Dangerous People

Policy, Prediction, and Practice

Bernadette McSherry, Patrick Keyzer

• Publisher: Routledge
• Year: 2011
• ISBN:
  9781136664151
• Edition: 1
• Topic: Psychology
• Subtopic: Forensic Psychology
• Index: Psychology

Experienced legal academics and mental health professionals explore the current approaches to "dangerousness" and preventive detention. The defining characteristics of those deemed dangerous by society vary according to culture, place, and time, and the contributors to this text have gathered to analyze the policies and practices related to current out-groups such as sex offenders, suspected terrorists, and young offenders in the United States, Scotland, England, and Australia. Dangerous People is the result of their research, workshopping, and writing. The text is organized logically and begins with a section on Parameters that explores the international human rights and legal limitations related to preventive detention schemes. It moves on to Policy, where contributors examine legislative policy, and Prediction, or risk assessment, especially in terms of violent crimes in youth. The section on Practice focuses on recent schemes to prevent re-offending. This text is indispensible as a resource that deals with the practical issues surrounding preventive detention and supervision schemes, the assessment of the risk of future harm in offenders, and different programs and sentencing options for high-risk offenders with mental illnesses. It contains case examples that bring real-life issues to light and sets forth an agenda to provide effective ways to protect communities from harm.

IV

Practice

13

The Role of Forensic Mental Health Services
in Managing High-Risk Offenders

Functioning or Failing?

LINDSAY THOMSON

Introduction

This chapter reviews, in an international context, the Scottish approach to the management of high-risk offenders considering in turn the options available for all offenders, those with personality disorders, and those with mental illnesses.

The most recent changes in the management of high-risk offenders have been the establishment of the Risk Management Authority; the development of the risk assessment order and the order for lifelong restriction (OLR); and the introduction of Multi-Agency Public Protection Arrangements (MAPPA; see Caroline Logan’s chapter in this volume in relation to MAPPA in England and Wales). To date there have been 41 OLRs applied after a very rigorous risk assessment process compared with over 5,000 indeterminate sentences for public protection awarded in England and Wales. MAPPA was established under the Management of Offenders etc. (Scotland) Act 2005 and provides a framework for multiagency communication, risk assessment, and management of violent and sexual offenders. These arrangements were introduced initially for sex offenders in 2007 and for restricted patients (serious offenders whose mental illness was related to their offending behavior) in 2008.

Many high-risk offenders have a personality disorder. In Scotland mental health services generally, and forensic mental health services specifically, have been reluctant to offer services to individuals with a primary diagnosis of personality disorder. Offenders with personality disorders are therefore dealt with by the criminal justice agencies (prison, police, and probation). The Forensic Mental Health Services Managed Care Network (2005) recommended that forensic mental health services should develop services offering assessment and treatment for offenders with personality disorders and this should be done in tandem with criminal justice agencies. To date within the Forensic Network there has been an emphasis on the assessment and treatment of sex offenders, and prescribing for sex offenders; and the development of health practice in MAPPA. The Scottish approach is markedly different from that developed in England and Wales with their specialized units for people with dangerous and severe personality disorder (see Caroline Logan’s chapter in this volume).

Offenders in Scotland with major mental illness are diverted to the mental health system. The systems for this are briefly described and evidence presented that these services function well, especially the transfer of psychotic patients from prison to hospital. In particular, the introduction of a human-rights-based approach, a formal system of risk management, and an appeal against excessive security have led to improvements in individual patient care and the development of a wider range of facilities. There is a failure, however, to engage in any systematic way with offenders with primarily personality and behavioral problems and with criminal justice colleagues. Such joint working has the potential to stabilize an individual’s behavior, to reduce recidivism, and to improve public safety. There are however, encouraging signs of development within this area particularly in the work with MAPPA and with sex offenders.

