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Law & Psychiatry: Dangerous Persons, Moral Panic, and the Uses of Psychiatry
Paul S. Appelbaum, M.D.
Psychiatric Services 2003; doi: 10.1176/appi.ps.54.4.441

Societies committed to civil liberties struggle with the problems presented by dangerous persons. Must authorities charged with protecting public safety wait for violence to occur before intervening? When, if ever, is some form of preventive action acceptable? Most countries have decided that dangerousness linked to mental illness justifies preventive interventions, perhaps because the possibility of successful treatment allows self-protective intent to be leavened by benevolent impulses. But what ought we to do when the dangerous person does not meet ordinary standards of mental illness and successful treatment is unlikely?

This is precisely the dilemma captured in a new book, by Australian criminologist Deidre Greig, based on a case that arose roughly a decade ago in Victoria, Australia (1). The protagonist of the story, Garry David, tied the correctional and mental health systems in knots, provoked a startling legislative response, and left the courts simmering in confusion. The David case provides an object lesson in both the difficulty of dealing with persons with severe character disorders and the dangers of subordinating psychiatry to the goal of protecting the community—a lesson with relevance to the American setting.

Garry David was born in 1954 to a teenage mother who abandoned him two years later, at which point he became a ward of the state. He lived thereafter in state institutions, apart from brief and not entirely happy visits with his mother. His first known offense, breaking and entering, occurred when he was 11 years old, and by the age of 18 he had been convicted 44 times, mostly for larceny and once for carrying a firearm. Transferred to an adult correctional facility before he turned 18, David remained in custody, with only four brief periods in the community, for the rest of his life.

What was to be his final period of incarceration began in 1980, when David shot the owner of a pizza shop, ostensibly to draw police to the scene so he could "go out in a blaze of glory." One of the policemen was shot before David was captured. David was tried and given a 12-year minimum sentence. He turned out not to be a model prisoner. Over the subsequent 11 years, David threatened that, once discharged, he would bomb bridges, police stations, and other public facilities, massacre people indiscriminately on the streets, and poison Melbourne's water system. He also subjected himself to at least 75 separate acts of self-mutilation, the list of which is difficult even to read, including swallowing razor blades; cutting off pieces of his ears, nipples, and penis; and inserting fish bones into his eye.

Victoria's correctional system, like most around the world, was not well suited to dealing with a prisoner who used his body as a weapon of manipulation. As David's case became a focus of media attention, questions were raised as to why he could not be prevented from harming himself. Frantic administrators transferred him back and forth between correctional and secure mental health facilities, looking for a way of simultaneously containing him and stopping his self-abuse. David further complicated matters by reaching out to the press with complaints that his desire for rehabilitation was being thwarted by the malevolence of the system, leaving officials thoroughly frustrated.

If Garry David was hard enough to handle as a prisoner, the prospect of having him on the loose produced something close to apoplexy among police, prosecutors, and the general public. But because his prison term was due to expire in early 1990, it was not at all clear how he could be retained. Civil commitment under the mental health law was one much discussed option. But although laypersons assumed that anyone who mutilated himself and threatened others in the ways David did had to be "crazy," the majority of psychiatrists who examined him concluded that he suffered from no diagnosable mental illness. Instead, David was said to have a severe personality disorder, a diagnosis that was confirmed by a special panel of senior psychiatrists. Australian psychiatry considered this disorder not to constitute a mental illness. Furthermore, under the prevalent interpretation of the governing law, a personality disorder alone did not meet the criteria for involuntary hospitalization.

With the clock ticking toward David's release and public fear of his potential for violence rising, the psychiatrist who had overall responsibility for his care suddenly reversed his opinion and certified David for transfer to a psychiatric facility. Dissension grew within the psychiatric services; psychiatrists believed that they were being used as a mechanism of last resort to satisfy the political pressures being brought to block David's release. David himself lodged an appeal with the Mental Health Review Board of Victoria, which many observers thought might well result in his discharge.

Before that could occur, however, the government acted. It introduced in the Victoria parliament the Community Protection Bill of 1990, a law that, remarkably enough, applied to only one person. The statute's stated aim was "to provide for the safety of members of the public and the care or treatment and the management of Garry David. . . ." Its provisions called for the state's Supreme Court to review David's status, including his "dangerousness and the necessity for his continued detention." The court had the discretion, if it found David more likely than not to be dangerous, to have him confined in a psychiatric facility, a prison, or some other "institution of detention." Periodic reviews were mandated. This kind of legislation aimed at a single person, analogous to the British bills of attainder that so exercised American colonists during our Revolutionary era, would be unconstitutional in the United States. Victoria later rejected this approach as well. But in 1990, the bill was hastily pushed through the parliament to prevent Garry David's release.

