Severe Personality Disorder and the Law.

by cavalier90 (student)

"Individuals with serious personality disorders are not well served by the current criminal and civil laws in the United Kingdom relating to psychiatric defences, fitness to plead and compulsory admission to hospital‟.

Critically evaluate these remarks taking account of comparative laws and human rights where relevant.

Before these remarks are evaluated critically, it is useful to understand what is meant by the use of the following terms such as serious personality disorders, psychiatric defences, fitness to plead and compulsory admission to hospital.

The essay begins by examining the concept of personality disorder and attempts to set the parameters within which meaningful discussion can be held regarding serious personality disordered individuals and their interaction with the legal system in the United Kingdom.

Defining personality with any degree of consensus has always been difficult; it is a word used in a common parlance to cover a variety of traits, attributes and behaviours. It is defined as “the quality or collection of qualities which makes a person a distinctive individual”[1]. A disorder of personality is defined as “a deeply ingrained and maladaptive pattern of behaviour of a specified kind that causes difficulties in forming relationships or in functioning within society”[2]. Within the realm of medicine and psychiatry in particular, two organisations have produced definitions which have been utilised widely in clinical practice.

The International Classification of Mental and Behavioural Disorders (ICD-10) defines a personality disorder as: ‘a severe disturbance in the characterological condition and behavioural tendencies of the individual, usually involving several areas of the personality, and nearly always associated with considerable personal and social disruption’.[3] It subsequently lists 9 categories of personality disorders and the relevant criteria for fulfilling each one. This includes Paranoid personality disorder, Schizoid personality disorder, Antisocial personality disorder, Borderline personality disorder, Histrionic personality disorder, Obsessive–compulsive personality disorder, Anxious (avoidant) personality disorder, Dependent personality disorder, Other specific personality disorders, Personality disorder, unspecified and, Mixed and other personality disorders.

The Diagnostic and Statistical Manual of Mental Disorders (DSM-IV) defines a personality disorder as: ‘an enduring pattern of inner experience and behaviour that deviates markedly from the expectations of the individual’s culture, is pervasive and inflexible, has an onset in adolescence or early adulthood, is stable over time, and leads to distressor impairment”.[4] It groups personality disorder into three broad ‘clusters’. These are Cluster A (the ‘odd or eccentric’ types eg.paranoid, schizoid and schizotypal personality disorder), Cluster B (the ‘dramatic, emotional or erratic’ types eg. histrionic, narcissistic, antisocial and borderline personality disorders) and Cluster C (the ‘anxious and fearful’ types eg. obsessive-compulsive, avoidant and dependent personality disorders).

It is useful at this juncture to highlight that the term “serious personality disorder” is not present in either classificatory system. Therefore one has to speculate as to what this term means and how is “seriousness” determined. The natural assumption is that seriousness is reflected by a threshold of harm that must be crossed. In this discussion it is perhaps prudent to define harm as harm to oneself and harm to others and as a consequence the following personality disorders maybe deemed to be serious. They are Borderline Personality Disorder, Antisocial Personality Disorder and Paranoid Personality Disorder.

This essay primarily focuses on Antisocial Personality Disorder as well as other related entities such as Psychopathy and Dangerous and Severe Personality Disorder.

Antisocial personality disorder is defined by the Diagnostic and Statistical Manual, as a personality disorder characterized by "a pervasive pattern of disregard for, and violation of, the rights of others that begins in childhood or early adolescence and continues into adulthood."[5]

The World Health Organization's International Statistical Classification of Diseases defines a conceptually similar disorder to antisocial personality disorder called Dissocial personality disorder.[6]

Both the DSM and the ICD state that psychopathy are synonyms of their diagnosis. In the Mental Health Act 1983 of England and Wales, the term psychopathic disorder is employed and defined as a ‘persistent disorder or disability of mind (whether or not including significant impairment of intelligence), which results inabnormally aggressive or seriously irresponsible conduct’. [7]

In England and Wales, the law has accepted the medical view that antisocial behaviour may result from a psychological abnormality, distinct from mental illness, and that it may be appropriate to divert offenders suffering from this disorder to the mental health system for treatment rather than punishment. However, the statutory category of 'psychopathic disorder' is different from clinical classifications of the condition. In its legal use, for instance, 'psychopathic disorder' has no specific clinical meaning and is a generic term based solely on the presence of antisocial behaviour, as distinct from the range of features required for a clinical diagnosis of the syndrome.[8]

Lastly the term Dangerous and Severe Personality Disorder was introduced by the UK Government in a consultation paper entitled “Managing Dangerous People with Severe Personality Disorder” in 1999[9], which proposed how to detain and treat a small minority of mentally disordered offenders who pose a significant risk of harm to others and themselves. The condition's characteristics were not clearly defined, but it was thought to be an extreme form of antisocial personality disorder; the diagnosis commonly linked with psychopathy. This programme was introduced following a tragic killing and the subsequent conviction of Michael Stone, who was said to have a severe personality disorder and was allegedly denied access to psychiatric care.

Psychiatric defences refer to legal defences that can be employed so that an individual is not found culpable because he/she did not have a sufficient degree of mens rea. These defences include diminished responsibility, not guilty by reason of insanity, automatism and infanticide.

In English Law, the defence of diminished responsibility for murder was introduced in 1957. The Homicide Act 1957 (Section 2) states: “where a person kills or is party to a killing of another, he shall not be convicted of murder if he was suffering from such abnormality of mind (whether arising from a condition of arrested or retarded development of mind or any inherent causes or induced by disease or injury) as substantially impaired his mental responsibility for his acts and omissions in doing or being party to the killing”.[10]

The defence is only available to cases involving murder and ...

