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Published: Fri, 02 Feb 2018

Mentally disordered offender

With Reference To The Legal, Theoretical, And Practical Concerns, Discuss The Issues Raised By The Notion Of A ‘Mentally Disordered Offender’.


It is becoming ever more apparent that within the general population and especially in the criminal justice population there are high proportions of individuals with a range of mental, physical and social problems (Keene, Janacek, Howell, 2003). Sizeable proportions of mentally disordered individuals do not pose a threat to themselves or others and only require secondary treatment from mental health services. However, existing studies have shown a relationship between mental health and crime (Hodgins, Mullersberner, & Maden, 2001) but it appears that mental illness complicates rather than causes criminality (Draine, 2003). It is these individuals that require more firsthand treatment but are often hampered by poor and conflicting communication between those agencies that are best equipped to deal with the mentally disordered.

Despite mental health legislation being governed and amended by the Home Office, psychiatrists play an ever increasing role in the treatment and assessment of mentally disordered offenders (MDO’s) (Eastman, 1999). Courts are also often led by clinicians due to their role as the expert witness, because of this tangible relationship clinical expertise in the legal world remains extremely important. However, such witnesses are increasingly required to answer legal based questions, when by their nature; clinicians offer an opinion that resembles a diagnosis (Hardie, Elcock, & Mackay, 2008).

This difference between the legal and clinical world of MDO’s is a complex and often confusing relationship. The introduction of the Homicide Act 1957 provided the opportunity for an interaction between psychiatrists and the law, however, this relationship has been a controversial one, first highlighted in the Sutcliffe case. Sadly such differences in professional opinion still separate this interaction to some extent. One cannot succeed without the other, however, with conflicting definitions, viewpoints, recommendations and governing bodies it is an area that needs clear clarification of the role of the clinician, the role of the courts, their criteria and their priorities relating to treatment and public order.

This essay will clarify the legal and theoretical (psychiatrists and psychological) stance on MDO’s and the complexities that often arise from their conflicting definitions of such offenders. It will take in to account how these differences affect practical matters such as treatment requirements and treatment in the community and the complexities that arise from these practical matters.

Legal perspective

Although the notion of a MDO is not a new phenomenon, clarity surrounding its definition is often confusing and inconsistent. By law, England and Wales are one of many jurisdictions that separate legal structures for the mental health care based upon risk and incapacity. The Mental Health act, (MHA) 2007, provides a framework for treatment with a main requirement that the individual in question has a mental disorder and is a risk to themselves or others. It states an individual is mentally disordered if they have a disability or disorder of the mind. This definition amended the 1983 act that previously categorised mental disorders in to; a psychopathic disorder, a mental illness, impairment or severe impairment. There are seemingly few limitations to the legal concept of a ‘mental disorder’. However, learning disabled is not a mental disorder for purpose of long term detention, unless the individual is also abnormally aggressive. Furthermore, sexual deviance or dependence on alcohol or drugs is not regarded as a mental disorder. With regard to recreational use of illegal substances it is recognised as possibly causing mental disorders.

Despite some exclusions within the mental health act the legal perspective is seemingly more accepting of general terms such as ‘mentally disordered offender’ and ‘psychopathic disorder’. Legally a psychopathic individual is someone who is irresponsible and aggressive. Arguably such a definition does nothing for the clinical explanation or diagnostic classification and as such the legal definition could be attributed to a large proportion of the offending population, most notable to those who are not clinically recognised as psychopaths. The World Health Organisation clusters psychopathic, anti social and asocial personality under the term of dissocial personality disorders. If the Mental Health Act assumes that a number of disorders fall within ‘psychopathic disorder’ then this raises obvious confusions concerning which particular disorder they are suffering from due to vastly differing needs of different diagnosis’s. As psychopathic disorder is combined with personality disorders it skews the extent of the problem as some will refer to the legal classification and others the clinically derived terminology.

The Mental Capacity act, (MCA) 2005, provides a framework for decision making with regard to treatment of those who are incapable of making such decisions themselves due to the presence of a debilitating mental disorder that renders them unable to care for themselves. Dilemma surrounds those individuals who are detained under the MHA with capacity, as many MDO’s find themselves. There have been concerns about the ethics and stigmatising consequences of allowing mental health law based upon risk triumph above mental health law based on capacity and individual autonomy (Richardson, 2007). With regard to clinicians they are facing complex decision regarding the use of mental health law. They will have to use two legal frame works the MHA and MCA and the success of this dual legal framework and how it affects psychiatric practice remains to be quantified (Owen, Szmulker, Richardson, David, Hayward, Rucker, Harding, & Hotopf, 2009).

