third, whether the witness has “acquired by study or experience sufficient knowledge of the subject” to render his or her opinion of value to the court

To these three, a fourth part has been added: ●●

The expert must be capable of providing an impartial opinion recognizing the expert’s overriding duty is to the court4

Following widespread concern over miscarriages of justice attributed to misleading expert witness testimony, the Law Commission3 carried out in 2011 a thorough review of the law in England and Wales on expert evidence in criminal proceedings. They recommended that an admissibility of expert evidence test be placed on a statutory footing. The government rejected this and instead choose to enact the bulk of the Law Commission’s recommendations4 by means of Criminal Practice Rules, part 195, and Criminal Practice Directions, part 19A.6 This means that the law on expert evidence remains that of common law but this approach has the advantage that the directions and rules can be amended as case law refines the law on expert evidence. Expert witnesses in England and Wales must be familiar with both the directions and rules and with amendments as they are published. Together the Law Commission report3 and subsequent rules and directions5,6 provide an authoritative analysis of the law on expert evidence applicable to all jurisdictions.

Common knowledge Criminal courts routinely admit psychiatric evidence at the trial and sentencing stages. In fact, psychiatric evidence is required by statute in certain cases, for example, those that involve diminished responsibility, insanity.

Body of knowledge In the United States, the landmark case of Daubert v. Merrill Dow Pharmaceuticals7 laid out stringent criteria to judge the reliability of expert scientific evidence, namely, that the technique, body of knowledge, or theory can be tested; has been subjected to peer review and publication; has a known rate of error; is subject to maintenance of standards and controls; and is generally accepted by the scientific community. R v. Robb8 in the United Kingdom considered the scrutiny of scientific evidence too problematic and instead decided reliability simply based on the expert having special knowledge and being properly trained. In the case of R  v. Canning,9 the court took the view that the way the expert, Professor Roy Meadows, had presented statistical evidence

played a central role in the jury’s decision which led to a miscarriage of justice. The court was critical of the tooready acceptance of that evidence both because the expert had been permitted to testify outside his field of expertise and because the court did not rigorously examine whether the statistical evidence would stand up to a Daubert-type scrutiny of its reliability. There is an obvious problem in that expert evidence is allowed because the court lacks the knowledge of that science but at the same time must make a judgment on its reliability. The more complex the scientific material is, the less able the jury will be to reach a judgment on its scientific reliability. In such circumstances, the jury is likely to defer to the expert’s opinion, which may therefore become extremely persuasive and central to conviction or acquittal. Where there is more than one expert providing an opinion, courts require experts to draw up a joint statement of areas of agreement and disagreement. Another problem for courts is how to deal with expert evidence concerning novel or developing science for which there may be little in the way of peer review and which may not be accepted by the wider scientific community. Examples in psychiatry include battered women’s syndrome or models of obsessional behavior underlying the use of Internet pornography. However, novel or developing science has been important in quashing convictions in cases of miscarriage of justice. In the case of Clarke,10 the judgment concluded that it would be wrong to deny the court of the advantages to be gained from evidence on developing science. The Criminal Practice Directions6 provides the court with guidance on identifying flaws in expert evidence including acceptance of evidence based on a hypothesis not subjected to sufficient scrutiny or based on flawed data. The Directions at section 19A6 provides a checklist of factors courts should take account of in admitting expert evidence, based on the case law decisions discussed above.

Knowledge and experience There is no statutory definition of what constitutes an expert. In R v. Barnes,11 the court stated that an expert is “one who has by dint of training or practice acquired a good knowledge of the science concerning which his opinion is sought.” However as one learned judge has pointed out, an astrologer could meet this definition, but it is unlikely that any criminal court would allow expert opinion on the influence of the planets on an offender’s criminal behavior. Psychiatrists who have completed training, are members of their professional organization, can demonstrate adherence to standards for licensing, and have practical knowledge or have conducted research in the area of expertise sought by the court should have no difficulty meeting of reliability.

Impartiality Good practice in respect to expert witness behavior in court, drawn from case law, is now codified in the Criminal

Medico-legal practice  615

Procedure Rules, which all expert witnesses in the criminal court must adhere to.5 These rules are based on the premise that the expert witness’s paramount or overriding duty is to assist the court on matters within his or her expertise and, further, that duty overrides any obligation to the person whom the expert has received instructions from or is paid by. Honesty and impartiality are the overriding ethical values that must underpin the expert witness’s behavior in court. Those values require the expert to include certain declarations concerning honesty and impartiality, to identify any weaknesses as well as strengths in the case, to recommend any further treatment that is advisable in a particular case, and to suggest any other expertise that may be required by the court. Bias can arise in several ways. The expert witness can sway, deliberately in some cases, the jury, not by the soundness of his or her scientific opinion but by his or her aura of scientific expertise and professional standing. Juries may defer to the most convincing expert rather than soundness of the arguments. Current efforts to shift courts to systematic appraisal of the reliability of expert evidence should counteract this type of bias. A second type of bias can occur when the expert is subtly influenced to slant evidence in one direction by the team commissioning the report. The expert may understandably not wish to disappoint or appear a fool in court and defer to senior persuasive lawyers. Evidence to the Law Commission3 suggested that experts could be influenced by the financial rewards of being retained again by the firm. Another type of bias is deliberate bias, when the expert has one opinion for the defense and another for the prosecution. The Criminal Procedure Rules5 counteracts bias by stipulating that experts disclose to the court the full range of opinion on the issues before providing reasons for their own preferred opinion of the case.

MEDICO-LEGAL PRACTICE Getting started Aspiring expert witnesses must ensure that they are properly trained, understand their duties, and maintain their practice through continuing professional development. Rix7 provides a comprehensive textbook on all aspects of training and duties of an expert witness. An American textbook8 could usefully complement Rix7 with particularly clear guidance on preparation, record keeping, and ethics. The aspiring expert witness should begin by preparing a report under supervision initially by writing ghost reports and then commissioned reports, ensuring that the court understands that the report was prepared under supervision and includes details of supervision. The trainees should develop a portfolio of reports under supervision across the breadth of criminal court issues at the presentence and sentence stages. Trainees must understand the legal system within which they work, have access to criminal law textbooks9,10, and have training in rules governing the preparation of legal reports. Should the trainee progress to regular

preparation of medicolegal reports, then the following practical issues must be addressed: indemnity, safe storage of records, office administration, terms of engagement, fees, and tax (for comprehensive advice see Rix.7 The main emphasis of this chapter has been on the adherence of expert witnesses to stringent standards. Many commentators are concerned that this will deter psychiatrists from providing occasional reports to court. This is likely to be an increasing problem in the future, especially in the light of the removal of immunity from suit (see discussion later in this chapter). It is in the interests of justice that courts can benefit of psychiatrist’s opinion who do not regularly provide medicolegal opinion, but those psychiatrists may understandably feel that they expose themselves to undue professional risk by providing a report. The author’s advice for psychiatrists is to make clear to the commissioner of the report that they may not meet all the standards required of an expert witness, the limits of their expertise, the impact this may have on their opinion, and, if appropriate, advice on other colleagues who may have acquired expertise in court work. The commissioner of the report must then decide if the court should still have benefit of that psychiatrist’s opinion. In complex cases, the occasional expert is well advised to prepare the report under supervision of an experienced expert witness colleague.

Negligence and suit The case of GMC v. Meadows ruled that medical expert witnesses could be referred to their regulatory body by aggrieved parties for work undertaken as an expert witness. The court in the same case commented on immunity from suit, taking the long-held view that it was in the public interest for expert witnesses to enjoy court immunity from suit so that witnesses would not be constrained from freely expressing their opinion because of fear of being sued or fear of vexatious litigation. This remains the case in Scotland, but in England the case of Jones v. Kaney rejected that argument in a minority decision and instead ruled that expert witnesses could be subject to negligence proceedings in court by an aggrieved party.

Confidentiality and record keeping Psychiatric reports prepared for criminal proceedings do not form part of the defendant’s core National Health Service (NHS) records and cannot be disclosed to a third party without express consent. Defense solicitors can exercise their right not to disclose a report to the court. Problems can arise either when the defendant refuses to cooperate with the preparation of a report or, when the report is not disclosed, the examining psychiatrist believes that disclosure is in the public interest. When noncooperation arises from mental illness, the psychiatrist must make a judgment as to whether it is in the best interests of the defendant to alert the court of the

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possible impact of mental disorder on pretrial issues such as fitness to plead or insanity, or at sentencing, availability of a hospital disposal. Such disclosure will almost certainly be justified in the interests of a fair trial, but the disclosure should be limited to sufficient information for the court to make a decision on how to proceed. The psychiatrist may also have to consider whether the defendant should be subject to a Mental Health Act assessment or disclosure of mental disorder to a third party such as a general practitioner. In Cornelius v. DeTaranto [2000] EWCA Civ 1511, the psychiatrist, who wished to arrange treatment for a claimant in a civil case, disclosed the full report to that claimant’s general practitioner without the claimant’s consent. The psychiatrist was held to be negligent in such disclosure. Breach of confidentiality may be justified in circumstances where a report is not disclosed because the report writer believes that the court should consider the report’s findings on risk. In R v. Egdell and others, where Dr. Egdell disclosed the report against the subject’s expressed wishes, the court held that the strong public interest in disclosure to prevent the court from making decisions based on inadequate information on risk was held to override the psychiatrist’s duty of confidentiality. Nevertheless, the psychiatrist must consider the balance between public interest in disclosure and confidentiality, and where disclosure is justified, make only limited disclosure sufficient to make the court aware of the report writer’s concerns. This applies equally to disclosure to other third parties, such as a general practitioner. Rix7 recommends that the psychiatrist in such circumstances insert a recommendation in the report that the general practitioner be advised of the need for treatment and ask to be advised if that recommendation is not passed on to the general practitioner. It is responsibility of the report writer to ensure the security of clinical records and documents in compliance with the Data Protection Act.11 The three Rs should be addressed: ●●

●●

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Retain all documentation until statutory time limits for retention of documents has passed and until at least the time of potential appeal has passed (including potential referral to General Medical Council (GMC) or civil suit). Record: Keep structured, clear, legible, and comprehensive records in a format suitable for other instructed experts to consult. Reveal all sources of information in the report.

Ethics The psychiatrist as an expert witness in the criminal courts has a complex role involving duties as a citizen, doctor, psychiatrist, and expert witness. That complex role exists in a context in which there is potential conflict between the objectives of the law concerned with justice, attribution of guilt, and protection of others, and the objectives

of psychiatry concerning the individual’s welfare, mental disorder, and treatment. That conflict is accentuated by Criminal Justice Law that allows for a welfare disposal in the form of hospital treatment as a sentence following a finding of guilt or imposition of a life sentence. 2 What has been termed dual role conflict12 is inevitable when acting as an expert witness. Martinez and Candilis13 rightly argue that the expert cannot present his or her findings by accurate and value-neutral appraisal of the evidence. Instead the expert brings her own relational and personal perspective to bear on her evaluation. Zedner14 says of expert testimony, particularly the technological application of risk assessment in the legal context, “while technology itself is neutral, it is shot through with social meaning, it is politicised and filtered through the cultural lens of those applying it in ways that technological determinism accounts belie.” A number of authors12,13,15 have proposed ethical guidelines for the practice of forensic psychiatry. In the author’s view, the approach by Martinez and Chandilis13 is the most systematic and comprehensive approach to developing an ethical framework for the practice of expert witnesses in the legal system. Their starting point, is that any ethical framework must be rooted in traditional medical ethics but must also be augmented by consideration of values, cultural context, and subjectivity of the clinical encounter. They propose the following principles to guide practice: ●●

●●

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Respect for persons. Everyone subject to a psychiatric evaluation for court should be regarded with respect and professional fairness. Respect for privacy and confidentiality. While recognizing the limitations to confidentiality and privacy, the evaluation should nevertheless involve balance and perspective. Respect for consent. Psychiatric experts must ensure that those they evaluate understand the purpose of the evaluation, limits of confidentiality, and possible use made by the court of the evaluation (see the section on risk assessment later in this chapter). Commitment to honesty and striving for objectivity. This emphasizes commitment to impartiality, high standards in adherence to Criminal Procedure Rules,5 resisting the “hired gun” phenomenon, thoroughness, and transparency in respect of one’s own personal values.

To this list, the author would add the following: ●●

Respect for the human rights of others. This involves balancing the distribution of benefits and risks for the person being evaluated and society.

Assessment of risk In psychiatric practice, risk assessment is justified on the basis that risk is dynamic, is continuously reassessed,

Conclusion 617

and finds its justification in interventions to reduce risk.16 The  report writer for the criminal court should follow guidance on risk assessment that emphasizes structured risk assessment utilizing, as appropriate, actuarial risk instruments. This places the individual’s risk in the context of a probabilistic risk assessment at group level. While that probabilistic assessment may be accurate at the group level, at an individual level the confidence intervals for any risk assessment are so wide as to make individual predictions highly problematic.17 This leads Mullen18 to argue that “the margin of error in every actual or conceivable risk assessment instrument is so wide at the individual level that their use for sentencing, or any form of detention, is unethical.” Furthermore, as discussed earlier in this chapter, courts are unlikely to have the necessary scientific training or understanding to make an informed decision on the reliability of psychiatric risk assessment, and there is an ever-present danger that instead the courts will defer to the apparent professional standing of the expert witness. Risk is dynamic, subject to revision and future orientated, but the judgment of the court is final and unalterable. While courts may recognize the limitations of risk assessment, they can legitimately argue that evaluation of risk for the mentally disordered falls outside the “common knowledge” of judge and jury and the psychiatrist deemed to have the necessary expertise to inform the court on risk before passing sentence. If one accepts the position, that the state has a legitimate claim of the psychiatrist’s expertise in passing sentence, the psychiatrist would appear to have little option but to report his or her risk assessment despite its clear limitations. This places a grave responsibility on the psychiatrist to report his or her findings on risk in a way that alerts the court to the limitations of risk assessment, particularly the  problem of extracting an individual risk assessment from probabilistic group risk figures. When numerical data are presented, a careful explanation of the range and confidence intervals applicable to the data should accompany raw figures. In the preceding section, significant emphasis was placed on informed consent to the preparation of reports. This must include, in appropriate cases, a careful explanation to the defendant of the potential use made by the court of the psychiatrist’s risk assessment.

INTRODUCTION, DECLARATIONS, AND BACKGROUND

The report

CONCLUSION

The court seeks an expert psychiatric report for one purpose only—the psychiatrist’s opinion. The court does not need a psychiatrist to summarize in minute detail the evidence before the court. The opinion section is the raison d’être of the report; the other sections allow the court, opposing sides, and other experts to make an informed judgment about the quality and reliability of the report. To achieve these objectives, the report should consist of several sections organised in numbered paragraphs.

Miscarriages of justice attributable to faulty expert evidence has led to rigor being applied to the admissibility of expert evidence and scrutiny of the expert’s expertise. In England and Wales a formal set of Directions and Rules 4,5 governing expert evidence which are both comprehensive and exacting has arisen from the concerns regarding miscarriages of justice. The role of the expert witness is an exciting and rewarding one but is demanding and requires adherence to high professional and ethical standards.

The report should contain the qualifications and experience of the expert, declarations and a statement of truth in accordance with Criminal Procedure Rules5; details of interviews, including duration; a statement on informed consent by the defendant; and a list of all documents and papers disclosed to the report writer, any other material used in the report such as medical records together with any limitations to the report or to the expert’s opinion in the particular case. A model statement of truth is provided by the Academy of Experts.19 THE FACTS

The only “facts” that are within the psychiatrist’s knowledge are likely to be those based on findings of mental state examinations, and in that sense are the only facts the psychiatrist knows to be true. All other findings are “assumed” facts—that is, assumed to be true. This includes any records of examinations performed by another doctor. OPINION

The first step is to describe and classify any mental disorder using established diagnostic criteria. If novel or leading-edge criteria are used, the court should be provided with a justification for that use together with a synopsis of the relevant scientific findings and disclosure of references as an appendix. The second step is to translate the psychiatric findings into the legal language employed by the court. For example, diminished responsibility and automatism have precise legal definitions employing legal rather than medical understanding of the mind and mental disorder. Here each issue to be addressed will need a separate opinion. The strength of that opinion, its limitations, and any unusual contradictory or inconsistent features must be disclosed. The range of opinion as might be provided in a psychiatric case conference of psychiatric expert peers should be discussed before the report writer expresses their preferred opinion. The result should be a balanced opinion that avoids dogmatism and is clearly impartial. If the opinion is provisional or qualified, that must be disclosed. Finally, the implications of the opinion should be discussed, including any recommendations for treatment.

618  Report writing for the criminal court

REFERENCES 1. O’Grady, JC. The Expert Witness in the Criminal Court: Assessment, Reports and Testimony. In: New Oxford Textbook of Psychiatry, 2nd ed. Eds. Gelder Michael, Andreason Nancy C, Lopez-Ibor Jr Juan J and Geddes John R. Oxford: Oxford University Press, 2009: 2003–2008. 2. O’Grady, JC. Psychiatry and Ethics in UK Criminal Sentencing. In: The Psychiatric Report. Eds. Buchanan Alec and Norko Michael A. New York: Cambridge University Press, 2011: 254–263. 3. Law Commission. Expert Evidence in Criminal Proceedings in England and Wales. Report 325. London: Stationary Office, 2011. Available from HYPERLINK “http://www.lawcom.gov.uk/wpcontent/uploads/2015/03/lc325_Expert_Evidence_ Report.pdf” www.lawcom.gov.uk/wp-content/ uploads/2015/03/lc325_Expert_Evidence_Report. pdf. Accessed on 19 December 2016. 4. Ministry of Justice Criminal Rules and Practice Directions, 2016. Available from https://www. justice.gov.uk/courts/procedure-rules/criminal/­ rulesmenu-2015. Accessed on 19 December 2016. 5. Ministry of Justice Criminal Procedure Rules, 2015. Available from https://www.justice.gov. uk/courts/procedure-rules/criminal/docs/2015/ crim-proc-rules-2015-part-19.pdf. Accessed on 19 December 2016. 6. Ministry of Justice Criminal Practice Directions, 2015. Available from “http://www.judiciary.gov.uk/ publications/criminal-practice-directions-2015/” www.judiciary.gov.uk/publications/criminal-practicedirections-2015/. Accessed on 19 December 2016. 7. Rix K. Expert Psychiatric Evidence. London: Royal College of Psychiatrists, 2011. 8. Buchanan A and Norco M. The Psychiatric Report. USA: Cambridge University Press, 2011. 9. Hodgkinson T and James M. Expert evidence: Law and Practice. 4th ed. London: Sweet and Maxwell, 2014. 10. Omerod D and Perry D. Blackstone’s Criminal Practice, 2017. UK: Oxford University Press, 2016. 11. Data Protection Act 2016. Available from “https:// www.gov.uk/data-protection/the-data-protection-act” www.gov.uk/data-protection/the-data-protection-act. Accessed on 19 December 2016.

12. O’Grady, JC. Editorial: Psychiatric evidence and ­sentencing: Ethical dilemmas. Criminal Behaviour and Mental Health, 2002: 12, 179–184. 13. Martinez R, Candilis P Ethics. In: The Psychiatric Report. Eds. Buchanan Alec and Norco Michael A. New York: Cambridge University Press, 2011: 56–67. 14. Zedner L. Fixing the Future? The Pre-emptive Turn in Criminal Justice. In: Regulating Deviance. Eds. McSherry B and Bronitt S. Portland Oregon: Hart Publishing, 2008: 35–58 15. Beauchamp T and Clildress J. Principles of Bioethics. 7th ed. USA: Oxford University Press, 2013. 16. Mullen P, Ogloff J. Assessing and Managing the Risks of Violence Towards Others. In: New Oxford Textbook of Psychiatry, 2nd ed. Eds. Gelder Michael, Andreason Nancy C, Lopez-Ibor Jr Juan J and Geddes John R. Oxford: Oxford University Press, 2009: 1991–2002. 17. Hart S, Michie C, Cooke D. Precision of actuarial risk assessment instruments. Evaluating the margins of error of group versus individual predictions of violence. The British Journal of Psychiatry. 2007; 190 (Supp 49): s60-s65. 18. Mullen P. Dangerous and severe personality disorder and in need of treatment. The British Journal of Psychiatry. 2007; 190: s3-s7. 19. Academy of Experts Expert’s Declaration: Criminal Proceedings, 2016. Available from www.academyofexperts.org/guidance/experts-declaration/expertsdeclaration-criminal-proceedings-england-wales. Accessed on 19 December 2016.

CASE LAW REFERENCES R v. Turner (1975) Q.B. 834 and 841. Bonython (1984) 38 SACR 45. Field v. Leeds City Council (2001) 2 CPLR 129. Daubert v. Merrell Dow Pharmaceuticals Inc. (1993) 509 US 575. R v. Robb (1991) 93 Cr App R 161, 164. R v. Cannings (2004) EWCA Crim 1. R v. Clarke (1991) 2 App R 425, 430. R v. Barnes (1964) 50 WWR, 442. GMC v. Meadows (2006) EWCA Civ 1390. Jones v. Kaney (2011) UKSC 13. Cornelius v. de Taranto (2000) EWCA Civ 1511. Is R v. Edgell (1990) Cr App ch 359.

93 Practical aspects of psychiatric report writing for the criminal courts IAN H. TREASADEN Introduction 619 619 Expert psychiatric court reports Problems arising when writing a report on one’s own patient 622 Findings versus opinion 622 Reports requested by solicitors 622 622 Duty to society Consent to disclose medical information 623 Ethics of predicting dangerousness 623 Particular problem areas in court reporting and how they may be addressed 623 623 Before trial At the time of trial 623 Requesting the court to remand a case for a further period while a hospital place is sought 623

At the time of the offense 623 Sentencing 624 Defendant pleading not guilty or is undecided about plea 624 Explaining the relationship of mental illness to offending 624 625 Personality disorder 625 Substance abuse Individuals citing a “voice” telling them to commit the offense where mental illness is not suspected 625 History of head injury or mild intellectual (learning) disability 625

INTRODUCTION

Some authors recommend all medicolegal reports end with a Statement of Truth, that is, a statement that the report writer understands that it is his or her duty to help the court on matters only within his or her expertise and that this duty overrides any obligation to the person from whom instructions were obtained and who is paying the report writer, and that the author believes the facts stated in the report are true and the opinions expressed are correct. Such a Statement of Truth is, however, usually taken as read by the courts. Reports should be signed by the report writer and include his or her qualifications, job title, and whether approved under Section 12.2 of the Mental Health Act 1983. Note that if a psychiatric report is being prepared outside work undertaken on behalf of a hospital (e.g., privately), hospital letterhead should not be used.

One of the principal tasks of forensic psychiatrists, especially those who frequently undertake work in prisons, is the preparation of psychiatric reports for the criminal courts on mentally disordered offenders, although nearly all general psychiatrists will have to undertake such work on their own or new patients from time to time. The following account refers in particular to England and Wales, but the principles will apply elsewhere. In preparation for writing a psychiatric report for the court, in addition to interviewing the defendant concerned, the forensic psychiatrist ideally should gather objective information from other sources to provide a comprehensive forensic psychiatric assessment of the defendant, as detailed in Table 93.1. Psychiatric reports are usually requested with a view to obtaining psychiatric expert advice and evidence on specific forensic psychiatric issues, such as those detailed in Table 93.2. The general principles of preparing and writing a psychiatric report for the court are detailed in Table 93.3.

EXPERT PSYCHIATRIC COURT REPORTS The UK Royal College of Psychiatrists states that psychiatric court reports should only be prepared by a consultant psychiatrist or trainee under his or her supervision, and not, for example, by prison medical officers. Reports should be 619

620  Practical aspects of psychiatric report writing for the criminal courts

Table 93.1  Forensic psychiatric assessment

Table 93.2  Psychiatric expert evidence

1. Full history and mental state examination of patient, including exploration of fantasies and impulses to offend 2. Objective account of offence, e.g. from arresting police officer or from statements (despositions) in Crown Court cases 3. Objective accounts of past offences, if any, e.g. obtain list of previous convictions 4. Additional information gathering, such as interviews with informants, e.g. relatives, reading a pre-sentence report from a probation officer, if prepared 5. Review of previous psychiatric records, e.g. to ascertain relationship of mental disorder to previous behaviour and response to psychiatric treatment and need for security

1. Fitness to plead 2. Mental responsibility, e.g. not guilty by reason of insanity, diminished responsibility 3. Mental disorder, e.g. mental illness, learning disability, personality disorder 4. Is the client treatable? 5. Have arrangements been made for such treatment, e.g. community rehabilitation (previously probation) order, personality disorder with condition of outpatient treatment, or in-patient treatment under Section 37 of the Mental Health Act 1983? 6. Is the client dangerous? e.g. Section 41 Mental Health Act 1983, placement in a special hospital 7. Suggestions about non-psychiatric management, e.g. probation order, supervised hostel

Table 93.3  Psychiatric court reporting A report may be requested: • By a court (magistrates’, Crown or higher), usually through the probation service. Written authorisation by the court must be given • By the defence solicitors, in which case the patient’s written permission is required before giving a report to the solicitor, which remains their property to use or not in court Information required for a report includes: • A social enquiry report from a probation officer • A list of previous convictions • Previous medical hospital records • Previous reports (social and medical) • Depositions where available, e.g. for crown court, but not magistrates’ cases The history will be taken from the patient and, if possible, a relative or friend. The client should ideally be examined fully physically. Questions that the court or solicitor will be particularly interested in include the following: • Does he or she have a mental disorder? • Is it susceptible to or requiring specific treatment? • Can arrangements be made for such treatment, e.g. hospital, out-patient? • Is the client dangerous? • Have you any suggestions as to the client’s management, apart from the psychiatric aspects? After interview and examination of other reports, etc., one can valuably discuss the case again with the probation officer or others, such as other psychiatrists involved in the case: • Discuss particularly your findings and compare them with other professionals’ observations, which may reveal gross discrepancies • Discussion may reveal unexpected channels for disposal or unforeseen difficulties The general principles of the written report are as follows: • It should be in clear English, and technical terms should be avoided if possible. If such terms are used, an explanation of them should be given, e.g. paranoid (persecutory) delusions (false beliefs), auditory and visual hallucinations (voices and visions) • Use the report to help the court reach the most appropriate disposal for the patient • The report is a recommendation to the court. The court may have other psychiatric opinions that oppose yours and may itself be unconvinced by your opinion. Thus, the onus is on you to provide the evidence in the report for your opinion (Continued)

Expert psychiatric court reports  621

Table 93.3 (Continued)  Psychiatric court reporting • The onus is also on the reporting doctor to make all the necessary medical arrangements for the disposal and management of the patient • Be accurate, complete and brief. The court is extremely busy and will resent a turgid, overwritten report. For magistrates’ courts, which may deal with dozens of cases a day, around two pages may suffice; even then, only the opinion may be read People use different forms for their report, but the following is suggested. Paragraph numbers and headings can be used for clarity: Para 1 – Introduction: inform the court of when and where the patient was seen, and at whose request, what information was available, who the informants were, and sometimes what information was not available. State the current offence(s) for which the patient is charged and its date(s), and the plea if known, i.e. guilty or not guilty Para 2 – Past medical history: inform the court of this and of the result of any medical examination, e.g. ‘Physical examination revealed no abnormality’ Para 3 – Family history: report the important, relevant points, including family history, or not, of psychiatric disorder and criminality Para 4 – Personal history: report the important points of the patient’s physical development (e.g. birth, milestones), early development (e.g. bedwetting (enuresis)), schooling (e.g. truancy) and occupational history (e.g. difficulties with a job, sackings, sustaining employment, difficulties with colleagues or supervisors at work) Para 5 – Sexual history: be reasonably discreet. The report may be read in open court Para 6 – Previous personality: report details of personality in terms of social interaction, emotions and habits, e.g. drinking, gambling, drugs Para 7 – Past forensic history: technically, past convictions should not be admissible before conviction, but they are admissible when the report is to assist sentencing. In practice, usually only one psychiatric report is prepared for both trial and sentencing Para 8 – Past psychiatric history: report dates, diagnosis, relevant details and relationship of mental disorder and treatment to offending Para 9 – Circumstances surrounding index offence(s): report the circumstances leading to current offence(s) and the defendant’s state of mind at the time of the offence(s), sticking to the phenomena reported, e.g. ‘for the time of the offence, the patient gives a history of tearfulness, loss of hope, poor sleeping… These are symptoms of a depressive mental illness’ Para 10 – Interview: report the result of the interview, e.g. ‘the patient showed/did not show evidence of mental illness’. Then give a brief outline of the evidence, e.g. ‘the patient muttered and looked around the room as though hearing voices (auditory hallucinations)’, or list the symptoms and say, for example, ‘these are symptoms of the severe mental illness of schizophrenia’. Information in Paragraphs 1–10 should be factual, verifiable and ideally agreed by all, even if others’ opinions differ from your own. Para 11 – Opinion: the final paragraph should express your opinion. The court will be interested particularly in your opinion regarding the following: • Is the individual fit to plead and stand trial? • Does the individual have a mental disorder as defined in the Mental Health Act 1983? • Where appropriate, comment on issues of responsibility, e.g. not guilty by reason of insanity, diminished responsibility, in cases of homicide. • If so, can arrangements be made for the patient’s treatment (sort this out if you can)? Make suggestions to the court about which disposal would be appropriate, e.g. Section 37 hospital order with or without a Section 41 restriction order, or out-patient psychiatric treatment as a condition of a Community Rehabilitation (old probation) order. For example: This man is fit to plead and stand trial. In my opinion he suffers from a mental disorder as defined in the Mental Health Act 1983, the severe mental illness of schizophrenia, characterised by delusions (false beliefs) of passivity (being externally controlled) and auditory hallucinations (voices) talking about him in a derogatory way in the third person. In my opinion, at the time of the alleged offence of murder, Mr X was suffering from an abnormality of mental functioning, due to the severe mental illness of paranoid schizophrenia, affecting his perception, judgment and voluntary control of his actions, as substantially impaired his responsibility for his acts. (Continued)

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Table 93.3 (Continued)  Psychiatric court reporting I consider he would benefit from treatment in a psychiatric hospital. I have made arrangements for a bed to be reserved for him at X Hospital under Section 37 of the Mental Health Act 1983 if the court considers that this would be appropriate. I recommend, if the court so agrees, that he additionally be made subject to restrictions under Section 41 of the Mental Health Act 1983 to protect the public from serious harm and to facilitate his long-term psychiatric management, including by specifying the conditions of his discharge from hospital, e.g. of residence and compliance with out-patient treatment, and by providing the ability to recall him to hospital should his mental state or behaviour deteriorate or he otherwise gives rise to concern. As an alternative: In my opinion this man does not suffer from mental disorder and is not detainable in hospital under the Mental Health Act 1983. He has an immature personality and requires considerable support and would benefit from group psychotherapy as an out-patient. If the court is prepared to consider an alternative to a custodial sentence in this case, I would recommend that, subject to the probation service’s agreement, he be made subject to the direction of a Community Rehabilitation (old probation) order with a condition that he attend an outpatient group under my direction at X Mental Health Unit. Other Issues: Comment on any mitigating circumstances, e.g. marital or work stress, and on the prognosis. Express any doubts you may have as to the likelihood of benefit from or risks associated with treatment in this person’s case. If you have no psychiatric recommendation, say so: for example, ‘I have no psychiatric recommendation to make in this case’. Finally, if essential information is lacking, or if time is not sufficient to make the necessary arrangements for a hospital bed, then do not hesitate to state your findings to date, state what you would like to do, and ask for a further period of remand.

independent whether the psychiatrist has been instructed by the Crown Prosecution Service or defense solicitors (equivalent to an attorney in the United States). The  individual should be informed and warned that an interview to provide a court (or similar) report is not a normal medical interview, is not confidential, and may be used in sentencing and sent even if the subject does not cooperate. This is sometimes referred to as a contract of confidentiality. However, the British Medical Association (BMA) states that doctors may properly refuse to examine subjects who do not wish to be examined.

expert witness, one can forward an opinion to the court that otherwise would be deemed hearsay for any other witness of fact.

