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The long-term detention of those found unfit to plead and legally insane.

Very little is known about patients who have been the subject of long-term detention as a result of a finding of unfitness to plead or legal insanity. In order to discover more about such patients permission was sought to examine Home Office files on all those who had been detained for 15 years of more up to December 1988. Permission was also obtained to interview a number of these patients who were held in three of the high security Special Hospitals. Two issues highlighted by the research were the us of ~common sense' criteria of dangerousness and the apparent wish of many of these patients to remain hospital. The article concludes by calling for a reconsideration of the need for the continuing detention of this group of Patients.

Acquittals on the ground of insanity and findings that defendants are mentally unfit to stand trial have in recent years been rare in England and Wales. Between 1976 and 1989 the maximum for any one year was no more than six insanity acquittals or 39 unfitness findings (Mackay 1991a: 3, 16). Reasons for this paucity of findings are not hard to discover. Under the Criminal Procedure (Insanity) Act 1964 (CP(I)A), as under the nineteenth century legislation it replaced, any such finding automatically led to the defendant's detention in hospital under the equivalent of a restriction order without limit of time. Until 1983 the defendant's release was solely at the discretion of the Home Secretary, who could grant either an absolute discharge or a conditional discharge under which the patient could be recalled to hospital at any time. Since 1983 the Mental Health Review Tribunals, which review the compulsory detention of patients in hospital, have also had powers to discharge restriction order patients.

The Criminal Procedure (Insanity and Unfitness to Plead) Act 1991 replaced the 1964 Act's provisions with a system of flexible disposals. Though it is possible that this will lead to some increase in insanity and unfitness findings, the new Act does not affect the other factors which have contributed to their decline. One is the abolition of the death penalty, which removed the strongest incentive to seek such findings; another is the power of the courts under the 1983 (and formerly the 1959) Mental Health Act to make hospital orders on convicted offenders, which has greatly reduced the practical significance of the issue of criminal responsibility. In addition, the insanity defence in cases of murder has been almost entirely superseded by the plea of diminished responsibility under section 2 of the Homicide Act 1957, by which psychiatric evidence can reduce an offence of murder to one of manslaughter under much less stringent conditions than the narrow definition of insanity discussed below (see Dell 1984: 30 - 2).

The present research was prompted by the unexpected discovery, during a study of the operation of the 1964 Act (Mackay 1991a), that 74 patients were still detained under earlier legislation, namely the Criminal Lunatics Act 1800 and the Trial of Lunatics Act 1883. Permission was obtained from the Home Office(1) to examine all the files on the patients detained under the 1800 and 1883 Acts, and also on all those who had been detained under the 1964 Act for 15 years or more up to 31 December 1988. Permission was also obtained to interview those patients within the sample who were held in three of the high-security Special Hospitals, Ashworth (North), Rampton, and Broadmoor, together with five Responsible Medical Officers (RMOs) - the consultant psychiatrists in charge of the patients' treatment.

In seeking explanations for the length of the patients' detention, we faced an obvious difficulty in that no detailed information was available about people who were subject to similar findings in the same period (1939-73) and were released more quickly. We do have information on 113 patients detained after 1 January 1976 and discharged before 31 December 1989, after periods ranging from a few weeks to 12 years. These, however, formed a less than satisfactory ~control group' as it proved impossible to discover whether such differences as there were - notably a greater preponderance of schizophrenia among the long-term patients - reflected factors associated with dangerousness or with changes in the way that psychiatrists and the courts dealt with mentally abnormal offenders. (As Walker (1968: 238-9) notes, the introduction of phenothiazines in the 1950s probably led to a sharp reduction in the number of schizophrenics found unfit to plead.)