By law every person is presumed to be sane and accountable for their actions, however, those offenders legally deemed to have a disorder do so because they are prescribed to have a disorder of the mind. The issue of mens rea (the state of the mind of the accused) and the defence of insanity has obvious issues when determining an individual’s fitness to plea or whether they are culpable for their offence. The legal clarity surrounding insanity suggests that if the defendant suffers from a severe mental illness, when committing the offence, they did not know what they were doing or that what they were doing was wrong, they are not culpable for their actions based upon the notion that the offender is insane. These rules became known as the Naughton Rules, the ‘defence of reason’ and are still a widely accepted test of insanity (Elliot, 1996). With regard to fitness to plea, in most cases, it is likely the offender will respond to treatment and will be able to stand trial within a reasonable time frame. However, what remains unclear is whether an individual with a prescribed clinical mental disorder, such as sexual deviance, classified under paraphillia, will be able to plea unaccountable for their actions if the disorder is not legally recognised, will law triumph over clinical diagnosis?

Theoretical Perspective

Clinicians are seemingly finding themselves, more likely than ever before, treating individuals with both mental illnesses and an offending history (Lurigio, & Swartz, 2000). Therefore their relationship with those responsible for the legislation surrounding MDO’s is ever more crucial. However, clinicians by their nature operate using a diagnostic criterion and work with a variety of recognised disorders including; personality disorders such as anti social, borderline, obsessive compulsive and mental illnesses such as depression, schizophrenia and learning disabilities. Therefore, the most obvious conflict between legal and clinical appears to be that legally MDO’s are treated as a heterogeneous group whereas clinically they are differentiated using the criteria’s of the DSM and ICD (Department of Health, 2000b).

MDO’s are not a single group and cannot be treated as such. Mentally disordered offenders are, “categorically awkward; being neither exclusively ill nor uncomplicatedly bad such offenders ‘totter’ between two not always compatible discourses of state intervention” (Webb & Harris, 1999:2). For those with paranoid schizotypal delusions, their behaviour, associated risk, diagnosis and treatment will differ hugely from an individual with an anti social personality disorder (ASPD). The use of such a broad generalisation by law of ‘MDO’s’ has left many clinicians feeling let down by the amendments to the MHA. They felt it offered no guidance as it was left up to the clinical judgement of the doctor to determine the type of mental disorder the offender was suffering from (NACRO, 2007) along with determining whether they were treatable, further confusing their role with regards to responsibility.

Many theoretical concerns derive from a lack of clear limits on the named clinician’s responsibility, how much power they can exert, and guidelines relating to what are expected of them (Commission for Health Improvement, 2001). On the one hand clinicians are urged to reduce their reliance upon inpatient beds and listen to patients demands, however, they must also be able to identify and detain dangerous offenders. Such clear limits are a necessity especially in a time where clinicians have increased accountability, service users have much more choice and the complexity of legislations surrounding MDO’s is increasingly confusing (Coid, & Maden, 2003).

Scotland, with its separate jurisdiction from England and Wales, seems to have developed a suitable strategy to overcome the confusion of the blurred responsibilities of both the clinicians and the courts. Scotland had proposed that legislation and strategies aimed to deal with high risk offenders are to be led by the criminal justice system with psychiatry taking a secondary role (Scottish Executive, 2000). Such clarity on responsibilities was introduced as the Scottish government hoped that it would enable psychiatrists to improve upon the advice they give on the risks MDO’s pose without being too involved in the incapacitation of offenders. Such a move has proved to be approved by the majority of clinicians in Scotland, despite initially increased paperwork, such a move has arguably given them a clearer focus (Donaldson, Carswell, & Brown, 2008). However, further amendments to England and Wales’ relatively new mental health legislation may be viewed as being too presumptuous about its ability to succeed and further changes may over complicate an area that is already multifaceted.

