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

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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.

Citation preview

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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17 18 19 20 21 22

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

23 24 25 26 27 28

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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24 te cortex Cingula

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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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ntate g y r u s Stratum moleculare

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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

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20 40 60 80 Accuracy (% Correct)

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0.8 0.4

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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

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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

15.00

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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

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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 fo