In view of these difficulties, the main approach adopted in this research was a qualitative one, which was based on a detailed examination of the Home Office files in which we noted all the arguments advanced throughout the patients' careers as to why they should or should not be detained, discharged, recalled, transferred, given a certain diagnosis, etc. This information was used to compile a database providing a detailed picture of the ~official reasons' (Emerson 1991) for the major decisions affecting each patient's career. Although these cannot necessarily be equated with the ~real reasons' for, or causes of, those decisions (Lloyd-Bostock 1991: 64-6), they do enable us to understand how those decisions can be legally, clinically, and administratively justified.

We begin, however, with some basic statistical information on these long-term patients.

A Profile of the Long-term Population

On 31 December 1988 124 restriction orders imposed in or before 1973 under the CP(I)A 1964 or its predecessors were still in force. By the time of the research, however, the Home Office files on nine of these patients had been destroyed as they had either died or been absolutely discharged. There was also one man who had been missing since the Home Office revoked his conditional discharge in 1979. We were therefore left with 114 patients: 87 men and 12 women who had been found unfit to plead, and 14 men and one woman who had been subject to a finding of legal insanity.

The age of the surviving patients in 1991(2) ranged from 36 to 85. The median age was 60. In terms of ethnic origin, we classified 89 patients as white British and one as Irish. Seven were of East European or German origin, 11 were Afro-Caribbean and five Asian. One was of mixed Chinese and white English parentage.

The situation of the patients is changing quite rapidly, and by the time the Home Office files were examined, the number still in hospital had fallen to 85. Table 1 shows the patients' situations when the files were examined on various dates between November 1990 and September 1991, in some cases updated in the light of information from the hospitals. Cases were classed as ~awaiting transfer' where the patient was still in a Special Hospital but a local hospital or Regional Secure Unit (RSU) place had been arranged, subject in some cases to Special Hospitals Service Authority (SHSA) or Home Office approval. (RSUs are small establishments providing a degree of security intermediate between those of the Special Hospitals and local psychiatric hospitals; the Special Hospitals Service Authority is the health authority which runs the Special Hospitals within the administrative structure of the National Health Service.) The figure for conditional discharges includes deferred discharges(3) by tribunals which had not yet taken effect when the files were examined.

        Table 1 Patients' Latest Known
              Situation (1990/1)

                        N      %

Local hospital           36    31.6
Special hospital         44    38.6
Awaiting transfer         5     4.4
Conditional discharge    17    14.9
Absolute discharge        3     2.6
Dead                      9     7.9

Total                   114   100.0

The 85 patients still in hospital had been subject to restriction orders for between 18 and 52 years (median 28 years). Not all had been continuously detained throughout that period: 13 had been conditionally discharged at some point (some more than once), and later recalled.

There were 32 patients who on 31 December 1990 had been continuously detained in hospital for over 30 years. The total number of restricted patients of whom this was true was 39 (Home Office 1991: Table 9). (The remaining seven must have been reprieved from capital punishment, transferred from prison, or dealt with shortly after the Mental Act 1959 came into force.)

No patients were in RSUs at the time the files were examined, but 14 of the 114 patients had spent some time in such units. Of these, nine had moved on to local hospitals, two had been conditionally discharged, four were back in Special Hospitals and one was dead.

Table 2 shows the patients' latest known diagnoses.

        Table 2 Most Recent Diagnoses

                        N     %

  paranoid               21    18.4
  other                  48    42.1
Mental impairment:
  severe                  7     6.1
  other                  10     8.8
Brain damage              3     2.6
  psychosis              10     8.7
Dementia                  1     0.9
Psychopathic disorder     5     4.4
Epilepsy                  3     2.6
Dead                      6     5.3

Total                   114   100.0

The Finding of the Courts

Table 3 below shows the ~index offences' of the detainees, i.e. the most serious charges on which the findings of insanity or unfitness were made. The right-hand column shows the percentage of all insanity and unfitness findings from 1946-73 (n = 1,668) which were made in respect of each offence. If these percentages are compared with the percentages of long-term detainees in column 3, the main difference that stands out is that there are very few alleged property offenders among the long-termers, although they accounted for 22.8 per cent of all findings. Apart from this, there is no discernible relationship between offences and length of detention.(4)


Evidence of Guilt

The guilt of those found unfit to plead has never been legally established, which raises the disturbing possibility that some may have been detained for long periods for alleged offences of which they may have been innocent. It was doubtless this consideration which prompted the introduction under the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991 of a ~trial of the facts' by which the court must now determine whether an unfit defendant ~did the act or made the omission charged'.