. Despite amendments to the MHA suggesting service users are its main focus many clinicians are disappointed that the MHA seemingly favours the emphasis of public protection. The Royal College of Clinicians felt such a stance was against their rational for psychiatric intervention as they view themselves as providing a service that places an emphasis on the patients benefit first and public protection second (Royal College of Psychiatrists, 2001). Such an argument further suggests that the introduction of IPP’s and indeterminate sentencing is one such situation where public protection is placed above the benefits of the patient. Some clinicians (Eastman, 1999; Mullen, 1999, and Gunn, 2000) argue that such sentences are able to avoid human right legislation as it conceals preventative detention in medical disguise. However, others (Hardie, Elcock, & Mackay, 2009) argue that such a legislation and sentencing is beneficial to both the clinician and patient as it can put their treatment requirements in to sharper focus, as an individual’s eligibility for realise will be intrinsically linked to their ability to demonstrate a reduction in their risk level.


With their focus upon the needs of the patient, psychiatrists welcomed the amendments to the 2007 act with regards to availability of treatment (Royal College of Pschiatrists, 2007). Legally it is now stated that ‘MDO’s’ should receive the same level and type of treatment and for the same prolonged period as those individuals who have a mental illness but have not offended. The MHA hoped that an emphasis on early intervention and more accessible mental health services would give psychiatrists and psychologists a greater chance of preventing such illnesses progressing and manifesting. Earlier intervention stage may prevent the individual’s involvement with the criminal justice system by removing, or maintaining, through medication or other treatments, the triggers that result in them causing harm to others or themselves (Owen, et al., 2009).

Historically, the 1983 act previously stated that after the initial six month hospital order had elapsed, it could be renewed on the basis that the treatment the individual is likely to receive will improve their condition. This ‘treatability test’ has under the 2007 act been replaced with an ‘appropriate treatment test’. This amendment now states that a person can be detained under the mental health act for treatment (section 36) even if there is not an obvious medical treatment available that will improve their condition or is suitable for their circumstance. Supporters of a more restricted legislation argue that MDO’s must be detained in hospital settings for their own safety as much as for the public, regardless of whether their disorder is treatable (i.e. personality disorders) (Maden, 2005). However, with such a wide range of disorders falling under the ‘mentally disordered offender’ spectrum and with many of those suffering from this so called disorder also being highly co-morbid with other disorders, the appropriateness and availability of treatments is crucial (Lurigio, & Fallon, 2007).

Most treatment programs are designed to treat ‘pure types’ who can be placed in a single treatment category. However, with dual or tri diagnosed individuals many treatment services are reluctant to treat drug addiction before mental health or mental health before drug addiction. Furthermore, such offenders often refuse to confront their substance taking behaviour and are therefore difficult to engage (Rosenberg, & Mueser, 1996). Unfortunately because of an unrealistic desire to treat ‘pure types’ many of those MDO who have the greatest need for treatment may be being deprived of certain services because of their complex diagnosis (Abram, & Teplin, 1991). By their nature such individuals also have a criminal justice involvement and as such and where possible treatments should look to tackle their offending behaviours as it may be that their thinking behaviour propels them towards recidivism, their mental disorder propels them towards recidivism or it may be a combination of both.

Section 145(1) of the MHA defines ‘medical treatment for mental disorders’ widely as including, ‘nursing, psychological interventions and specialist mental health habilitation, rehabilitation and care.’ (Mental Health Act, 2007). The NICE guidelines aim to advise such treatment by producing a framework by which different mental disorders are best treated. Such guidelines were thought to be necessary because of the heterogeneous way the courts dealt with mental disorders and also the heterogeneous diagnostic clinical categories of broad illness such as schizophrenia (Kendal, Pilling, Whittington, Pettinari, & Burbeck, 2005).

Within the NICE guidelines there is a large reliance upon cognitive behavioural therapy (CBT). Despite many MDO not fitting perfectly in to one set diagnosis or criteria and having vastly differing needs, Fabiano, Porporino & Robinson (1991, p.108), argued that “since faulty thinking patterns propel offenders towards recidivism, programmes should try to change the way offenders think, not the way they act.” Such therapy aims to target the unhealthy negative beliefs and behaviours with healthy positive ones and for an offending population, work may focus around the patient’s index offence and highlighting the thought patterns that lead up to and reinforce their behaviour.

