Paul E. Mullen and Danny H. Sullivan
Some 30 years ago the first conference of the newly formed Forensic Section of the British and Irish College of Psychiatrists took place. ‘Conference’ is a grand title for a gathering comfortably accommodated in a modest-sized lounge room. Across the Atlantic the American Association of Psychiatry and the Law (AAPL) was better established, but still a small organization. Professors and departments of forensic psychiatry were few in the United Kingdom, having only John Gunn at the Institute of Psychiatry, although given the immense contribution he was to make, ‘only’ is not the right word. Many psychiatrists working in forensic hospitals or appearing in court would have identified themselves as general psychiatrists. No recognized training or certification existed. Forensic psychiatry had a history graced by such figures as Haslam (1817), Maudsley (1876), and Rey (1838) (1–3), but in the latter part of the 20th century, it was nascent.
Today conferences of both the UK and Australasian College Forensic Sections attract hundreds of attendees. AAPL meetings are even larger, and largest of all are conferences which embrace all the forensic mental health specialties. We have become, for better or for worse, a major psychiatric specialty claiming a significant slice of mental health funding. Forty years ago the psychiatrist portrayed in films, television, or novels was likely to have been a psychoanalyst, a madman, or both. Today our screens are full of fictional forensic psychiatrists and forensic psychologists, many with extraordinary powers to divine the motivations and identities of the obligatory serial killers. Even today’s psychiatrist-lunatics, like Hannibal Lecter, are drawn from the ranks of forensic psychiatry. The extent to which the forensic psychiatrist has become established as a cultural trope is illustrated by a recent exchange with the dean of Monash University. He complained that those interviewed for places at the medical school were more likely to express the desire to grow up to be forensic psychiatrists than to become surgeons. He did not say what influence such a preference may have had on their selection.
This essay will focus on areas of forensic psychiatry concerned with the criminal justice system. Civil forensic practice concerned with issues such as compensation for psychological damage, competence to author a will, and child custody, will not be covered. This is not because they are unimportant but because they are largely outside of the authors’ experience and have evolved somewhat separately.
Today we work as forensic mental health specialists alongside other professionals from psychology, nursing, social work, and occupational therapy, all of whom share training and expertise in the forensic arena. One of the stories of the last three decades is the birth of forensic psychiatry as an independent discipline. The growth of other forensic specialist disciplines has followed that of psychiatry, but this multidisciplinary endeavour could not have been foreseen 50 years ago.
The ultimate purpose of a medical specialty is to provide care and treatment to patients. The most important question is therefore whether the care and treatment of mentally abnormal offenders has improved since the 1970s. The answer is neither simple nor consistent.
On the positive side, mental health services to prisoners have improved in most jurisdictions. The large secure hospitals have shared, to some extent, in the increased emphasis on treatment and rehabilitation which transformed other mental hospitals. In general adult psychiatry, recent decades have seen decreases in bed numbers with the ultimate disappearance of many large institutions (see Leff, this volume). In contrast, despite shorter stays, the population in forensic inpatient services has steadily increased, together with the number of such facilities, although today medium- and low-security hospitals tend to be far smaller than previously. The increase of forensic community-based services has been modest in comparison to the growth of their inpatient counterpart, the reverse of trends in general psychiatry.
What was once a minor part of all psychiatric inpatient services has now become a major and still growing part. General psychiatric beds are to a limited extent being replaced by forensic beds, but accessing these requires the qualification of criminality. The nature of the requisite criminality varies. In the United States, so-called sexually violent predators fill many existing and newly commissioned forensic beds. In California, some of yesterday’s large psychiatric hospitals are reappearing as secure forensic hospitals (e.g. in the Napa Valley). This is in response, primarily, to the escalating numbers of those designated sexual predators who enter, but rarely leave, the forensic services.
The temptation for those sceptical about the progress of deinstitutionalization is to suggest that we are transferring patients from the care of general psychiatry to the control of prisons and forensic hospitals. There are more mentally ill people in prison, but there are also far more people in prison today than previously. What is not clear is whether the increased prison musters have been disproportionately selected from the mentally ill. There are more people in forensic hospitals, many of whom might well have occupied beds in the old asylums. But were they better off in the locked back wards of yesterday’s psychiatric institutions?