PROBLEMS ARISING WHEN WRITING A REPORT ON ONE’S OWN PATIENT

DUTY TO SOCIETY

Problems arise if a psychiatrist is asked to compile a court report on a patient he or she knew previously. The BMA advises doctors to make clear to the patient their two roles. It may be necessary to detail in the report only what took place in the interview for the report and not refer, if the patient does not agree, to the past psychiatric history, and then explicitly state that this is what has been done. Alternatively, it may be necessary to override the patient’s wishes and reveal the past psychiatric history, not only for reasons of public interest but also in the patient’s own interests.

FINDINGS VERSUS OPINION It is important to distinguish findings, which should be objective and ideally agreed by all, from opinion. As an

REPORTS REQUESTED BY SOLICITORS If reports are requested by solicitors, it is their decision whether to use or make available the doctor’s report. However, in the United Kingdom, doctors rarely have successfully argued that their duty to society overrides the solicitor’s wishes.

In the United Kingdom the duty to society can override the duty to maintain patient confidentiality, (e.g., W. v. Dr. H. Egdell (Court of Appeal 8.11.89)). In this case, a psychiatrist revealed a patient’s dangerousness to the then assistant medical director at Ashworth High Secure Hospital, knowing this likely would be conveyed to the Ministry of Justice, although psychiatrist’s Mental Health Tribunal report, which revealed this information, was not submitted to the tribunal by the instructing solicitors. A similar ruling was made in the case of R. v. Crozier (1990). Crozier attempted to murder his sister. Dr. Wright said Crozier was not mentally ill. Crozier was just about to be sentenced to prison when the defense psychiatrist, Dr. D. McDonald, arrived late and gave his report, indicating mental illness, to the prosecution. As a result, Crozier was sentenced to be detained in hospital under Sections 37 and 41 of the Mental Health Act 1983 against his wishes.

Particular problem areas in court reporting and how they may be addressed  623

The ideal is to try to persuade the patient to give consent to release the report to a third party, but otherwise he must be advised that absolute confidentiality, for example, regarding crimes, cannot be promised. If a doctor does reveal information without a patient’s consent, he or she will need to be able to justify this to the General Medical Council (GMC), which takes a very hard line on this issue. Breach of confidentiality can lead to a charge of serious professional misconduct.

(1) While X was fit to plead and stand trial at the interview with me today, his mental state may continue to vary. (2) By the time of the trial, after additional medication or inpatient psychiatric treatment, I anticipate X will be fit to plead. (3) I recommend X be transferred to the hospital for treatment (e.g., under Section 36, or 48), following which I anticipate X will become fit to plead, e.g. by the time of his trial.

CONSENT TO DISCLOSE MEDICAL INFORMATION

In making recommendations in a psychiatric court report, it is useful to be aware that under Section 37(3), an individual charged with but not convicted of an imprisonable criminal offense who is unfit to plead can be sentenced to a Section 37 hospital order by a Magistrates’ Court, without the need to be formally found unfit to plead by a Crown Court. Until it can be stated that an individual is fit to plead, the trial cannot proceed to find the defendant guilty or not guilty of an offense. Therefore, even if the doctor has not decided whether he or she can or will offer or arrange inpatient psychiatric treatment as a disposal at sentence (e.g., under Section 37), he or she may need to give a preliminary report and opinion on fitness to plead.

It is generally considered reasonable for a doctor to disclose information about a patient, including in a report, if the patient consents, that is, if the patient realizes the nature and consequences of doing so and agrees to it. The BMA and GMC also consider it reasonable for a doctor to share information with other persons professionally concerned with, or assisting or collaborating in, the patient’s clinical care (viewed as “implicit consent”). However, this does not extend to forwarding a copy of a psychiatric report for the court to a general practitioner, social worker, or probation officer to whom the defendant is known.

ETHICS OF PREDICTING DANGEROUSNESS This issue may arise, for example, when recommending in a Crown Court criminal case a Section 41 restriction order (“to protect the public from serious harm”), First-tier Mental Health Tribunals, and, in the United States, the death penalty if an offender is a “continuing threat to society.” Issues include the inaccuracy of prediction, the traditional medical ethic against the death penalty, and that if a psychiatrist does not offer treatment but states that the patient is dangerous, this may result in prolonged detention in prison, as in the case of those convicted of manslaughter who are not offered hospital treatment and who receive a life sentence, serving longer in prison than those convicted of murder.

PARTICULAR PROBLEM AREAS IN COURT REPORTING AND HOW THEY MAY BE ADDRESSED Before trial The majority of those in prison may have psychological or psychiatric difficulties, but transfer to and detention in the hospital depends on the presence of a mental disorder of a nature and/or degree for which the individual require inpatient psychiatric treatment.

Requesting the court to remand a case for a further period while a hospital place is sought A report to this end might include the following: Because Mr. X may have developed a severe psychotic mental illness, I am seeking to opinion of his responsible catchment area consultant psychiatrist with a view to her/his assessing whether she/he is prepared to admit Mr. X to the hospital under Section 37 of the Mental Health Act 1983, and I would therefore respectfully request the court to remand Mr.  X for a further period to allow this assessment. Mr.  X, however, is fit to plead and stand trial. NB: Remand periods between court hearings are usually a maximum of 3–4 weeks at a time. Courts are often very agreeable to such requests, especially when it is clear what is being proposed. What the courts dislike is not knowing what is happening in terms of either a psychiatric assessment or disposal.

At the time of the offense

At the time of trial

DIMINISHED RESPONSIBILITY: CORONERS AND JUSTICE ACT 2009, SECTION 52

UNFIT TO PLEAD: CRIMINAL PROCEDURE (INSANITY AND UNFITNESS TO PLEAD) ACT 1991

This is a defense against a charge of murder only. It reduces the charge from murder, which carries a mandatory life sentence, to manslaughter, which allows discretionary sentencing, including a hospital disposal.

If it is unclear as to whether an individual is or will be fit to plead, it may be appropriate to state one of the following:

624  Practical aspects of psychiatric report writing for the criminal courts

Note that abnormality of mental functioning in the case of diminished responsibility is undefined and is not equivalent to the Mental Health Act category of mental disorder. It must, however, arise from a recognized medical disorder. However, it has been ruled in the Court of Appeal that an abnormality of mental functioning would adversely affect the perception, judgment, or voluntary control of actions. Substantially is also undefined and is technically for the jury or court to decide, although the psychiatrist may, on occasions, be asked for his or her opinion.

Sentencing If the psychiatrist is recommending a Section 37 hospital order or Section 38 interim hospital order, it should be his or her responsibility to seek a hospital bed and to ensure that the two legally required medical recommendations are available to the court, if a bed is available within 28 days. If no bed is available within 28 days, the court usually will remand the case, provided it is told a bed is being sought and kept up to date with progress to this end. Community rehabilitation orders (formerly probation orders) should only be recommended by a psychiatrist with or subject to the UK National Probation Service’s agreement. The community rehabilitation order can be for outpatient and/or inpatient treatment as directed, but it does not allow hospital staff to detain a patient in the ­hospital against his or her will, if the patient wishes to leave. The only recourse then is to return the individual to  court. Note the offender’s consent to a community rehabilitation order and to any attached condition of psychiatric treatment is required. RECOMMENDATION FOR HIGH SECURE HOSPITAL DISPOSAL

An opinion of the responsible catchment area medium secure service supporting referral is generally required. THE DANGEROUS PATIENT NOT SUITABLE FOR ADMISSION TO HOSPITAL

When particular patients are causing concern and professionals are exhorting each other to do more, including to arrange an urgent hospital admission, in spite of the individual clearly not being amenable to specific inpatient psychiatric treatment, e.g. an individual with antisocial personality disorder, it is sometimes helpful to explicitly state, including in a report, that what is being done ­psychiatrically is all that can be done, but that this will not remove all risk. Involvement of Multi-Agency Public Protection Panels (MAPPs) or Arrangements (MAPPAs) (introduced by the Criminal Justice and Court Services Act  (2000) and strengthened by the Criminal Justice Act (2003)) can also help share with a psychiatrist the burden and risk management of untreatable dangerousness.

NEED TO RECOMMEND SUSTAINED INPATIENT PSYCHIATRIC TREATMENT IN A COURT REPORT

Many mentally ill offenders have limited insight and a history of non-compliance with treatment. They often need sustained, not brief, periods of adequate psychiatric inpatient treatment, including medication and rehabilitation, if the risk of reoffending is to be reduced. The characteristic shortterm general psychiatric unit admission length may not bring their mental illness into sufficient remission, especially as antipsychotic medication often takes up to a month to significantly start to work. An insufficiently sustained period of inpatient treatment of such individuals may only result in increasing their hostility to further psychiatric contact for fear of loss of their freedom again.

Defendant pleading not guilty or is undecided about plea If the defendant is pleading not guilty or has not decided upon his plea, but you as the general psychiatrist think he or she was mentally ill at the time of the offense, state in the report, for example, “For the time of the offense, Mr. X showed symptoms of a depressive mental illness, including severe despondency, suicidal ideas, weight loss, early morning waking.” This avoids having to comment on likely guilt before a plea is entered, but confirms your opinion of mental disorder being present at the time of the offence.

Explaining the relationship of mental illness to offending The index offense may have arisen directly from paranoid delusions (false beliefs of persecution), due to the individual’s severe mental illness (e.g., paranoid schizophrenia), or indirectly, due to a deterioration in personality and social functioning due to schizophrenia. Where an offence arose from a combination of mental illness compounded by substance abuse and/or personality difficulties, state, for example, in the report, “The index offense followed alcohol abuse and arose from a combination of his mental illness and personality difficulties”. Note if mental illness has exacerbated personality difficulties or may have caused premorbid personality deterioration. Disagreements between differing opinions in psychiatric reports over the need for medical inpatient treatment frequently arise when an individual with schizophrenia offends due to a deterioration in his or her social functioning and personality, but is then found to have minimal positive psychotic symptoms. The individual’s offending may be wrongly attributed in the report to personality disorder. The mentally ill may, however, offend for “normal” reasons. They may, in such circumstances, simultaneously experience hallucinations (voices) telling him or her to offend, but this may not be the primary cause of such offending and in psychiatric reports one should be cautious of saying so.

Particular problem areas in court reporting and how they may be addressed  625

The consequences of offending, such as imprisonment, may precipitate mental illness, such as depression, and one should be aware of this in writing a report and avoid citing such a mental illness as an important factor in the index offence.

Personality disorder In giving an opinion on and individual with a personality disorder, the following statements may be appropriate: • Mr. X is fit to plead and stand trial. • Mr. X does not suffer from mental illness or intellectual (learning) disability. He is handicapped by personality difficulties, understandable from his family and early background, characterized by X, Y and Z (e.g., impulsivity, overanxiousness, oversensitivity, difficulties sustaining relationships and employment, low self-esteem, and a low tolerance of stress, following which he has a liability to behave impulsively, antisocially, and aggressively, and to self-harm). I do not think Mr. X’s personality difficulties are amenable to specific inpatient psychiatric treatment, and therefore, in the absence of mental illness, I do not consider he is detainable under the Mental Health Act 1983.” For those with personality disorder, any psychiatric or psychological help, such as anger management, can be offered “after the law has taken its course,” “when he is free to do so,” that is, after any sentence the court wishes to impose. Alternatively, psychiatric or psychological treatment can be offered as a condition of a community rehabilitation order, subject to the agreement between the individual and the National Probation Service. Forensic psychiatrists are doing a disservice to the court, the patient, and society if they make offers of treatment that will not work. Beware also of offering hospital admission to those with a primary personality disorder who appear despondent on this basis that they suffer from a depressive mental illness, as the depression may quickly clear once the court proceedings have ceased and the individual is an inpatient, whereupon one may then be left with just an untreatable personality disorder.

Substance abuse In general, where an individual has offended following voluntary substance intoxication, it may be best to allow the

law to take its course and only offer substance abuse treatment or help on a voluntary basis when the individual is free to do so, except where specific drug rehabilitation residential placements are recommended, for example, as a condition of a community rehabilitation order, which, however, the patient must agree. In a case of alcohol abuse, one might state in the opinion of a psychiatric report: Mr. X must stop abusing alcohol. This is something he must primarily decide to do. It is, however, unclear if he has the ability or will to stop abusing alcohol. He may be additionally helped by attending Alcoholics Anonymous or receiving substance abuse treatment, but this will be of secondary importance to his motivation. For those on remand in prison, there will often be enforced abstinence and therefore by definition no current dependence.

Individuals citing a “voice” telling them to commit the offense where mental illness is not suspected Note in the report the absence of other characteristic symptoms of severe mental illness such as schizophrenia, for example, the absence of Schneiderian first rank symptoms and thought disorder. Suggest that such isolated voices reflect only pseudo hallucinations occurring in someone with a severe personality disorder under stress or that the voices may merely be due to substance abuse. Alternatively, consider the possibility of an episode of psychosis (“micro-psychosis”) in someone with a severe personality disorder, such as borderline personality disorder, who are vulnerable to such episodes under stress.

History of head injury or mild intellectual (learning) disability Such a history can be given undue weight in mitigation, including by jurors, especially when computed tomography (CT) or magnetic resonance imaging (MRI) scan abnormalities are evident. To counter such opinions, note if the head injury or mild learning disability affects the individual’s ability to sustain himself or herself adequately in the community and state if one does not believe the condition is of a degree that would significantly affect the individual’s responsibility for his or her acts.

94 Report writing for the First-tier Tribunal JOAN RUTHERFORD Background 627 Duties of the responsible authority 627 Duties of the first-tier tribunal—mental health 627 Duties of the tribunal members 628 Role of the mental health casework section 629

Role of the responsible clinician 629 Testing the patient’s capacity to appoint a representative 630 Responsible clinician’s report 630 References 633

BACKGROUND

For restricted cases and patients detained on Section 3, the timing is 3 weeks from receipt of the application; for Section 2, the patient’s hearing must be listed within 7 days from receipt of application, so reports are needed as soon as possible. The RA must provide an appropriate venue for the hearing; the tribunal service provides guidance notes about this.

Some clinicians can feel anxious about giving evidence to a tribunal panel; they may be unaccustomed to explaining evidence in a patient’s presence or within a “court” setting. The sections in this chapter on written evidence and oral evidence are designed to help the clinician in these tasks and explain how the evidence from the clinical team can assist the First-Tier Tribunal Service to carry out its duties. Both the Responsible Authority (RA) and the FirstTier Tribunal Service have duties with regard to written evidence, which are specified in this chapter. This chapter refers to the tribunal in England and Wales: The tribunal system in Scotland is different.

DUTIES OF THE RESPONSIBLE AUTHORITY If a patient is detained in the hospital, then the RA must submit a statement that contains or has attached the ­ following: 1. Statement of information about the patient. This should include details of the nearest relative, the ward details, and the care coordinator’s details for community-based patients for ease of contact for the patient’s pre-hearing examination by the tribunal doctor, also known as the medical member (MM), if this has been requested. 2. Responsible Clinician’s (RC) report. 3. Inpatient nursing report. 4. Social circumstances report. When these reports are required depends on the section of the Mental Health Act used to detain the patient.

DUTIES OF THE FIRST-TIER TRIBUNAL— MENTAL HEALTH The function of the First-Tier Tribunal—Mental Health (referred to as the tribunal throughout this chapter) is to review the justification for continued detention, community treatment order (CTO), or guardianship. In the case of restricted patients, the tribunal’s role is limited to determining whether the statutory criteria for detention in a hospital continue to be met, and if not, whether discharge should be absolute or subject to conditions. Tribunal panels hearing restricted cases may recommend but cannot order leave or transfer to another hospital. Tribunal hearings result from two processes: either (1)  the patient, or, occasionally, the nearest relative makes an application requesting discharge from detention, or (2) there is a referral to the tribunal due to the Mental Health Act requirements for a review regarding the need for detention when a patient has not made an application. A referral originates from the hospital managers or the Secretary of State (SoS), depending on the patient’s status. The number of applications and referrals is increasing; receipts show more than 32,000 each year. Overall, 10% of these are restricted cases, 28% are Section 2 appeals, 10% are CTO hearings, and the majority (about 50%) are Section 3, with a small number of Section 37 and Section 47/49 appeals. 627

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The practical details of receiving and organizing written evidence are as follows: the tribunal office must log receipt of the patient’s reference or application within 48 hours and notify all parties. The RA reports are sent to the patient’s representative, who may request independent reports. The hearing of a restricted case is scheduled for approximately 14  weeks after receipt of the reference or application, but sooner (between 5 and 8 weeks) in the case of a recalled conditionally discharged patient. All reports on restricted patients are sent to the Mental Health Casework Section (MHCS) at the Ministry of Justice (MoJ) for comments by SoS. After the hearing, the written decision for restricted cases is forwarded by the tribunal office to all parties within 7 days of the hearing. The tribunal office must inform the hospital managers if an application or reference is made by a patient when the victims fall within the scope of the statutory victim contact scheme in the Domestic Violence (Crime and Victims) Act 2004. The victim is entitled to make representations and to receive information about discharge or conditions; the process for this is via the victim liaison officer (VLO) of the Probation Board. The tribunal must consider the victim’s representations. The reports in some restricted or other complex cases may be reviewed by a salaried tribunal judge (a judge who works full time for the tribunal) before the tribunal hearing. The judge may ask for further information or reports (e.g., a report or record of a meeting with the Multi-Agency Public Protection Arrangement [MAPPA]). The tribunal is responsible for providing interpreters if required to assist the patient at the pre-hearing examination with the tribunal doctor or with his or her representative, and at the tribunal hearing. The tribunal’s role with regard to written and oral evidence is governed by the procedural rules. These consist of five parts, of which four are applicable to the mental health jurisdiction as follows: Part 1: Introduction, with overriding objective. Part 2: General powers and provisions. Part 4: Proceedings before the tribunal in mental health cases. Part 5: Correcting, setting aside, reviewing and appealing tribunal decisions. For full details, see the tribunal rules.1 The main areas where the rules are applicable to mental health evidence are as follows: Justice. This is the overriding objective, which is “to enable the tribunal to deal with cases fairly and justly” (Rule 2). The patient’s right to representation. The patient’s representative does not have to be a legally trained person but cannot be another patient liable to be detained or subject to a CTO or guardianship. The tribunal may appoint a representative if the patient lacks capacity to appoint one when the tribunal believes it is in the person’s best interests or when the patient has stated that he does not wish to conduct his own case but does not then appoint a representative (Rule 11.)

Postponement and adjournment requests. The tribunal may postpone or adjourn a hearing in order to request further information, but the need for this must be balanced against the resulting delay, which may not be “fair or just” or in the patient’s best interests (Rule 2 and Rule 5.) Nondisclosure. The RC or another report writer may request certain information to be withheld from the patient. The decision whether the information is withheld rests with the tribunal, which has to be satisfied that “such disclosure would be likely to cause that person or some other person serious harm; and having regard to the interests of justice, that it is proportionate to give such a direction.” The information, in all cases, is given to the patient’s legal representative (Rule 14). Directions for further evidence. The tribunal can request further reports, for example regarding aftercare, or additional information such as psychology reports if relevant to the patient’s risk assessment (Rule 5). Using expert evidence. The tribunal can review expert evidence and decide whether it is necessary, direct that the evidence to be given by one expert only, and direct a discussion between experts, including the RC, to identify the issues and, where possible, to reach agreement on an issue. The discussions between experts can be by phone. After discussions, the experts can be asked for a brief written statement of the areas on which they agree and those on which they disagree, and a summary of their reasons for disagreeing (Rule 5). Withdrawal. If the patient decides not to proceed with the tribunal hearing once it’s begun, the tribunal panel has to decide whether this amounts to a tactical ploy, especially if it’s clear that the patient thinks the evidence is going against him or her. A patient cannot withdraw a referral (Rule 17). Examination of the patient by the tribunal doctor. This is explained in more detail later in the chapter (Rule 34). Excluding someone from the hearing. If the patient, or his or her relatives, becomes disruptive at a hearing, he or she can be asked to leave, and the hearing continues. This rule also enables the patient to be asked to leave while relatives give evidence if they are inhibited by the patient’s presence, and vice versa (Rule 38). Proceeding in a party’s absence. If the patient does not attend, the tribunal panel must decide whether “reasonable steps” have been taken to notify the patient of the hearing, whether the patient has decided not to attend, and whether the patient would attend the hearing if it were postponed and rearranged (Rule 39). If witnesses from the responsible authority do not attend so that the hearing cannot proceed (e.g., there are no aftercare arrangements), the tribunal has power to give an order and then a summons (Rule 16).

DUTIES OF THE TRIBUNAL MEMBERS Restricted patients’ hearings are heard by a Restricted Patient Panel (RPP); in these panels the judge is a circuit judge, recorder, or full-time mental health judge.

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All tribunal doctors and specialist lay members (the previous term, lay member, was thought to be too general) can sit on any case whether it is restricted or nonrestricted. The specialist lay member’s questions at a restricted hearing will include the provision of S117 aftercare and links with MAPPA and also contact with the patient’s nearest relative. The tribunal doctor’s role is to provide specialist information to the tribunal regarding the statutory criteria. The MM interviews the patient and accesses the multidisciplinary team (MDT) notes—a process known as the prehearing examination—for all Section 2 patients but not for other patients unless it’s been requested by the patent’s legal representative (Rule 34). The rule states: 34.—(1) Where paragraph (2) applies, an appropriate member of the Tribunal must, so far as practicable, examine the patient in order to form an opinion of the patient’s mental condition, and may do so in private. (2) This paragraph applies— (a) in proceedings under section 66(1)(a) of the Mental Health Act 1983(b) (application in respect of an admission for assessment), unless the Tribunal is satisfied that the patient does not want such an examination; (b) in any other case, if the patient or the patient’s representative has informed the Tribunal in writing, not less than 14 days before the hearing, that— (i) the patient; or (ii) if the patient lacks the capacity to make such a decision, the patient’s representative, wishes there to be such an examination; or (c) if the Tribunal has directed that there be such an examination. In addition, if the patient fails to attend the hearing, the panel itself should direct the tribunal doctor to interview the patient in the ward before proceeding with the hearing unless such an interview is impractical or unnecessary. It may be impractical or unnecessary if, for example, the patient is too unwell, does not wish to see the tribunal doctor, has gone absent without leave, or lives in the community and has chosen not to attend a hearing. It also may be that the patient’s representative agrees that a prehearing examination is unnecessary. The dual role of the MM of the tribunal when a prehearing examination is conducted requires the MM to be both a witness in giving evidence and a judge in making a decision.

ROLE OF THE MENTAL HEALTH CASEWORK SECTION In 2007 the Home Office Mental Health Unit (MHU) became the responsibility of the MoJ, and is now known

as the Mental Health Casework Section (MHCS). The MHCS can: ●●

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Permit the transfer of sentenced and unsentenced prisoners to the hospital for treatment under Sections 47/49 and 48/49 of the Mental Health Act. Consent to the RC granting Section 17 leave of absence to restricted patients; this can be escorted, unescorted, overnight, or trial leave. Monitor a conditionally discharged patient’s progress via regular reports from the clinical and social supervisor. Vary, add, or remove conditions of discharge set by either the tribunal or the SoS. Recall a conditionally discharged patient to a secure hospital.

The detaining authority’s reports are sent to the MHCS for comments by the SoS for Justice, who issues an MoJ statement to the tribunal office along with a summary of the offense or alleged offense and a record of any other criminal convictions. A period of 3 weeks is allowed for the SoS’s response, except for SoS references following a recall, when the time period is 2 weeks. The MoJ does not have an obligation to comment on supplementary reports (i.e., independent reports, victim’s statements, or addendum reports from the clinical team), and the hearing can proceed so long as the panel is satisfied that reports have been received by the SoS. However, the MoJ must be given reasonable time to consider any addendum and must provide a supplementary statement, especially if there is a change in recommendation to the tribunal. Any of the parties may be represented at the tribunal hearing (Rule 11). The MoJ very rarely seeks representation but will notify the tribunal at the earliest opportunity when it wishes the SoS to be represented. In the case of a restricted patient subject to restriction directions (Section 49), when the tribunal concludes that the patient is entitled to either a conditional or an absolute discharge according to the criteria, the SoS is given 90 days within which to consider whether the patient should be discharged. The tribunal can recommend that the patient remain in the hospital rather than be returned to prison if the SoS does not agree to the discharge. (If the patient remains in the hospital owing to this recommendation, he or she can make an application to the Parole Board once the minimum period of sentence is reached.)

ROLE OF THE RESPONSIBLE CLINICIAN This section is designed to guide the RC in his or her written evidence, so that the tribunal can use such evidence to work effectively. This enables the tribunal to be inquisitorial rather than adversarial. Two points to remember are (1) the tribunal can make best use of information that corresponds to the criteria for detention, and (2) the RC’s knowledge of how the tribunal functions can ensure a more productive hearing for the patient.

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Testing the patient’s capacity to appoint a representative The RC should ask whether the patient intends to attend the tribunal and whether he or she intends to appoint a representative. If the patient does not intend to appoint one, then it is important to assess the patient’s capacity. It may be that the patient does not understand the tribunal or has had ­difficult experiences in the past. To have capacity, the patient needs to understand, retain, and weigh the consequences of a decision and be able to express his or her decision. The patient should be aware of what the tribunal is, what the tribunal’s options are, and the role of a representative, and state whether he wants to represent himself (Rule 11). It is important that the patient is aware that he does not have to attend any or all of the tribunal and may choose to give his evidence first. If the patient decides not to appoint a representative, then the RC should consider whether this decision is consistent with previous decisions about being represented at tribunals. If the patient does not have capacity, then the RA’s Mental Health Act administrator should contact the tribunal office so that the tribunal can decide whether to direct representation (the duty or liaison judge can order this) rather than adjourning the tribunal on the day.