CBT has been highlighted with the NICE guideline as being beneficial for a number of recognised mental disorders including, schizophrenia, depression and generalised anxiety disorder. With regards to long term benefits it has been highlighted as being more successful with regards to reoccurring symptomology and recidivism than pharmacological interventions (Gould, Otto, Pollack, & Yap, 1997). It is also seemingly cost effective and can be rolled out in a number of hospital or prison settings. The rise of CCBT (computerised cognitive behavioural therapy) was recommended by NICE to be made available for use in England and Wales for those with moderate depression rather than relying upon medication (NICE, 2004). CCBT has been hailed as a success as due to its nature unlike therapists are readily available, it removed the pressure of one to one or group therapy and is also suitable for those whose disorder is not suitable for group based work (NICE, 2004). The rise in popularity of CBT has come to the annoyance of others who feel it is unjust and is receiving far too much attention, funding and dedicated research and because of this attention it has been encompassed in the NICE recommendations. Stiles, Barkham, Mellor-Clark, &Connell, (2007) and Stiles, Barkham, Twigg, Mellor-Clark,& Cooper, (2006) feel the popularity of CBT causes other psychotherapies such as person centred therapy (PCT) to be overlooked. However, NICE has highlighted the importance of PCT with regards to borderline personality disorders (BPD).It is further argued that there has yet been a trial employing both blind and psychological placebo that has found CBT to be effective in the treatment of schizophrenia and few studies in the support of it work with depression (Lynch, Laws, & McKenna, 2009). Some illnesses, namely schizophrenia are arguably best managed through antipsychotic medication. Both anti social and obsessive compulsive can arguably be treated with medication such as anti depressants or mood stabilisers. However some debate surrounds the suitability of medical treatment for anti social types (Bateman, & Fonagy, 1999). NICE recommends however that the choice to medicate should be beneficial for the patient and if possibly they should be given a choice when it comes to medication management with regards to which medication they feel best agrees with them and this choice should be reviewed regularly. The benefit of a patient derived choice has shown to increase compliance and reduce their likelihood of psychiatric and criminal recidivism (Bernstein, & Seltzer, 2004). NICE further recommends that during acute episodes CBT should be provided along with the consideration of art therapies and family interventions. There has however been much debate surrounding CBT and schizophrenia and despite NICE recommendations it may not be truly effective unless the government provide more funding for CBT specifically for those with schizophrenia not a general CBT that is currently used to treat a number of disorders (Lynch, Laws, & McKenna, 2009).

The Mental Health Act, 1959 and subsequent acts of 1983, 2007 and the Crime Sentences Bill 1996, have brought about huge changes in the way mental disorders are treated. The rights of the patient were at the forefront of the policy and treatment was based upon ‘community care’. With regard to MDO’s it emphasised the need to rehabilitate in the real world rather than in an institutionalised setting. Community Treatment Orders (CTO’s) aim to reduce the ‘revolving door’ cycle, keeping patients in touch with services and prevent them from continuously going through legal proceedings (Department of Health, 2006). Despite ‘revolving door’ being the Department of Health’s main justification for introducing CTO’s there is currently little evidence to suggest that CTO’s will reduce the ‘revolving door’ (Revolving door). This issue debates whether the legal stance on MDO’s is derived from politics rather than evidence (Black, 2001).

There are further worries that patients are required to stay under CTO’s for 3.5 months longer than they would if they were in hospital (Department of Health, 2006b). Such a move is arguable against the theoretical and apparent governmental stance of putting the patient first and a move towards the legal stance of risk minimisation. Some believe the introduction of CTO’s will place a greater reliance upon pharmaceutical treatment and even medication that would not necessarily be the patients choice as it is the only form of treatment that can be enforced effectively (Lynch, Laws, McKenna, 2009). The overall success of CTO’s is also under much debate as it is not clear whether there is a positive or negative outcome relating to; hospital readmissions, length of readmission, medication compliance, the quality of the individuals life or whether it is an alternative strategy to standard care (Churchill, Owen, Singh, & Hotopf, 2007). Worldwide research actually seems to suggest that CTO’s are not as successful or beneficial as the government suggests (Royal College of Psychiatrists, 2007). However CTO’s have been seen to show an improvement in the availability and accessibility of services (Gibbs, Dawson, Ansley, & Mullen, 2005) and such a benefit may prevent some MDO’s from falling to engage with services after release and falling back in to mental health and offending cycles.


The reoccurring complexity relating to MDO’s seems to be centred around diagnostic difficulties. Such an issue is arguably part of the course with this subsection of society. Classification of diseases and those that suffer from them is always likely to change over different eras. Due the constant advances in research, diagnostic classification definitions will alter and by their nature cannot be fully established without a deep understanding. Such an understanding may take years of research (Thacker, & Stroup, 1999) which no doubt by that time the legislation and treatment relating MDO’s will have undergone further amendments.