Where mentally ill offenders reside defines only part of the quality of care they receive. Thirty years ago, treating mentally ill offenders often began and ended with treating the active symptoms of their psychotic disorder. One undoubted benefit from the research into the risk factors for offending in those with and without mental illness is the recognition that many of the important criminogenic factors—those associated with offending risk—are similar in both groups. Just like the general run of repeat offenders, the recidivist mentally abnormal offender is more likely to have a history of childhood disadvantage and abuse, conduct disorder progressing to juvenile offending, difficulties in interpersonal relationships, educational failure and unemployment, self-centred and callous personality traits, and disregard for social constraints. The reason why they have similar histories and current characteristics may, however, be very different. If we understood why some who will develop a form of schizophrenia show deficits which affect their social and intellectual development and function, as well as erode the integrity of their personalities, we might be able to provide different management strategies. In the continuing absence of such knowledge, management strategies developed for the criminogenic factors in other offenders remain the best guide to managing the mentally ill offender.
Offenders with psychotic disorders fall on a spectrum. At one end is the young, antisocial, often substance-abusing repeat offender. At the other is the older, often reclusive person who does not abuse substances, has no significant history of antisocial behaviour either as a child or as an adult, and who commits a single, often violent, offence. This is a skewed distribution, with most being at the young recidivist end of the spectrum. The older, one-off offender is likely to be a deluded individual whose offending is apparently out of character. These used to form the bread and butter of forensic psychiatry and once filled the secure forensic hospitals. The more disorganized young psychotic men and women who offended repeatedly used either not to be recognized as ill, or their offending was attributed to antisocial personality rather than their illness. They almost always ended up in prison, and untreated.
Epidemiological studies examining the relationship between major mental disorders, in particular schizophrenia, and offending behaviours have revealed the extent and complexity of the associations. Some continue to argue that psychosis is not causally related to offending. This fails to explain why offending is not only several times more frequent among those suffering from schizophrenia, but disturbed backgrounds, conduct disorders, substance abuse, and educational failure are also more common in the offending group of people with mental illness. Either these environmental factors generate both crime and schizophrenia, or there is something about the early development of those suffering from schizophrenia which makes them more vulnerable to developmental difficulties (see McGuffin and Murray, this volume).
For the sake of patients accumulating untreated in prisons, particularly in the United States, we can only hope that the link between the vulnerabilities which accompany certain forms of psychosis and criminal behaviour will be recognized and accepted. Without that acceptance, no progress is likely in either reducing offending, or preventing reoffending among those with serious mental illness. Forensic psychiatry now accepts the necessity of addressing criminogenic factors in parallel with ‘symptom control’ or suppression of features of mental illness.
In an ideal world, forensic mental health would be engaged primarily in preventive work with vulnerable patients living in the community. Early recognition and early intervention in those whose disorder increases the chances of offending or reoffending, is where forensic mental health resources should be focused. The care and containment of those mentally ill people who have committed serious crimes will hopefully take place predominantly in units integrated with community and rehabilitation services, to ensure for most a safe transition back to the community. For a small number, the nature of their crimes and the nature of their disorder will make long and perhaps permanent secure containment unavoidable. For these the challenge will continue to be maintaining hope and providing the best possible existence within the constraints of enforced incarceration.
The rise and rise of risk assessment has wrought dramatic changes in forensic mental health practice. Assessing the risk of patients becoming violent has become central to forensic expertise. The study of potential risk factors and the creation of ever more instruments to assess the chances of each and every conceivable form of bad behaviour are now our primary research fields and most profitable occupations. Major shifts in the balance of power have resulted, both externally between forensic and general psychiatry, and internally between psychiatrists and psychologists. Some gainsayers write of the damage to patients when they are regarded first and foremost as embodiments of risk; others mutter darkly of pseudoscience and statistical infelicities (4–6). Nevertheless, the risk assessment bandwagon continues to accelerate, strewing academic and financial benefits on its followers.