Most of the files contain fairly detailed accounts of the evidence against the defendants, in the form of a report from the police. In many cases the evidence appears substantial. However, nearly half the charges were of murder or attempted murder, and in many of these cases it must be doubtful whether the defendant could have been properly convicted of such a serious charge. In particular, many of the people charged with murder after the Homicide Act 1957 came into force would almost certainly have had a strong defence of diminished responsibility, so that they might well have been convicted only of manslaughter,(5) and in several of the attempted murder cases only minor injuries were caused, while the evidence of an intent to kill, which the prosecution must prove in respect of such a charge, appears decidedly thin.

There is also a smaller group of cases where a reading of the police reports seemed to raise some doubt as to the defendants' guilt. Briefly, the known facts of these cases are as follows:

Mr A was accused of indecent assault on a girl of seven in 1966. The police report states that he had been ~under observation' by neighbours who claimed that on one occasion he ~appeared to be interfering' with the girl. No further details of the ~interference' are given. He was ~unable to answer any questions satisfactorily' when interviewed. He was the only defendant in this study whose unfitness to plead was contested by the defence.

Mr B was charged with the attempted rape of an 11-year old girl in 1967. He admitted being on the canal towpath where the crime occurred and was seen by a witness walking away from it. There is no indication that he was identified either by the victim or by two other children who escaped from the attacker. He had a conviction for indecent assault 22 years earlier.

Mr C was charged with arson and manslaughter in 1963, after coming forward to tell the police he had accidentally started a fatal fire by throwing away a match. This might have been a sufficient basis for the charges against him, but only if the prosecution could have proved recklessness.

Mr D was charged in 1971 with the murder of a fellow patient in a mental handicap hospital. The victim died from a fracture of his unusually thin skull. It was alleged that Mr D had caused this (several hours before any injury was noticed) by a single punch which caused the victim to strike his head on a metal pipe. The chief witness was a 17-year old boy diagnosed as severely subnormal and schizophrenic. The police argued that this made him a credible witness, as he ~would be unable to maintain a fictional account'. By contrast, the prison medical officer considered that ~because of his low intelligence ... minimal reliance could be placed' on Mr D's denials. In 1985 a Mental Health Review Tribunal commented that ~he may have been stigmatized by the original charge of murder which on the evidence known to the Tribunal would not have been likely to be sustained'.

Mr E was also charged with killing a fellow mental handicap hospital patient, in 1969. In 1975 another Special Hospital patient who had been on the same ward in 1969 confessed to the killing. The police were unable to determine whether his confession was true.

Mr F was charged with inciting a 13-year old girl to commit an act of gross indecency in 1968. The alleged ~incitement' consisted of inviting her to go to a park with him. He was alleged to have told the police that he ~wanted her to play' with his ~dick thing'. There is no evidence that this man had committed any crime, whatever he may have intended.

Mr G was charged with setting fire to some hay in 1970. The only evidence mentioned in the police report is that he and his co-accused were found in an adjoining field; that he had matches in his pocket; and that he threatened a police officer with a pitchfork. He died in 1990.

We interviewed four of these patients and they all strongly denied the charges against them (though one admitted to a lesser offence). Two important points must be emphasized here. First, it is always possible that some important evidence pointing either to guilt or innocence may be omitted from the files, and no firm conclusions can therefore be drawn from the evidence we have. Secondly, it goes without saying that it is now much too late to remit any of these cases for trial irrespective of the circumstances.