What came next can hardly have been surprising to anyone. The mental health review board found no basis for David's continued confinement in a psychiatric facility, transferring the issue to the jurisdiction of the Supreme Court under the new, hurriedly conceived statute. The court heard testimony from the psychiatrists involved in David's case about his risk of violence to others, and, despite its evident discomfort with the whole process, concluded that he should continue in confinement; this judgment was confirmed repeatedly at subsequent hearings. Amid endless court proceedings, David continued his pattern of self-injury and property destruction, and he again continued to be moved among penal, psychiatric, and medical services. Participants in the process felt uneasy about the extraordinary means being used to detain David. Finally, in what seems in retrospect the inevitable denouement of the situation, in June 1992 Garry David died of peritonitis, a complication of his repeatedly slashing his abdomen and puncturing his intestines over the previous two years.

In the aftermath of the Garry David case, Victoria revised its commitment law to allow involuntary hospitalization of persons with "mental disorders," a term conceived as broader than "mental illness" and hence including the personality disorders. A new sentencing statute was also adopted that allowed indeterminate sentences to be imposed on certain offenders. Through this statute, legislators hoped to avoid a repetition of the crisis that arose when Garry David's sentence expired—at least in the case of defendants who could be identified in advance as likely to pose an ongoing threat to public safety. But neither of these tools was available as the system struggled with David himself.

What are the lessons of Garry David's case? Without question, all societies, democracies not excepted, feel a need to protect their members from persons who appear likely to commit acts of serious violence. But radical measures taken during what Greig (1) calls a "moral panic" can create more problems than they solve. As difficult as Garry David was to manage, it seems likely that even with his history of violence he represented at least as much of a danger to himself as to other people. Because he had never lived outside an institution for more than a few months since the age of two, it is doubtful that he could have survived for long in society. Indeed, at times he appeared to realize that: he indicated his willingness to negotiate some sort of voluntary admission and supervised period of transition to less restrictive care. Crafting such a program, with close supervision and the ability to intervene if any crime was committed, might have represented an alternative to the course chosen by the Victoria government.

One cannot, of course, underestimate the capacity of someone like Garry David to undermine any plan and to create turmoil for its own sake. There may have been no good option here. However, the development of legislation targeted at the detention of a single individual harmed the structure of civil liberties in Victoria and constituted a troublesome precedent that placed other high-profile offenders at risk of being dealt with similarly. Moreover, the events that preceded passage of the Community Protection Act, involving the psychiatric confinement of a person who was almost uniformly believed not to meet existing commitment criteria, undermined the legitimacy of psychiatry's role in the involuntary treatment system. One judges from Greig's account that this action generated persistent acrimony and suspicion among the psychiatric profession, the legislature, the courts, and the criminal justice system.

The United States is not immune to the dangers of moral panic. Indeed, some observers might argue that we are in the midst of one right now. Many states—often in the tumultuous aftermath of a horrendous crime—have adopted legislation permitting indefinite involuntary commitment in psychiatric facilities of sexual offenders who have completed their sentences (2). As with Garry David, it is questionable whether most of the prisoners are likely to benefit from available treatment—and even whether that is the real intent of the laws. Rather, it appears that American law is willing to tolerate the pretense of therapeutic goals to justify detention with largely preventive aims. Although the U.S. Supreme Court has repeatedly upheld these laws (3,4), they—like Victoria's Community Protection Act—strain the limits of legitimacy and are likely in the end to produce backlash. Public safety is a vital objective of government, but its pursuit by means subversive of our civil liberties will end in more harm than good.

Dr. Appelbaum, who is editor of this column, is A. F. Zeleznik professor and chair in the department of psychiatry at the University of Massachusetts Medical School, 55 Lake Avenue North, Worcester, Massachusetts 01655 (e-mail, appelbap@ummhc.org).

Greig D: Neither Bad nor Mad: The Competing Discourse of Psychiatry, Law, and Politics. London, Kingsley, 2002
 
Appelbaum PS: Confining sex offenders: the Supreme Court takes a dangerous path. Psychiatric Services 48:1265-1267,  1997
[PubMed]
 
Kansas v Hendricks, 521 US 346 (1997)
 
Kansas v Crane, 534 US 407 (2002)
 
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References

Greig D: Neither Bad nor Mad: The Competing Discourse of Psychiatry, Law, and Politics. London, Kingsley, 2002
 
Appelbaum PS: Confining sex offenders: the Supreme Court takes a dangerous path. Psychiatric Services 48:1265-1267,  1997
[PubMed]
 
Kansas v Hendricks, 521 US 346 (1997)
 
Kansas v Crane, 534 US 407 (2002)
 
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