The dominant figures in the new risk assessment orthodoxy tell a tale of clinical and scientific progress (7–9). Once upon a time, so the story goes, there were many psychiatrists and a few psychologists who labelled patients as ‘dangerous’ only on the idiosyncratic insights of personal experience. Then came the researchers and psychometricians, drawn largely from the ranks of psychologists, who replaced guesswork with systematic, usually actuarial, instruments based on empirical data. These were so transparent and simple that anyone who had paid the fees for the training could carry out reliable, reproducible, and objective risk assessments.
There may well have been psychiatrists who pronounced on dangerousness merely on the basis of personal prejudice. We never had the misfortune to meet these straw men, but that is not to say they never existed. In the 1970s the leading figures in forensic psychiatry who wrote on dangerousness (10–13) struggled with a quite different problem. It was known that the evidence pointed to a number of predictors of future offending: being male, being young, having offended previously, and having experienced disturbed and abused childhoods. Research into childhood backgrounds (14,15) set the evidence that childhood factors could exert distant effects not merely in mental disorder but also in offending outcomes.
Equally, it was well known that having regular employment and a stable emotional and sexual relationship militated against reoffending. The construct of antisocial personalities (psychopathy) was debated, though most accepted it in one form or another (16). The problem for these much maligned assessors of the past was the question of whether clinical assessment and psychiatric history added anything to the crude predictors of gender, age, past behaviour, and apparent personality.
The error to which these earlier seekers after dangerousness were prone stemmed from a number of sources. They believed that mentally abnormal offenders were qualitatively different from other criminals, in that positive symptoms in the form of delusions and hallucinations were the major drivers of their offending. This left clinicians predisposed to overestimating the capacity of clinical features to modify the crude demographic and behavioural predictors. The lack of a systematic approach to assessment, combined with an absence of follow-up studies, further stymied progress in the clinical prediction of dangerousness among the mentally ill.
In the 1980s studies began to appear which could have advanced the stalled clinical approach to the prediction of dangerousness in the mentally ill. Most notable were the pioneering studies of Häfner and Böker (17) and Taylor and Gunn (18). These demonstrated an association between the schizophrenias and a range of criminal behaviour including the violent and homicidal. Later researchers extended these pioneering studies by teasing out the features which separated those with a schizophrenia at greater risk of violence, from those who presented little or no threat.
The clinical importance of this research was however obfuscated by vigorously promoted actuarial risk assessment tools, which arose in the 1990s. Only with the gradual emergence in the last decade of the ‘structured professional judgement’ approach has this body of research been systematically applied to risk assessment (19).
Actuarial assessment is systematic, transparent, and based on empirical research. The usual methodology is to evaluate retrospectively the records of a specific group, such as discharged patients or released prisoners, and establish associations to subsequent offending. This data forms the basis of the risk assessment instrument. Assessments using the instruments were, in theory, reproducible and independent of examiner bias. The old clinical approach struggled to make sense of a multiplicity of variables impacting on a specific individual. The new actuarial approach assigned individuals to specific groups with known levels of risk on the basis of a remarkably small number of variables. The most widely used of all such instruments, the STATIC-99 (20), uses only 10 factors (99 refers to the year of publication, not the number of variables!).
The language of ‘risk’ was claimed to be preferable to that of ‘dangerousness’. Dangerousness was criticized as an all-or-nothing property which could be misunderstood as an abiding quality of the individual. Risk, on the other hand, was a variable of which an individual could have more or less. On the downside, only a few patients were labelled dangerous whereas now all patients pose some level of risk; Assessment instruments do not have a ‘no risk’ category. In the 1970s assessments of dangerousness were usually only made in cases where there was a history of serious offending and consideration was being given to whether or not to discharge the patient. Today a violence risk assessment is part of the mandatory processing of each and every patient coming in contact with psychiatric services. In practice many such risk assessments do not employ psychometrically established instruments, but instead rely on locally generated variants of unknown probity (21).
The unmodified actuarial risk assessment instruments, despite their apparently varied content, all share a common set of core factors. These are: prior history of offending, an irresponsible lifestyle, criminal attitudes (e.g. psychopathy), and substance abuse (22,23). To these can be added age, which is increasingly recognized as a major modifier of the scores on such instruments. In short, these are essentially the same factors which the old-fashioned assessors of dangerousness employed, although with the advantage of a consistent and structured application.