The Legal Criteria

Were the defendants ~really' unfit to plead or legally insane? The legal test of unfitness to plead is based on that laid down in R v. Pritchard (1836) 7 C & P 303, where the jury was told to consider whether the defendant was ~of sufficient intellect to comprehend the course of proceedings of the trial, so as to make a proper defence - to know that he may challenge any of you to whom he might object - and to comprehend the details of the evidence'. In practice a number of standard questions are asked of medical witnesses: the most usual are whether the defendant can plead with understanding to the indictment; understand the course of the proceedings; instruct a lawyer; challenge a juror; and understand the evidence (R. v. Rohertson [1968] 1 WLR 1768; Mackay 1991b). In 51 of the cases we examined, there were written reports to the effect that one or more of these criteria (with minor variations) were satisfied; in a further 28 there was a report that the defendant was unfit to plead but the standard criteria were not mentioned; and in four files the report was missing or so badly damaged that it was illegible. In the remaining 16 cases the finding of unfitness was presumably based on oral evidence.(6) Even where a medical witness (usually a prison medical officer) stated that the standard criteria were satisfied, there was rarely any detailed discussion of the evidence in support of any specific criterion. In only two cases did the medical evidence appear to have been tested by any substantial cross-examination. It is therefore impossible to say with any confidence whether most of the defendants were ~really' unfit to plead.

With regard to the insanity defence we have reached a firmer conclusion. The definition of insanity under the M'Naghten rules is a very narrow one: it must be shown that as a result of a ~defect of reason from disease of the mind' the defendant did not know the nature and quality of his or her acts, or did not know that what s/he was doing was legally wrong.(7) Only in one case does the written medical evidence come close to proving that the letter of the rules was satisfied. Even in that case, where the defendant, who was charged with attempting to kill her stepfather, thought she was following her doctor's instructions to stop the spread of an infectious disease which she falsely considered the victim to be carrying, the psychiatrist's report stresses that she believed her actions were morally right but is silent as to whether she also believed they were legally justified. Research on more recent findings of insanity shows a similar concentration on moral rather than legal wrong (Mackay 1990).

Reasonsfor Continued Detention

There appeared to be three main ~official reasons' why patients continued to be detained. One, not surprisingly, was that they remained mentally disordered and in need of treatment in hospital. Had mental health review tribunals not made this finding the patients' continued detention could not have been justified under the Mental Health Act 1983. The way in which tribunals apply this criterion has been well analysed by Peay (1989) and a discussion of our much more limited data could add little to her account. Grubin (1991: 289), in a study of patients found unfit to plead between 1976 and 1988, judged that the detention of those who were still in hospital was justifiable on the basis of their degree of psychosis or their behavioural problems. Unlike Grubin we are not psychiatrists and we would not presume to make such a judgment on the basis of the Home Office files.

Two further criteria which appeared particularly salient in relation to the present group of patients were perceptions of their dangerousness and the belief that some were ~institutionalized' and wished to remain where they were.


To what extent was the patients' continued detention based on clinical judgments that they were dangerous? In each case where the patient was still detained, we examined the reports submitted to the patient's last tribunal, the tribunal's decision, and any reports or correspondence since the date of the tribunal. If any of these documents contained statements by a psychiatrist, psychologist, or tribunal (which of course would include a medical member) to the effect that the patient was dangerous, or that there would be a serious risk that s/he would cause grave harm (cf. Floud and Young's (1981) definition of dangerousness) if transferred or discharged, the case was coded as ~clinically considered dangerous'. (The mere fact that a tribunal considered detention justified ~with a view to the protection of other persons', as they did in most cases, was not equated with ~dangerousness' in this sense, since a relatively low level of risk is legally sufficient to meet this test under the Mental Health Act 1983, section 72: see Hoggett 1990: 65-7.) Cases were coded as ~unclear' where either it was stated that the patient's dangerousness was impossible to determine, or statements were made which were ambiguous as to the degree of risk the patient posed (in a few cases different interpretations than ours of statements as ~clear' or ~ambiguous' may be possible). Where clinicians disagreed, this was recorded as ~conflicting views'. The results are shown in Table 4.

