ABSTRACT
It is, of course, a real conundrum as to whether mentally disordered offenders should be dealt with primarily in terms of their disorder, or in terms of their offending behaviour. Hybrid orders, like the hospital and limitation direction, permit both treatment and punishment, but bring with them their own diffi culties (Eastman and Peay, 1998). This intermingling of objectives is also refl ected in Article 5(1) of the ECHR where mentally disordered offenders are subject both to 5(1)(a) the lawful detention of a person after conviction by a competent court and detention on the basis of their 5(1)(e) unsoundness of mind. Only those found not guilty by reason of insanity or those found unfi t to plead, and who therefore are not convicted, are exempted from penal detention. Here, Article 5(1)(e), combined with the infl uence of the Winterwerp criteria, means that if they are to be detained at all, it must be in a therapeutic environment. Whilst questions have been raised above about the relative benefi ts to an offender’s mental health of being treated in hospital, as opposed to being treated on a voluntary basis in prison, there are also issues about the relative disbenefi ts of being held in either prison or hospital with respect to the individual’s health.1 Clearly, medication, and in particular anti-psychotic medication, has side effects, some of which can be peculiarly problematic to particular individuals; moreover, if that medication is to be administered by force, other risks can arise.2 Here it seems that neither Article 2 nor Article 3 provide any great protection where clinical interventions are deemed a medical necessity and are in keeping with current medical practice.3 But
there is also evidence that those with mental health problems receive less care for their physical disorders than those without (Sartorious, 2007). Moreover, the length of detention, extended in large measure by the move towards indeterminacy in the prison system and the more frequent use of restriction orders as opposed to hospital orders in the hospital system, brings its own problems with institutionalisation and the deprivation of normal relationships with family. And the stigma and pains of deprivation of liberty extend also to those families (see Jamison and Grounds, 2002). These issues of stigma are probably more acute for those held in the hospital rather than the prison system, or at least are perceived to be so by offenders. However much work is done to redress this issue, those held at Special Hospitals like Broadmoor will never be free of the effects of the assumptions and presumptions made by others, even after discharge. It is undoubtedly the case that to have the label of ‘mentally disordered offender’ brings with it not only the stigma of mental disorder, and that of being an offender, but arguably also an additional fear that preys on our most pri meval of emotions; that these are people where the sum of their parts crystallises into something potentially much more terrible, embodying an uncontrolled, uncontrollable and irrational force. Where victimisation of the mentally disordered, rather than perpetration of further offences by them, is as much a problem, then such portrayals are deeply unhelpful. However, the stereotype and the fear on which it feeds are hard to redress. There is, of course, a painful and profound irony in the fact that Jack Nicholson has starred in two fi lms capturing the extremes of this spectrum; namely, One Flew over the Cuckoo’s Nest and The Shining. But what is true is that our treatment of mentally disordered offenders perhaps refl ects the latter end of this spectrum since we do seem prepared to adopt alternative and arguably discriminatory approaches to offenders with mental health disorders. For example, although the MHA 1983 permits the treatment of detained capacitous patients for mental disorder against their will, such treatment appears less hard to justify (in both legal and moral terms) where those patients pose a risk of harm to others. Indeed, even the Richardson Committee (1999:70-71), with its key emphasis on the need for non-discrimination in the treatment of mental disorder, would have permitted the compulsory treatment of capacitous patients where there was a substantial risk of serious harm . . . to the safety of other persons and that there were positive clinical measures . . . likely to prevent a deterioration or secure an improvement in the patient’s mental condition. This exception to an approach that could otherwise have been consistent with one that respected a patient’s autonomy (albeit for issues of treatment, if not for questions of assessment or detention) would have had, inevitably, the greatest impact on mentally disordered offenders, who had already proven themselves to have posed a risk to others. Of course, much of the treatment available for mentally disordered offenders, such as cognitive behavioural therapy, entails not only
the cooperation of the patient, but also motivated cooperation on their part, making the notion of compulsion somewhat more ambiguous; indeed, the coercion of continued detention is as likely to be effective as any more obviously forcible treatment. Detaining a mentally disordered offender in a therapeutic environment, that is, under clinical supervision, is currently justifi able in human rights terms even though there may be no treatment for them, provided that the offender has been convicted of ‘a crime’. Again, there is seemingly no requirement of a prediction of future harm, or even future harm of a particular degree. Under the MHA 1983 there had to be a therapeutic benefi t before someone could be detained with psychopathic disorder; but the ECtHR was, in Hutchison Reid v UK,4 content for the confi nement of someone suffering from a mental disorder of the requisite degree to be justifi ed (or, at least, not constitute a breach of Article 5) in order to control and supervise them, and to prevent them causing harm to themselves or others, even where there may be no treatment for their underlying disorder. Similarly, in Johnson v UK,5 the ECtHR rejected an argument that unconditional release should follow immediately where there was no persisting mental illness:
Such a rigid approach to the interpretation of that condition would place an unacceptable degree of constraint on the responsible authority’s exercise of judgment to determine . . . whether the interests of the patient and the community . . . would in fact be best served by this course of action.