The limitations of the actuarial approach have been recognized. Quite apart from judging on the basis of group membership (the very essence of prejudice), the limited number of variables can result in absurd and even perverse implications. One case we were involved with was determined to have a high risk of reoffending on the STATIC-99 (20) and the Violence Risk Appraisal Guide (VRA) (24)—two of the most widely used actuarial risk assessment tools. The fact that during the 15 years of his imprisonment he had not only entered the ranks of the elderly, but had gone blind and lost the use of his legs, found no place in the opinions expressed by the experts who relied on actuarial instruments.
Structured clinical judgement instruments (SCJI) have been developed in an attempt to combine the derided clinical approach with the use of relevant empirically established risk factors. Here the empirical variables are drawn from a broadly based review of the existing literature on risk factors for offending. SCJIs allow the assessor to take individual characteristics into consideration, including loss of use of one’s eyes and legs. This approach is a major improvement over the earlier methodology of unstructured clinical assessment as it ensures the relevant variables are systematically considered and provides at least some weighting to strong influences, like age and past behaviour, as against weaker influences such as current clinical state. The problem with SCJIs as opposed to strict actuarial approaches is that they depend on the rater having experience and common sense, neither of which can be guaranteed.
In theory SCJIs are more open to influence by rater bias than strict actuarial approaches. In fact, both actuarial and clinical judgement instruments are open to biased ratings, depending on who the rater is working for, be it prosecution or defence, plaintiff or defendant (25). At least because today’s risk assessors tend to use the same instruments it has been possible to demonstrate the influence of bias. Yesterday’s clinicians could not be exposed to similar scrutiny, though we have encountered a case where the psychiatrist assessed the same man on two occasions, once for the prosecution and once for the defence (two different offences 2 years apart) and provided totally contradictory opinions based on essentially the same information and observations.
The greatest problem for the SCJIs is that there have been no large validation studies, which would confer the appearance of empirical solidity on the actuarial approaches. Some, like the current iteration of the HCR-20, still incorporate Hare’s Psychopathy Check List (PCL-R), which in our view is a most unfortunate confection that blends social prejudice, the obvious, and the clinically insightful. The greatest strength of SCJIs is that they identify factors which can be modified by psychological, social, and psychiatric interventions to reduce the chances of future offending. Given that health professionals should be in the ‘business’ not just simply of labelling and stigmatizing, but of managing and assisting, this is a critical advantage.
The face of clinical psychiatry, not just the forensic specialty, has been transformed by the rise of a perceived need to assess all psychiatric patients for their risk of harming others. Given the limitations of risk assessments—practical, theoretical, and ethical—their use in general psychiatry remains questionable, particularly as the frequency of serious violence among the mentally ill, though higher than in the general population, is low. In forensic psychiatry their value is primarily in the direction of management, by identifying factors which, when modified, are likely to reduce risk (19). The success of the risk assessment ‘industry’ owes, in our opinion, a small debt to science, but far more to the current culture of fear and control, combined with the financial and professional rewards provided to the purveyors of such practices (26,27).
Thirty years ago, the authority accorded psychiatrists in court derived largely from their professional status. Today, authority increasingly derives from texts. The expert witness has always created a problem for our adversarial court procedures. Evidence is tested by examination and cross-examination in terms of its coherence and compatibility with the totality of the evidence before the court, but the expert often appeals to matters outside that domain. Considerable latitude is usually granted to the expert in using what would in other circumstances be hearsay. Experts once used to be allowed to ground their opinion in experience and knowledge without being examined in any detail. The expert was expected to provide what was a generally accepted view—within their profession—and if they deviated from this, to inform the court they had done so, and to explain why. When courts were faced with conflicting opinions from experts, they often fell back on giving greater credence to those with the most august credentials or professional status. Occasional resort would be made by counsel to quoting textbooks as embodiments of the accepted status quo in an attempt to challenge the expert. Even the less adroit expert could, however, usually skip around any apparent contradiction between their own view and that in the quoted book. Perhaps more irritating to jurists were disagreements by experts over diagnosis, invariably claiming that their diagnosis was correct and would be made by any other psychiatrist—with the sole exception of the opposing expert.