     Table 4 Whether Stated to be
      Dangerous (Detained Patients)

                    N     %

Yes                 26    30.6
No                  43    50.6
Conflicting views    7     8.2
Unclear              9    10.6

Total               85   100.0

Positive statements concerning dangerousness were only slightly more common with regard to Special Hospital patients. Excluding those about to be transferred, 17 out of 44 such patients (38.6 per cent) were clearly considered dangerous, with unclear or conflicting statements in a further nine cases (20.5 per cent). In most cases, however, these patients' RMOs were addressing the question ~Would the patient be dangerous in a less secure hospital?', rather than considering immediate discharge.

All the patients considered dangerous had been charged with murder, attempted murder, sexual offences, or arson. We could find no significant relationship between perceived dangerousness and diagnosis. Dell and Robinson (1988: 43) found the diagnosis of paranoid schizophrenia to be closely associated with perceived dangerousness among Broadmoor patients; but of 20 patients in our study with this diagnosis, only four were clearly stated to be dangerous.

A noteworthy feature of most of the reports dealing with dangerousness is their relatively straightforward and non-technical style. For the most part, the reports did not depend for their ~persuasive power' upon ~a proliferation of diagnostic labels designed to impress legal authorities' or on ~esoteric theorizing' about the patient's pathology (cf. Menzies 1989: 170). There were exceptions, particularly where organic factors were involved, but for the most part the arguments about dangerousness which clinicians addressed to tribunals or the Home Office tended to invoke ~common sense' criteria whose relevance could be readily appreciated by lay as well as medical decision-makers. In this respect they were somewhat reminiscent of the reports on life sentence prisoners described by Maguire, Pinter, and Collis (1984), although specifically psychiatric factors were naturally more prominent in reports on hospital patients, and there was not such a high degree of consensus between the report-writers and the Home Office as Maguire et al. found. Recurring themes in the reports included beliefs or attitudes held by patients that might lead them to consider certain acts of violence justified; judgments that their personalities had changed little since their alleged offences; evidence of violent behaviour in hospital; and patients' own statements that they might act violently if released.

The use of such ~common sense' criteria raises a number of difficult issues which (for reasons of both space and confidentiality) we can discuss only very briefly.

1. The beliefs and attitudes which decision-makers consider relevant include both ~obviously' delusional beliefs and those which may have no evident connection with a patient's mental illness, for example his attitudes to women. In the case of the latter, it seems difficult to justify, for example, detaining an unconvicted rapist way beyond the ~tariff' for his offence on grounds which could not be used to detain a convicted ~normal' rapist whose sentence had expired. On the other hand, relatively commonplace beliefs about, for example, the sexual availability of women may be at least as good a pointer to re-offending as the more bizarre beliefs held by other patients.

2. Change in personality and behaviour in hospital. Campbell and Heginbotham (1991: 136) argue that

Conduct in hospital has little bearing on more normal situations. This tends to be used as an argument against the release of well-behaved patient-prisoners, yet aggressive behaviour in the frustrating confines of a Special Hospital is used as evidence against release even though disruptive behaviour may be affected by the fact of detention and the tensions of confinement in a prison-like institution.

This argument could be applied to several patients in our study, although some of the most seriously violent incidents occurred in local, not special, hospitals. Such behaviour may lead to a patient being considered an ~unacceptable risk to the public', even after the pattern of violent behaviour has ceased, but not, apparently, an unacceptable risk to members of the public who are also hospital in-patients.

3. Self-declared dangerousness. Patients who do not want to leave hospital sometimes make statements indicating that they would commit violent or sexual offences if discharged. In some cases the psychiatrists are unsure how seriously to take these statements, but it seems to be in everybody's interests to err on the side of caution. This problem was mentioned by three of the Special Hospital RMOs we interviewed, one of whom argued forcefully that excessive caution was exercised in this respect.

