Law & Psychiatry: Dangerous Severe Personality Disorders: England's Experiment in Using Psychiatry for Public Protection

Oscar Wilde, writing in the late 19th century, noted that England has "really everything in common with America nowadays except, of course, language." Were one of Wilde's literary descendants to update that comment today, he might add "and mental health law." Despite a shared common law tradition, England and the United States have gone their own ways in recent decades with regard to such issues as civil commitment and the impact of mental illness on sentencing (1). But England (along with Wales) is now embarking on an experiment in using psychiatry as an instrument for the control of dangerous persons that it behooves us on this side of the Atlantic to watch with care.

In the late 1990s, England set in motion a process to revise its current commitment statute, the Mental Health Act 1983 (2). American psychiatrists who read the 1983 act will be reminded of the pre-1970s statutory framework in this country. Persons with mental illness can be involuntarily hospitalized on the grounds that "it is necessary for the health or safety of the patient or for the protection of other persons that he should receive such treatment and it cannot be provided unless he is detained" (part 2, section 3[2]). "Health or safety" is interpreted in practice to include the mental health of the person, essentially embodying a "need for treatment" approach to commitment criteria (3). Commitment can be effected by the attestation of two physicians that the criteria have been met, and review is provided by a mental health tribunal only if requested by the patient (part 5, section 66), a process that only a minority of patients pursue.

An unusual aspect of the English law lies in its definition of what conditions constitute a mental disorder that renders a person eligible for involuntary hospitalization. The statute specifically includes "psychopathic disorder," which it defines as "a persistent disorder or disability of mind (whether or not including significant impairment of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the person concerned" (part 1, section 1[2]). U.S. statutes uniformly avoid explicit inclusion of psychopathy or its cognate conditions (sociopathy and antisocial personality disorder), and American psychiatrists generally view psychopathic patients as untreatable and hence unsuitable for hospital admission. But British psychiatrists have been more optimistic about their ability to treat at least some persons with "psychopathic disorder" and more willing to use their facilities to do so. To prevent English psychiatric hospitals from being flooded with unruly and untreatable psychopaths, the statute requires that "in the case of psychopathic disorder or mental impairment, such treatment [to be provided as a consequence of hospitalization] is likely to alleviate or prevent a deterioration of his condition" (part 2, section 3[2]a)—the so-called "treatability" criterion.

One of the most contentious questions to arise as the process of revising the Mental Health Act has unfolded involves the government's proposal to expand the use of psychiatric facilities for the treatment of psychopathy and similar conditions. Largely ignoring the recommendations of an expert panel it had appointed in the late 1990s (4), the government issued a series of documents laying out the approach that it proposed to take. In a 2000 "white paper" to which responses were invited, the government described a new category of persons—"dangerous people with severe personality disorders (DSPD)"—for whom broadened commitment criteria were proposed (5). Citing public protection as one of the key priorities of any reform, the white paper noted that "[i]ndividuals who present a risk to others because of their severe personality disorder are rarely detained under the Mental Health Act 1983 because they are assessed as being unlikely to benefit from the sorts of treatment currently available in hospital" (5, part 2, page 9). This was the loophole that the proposal sought to close. Thus the government indicated its intent to develop legislation that would eliminate the treatability criterion for the commitment of persons with personality disorder, allowing involuntary hospitalization solely for the purpose of managing the problematic behaviors presented by these persons.

Psychiatrists and other groups concerned with the mental health system in England mounted an immediate attack on the government's proposal. A survey of British psychiatrists found 62 percent opposed to the plans and only 20 percent in favor; moreover, 31 percent of respondents indicated that they would refuse to implement new legislation that included the controversial provisions (6). The Royal College of Psychiatrists, in its formal response, expressed concern about the conversion of psychiatrists and psychiatric facilities into instruments of social control, without therapeutic intent, and about the accuracy of long-term predictions of dangerousness on which detention of dangerous persons with severe personality disorders would be premised (7). Additional concerns were raised about the lack of an evidence base for treatment of this population (8). Critics waited with trepidation for the introduction of formal legislation to implement the proposal.