The difficulty with evaluating experts reached crisis point not with mental health witnesses but with those from more clearly science-based disciplines such as engineering, pharmacology, and chemistry. The issue is usually framed in terms of how the courts could accommodate novel scientific evidence (28). ‘Novel’ here was used to cover recent advances in the expert’s science which contradicted the generally accepted viewpoint. The senior expert, occupying a prestigious position, might indeed be less well informed about the current state of their science than a young tyro still actively engaged in research. In the legal profession, position and status are central to authority; but in science, at least in theory, status flows only from knowledge.
The other pillar of authority in law is the text—the text of legislation, the text of precedence, the text of interpretations from higher courts (29). The response of the law to novel scientific evidence was to focus on the authority of the text itself, on who authored it and where it was published. Impact factors of professional journals began to be bandied about in courts almost as frequently as in an academic promotions committee.
Lawyers, however, are used to arguing about which precedents and interpretations best fit the facts of a case. Cross-examination began to be accompanied by the exchange of downloaded publications and the drawing of attention to page and line numbers, abstracted as if they were independent units of fact. An energetic legal team linked to Google now had the ability to generate quotes capable of challenging and discomforting even the best-prepared expert.
Psychiatry might have dodged these latest legal bullets. The third revised edition of the American Psychiatric Association’s Diagnostic and Statistical Manual (DSM-III-R) and its sibling the International Classification of Diseases (ICD-10), however, prevented any such escape from the so-called progress of the law. These texts were manna from heaven for the courts, which now had access to a ‘gold standard’ of psychiatric diagnosis with which to confront an expert. Notwithstanding disclaimers in the manuals, notwithstanding attempts to explain the tentative and committee-generated compromises behind the manuals, and notwithstanding the limitations of the checklist approach, the manuals have come to dominate the forensic mental health discourse.
Clinical psychologists were often the first to embrace the use of the DSM, sometimes going as far as to append to their reports copies of what they considered the relevant pages from the manual. The status of psychologists in the courts, particularly when it came to issues of diagnosis, had been uncertain; but with the manuals they acquired parity with their psychiatric colleagues, as in their own mind did many a counsel and judge. Psychiatric diagnosis, and all that flowed from it jurisprudentially, was demystified and made transparent in the manual’s text.
To the cross-examination of mental health experts by ‘manual’, has now been added ‘duelling downloads’. In a recent case, the defence counsel attempted to undermine the expert’s evidence on what is known about children’s responses to sexual abuse by presenting a series of recently published papers and quoting lines from them, apparently at odds with the expert’s evidence. This was an able lawyer who had a remarkable, if circumscribed, grasp of the literature. It was, however, a grasp based on filtering out anything that did not fit his argument. Responding in a manner which was neither defensive, dismissive, nor difficult for a jury to understand was a considerable challenge. All too easily, the expert’s evidence, which was in this case far from novel, and firmly in the area of the well established and generally accepted, could have been made to look dubious or biased. The undermining of an authority based on position and the dubious benefits of many years since qualification is to be welcomed. Replacing this with the authority of the best available research would be wonderful. A court is not, however, a place for such miracles.
The latter part of the 20th century saw a remarkable transformation in the status of sexual offending, particularly against children. What had previously been dismissed as the eroticized longings for women to possess their own penis, or unconscious love for their fathers, came to be recognized as an epidemic of sexual molestation of children.
Although there remains a lack of clarity about actual rates, it is now starkly clear that sexual abuse of children is a major social problem. However, there remain a range of unconfirmed associations and inferences which arise from a history of childhood sexual abuse. Indeed, it has been argued that the pendulum has swung too far from the denial or minimizing of the seriousness of the long-term sequelae of sexual abuse. Critics contend that these is now an ‘industry’ of mental health specialists providing much-needed validation of victimization, but not simply understanding and support but also compensation and status as a victim. At its peak, uncritical therapists were actively engaged in enrolling unwitting patients into a witch-hunt by manufacturing claims of sexual abuse occurring at the hand of Satanists and other ritual molesters (30).