The complexities of classification extend far beyond a lack of consensus between the courts and clinicians. Further issues relate to the use of diagnostic instruments, when to evaluate patients and whether to use subjective or informal data (Zimmerman, 1994). Just as with treatment there is no gold standard for classification, for the same reason that MDO’s are such a diverse range of people with differing symptoms and needs and as a result can never be viewed as categorical.

Despite suffering from a wide range of disorders, which even within similar classifications, may still slightly differ from one patient to the next, there is a need for treatment guidelines such as NICE. However, much evidence based practice is impersonal, stringent to the guidelines, with not much scope for tailoring to the individuals need and is mostly group based (Lynch, Laws, & McKenna, 2009) which may not be beneficial for some MDO’s. Despite meta analysis reporting the benefits of group based work some offenders especially those with problems relating to confrontation, anxiety, nervousness or those who are often disruptive such programmes may not be best for them (Duncan, Nicol, Ager, & Dalgleish, 2006) .

CTO’s have tried and arguably successfully (Gibbs, Dawson, Ansley, & Mullen, 2005) improved accessibility and variety of treatment programmes, but such a move is only beneficial for those offenders that receive treatment in the community. For example sex offenders with a sentence of two years or more are obliged to engage in SOTP and are enrolled in top up course once realised, however, those with lesser sentences are offered no such rehabilitation (Schweitzer, 2003). Therefore, the aim of NICE to provide a framework for best practice of treatment is arguably failing a large majority of those that need it the most. CTO’s may also prove to fail in supporting the mentally ill, as within worldwide studies it has been shown to fail individuals who lack social support, the ability to handle daily tasks and those with the most severe and chronic disorders (Lurigio, & Fallon, 2007). Stiles, et al., (2007) and Stiles, et al., (2006) may be right in suggesting the government and NICE have spent too much time and resources upon CBT and not given other non group based interventions a chance (CBT can run as a one to one programme however it is often used as a group intervention as is art therapy for schizophrenia).


Those agencies involved with MDO need to recognise that they ultimately have differing philosophies. Legally agencies are geared towards punishment and clinically agencies are focused upon treatment. However, such agencies should be able to work together on the care of MDO’s, benefiting not only service users but the best interest of the legal system, which are both vested in reducing recidivism. They too should work together to bridge the gap in classification of diagnosis’s that is causing such as issue. The existence of clinical derived illness that are not legally recognised may in time result in a few inevitable false negative errors in the capacity classification (or false positive errors in MHA).

If the policy of the Department of Health is truly to raise the health care for MDO’s to NHS standards then prison treatment programmes need to be advanced and hospitals need to deliver intensive specialised programmes. However the flexibility of movement for one system to another, according to clinical need and availability of expertise must be built in to working practices and legislations.

Psychiatric interventions cannot influence offending rates at the population levels as the problems extend far beyond mental health. But future amendments in the legislation could look towards efforts in Scotland and allow psychiatrists to focus upon risk reductions in sub groups who are identified on the basis of previous criminal behaviour.

It is clear that suitable frameworks consider what is legally and practically in te best interest for the individuals as well as the rest of society. Without integrating adequate community aftercare within mental health treatment many MDO’s with become disconnected with services, more likely to relapse and have further involvement with the CJS (Lurigio, & Fallon, 2007). However, the biases of NICE need to be highlighted and future research into the understanding of such complex illnesses it may be possible to provide future guidelines that consider the non ‘typical’ MDO, make treatment available for all regardless of their sentence and realise the non heterogenic nature of their condition and requirements

Relatively new developments such as IPP’s, CTO’s and the inclusion of the ‘untreatable’ patients are a victim of their infancy. Time will tell whether such legislative changes are a success, however, any piece of legislation that has the possibility of not only reducing recidivism of violent crime but also giving the individual access to adequate treatment deserves the opportunity to prove its worth.

However, most ‘psychopathic disorders’ are co morbid with other clinical diagnosis which may respond to clinical interventions. This may put the clinician in a legally compromising condition in that do they try to treat the disorder that led to the hospital admission or do they try to tackle other aspects of the condition which may be more susceptible to treatment. The issue of treatability may too be linked with whether such individuals are receiving an adequate dosage of treatment. Due to the nature of treatment programmes and the individuals involved, staff may be reluctant to pursue treatment with individuals who are non compliant, have poor motivation and do not agree with their mental health diagnosis. The amended act has huge implications for the training of staff, not just responsible clinicians, but all those involved in the treatment of patients from nurses to support workers. These issues will place huge demand upon resources such as funding and available time.

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