Responsible Clinician’s report TIMING

Reports must be submitted on time. For patients detained under Section 2, a report is needed as soon as possible, and for Section 3/37/47/17A as soon as practicable, and in any event within 3 weeks from the date the RA receives a copy of application or reference (Rule 32[6]). In relation to restricted patients (37/41, 47/49, 48/49) the MoJ must receive the original report at least 3 weeks before the hearing (Rule 32[7]) to allow sufficient time for the SoS to comment. Timing is important for fairness to the patient—specifically, time to consider the report and its implications and time for the patient’s legal representative to obtain independent expert evidence (particularly for restricted patients). Given the inevitable gap between the writing of the report and the day of the hearing, all report authors should consider giving verbal updates to assist the tribunal. This becomes essential if the patient’s status changes. For a restricted patient, do not submit a written addendum on the day of the hearing. Sanctions for late reports depend on the proximity of the hearing, and possibilities include directions to comply and a summons to provide a report or attend a hearing. CONTENT OF RESPONSIBLE CLINICIAN’S REPORT

The practice direction specifies the content of the report.2 Clinical teams differ as to whether the report should

be done in the format given in the practice direction. Whichever format is used, the following aspects should be considered: 1. Date the report and number the pages. The RC should countersign the report if not the author. 2 . Report introduction: The report should include the length of time that the patient has been known to the team and/or to the author because this will inform the panel whether there is direct knowledge of events or reliance on reports or discussions with previous teams, and possibly avoid unnecessary questions. 3. Use the statutory criteria in the report that are relevant to the patient’s section of the Mental Health Act: the mental disorder including diagnosis, nature, degree, risk assessment, and, for reports other than Section 2 reports, appropriate treatment availability. Section 2: This is for assessment, although assessment can also include treatment. If the patient is unmedicated during this assessment, the RC can usefully specify the reason, such as waiting for the effects of substance use to wear off, or a deliberate decision not to use medication but other treatment modalities such as psychology. Section 3, 37: The care plan should be consistent with the diagnosis. Appropriate treatment must be available. CTO: The RC needs to justify the need for power of recall under Section 17E(1). The report should emphasize the patient’s history and speed of deterioration, the risks of such a deterioration to the patient and others, and whether power of recall has been considered since CTO applied (even if not used). Restricted cases 37/41: A full risk assessment is necessary including any contact with and input from MAPPA. Conditional discharge cases: The justification for the patient’s remaining liable to recall must be clarified. The proposed conditions of the discharge should be specified in the report. Alternatively, if the clinical team does not think that the patient needs to be liable to recall, then this should be clearly stated. Hearings as result of barring order: The tribunal panel will consider the patient’s risk (i.e., “likely to act in a manner dangerous to other persons or self”) in addition to the usual criteria. The threshold for such behavior is high. 4. Nondisclosure. The clinical team can only suggest that information is not to be disclosed to the patient if there is clear evidence of a “likelihood of serious harm” (Rule 14). Although “serious harm” is not defined ­absolutely, the tribunal takes into account both selfharm and harm to others and the probability of such harm. The threshold for nondisclosure is high.

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Any information not to be disclosed should be written on a separate document and be clearly marked as follows: NOT TO BE DISCLOSED TO THE PATIENT WITHOUT THE EXPRESS PERMISSION OF THE TRIBUNAL. The material will be discussed prior to the hearing by a salaried tribunal judge or by the panel on the day of the hearing, and a decision made. Clinical team members should not give assurances to any third parties that information will not be disclosed to the patient. 5. The definition of mental disorder is “any disorder or disability of the mind.” The report should state which classification system is being used for the type of disorder. When patients have multiple diagnoses, the report should confirm the diagnoses for which they are being detained for assessment and/or treatment. Substance use, if relevant, can be included as an additional diagnosis. A person detained solely owing to learning disability must display abnormally aggressive or serious irresponsible conduct. 6. The nature of the patient’s illness includes whether the diagnosis is of enduring illness with a ­history of relapses, the patient’s response to treatment (­particularly if partial), perpetuating factors in the relapses, and compliance with treatment. It is more difficult to justify “nature” if this is the patient’s first episode and admission. However, a long period of untreated illness plus clear evidence of failed attempts to treat in the ­community using intensive home visits is relevant. It is helpful to summarize the number of admissions in the patient’s past psychiatric history: whether the patient has always required detention, and, if known, the average length of admission. Number the admissions when describing individual episodes, and if the patient has had a continuous admission over some years and has moved from different wards/hospitals, then the account of the current admission benefits from subheadings. If information is available, give a clear picture of how the patient functions when well, and describe any difference between those times and the current time as this demonstrates nature and degree. 7. The current degree includes current behavior and symptoms, both positive and negative psychotic symptoms. This does not mean that the patient is currently detainable for these symptoms. The degree of illness may also include insight if this fluctuates. 8. Offenses. Consider attaching an annex of significant incidents if there is much to report, rather than a detailed account of every incident. 9. When describing risk, check the risk factors as stated on the patient’s original section papers. Patient

representatives often draw attention to changes in the team’s view of risk, and the RC can then explain changes in the risk assessment from admission. Risk to health also includes risk to physical health by self-neglect or neglect of underlying medical conditions. If the patient is distressed by his or her beliefs or symptoms, then that is a clear indication of risk to mental health. The patient’s risk also includes vulnerability, either by exploitation or by retaliation from others. Give full details of the names and scoring schemes of any rating scales used, and assist the tribunal panel by interpreting the patient’s scores. The panel will be aware of rating scales such as the Psychopathy Checklist-Revised (PCL-R), the Historical Clinical Risk Management-20 (HCR-20), and the Violence Risk Appraisal Guide (VRAG), but what is most informative for the panel is how the scores for the particular patient are being interpreted by the clinical team, for example, “the patient’s PCL-R rating of 30 is over the cutoff of 25,” and what proportion of a comparable population would score in a similar manner as the patient. 10. Use numbered points for the current treatment plan. It is helpful for the tribunal panel to know the anticipated schedule of treatment and outcome, for example, “the antipsychotic medication will be titrated over the next 4 weeks for maximum benefit” or “6 months’ psychology treatment may bring improvement to insight,” and also the expectation of treatment, such as whether it is expected that the patient will gain full insight. Management should include the use of National Institute for Health and Clinical Excellence (NICE) guidelines when relevant and specific treatment modalities. Give details of psychological treatments, particularly of more specialist interventions in offender programs; clinical reports sometimes refer to these programs by initials, and it’s helpful to know the aims of such treatments. Often just “nursing monitoring” is mentioned, which undervalues the actual nursing input and invites the tribunal panel and/or the patient’s representative to inquire why this monitoring cannot be provided by a crisis/home treatment team. Either the RC’s report or the nursing report should specify details such as whether the nursing input is 1 to 1 sessions, and directed either formally or more informally in the areas of psycho-education, relapse prevention, and medication compliance or concordance. Escorted leave can give feedback on social skills and appropriate community behavior, and this purpose should be included in the management plan. There is more discussion of appropriate treatment in Chapter 97. 11. Include the date of any previous Care Program Approach (CPA) plan and when the next is planned.

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12. If detention is to be continued, it is helpful for the report to contain a list of the actions or outcomes needed before change in status or placement can be recommended, such as “3 months’ further successful escorted community leave, 3 months’ negative urine drug screens, regular attendance at occupational therapy, and engagement with psychology.” 13. Community Treatment Order (CTO). If the clinical team recommends that detention should continue with a view to applying for a CTO, then the tribunal has to be convinced that the power of recall is necessary. The report should emphasize the history and speed of the patient’s deterioration (typically days/weeks, either from the team’s own observation or from historical data). The report should include any proposed conditions for a CTO and an estimate of how long and for what purpose the conditions serve, for example, “CTO for 12 months to ensure consistent monitoring; medication compliance so that patient can engage with psychological treatment and establish a structured daily routine in the community including education/work opportunities.” This assists both the clinical team and the tribunal when the patient’s mental health is more stable on the CTO and the patient is not disagreeing with its continuation. The report should include the patient’s view of any conditions. (There is no requirement in the Mental Health Act for a patient to agree to a CTO. However, paragraph 29.17 of the Code of Practice3 comments that “...in practice, patients should be involved in decisions about the treatment to be provided in the community and how and where it is to be given, and be prepared to co-operate with the proposed treatment.”) The RC and the approved mental health professional (AMHP) have to consider whether the proposed conditions are workable. The tribunal has no power to alter or amend the conditions of a CTO; this is for the patient’s RC and AMHP when the application for the order is made. Thereafter the conditions can be altered by the RC alone. If the patient is already subject to a CTO and the clinical team wishes this to continue, the reports should state whether the power of recall has been considered since it was applied because this indicates the team’s level of concern. Of relevance are details about when the patient has failed to attend scheduled appointments or not made him- or herself available, which indicate the patient’s level of engagement with the team. If any discussions of concerns have been held by the MDT since the original report was written, they should be recorded in the day-to-day notes for the MM to access as part of the pre-hearing examination. 14. When a conditional discharge is being recommended, the clinical team’s proposals will be considered, but the panel decides what conditions to impose. Panels will

15.

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also consider any views from MAPPA. If an exclusion zone is being proposed, include a map with the reports or bring the map to the hearing. For a deferred conditional discharge, give the panel proposed conditions with a time estimate for the deferral. If the patient is already on a conditional discharge and an absolute discharge is recommended, the report should include the length of time for which there have been no concerns, full details of the patient’s compliance, and how the patient has managed stresses and problems. The RC’s report must contain information on aftercare arrangements; the Code of Practice 33.10 states “the planning of after-care needs to start as soon as the patient is admitted to hospital.” Even if the discharge plan is considered unsatisfactory by the clinical team—because the patient is so unwell and is unlikely to engage with the plan—the tribunal then has been provided with a contingency plan. Although case law states that the tribunal requires only an “embryonic plan,” this clearly depends on the section and the complexity of the risk assessment. For Section 2 hearings, it may be sufficient if, for instance, the ward round notes include a discharge plan rather than a CPA. (Some acute units use the term discharge planning rather than ward round to emphasize planning.) The discharge plan could include input from the crisis/home treatment team, weekly input from the community team, and a referral to the Homeless Person’s Unit (HPU), or night shelters if the patient is homeless. The report should describe the risk if the patient was discharged in this way, such as lack of follow-up, likelihood of relapse without structure, exposure to drugs and alcohol, risk to others, vulnerability from others from retaliation or exploitation, and estimated time of relapse plus any precipitating factors such as substance misuse. If the tribunal is to be asked for a recommendation, the RC should check what can be granted under Section 72(3)a. If a change in status or placement is recommended, do describe how risks can be managed. The tribunal will have seen any comments made by the SoS about restricted patients. Both the RC’s report and the social circumstances report should include the risk management plan if there are to be changes in the patient’s status or placement. In a restricted patient, describing the contact with MAPPA can assist the tribunal in assessing the management of known risks; the tribunal will be aware that MAPPA links can vary from representation at the patient’s CPA to details of who will be contacted on discharge. In the case of a restricted patient, if the RC, care coordinator, or nurse’s opinion changes from their views expressed in the original report submitted to the tribunal, it is vital that this is communicated in writing as soon as possible and well before the hearing both

References 633

to the tribunal and to the MHCS to allow the MoJ an opportunity to prepare a supplementary statement. 2 0. Many clinical teams do go through their reports’ content with the patient before the tribunal so there are no surprises, and record the patient’s view of the clinical team’s conclusions in the report. It is also helpful for the tribunal panel if the report notes the patient’s attitude about attending the tribunal hearing and whether they plan to request a prehearing examination by the MM if the patient has made this clear at the time the report was discussed with him or her. Also helpful is whether these views are consistent with the patient’s previous behavior, that is, has he attended his hearings before, or, if a community patient, does he come for any other appointments and make himself available for a second opinion–appointed doctor visit? This can then inform the tribunal panel whether to proceed in the patient’s absence.

REFERENCES 1. The Tribunal Procedure (First–Tier Tribunal) (Health Education and Social Care Chamber) Rules 2008. S.I. 2008 No. 2699 (L. 16) as in force on 21st August 2015. [Internet.] Available from: https://www. gov.uk/­government/uploads/system/uploads/­ attachment_data/file/357404/health-educationsocial-care-chamber-tribunal-­procedure-rules.pdf. 2. Tribunals Judiciary: Practice Direction First-Tier Tribunal Health Education and Social Care Chamber Statements and Reports in Mental Health Cases. [Internet.] October 2013. Available from: https:// www.judiciary.gov.uk/wp-content/uploads/JCO/ Documents/Practice+Directions/Tribunals/statements-in-mental-health-cases-hesc-28102013.pdf. 3. Mental Health Act 1983: Code of Practice. Norwich, UK: The Stationery Office, 2015.

95 Report writing for the coroner’s court LORNA M. TAGLIAVINI Who should write the report? A good report

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In the United Kingdom, the coroner often calls for reports from treating medical practitioners, in preparation for an inquest, to better understand the deceased’s background, treatment, and circumstances leading up to his or her death. The purpose of these reports is to give the coroner as much information as possible to answer “who died, when and where they died and how they died” in accordance with Rule 36 of the Coroner’s Rules 1984. A psychiatric report for a mental health patient, particularly an involuntary patient, is likely to provide important information to answer the question of how the individual died. This becomes particularly relevant when an involuntary patient has apparently taken his or her own life while in the care of the state. In these inquests the coroner will look at any risk assessments and care plans that have been made, and whether the death could have been prevented but for a failure, if any, in systems and procedures. In the case of deaths occurring during hospital admissions or after surgical treatment, as well as deaths occurring among patients in mental health units, the coroner will look for a comprehensive report from the treating or operating physicians as well as from those who were responsible for overall care of the deceased, for example, a consultant surgeon, clinical director, or consultant psychiatrist. In cases in which a report is provided to the coroner for the purposes of an inquest, the writer should bear in mind that the report may end up being disclosed to other interested persons such as the deceased’s family members and their legal representatives, even though the report is likely to contain information that may be of both sensitive and confidential nature. At present there are no hard-and-fast rules in respect of disclosure of documents. However, the move is toward transparency and openness to enable the bereaved to play a meaningful role at the inquest, particularly where Article 2 of the European Convention of Human Rights (ECHR) is engaged.

Timely preparation of a report Format of the report

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WHO SHOULD WRITE THE REPORT? The person most closely associated with, and most knowledgeable about, the deceased and his or her care should ideally take on the responsibility of writing the report. The writer should not assume the reader has anything other than a superficial prior knowledge of the deceased’s circumstances; therefore, it is helpful to provide some family history and chronology. The writer should not assume that the likely readers of this report are medically qualified, as many coroners are lawyers rather than doctors. Although the former are likely to have a reasonable level of medical knowledge, other readers of this report are not. Therefore, whenever possible avoid jargon, shorthand, or acronyms without first explaining what they mean, and try to limit their use as much as possible. This is particularly important when identifying the roles of staff members. Include their full title when first mentioning them in the report so that the reader does not have to refer to other documentation for this information. The writer should adopt an easy-to-read style in plain English and with clear terminology. Technical terms often must often be used to explain medical procedures, and these should be explained as simply as possible, addressing the central issues without omitting the relevant details. The  clearer the report, the less likely one will be asked to give oral evidence at the inquest. The report is admitted under Rule 37 of the Coroner’s Rules 1984. Some report writers find it helpful to have the postmortem report before writing their report. In these cases the relevant hospital trust can submit a request for the postmortem report if it is recognized as an interested person in accordance with Rule 20 of the Coroner’s Rules 1984.

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A GOOD REPORT A good report includes all relevant facts and does not make assumptions or omit material facts. If in doubt as to what is material or relevant, the writer should include the information in the report. It is always easier not to refer to something in evidence that is not material to the inquest than to mention something for the first time on the witness stand. Bringing up new information while on the witness stand arouses suspicion and can reduce the witness’s credibility, particularly if the information is significant. The report writer is permitted to give an opinion in a report, although it is for the coroner or a jury to accept or reject evidence of any witness and to find facts on which the inquisition must be concluded. The report writer has a duty to provide accurate and comprehensive information to the court and not to mislead it. Typically, the report writer will not be required to attend court to give oral evidence. However, if the issues being addressed at the inquest are complex and raise issues of neglect or serious failings that have caused or contributed the person’s death, the writer is likely to be required to attend.

Timely preparation of a report Any report should be prepared and sent to the coroner via the coroner’s officer who has day-to-day conduct with the matter, as soon as possible after the request is made. The coroner should be notified if the report will be delayed, as this may delay the inquest, which the deceased’s family is anxious to conclude. Similarly, any difficulties in writing the report should be communicated to the coroner, for example, when the person best placed to write the report is no longer available and an alternate will have to be found. If a suitably sufficient report is not forthcoming within a reasonable

period of time, then the coroner will have little choice but to summons the witness to court to give oral evidence. This may mean an extended period on the witness stand as the coroner may have to refer to clinical or nursing notes, care plans, and the like to formulate the line of questioning for the witness.

Format of the report The report should state the writer’s name and qualifications, and to whom the report is being provided and why. It should describe the ambit of the report, whether the writer has been asked to comment on any matters in particular, and if so, what these are. The writer should reveal his or her connection, if any, to the deceased. If any other documents are to be referred to in the report, copies should be attached. The report should be structured logically, using clear, professional language. The coroner will want to elicit facts from the report, not an opinion (unless asked for), as the inquest’s role is to determine how the deceased died, or whether the deceased was failed by a trust or other person or organization. The language in the report should be grammatical and avoid slang or overcomplicated medical terms. If your report is poorly written, you may find yourself being called to court to give comprehensible oral evidence on an incomprehensible written report. If a diagram could assist, provide one. A conclusion may be provided and an element of opinion offered. If the report reveals that legal advice is required, seek the same at an early stage before the report is written. In the growing culture of openness and transparency, there is increasing expectation that a report will be disclosed to other interested persons, including family members, other professionals, or organizations that may seek interested person status for the inquest, as its outcome may be affect them.

5

Part     Giving Evidence

96 Expert evidence in criminal and civil courts Ian H. Treasaden 97 Giving evidence for the First-tier Tribunal Joan Rutherford 98 Giving evidence for the coroner’s court Lorna M. Tagliavini 99 Capital punishment Clarence Watson, Gregory B. Leong, and Spencer Eth

639 645 651 653

96 Expert evidence in criminal and civil courts IAN H. TREASADEN Introduction 639 Expert witnesses 639 Expert witness in civil cases 640 Legal duties of a civil expert witness 640 Writing an expert report 640 Instructions 640 Preparation 640 Opinion 641 Meeting with counsel 641

Giving evidence in court 641 Introduction 641 Be prepared 642 Addressing the court 642 Addressing the legal members of the court 642 Evidence in chief 642 Cross-examination 642 Re-examination 643 References 643

INTRODUCTION

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In most cases in the United Kingdom, a psychiatrist is able to give his or her opinion to the court in a report. Oral evidence is usually required in criminal cases only where there is dispute regarding medical evidence, for example, over diminished responsibility, or need for inpatient psychiatric treatment, or where oral evidence is legally required, for example, to support a not guilty by reason of insanity finding, in supporting an individual being made subject to restrictions under Section 41 of the Mental Health Act 1983 in England and Wales “to protect the public from serious harm,” and to facilitate the long-term management of such a patient by specifying conditions for discharge and providing the power to recall the patient to the hospital. Oral evidence may, however, be required regarding a range of issues in civil cases.

EXPERT WITNESSES Expert witnesses, who provide opinions based on their expertise, should be distinguished from professional witnesses (e.g., a doctor giving a factual account of treatment, such as a medical fact) and ordinary witnesses of fact based on their direct observations. Experts write reports. Professional and ordinary witnesses give statements. The role of an expert witness may be: ●● ●●

clinical, such as providing an assessment of an individual experimental, such as assessing the reliability of confessions and eyewitness accounts

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advisory, such as giving a peer review of another expert’s opinion, and actuarial, such as stating the prevalence of a condition or probability of an event.

The risks of a wrong actuarial expert opinion were illustrated in the wrongful convictions of parents alleged to have killed their children between 1990 and 2001 in England on the basis of the unlikelihood of repeated cot (crib in the USA) deaths occurring naturally, in the opinion of Professor Sir Roy Meadow, when, in fact, repeated cot deaths are more likely than repeated killings of children by their parents. An expert witness should have particular knowledge and experience beyond that of an ordinary citizen and should enable by his or her evidence and assistance, a non-expert to form a sound judgment on a matter before the court. The  expert’s opinion represents a “reliable body of knowledge or experience”, “of assistance to the court” and his or her “opinion of value” (the Bonython criteria: adopted into common law by the Court of Appeal of England and Wales). However, “Jurors do not need psychiatrists to tell them how ordinary folk who are not suffering from mental illness are likely to react to the stresses and strain of life” (R v. Turner (1974)2). Some argue psychiatrists should refrain from giving an opinion on the “ultimate issue,” that is, the final issue before the court (e.g., the court’s decision or verdict), which is for the jury to decide. However, it may be unhelpful for psychiatrists not to be explicit about, for example, whether in their opinion 639

640  Expert evidence in criminal and civil courts

an individual meets the criteria for diminished responsibility, especially as a jury is not bound by such an expert opinion. While the opinion of an expert witness should be based on facts that can be proved by admissible evidence (not hearsay), it may be based on what the defendant told the psychiatrist. Such an opinion would be considered hearsay were it not for the expert witness designation. There is an innate tension between psychiatry and the law. The law often demands a categorical opinion from a psychiatrist, that is: Is or is not the defendant mentally disordered, or is or is not the defendant responsible for his or her actions, and does the defendant require or not require psychiatric treatment? This often conflicts with the standard psychiatric multifactorial formulation of cases. While expert witnesses should be independent of those instructing them, that is, the defense or prosecution, there is evidence3 for psychiatrists tending to agree with other psychiatrists instructed by the same side. This may merely reflect the selection of psychiatrists by the defense or prosecution, but certainly psychiatrists should guard against being unduly influenced by those instructing them. Unethical or poor work can lead to professional liability proceedings, such as those held by the UK General Medical Council (GMC). In the United Kingdom, where there is disagreement between expert witness opinions in either civil or criminal cases, the experts may be asked by the court to meet and issue a joint statement, summarizing areas of agreement and disagreement and their reasons for this. In civil cases, the court may appoint a single joint expert and nominate one solicitor (equivalent to an attorney in the USA) to instruct this person. This is likely to apply increasingly to criminal cases in due course.

Legal duties of a civil expert witness These are governed by the Civil Procedure Rules, which emphasize that the duty of the expert to the court is paramount, and that evidence should be independent of and uninfluenced by the litigation and overrides any duty to the instructing solicitor. The expert’s roles and ­responsibilities are detailed in Part 35 of the Civil Procedure Rules. The GMC has also produced guidance titled “Acting as an Expert Witness,” which emphasizes that the expert should be “honest, trustworthy, objective and impartial” and not be affected by one’s own views and prejudices. The Royal College of Psychiatrists in its 2008 publication on Court work4 also specifies the duties of a psychiatric expert witness. Instructing solicitors have to comply with strict court deadlines, such as court dates and dates for reports to be produced, so if an expert accepts instructions, he or she is agreeing to commit to these dates, including potentially having to attend court for several days away from his clinical practice. Experts can be ordered to pay for wasted costs if they disregard these duties.

WRITING AN EXPERT REPORT This is considered in detail for criminal cases in Chapter 93. Expert reports are requested by solicitors in civil cases to: ●● ●●

●●

assess the likelihood that a claim will succeed assess the share of liability that can be attributed to any particular party assess the level of compensation that should be claimed.

Expert witness in civil cases

Instructions

Civil cases can succeed or fail due to the quality of the expert witness’s evidence. It is especially important in civil cases that the expert has the relevant experience, which includes relevant skills, e.g. in assessing mental disorder, knowledge of the latest guidance and ­evidence-based research, and practical current and extensive clinical experience in the field in which the expert witness has been asked to give an opinion. The expert may also be asked to give an opinion on accepted practice in the past to which the case refers.

If you accept instructions as an expert, you must ensure that you are appropriately qualified and, if the case concerns medical practice, that you are working in the same discipline. Ensure there are no conflicts of interest, such as having previously been involved in the patient’s care, or knowing or having worked with any doctors concerned. Make sure your instructions are clear and seek clarification if they are not. Give a realistic time frame for preparing your report and try to adhere to it. However, if you need extra time, notify the instructing solicitor as soon as possible. Prepare your report on the basis of the solicitor’s instructions, responding to specific questions in individual numbered paragraphs. Ensure that your medical defense organization is aware of the professional work you are doing. Disclose if you are involved in GMC fitness to practice proceedings, as this could undermine your evidence if it comes to light only during the trial.

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In personal injury claims, a psychiatrist may be asked to give an opinion on the extent of damage and the patient’s prognosis. In clinical negligence, the question may be whether the doctor’s actions were of a standard expected of a similar clinician (failure to reach that standard would be a breach of duty) and, if failure of duty is present, how this has affected the prognosis. (The vast majority of clinical negligence claims are discontinued or settled before the court case.) In GMC cases, the issue may be whether the doctor is fit to practice.

Preparation Read all the documentation, including statements, and, in civil cases especially, the medical records. Identify and try to obtain any missing material. Quote accurately from

Giving evidence in court  641

medical records and do not rely on others’ summary of these.

Opinion As an expert, you should not just give a factual account of the case nor sit on the fence as to your conclusions. You are expected to provide an opinion in civil cases on the balance of probabilities, that is, a likelihood of 51% or more. Do not provide an opinion on issues outside your expertise or on which party’s evidence should be believed. This is for the court to decide. Do not deliberately omit relevant information. Psychiatrists are usually placed under greater scrutiny in civil cases than in criminal cases, and their evidence is more often discredited. It is often prudent to refer to accepted classifications such as the International Classification of Diseases (currently ICD-10; e.g., severe, moderate, or mild depressive episode) and the fifth edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-5), although the court will take note of a psychiatrist’s experience if a case is atypical. The prognosis in civil cases is usually very

important with regard to damages. This may result in ethical dilemmas for the report writer due to the inadequacies of prediction. Judicial guidance for expert reports is shown in Table 96.1.

MEETING WITH COUNSEL Once your report has been written and sent to the instructing solicitor, you may be asked to attend a meeting in preparation for the case being heard with the solicitor and counsel and, particularly in civil cases, the client. Occasionally, where a doctor is the defendant, a representative from his or her medical defense organization may also attend.

GIVING EVIDENCE IN COURT Introduction The UK system of law is adversarial (in contrast to many European inquisitorial systems, which are based on the Napoleonic Code). If called to give evidence, for example, by the by the counsel (usually a barrister) of the defendant

Table 96.1  Judicial guidance on expert reports There have been a number of cases before the Court of Appeal in which expert evidence has been considered. Within the judgments the Court has provided judicial guidance on the content and presentation of expert reports. In R v Harris, Rock, Cherry and Faulder [2005] EWCA Crim 1980, the Court stated: • Expert evidence presented to the court should be and be seen to be the independent product of the expert, uninfluenced as to form or content by the exigencies of litigation. • An expert witness should provide independent assistance to the court by way of objective unbiased opinion in relation to matters within his expertise. An expert witness… should never assume the role of advocate. • An expert witness should state the facts or assumptions on which his opinion is based. He should not omit to consider material facts which detract from his concluded opinions. • An expert should make it clear when a particular question or issue falls outside his expertise. • If an expert’s opinion is not properly researched because he considers that insufficient data is available, then this must be stated with an indication that the opinion is no more than a provisional one. • If after exchange of reports, an expert witness changes his view on material matters, such change of view should be communicated to the other side without delay and when appropriate to the court. In R v Bowman [2006] EWCA Crim 417, the Court went on to say that any such expert report must include: • Details of the expert’s academic and professional qualifications, experience and accreditation relevant to the opinions expressed in the report and the range and extent of the expertise and any limitations upon the expertise. • A statement setting out the substance of all the instructions received (whether written or oral), questions upon which an opinion is sought, the materials provided and considered, and the documents, statements, evidence, information or assumptions which are material to the opinions expressed or upon which those opinions are based. • Information relating to who has carried out measurements, examinations, tests, etc. and the methodology used, and whether or not such measurements etc. were carried out under the expert’s supervision. • Where there is a range of opinion in the matters dealt with in the report, a summary of the range of opinion and the reasons for the opinion should be given. In this connection any material facts or matters which detract from the expert’s opinion and any points which should fairly be made against any opinion expressed should be set out. • Relevant extracts of literature or any other material which might assist the court. • A statement to the effect that the expert has complied with his/her duty to the court to provide independent assistance by way of objective unbiased opinion in relation to matters within his or her expertise and an acknowledgement that the expert will inform all parties and where appropriate the court in the event that his/her opinion changes on any material issues. • Where on an exchange of experts’ reports matters arise which require a further or supplemental report the above guidelines should, of course, be complied with.

642  Expert evidence in criminal and civil courts

(in Scotland, the defender in civil cases), then a witness will initially undergo an examination-in-chief by the that counsel, followed by cross-examination, in this case by the prosecution (or in civil cases the plaintiff (in Scotland, the pursuer)), and then a re-examination by the defendant’s counsel. It is important for doctors not to overstate their professional views and for them to indicate clearly the limits of their opinion and in what areas they cannot comment. In general, the better the court report, the more crossexamination will be limited and the narrower its focus.