Unfortunately, the same degree of attention paid to putative victims has not been accompanied by commensurate focus upon understanding, treatment, and eventually, moves towards prevention of sexual offending. It is not clear why this is so. It could be simply that since sexual abusers are the pariahs of convicted offenders, the stigma attached to their offences also attaches to its treatment. Another possibility is that sex offender treatment has been sequestered as an activity of correctional agencies, and is not perceived as core business for forensic mental health services. Research into sexual offenders has focused on risk assessment and prognosis and it is only in recent years that evaluation of treatment has become a focus; aetiology and epidemiological considerations have been little considered.
The consequences of this neglect of a psychiatric focus on sexual abusers is seen in the limited funding available for the treatment of sexual abusers outside the correctional system. More alarming is the resurgence internationally of legislation designed to detain indefinitely a small proportion prolific offenders. Sadly, this inordinately expensive strategy strips funding from other valuable areas and will, in all likelihood, make an unappreciable impact upon overall rates of sexual offending.
Consequently, the unusual status of paraphilia as a diagnostic category is, it appears, soon to be remedied by a politically driven diagnostic category which will enable repeat offenders to be detained indeterminately as sexually violent predators, with recurrent behaviour taken as indicative of a mental disorder which impairs their capacity to control such deviant sexual impulses. The reification of offending behaviour into a mental disorder has been accompanied by the huge growth of long-term secure units for the confinement of sexual offenders; and an industry sadly focused on assessment to assist the judicial determination of those to be confined, but not with a commensurate interest in treatment.
Increasingly those forensic psychiatrists who perceive that sexual offenders may benefit from treatments such as medications and sustained psychological therapies find themselves hamstrung by the control exerted by correctional authorities preventing early and constructive engagement. What was previously a relatively transparent ethical process in negotiating consent to treatment, has been muddied by the potential for lifelong restrictions to be imposed on sexual offenders. The capacity of a person to consent to medications, or the choice to participate in assessment and treatment, is overshadowed by the potential for clinical engagements to be discoverable by correctional agencies, or to be used as evidence to construct a legal case for indefinite detention or supervision. Many offenders faced with such decisions will opt not to engage rather than face the risk of their disclosures in therapy providing support for their confinement. Similarly, for forensic psychiatrists to participate in these legal processes requires a clear consideration of the ethics of involvement when this is geared almost exclusively to considerations of public safety, often devoid of reference to evidence about reoffending, and negating any real potential for therapeutic interventions.
Involvement of forensic psychiatrists in the treatment of sexual offending illustrates the fundamental issue facing forensic mental health as a specialty, with the challenge perhaps greater than the need to develop humane treatment options in prison hospital and community. That task is to move away from the tertiary prevention of mentally disordered offending, the provision of treatment after a person has entered the forensic mental health system by virtue of an earlier act or acts. Ideally, the challenge will be to move to secondary prevention—that is, providing targeted interventions for those considered to be at markedly escalated risk of future offending—and eventually to primary prevention through addressing the social circumstances which predispose to both the development of mental disorder and to antisocial behaviour. Such interventions have historically been seen as outside the province of forensic mental health and have remained in the province of child and adolescent psychiatry or social and family agencies.
Psychiatrists in the 19th and early 20th centuries were not shy in advancing theories about criminal behaviour. Atavism, degeneration, moral imbecility, and repressed guilt all had their advocates. The baleful results of such speculations had by the 1960s reduced the hubris of the profession. Few were still willing to step outside of the core tasks of assessing and treating the mentally disordered.
What makes a patient ‘forensic’ is first and foremost their behaviour. In the 1970s forensic psychiatry identified itself increasingly with the assessment and management of the mental abnormality in the offender. Mental abnormality was reduced to the notion of psychosis, or to use the ponderous terminology of the time ‘formal mental illness’. Psychiatrists largely abandoned the study of behaviour to psychologists, retaining only the boutique area of sexual perversions. There were, in the United Kingdom and Australia, even moves to exclude personality disorders entirely from the purview of forensic psychiatry. These changes were linked to ideological shifts in the whole field of psychiatry as the pharmaceutical industry and its apostles in biological psychiatry began to redefine the nature of the psychiatric enterprise.