Management of High-Risk Offenders

Internationally there is variation in the management of high-risk offenders (Scottish Executive 2000b). For example, Australia, Canada, and New Zealand have discretionary life sentences for serious violent and sexual offenders imposed at the time of sentencing, whereas within the United States, many states have an automatic life sentence for a third conviction for a serious violent and sexual offence and many have sexual predator laws that permit the civil detention of a sex offender at the end of his or her prison sentence (see the chapters by Eric Janus, Chris Slobogin, John La Fond, and John Petrila in this volume). Within Europe, this variation in practice continues with a greater emphasis on treatment and use of psychiatric facilities, and indeed this variation can be found within the countries that make up the United Kingdom (Thomson 2008).

One of the most contentious issues in England and Wales during the debate on new mental health legislation was preventive detention. This was taken into the Criminal Justice Act 2003, which introduced new indeterminate sentences for dangerous offenders whose eligibility for release was dependent on the level of risk they pose in terms of sexual and violent reoffending. Under section 225 of the Criminal Justice Act 2003, the courts will impose an indeterminate sentence for public protection when the offender is aged 18 or over; is convicted of a serious specified violent or sexual offence, for which the maximum penalty is 10 years or more; and who in the court’s opinion, poses a significant risk of harm to the public. In Scotland a different approach was taken by the MacLean Committee in dealing with serious violent and sexual offenders including those with personality disorders (Scottish Executive 2000a) with an emphasis on the offence and a formal assessment of risk, and the introduction of the order of lifelong restriction (see the chapters by Innes Fyfe and Yvonne Gailey, and by Rajan Darjee and Katharine Russell in this volume).

Sentencing Options for the Management of Risk in Offenders

In understanding the place of an OLR it is important to understand the wider sentencing options open to the Scottish courts for the management of risk (see Table 13.1). In all but a conviction for murder, the judge has discretion as to the sentence imposed. Decisions on this are based in part on the important underlying principle of proportionality, that is, any restriction of liberty must fit with (be proportionate) to the type of offence committed and to the offender’s history. Legislation for automatic life sentences for those committing two qualifying offences, such as attempted murder, rape, or aggravated assault, was passed in the Crime and Punishment (Scotland) Act 1997 but has never been enacted.

Order of Lifelong Restriction

The MacLean recommendations were largely enacted in the Criminal Justice (Scotland) Act 2003 as amendments to the Criminal Procedure (Scotland) Act 1995 and became operational in early 2006. The principal developments were:

Table 13.1 Sentencing Options for the Management of Risk in Offenders

Sentence	Purpose	Note
Mandatory life sentence • Must be applied if convicted of murder	Punishment period for deterrence and life license to manage risk in the community post-release with option of recall to prison for breach of license conditions	Given a punishment period to serve in prison and then two yearly parole board reviews to make compliant with European Court of Human Rights
Discretionary life sentence • An option available to the judge in serious cases	Used to protect public in cases of serious violent or sexual offending	Limited use following introduction of OLR
Order of lifelong restriction	Indeterminate sentence and lifelong risk management	Imposed at time of sentencing
Extended sentence	In community under parole license conditions and subject to recall to prison	Extension period of up to 10 years for sex offenders and 5 years for violent offenders
Supervised release order	Supervision in the community post-release	For a sentence of less than 4 years
Restriction of liberty order	Electronic monitoring of offenders in the community	Can specify place of residence and prohibited places
Probation order	Community sentence to rehabilitate	Lasts between 6 months to 3 years and can include a condition for psychiatric or psychological treatment
Parole	For release on license with agreed conditions into the community under the supervision of a criminal justice social worker with option of recall to prison for breach of license conditions	For life sentence and long-term (4-plus years) prisoners; former eligible after punishment period and latter after completing half their sentence but will be automatically released after two-thirds
Sex offender registration	Notification requirement for a specified period following conviction for a sexual offence on release into the community	Non-compliance is a criminal offence Applies to mentally disordered offenders as well
Notification order	As for sex offender registration	Applies to those convicted of sexual offences abroad
Foreign travel orders	To prevent convicted sex offenders from travelling abroad
Sexual offence prevention orders	Applies conditions in the community on a convicted sex offender	Can be imposed at time of sentencing or applied for later by the police
Risk of sexual harm orders	Applies conditions in the community on an individual considered to pose a risk of sexual harm to children	No conviction for sex offending is required
Compulsion order and restriction order	To manage risk of serious harm to others in mentally disordered offenders (MDOs)	For full range of provisions for MDOs

1. The creation of the Risk Management Authority (RMA) as an independent public body focused on the effective assessment and minimization of risk of serious violent and sexual offending in Scotland with responsibility for setting standards, guidelines and guidance for offender risk assessment and risk management, training and accreditation of risk assessors, policy advice to ministers, appraising risk management plans for those on OLR, monitoring of research, and promotion of evidence-based practice.