Be prepared As an expert witness, a psychiatrist who has compiled a psychiatric report for the court is entitled to sit through the evidence of other experts and witnesses. Self-evidently, one needs to read other experts’ evidence in advance, re-read and know details of one’s own report, and be aware of cross-references to other medical records. You may think it worthwhile to interview the patient again at court before the hearing, especially where fitness to plead is an issue. While one should be prepared for the likelihood of being called to give evidence by the party instructing you, but there is “no property in a witness” and you may be called instead by the opposing party. There is a new trend of “hot tubbing,” where experts may be called concurrently to give evidence. This currently takes place in Australia but is developing in the United Kingdom.

Addressing the court Arrive early and dress conservatively. Check the court number where the hearing is to take place. When entering or leaving court, one should nod toward the judge. Do not talk to the lawyers of parties other than those that have instructed you. Before giving evidence, all witnesses will be asked to either swear on a holy religious text or, if one holds no religious beliefs, affirm. The effect this will have on a jury’s perception of you, in spite of what one might think, is likely to be negligible. Look at the barrister when he or she is asking you questions, but when giving evidence speak loudly and slowly (the judge will be taking written notes), and address the evidence to the jury or, in the absence of the jury, to the judge. If a case is adjourned during your evidence, you should not talk to other parties, including those instructing you. Do not refer to previous convictions if the defendant has not yet been convicted of the offense under consideration.

Addressing the legal members of the court A magistrate should be addressed as “your worship,” a judge in a Crown Court as “your honor,” and a high court judge as “my lord.” Barristers address a judge as “my lud,” a fellow barrister as “my learned friend,” and a solicitor as “my friend.”

When giving evidence in court, one must avoid being over-dogmatic, scientifically prejudiced, or over-defensive of one’s reputation (R v. Cannings (2004)5). Remember that as an expert witness, you are making important judgments about peoples’ lives, and you should be conscious of how upset and angry family members may be when listening to your evidence.

Evidence in chief You will generally be asked to give your evidence in chief by those who instructed you. If your opinion has changed during the course of the trial before you give evidence, tell your instructing solicitors in advance. Commence by giving your name, professional address, and qualifications, and state that you are a registered medical practitioner and also whether you are approved under Section 12 of the Mental Health Act 1983.

Cross-examination Your views are likely to be challenged, and you need to be prepared to withstand cross-examination. During crossexamination, new arguments may be presented to you that you may not have considered and to which you have to respond as best as you can. When cross-examined by the opposing side, the emphasis will be on revealing weaknesses in your report, or attempting to make you qualify your evidence if the opposing side is unable to destroy it. The longer and more detailed your report, the more likely that errors will occur; for example, the barrister may point out typos and/ or inaccurate dates in an attempt to discredit your opinion. The barrister may argue that your opinion is based solely on what the patient told you (hearsay). To counter this, refer to other sources of information. Remember that you are the expert and know more psychiatry and often more mental health law than those cross-examining you. Barristers in general only ask questions to which they know the answer. They may try to unsettle you in the first few minutes by asking rather difficult technical questions or lead you down a cul-de-sac to an oversimplistic explanation of events. Point out the complexity of the case, e.g. the mere fact that a defendant appeared to plan an offense does not imply that he or she was not mentally ill. The opposing side may also try to argue from details in your report and your curriculum vitae (CV), if made available, that you are not sufficiently qualified to give an opinion in a particular case. Never argue with those cross-examining you. Expect to be asked closed yes or no questions, but be prepared to add qualifications, depending on the circumstances. Keep  your answers to the point and brief. Doing so will tend to reduce the length of your cross-examination. Be prepared to make concessions. There is no merit in sticking to a false opinion if it has been established as such.

References 643

When presented with hypothesis or theoretical assumptions by a barrister, contrast these with contradictory facts in the case.

Re-examination Re-examination, usually by the lawyers instructing you, should largely be limited to clarification of or to counter points made in cross-examination. This is usually brief. Following ­re-examination, there is an opportunity for the judge to ask further questions, which in turn may be followed by further cross-examination by both sides. After having given expert evidence, you may be asked, even if released by the judge, to remain to assist counsel for

the side that instructed you by means of giving comments to counsel arising from further evidence given.

REFERENCES 1. R v. Bonython (1984) 38 SASR 45. 2. R v. Turner (1974) 60 Cr APP R 80. 3. Roscoe A, Rodway C, Mehta H, White D, Amos T, Kapur N, et al. Psychiatric recommendations to the court as regards homicide perpetrators. Journal of Forensic Psychiatry and Psychology. 2009; 203:366–7. 4. Royal College of Psychiatrists. Court work. RCpsych. 2008. 5. R v. Cannings (2004) EWCA Crim. 1.

97 Giving evidence for the First-tier Tribunal JOAN RUTHERFORD Preparation by the responsible authority 645 Preparation by the tribunal 645 646 At the hearing Examination of the responsible clinician by tribunal members 646 Examination of the nurse by tribunal members 646 Examination of the author of the social circumstances report 647

Answering questions from the patient’s representative 647 Limiting the damage to the team’s relationship with the patient 647 The tribunal’s discussion and options 648 After the hearing 648 Appeals 649 References 649

PREPARATION BY THE RESPONSIBLE AUTHORITY

and be prepared to explain these. The team members must be prepared to discuss the appropriate criteria for the patient’s current section. If the patient’s status has changed, for example, a Section 2 patient is now Section 3, the tribunal uses Section 3 criteria at the hearing; if the patient is now subject to a community treatment order (CTO), though at the time the application was made the patient was detained under Section 3, the CTO criteria will be used. If any of the clinical team members cannot attend all of the hearing, they should tell the MHA administrator, the tribunal panel, and the patient’s representative as soon as possible. It is at the judge’s discretion for clinical team members to leave before the tribunal is completed. If the clinical team members think that the patient should give evidence first, this should be discussed with the patient’s representative. Doing so may avoid an adjournment if the patient leaves the hearing or has to be removed.

The key to presenting well and confidently to the FirstTier Tribunal and making the experience inquisitorial (as  it should be) rather than adversarial is preparation. This process will have started with the clinical team’s preparing their reports in a timely fashion using guidance, as in Chapter 94. The responsible clinician (RC), or his or her representative, should review the patient prior to the tribunal if there has been a gap between any previous contacts. This review can be requested by the tribunal (but in practice happens rarely) if there has been a medical member (MM) Rule 34 [of the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008] prehearing examination that shows major inconsistencies from the report. If the patient has stated that she does not wish to attend the hearing, the clinical team and Mental Health Act (MHA) administrator must ensure that the patient is represented or has capacity according to Rule 11 to make a decision about representation. All authors should bring a signed copy of the report to the hearing. For trainees, observing a tribunal is a valuable experience. However, the tribunal office must give written permission for named people to observe; the MHA administrator should contact the tribunal office in advance. In reality, panel judges are flexible about attendees, acknowledging the training value. Clinical team members should know each other’s opinions and reasons for differences prior to the tribunal

PREPARATION BY THE TRIBUNAL The tribunal members will have discussed the reports and the preliminary examination by the medical member, if performed. The tribunal should have information on whether the hearing is a result of the patient’s application for the section to be discharged or is being brought before the tribunal as a result of a referral from the hospital managers, Ministry of Justice, or the Department of Health, depending on the patient’s status, who may not actually wish to be discharged. Butler1 gives details of when application and referrals can be made by patients. 645

646  Giving evidence for the First-tier Tribunal

It may be evident from the reports or from a skeleton argument which particular issues are to be considered.

AT THE HEARING The usual hearing process is as follows: After introductions and a check of papers submitted, the judge will first ask the patient’s representative which particular issues are to be examined by the tribunal. The MM’s prehearing interview, if done, will then be described by the judge. Order of evidence is clarified, for example, taking the patient’s evidence first.

EXAMINATION OF THE RESPONSIBLE CLINICIAN BY TRIBUNAL MEMBERS The RC may be asked whether he or she is a witness or representing the RA, which allows the RC to cross-examine the patient and other witnesses. This should have been considered before the tribunal, with the RC being legally represented, if representing the RA. (In practice this rarely happens.) The examination of the RC begins with the statutory criteria asked by the judge; see Jones.2 The RC can check whether to give outline answers initially as the MM will ask for fuller details. It is helpful to begin evidence in response to the MM’s questions by offering a verbal update since the date of written report, including when the patient was most recently assessed. If there has been an interview by the MM that has revealed any new symptoms, or a different assessment of insight—and this can happen—the RC can acknowledge this and use this information in his or her answers. The questions from the MM follow the statutory criteria and include diagnosis, nature, degree, risk, and plan, including the availability of appropriate treatment. The MM, RC, or their representative should be able to refer to the written report for much of this. In responding to questions about risk, the RC may want to discuss the continuing risks within an inpatient setting, in addition to the risks if the section were rescinded, or how the risks can be managed in a change of setting. The RC should be specific and justify the risk assessment with reasons or examples, referring to the annex of incidents if one has been prepared. It also is very helpful for the tribunal panel to know the timing of any risks on discharge, that is, whether they are within hours, days, or weeks. If the tribunal does not ask about the Multi-Agency Public Protection Arrangement (MAPPA), the RC should describe the level of management of the patient. Typically the specialist lay member asks for details of Section 117 aftercare. The RC should give the outline but may refer the tribunal to the author of the social circumstances report if it is clear the full details will be available later from them.

The appropriate medical treatment test is given in the Code of Practice.3 In summary, the treatment should be available, but the patient’s unwillingness to engage does not make it inappropriate. The treatment must “be an appropriate response to the patient’s condition and situation” and actually available. The code accepts that although treatment would “aim and be expected to alleviate the patient’s condition, for some patients with persistent mental disorders, however, management of the undesirable effects of their disorder may be all that can realistically be hoped for.” It is also helpful to mention the National Institute for Health and Care Excellence (NICE) guidelines (not only for medication), when relevant, in the treatment plan. The patient’s consent to treatment under Section 58 is important; at times, members of the tribunal query if, in their view, medication is being prescribed at a high dose. The timing of likely improvement for all aspects of the treatment plan does assist the tribunal; often the RC will give a schedule for the medication plan but not for other components such as psychological intervention. Leave is an important part of the treatment plan. If the patient is not yet granted Section 17 leave, or is having escorted leave only, then state how the decision will be made, such as in the weekly multi-disciplinary team (MDT) meeting, and estimate when and how the patient will succeed in moving to the next stage of leave, even if this is not within the RC’s power but is the secretary of state’s decision. If the RC is not recommending discharge, he or she should describe what would need to change to consider alternatives, even if the timing is difficult to predict. The RC should state if he or she wishes to use the tribunal’s statutory powers, which for nonrestricted patients are recommending leave, transfer to another hospital, or guardianship with the aim of facilitating discharge on a future date. On the other hand, it is worth considering how the RC deals with treatment suggestions from the tribunal. The reality is that the tribunal has no power to demand the patient be prescribed a particular medication or other treatment. However, it is possible that an objective view or the experience of the tribunal members may assist when patients are presenting a complex clinical picture or a slow improvement. The RC could choose to acknowledge the tribunal’s suggestion and offer to discuss with the patient later, considering whether a second-opinion appointed doctor visit would be necessary.

EXAMINATION OF THE NURSE BY TRIBUNAL MEMBERS Either the judge or the MM leads the questioning. Again preparation is vital; tribunal members should be aware that nursing shift patterns may mean that the author of the report is not the nurse who actually attends the tribunal, and that patients do move from ward to ward, but there are

Limiting the damage to the team’s relationship with the patient  647

ways in which the experience of giving nursing evidence can be better for all concerned. If the nurse has been on leave or working nights, he or she should: 1. Discuss the report with either the author or the nurse in charge that day to confirm that the report remains relevant. 2. Prepare a verbal update since the report was written, using the hand-over notes from that day. 3. Talk with the patient before the tribunal to be able to say that the patient has reviewed the report. 4. With regard to leave, describe to the tribunal how leave status is reviewed, for example, at a daily/weekly MDT meeting. 5. Describe the nursing interventions. Sometimes these are listed in the care plan as “monitoring.” In practice, nursing input in 1 on 1 sessions may be directed either formally or more informally in the areas of psycho-education, social skills, relapse prevention, and medication compliance or concordance. Escorted leave has the benefit of feedback on social skills and regulation of appropriate behavior in the community. These various interventions should be included in the management plan. 6. Give as many details of compliance as possible: for example, if the patient is prescribed a depot medication, how long he or she takes to agree, whether it is administered on the date scheduled, and whether the patient specifies that the depot is given by specific staff members. If the patient is prescribed oral medication, state whether the patient takes medication in a timely manner or is often late so that medication has to be taken to the patient’s room. The tribunal members may need to assess whether a home treatment team (HTT) could administer the medication, and this type of detail helps assess the patient’s likely compliance. 7. Describe how the patient’s behavior is managed in the ward and the tolerance of this behavior by other patients, and thus how this may translate into the community, especially in regard to harm to others or harm to the patient from retaliation or exploitation by others.

EXAMINATION OF THE AUTHOR OF THE SOCIAL CIRCUMSTANCES REPORT The specialist lay member initiates the questioning. The judge may expect the author of the social circumstances report to be a social worker, so the author may wish to explain his role in the team and his role as the care coordinator. The author may have a more adversarial experience in hearings where he or she is representing the team, for example, in a Section 2 case when no care coordinator has yet been allocated or in restricted cases when the care coordinator is unable to attend and there are issues about accommodation and funding, and a facilities report is not available.

In such situations, the following can assist: 1. A description of the links between the inpatient team and the relevant community team. 2. The likely timing of allocation of a care coordinator to the patient, if not yet done, which is most common for patients subject to Section 2. The discharge management plan is more robust if the panel is then told the duty manager is allocating even a temporary care coordinator on the day of the hearing who will aim to link with the crisis/HTT that or the following day; the contrasting plan when the tribunal members are informed that the allocation meeting is in a week’s time and that the patient may not meet the HTT criteria implies that no safe discharge can occur. 3. Information about the nearest relative, and efforts made to contact them for views prior to the tribunal. 4. The patient’s speed of access to crisis and home treatment, and ideally that the HTT were aware of the patient’s possible discharge. 5. For the tribunal to be told of any accommodation options available to the patient. Obviously, there may be hearings that have to be adjourned partially heard if there is insufficient information about complex issues, including funding of the patient’s Section 117 aftercare, but at times just a provisional option of potential accommodation is sufficient.

ANSWERING QUESTIONS FROM THE PATIENT’S REPRESENTATIVE Some patient representatives are more adversarial than others. All clinical team members should aim to remain calm and objective, without being defensive. Again, preparation will assist. Assuming that the clinical team has had an opportunity to discuss with the patient what the team’s views are about continued detention, then it is possible to acknowledge both to the representative and to the patient what the patient does not agree with, either statements regarding symptoms in the reports or the team’s view of detention. It can be tempting to enter into discussion with the patient or check facts with the patient, but this is to be avoided if possible, as only one person’s evidence can be taken and recorded at a time. The patient’s representative may revisit questions to the RC that have already been asked by the tribunal members; “as in my earlier response” is a useful line, directing evidence to the tribunal.

LIMITING THE DAMAGE TO THE TEAM’S RELATIONSHIP WITH THE PATIENT A comprehensive report will limit what is stated in the hearing, and if there are significant recent incidents, an addendum report may assist. The patient should be told the clinical team’s view; often it is helpful for the tribunal hearing for restricted

648  Giving evidence for the First-tier Tribunal

patients when the patient’s representative has attended the most recent Care Programme Approach (CPA). The clinical team can refer to the positive factors of the patient’s progress. If the RC, nurse, and care coordinator have been specific about what needs to happen before discharge can be considered and the timing for those events, then this information should be clearly documented in the panel’s written decision and can be used in the patient’s subsequent management planning.

THE TRIBUNAL’S DISCUSSION AND OPTIONS The standard of proof for the tribunal is the civil “balance of probability” rather than the criminal “beyond reasonable doubt.” For nonrestricted patients, the tribunal has the following options: 1. To discharge the patient, when the statutory criteria are not met. 2. To continue detention with recommendations under Section 72(3)a, known as statutory recommendations. The tribunal’s power is limited to recommending leave, transfer to another hospital, or guardianship with the aim of facilitating discharge on a future date. The issue of recommending that the team consider a CTO is also covered by Section 72. The tribunal can also reconvene and reconsider the decision if recommendations are not met under Section 72(3)b. 3. Continue detention without recommendations. 4. Adjourn at any point. Even if all available evidence has been heard, the tribunal can direct that specific reports (under Rule 5) are essential to further consideration of the case. 5. Deferred discharge to a specified time not less than 2 weeks, for example, for accommodation to be arranged or for community follow-up arrangements to be put in place. Discharge must take place on the specified day. The tribunal’s options for detained restricted patients are: 1. To discharge absolutely if the patient does not meet criteria for detention and when the tribunal is not satisfied that the patient should remain liable for recall to hospital. The tribunal cannot use discretionary powers to discharge a restricted patient. 2. To discharge conditionally, when the criteria for detention are met but the tribunal is satisfied that it is appropriate for the patient to remain liable to recall to the hospital for further treatment. The conditional discharge takes place immediately. The tribunal has discretion as to the conditions, which should be reasonable, and the tribunal should give reasons for the imposing of these conditions. Direct input from any proposed supported accommodation—attendance of staff, for

example, to give reports of the patient’s behavior on leave to the accommodation—can assist the decision. Panels will consider any views from MAPPA. If an exclusion zone is being proposed, having a map at the hearing is helpful. 3. To defer the conditional discharge when there is a clear plan but not all elements are immediately in place. This is a provisional decision under Section 73(7) that the tribunal may revisit at any point prior to effecting conditional discharge and even rescind, if the criteria for detention are subsequently met, or, on the other hand, the tribunal can discharge absolutely, vary the conditions, or uphold the original, provisional, decision. In cases where there is a lack of information concerning, particularly, a suitable placement and/or psychiatric or social supervision, the panel has the option to consider an adjournment with directions to obtain additional information as opposed to making nonspecific conditions such as “the patient shall reside at suitable accommodation.” The tribunal should reconvene, preferably with the same members, to check progress when a deferred conditional discharge is pending. Where the tribunal defers a conditional discharge and there is fresh evidence that the patient meets the criteria for detention in a hospital, or when it appears that the discharge conditions cannot be met, the Ministry of Justice may write to the tribunal and ask them to reconsider their decision at a reconvened hearing before the conditional discharge takes place. 4. To continue detention. 5. To adjourn to request and consider more evidence (see option 3). The overall rate of all sections discharged by the tribunal is 14%; this contrasts with the rate of 4% of patients subject to CTOs having their section rescinded. The deferred conditional or conditional discharge rate of completed hearings is 15%; more than half of applications are withdrawn before the hearing date, presumably on advice from the patient’s representatives as conditions cannot be met at that point.

AFTER THE HEARING The decision is a consensus. The verbal decision is ­generally given immediately, and a representative from the RA is required to receive it. The written decision— the “­reasons”—is now on a standard form; the due date for s­ubmitting a written decision to the tribunal office is within 3 working days for Section 2 and within 7 days for all o ­ thers. The written decision is sent to the RA and the patient’s r­ epresentative. The panel members consider carefully how to express the reasons, and if the clinical team is able to give clear pointers and schedules to discharge, then these should be included in the reasons and can be discussed with the patient.

References 649

APPEALS Patients cannot appeal against the decision of the tribunal, but only on points of law. The initial stage of an appeal is a review of the decision by a salaried tribunal judge, with a very small number proceeding to the Upper Tribunal. The Upper Tribunal’s decisions are available on the Justice website at www.osscsc.gov.uk. The following are of particular relevance: ●●

●●

●●

Issues of disclosure regarding covert medication: RM v. St. Andrew’s Healthcare [2010] UKUT 119 (AAC). When the patient had not reached the point where there was a real likelihood of discharge, the tribunal did not need to have specific information about aftercare: AM v. West London MH NHS Trust & SoSJ [2012] UKUT 382 (AAC). Depending on the facts of the case, risk can be highly relevant to the question of whether appropriate medical treatment is available for a patient (or whether the available medical treatment is appropriate). Lack of engagement, even as a consequence of the disorder, does not mean that the disorder is not susceptible to treatment or that the available treatment is not ­appropriate: MD v. Mersey Care NHS Trust [2013] UKUT 127 (AAC).

●●

●●

The cumulative effect of the proposed conditions would amount to detention and to an unlawful ­deprivation of liberty such that it could hardly be characterized as a discharge at all: SoSJ etc. v. SB [2013] UKUT 0320 (AAC). A patient with a personality disorder refused to engage with therapy. However, this refusal was not decisive to the question of available and appropriate treatment. (A patient may well continue to satisfy the statutory criteria, despite refusing to engage.) In the earlier DH-L case the Upper Tribunal held that the tribunal must investigate beyond assertions, generalizations, and standard phrases and focus on specific questions to ensure that it makes an individualized assessment for the particular patient. DL-H v. Partnerships in Care & SoSJ [2013] UKUT 500 (AAC).

REFERENCES 1. Butler J. Mental Health Tribunals. Law, Practice and Procedure. London: Jordan Publishing, 2009: Chapter 4. 2. Jones R. Mental Health Act Manual. 16th ed. London: Sweet and Maxwell, 2013. 3. Jones R. Mental Health Act Manual. 19th ed. London: Sweet and Maxwell, 2016.

98 Giving evidence for the coroner’s court LORNA M. TAGLIAVINI Preparation for an inquest In the witness box

651 651

The coroner’s court is an inquisitorial forum, rather than an adversarial one as in criminal courts or other civil courts. It is for the coroner to decide which witnesses to call, although submissions to the coroner from interested persons or their legal representatives on this matter are frequently made. When professional witnesses are called, they are usually expected to indicate their willingness to attend without the need for issuing a witness summons. However, if no response is received to an informal inquiry as to availability and attendance, the coroner will have little choice but to issue a witness summons compelling witnesses’ attendance.

PREPARATION FOR AN INQUEST If you find yourself called to give evidence at an inquest for the first time, then paying a visit to an unrelated inquest beforehand to see the court in action might assist. For highprofile cases, there may be a high degree of public and press interest. On some occasions, political interest groups with an interest in the proceedings may send a representative to court to follow the proceedings and report on them. The strict rules of evidence do not apply in the coroner’s court, and the coroner has discretion to admit documentary or oral hearsay evidence, if it is relevant to the questions the inquest must answer (who died, when and where they died, and how they died) or if an Article 2 European Convention on Human Rights (ECHR) issue arises that involves an investigation into the wider circumstances of the deceased’s death. Regardless of whether the inquest concerns a straightforward matter or deals with more complex issues of procedures and systems, the witness should always be prepared. Most often a medical witness, whether a doctor, consultant psychiatrist, or other health professional, will have already prepared a report covering the evidence he or she will give. As an inquest will usually take place several months, and sometimes even years, after the death, it is vitally important that the witness has reread the report he or she made and familiarized

Giving your evidence Failure to attend at court

652 652

themself with the issues, going back to the original medical or clinical notes made at the time. It will appear unprofessional in the witness box not to appear very unprofessional if he does not know the details of the evidence he or she seeks to give. On occasion, a witness appears not able to remember even the most basic details about the deceased with whom he or she came into contact or treated. It adds to the family’s distress if they are given reason to believe that their deceased family member has been forgotten by a treating medical professional, and a casual attitude from a witness serves only to undermine the witness’s credibility. Bear that in mind when considering attire; wearing clothes that are suitably somber and professional in appearance is a must if the witness wishes to present a professional and credible appearance. Wearing casual clothing can give the coroner and the family the wrong impression and create an atmosphere of antagonism that is both unnecessary and unhelpful to the inquisitorial forum of the coroner’s court.

IN THE WITNESS BOX Before giving evidence, the witness will be required to take an oath or affirmation. The coroner is addressed as either “sir” or “madam.” Usually a seat is provided when giving evidence, although you may stand if it is preferred. If your evidence is lengthy you will usually be provided with a break. If  not, request one, but do not discuss your evidence during that break. It is best to avoid having a conversation with any other person during a break in your evidence, even if it is only about such mundane matters as the weather, because it can create the wrong impression and undermine your credibility as a witness. Where a witness is to give evidence on behalf of another because the original treating medical professional has left the hospital, gone abroad, or died, it is even more important that the witness completely familiarize himself with any report written by the witness who would otherwise have been called. It is perfectly acceptable to say that a certain matter is not 651

652  Giving evidence for the coroner’s court

within your knowledge, but not when it concerns the most basic of matters when that knowledge could and should have been obtained. If you have to rely on another colleague’s notes or report, make sure you have read everything and know where a document or relevant point is within that document. When the inquest is going to last several days or weeks, many coroners will allocate particular witnesses to particular days so that they are not kept needlessly waiting. Other coroners may have different practices in this regard; you can check with the relevant coroner’s officer. However, sometimes a coroner may require a particular witness to hear the evidence of others. Alternatively, you may find it useful to hear what another witness will say about a certain issue when that witness gives his own evidence, because he may be asked to give a professional opinion on a certain issue. Unlike the criminal courts, inquests are public hearings, and witnesses are usually not excluded from the court while other witnesses before them give their evidence.

GIVING YOUR EVIDENCE Once called to give evidence, the witness is required to take the oath appropriate to his or her religion, if any, or affirm. You will be asked to state your name, occupation, and professional address. The coroner will then proceed to ask as many questions as are deemed necessary and relevant for the purposes of the inquest. Usually these are nonleading questions to elicit the necessary information. When interested persons either are not present or are not legally represented, the coroner’s questions may of necessity be probing to test the veracity of the evidence and its reliability. When giving evidence, speak clearly and loud enough for everyone to hear. Do not mumble. If you cannot be heard, you will be asked to speak up, and if necessary, the question will be asked again. Do not speak too fast, as the coroner and others will be taking notes on the evidence, even if the proceedings are being taped. Be prepared to answer difficult questions. Evasiveness is not welcome in the inquisitorial forum of a coroner’s court, and often the inquest is the only opportunity a family will have to hear firsthand the details of how their family member died.

FAILURE TO ATTEND AT COURT Usually, professional witnesses voluntarily agree to attend court. Others are witness summoned automatically. If you

have been asked to attend court and do not attend, then the coroner may have no option but to adjourn the inquest to another date if your evidence is of central relevance and importance to the inquest. A witness summons almost certainly will be served to ensure your attendance on the next occasion, and failure to comply with this could lead to contempt of court. The coroner may adjourn the inquest for a short period so that the witness can be provided with a further opportunity to attend, thereby avoiding further distress to the bereaved. The right not to incriminate yourself applies, although this only applies if the line of questioning reveals the possible comission of a criminal offense rather than a civil liability. The coroner will give you advance warning of this provision, when appropriate. Once the coroner has finished his or her questioning, the interested persons or their legal representatives can ask their own questions. Often, this means that the family members of the bereaved will ask questions directly of a witness. Quite often that person is upset and emotional, but nevertheless his or her concerns are clear. Answer the questions posed to you as best you can without straying into unknown or irrelevant areas. If you do not know the answer to a question, say so. For family members, an inquest will often be the only opportunity they get to ask their questions and get answers to matters concerning them. Inquests are extremely important to the bereaved, and this should not be overlooked or underestimated. At other times, where inquests are particularly high profile and generate a lot of public and press interest, and concerns arise as to whether the state or its agents failed to safeguard the deceased, the inquest can be quite different in tone. In such cases, the tone may veer toward the adversarial, and the witness may be cross-examined by a large number of interested persons or their legal representatives. If necessary, seek the help of the coroner to bring an end to this style of adversarial questioning when it becomes unfair or oppressive, as in inquests there are no “parties,” no “prosecution,” and no “defense,” only “interested persons” with a interest in the outcome of these proceedings. The coroner should be alert to these issues and intervene as necessary. The importance of giving evidence in the coroner’s court and the need to prepare adequately for it should not be underestimated. An inquest is often the only forum where the bereaved can obtain firsthand answers to the questions that concern them as to how their loved one died.

99 Capital punishment CLARENCE WATSON, GREGORY B. LEONG, AND SPENCER ETH Introduction 653 Capital punishment in the United States 653 Brief history of capital punishment in the United States 654 Trial procedure in capital cases in the United States 654 Forensic psychiatric evaluations and capital punishment 655

Pretrial phase 655 656 Trial phase Postsentencing phase 656 References 657

INTRODUCTION

as a legal means of punishment. A comprehensive review of capital punishment policies and procedures among the individual retentionist countries exceeds the limitations of this chapter. Accordingly, this chapter focuses on capital punishment in the United States and the role that forensic psychiatry plays in that legal process.