We are not arguing that the judgments of dangerousness applied to patients in the study are false. There is, in fact, no clear evidence as to the reliability or otherwise of predictions based on the supposed persistence of beliefs, attitudes, and personality traits which may have contributed to offending in the distant past, or on statements by patients about their own future conduct (Litwack and Schlesinger 1987). Rather, our concern, like Campbell and Heginbotham's (1991), is that ~mentally abnormal offenders', including the unconvicted, may be unjustifiably discriminated against by comparison with the treatment of the mentally ~normal'. This is one of the most profound and difficult problems facing the criminal justice and mental health systems.

Patients who wish to stay

On the same basis that we coded statements about dangerousness, we also coded any statements to the effect that the patient's wish to stay in hospital, or reluctance or lack of motivation to leave, was a factor to be taken into account in considering transfer or discharge. The results are shown in Table 5. In the one ~conflicting' case, it was the patient himself who emphatically stated (in letters to the Home Office and in an interview with us) that he did not wish to stay.
TABLE 5 Whether Stated Wish to Stay
(Detained Patients)

                     N     %

Yes                 34    40.0
No                  45    52.9
Conflicting views    1     1.2
Unclear              5     5.9

Total               85   100.0

In ten cases there were clear statements that the patients both wished to stay and were dangerous - usually because they said so themselves.

There is a highly significant relationship between the patients' reported wishes and length of detention. If ~unclear' cases are omitted, 29 out of 47 patients detained since 1966 or before were said to wish to stay, compared with only five out of 32 shorter-term patients.(8) Of Special Hospital patients (including ~unclear' cases and those pending transfer), 18 of the 28 very long-term patients, but only three out of 21 shorter-term patients, clearly ~wished to stay'.(9) This is consistent with the finding by Wing and Brown (1970: 183) that ~The longer a patient has been in hospital the more likely he or she is to wish to stay or to be indifferent about leaving'. The causal relationship between length of stay and ~institutionalization' cannot be determined from our data, but is probably in the nature of a vicious circle, with each tending to increase the other.

Apart from the one case mentioned above, our interviews with patients broadly confirm the impression gained from the files that a substantial proportion of them either wish to stay or are ambivalent about moving on. Of 31 Special Hospital patients interviewed, 17 (55 per cent) said they felt ready to leave the Special Hospital (though not necessarily to live in the community), ten (32 per cent) said they did not and four (13 per cent) expressed neutral or ambivalent views (e.g. ~If they let me I'll go, if they keep me I'll stay'). It is also likely that some of those who refused interviews did so because they feared an attempt to move them.

These figures, based on the answers to a single question, somewhat oversimplify the patients' views. If the interviews are taken as a whole, some of the patients show a more ambivalent or inconsistent attitude, but no more than six (four of them women) could be described as unequivocally committed to staying where they were (for a similar finding see Abrahamson 1982).

Some patients, like the ~colonisers' described by Goffman (1968: 62-3) explained their wish to stay in terms of their contentment, or their view of the hospital as ~home':

~I'm happy here. And I - my sister loves me very much, and her husband likes me but they don't want a third person to live with them. And even if they did want me to live with them I never would, because I know I'd spoil their happiness, so I always want to be here.' (Female, over 25 years' detention, taped.)

~Well, I haven't got nobody outside. So - I make me home here.' (Female, over 30 years, taped.)

~If you fit in here and you've got a good excuse to stay here you'll be happy for the rest of you life. You'd be surprised how many people want to get out.' (Male, over 30 years, from notes.)

These patients did not necessarily see themselves as ill; two of the three quoted above emphatically denied this. Other patients, however, expressed a wish to stay on the grounds of their own dangerousness, illness, or institutionalization:

~I've been institutionalized for years, since before I came to Broadmoor. A children's home superintendent said I was institutionalized when I was 12 ... I'd be totally hopeless on the outside. I'd rather be permanently asleep.' (Male, over 40 years' detention, from notes.)