The brute reality of forensic practice prevented the narrowing of focus to ‘formal mental illness’ alone. Shoplifters, child molesters, violent and disorganized juveniles, thieves, wife batterers, and conmen continued to be referred by courts, prison authorities, and colleagues. Formal mental illness was in short supply among this population of the distressed, angry, and disturbing. The attempt to shrug off the troublesome areas of personality deviation and ‘bad’ behaviour had led to psychologists who took up these burdens acquiring greater and greater influence. The hegemony of psychiatry over the forensic field was weakened and in terminal decline.
It should not be said, however, that medicine abandoned its areas of influence without a fight. The counter-reformation came in the form of the DSM-III-R and onwards. Sexual perversions were miraculously rebirthed as mental disorders under the rubric of paraphilias. Impulse control disorders multiplied to incorporate thieving and assaulting, and it seems likely that raping will be added before long. Addiction extended to medicalize even the realm of the romantic afflicted by postcoital guilt, who could now protest they required treatment for sex addiction. Criminal, irresponsible, and morally dubious behaviours were converted into disorders—‘formal mental disorders’ no less, for what is more formal than a listing in the DSM or the ICD? As for personality disorders, these were reclaimed from the careless hands that let them drop into the laps of psychologists. They were given clear medical definitions by the manuals, combined with hints of neurobiological substrates.
In practice, medicalizing bad behaviours and promoting clear definitions of personality disorders did not clarify the field. Our patients tended, according to the manuals, each to have multiple (i.e. comorbid) overlapping personality disorders and a number of impulse control disorders and addictions. Applying the manual to the complexities of the human condition might sound good in court but was useless as a guide to understanding and managing forensic patients.
One trend that emerged from this muddle was an attempt to redefine the primary object of forensic psychiatry as the offending behaviour itself. This ‘problem behaviours model’ is of use primarily in the context of community assessment and management of those who have repeatedly committed the same offences, examples being fire setting, stalking, or threatening to kill (31). It is not applicable to those with a wide spectrum of offending, or those who have committed one serious crime of violence, for whom motivations may be singular or complex, but are not so readily understood as repetitive and maladaptive patterns of managing conflicts and provocative situations.
The focus is on the nature of the problem behaviour, its motivation, its triggers and the patient’s resistance to, or embracing of, the behaviour; this does not exclude standard psychiatric and psychological assessments. Again, when it comes to management, the offending behaviour and the elements contributing to that behaviour have primacy, although the treatment of co-occurring mental disorders is, however, also included. In our experience, the co-occurring mental disorders, particularly if in the affective range, are as likely to be the result of the behaviour and its consequences for the offender, as part of the genesis of the problem.
In many ways the problem behaviours approach is turning the clock back to the days of Maudsley, Freud, and Lombroso. There are risks in medicalizing deviance and dissident behaviour (32). The problem behaviours approach does not treat behaviour as if it was mental disorder but rather as a range of activities open to modification by psychological, social, and psychiatric means. This involves a sustained and continuous exploration of the behaviour, its motivations and manifestations, in order to target individualized interventions. These, when effective, can assist the hapless to refrain from actions which are harmful to others, and may consume them in ultimately futile pursuits.
The doctor–patient relationship in inpatient psychiatry, unlike almost every other medical specialty, commonly occurs against a background of compulsion. We can force ourselves on our patients. Our advice can become instructions, our understanding a denial of legitimacy to the patient’s beliefs, and our care can become control. The hopes some entertained in the 1960s that compulsion would disappear from psychiatry came to nothing. In the state of Victoria in Australia, where we work, some 70% of admissions to public hospital psychiatric units occur as a result of the psychiatrist invoking the compulsory powers of mental health legislation. As in much of Australia, these compulsory powers follow the patient into the community when they are discharged. In the United Kingdom significantly more admissions are ostensibly voluntary, but the threat of compulsion still hangs over the head of any psychiatric patient with the temerity to go against medical advice. In forensic psychiatry in the criminal jurisdiction, coercion governs most of our interactions with patients except, interestingly, in prison. Here the writ of the Mental Health Act does not run, though many other sources of discipline and control do operate. The prison psychiatrist is one of the few members of the prison staff whom an inmate can defy with impunity.