The death penalty is the most severe punishment a­ uthorized by law in response to criminal behavior. Yet, despite its historical foundations and contemporary justifications, the administration of the death penalty is not without controversy. Roots for its justification can be traced to various ancient sources including the Code of Hammurabi, Mosaic Law, and the writings of Plato.1 The historical execution methods of stoning, crucifixion, pressing, and beheading have evolved over time to modern-day methods of hanging, electrocution, and lethal injection. While contemporary use of capital punishment is generally sanctioned only for the most egregious of crimes, historically, it has been administered for a wide range of legal transgressions, including adultery, robbery, arson, and witchcraft. The equity of capital punishment has been subjected to the heat of political and moral debate on an international scale. Arguments about whether the death penalty represents a violation of human rights or a legitimate penological alternative fuel that debate. Over time, international acceptance of the death penalty has diminished. By the end of 2010, more than two-thirds of countries in the world had abolished the death penalty in law or practice.2 Among the abolitionist countries are Australia, Canada, England, and a majority of European and Latin American countries, while the United States and numerous African, Asian, and Middle Eastern countries retain the death penalty.3 By the end of 2010, at least 527 executions were carried out and at least 17,833 individuals were under the sentence of death worldwide.2 These numbers may represent an underestimate because some countries, including China, classify death penalty statistics as state secrets.4 Nonetheless, there has been an international trend toward abolishing death

CAPITAL PUNISHMENT IN THE UNITED STATES Currently, 31 states and the US federal government ­permit the death penalty, while 19 states and the District of Columbia have abolished the death penalty in the United States.5 During 2010, 46 executions were carried out by lethal injection, electrocution, or firing squad. This represented a decrease of six executions from the previous year and a continuation of the downward trend of executions since 1999, when there were 98 executions in the United States.6 As of April 2015, 3,002 inmates were under the sentence of death in the United States.5 The death penalty has not received universal acceptance in the United States. An October 2010 Gallup poll found that 64% of Americans were in favor of the death penalty and 29% were opposed.7 However, the poll results also revealed that when given a choice between the death penalty and life imprisonment without parole, 49% of Americans supported the death penalty while 46% supported life imprisonment.7 These results reflect the national debate on the use of capital punishment in the United States. Supporters of the death penalty argue that it satisfies critical objectives of punishment, namely, deterrence and retribution. They argue that the general public and the specific offender will be deterred from engaging in egregious criminal acts when faced with the ultimate punishment 653

654  Capital punishment

of death. Supporters also argue that justice and retribution can only be satisfied when the degree of the punishment meets the degree of the crime. Opponents argue that the death penalty does not in fact deter crime, and that justice may be equally served by life imprisonment. Opponents further argue that administration of the death penalty is systematically flawed and that there is a real and unacceptable risk of executing innocent individuals. They point to the fact that 155 individuals sentenced to death in the United States have been exonerated since 1973.5 Opponents also cite studies showing that the penalty has been disproportionally applied depending on various factors, including the race of the defendant and the victim.8 Supporters argue that safeguards, including the court appeals process and DNA testing, are available to prevent execution of the innocent.

After the moratorium was lifted, capital punishment policies faced legal challenges to the practice of executing specific classes of defendants. In 1989, the Supreme Court initially upheld the execution of mentally retarded offenders in Penry v. Lynaugh.12 However, the 2002 US Supreme Court decision in Atkins v. Virginia13 overturned the Penry decision by citing a shift in the national consensus away from executing mentally retarded offenders and the concept of society’s “evolving standards of decency” outlined by the Court in Trop v. Dulles14 40 years earlier. In Roper v. Simmons, the Court determined that defendants who were under age 18 when they committed their capital offenses were not eligible for execution.15

Brief history of capital punishment in the United States

Capital punishment jurisdictions in the United States utilize a bifurcated trial process to impose the sentence of death. The first phase of the trial (guilt phase) focuses on whether the defendant is guilty of a capital offense. The second phase (penalty phase) determines whether the defendant, who was found guilty of a capital offense, should receive the death penalty. In a capital trial the same jury deliberates in both trial phases and decides the defendant’s guilt and whether to impose a death sentence. Bifurcation of the trial prevents prejudicial information relevant to sentencing from reaching the jury before the determination of guilt has been made. In both phases, the jury listens to attorneys’ arguments and weighs evidence, including lay and expert witnesses’ testimony. The evidence presented to the jury during the penalty phase is aimed at establishing aggravating and mitigating circumstances related to the defendant and the crime that would influence the decision to impose a death sentence. In reaching their decision, a jury must deliberate whether aggravating factors are present, such as the crime’s heinous and depraved nature or the defendant’s high risk of future dangerousness, which would support a death penalty finding. Aggravating factors may also include the crime’s effect on the victim’s family. In a 1991 decision, Payne v. Tennessee, the Supreme Court held that “victim-impact statements” could be admitted during the penalty phase of a capital punishment trial.16 This evidence is the dramatic and emotionally powerful testimony of the effect of the crime on the victim’s surviving family members. The jury can be informed of the personal characteristics of the victim and the psychological impact of the crime on the victim’s family. The jury also considers evidence of mitigating factors, such as a defendant’s lack of criminal history, which may support a sentence of life in prison instead of execution. These mitigating factors can arise from the defendant’s life and character and may be considered to extenuate the moral culpability for the crime. A standard instruction by the judge to the jury directs the jurors to consider anything in the life of the defendant that might indicate that the death penalty is not appropriate. Typical mitigation evidence includes a history of an impoverished or abusive

Capital punishment in the United States has its roots in the early traditions of English law, which traversed the Atlantic along with the English colonists. In addition to capital crimes such as murder and rape, a wide range of offenses was subject to death in early America, including blasphemy, idolatry, and witchcraft.9 Standards for administering the death penalty varied widely within state jurisdictions and nationally. Various constitutional challenges arose regarding the validity of capital punishment laws in the United States. The major challenges argued the arbitrary nature of death sentences, the nature of the death penalty per se as cruel and unusual punishment as prohibited by the US Constitution, and the application of the death penalty to specific classes of defendants. In 1972, the US Supreme Court considered the arbitrariness challenge in Furman v. Georgia and held that the death penalty had been imposed in an arbitrary and capricious manner and was, therefore, unconstitutional as cruel an unusual punishment.10 The decision led to a temporary moratorium on capital punishment in the United States. In his concurrence Justice Potter Stewart wrote, “The penalty of death differs from all other forms of criminal punishment, not in degrees but in kind. It is unique in its total irrevocability. It is unique in its rejection of rehabilitation of the convict as a basic purpose of criminal justice, and it is unique, finally, in its absolute renunciation of all that is embodied in our concept of humanity.”10 Subsequently, all jurisdictions seeking to adopt the death penalty implemented special legal procedures for handling capital punishment cases, including bifurcated trials and automatic appeals for death sentences. The moratorium remained in effect until the 1976 US Supreme Court decision in Gregg v. Georgia.11 In Gregg, the US Supreme Court held that the revised legal procedures resolved its concerns regarding arbitrariness and that capital punishment per se did not violate the US Constitution’s prohibition against cruel and unusual punishment.

Trial procedure in capital cases in the United States

Forensic psychiatric evaluations and capital punishment  655

childhood and the diagnosis of a major mental disorder. A positive factor, such as having a military record of combat, may be offered, as well as the fact that a defendant is a father and the sole caretaker of his children. This evidence is intended to humanize the defendant in the eyes of the jury in order to generate empathy for a defendant whose life may have been marred by fetal exposure to alcohol and drugs, neglect, domestic violence, learning disabilities, school failure, unemployment, or chronic despair. It should be noted that involvement in capital trials takes an emotional toll on jurors. The scientific literature confirms that jurors experience stress-related symptoms that are amplified in capital trials. Subjects in two studies who volunteered as mock jurors were shown gruesome crime photographs; in one of the studies actual photographs of a murder victim were used. The jurors viewing the photographs experienced more intense emotional responses than those who were not shown pictures.17,18 In a study of 159 jurors drawn from 28 civil and criminal trials, the major sources of stress were the burden of reaching a verdict, understanding the complexities of the trial, and disruption of personal life. Each of these factors is substantially greater in a murder trial.19 The study also found that women reported more stress than men overall. An article described a debriefing intervention for a jury who had heard a murder trial involving multiple victims.20 These jurors expressed themes of anger, frustration, and guilt. During the session some jurors became “very tearful and distraught.” Legal commentators have questioned how the powerful emotional impact of exposure to heinous murders can influence jury deliberation and adversely affect the administration of justice.21

FORENSIC PSYCHIATRIC EVALUATIONS AND CAPITAL PUNISHMENT Psychiatrists often participate as consultants in capital cases upon the request of the court, defense attorney, and/or prosecuting attorney. In fact, the 1985 US Supreme Court case of Ake v. Oklahoma established the requirement that a capital case defendant have access to psychiatric consultation.22 The forensic psychiatric consultation process in a capital case could commence as soon as the individual has been charged with a crime eligible for the death penalty and acquires legal representation. Although charged with a capital crime, the decision to seek the death penalty, or life imprisonment without the possibility of parole, as a possible punishment should the individual be convicted of the crime, may not be made by the prosecutor for some time after the arrest and initial charging procedure. The forensic psychiatric consultant should, nevertheless, be aware of whether the case continues to be a capital case prior to completion of the forensic psychiatric evaluation. Professional involvement in a capital case may have important ramifications for the forensic psychiatric consultant along with psychiatrists who become involved in a treatment or therapeutic relationship with the capital case

individual. Psychiatric practice in all contexts, whether consultative or therapeutic in nature, must at a minimum meet the prevailing standards of clinical and ethical practice. For the United States, ethical principles published by the American Medical Association (AMA)23 and further explicated by the American Psychiatric Association (APA) in its Annotations24 form the core set of guidelines for the ethical practice of psychiatry. The AMA/APA guidelines include those relevant to forensic psychiatry and the death penalty. Further expansion of ethical guidelines for forensic psychiatric practice has been promulgated by the American Academy of Psychiatry and the Law (AAPL).25 Case and statutory law along with the aforementioned medical and psychiatric ethical guidelines play a major role in shaping psychiatric and, in particular, forensic psychiatric practice. The role of the forensic psychiatric consultant for capital cases is the same as in noncapital criminal cases, that is, to assist the legal system by providing psychiatric expertise in clarifying the psychiatric–legal questions at issue. The fundamental components of competent forensic psychiatric consultation have been explored elsewhere, including in this textbook (see also, e.g., Melton et al.),26 and is not addressed in this chapter. Rather, this chapter focuses on forensic psychiatric consultation in capital cases. For purposes of this chapter regarding the forensic psychiatrist’s evaluation, we do not distinguish between what has been expressed in a written report and what is provided orally during courtroom testimony.

Pretrial phase As with all criminal cases, the legal system requests evaluation of the usual psychiatric–legal issues, such as the competency to waive Miranda rights, competency to confess, competency to stand trial, and mental state at the time of the offense. Unlike noncapital cases, requests for an evaluation of future dangerousness (risk assessment) along with the aggravating (risk exacerbating) and mitigating (risk reducing) factors are essentially universal subsequent to a conviction of a capital crime. The judicial decision maker considers these factors and future dangerousness in deciding whether to impose the death penalty or instead select the alternative punishment of life imprisonment without the possibility of parole. It is recommended that the psychiatric evaluator discuss specific areas of mitigation with the referral source before conducting a capital sentencing evaluation. Even if the evaluator is not given direction from the referral source, he or she should consider all available mitigating evidence during the evaluation. The US Supreme Court has required that mitigation investigations include efforts to discover “all reasonably available” mitigating evidence.27 The jury must be able to consider all possible mitigating factors when determining whether a defendant should receive a death sentence. Accordingly, the prosecution may not limit the possible mitigating factors related to the defendant. These evaluations should focus on social and cultural factors that

656  Capital punishment

may have affected the defendant’s development; the defendant’s prison experience; factors surrounding the offense, including diminished capacity and moral justifications; favorable defendant characteristics; and victim-related variables, including the victim’s family support of a life sentence.28 It is critical that the evaluator support his or her findings with independent corroborating evidence. Although there exists neither professional ethical prohibition nor any legal barriers to forensic psychiatric consultation during the preconviction phase of a criminal proceeding, some forensic psychiatrists when surveyed question the ethical propriety of psychiatric participation at any stage of a capital case (outside of solely therapeutic measures).29 Several recent US Supreme Court cases have had a significant impact on competence to stand trial evaluations. In recent times, Estelle v. Smith can be considered one of the most significant court cases defining the contours of psychiatric participation in any criminal case. It specifies that the psychiatric expert witness must inform the defendant about the potential consequences of the forensic mental health evaluation.30 In Smith’s case, information obtained during a pretrial competence to stand trial evaluation was offered during the penalty phase of a capital trial to support the prosecution’s position for the death penalty for Smith. The Riggins v. Nevada decision in 1992 began the intense scrutiny of involuntary psychiatric treatment involving the use of antipsychotic medication to restore competence to stand trial.31 In Riggins v. Nevada, the US Supreme Court held that such treatment could be done only if it is medically appropriate, the defendant is a danger to self or others, and there are no less intrusive treatments available. In the subsequent case of Sell v. US, about a decade later, the Supreme Court validated much of the Riggins v. Nevada approach, calling for medical appropriateness of a treatment proposed for competency restoration, but required the presence of a compelling state interest to order involuntary treatment to restore a defendant’s competence to stand trial so the prosecution can proceed.32 Of course, capital cases would satisfy the compelling state interest criterion. Should the trial court find the capital case defendant incompetent to stand trial, treatment for purposes of competency restoration may be delayed should the defendant refuse recommended psychiatric treatment, thereby necessitating the use of the jurisdiction’s statutory procedure for involuntary psychiatric treatment, which must conform to case law from Sell v. US and subsequent case law. Godinez v. Moran clarified that being found competent to stand trial signifies competence for all legal decisions or functions a defendant might encounter during the pretrial and trial process, such as waiving counsel, pleading guilty, and so forth.33 The recent US Supreme Court case of Indiana v. Edwards allows the trial court to limit self-representation by mentally disordered defendants who had been found competent to stand trial, thereby reducing the likelihood of a trial becoming a travesty.34 Following restoration to competence to stand trial, the criminal trial proceeds.

Trial phase If a mental state defense is offered, the psychiatric expert witness participates in the trial, providing testimony either supporting or rebutting the proffered defense, depending on the opinions reached by the examining forensic psychiatrist. Forensic psychiatric consultation in a mental state at the time of the offense evaluation should be the same in both capital and noncapital cases. Should the capital case defendant be convicted of the capital crime, the next phase of the trial involves whether the defendant should receive the death penalty or the alternative life imprisonment without the possibility of parole. The psychiatric expert often participates by presenting to the judicial fact finder the aggravating and mitigating factors and level of future dangerousness to assist in the decision to impose the death penalty.35,36 Psychiatrists retained by either prosecution or defense counsel may provide opinions related to a defendant’s amenability to treatment, personal background, or the presence of mental disorders that may have influenced the criminal act. It should be noted that while mental illness is generally considered a mitigating factor, it has been interpreted as an aggravating factor in some situations.37 Mental illness may be improperly equated with an ongoing threat to society, especially in cases where previous treatment has been unsuccessful. Previous episodes of psychiatric symptom exacerbation may have coincided with dangerous behaviors and, consequently, may negatively affect sentencing. In addition, the presence of a maladaptive personality disorder may adversely affect the defendant during sentencing. For example, an antisocial personality disorder diagnosis may be associated with lack of remorse, persistent threat to society, and non-amenability to rehabilitation. 38 While such a diagnosis may intuitively be viewed as an aggravating factor, it may also be used to illustrate the consequence of a deprived background.38 The US Supreme Court ruling in Barefoot v. Estelle permitted psychiatric expert testimony based on using a hypothetical situation rather than based only on a personal examination of the defendant.39 In Barefoot v. Estelle the contested psychiatric testimony involved the defendant’s future dangerousness. Regardless of whether the prosecution or the defense retains the expert, mental health experts must bear in mind their ethical obligation to strive for objectivity throughout the examination.25

Postsentencing phase After the capital case defendant has been convicted and sentenced, the issue of whether the individual faces an execution has been resolved. Physician participation in a legally authorized execution has been considered a violation of the prevailing US medical ethics. A narrow interpretation of this medical ethical guideline focuses on the actual execution, for example, assisting in any way with inserting an intravenous line or prescribing any of the

References 657

medications used for the execution process. Psychiatric participation in capital punishment has been considered to include treating an individual found incompetent to be executed in order that the individual’s competence to be executed is restored. The 1986 US Supreme Court decision in Ford v. Wainwright prohibited the execution an individual who is “insane” or “incompetent” at the time of execution.40 The decision barred the execution of “those who are unaware of the punishment they are about to suffer and why they are to suffer it.”40 In the 2007 Panetti v. Quarterman decision, the US Supreme Court amplified Ford’s awareness requirement in requiring that the condemned individual possess a rational understanding of the punishment and its underlying grounds at the time of the execution.41 Although a few US psychiatrists have also considered performing an evaluation for competence to be executed as participating in a legally authorized execution, this has not been the prevailing psychiatric or forensic psychiatric view.29 The US Supreme Court’s decisions in Ford and Panetti did not give any guidance about psychiatric participation in these cases, nor did the Court give sufficient guidance as to what the competence to be executed standard should be, only that such a competence is recognized for individuals facing a legally authorized execution. Because few states commute the death sentence based on incompetence to be executed, a medical ethical guideline for this situation would attain critical significance. An ethical guideline prohibiting psychiatric treatment of a condemned prisoner found incompetent to be executed recently has been developed and allows psychiatric treatment of such incompetent individuals only if the death sentence is commuted to life imprisonment, or the individual is undergoing extreme suffering.23

REFERENCES 1. Mcwhirter, RJ. Baby, Don’t be cruel: Part I: What’s So “cruel & unusual” about the Eighth Amendment? Arizona Attorney. 2009; 46: 13–28. 2. Amnesty International. Death Sentences and Executions 2010. London: Amnesty International Ltd., Peter Benson House, 2011. 3. Death Penalty Information Center. http://www. deathpenaltyinfo.org. 4. The New Zealand Herald. Global executions declining—Amnesty International [Internet]. March 27, 2011. Available from: http://www. nzherald.co.nz/human-rights/news/article. cfm?c_id=500838&objectid=10715278. 5. Death Penalty Information Center. Fact Sheet [Internet]. 2015. Available from: http://www.deathpenaltyinfo.org/documents/FactSheet.pdf. 6. U.S. Department of Justice Bureau of Justice Statistics. Capital Punishment, 2009 [Internet]. 2010. Available from: http://bjs.ojp.usdoj.gov/index. cfm?ty=pbdetail&iid=2215.

7. Gallup. Death Penalty [Internet]. Available from: http://www.gallup.com/poll/1606/death-penalty.aspx. 8. Adams L. Death by discretion: Who decides who lives and dies in the United States of America? American Journal of Criminal Law. 2005; 32: 381–401. 9. Welch, JW. Biblical law in America: Historical perspectives and potentials for reform. Brigham Young University Law Review. 2002; 2002: 611–42. 10. Furman v. Georgia (1972), 408 U.S. 238. 11. Gregg v. Georgia (1976), 428 U.S. 153. 12. Penry v. Lynaugh (1989), 492 U.S. 302. 13. Atkins v. Virginia (2002), 536 U.S. 304. 14. Trop v. Dulles (1958), 356 U.S. 86. 15. Roper v. Simmons (2005), 543 U.S. 551. 16. Payne v. Tennessee (1991), 501 U.S. 808. 17. Douglas KS, Lyon DR, Ogloff JR. The impact of graphic photographic evidence on mock jurors’ decisions in a murder trial: Probative or prejudicial? Law and Human Behavior. 1997; 21: 485–501. 18. Bright DA, Goodman-Delahunty J. Gruesome evidence and emotion: Anger, blame, and jury decision-making. Law and Human Behavior. 2006; 30: 183–202. 19. Bornstein BH, Miller MK, Nemeth RJ, et al. Juror reactions to jury duty: Perceptions of the system and potential stressors. Behavioral Sciences and the Law. 2005; 23: 321–46. 20. Feldmann TB, Bell RA. Crisis debriefing of a jury after a murder trial. Hospital and Community Psychiatry. 1991; 42: 79–81. 21. Bandes SA. Repellent crimes and rational deliberation: Emotion and the death penalty. Vermont Law Review. 2009; 33: 489–513. 22. Ake v. Oklahoma (1985), 470 U.S. 68. 23. American Medical Association. AMA’s Code of Medical Ethics [Internet]. Available from: http://www. ama-assn.org/ama/pub/physician-resources/medicalethics/code-medical-ethics.page. 24. American Psychiatric Association. The Principles of Medical Ethics with Annotations Especially Applicable to Psychiatry [Internet]. 2013. Available from: http:// www.psychiatry.org/File%20Library/Practice. Ethics%20Documents/principles2013--final.pdf 25. American Academy of Psychiatry and the Law. Ethical Guidelines for the Practice of Forensic Psychiatry [Internet]. 2005. Available from: http:// aapl.org/ethics.htm. 26. Melton GB, Petrila J, Poythress NG, Slobogin C. Psychological Evaluations for the Courts: A Handbook for Mental Health Professionals and Lawyers. 3rd ed. New York: The Guilford Press, 2007. 27. Wiggins v. Smith (2003), 539 U.S. 510. 28. Atkins EL, Podboy J, Larson K, Schenker N. Forensic psychological consultation in U.S. death penalty cases in state and federal courts. American Journal of Forensic Psychology. 2007; 25: 7–20.

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29. Leong GB, Silva JA, Weinstock R, Ganzini L. Survey of forensic psychiatrists on evaluation and treatment of prisoners on death row. Journal of the American Academy of Psychiatry and the Law. 2000; 28: 427–32. 30. Estelle v. Smith (1981), 451 U.S. 454. 31. Riggins v. Nevada (1992), 504 U.S. 127. 32. Sell v. US (2003), 539 U.S. 166. 33. Godinez v. Moran (1993), 509 U.S. 389. 34. Indiana v. Edwards (2008), 554 U.S. 164. 35. Lockett v. Ohio (1978), 438 U.S. 586.

36. Eddings v. Oklahoma (1982), 455 U.S. 104. 37. Edersheim JG, Beck JC. Commentary: Expert testimony as a potential asset in defense of capital sentencing cases. Journal of the American Academy of Psychiatry and the Law. 2005; 33: 519–22. 38. Fabian JM. Death penalty mitigation and the role of the forensic psychologist. Law and Psychology Review. 2003; 27: 73–120. 39. Barefoot v. Estelle (1983), 463 U.S. 880. 40. Ford v. Wainwright (1986), 477 U.S. 399. 41. Panetti v. Quarterman (2007), 551 U.S. 930.

6

Part     Treatment

100 High-security hospitals: Ashworth, Broadmoor, and Rampton Kevin Murray 101 Medium secure units Ian H. Treasaden 102 Low-security and intensive care units Stephen Dye, Roland Dix, and Faisil Sethi 103 The UK private sector in forensic psychiatry Piyal Sen and Philip Sugarman 104 DSPD units in the hospital Geoffrey Ijomah 105 Personality disorder units in prison Malcolm Ramsay 106 Forensic mental health nursing Anne Aiyegbusi 107 Management of forensic psychiatry facilities Nicholas Broughton 108 Community forensic psychiatry Ramneesh Puri and Jeremy Kenney-Herbert 109 Managing personality disorder in the community Conor Duggan 110 Psychopharmacology: Some medicolegal aspects Malcolm Lader 111 Cognitive behavior therapy Clive R. Hollin 112 Dialectical behavior therapy in forensic settings André Ivanoff and Henry Schmidt III 113 Forensic individual psychotherapy Ronald Doctor and Leah Bruer Henen 114 Group psychotherapy John Gordon and Gabriel Kirtchuk 115 Interpersonal dynamics in forensic psychiatry Gabriel Kirtchuk, David Reiss, and Lakshmiramana Alla 116 Family therapy Jo Bownas 117 Sex offender treatment programs Jackie Craissati and Caoimhe McAnena 118 Reasoning and rehabilitation and enhanced thinking skills Estelle Moore, Catherine Farr, James Tapp, and Gareth Hopkin 119 Aggression management Kelly Reynolds and Niamh O’dwyer

661 667 673 679 683 693 697 703 709 715 721 727 733 739 743 757 765 771 777 783

100 High-security hospitals: Ashworth, Broadmoor, and Rampton KEVIN MURRAY Introduction and summary of provisions Developments since the 1970s Blom-Cooper, fallon, and tilt reports Recent events Legal challenges

661 661 662 663 664

INTRODUCTION AND SUMMARY OF PROVISIONS The high-security hospitals (HSHs) in the United Kingdom are unique in many ways. One of their peculiarities is that the legislative basis of their provision and management straddles the arm’s-length arrangements introduced in the Health and Social Care Act 2012, so that the “duty to provide places for patients detained under the Mental Health Act who require care under conditions of high security” is a specific legislative requirement on the National Health Service (NHS) Commissioning Board, but the Secretary of State for Health retains the authority to license providers and to issue ­directions as to the management arrangements within the hospitals that provide these services. This hybrid arrangement retains the so-called line of sight of the Secretary of State into the management of the HSHs so that, unlike in other Foundation Trusts, he or she may impose changes in the Trust Board. This authority reflects the inevitable anxiety around services that treat patients who have caused the greatest degree of public concern because of the offenses they have committed prior to detention in a hospital, and occasionally because of their behavior while within the hospital. The term Special Hospitals as they high-security hospitals were referred to in the 1959 Mental Health Act, was in many ways appropriate. Broadmoor Criminal Lunatic Asylum opened in April 1863 in the village of Crowthorne, some 40 miles west of London. Originally intended for up to 400 patients, the hospital slowly expanded, necessitating the establishment of a “northern branch” at Rampton, midway between Nottingham and Lincoln, in 1912. In 1933, additional secure services were provided at a third hospital, Moss Side, near Liverpool. The population of the three Special  Hospitals

Current role 664 Criticisms 665 Future arrangements 665 References 665

continued to rise to a peak of 2,522 in 1956.1 The population halved over the next 50 years, to 1292 in 2000, and subsequently has continued to fall even more rapidly (see Table 100.1).

DEVELOPMENTS SINCE THE 1970s The starting point for understanding these changes in HSH provisions is the 1975 Butler Report,2 a comprehensive review of forensic mental health services and related law. The report acknowledged the problem of the provision for mentally disordered offender patients being concentrated in the three Special Hospitals, which were isolated both geographically and professionally, with a “yawning gap” between the security they provided and that available either in the traditional asylums, which were contracting in the 1970s, or that provided in the new District General Hospital (DGH)-based services which were replacing them. Butler proposed the introduction of “regional secure hospital units” nationwide to support the transfer of Special Hospital patients to lower levels of security as part of their rehabilitation. These new units were expected to accept mentally disordered prisoners who did not need the highest security, as well as admit patients from general psychiatric services needing increased but not HSH conditions. Butler proposed 40 beds per million population, some 2,000 beds nationally; funding was found to develop 1,000 beds, with a plan to review once those were operational. Progress was disappointing, so that by November 1991 there were only 550 NHS medium-security beds,3 about half the number for which funding had been provided 10 years earlier, and barely 25% of the beds Butler proposed. In January 1993, there were 661

662  High-security hospitals: Ashworth, Broadmoor, and Rampton

Table 100.1  Population of high-security hospitals 1977, 1993, 2000, and 2014 Year 1977

1993

2000

2014

Men Women Total Men Women Total Men Women Total Men Women Total

Ashworth*

Broadmoor

495 83 578 555 73 628 365 51 416 228 0 228

483 119 602 399 99 498 351 78 429 210 0 210

Rampton 690 244 934 438 112 550 381 66 447 304 55 359***

Total 1668 446 2114 1392 284 1676 1097 195 1292 742** 55** 797**

* In 1977, “Ashworth” comprised the services at Moss Side and the pilot service at Park Lane Hospital, which was further developed in the 1980s. They merged to become Ashworth Hospital in 1990. ** 2014 figures are for commissioned bed numbers. The hospitals are expected to operate at 93% of commissioned capacity so patient numbers will be about 7% less, with a total population of about 720. ***  Rampton population in 2014 includes 158 specialist beds: the residual DSPD ­provision (50), the national Women’s Service (50), the National Learning Disability Service (48), and the National Service for Deaf Patients (10).

1,676 patients in the three Special Hospitals.4 The reduction in Special Hospital bed numbers since 1977 almost exactly matched the numbers re-provided in NHS medium-­security services; beds in the independent sector were in addition to these numbers. The contraction of HSH beds and expansion at the medium-security level has continued so that there are now just under 800 commissioned HSH beds, 1,300 less than in 1976, and 3,200 medium-security beds commissioned across the NHS and in the independent sector.5 While the substantial additional growth of mediumsecurity beds in excess of the reduction in HSH beds will be discussed elsewhere, from the viewpoint of HSHs, the public and political context in which the HSHs were operating in the 1980s and 1990s was set by a series of critical reports: the 1979 Yorkshire Television documentary Rampton, the Secret Hospital;6 the unfavorable 1988 Health Advisory Service report into Broadmoor;7 and the 1992 Blom-Cooper report on Ashworth,8 which described in unremitting detail an abusive regime and which was followed within 3  months by the setting up of Reed’s High Security Working Group.4 Blom-Cooper’s report prompted an editorial in the BMJ advocating the closure of the Special Hospitals9 and  their replacement with smaller regional services linked with existing medium-security units. Reed acknowledged the possibility of remodeling high-­security services in his 1994 report but proposed a new needs assessment before any remodeling of services. He  also noted that while there were patients currently in HSHs who no longer required that level of security, there were unquantified numbers of others who did need those services but who had no access, mostly within the ­prisons. Subsequently, the 1998 ONS report10 demonstrated that all types of prisoners—men and women, remand and

sentenced—experienced rates of psychiatric morbidity enormously in excess of those in the community.