~Oh, I wouldn't want to go in the outside world ... I'm not fit enough because mental hospitals have taken the fitness off of me.' (Male, over 20 years, taped. The interview as a whole shows this patient to be highly ambivalent about either discharge or transfer.)

~If a man becomes ill, no one, even himself, can know what he will do. So someone will die. If [a patient] tells officials [this], his worst fear is he won't be taken seriously. [It's a] fear of just being ditched, conveniently ditched. There's nothing worse than having nowhere to go for shelter, no money. Somewhere warm and dry to live. I don't even know what the law is, what laws to obey. I'm getting old, my eyes are beginning to fade. A sense of insecurity.' (Male, over 40 years, from notes.)

For these patients it was their negative view of themselves, rather than their positive view of the hospital, that made them afraid to leave.

We cannot be sure how far the patients' wishes are the ~real' reasons for their continued detention, or how far it is the case, as one Special Hospital consultant suggested, that ~the patients' wishes are important if they're also the wishes of the institution'. What is clear is that their wishes figure prominently among the ~official reasons' and that in some cases particularly the older women in Special Hospitals - there appears to be no other reason for their remaining where they are.

Some Policy Issues

Transfer problems

A number of cases illustrated the already well-known administrative difficulties of transferring patients out of Special Hospitals or resettling them in the community (see Dell 1980; we found little to suggest that her findings are outdated). These problems include the lack of any accommodation for patients considered to need long-term care in conditions of medium security; the arbitrary ~catchment area' system, under which some patients have to be transferred to neighbourhoods with which they have no meaningful connection, or where there is no suitable accommodation, or where the patients, their relatives, or local residents may be strongly opposed to their moving; the fact that the ~quality of life' in some local hospitals and RSUs is perceived by staff and/or patients as lower than that in the Special Hospitals; and the position of patients who are diagnosed as both mentally ill and mentally impaired, and who may fall victim to ~buck-passing' between different local services. Problems relating to the ~catchment area' system were especially frequent, arising in 12 cases since 1986.

The Advisory Board on Restricted Patients (ABRP)

The ABRP is an expert body which advises ~the Home Secretary in the cases of restricted patients whose potential for serious reoffending is particularly difficult to predict' (Egglestone 1990: 1257). In this context it is interesting to note that 13 proposals for transfer or discharge were referred to the ABRP (two of the referrals concerned the same case). Ten of these referrals were in the period 1984-90. Most referrals took place on the personal initiative of the Minister of State.(10)

Should restrictions be lifted?

The Mental Health Act 1983, section 42(1) provides that ~If the Home Secretary is satisfied that . . . a restriction order is no longer required for the protection of the public from serious harm, he may' lift the restrictions. It is clear therefore that public safety is the guiding principle which governs the Home Secretary's function in respect of retaining restrictions: a function which is of course linked to the role of the patient's RMO, in the sense that it is only when the RMO is able to report that the patient's condition has so improved that public safety is no longer threatened, that the Home Secretary can realistically consider lifting restrictions. Within the present sample of cases it is clear that this has not been occurring in respect of long-term detainees found unfit or insane. There were in fact 21 cases where RMOs requested removal of restrictions, all of which were refused.

As is stressed by the Home Office in a number of letters to RMOs the retention of restrictions has the advantage that any discharge of the patient can be conditional. Although the function of restriction orders is to protect the public from serious harm some of the letters from the Home Office to RMOs gave the impression that the retention of restrictions was viewed as being as much in the patient's own interests as for the protection of others. Of course, the patient's successful rehabilitation on the basis of compulsory supervision in the community can serve both objectives. It might, however, be open to question whether the threat of serious harm exists in some of the cases where the patients are now very elderly or where the index offence was relatively minor. In this connection the Home Office states that any convincing proposal for removing restrictions on the basis that the restrictions are no longer necessary on public safety grounds will be sympathetically considered. It is possible then that RMOs need to be more persistent in making such proposals, although in many cases the patients would wish to remain in hospital on an informal basis.

