Public health psychiatry or crime prevention?

Government's proposals emphasise doctors' role as public protectors

In the wake of the recommendations of the Fallon inquiry into the personality disorder unit at Ashworth Hospital 1 2 the government has now announced its own solution to the problems presented by people with antisocial3 or dissocial4 personality disorder.5 After a joint Home Office and Department of Health review which ran in parallel with the Fallon inquiry it has proposed for consultation new services and law. Although not prescriptive about the detail of its solution, both the government's philosophy and its resolve are clear. In pursuing, above all, public protection, it intends services which essentially hybridise punishment and health care, with law that allows preventive detention of even the unconvicted.

The uncertain treatability of antisocial personality disorder,6 consequent professional therapeutic ambivalence,7 and inherent uncertainty about the moral status of the condition (whether individuals “suffering” from it are mad or bad)8 combine sensibly to imply a hybrid service solution which is far more radical than that which emerged from the last government's attempt at a similar review.9 Reflecting its close look at various European service models, the present government seems to intend a “third way,” involving establishing new specialist institutions which would be hybrids of prison and hospital and would house only people with severe personality disorder.

This contrasts with the solution proposed by Fallon1 of specialised personality disorder units in both prisons and high security hospitals, with transfer to hospital according to prisoner/patient consent and treatability. But the core public policy objective is clearly public protection, and this must raise serious concern that services may be constructed and funded so as to pay inadequate attention to current treatment or to improving future understanding and treatment through research. Some reassurance is offered by the Home Secretary's announcement of substantial research funding. However, the government's estimate that only about 2700 individuals require such a service,10 with the implication that the cost of the new services will be contained, clearly looks suspect given both surveys of morbidity in prisons11 and the continuing public appetite for protection from “people with mental disorder.”

However, the crucial issues for mental health professionals relate to the intended law reform. This goes far beyond the “hospital and limitation direction,” or “hybrid order,” of the Crime (Sentences) Act 1997, which allows courts to pass a prison sentence with an immediate direction to hospital.12 Even that provoked major ethical concern among psychiatrists,13 partly because of the likelihood of prisoner-patients being detained in hospital long after they needed treatment and partly because of concern that psychiatrists would become too involved in the punitive sentencing process. The new proposals, however, sideline the hybrid order in favour of a solution which necessarily uses health professionals even more directly in public protection.

Hence, there will be an indeterminate but reviewable order imposed by a court on evidence from psychiatrists (and perhaps psychologists) which will remain in place so long as the person is deemed, again on expert evidence, sufficiently dangerous to warrant it. This goes beyond even the Fallon proposal of a “renewable sentence“ since the order will also apply to people who have not been convicted of any offence.. The order will also apply to the untreatable. Indeed, a new order would be unnecessary for the treatable since they can already be detained under the Mental Health Act 1983.

Why make the new order a health order at all? The answer lies in the European Convention on Human Rights. Except in the event of an immediate risk of serious violence, the only means of preventively detaining unconvicted people lies in article 5 of the convention. This allows the detention of anyone of “unsound mind” on a fairly unrestricted basis. Hence, a “health order” is the only route available to the government to secure its goal. As a result, doctors (and perhaps psychologists) will be required to “diagnose” the new legal concept of severe personality disorder and advise on whether the “grave danger” threshold for the order is met where the effect of such recommendations will often not be treatment but punishment, or preventive detention. This raises serious professional ethical issues, going beyond even those implied by the suspect reliability of diagnosis and risk assessment.

Under the new order both the convicted and the unconvicted, as well as both the treatable and the untreatable, will be detained in a specialist secure service which must necessarily be legally a “hospital,” since unconvicted people cannot be imprisoned. However, the regime will emphasise management rather than treatment, since many of the “patients” will be untreatable. Hence, for many detainees, health professionals will operate much more as public protectors than as therapists.

Such a solution represents apparent victory of the Home Secretary14 over the psychiatric establishment15 in his assertion that doctors must return to a “sensible” approach to public protection via patient control. He justifies this on the twin bases of there being many untreatable medical conditions for which doctors accept a responsibility to continue to care for the patient and the avoidance of therapeutic nihilism. However, since both the new service and legal measures require doctors to offer care to people with untreatable disorders against their wishes, ultimately it is the public to whom the care is therefore offered. Although doctors are properly required to apply public health measures to protect the public in relation, for example, to infectious diseases, the new measures go beyond a public health model. At least patients who are restricted because of their infection also receive validated and effective treatment.

Although only described very generally, the government's service proposals for dealing with antisocial personality disorder per se are sensible, since they reflect the scientific uncertainty about applying the medical model, perhaps even including the notion of treatability, to those suffering from the disorder. However, its legal proposals challenge both the civil liberties of the unconvicted and those designated untreatable and the ethical nature of public health psychiatry. They also imply the risk of long term hopeless detention, especially if services are inadequately resourced. They must serve therefore to initiate a long overdue debate about the social definition and role of forensic psychiatry, which, in the face of pressures from an increasingly risk averse society, prone to moral panic,16 must go beyond the narrow confines of severe personality disorder. The fragility of the distinction between public health psychiatry and crime prevention has never before been so starkly represented as it is now in this proposal. However, all doctors should note the subtle but growing social requirement that medical practice should be applied towards public protection.17 That requirement is not restricted to the practice of forensic psychiatry.