Blom-Cooper, Fallon, and Tilt reports Overall, the 1990s were an optimistic decade for forensic services, with the acceptance of Reed’s humane “guiding principles,” the expansion of new medium-security services nationwide, a major attempt to quantify the scale of the unmet demand within prisons, and the expansion of academic departments of forensic psychiatry. At the same time, the HSHs were in retreat with falling patient numbers and financial underinvestment leading to environments that fell well short of expected standards. Any hopes that the ONS report would set the agenda for system-wide changes in secure provision were derailed by the second report into services at Ashworth, the 1999 Fallon report.11 The enduring importance of this report, produced 7 years after Blom-Cooper but still cited regularly 15 years later, is difficult to overstate. Blom-Cooper described an oppressive and abusive regime that was profoundly anti-therapeutic and may have contributed to patient deaths. His report called for a more humane approach at Ashworth with equal importance for treatment and security. Seven years later, Fallon was critical of BlomCooper’s approach, albeit couching his criticism in terms of the liberal approach advocated on the management of the Personality Disorder Service, or more precisely the vacuum where management should have operated and which instead was filled by a corrupt regime manipulated by the patients. Fallon advocated a much greater emphasis on security in all its manifestations: physical, procedural, and relational, specifically in relation to the care of personality disordered patients. One of Fallon’s recommendations was a review of

Developments since the 1970s  663

the physical security across the Ashworth site. What was actually commissioned was an overall review of security across the three high-security hospitals, the Tilt report (February 2000). Tilt’s review team was composed mainly of prison service security managers, with one NHS manager and one Department of Health official: the absence of any clinician on the panel was indicative of the approach taken and the prevailing lack of confidence in clinicians’ judgment. The first iteration of the Ministerial Safety and Security Directions were issued in June 1999, even before Tilt reported. These directions are periodically revised and reissued, most recently in December 2013. Fallon, Tilt, and the Safety and Security Directions have in large part set the agenda for all three HSHs over the last 15 years: reference is still frequently made to “the Directions” and to “Tilt compliance.” Money was made available for upgrading the hospitals’ perimeters to Category B prison equivalence, that is, to a level “from which escape must be made very difficult.”12 Within the hospitals, “high-risk” patients have been identified, security intelligence systems introduced, and annual staff security updates introduced. Tilt also argued strongly, like Reed, that those patients who did not require high security should move out to conditions of lesser security. This time resources were made available, and the Accelerated Discharge Programme that followed was the principal factor in the rapid reduction in the HSH population since 2000. The resources that were freed up by the reduction in patient numbers allowed the reprofiling of services with the establishment of robust catchment areas for the three hospitals for their male mentally ill and personality disordered patients, and the closure of women’s services at Ashworth and Broadmoor with the development of a single high-security service for women at Rampton, alongside the other national services for learning disability and for deaf patients. The conviction of Michael Stone in October 1998 for the murder of a young mother and her daughter and the attempted murder of her other daughter prompted critical comment in Parliament13 about psychiatrists who failed to detain severely personality disordered individuals for treatment, although the Fallon report that had been presented to the Secretary of State the previous month acknowledged at some length the absence of any clinical consensus regarding effective treatment of such individuals. Proposals were brought forward and money found for the commissioning of a dedicated hybrid service spanning hospital and prison for the treatment of the criminologically and psychologically defined dangerous and severe personality disorder (DSPD) group,14 perhaps the most perfect example of Sir Humphrey’s “politician’s syllogism”: “Something must be done Minister; this is something— do it!”15

Recent events While the government accepted almost all the recommendations of the Fallon report, the closure of Ashworth, and by implication of the other HSHs, was rejected on the basis that the problems were not “in the bricks and mortar” and

that the period of rundown to closure would be hazardous. Instead it was decided to end the historic isolation these services experienced by merging them into new and enlarged NHS Trusts. Consequently, in April 2001, Rampton became part of Nottinghamshire Healthcare NHS Trust, and Broadmoor became part of West London Mental Health NHS Trust; the following year Ashworth became part of Merseycare NHS Trust.16 Commissioning arrangements for the three HSHs have become more coherent with the completion of Tilt’s helpful Accelerated Discharge Programme, with robust catchment area links and with case management for patients for whom care pathways were problematic. Key performance indicators have been introduced and monitored; an effective clinical and secure practice forum has been in place for more than a decade as a practical policy-forming and problemsolving group, bringing together clinicians, security leads, managers, and commissioners. Altogether, the level of collaboration between the three hospitals is probably as great as it has ever been. Over the past decade or so there has been a significant level of capital investment in the HSHs for the first time since the 1980s. Broadmoor and Rampton each opened pilot stand-alone bespoke units with small wards of up to 12 patients for their separately commissioned DSPD services: the Peaks Unit at Rampton with 70 beds and the Paddock Unit at Broadmoor with 72. For a variety of reasons detailed in DH review of these pilot services,17 the units never reached full operating capacity, they generally failed to gain wider professional support,18 and the initiative is now being wound up: the Broadmoor service closed in April 2013, with the beds now being used in place of other 150-year-old accommodation; the Rampton one is presently contracting with a view to closure in the medium term. In addition, on the Ashworth site the last buildings that were part of the original Moss Side hospital closed in 2003, so that all patients are now accommodated in the 1980s Park Lane Hospital buildings. At Rampton, new units have been provided for the National High Secure Services for Women and for Learning Disability, and other wards have undergone significant modernization. In January 2014, the DH formally approved the business case for the redevelopment of Broadmoor Hospital, which means that by mid-2017 patients will no longer be accommodated in wards built 150 years ago that were criticized as “unfit for purpose” by the Commission for Healthcare Improvement (CHI) in 2003.19 The Safety and Security Directions required the identification of high-risk patients who would be locked in their rooms overnight for added security unless specific clinical considerations prevented this. This regime was implemented at Broadmoor and Rampton when they opened their DSPD services, albeit for reasons of cost control as much as for security. Perhaps because most patients had been transferred to the service from prison, nighttime confinement (NTC), as it became known, met with surprisingly little opposition from patients, and was welcomed by some

664  High-security hospitals: Ashworth, Broadmoor, and Rampton

who described feeling safer overnight when they knew all the other patients were locked in their rooms. On this basis, NTC has been extended across all services at Rampton and Ashworth; at Broadmoor it is in place in the twentiethand twenty-first-century accommodation but not in the mid-nineteenth-century accommodation provided for the majority of patients; “slopping out” for patients confined overnight in rooms without toilet facilities remains a step too far. The optimistic “24-hour unlock” program introduced by the Special Hospitals Service Authority in the 1990s is now a historical curiosity.

LEGAL CHALLENGES Historically, the HSHs have generally been the arena where legal challenges in relation to conditions of treatment and detention have been argued. Examples include the 1994 Broadmoor re C case,20 which established the ground for later capacity legislation; the 2003 Ashworth Munjaz case21 regarding seclusion, which was eventually decided by the European Court; and the 2006 Broadmoor Wilkinson case on treatment without consent for a capacitous patient.22 Most recently, Rampton has taken the lead in establishing that hospitals have the authority to impose a ban on smoking for patients while detained there, a decision that is widely referred to by other trusts as they struggle to deal with the issues raised by the impact of smoking on patients with severe mental health problems.23 Broadmoor and Ashworth also have been recently involved in First-tier (Mental Health) Tribunals held in public at the request of patients who hoped to engage public opinion in securing their discharge. Neither was successful.24,25

CURRENT ROLE What is the purpose of HSHs in the twenty-first century? The fundamental and legal purpose of high-security provision remains necessarily imprecise and still based on the 1977 description: “The services provided by the high secure hospitals include care and treatment for (anyone) … who, within the meaning of Section 4 of the 2006 Act, require treatment under conditions of high security on account of their dangerous, violent or criminal propensities and who also are identified as having a mental disorder and are detainable under the 1983 Act [Amended at 2007].”5 What follows therefore is a personal view of what this means in practice, the particular functions of high-security services based on the author’s experience of clinical management at Broadmoor. Most obviously, these services are needed for a small number of cases each year where an offense is committed by a mentally disordered person that so appalls the public that there is a need for a special safe place in which treatment may be given, and this place is in effect away from the public realm: out of sight and out of mind. Such cases are rare, and they may occur in individuals who have never been treated previously and have a good prognosis and response

to treatment, but whose rehabilitation in the relatively ­community-based medium-security sector is psychologically intolerable to the public. There is a need for “somewhere else” to maintain public confidence in the forensic care system, from where escape is as close to impossible as it can reasonably be made. The most public role of the three HSHs is to provide that form of asylum. Increasingly, mentally disordered offenders presenting after very serious offenses, albeit ones that fall short of prompting public outrage, are admitted in the first instance to medium-security units (MSUs).26 The levels of physical, procedural, and relational security that the larger units now provide can approach that provided by the HSHs a generation ago, and the lengths of stay far exceed the original 18–24 months Butler proposed: two of the critical differences between HSHs and MSUs pre-Tilt. When, occasionally, major safety issues arise that exceed the scope of the MSUs, the HSHs are there to provide a higher level of security. The third specific HSH function is providing treatment for prisoners transferred during long prison sentences. Even when there is agreement between the HSH and the catchment MSU that from a clinical viewpoint medium security would be adequate, the Ministry of Justice has generally been reluctant to allow prisoners with a remaining sentence of 10 or more years to transfer to MSUs. The escape of a transferred prisoner from medium- or high-security care remains one of the two mental health “never events.”27 The fourth specific function of the HSHs is to aggregate groups of patients with certain psychological treatment needs, related to their psychopathology or to their pattern of offenses. The critical mass of groups of similar patients needed to run regular group therapy programs for fire-setters, for stranger homicides, or for highly disengaged patients needing particular programs to enter psychological treatment such as reasoning and rehabilitation or understanding personality disorder are more likely to be available in highsecurity settings. Alongside the range of psychological treatment provision, the generally longer lengths of stay in HSHs necessitate the provision of more extensive ­occupational, vocational and educational, and recreational facilities within the hospital, in comparison with MSUs where for rehabilitating patients some of these may be accessed in the community, which is not an option for high-security patients. The fifth specific function of HSHs is to provide greater physical security both in terms of perimeter security and internal robust construction. HSHs accommodate a small number of men who present the most extreme challenge in terms relentless destructiveness to other people, to themselves, and to the fabric of the buildings in which they are accommodated. Sometimes this is a short- to medium-term problem; occasionally it is an enduring feature of their disorder. It is accepted that HSH staff are trained sufficiently to manage such challenges and that the fabric of the buildings will be sufficiently robust to withstand sustained assault. The sixth specific function is provision of care for the severely personality disordered men typically serving life sentences in the close supervision centres (CSCs).28

References 665

Many of these men have complex psychopathology with a range of personality disorders drawn from the borderline, paranoid, schizoid, and antisocial spectrum, with occasional experience of psychotic symptoms and chronic dysthymia. Although the staff at the CSCs are highly skilled in the management of such men, there are sometimes benefits from a period of treatment in hospital for reassessment, or to initiate medication or to attempt to engage in psychological therapy, which may then be continued in the CSC. Other prisoners not requiring CSC containment but with similar pathology that frustrates their sentence planning may benefit from the same kind of interventions, including those developed during the pilot DSPD programs. The seventh specific function of the HSHs is research on their populations. It is fair to say that since the demise of the Special Hospitals Research Unit in the early 2000s because of concerns about the data protection implications of the project, and the decision not to replace the personal chair in Special Hospital psychiatry jointly based at the Institute of Psychiatry and Broadmoor, the range and volume of research in the HSHs has diminished. There is some reason for recent optimism, with psychology-led departments at Ashworth and Broadmoor and the joint appointment between the Nottingham Institute of Mental Health and Rampton Hospital. It is hoped that time will show this optimism to be well founded. Finally, HSHs serve as the provider of last resort: after a major incident such as an escape from an MSU; after a most serious violent assault at an MSU; or when a number of patients, none of whom individually may require HSH care, conspire together to mount a major challenge to the safe running of the service and threaten the service’s ability to operate safely. It is expected that the HSHs have and will continue to provide the physical and clinical capacity to admit such patients at short notice, to underwrite the safe functioning of the wider forensic service.

CRITICISMS In terms of how the HSHs might do better, it may be helpful to separate their role in relation to the broader public safety agenda from their role as provider of last resort underpinning the MSU system. First, there is a poorly articulated but important compact between forensic providers and the wider public: if we are to be allowed to identify mentally disordered offenders and provide treatment to people who would otherwise be incarcerated following serious offenses, we can only do so with broad public support. We retain this support only if we do not put the public at any greater risk than they would be if the ordinary judicial processes of incarceration for punishment went ahead. Retaining public confidence in this endeavor is fundamental. It is fair to say that in this respect the HSHs have done well over the past couple of decades. The last escape from a high-security hospital was in 1994, with no harm to the public; the last escape with significant harm to the public was in 1954 in England and in 1973 in Scotland. Although tabloid headlines may criticize the idea of “care” for some of the highest profile offenders, in general there is

little public concern that admission to a HSH entails public risk; they are understood to be secure institutions. In terms of the relationship with other parts of the forensic services, criticism takes several forms, some of which are mutually contradictory. It is sometimes said that the threshold for acceptance is too high or that HSH services keep patients too long, but by no means are all referrals to MSUs for continued treatment accepted. It is also suggested that the HSHs should be closed, with the funds reinvested in enhanced local services. The same criticisms are also leveled at MSUs, with calls for funds to be reinvested in prison and community offender health services.29,30 The more than doubling of the prison population31 since Butler proposed 2,000 MSU beds alongside the existing 2,400 Special Hospital beds continues to stress the system. Further inefficiency arises from delays preventing prompt transfer once a patient is ready for the next lower level of security, a problem common across all secure inpatient services. It is always more straightforward to make the case for additional resources for treatment of a frankly psychotic remand prisoner than it is for an additional hostel place for patient whose treatment has been completed—although the latter would of course free up the bed for the prisoner.

FUTURE ARRANGEMENTS It seems likely that the HSHs will continue to provide a specific, limited but crucial role as long as forensic psychiatry is a hospital-based rather than a prison-based service, which has been the cornerstone of mental health legislation for two centuries. The policy of maintaining three hospitals was debated by the National Oversight Group, which is advisory to the Minister, in the early 2000s and was confirmed for reasons of geographical access, and to provide a sufficient measure of assurance in the event of a major interruption of service at one of the sites. The most recent review of capacity for the HSHs26 proposes no major change in the pattern of provision, with small shifts in bed numbers across the services, and some 716 beds providing for men with mental illness and personality disorder, for women and for both genders with specific learning disability and hearing needs, but excluding the residual DSPD provision as the Rampton service closes. However, just as the Butler report was prompted by Graham Young’s reoffending,32 the Fallon and Tilt reports were prompted by events at Ashworth and DSPD by Michael Stone, the next significant review is likely to be driven by an incident that cannot at present be anticipated: MacMillan’s “events, dear boy, events,” or more recently Rumsfeld’s unknown unknowns.

REFERENCES 1. Gunn J, Maden A. Maudsley Discussion Paper No. 6: Should the English Special Hospitals Be Closed? Institute of Psychiatry, https://www.kcl.ac.uk/ioppn/ contact/mentalhealth/publications/discussionpapers/assets/mdp06.pdf

666  High-security hospitals: Ashworth, Broadmoor, and Rampton

2. Report of the Committee on Mentally Abnormal Offenders (the Butler report). Cmnd 6244. London: HMSO, 1975. 3. Murray K. Use of beds in MHS Medium Secure Units. Journal of Forensic Psychiatry. 1996; 7(3): 504–24. 4. Report of the Working Group on High Security and Related Psychiatric Provision (the Reed report). London: Department of Health, 1994. 5. NHS England: 2014/15 NHS Standard Contract for High Secure Mental Health Services (Adults). London: NHS England, 2013. 6. Rampton: The Secret Hospital. Yorkshire Television, May 1979. 7. Report on Services Provided by Broadmoor Hospital: NHS Health Advisory Service, DHSS Social Services Inspectorate, 1988. 8. Committee of Inquiry into Complaints about Ashworth Hospital (the Blom-Cooper report). London: Department of Health, 1992. 9. Bluglass, B. The Special Hospitals should be closed. BMJ. 1992; 305 323–4. 10. Singleton N, Meltzer H, Gatward R. Psychiatric Morbidity among Prisoners in England and Wales. London: The Stationery Office, 1998. 11. Ashworth Special Hospital: Report of the Committee of Inquiry 1999 (the Fallon report). Cm 4194. London: HMSO, 1999. 12. Ministry of Justice National Security Framework: Categorisation Function, Categorisation and Recategorisation of Adult Male Prisoners: Prison Service Instructions, PSI 90/2100. London: Ministry of Justice, 2011. 13. Hansard, February 15, 1999. Vol. 325, cc601-14. 14. Managing Dangerous People with Severe Personality Disorder. London: Home Office and Department of Health, July 1999. 15. Yes Prime Minister, January 7. 1988, BBC. https:// www.youtube.com/watch?v=trw1PbQt_Yo. 16. House of Commons Debates, 12th January 1999. Vol. 323 cc107–23: Debate following the publication of the Fallon report.

17. The response to the Department of Health National Offender Management Service Offender Personality Disorder Consultation: DH/NOMS Offender Personality Disorder Team; Oct 2011. Government Gateway reference 16313. 18. Duggan C. Dangerous and severe personality disorder. British Journal of Psychiatry. 2011; 198: 431–3. 19. Dyer O. Conditions at Broadmoor come under attack from Inspectors. BMJ. 2003; 327 (7426): 1250. 20. Re C (Adult, refusal of treatment) (1994) 1 All ER 819. 21. Munjaz v. Mersey Care National Health Service Trust (2003) EWCA Civ 1036. 22. Wilkinson v. UK 14659/02 (2006) ECHR 1171. 23. EWCA/Civ/2009/795. 24. AH v. West London MH NHS Trust (2011) UKUT 74 (AAC). 25. Ian Brady (2013) MHLO 89 (FTT). 26. Kane et al. High Security Hospitals Capacity Plan 2016–2012. Institute of Mental Health, Nottingham. Paper to National Oversight Group 2014: restricted. 27. Department of Health: The Never Events list 2012/13. 28. National Offender Management Service: Close Supervision Centre Referral Manual. Prison Service Instruction PSI 42/2102 NOMS 2013. 29. Wilson S, James D, Forrester A. The medium-secure project and c­ riminal justice mental health. Lancet. 2011; 378: 110–1. 30. The Schizophrenia Commission. The Abandoned Illness: A Report from the Schizophrenia Commission. London: Rethink Mental Illness, 2012. 31. Story of the Prison Population: 1993–2012 England and Wales. London: Ministry of Justice, 2013. 32. Bowden, P. Graham Young (1947–90); the St Albans poisoner: His life and times. Criminal Behaviour and Mental Health. 1996; 6: 17.

101 Medium secure units IAN H. TREASADEN History of development 667 Security 668 668 Current provision Overview 668 Criteria for admission 669 Source of referrals of patients 669 Characteristics of patients 669 Accumulation of long-stay patients 670

Women 670 Assessment 670 Treatment 670 Discharge 671 Outcome measures 671 Reconviction rates 671 Criticism of the medium secure program 671 References 671

Forensic psychiatrists in the United Kingdom are most often based in secure psychiatric hospitals, such as medium secure units or high secure (special) hospitals, for example, Broadmoor Hospital, but frequently undertake work in prisons.

pending the development of purpose-built units). The unmet need for secure care arose from the open door policy since the early 1950s of ordinary psychiatric hospitals, overcrowding in high secure (special) hospitals, and increasing numbers of mentally abnormal offenders in prisons needing inpatient psychiatric treatment. Mentally abnormal offenders were sent by the courts to ordinary psychiatric hospitals after conviction; they would then abscond and reoffend, but not so dangerously as to require high secure (special) hospital admission. They would end up in prison again, and the vicious cycle of admission and reoffending continued. The Glancy Report1 in 1974 recommended that then regional health authorities develop secure beds on a regional basis, with the goal of 1,000 beds for England and Wales. The Butler Committee on Mentally Abnormal Offenders was set up by the Home Office and Department of Health and Social Security after a man named Graham Young poisoned a number of individuals, killing three, after his discharge from Broadmoor Hospital. This was depicted in the 1995 film The Young Poisoner’s Handbook. In the Interim Report of the Butler Committee in 1974,2 the immediate construction of regional secure units with central government finance was recommended with the aim of establishing initially 1,000 beds but ultimately 2,000 beds. The Butler Committee recommended that such units should not be long stay and should have a maximum length of admission of approximately 18 months. It also recommended that all psychiatric trainees have forensic psychiatry experience. In its final report3 in 1975, the Butler Committee reemphasized the need for such regional secure units but noted little progress had been made.

HISTORY OF DEVELOPMENT Beginning in the early nineteenth century, the Bethlem Hospital in London was given cash to take mentally disordered offenders. However, due to the resulting stigma associated with such patients, which persists today, they were eventually placed in a new facility, the State Criminal Lunatic Asylum, which opened in 1863, following the Criminal Lunatics Asylums Act of 1860, and was later renamed Broadmoor Hospital, the first of the high secure (special) hospitals in the UK. The three high secure (special) hospitals in England are Broadmoor Hospital in Berkshire, Rampton Hospital in Nottinghamshire, and Ashworth Hospital in Liverpool. Rampton Hospital provides for all English female high secure (special) hospital cases. These hospitals have the advantage of large sites facilitating greater freedom and therapeutic activities within secure conditions than is often available in less-secure units. Medium secure units were set up in England on a regional basis following the Butler and Glancy reports of 1975, in response to an unmet need for secure care and at a time when there were more regional health authorities. London had four regions but now has one (hence the previous terms regional secure units and interim secure units

667

668  Medium secure units

Medium secure units were first developed in England in Middlesbrough in 1980 and then in the Devon, Trent, and Mersey regions in 1983. By 1990 there were 600 beds. These units became the base for psychiatric input to prisons and for providing forensic psychiatric management advice to general psychiatrists. Some also provided community forensic psychiatric services and/or court diversion services. The Reed Report4 in 1992 set a new national target of 1,500 medium secure beds. By 1996, there were 1,000 beds and by 1999, 2,000, 500 of which were in the private sector. The Reed Report detailed three domains of security: physical, relational (between professionals and the patient, allowing early detection of problems and rapid intervention), and procedural (“the methodology or system by which patients are managed and security maintained”). Subsequently, physical and procedural security has continued to increase, and never decreased, against the background of inquiries into homicides committed by mentally disordered individuals and an increasingly risk-averse culture and political climate. Currently there are around 3,500 medium secure beds in the NHS and independent sectors, with the latter now having the majority.

SECURITY Security in medium secure units is provided5,6 as follows: ●●

●●

●●

Physical security is designed to deter all but the most determined absconders, with a minimum 5.2-meterhigh perimeter close-mesh fence (unless this protection is otherwise provided by buildings) that is checked daily, an airlock entrance controlled by a reception, and doors otherwise secured by locks or magnetic locking devices. Staff members have electronic keys, which also allow monitoring of movement. Some units use closedcircuit television. Personal alarms are provided for all staff. Procedural security includes rubdown searching of patients after they return from leave and a list of restricted items, including mobile telephones (especially those with cameras) and potential weapons. Visitors are subject to approval, and, where necessary, visits are supervised. However, at any one time, most patients can leave the unit either escorted or unescorted, which can be a surprise to those not familiar with medium secure unit practice. Relational security is provided by a high nurse-topatient ratio, allowing an in-depth knowledge of patients, and a range of wards for admission, intensive care, rehabilitation, and pre-discharge.

The Department of Health of England and Wales drew up formal specifications7 for medium secure units in 2007 to cover seven key domains: safety, clinical and cost effectiveness, governance, patient focus, accessible and responsive care, care environment and amenities, and public health.

Associated with these domains are quality measures of performance and required evidence and data to be collected. Based on these standards, the Royal College of Psychiatrists has established a Quality Network for Forensic Mental Health Services which undertakes peer reviews of medium secure services.

CURRENT PROVISION Currently, there are approximately 3,500 medium secure beds in the UK National Health Service and independent sector in England and Wales. (In the Republic of Ireland, Dundrum Hospital provides high- and medium secure beds.) The envisaged maximum length of stay of approximately 18 months to 2 years for medium secure units no longer holds, and long-term medium secure facilities have been developed, including for some who were previously in high secure facilities. The high secure population continues to fall, from 1,276 in 2000 to 879 in 2009.8 Specialist medium secure facilities have been developed for those with learning disabilities (discussed further in Chapter 28), older adults, those with autistic spectrum disorder, and those with personality disorder (discussed further in Chapter 24). The National Adolescent Forensic Network in England and Wales has now developed medium secure units for 12to 18-year-olds with severe mental illness who have committed serious offenses. Six such units have been developed for those of normal intelligence, in Manchester, Newcastle, Birmingham, Southampton, and London, where there are two units but only for men. There is an increased emphasis on education and development. Two secure units for adolescents with learning disabilities have been established in Newcastle and Northampton.

OVERVIEW Medium secure units were established for those whose severely disruptive and/or dangerous behavior requires psychiatric treatment in conditions of medium security (more than that available in ordinary psychiatric hospitals but less than that in high secure hospitals) and who also have a prospect of responding to care within about 18 months.9 However, provisions for longer stay patients in medium secure units have also been developed. Many patients have committed dangerous offenses such as homicide, rape, and arson. The majority suffer from severe (psychotic) mental illness, mainly schizophrenia. Aggressive psychopaths are not considered suitable for such units, as there is no definite evidence that they are amenable to treatment, especially within the originally maximum recommended duration of admission. Those with severe intellectual (learning) disabilities are also excluded, as they can generally be managed within locked units of hospitals for those with disorders of intellectual development. In general, patients admitted to medium secure units are detained under the relevant Mental Health Act. The largest

Characteristics of patients  669

number (at least 40%) come via the courts, having dangerously offended. Most, up to 90%, are men. More recently women’s enhanced medium secure (WEMS) units were developed, the enhancement referring to the therapeutic input rather than level of security. Such units have allowed chronic behaviorally disturbed women to be transferred there from high secure hospitals. Following the development of medium secure units, up to one-third of patients were transfers from high secure hospitals as a graded step in their rehabilitation to conditions of less security and, ultimately, the community. This is now decreasing, as both the inappropriately placed patients and also the total number of patients in high secure hospitals falls, and there is an increasing proportion of patients being admitted from prison, mostly after being convicted and sentenced in court, but also while on remand awaiting trial or after becoming, or being noted to be, mentally ill during a custodial sentence. Others are transferred from ordinary psychiatric hospital facilities. Most patients admitted to medium secure units are either discharged to the community, often to supervised care homes or hostels, or transferred to ordinary psychiatric facilities. A few require transfer to a high secure hospital. The number of places available in specialized secure psychiatric facilities is limited compared to the large number of mentally abnormal offenders. Thus most mentally abnormal offenders continue to be dealt with by ordinary psychiatric hospitals as either in- or outpatients. Low secure units often admit, under locked conditions, chronic behaviorally disturbed, sometimes violent, patients who have less seriously offended. Locked psychiatric intensive care units are usually reserved for acute mentally ill individuals who are violent, destructive, or suicidal, and the length of admission is usually short (less than 2 months). An unmet need has developed for low secure rehabilitation wards as medium secure units have become more restrictive. Such low secure wards are also cheaper than mediumsecurity wards. Since 2011, secure psychiatric care has continued to be commissioned regionally through a central NHS Commissioning Board, unlike other psychiatric services, which are commissioned by general practitioner consortia. Currently there are over 3,500 medium secure beds in England and Wales. More than 50% of medium secure units are now in the private or independent sector,10 discussed in Chapter 103, although admission to these services is still subject to gatekeeping by NHS forensic services. Private and independent hospitals do provide some specialist medium secure services, such as for personality disorder, but tend to concentrate on inpatient care and do not tend to provide a community forensic psychiatric service. These developments remain controversial.11

CRITERIA FOR ADMISSION In general, an individual will have committed a serious offense, such as serious violence with a weapon, or failed

in a placement in conditions of less security. The criterion for admission to high secure hospitals is that an individual should be an immediate grave risk to others and be a determined absconder and not manageable in a medium secure unit. The converse of this is that those suitable for admission to a medium secure unit will not be an immediate grave risk to others and, while there may be a significant risk of escape or absconding, the individual would not be a determined absconder.