2. The introduction of a risk assessment order (RAO) which is a 90 (maximum 180) day period of assessment to allow the preparation of a risk assessment report to assist the court in determining if “the nature of, or the circumstances of the commission of, the offence of which the convicted person has been found guilty either in themselves or as part of a pattern of behaviour are such as to demonstrate that there is a likelihood that he, if at liberty, will seriously endanger the lives, or physical or psychological well-being, of members of the public at large.” An RAO can be applied by the court to an offender convicted of a serious violent or sexual offence, or an offence that endangers life. The emphasis is on clinical risk assessment.

The court appoints a risk assessor who must review the appropriate documentation, utilize the structured professional judgment, rather than actuarial, approach to risk including the use of one or more recognized risk assessment tools, interview the offender, liaise with the relevant multidisciplinary team, and report using the approved RMA structure. The offender cannot object to the making of an RAO but may challenge the risk assessment report and commission a separate risk report.

3. The introduction of an Order for Life Long Restriction (OLR). This provides indeterminate detention and life-long risk management of serious violent and sexual offenders assessed as posing an ongoing high risk of serious harm if the court believes on a balance of probabilities that the risk criteria outlined above are met. An OLR is an indeterminate prison sentence although a punishment period, or tariff, is set by the court.

A risk management plan must be prepared and submitted to the RMA within 9 months of the imposition of an OLR. Responsibility for preparation of this report rests with Scottish ministers while the individual is in prison and is exercised by Scottish Prison Service staff, by hospital managers if the individual is in hospital, and by the local authority in a community setting. The plan must set out an assessment of risk, methods applied to minimize the assessed risks, and the means of coordination of these methods.

The RMA in its document on standards and guidelines on risk management of offenders subject to an order of lifelong restriction (RMA 2007) sets out fundamental principles for such practice: namely, the importance of public protection, that risk of serious harm can be managed but not eliminated and that risk management practice should be measured against the concept of “the defensible decision.” An action or decision is considered to be defensible if a group of professional peers would consider that: all reasonable steps had been taken; that the methods of assessment were reliable; that information had been collated and thoroughly evaluated; that decisions were recorded, communicated, and followed through; that policies and procedures had been followed; and that an investigative and proactive approach had been applied to the management of risk. Release following the set prison period is dependent on an updated risk assessment and a proposed management plan as approved by the RMA, and is considered by the parole board. Victims who wish to be informed of their offender’s progress under the victim notification scheme may contribute their views to the parole board tribunal.

An OLR can be applied to an offender given a hospital direction (an initial period in hospital combined with a prison sentence) who fulfils the risk criteria outlined earlier. This is not the case for patients given a compulsion order with or without restrictions on discharge. Decisions on recommendations of these various psychiatric disposals are based on the strength of the association between an individual’s mental disorder, his index offence, and future risk because of that mental disorder.

Multi-Agency Public Protection Arrangements The newest systematic development for the management of risk in offenders in the United Kingdom is that of Multi-Agency Public Protection Arrangements (MAPPA). These were created in England and Wales under the Criminal Justice and Court Services Act 2000 and require police and probation to work together to manage the risks posed by dangerous offenders in the community. This was extended to include the prison service and there is a statutory duty for health, housing, social services, education, social security and employment services, youth offending teams and electronic monitoring providers to cooperate with multiagency public protection panels. These have four core functions:

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Table of contents

• Cover Page
• Half Title page
• Series Page
• Title Page
• Copyright Page
• Contents
• Acknowledgments
• The Editors
• List of Contributors
• Part I Parameters
• Part II Policy
• Part III Prediction
• Part IV Practice
• Part V Conclusions
• Appendix A: Table of Cases
• Appendix B: Table of Statutes
• References
• Index