Given the close relationship of forensic psychiatry to social systems that discipline and punish, it is a strange place to find a libertarian. Working in forensic psychiatry has persuaded us that mental disorders do not of themselves justify control or constraint, irrespective of whether the justification is in terms of competence or capacity. Paradoxically, however, a forensic psychiatrist can work in a world where the power to compel is in the hands of those—i.e. judges—to whom society delegates the power to punish and control. With a little care, and more than a few weasel words, a forensic psychiatrist can avoid operating as an advocate for control. Our patients have had their civil rights curtailed, not because of their mental disorders, but because of their criminal acts. These criminal acts would have attracted prison sentences or other restrictions had not a mental health disposal been considered by the courts as more appropriate. The discharge of patients, and whether they will remain under any restrictions once back in the community, at least in our system, remains the responsibility of the court which imposed the initial order for detention.
Some of our psychiatric colleagues are of the view that forensic patients should be detained and discharged solely on the basis of their psychiatric status. This is theoretically and practically problematic. In the Australian state of Queensland their unique laws once made this a possibility. The result was that offenders, including homicide offenders, were discharged back into the community as cured, or at least stable, sometimes only a matter of months after their trials were completed. Reoffending, including in some cases repeat homicides, created the predictable public scandals. Had this occurred in the United Kingdom or North America the careers of those psychiatrists responsible for the discharge decisions would have been over. Fortunately, Australia retains an essential respect for doctors, and for those who act as the law allows. As a result the obloquy fell largely on politicians and the laws which permitted such practices. Though it may offend medical sensibilities, the nature and length of the restrictions placed on mentally abnormal offenders are largely determined by the nature of their offending and the chances of further serious violence. The patient’s mental state and the likely stability of any remission are relevant primarily to the issue of the chances of future offending.
Some would argue that this reduces forensic mental health services to being extensions of the prison and community correctional services. In the 1970s, when the Maudsley and Bethlem Hospitals agreed to build a medium-secure forensic unit, Professor Michael Shepherd, a true doyen of psychiatry, referred, at every opportunity, to the hospital’s ‘little prison with walls of only medium height’. There are, or there should be, dramatic differences between being detained as a patient in a forensic service or being subjected to imprisonment.
Prisons are about confinement and incapacitation, that is, removing criminals from the community to prevent, at least for a while, further offending. For a forensic mental health service, on the other hand, therapy and rehabilitation is the purpose. The culture of correctional services is that of control and discipline. The culture of forensic mental health should be that of care in the context of maximizing patients’ control over their own lives. Of course, secure hospitals restrict the ability of patients to leave without consent, but this should be, if not the only, by far the most obvious restriction. Therapy needs to be directed not just at managing the patient’s mental disorder but actively addressing criminogenic factors, those elements which sustain the risk of reoffending. In most modern services patients return to the community earlier than they would have from prison. The reoffence rate is usually negligible compared to the tragically high rates among ex-prisoners.
Those who appear before our courts charged with criminal offences are drawn disproportionately from the dispossessed and disadvantaged of society. Those with mental disorders have often never been adequately assessed, let alone treated. Of all those who come into the mental health services in the advanced world, the mentally abnormal offender is the most gratifying to treat. Even the basics of attention, concern, and simple remedies, pharmacological, psychological, and social, often produce life-changing responses.
Early in the 20th century, William Osler is said to have obtained a massive grant from the US Federal Government for Baltimore’s Johns Hopkins Hospital on the basis of a promise to cure cancer in 10 years. Much good came from the money, if not the cure for cancer. Perhaps the trick could be repeated if forensic psychiatrists promised to cure crime.
This essay had a difficult gestation, as the editors will attest. Among the reasons for the procrastination is a belief that those who try to recall the past almost always end up constructing an imaginary history tied to legitimizing today’s claims to authority. History is a bad teacher because its recounting, and textural exegesis, are often in thrall to the authority of the present. Science is an anarchistic enterprise, constantly seeking to subvert received truths and yesterday’s authority (33). The measure of a scientific paper is that it will be superseded and usually forgotten. As scientists, we do not stand on the shoulders of giants but ascend stairways of methodology and mathematics built by the labour of thousands. Only fictions and their authors persist over time. Perhaps that is why psychiatry is so tied to yesterday’s heroes and their semi-fictional productions.
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