SOURCE OF REFERRALS OF PATIENTS The source of referrals varies with the locality and the availability of other psychiatric facilities. Some areas have higher rates of serious crime. Some areas have well developed low secure and intensive care facilities, obviating the need for placement in medium security. Coid and colleagues12 in 2001 looked at 2,608 admissions to seven medium secure units between 1988 and 1994. They found that 35%–65% were from prison; 11%–26% were from low secure or general adult psychiatry services; 3%–40% were from the community, including police stations (this could include recalls to the hospital of conditionally discharged patients); and 6%–9% were transferred from higher security, the latter representing a graded step in the rehabilitation of such high secure hospital patients.

CHARACTERISTICS OF PATIENTS Overall, men predominate in medium secure units. Most of them suffer from severe psychotic mental illness, have committed a serious violent offense, and are detained under Section 37 or 41 of the Mental Health Act 1983. Apart from suffering from severe psychotic mental illness, psychiatric patients admitted to medium secure units are often multiply handicapped and have increased rates of substance abuse; antisocial personality disorder; low intelligence; mild brain damage; multiple skills deficits; a background of poor compliance with psychiatric follow-up; an often chaotic lifestyle; and family and early backgrounds of deprivation, neglect, and physical and sexual abuse. A study13 in one inner London health authority, looking at 183 patients in 2001, found that 87% of patients admitted were male. The mean age was 36 years (range 17–64 years). Ninety-three percent suffered from psychosis and 10% had a primary or secondary diagnosis of personality disorder. Half had had multiple past psychiatric admissions. A survey of the large Raeside medium secure unit in Birmingham in the Midlands of England in 2007, which looked at 80 patients, found the mean age to be 37 years. Eighty-six percent suffered from schizophrenia or schizoaffective psychosis, 5% bipolar disorder, and 1% delusional disorder. Sixty-five percent of the patients were admitted from prison, 15% from the community, 10% from another secure setting, and 10% from general psychiatric units. Fiftysix percent were detained under section 37 or 41, 4% under Section 37, 12.5% sections 47 or 49, 6.3% Section 48 or 49,

670  Medium secure units

and 14% under a civil section. Twenty-five percent had committed homicide or attempted homicide, 29% wounding, 10% sexual offenses, and 7.5% arson. Eighty-five percent had a history of substance misuse. The average duration of contact with psychiatric services was 14 years. Fifty-six percent of patients had been non-compliant with psychiatric followup and 70% with psychotropic medication.

Accumulation of long-stay patients There has been increasing recognition of an accumulation in medium secure units of long-stay patients who are often unreliable, episodically aggressive, prone to substance abuse, and treatment resistant. A study of one London mediumsecurity unit14 found 21% of patients had remained there for more than 5 years. Two groups were identified: the first consisted of chronically challenging and treatment-resistant individuals, and the second was a h ­ ospital-dependent but high-functioning group.

Women Women are now placed in gender-specific medium secure facilities, often on different wards, if not different units, to men but this may not have reduced their fear of physical violence or bullying,15 although it has, of course, reduced the risk of being sexually assaulted by men. Fewer women are admitted to medium secure units than men (e.g., 643 vs. 2611 in 2008 according to the Healthcare Commission). Women represent only 11%–13% of those subject to restriction orders according to the Ministry of Justice online statistics for 2007. They are less likely than men to be mentally ill (56% compared to 69%) and more likely to have a personality disorder, especially borderline personality disorder (20% compared to 10%). Women are more likely to be transferred from another psychiatric unit, including under a civil section, than from prison, compared to men. They are more likely to have been convicted of arson. They committed less violent offenses, including homicide, and sexual offenses. They were more likely to have a history of self-harm and to have been subject to childhood abuse.16,17 Two-thirds of high secure beds for women have closed since the numbers in the 1980s and 1990s. This has increased the demand for medium secure placements for women. Women in high security often had not been convicted of serious offenses, but they were too disruptive to be managed in normal medium secure units. As a result, women’s enhanced medium secure (WEMS) units were developed in London, Leicester, and Manchester, providing enhanced relational and rehabilitation activities, but no more security than standard medium secure units for women.

ASSESSMENT Assessment in medium-security units requires a multimodal structured, assertive, and intensive long-term

approach. Risk assessment instruments are universally used, almost always Historic-Clinical-Risk management 20-item (HCR-20) with the historical H items indicating the base risk and the clinical C items the current risk. Hare’s Psychopathic Check List – Revised (PCL-R) is also used to assess the presence and level of psychopathy in appropriate cases. A needs assessment is undertaken, including of symptoms, substance abuse, personality traits, and lifestyle. The Health of the Nation Outcome Score (HoNOS), part of the mandatory National Mental Health Minimum Data Set, which quantifies clinical change, has been modified for forensic psychiatric populations (HoNOS-Secure). Skills deficits are assessed, such as intergenerational, social, and vocational skills, and the level of insight is evaluated into mental illness, offending, substance abuse, and their relationship to each other.

TREATMENT Standard treatment of mental illness is integrated with the therapeutic milieu of a physically and emotionally containing medium secure unit. Comorbid personality difficulties or disorder are tackled through psychological group programs, such as enhanced thinking skills, reasoning and rehabilitation, dialectical behavior therapy, and anger management. Psychology interventions tend to focus more on assessment than treatment. Many units also have access to forensic psychotherapists, who may be involved in direct clinical care, supervision, consultation, and/or reflective practice groups with staff. A psychodynamic approach can contribute to the assessment of risk.18 Comorbid substance abuse is tackled by motivational interviewing and drug and alcohol teams. All medium secure units report problems of substance abuse among their inpatients, including on the wards.19 This can worsen control of mental illness, disinhibit behavior, and increase impulsivity. Substance abusers in general are more likely to be rule breakers.20 Searches, drug-sniffing dogs, and random but routine drug screening are all employed to counter this problem. Psychological offense-related work, including victim empathy, is offered, and deficits in skills are tackled, for example, in social skills training. Relapse prevention work is also ­conducted, including the identification of relapse signatures. A stepwise approach to returning to the community is achieved through multi levels of security in different wards and graded increasing freedom, for example, first escorted ground leave, then escorted town leave, and thereafter unescorted ground leave and then unescorted town leave with potentially overnight leaves later, all subject to Ministry of Justice agreement if the patient is subject to a restriction order. Ideally, patients should only be given leave if they are no longer considered a serious risk to others if they were to abscond. A multidisciplinary approach is taken by a team including forensic psychiatrists, psychologists, occupational therapists, social workers, arts (art, music, and drama) therapists,

References 671

and education teaching staff, as well as the nursing staff. Cooperative multidisciplinary working is essential. Ideally, staff training should be shared. A zero tolerance for violence, substance abuse, non-compliance and absconding should be adopted. Progress is evaluated by monitoring the patient’s mental state and behavior, including while on leave; the patient’s response to treatment; compliance monitoring; screening for substance abuse; and ongoing risk assessment and assessment of security needs.

DISCHARGE Discharge from medium secure units is either a result of the decision of the responsible clinician, with Ministry of Justice agreement in the cases of restricted patients, or by a First-Tier Mental Health Tribunal. Most patients are discharged to 24-hour supervised mental health care homes or hostels. Conditional discharge under Section 41 of the Mental Health Act facilitates subsequent outpatient management and can set conditions including the specification of place of residence and compliance with psychiatric and other professional supervision. One should avoid discharging patients to criminal, high drug use, and other pathogenic environments. There is variation in practice between medium secure units. Some transfer all patients for either inpatient or outpatient care by general psychiatric teams. This was referred to as an integrated model of care, but more recently this term has been applied where forensic community psychiatry teams work with general psychiatric community mental health teams in providing aftercare. Most units adopt a parallel model where, following discharge from a medium secure unit, a patient is supervised by a specialist community forensic psychiatric service, at least for the first year or so. Increasingly, patients transferred to a medium secure unit while serving a prison sentence are being returned to prison once improved, in spite of the fact that one-third of these patients suffer from schizophrenia.21 As a group they tend to be less motivated for treatment, which can lead to them languishing in prison unable to progress due to an inability to complete prison programs, the completion of which are often considered essential before release on parole or license. Some patients, less than 5%, will require transfer to highsecurity hospitals. Others will require transfer to conditions of lesser security to continue their inpatient rehabilitation.

OUTCOME MEASURES These measures can include rates of readmission, reoffending, escapes from the unit (ideally a “never event”), absconding from leave (about 400 incidents of absconding from leave occur each year in England and Wales), and serious offending during admission, as well as length of time in the hospital. In general the shorter the admission, the better the prognosis, but length of stay is increased if a patient has committed a more serious offense or is subject to a restriction

order. Overall, the prognosis is, of course, significantly determined by the mental disorder from which the patient suffers, for example, those with schizophrenia are unlikely not to have further relapses.

Reconviction rates A study22 of 959 (116 women) discharges from medium secure units found a 15% reconviction rate after 2 years. At 1 year, there was a 9% rate of reoffending in women compared to 16% in men. A study23 of 550 patients discharged from one medium secure unit, followed up for a mean of 9.4 years (up to 20 years) found a 49% reconviction rate after a mean time of 3 years. Seven percent had committed a s­ erious offense in 2 years, and 12% by 5 years. Thirty-eight percent were readmitted to secure psychiatric care. Of those discharged, 10% of the sample died, representing a six-fold increase in mortality rate. Suicide was the most common cause of death, followed by unnatural and then natural deaths. In another study24 of 1,344 patients discharged from 7 of the then 14 medium secure units in England and Wales over a period of 6.2 years, one in seven women compared to one in three men reoffended. One in 16 women committed a serious offense compared to 1 in 8 men. The risk of offending was found in this study to be increased, as might be expected, if the patient discharged is man, is young, had an early onset of offending, had a greater number of previous convictions, had a diagnosis of personality disorder, is a substance abuser, has a history of being subject to sexual abuse, has lost contact with psychiatric services, and was subject to a restriction order or had a longer duration of admission. Reassuringly, one study25 suggested there was no effect on local crime rates if a medium secure unit was located in the area.

CRITICISM OF THE MEDIUM SECURE PROGRAM Criticism26 has been made of the concentration of resources, costing almost £1 billion per year, largely on staffing, specifically treating the small number of offenders in medium secure units, which is around 15% of the total investment in adult mental health care, particularly when other potential areas for forensic psychiatric services input, such as prison mental health, community forensic psychiatry, and court diversion, receive only 1% of the cost of the medium-security unit program.

REFERENCES 1. Department of Health and Social Security. Revised Report of the Working Party of Security in NHS Psychiatric Hospitals (Glancy Report). London: HMSO, 1974.

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2. Home Office and DHSS. Interim Report of the Committee on Mentally Abnormal Offenders (Butler Report). London: HMSO, 1974. 3. Home Office and Department of Health and Social Security. Report of the Committee on Mentally Abnormal Offenders (Butler Report). London: HMSO, 1975. 4. Department of Health and the Home Office. Review of Health and Social Services for Mentally Disordered Offenders and Others Requiring Similar Services (The Reed Report). CM 2088. London: HMSO, 1992. 5. Kennedy HG. Therapeutic uses of security: Mapping forensic mental health services by stratifying risk. Advances in Psychiatric Treatment. 2002; 8: 433–43. 6. Crichton JHM. Defining high, medium and low security in forensic mental healthcare: The development of the Matrix of Security in Scotland. Journal of Forensic Psychiatry and Psychology. 2009; 20(3): 333–53. 7. Department of Health. Best Practice Guidance: Specification for Adult Medium-Secure Services. London: Department of Health, 2007. 8. Hansard. HC vol 505 col 1046W. February 10, 2010. 9. Treasaden IH. Current Practice in Medium Secure Units. In: Secure Provision. A Review of the Special Services for the Mentally Ill and the Mentally Handicapped in England and Wales. Ed. Gostiin L. London: Tavistock, 1985: 176–207. 10. Murphy E, Sugarman P. Should mental health services fear the independent sector: No. British Medical Journal. 2010; 341: 5385. 11. Pollock A. Should mental health services fear the independent sector? British Medical Journal. 2010; 341: c5382. 12. Coid J, Kahtan N, Gault S, Cook A, Jarman B. Medium secure forensic psychiatry services. Comparison of seven English health regions. British Journal of Psychiatry. 2001; 178: 55–61. 13. Lelliot P, Audini B, Duffet R. Survey of patients from an inner-London Health Authority in medium secure psychiatric care. British Journal of Psychiatry. 2001; 178(1): 626. 14. Jacques J, Spencer S-J, Gilluley P. Long-term care needs in male medium security. British Journal of Forensic Practice. 2010; 12(3): 37–44.

15. Mezey G, Hassell Y, Bartlett A. Safety of women in mixed-sex and single-sex medium secure units: Staff and patient perceptions. British Journal of Psychiatry. 2005; 187: 579–82. 16. Long C, Hall L, Craig L, Mochty V, Hollin CR. Women referred for medium secure inpatient care: A population study over a six-year period. Journal of Psychiatric Intensive Care. 2010; 7(1): 17–26. 17. Bartlett A, Johns A, Fiander M, Jhawar H. Report of the London Forensic Units’ Benchmarking Study. London: NHS, 2007. 18. Treasaden IH. Chapter 2: Assessment of Violence in Medium Secure Units. In: Dangerous Patients: A Psychodynamic Approach to Risk Assessment and Risk Management. Ed. Doctor R. London: Karnac, 2003: 21–31. 19. Durand MA, Lelliott P, Coyle N. Availability of treatment for substance misuse in medium secure psychiatric care in England. A national survey. Journal of Forensic Psychiatry and Psychology. 2006; 17(4): 611–25. 20. Main N, Gudjonsson G. Investigation into the factors that are associated with non-compliance in medium secure units. Journal of Forensic Psychiatry and Psychology. 2006; 17(2): 171–81. 21. Doyle M, Coid J, Archer-Power L, Dewa L, et al. Discharges to prison from medium secure psychiatric units in England and Wales. British Journal of Psychiatry. 2014; 205: 177–82. 22. Maden A, Scott F, Burnett R, Lewis GH, Skapinakis P. Offending in psychiatric patients after discharge from medium secure units: Prospective national cohort study. British Medical Journal. 2008; 328: 1534. 23. Davies S, Clarke M, Hollin C, Duggan C. Long-term outcomes after discharge from medium secure care: A cause for concern. British Journal of Psychiatry; 191(1): 70–4. 24. Coid J, Hickey N, Kahtan N, Zhang T, Yang M. Patients discharged from medium secure forensic psychiatry services: Reconvictions and risk factors. British Journal of Psychiatry. 2007; 190: 223–9. 25. Gradillas V, Williams A, Walsh E, Fahy T. Do forensic psychiatric inpatient units pose a risk to local communities? Journal of Forensic Psychiatry and Psychology. 2007; 18(2): 261–5. 26. Wilson S, James D, Forester A. Medium secure project and criminal justice mental health. Lancet Online. 2011; 378.

102 Low-security and intensive care units STEPHEN DYE, ROLAND DIX, AND FAISIL SETHI History and development 673 Psychiatric intensive care units 674 Application of procedural security measures 674 Intensive engagement/observation 675 Dynamic risk assessment/management 675 De-escalation 675 Restrictive physical intervention or control and restraint 675 Seclusion (supervised confinement) 675 Rapid tranquilization 675 Acute medication management 676

Multi-disciplinary management of acute disturbance 676 Group interventions for the team 676 Low-security units 676 Modern low-security unit patient characteristics 676 Security levels 677 Treatment/therapeutic approaches in the low-security unit 677 Conclusion 677 References 677

HISTORY AND DEVELOPMENT

including size, level of security, admission of informal patients, and length of patient stay. Concerns were also highlighted regarding lack of local policies and guidelines for admission and treatment.5 As a response and moved by a highly critical paper on the environments,6 a group of ­like-minded clinicians established a multi-­disciplinary association: the National Association of Psychiatric Intensive Care Units (NAPICU). NAPICU’s key aims are to advance psychiatric intensive care and low-security services, improve mechanisms for care delivery, audit effectiveness, and promote education and practice development. To standardize practice in PICUs and LSUs and to provide consistent high levels of care, the Department of Health7 published policy implementation guidance outlining national minimum standards (NMS) of care. This was developed within a practice development network consisting of multi-disciplinary clinicians and user representatives. In addition to defining PICUs and LSUs (Box 102.1), it provided a framework for design and care delivery. The NMS are organized into 15 sections (Box  102.2), each of which covers a rationale for developing guidance of that nature, standards pertaining to the topic, and related good practice guidance. This supplies transparency with regard to expectations and gives practitioners, commissioners, patients, and their caregivers a framework for discussion. Attempts have since been made to improve clinical governance and enable PICUs to meet these standards. The  Department of Health allocated funding to upgrade

During the de-institutionalization era, many long-stay wards in the United Kingdom were replaced by open and less restrictive acute environments. Subsequently, psychiatric intensive care units (PICUs) and low-security units (LSUs) evolved pragmatically to respond to the need for safe, therapeutic care of patients who display particularly disturbed or sustained risk behavior or whose offense (or charge) necessitates some security in their treatment. By the late 1980s these services were varyingly admitting patients from local acute open wards, known problematic patients directly from the community, and permanently disturbed patients who could not be safely managed elsewhere. They also admitted patients from courts (usually following ­conviction for minor offenses).1 These units have grown separately from mainstream forensic services; centralized funding and guidance subsequent to the Butler report2 did not encompass these patient types. This was addressed in the Reed report,3 which proposed that “access to local intensive care and locked wards should be available more widely.” The report put the onus upon health authorities to ensure “availability of secure provision…(which) should include provision for intensive care.” In the absence of central guidance it was therefore left to individual areas to develop services. In a national survey, Beer and colleagues4 found that such units varied in many aspects of structure and function,

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674  Low-security and intensive care units

BOX 102.1: Definitions of PICUs and LSUs PICU DEFINITION Psychiatric intensive care is for patients compulsorily detained usually in secure conditions, who are in an acutely disturbed phase of a serious mental disorder. There is an associated loss of capacity for self-control, with a corresponding increase in risk, which does not enable their safe, therapeutic management and treatment in a general open acute ward. Care and treatment offered must be patient-centered, multi-disciplinary, intensive, comprehensive, and collaborative and have an immediacy of response to critical situations. Length of stay must be appropriate to ­clinical need and assessment of risk but would ordinarily not exceed 8 weeks in duration. Psychiatric intensive care is delivered by qualified staff according to an agreed philosophy of unit operation underpinned by principles of risk assessment and management.

LOW-SECURITY DEFINITION Low-security units deliver intensive, comprehensive, multi-disciplinary treatment and care by qualified staff for patients who demonstrate disturbed behavior in the context of a serious mental disorder and who require the provision of security. This is according to an agreed philosophy of unit operation underpinned by the principles of rehabilitation and risk management. Such units aim to provide a homey secure environment that has occupational and recreational opportunities and links with community facilities. Patients will be detained under the Mental Health Act and may be restricted on legal grounds needing rehabilitation usually for up to 2 years.

the  physical environments of PICUs and LSUs,8 and the Royal College of Psychiatrists, in conjunction with NAPICU, introduced an accreditation scheme monitoring units against set criteria,9 thus providing increased uniformity alongside high standards.

PSYCHIATRIC INTENSIVE CARE UNITS PICUs in general adult psychiatry offer a clinical environment and a multi-disciplinary team dedicated ­ to the short-term management of acute disturbance in the context of serious mental disorder (Figure  102.1). They are locked clinical environments and usually have a ­maximum of 15 beds (many are significantly smaller). Patients are usually detained under the Mental Health Act 1983 and often pose a risk of harm to others who cannot be managed by a less secure general adult acute

BOX 102.2: Sections within the national minimum standards Admission criteria Core interventions Multi-disciplinary team (MDT) working Physical environment Service structure—personnel User involvement Caregiver involvement Documentation Ethnicity, culture, and gender Supervision Liaison with other agencies Policies and procedures Clinical audit and monitoring Staff training Psychiatric intensive care unit (PICU)/low-security ­support services

inpatient ward. A high staff-to-patient ratio and involvement of a full multi-disciplinary team are core attributes of the PICU treatment model. PICUs are not the preserve of general adult psychiatry; they exist at all security levels. PICUs are present in most medium-security facilities and in high-security hospitals. The physical security, procedural security, and relational security characteristics of a specific PICU will mirror those of the service within which it is situated. Irrespective of security level, all PICUs have a common treatment model: one that is defined by intensive multi-disciplinary care, dynamic acute risk management, and effective interface liaison leading to speedier clinical pathway progression. The PICU performs a pivotal role in the adult inpatient service structure. Moving away from general adult psychiatry and forensic services, over the past decade or so other more specialized PICU services have arisen. In the United Kingdom, there already exist a number of PICUs catering to adolescents or women. The policy and commissioning landscape for PICU and low-security services is currently in a state of flux, but there are providers in the United Kingdom who have at some stage considered the need for specialized PICU ­services for patients with a learning disability, for the personality disordered, or for older adults. Keeping in mind the overarching treatment model of the PICU, the following clinical and acute risk ­management  interventions are found to some degree in most PICUs.

Application of procedural security measures Examples of these measures include searching protocols on entry to the PICU, restricting possessions, monitoring communications, and screening visitors.

Psychiatric intensive care units  675

High secure

PICU

Medium secure

PICU

CJS Prison

Forensic low secure Court Low secure & rehabilitation

PICU

Adult inpatient Police

Community mental health services

Figure 102.1  The pivotal role of the PICU in adult psychiatry.

Intensive engagement/observation

De-escalation

Engagement and observation together are not about custodial watching of patients, but about interacting therapeutically with patients in a systematic way. For short periods of time, PICUs may utilize more intensive models of engagement/observation such as intermittent psychiatric observations, one-to-one psychiatric observations, or more than one-to-one psychiatric observations. This will usually be to manage short-term serious risk while other treatment approaches (e.g., medication, engagement, and rapport) come into play.

De-escalation was defined by Stevenson as a complex, interactive process in which a patient is redirected toward a calmer personal space.10 One way to conceptualize deescalation is using the ACT model, which incorporates assessment, ­ communication, and tactics (negotiation).11 Many PICUs now have dedicated a de-escalation space on the ward.

Dynamic risk assessment/management

This is the use of direct physical force (usually by a nursing team) to restrict a patient’s mobility. The purpose is to take immediate control of a dangerous situation and to contain or limit a person’s freedom for no longer than is necessary to end or significantly reduce the threat to him- or herself or to others.12

There are a number of structured risk assessment tools that have some utility in the PICU. Examples include actuarial tools such as the Overt Aggression Scale and structured clinical guides such as the Historical–Clinical–Risk Management 20-item scale (HCR-20). Nursing teams often use the structure of the Care Programme Approach assessment format, which includes a basic risk assessment and management scheme. In reality, structured professional judgment applied in a dynamic sense is probably as valuable as any risk assessment tool. The clinical work in a PICU occurs at a fast pace; the risk assessment and management culture within the ward must reflect this. The risk management plan of each patient must be updated regularly, and the updates should mirror the changing clinical picture and all risk incidents. Senior clinicians in the PICU should be well versed in more advanced specialized risk assessment (e.g., psychopathy, sexual violence, or stalking), as these are occasionally required in PICU work. There are also risk management domains other than the patient domain that require understanding in a PICU. These include staff, environmental, and organizational domains.

Restrictive physical intervention or control and restraint

Seclusion (supervised confinement) Seclusion is the restriction of a patient alone in a suitably designed room, usually for the protection of others from significant harm in the context of containing severely ­disturbed behavior. The majority of PICUs have attached seclusion rooms, and PICU teams are skilled in the complexities of managing the patient in seclusion.

Rapid tranquilization Rapid tranquilization (RT) is the use of medication when psychological and behavioral approaches have failed to ­de-escalate acutely disturbed behavior. The aim is to achieve anxiolysis and reduce risk. Skilled application of rapid ­tranquilization should optimize the reduction in agitation and aggression to allow further psychiatric assessment.

676  Low-security and intensive care units

Clinical protocols for RT usually include three segments, relating to oral, intramuscular, and intravenous medications. The evidence base is generally poor owing to the challenges of conducting truly randomized clinical trials. Practice is very much driven by some research data, clinical experience, and theoretical considerations of the medications involved.

Acute medication management PICUs manage the most acutely disturbed patients in the inpatient mental health system. In spite of cautionary statements regarding polypharmacy and high-dose antipsychotic prescribing, both of these practices are still common in the average PICU. Such procedures require a significant amount of physical health monitoring and a clear clinical rationale, which can only be gained after a thorough ­psychotropic medication review.

Multi-disciplinary management of acute disturbance Other examples of clinical interventions include individual and group therapy, life skills training, occupational therapy, health promotion activities, and input from dual-diagnosis practitioners. Psychological input is especially valuable in devising individualized plans for boundary setting and containment (e.g., behavioral charts and contracts).

Group interventions for the team PICU work is challenging. The patients can have a massive conscious and unconscious impact on the team. This needs to be unpacked and acknowledged in safe settings. The gold standard would be a reflective practice group led by a psychotherapist. Other interventions include de-briefs after significant incidents, case-based discussion groups, and away days.

LOW-SECURITY UNITS During the mid 1990s, the large Victorian asylum closure program in the United Kingdom accelerated. Provision was to be made for previously long-stay “refractory” patients in new smaller community-based units providing 24-hour staffed care with capacity to deal with degrees of challenging behavior.13 The aspiration for this strategic direction was for large institutions to no longer produce behaviorally disturbed and institutionalized patients resulting from extended hospital stays. During 1992, Lelliott and colleagues surveyed the population of psychiatric inpatients in the United Kingdom.14 They discovered that there were a significant number of patients (around 3,000) who had been in the hospital for between 6  months and 3 years who had often spent extended periods of time in the PICU. Named “new long stay” patients,

this group differed from the “refractory” patient15 in that many were detained under the Mental Health Act; they were younger (between 25 and 40); they had multiple diagnoses including psychosis, substance abuse, and personality problems; and they often had contact with the criminal justice system. (Increasing concern was also being raised about the number of people in prisons with mental illness who had committed relatively minor offenses.) The NMS guidance recognized the requirement for an inpatient facility for these patients that gave a degree of security (similar to that of a PICU) and could offer accommodation and therapy over an extended time period. For the first time, the notion of an LSU had been defined with a focus on recovery rather than acute care, with a general aim of returning people to the community within a 2-year period.

MODERN LOW-SECURITY UNIT PATIENT CHARACTERISTICS A number of surveys have suggested that there are broadly three categories within which patients in a modern LSU fall16,17: 1. “New long stay patient”: These patients are similar to those described by Lelliott and colleagues.14 They have a range of complex needs that require extended hospital admission under the conditions of the Mental Health Act with a degree of perimeter and internal security. These patients often have had contact with the criminal justice system and would also present degrees of secondary risk if they were to be accommodated outside of a low-security setting. 2. Patients who require descending levels of security prior to placement in the community, including patients who have previously been accommodated in high- or medium-security hospitals who often require an LSU as a facility from which successful community reintegration can be organized. (These patients mainly need between 6 months and 2 years in such an environment.) 3. Patients transferred from the criminal justice system, including courts and prisons: Many have not committed very serious offenses and have been identified as those who would benefit from inpatient assessment and treatment. While the offense and risk profile would not necessarily be judged as requiring medium- or highsecurity care, a degree of security is required to accommodate their status as individuals transferred from the criminal justice system or to provide additional security during initial stages of assessment and treatment. Some services may focus on one group in particular. These units may designate themselves more “forensic” units or those that specifically focus on the new long-stay patients (sometimes referred to as the “challenging behavior group”) detained on civil rather than criminal justice

References 677

sections. Recent years have seen the concept of low-security provision being much more closely aligned with traditional forensic services. Of the three patient groups, patients being transferred from the criminal justice system may comprise a higher proportion than the other two groups in the future. However, the 2011 report “Pathways to Unlocking Secure Care” has recommended a reduction in the number of secure low-security beds in favor of facilities titled “locked rehabilitation.”18 Thus, forthcoming years are also likely to see further definition of low security issued by central policy makers.

SECURITY LEVELS The first attempt to define general security characteristics of the LSU came within the physical design area of the NMS. This broadly defined the physical environment, including security levels, in a LSU as the same as that in a PICU. Many characteristics found in medium-security units can also be found in the LSU, including the standard air lock main entrance, window specifications, floor plan, and layout. Specific differences can be identified in terms of the height of perimeter fencing and a number of standard operating procedures for managing escorted leave, visiting policy, and so on. LSUs generally allow greater freedoms than would ordinarily be found in a medium-security unit.

TREATMENT/THERAPEUTIC APPROACHES IN THE LOW-SECURITY UNIT Many approaches used within the modern LSU are also to be found in other types of inpatient provision. Those more specific to the low-security environment will include longer term approaches to the assessment of risk (e.g., the HCR-20). Much of the therapeutic ranges of interventions are based on the philosophy of recovery with strong commitment to local community reintegration rather than acute care involving symptom identification and acute treatment. Commissioning requirements for LSUs will require that each unit provides an extensive range of therapeutic activities and other interventions aimed at developing increased living skills and promotion of health. Increasingly, LSUs are also offering programs aimed at reduction of criminal offending, including specific psychological work around particular offenses and victim empathy. Other interventions often include substance abuse programs, including specific dual-diagnosis work.