The question of discharge

Rather than have restrictions lifted patients can of course be discharged either conditionally or absolutely. In respect of discharge, tribunals play a complementary but independent role to that of the Home Secretary. However, while restriction orders certainly act as a check against RMOs' premature willingness to release or transfer their patients, it is questionable whether Mental Health Review Tribunals provide a similarly effective check on RMOs who are over-cautious in recommending continuing detention (Peay 1989). Clearly every restriction order case must be carefully assessed on its merits as far as the question of discharge is concerned and the onus must of course rest with the RMO to formulate any such proposal. However, there is evidence to suggest that ~tribunals seem to be prepared to attribute pre-eminence of expertise to the RMO when he is advising against discharge, but seemingly place less credence in his views when he is advising in favour of discharge' (Peay 1990: 1264). Moreover, tribunals have no power over transfers out of Special Hospitals.

Given the nature of the present system it is clear that any initiative for a change of status must come from the patient's RMO if it is to succeed and in this respect one wonders whether there is not a case to be made for a more active role to be taken by RMOs, tribunals, and perhaps the Special Hospitals Service Authority and the Home Office in respect of these cases.

It can be argued that these patients detained as a result of a finding of unfitness or legal insanity constitute a special legal category - in the sense that they remain unconvicted but were subject to automatic and indeterminate hospitalization - and while recognizing that the provisions of the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991 are not retrospective,(11) it would surely not be outside the spirit of the Act to ~flag' these cases for special consideration in respect of the need for continuing detention. This may of course have little or no effect, but in the light of the 1991 Act it would not be difficult for the hospitals concerned, and in particular the Special Hospitals, to look at these cases as a special category rather than merely regarding them like any other restriction order case.


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(*) Cf. the comment of Lord Mishcon during the debate on the second Reading of the Criminal Procedure (Insanity and Unfitness to Plead) Bill in the House of Lords, see Hansard (HL) 21 May, col. 183. (*) Respectively Reader in Criminal Law and Lecturer in Law, De Montfort University, The Gateway, Leicester, LEI

(1) Special thanks are owed to C3 Division of the Home Office for all the co-operation and assistance given to us throughout this research and to the three Special Hospitals which granted us permission to intervie relevant patients. Grateful acknowledgement is also given to the Economic and Social Research Council which funded this research in the form of Award Number R000232782. (2) Ages are calculated at the anniversary of the patient's detention. (3) A tribunal may defer the implementation of its decision to conditionally discharge a patient until suitable arrangements have been made for such matters as, for example, supervision and residence. (4) We used the binomial test to compare the observed and expected frequencies of offence groups. The under-representation of property offenders among long-termers is highly significant (p < .0001) but neither alleged murderers, other violent offenders, or sex offenders are significantly over-represented. (5) It is interesting to note that between 1976 and 1989 of the seven unfit patients charged with murder who were subsequently remitted for trial six pleaded diminished responsibility successfully. However, in eac of these cases the result was a restriction order without limit of time. See Mackay (1991a, b). (6) Although it must be pointed out that under the CP(I)A 1964 there was no legal requirement for medical testimony before a finding of unfitness to plead could be made. (7) R v. M'Naghten (1843) 10 Cl. & Fin 200; R v. Codere (1916) 12 Cr. App. R. 21; R v. Windle [1952 QB 883. (8) Yates' [Chi.sup.2] = 14.66; p < .001. (9) Yates' [Chi.sup.2] = 10.29, d.f. = 1, p < .002. (10) In a talk to the Trent Forensic Education group in 1991, Mr Lee Hughes of C3 Division indicate that the referrals had recently sharply increased.
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Title Annotation:United Kingdom
Author:Mackay, R.D.; Ward, Tony
Publication:British Journal of Criminology
Date:Jan 1, 1994
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