When a draft bill finally appeared in 2002, it was clear that the government had decided to downplay the white paper's focus on public protection and the DSPD population (9). Indeed, no specific mention was made of the DSPD group. But the key pieces remained in place for the government's proposals to be implemented. A broad and essentially circular definition of mental disorder was introduced: "any disability or disorder of mind or brain which results in an impairment or disturbance of mental functioning" (part 1, section 2[6]). Although a variant of the previous treatability language was retained, its impact was reduced by broadening the definition of treatment to include "nursing, care, habilitation (including education, and training in work, social, and independent living skills), and rehabilitation" (part 1, section 2[5]). As a consequence, just about anyone who could be said to have a mental disorder, psychopaths included, for whom basic care or training would be provided, would probably qualify for commitment under the new law.

In response, more than 50 organizations, including the Royal College, formed the Mental Health Alliance to lobby against the act, and more than 1,000 protesters marched to Parliament to oppose the bill's passage (10). Thousands of comments were received from critics of the proposed law. With the bill's forward motion stalled, the government rethought its approach and came back in late 2004 with a revised draft (11). Although the key definitions of mental disorder and treatment were modified, they remain problematic in precisely the same ways and continue to leave the door open to use of commitment powers for essentially untreatable persons with personality disorders. British psychiatrists and other stakeholders remain opposed to these aspects of the bill, which at this writing is being reviewed by a specially appointed joint committee of the houses of Parliament.

Legislation, of course, is not the only way—nor, often, the best way—to change behavior. During the tumultuous, and so far unsuccessful, process of revamping England's mental health act, the government has taken significant strides toward its goal of increasing the use of psychiatric detention for dangerous people. A joint program of the Home Office (which oversees the prison system) and the Department of Health has been established to develop services for dangerous persons with severe personality disorders under the ambit of existing legislation (12). High-security units are being opened in two prisons and two forensic hospitals, with a total of 300 beds, to accommodate referrals from the penitentiaries and psychiatric hospitals, respectively. Criminal law has been modified to permit indefinite detention of persons who are thought likely to represent a continuing serious threat, and it seems probable that much of the DSPD population for the prison facilities will be drawn from this group. To be eligible for the DSPD program, a person must have a severe disorder of personality that renders him or her "more likely than not to commit an offence that might be expected to lead to serious physical or psychological harm from which the victim would find it difficult or impossible to recover (12)." Treatment programs are being developed.

Regardless of the outcome of the debate over the new Mental Health Act, then, England seems determined to move dangerous persons with severe personality disorders into psychiatric facilities. The opposition of the psychiatric profession and many other groups has not been able to stop this response to the perceived risks to public safety. But the critics have offered some potent objections that the government does not seem to have persuasively countered. Identification of persons who are likely to commit violent acts in the future is a fraught process, despite the new assessment instruments on which the DSPD program is relying. Given the low base rate of violence in society, even relatively accurate assessment will result in large numbers of persons who are falsely identified as at high risk of violence. The British government estimates that up to 2,400 people in England and Wales would meet its DSPD criteria, eight times more than the facilities under construction could begin to accommodate, and a figure that does not take into account the problem of false-positives.

Difficulty in identifying persons who are at risk of continuing violence will not be limited to the initial assessment process. The newly built facilities risk rapid "silting in" as they fill with committed patients to whose readiness for release no one may ever be prepared to testify. However hopeful the administrators of the new program may be with regard to the effectiveness of treatment, they are sailing out onto largely uncharted waters where the public may be highly intolerant of error. Thus even the substantial amount of funding now being provided for constructing and staffing the new facilities is unlikely to be sufficient, as more secure settings become necessary. Persons who are concerned with the mental health system in England as a whole express understandable alarm over the consequences for the vast majority of persons who are in need of psychiatric treatment, as resources are diverted to a small group that is not likely to benefit from care.

Moreover, the question of fairness cannot be avoided. In contrast with persons who are transferred to the new units from prisons, those who are committed from the mental health system may never have been convicted of a crime. Nonetheless, on the basis of a prediction of uncertain validity about their future behavior, they face indefinite detention without strong prospect of therapeutic gain. Psychiatry's collaboration with this process risks corrupting its treatment orientation and making the field subservient to the government's public safety agenda.

Here in the United States, we have taken tentative steps down a similar road. Our statutes in many states that allow civil commitment of sex offenders who have completed their prison sentences are analogous to the English proposals, although less extensive in scope. We might want to pause on our journey to watch the results of the process developing across the Atlantic. As different as our two nations may be, there seems little reason not to learn from the English experience.

Dr. Appelbaum, who is editor of this column, is A. F. Zeleznik distinguished professor and chair in the department of psychiatry of the University of Massachusetts Medical School, 55 Lake Avenue North, Worcester, Massachusetts 01655 (e-mail, [email protected]).