CONCLUSION Since 2000, serious attempts have been made to resolve some historically difficult issues for PICUs and LSUs in terms of definition and patient population. Clearer definition of services has paved the way for more robust patient pathways, standards, and treatment approaches.

New and significant challenges may lie ahead for the concept and delivery of low-security psychiatric inpatient care. With increasing emphasis on physical security and individuals who have committed clear criminal offenses, there may be a danger of the LSU’s becoming little more than an extension of medium-security provision. This is in contrast to an expansion of the role of PICUs into other areas outside of general adult psychiatry. With the possibility of increasingly blurred boundaries with medium security, there then remains the question of accommodation for the significant proportion of patients who may not have committed particularly serious criminal offenses or who have had profound involvement with the criminal justice system. Their needs nevertheless will require a degree of security with particular focus on recovery and developing living skills required for increased independence and risk reduction. Throughout the development of low-­security care there have been a number of unsuccessful attempts to provide accommodation for this increasingly complex group of patients. As yet, no effective alternative to the LSU has clearly been identified. The danger may be a reversion of PICUs’ role to that discovered by Beer and colleagues4 and these patients not receiving the type of care needed.

REFERENCES 1. Bowers L, Jeffery D, Bilgin H, Jarrett M, Simpson A, Jones J. Psychiatric intensive care units: A literature review. International Journal of Social Psychiatry. 2008; 54(1): 56–68. 2. Home Office, Department of Health and Social Security. Committee on Mentally Abnormal Offenders. London: HMSO, 1975. 3. Department of Health and Home Office. Review of Health and Social Services for Mentally Disordered Offenders and Others Requiring Similar Services. London: DoH/Home Office, 1992. 4. Beer MD, Paton C, Pereira S. Hotbeds of general psychiatry: A national survey of psychiatric intensive care units. Psychiatric Bulletin. 1997; 21: 142–44. 5. Pereira S, Beer D, Paton C. Good practice issues in psychiatric intensive-care units: Findings from a national survey. Psychiatric Bulletin. 1999; 23: 397–400. 6. Zigmond A. Special care wards: Are they special? Psychiatric Bulletin. 1995; 19: 310–12. 7. Department of Health. Mental Health Policy Implementation Guide for National Minimum Standards for General Adult Services in Psychiatric Intensive Care Units (PICU) and Low Secure Environments. London: Department of Health, 2002. 8. Pereira SM, Chaudhry K, Pietromartire S, Dale C, Halliwell J. Design in psychiatric intensive care units: Problems and issues. Journal of Psychiatric Intensive Care. 2005; 1(2): 70–76.

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9. Dye S, Page MJ, Deacon P, Metherall A. Psychiatric intensive care accreditation: Development of AIMSPICU. Journal of Psychiatric Intensive Care. 2010; 6(2), 117–22. 10. Stevenson S. Heading off violence with verbal de-escalation. Journal of Psychosocial Nursing and Mental Health Services. 1991; 36: 6–10. 11. Dix R, Page MJ. De-escalation. In: Psychiatric Intensive Care. 2nd ed. Eds. Beer MD, Pereira SM, Paton C. Cambridge, UK: Cambridge University Press, 2008: 24–31. 12. Department of Health. Code of Practice: Mental Health Act 1983, Chapter 15. London: Department of Health, 2008. 13. Jolley D, Jolley S, Benbow S. Criteria for long stay care. Psychiatric Bulletin. 1996; 20: 210–11.

14. Lelliott P, Wing J, Clifford P. A national audit of new long stay patients; 1: Method and description of the cohort. British Journal of Psychiatry. 1994; 165: 160–69. 15. Wing J, Brown G. Institutionalism and Schizophrenia. Cambridge, UK: Cambridge University Press, 1970. 16. Pereira S, Dawson P, Sarsam M. The national survey of PICU and low secure services, patient characteristics. Journal of Psychiatric Intensive Care. 2006; 2(1): 1–13. 17. Beer D, Vicky T, McGovern P, Gravestock S, Brooks D, Barnett L, Orr D. Characteristics of patients exhibiting severe challenging behaviour in low secure mental health and mild learning disability units. Journal of Psychiatric Intensive Care. 2005; 1(1): 17–24. 18. Centre for Mental Health. Pathways to Unlocking Secure Care. London: Centre for Mental Health, 2011.

103 The UK private sector in forensic psychiatry PIYAL SEN AND PHILIP SUGARMAN History 679 New developments 679 Relationship between psychiatry in the NHS and the independent sector 680

Comparison between the NHS and the independent sector 681 Conclusion 682 References 682

HISTORY

basis for the rapidly growing specialty of forensic psychiatry. Government policy recommended closer links between medium-security units and local criminal justice agencies, which meant that increasing numbers of mentally disordered offenders were being diverted from courts and prisons.7 Developments in financing and management in the public sector enabled the outsourcing of areas of health and social care, including “overspill” placements for challenging individuals in independent psychiatric hospitals,8 creating a favorable environment beginning in the 1980s for the growth of the private and charitable sector in secure care. This chapter provides a description of the UK private and charitable sectors in forensic psychiatry, collectively known as the independent sector. It describes the relationship between services in the National Health Service (NHS) and the independent sector. It does not cover other types of private work in forensic psychiatry, for example, expert witness work.

The history of inpatient secure mental health care in the United Kingdom up to the eighteenth century centered on the medieval infirmaries and the private madhouses, which have long been a byword for mistreatment.1 The development of new humanitarian attitudes toward the mentally ill was an important feature of the Enlightenment. The term moral treatment was used for novel psychiatric treatment approaches based on nonrestraint introduced at the Retreat, a charitable hospital still in operation in York.2 St. Andrew’s Hospital in Northampton, also a charity, was the first to be founded on the principle,3 but it was adopted by many institutions run by local county authorities, such as the Hanwell asylum in West London. Successive Acts of Parliament from 1800 created the county asylums, laws to regulate admissions, and commissioners to supervise standards.4 Some 13 charitable hospitals and a handful of privately owned facilities complemented the scores of state facilities that comprised the growing secure care estate. In parallel with these developments, the Criminal Lunatics Act 1800 first enabled the detention of mentally disordered offenders in the Bethlem Hospital, and overcrowding led to the first purpose-built psychiatric institution for offenders at Broadmoor in Berkshire, in 1863. After the Second World War, when the National Health Service (NHS) was formed, there were approximately 200,000 UK beds for patients with mental illness and learning disabilities in closed long-stay hospitals. The arrival of new medication, open wards, voluntary care, and outpatient treatment in the 1950s gradually led to the dismantling of these institutions. By the 1980s, there were only around 40,000 beds, a quarter of which were locked or secure.5 In the meantime, the Butler Report6 started a building ­program of regional medium-security units and became the

NEW DEVELOPMENTS The independent sector in UK health care, including secure mental health care, has two types of providers, commercial and charitable. The commercial providers are largely owned by private equity groups and funded by bank loans, and thus need to generate a substantial return. The smaller charitable sector is not-for-profit, with any surplus being invested back into service developments, similar to the model within which the semi-autonomous NHS Foundation Trusts now function. Following the creation of the NHS in 1948, just a handful of mental hospitals remained outside the NHS, including four charities. St. Andrew’s Hospital in Northampton, the largest of these, began to accept NHS patients from the start. By the 1980s it had developed innovative 679

680  The UK private sector in forensic psychiatry

Table 103.1  Medium-security beds by NHS region

East Midlands East of England London North East North West South Central South East Coast South West West Midlands Yorkshire and the Humber ENGLAND

NHS

Independent sector

Beds per 100,000

200 303 977 266 592 275 153 193 309 228 3,606

549 390 78 0 420 216 208 0 171 305 2,337

17.2 12.2 13.8 10.4 14.7 12.2 8.4 3.7 8.9 12.4 11.6

Data from Laing & Buisson, 2009.

“challenging  behavior” services for adolescents and for adults with ­mental illness, learning disability, and brain injury. This trend ­accelerated into the 1990s as the closure of large mental hospitals was practically complete and more commercial providers entered the market, with services rolled out across the country. As a result, the number of beds in independent sector mental hospitals has almost quadrupled over the past two decades.9 The value of the market has expanded from £40m (approx. $60 million in the US) in 1988 to an estimated £1133m (approx. $1200 million in the US) in 2009, growing at 10% a year into 2010. The great majority of this provision offers some level of security. The Partnerships-in-Care Group, currently owned by private equity firm Cinven, provides the largest n ­ umber of secure beds in the commercial sector, with an estimated 1200 mostly medium-security beds spread over 12 sites, while the Priory Group, currently owned by Advent Equity Group, has around 900 mostly low-security beds in 14 hospitals, in addition to wider rehabilitation services, care homes, and special educational services. There are many other commercial groups large and small, with some recent consolidation including major acquisitions by the Priory of Affinity and Craegmoor. In the charitable sector, St. Andrew’s Healthcare is the largest provider, with 700 medium- and low-security beds over four sites, together with 300 other semisecure specialist rehabilitation beds including those for brain injury and autism. Other significant charities include the Retreat at York, with 117 low-security beds in two hospitals, and Alternative Futures, which provides 112 low-security beds spread over seven hospitals9 in the North West. Of the country’s medium-security provision, the p ­ rivate sector supplies about 40%, with a focus on longer stay, difficult-to-place patients, including special patients such as those with learning disabilities, individuals with personality disorder, sex offenders, women, older people, the deaf, and those with autism. There is significant evidence that the independent sector has increasingly taken patients identified as “unmanageable” within its local services.10 According to the most recent estimates, the NHS currently accounts for 87% of independent mental hospitals’ revenue,

both secure and nonsecure, with privately insured and selffunded patients increasingly a minority. NHS in-house and independent sector capacity remains very uneven throughout England. For example, the relative distribution of medium-security bed capacity by NHS region (i.e., by Strategic Health Authority; see Table 103.1) shows that the South West region has the lowest level of medium-security beds per 100,000 population, compared with East Midlands region, which has the highest. As is ­evident, the independent sector has the majority of provision in parts of the South East, but is under-represented in the wider regions and in London, compared to the NHS. It is worth noting that the independent sector provides not only medium and low-security care but also locked rehabilitation and some open services that house forensic patients. In addition it runs most of the United Kingdom’s care homes, including a few specializing in former forensic patients, and many accept individuals with challenging behavior, especially those with learning disability, brain injury, or autism, as well as mental illness and dementia. Some charities have forensic community care teams, and prison in-reach services are run by charities and commercial providers as well as the NHS. Overall the sector makes a considerable and growing contribution to forensic care pathways.

RELATIONSHIP BETWEEN PSYCHIATRY IN THE NHS AND THE INDEPENDENT SECTOR During the past decade, the NHS has focused most of its innovation on service developments in the community, rather than inpatient services, preferring to keep patients out of the hospital with teams offering new forms of support, including assertive outreach and crisis resolution. Nevertheless, underlying social deprivation has filled most available beds and fueled demand for and growth of independent secure hospitals. Despite some tendency for the most difficult to treat patients to predominate in those referred, independent hospitals were seen in the past as

Comparison between the NHS and the independent sector  681

“cherry-picking” the less difficult patients for admission to the hospital. While this would naturally occur to some extent when demand exceeded supply, since the global downturn, pressure on public finances has brought sharp controls on referrals, with maximal use of NHS beds being prioritized. The independent sector now has significant spare capacity and tends to take all referrals promptly. The sector has been seen by some NHS professional staff as draining the NHS of resources and trained staff, by paying higher salaries to employees less motivated to ­provide quality of care.11 The leadership of key professional groups such as psychiatrists and psychologists remains based in NHS teaching centers allied with major universities, with control of research and postgraduate training, areas that are in their infancy in the independent ­sector.11,12 There are, however, examples of independent hospitals’ academic involvement in areas of mental health, such as undergraduate nursing, social work, psychology, and occupational therapy, in collaboration with local universities. St. Andrew’s has a research partnership with King’s College, London, and NHS postgraduate medical training in specialist forensic services in Northampton (at the United Kingdom’s largest psychiatric hospital). This is an exception, unlike in Australia, where a number of integrated twin psychiatric training programs have been developed incorporating both the public and the private sector.13 Psychiatrists and other professionals employed in the independent sector and those working privately outside the NHS have often experienced professional isolation, with difficulty accessing relevant professional development and training activities14 that are required to underpin continuing professional registration. However, this is also true of those working in small isolated teams in the NHS, perhaps more so than those employed at larger independent hospitals, which have significant continuing professional development (CPD) programs. Recently, the Royal College of Psychiatrists has started to appoint non-NHS psychiatrists as examiners, as regional CPD coordinators, and as appraisers for the purposes of professional registration and revalidation with the General Medical Council, as well as electing two non-NHS psychiatrists to its Council of Trustees. Meanwhile, resource restrictions in the NHS have prompted an increasing number of psychiatrists to take their first consultant role in the independent sector

after completing their training. The longstanding attraction of the NHS in offering job security, career prospects, and ­government pensions now looks less certain in the aftermath of the credit crunch. Progressive structural changes in the NHS have continued in the general direction of “marketization” because of escalating demands and financial pressures on public health care, despite public and political reservations. The introduction of a standard contract for mental providers across the NHS and the independent sector has introduced ­standardized quality reporting and is in line with the 2010 coalition government’s controversial plans for more competition and choice in public health care. However, there is a long way to go before a genuine level playing field is created between the NHS and the independent sector in secure care.9 Many in the NHS will continue to be ambivalent about business values in health care for the foreseeable future, using independent capacity mainly as an overspill. However, as some highly commercial groups begin to undercut NHS prices, financial pressures may mean that they win business from NHS-run units, if their quality of service is seen as acceptable.

COMPARISON BETWEEN THE NHS AND THE INDEPENDENT SECTOR Table  103.2 gives a subjective overview of the features of the commercial and public sectors that are seen in secure care and elsewhere. Since the credit crunch, new capital ­investment is generally in short supply, but this is more severe in the public sector while private equity interest and investment in health care remain relatively strong. Some commercial groups that have expanded greatly in recent years are currently heavily indebted and therefore having to survive through cost-cutting, which has affected quality and professional confidence in some cases. Charitable providers have a public benefit mission but freedom to adopt a quasi-­commercial culture, allowing the opportunity but not the guarantee of the best of both sectors. NHS services are also now subject to intense financial pressures. What a range of providers from three sectors offers is a choice of service models for NHS commissioners and greater opportunity to reward innovation. The key area for innovation in forensic care, in the authors’ view, is effectiveness in achieving recovery and shorter stays.

Table 103.2  Features of the commercial and public sectors Private (commercial) Profit motive Attracts investment Lean and efficient Higher risk and reward Faster rate of change—responsive Quality excellence, and care scandals

NHS (state) Public care ethos including offenders Development underfunded High fixed cost Job security/predictability Service stability; slow to change Quality excellence, and care scandals

682  The UK private sector in forensic psychiatry

CONCLUSION Independent forensic psychiatric care is well developed in the United Kingdom compared with, for example, the United States, in which the private sector is peripheral.15 The sector is starting to be recognized as a valuable resource to c­ omplement the NHS and leads in some areas of service specialization, diversification, and innovation. It is possible that the United Kingdom could be a model for other countries to follow.16 Further developments can be expected in the sector owing to the underlying social need, the limitations of direct state provision, and continuing investment interest in secure care.

REFERENCES 1. Scull A. The Insanity of Place/The Place of Insanity: Essays on the History of Psychiatry. London: Routledge, 2006. 2. Tuke S. Description of the Retreat, an Institution Near York for Insane Persons of the Society of Friends. York: Alexander, 1813. 3. Foss A, Trick K. The First One Hundred and Fifty Years. St Andrew’s Hospital, Northampton. Cambridge: Granta, 1989. 4. Unsworth C. Law and lunacy in psychiatry’s ‘golden age.’ Oxford Journal of Legal Studies. 1993; 13: 479–507. 5. Sugarman P. A perspective on the UK market for secure hospital care. Journal of Care Services Management. 2011; 5(1): 53–6. 6. Home Office and Department of Health. Report of the Committee on Mentally Abnormal Offenders. London: HMSO, 1975.

7. Department of Health and Home Office. Review of Health and Social Services for Mentally Disordered Offenders and Others Requiring Similar Services. London: HMSO, 1992. 8. Beck JC. Forensic psychiatry in Britain. Bulletin of the American Academy of Psychiatry and the Law. 23(2): 249–60. 9. Laing & Buisson. Mental Health and Specialist Care Services. UK Market Report 2010/11. London: LaingBuisson, 2009. 10. Moss KR. A study of patients identified as unmanageable prior to admission to an independent medium secure hospital. Medicine, Science and Law. 1999; 39(4): 319–24. 11. Sugarman P, Nimmagadda SR. The college and the independent sector. Psychiatric Bulletin. 2007; 31: 404–6. 12. Nimmagadda SR, Sugarman P, Duggan LM, McAlister HM. Growth in independent hospitals. An opportunity for training beyond the NHS. Psychiatric Bulletin. 2008; 32: 41–3. 13. Australian Private Hospitals Association. Call for More Doctors Training in Private Hospitals. [Internet.] 2007. Available from: http://www.apha. org.au. 14. Gunn J. CPD and the portfolio psychiatrist. Advances in Psychiatric Treatment. 2007; 13: 157–60. 15. Geller JG. A History of private psychiatric hospitals in the USA: From start to almost finished. Psychiatric Quarterly. 2006; 77: 1–41. 16. Sugarman P, Kakabadse, A. Governance, choice and the global market for mental health. International Psychiatry. 2011; 8(3): 53–4.

104 DSPD units in the hospital GEOFFREY IJOMAH Introduction 683 History of the DSPD program 683 International and societal changes 684 National and legal changes 684 Personality disorder services development 684 Legacy of the DSPD program 685 Functioning of hospital DSPD units 685 Referral and preadmission assessment 685 DSPD selection criteria 685 Patient characteristics 687 Childhood adversity, demographics, and adult social disadvantage 687

Offense history and risk 688 Diagnosis 689 Case mix 689 Staff support, reflective practice, boundaries, and supervision 689 The therapeutic milieu and the patient’s day 690 Treatment and progression 690 Discharge 690 Summary 691 References 691

INTRODUCTION

the patient population they treated, and what legacy they may have left for the practice of forensic psychiatry. The purpose of this chapter is to summarize the historical context underlying the DSPD program to shed light on why it was surrounded by so much controversy. The chapter provides an overview of the typical functioning of a hospital DSPD unit and the patients it admitted. It highlights what was learned from treating this new patient group and the implications for the many forensic personality disorder services that have sprung up in the wake of the DSPD program.

The term dangerous severe personality disorder (DSPD) may forever remain one of the most controversial topics in the recent history of psychiatric service development. From the conception of these services in 1999, even before the first hospital DSPD units were built, strongly polarized opinions had already been formed about their intended function. Many viewed the proposed new services as largely benevolent and a large-scale financial investment in National Health Service (NHS) forensic psychiatry service provision. In direct opposition, what predominated among professionals was a suspicion that the new services were a slight of hand, a Trojan horse, that would hallmark the introduction of “preventative detention” and mental health professionals being used as jailers. With the hail of controversy surrounding these expensive services, their funding proved to be an early casualty of the austerity measures experienced by the public sector in the aftermath of the 2008 world banking financial crisis. By 2011, the strategy for offenders suffering from personality disorder would see future investment directed away from the NHS and located in the less costly criminal justice ­system. Only now is there growing clarity emerging about how the DSPD program worked now the first reports about the hospital DSPD units are being published. There is no better time to review these services, how they functioned,

HISTORY OF THE DSPD PROGRAM “The future is dark, the present burdensome; only the past, dead and finished, bears contemplation. Those who look upon it have survived it: they are the victors. No wonder therefore men concern themselves with history.” —G. R. Elton, The Practice of History, 1967 The study of history involves the construction of a narrative from a sequence of events, and many errors are made in the process of attributing meaning to the past. This proved so true of the controversy that ensnared the DSPD program. The program is frequently viewed as a direct result of the case of a dangerous personality disordered offender, Michael Stone, who 683

684  DSPD units in the hospital

went on to murder shortly after his release from prison. The government’s announcement of its commitment to develop the new DSPD services coincided with the conviction of Michael Stone, but the impact of this unfortunate timing was to enshrine for many professionals the worrying narrative that the DSPD program was implemented primarily to prevent the release of such offenders.1 This explanation attributes too much influence on a solitary individual; there was a more complex interplay of international, national, legal, and societal changes occurring. Much earlier historical events had set the stage and provided fertile soil for such perceptions about the purpose of the DSPD program to take root and proliferate unchecked.

International and societal changes Internationally, by the 1980s, violence was increasingly recognized as a significant public health problem, a major cause of mortality and morbidity in young adults.2,3 In tackling the threat of violence, major U.S. cities showed it was possible to reverse the rising tide of crime through using “zero tolerance” interventions that, although successful in reducing societal crime figures, nonetheless resulted in rising rates of those incarcerated in prison. In parallel, community advocacy and concern over recidivist offenders in the community led to a growing number of states introducing sexual predator laws. Since the early 1990s, there has been concern about the wider impact of these signs of changing social attitudes and their associated legal reforms aimed at protecting the public against violence from individuals. Throughout the 1990s, many European countries experienced rising prison populations, forensic psychiatry beds, and places in supported housing that suggested for some a process of re-­institutionalization was already occurring.4 The combination of less emphasis on individual liberty and social rights was seen as the harbinger of a return to a coercive social control role for psychiatry, a role that was dominant prior to the closure of the asylums and the policy of community care.5

National and legal changes In the United Kingdom, the 1990s was a period of large investment in forensic services. The Redd report of 1992, which highlighted the dearth of the services for mentally disordered offenders outside of the special hospitals, led to a scale national building program of medium-security units. In parallel, a series of highly publicized incidents involving people with mental illness, such as the 1994 Ritchie report on the care of Christopher Clunis, further highlighted the importance of services for mentally disordered offenders in the community and brought into question the policy of community care. Many professionals viewed the significant development of services for mentally disordered offenders as part of this process of re-institutionalization and return to coercive social control model referred to earlier.4 By the late 1990s, these fears were being played out not only in the announcement of the new DSPD services, but also in the prolonged consultation process over planned reforms to the 1983 Mental Health Act.

The Criminal Justice Act 2003 saw the introduction of public protection sentences whereby indeterminate detention can be imposed based on convictions for serious violent or sexual offenses, with release being dependent on the parole board being satisfied that the risk has been reduced added to this impression. The timing of the development of the DSPD program was indeed unfortunate as the program was born in an environment where fears about the future social direction for mentally disordered offenders coexisted. Thus, by 2004, when the first hospital DSPD high-security hospital units  were being built, the stage had already been set for how they would be perceived in this emerging landscape. The DSPD services became the touchstone in an already polarized debate and attracted “moral panic” about the public protection role of the mental health professional.

Personality disorder services development The hospital DSPD units were never conceived as isolated services, but as part of a wider program of developing new services for patients suffering from personality disorder.6 This program was conceived toward the end of the 1990s, when there was a growing recognition that mental health services struggled to provide an adequate service for people with personality disorder.7 The need for the development of personality disorder services had remarkable historic parallels with recommendation made by the Butler and Glancy reports of the 1970s on the need to develop NHS services for mentally disordered offenders who fell into the “yawning gap” of service provision. It is important to recall the situation for patients suffering from personality disorder and the actual dearth of services available in the NHS. People suffering with personality disorders were treated at the margin of services and their needs were not prioritized. ●●

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There was a therapeutic nihilism, with many clinicians viewing personality disorders as “untreatable.” Services actively excluded patients with a primary diagnosis of personality disorder as many found the nature of the interaction with such patients difficult.

In forensic services, the situation was only marginally better. ●●

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Services for personality disorder were provided at all three high-security hospitals. The Fallon inquiry into the personality disorder service at Ashworth was ongoing. Commissioners estimated that one-third of patients with a primary diagnosis of personality disorder could be appropriately cared for in a less secure setting. A lack of service infrastructure for personality disorder meant many waited long periods for an appropriate lesser secure placement to be found. In medium security, Arnold lodge in Leicester was the only NHS unit with designated forensic personality disorder beds in the country.

Functioning of hospital DSPD units  685

Legacy of the DSPD program By 2005, the DSPD program oversaw the funding of a service infrastructure to create resources and facilities that can be used by clinicians to develop expertise in the care and treatment of people suffering from personality disorder. ●●

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In high security, 140 new beds at Rampton and Broadmoor hospitals were built. There were parallel developments in the prison estates, with the development of 160 places at HMP Whitemoor and HMP Frankland. In medium security, five forensic personality disorder pilots with regional forensic services were funded. Community hostels and community teams were funded to allow through care and ensure a continuity of approach and a transfer of learning and skills.

Following the reduction of DSPD funding, the goal is to make more treatment available in prisons by developing specialized personality disorder treatment in psychological informed planned environments (PIPES). The Peaks Unit at Rampton Hospital is retained as sole unit management of the current NHS high-security DSPD population. The DSPD unit at Broadmoor was redesignated as personality disorder directorate so that services for personality disorder continue to be available in all three high-secure hospitals.

FUNCTIONING OF HOSPITAL DSPD UNITS The term DSPD was never a diagnostic term for individuals; it was a descriptive term for a program to provide specialized care for a small but important neglected group of patients. Guidance on the functioning of DSPD high-­security and medium-security services for men was originally set out in the relevant Planning and Deliver Guides.8,9 This section considers the typical patient’s journey through the service in terms of: ●●

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Referral, preadmission assessment, and DSPD selection criteria Patient characteristics The therapeutic milieu and the patient’s day Treatment and progression Discharge

Referral and preadmission assessment DSPD units are for “the critical few,” an estimated 2,000– 2,400 persons who meet the DSPD criteria for dangerousness linked to severe personality disorder and require specialist services. Patients admitted to hospital services must satisfy the requirements of the mental health act detention criteria and the relevant high- or medium-security hospital admission guidelines. A preadmission assessment helps ensure that only those likely to meet the entry criteria are selected and admitted for a fuller assessment. The hospital DSPD units have a role in referrer education and changing the practice of referrers. In the early

days of the DSPD program, referrals were understandably influenced by the referrer’s beliefs and understanding about the purpose of the service. Many referrals were initiated too near the prisoner’s end of sentence date. Often this was related to multi agency public protection arrangement (MAPPA) concerns about the risks of managing the individual in the community. Section 47 allows the secretary of state to transfer a sentenced prisoner to a hospital (high or medium security) at any time before his or her release date. In the case of Roao TF and SofS Justice (2008) EWCA Civ 1457, the Ministry of Justice Mental Health Unit will now turn down requests for transfer late in sentence unless there are good reasons why such a transfer could not have been achieved earlier in the sentence. When the concept of DSPD was first introduced, there was concern about mental health professionals being used as jailers, but DSPD services have had an important role in ending the practice of last-minute, end-of-sentence referrals to forensic psychiatric hospitals. Referrals are only accepted to DSPD hospital units if there is sufficient time (at least 6 months) remaining in the sentence to allow a ­multidisciplinary assessment to be completed and a Section 117 meeting convened with the receiving agencies if the patient should not be found suitable for hospital treatment.

DSPD selection criteria An individual is considered suitable for treatment in a DSPD high-security unit if he or she is assessed as satisfying the following criteria: ●●

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The individual is more likely than not to reoffend (­commit an offense within 5 years) and the offense resulting in serious physical or psychological harm from which the victim would find it difficult or impossible to recover. The risk of reoffending must also be linked to the presence of a severe personality disorder. The criteria for severe personality disorder for high security are: ●● Psychopathy Checklist—Revised PCL-(R) score of 30 or above (or the PCL-SV equivalent); or ●● PCL-(R) score of 25–29 (or the PCL-SV equivalent) plus at least one DSM-IV personality disorder diagnosis other than antisocial personality disorder; or ●● Two or more DSM-IV personality disorder diagnoses.

It is important to keep in mind that the admission selection criteria are not rigid boundaries but guidelines for entry into a service for a neglected patient population. The admission selection criteria for DSPD and personality disorder (PD) units at different levels of security are outlined in Table 104.1. Judgments about admission to a hospital DSPD service follow principles similar to those about treating personality disorder in a hospital setting. The most important factors for assessment are the nature and probable impact of

Comorbid psychosis IQ

Sexual offenses

MHA detention Motivation to change Length of remaining sentence Expected length of stay PCL-R

Security needs Segregation

Admission criteria

High NO Normal location NO Preferable 3–5 years to complete treatment program 3– 5 years High PCL-R >30 >25 and 2 PD diagnosis PCL-R >30 Exclusion from SOTP Exclusion >70

Prison DSPD

Exclusion >70

High YES CSC YES Preferable >6 months to complete assessment 3– 5 years High PCL-R >30 >25 and 2 PD diagnosis Not exclusion

High-security DSPD

Table 104.1  Admission selection criteria of DSPD and PD services

Not exclusion >70

Not exclusion

High NO Normal location YES Preferable >6 months to complete assessment 7 years Variable PCL-R

High-security PD

Exclusion pedophilia Exclusion >70

Medium NO Normal location YES Necessary >2 years to complete treatment program 80

Medium NO Normal location YES Necessary >2 years to complete treatment programme