This is a preview of the whole essay

The defence is only available to cases involving murder and if successfully tendered a sentence of manslaughter (culpable homicide) is passed.

It is interesting to note that the concept of Diminished Responsibility differs in Scots Law. During the course of the 20th century Scottish courts began to adopt a restricted approach to the types of mental condition which could give rise to diminished responsibility. The key decision was HM Advocate v Savage, in which Lord Alness addressed the jury as follows:

"It is very difficult to put it in a phrase, but it has been put in this way: that there must be aberration or weakness of mind; that there must be some form of mental unsoundness; that there must be a state of mind which is bordering on, though not amounting to, insanity; that there must be a mind so affected that responsibility is diminished from full responsibility to partial responsibility – in other words, the prisoner in question must be only partially accountable for his actions. And I think one can see running through the cases that there is implied ... that there must be some form of mental disease."[11]

This statement became the authoritative version of the test for diminished responsibility. Furthermore, the various factors mentioned by Lord Alness were regarded as being cumulative in nature. The effect was that the test became difficult to satisfy, and the courts adopted the position that the scope of the plea was not to be further widened.[12]

Psychopathic personality disorder was specifically excluded by the Courts from the scope of the plea. This is made clear in Carraher v HM Advocate[13] which held that the plea was not available to a person suffering from psychopathic personality. In that case an accused claimed to be of diminished responsibility on the basis that he suffered from psychopathic personality and had consumed a considerable amount of alcohol at the time of the killing.

It is of interest that in Galbraith v HM Advocate, the Scottish Courts took a different view. In that case the Court held that the formula in Savage was not to be read in a narrow sense, and it was not necessary that all the criteria in that formula had to be present. Moreover, although the plea had to be based on some form of mental abnormality, a wide range of conditions could constitute diminished responsibility, and these conditions need not be bordering on insanity.

Instead, the Court ruled that diminished responsibility required the existence of an abnormality of mind which had the effect that the accused's ability to determine or control his actings was substantially impaired.[14]

This clearly demonstrates the willingness of the Courts to widen the scope of Diminished Responsibility in certain circumstances and narrow it in others.

Next we examine the defence of Insanity. Once again our focus must shift to the Scottish Legal System due to its exclusion of disordered personality. The Scottish Law Commission in its report in 2004 stated that “We take the view that the condition of psychopathy does not, and should not, fall within the set of circumstances which we have argued forms the basis of the defence, namely inability to appreciate conduct as a result of mental disorder. We note in the first place that there might well be difficult problems of definition whether psychopathy falls within any of the constituent elements of mental disorder. But even if psychopathy is properly regarded as a form of personality disorder, the condition would not meet the 'appreciation' part of the test for the defence”[15] .

It continues to state that “psychopathy does not have the effect that the person's reasons for acting as he did are in any way 'abnormal' or 'crazy' or 'disordered.' Rather, psychopathic personality disorder has the effect that because of the psychological make-up of the accused he has difficulties, not shared by the ordinary person, in complying with the requirements of the law.”

The Commission did not propose that the law should exclude psychopathy from the category of mental disorder. This was an issue that they felt was outside their purview. Instead, it made recommendations that there should be a rule of law which makes clear that the defence of insanity is not open to someone solely on the basis of his having a psychopathic personality. This clearly indicates that individuals with serious personality disorders are not well served Scottish Legal System who have chosen instead not to deal with the complexities brought about by these individuals.

In Western Australia, the defence of insanity is based upon ‘the moral assumption that it is wrong to punish those who, by reason of mental incapacity, are not capable of free and rational action’.[16]

The Law Reform Commission of Western Australia’s opinion is that severe personality disorder should not (like intellectual disability, senility and brain damage) automatically qualify as a mental impairment for the purposes of the insanity defence. But this does not mean that personality disorder should be specifically excluded from the defence of insanity. The Commission reported that medical diagnostic practices can change overtime and that there may be some types or degrees of personality disorder that come to be considered as mental illnesses in the future.[17]

In the United States, The Durham rule replaced the M'Naghten rule. The Durham rule was created in 1954 by Judge David L. Bazelon, of the U.S. Court of Appeals for the District of Columbia, in Durham v. United States.[18] The rule, as stated in the court's decision, held that "an accused is not criminally responsible if his unlawful act was the product of mental disease." It required a jury's determination that the accused was suffering from a mental disease and that there was a causal relationship between the disease and the act otherwise known as the “Product Test”

It attempted to create a simple and open-ended insanity test that would, Judge Bazelon later wrote, "open up the courtroom to all the information and analysis available to the scientific community about the wellsprings of human behaviour." Bazelon hoped that the new rule would allow experts to bring to the jury and the public new insights into "the physiological and cultural, as well as individual psychological, factors contributing to criminal behaviour."

Implementation of the Durham rule ran into serious difficulties and as a result, the District of Columbia Circuit unanimously and replaced it with a standard developed by the American Law Institute: "A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law"[19].

The U.S. Congress in the Insanity Defense Reform Act of 1984 stated that mental disease or defect constitutes a defense only under the insanity defense. Thus, unless a personality disorder falls within the meaning of mental disease or defect in the test of criminal responsibility, psychiatric testimony is precluded.[20]

George B. Palermo, on the basis of his extensive forensic psychiatric experience and a review of national and international literature, strongly suggested that the United States judicial system reassess and amend its approach to individual offenders who have a severe personality disorder.[21]

Palermo stated that “Individuals who have a severe personality disorder should be allowed to enter a plea of total or partial insanity based on evidence of a decompensation into irrational behaviour at the time of the alleged crime, and should be allowed to present all exculpatory evidence available to them to prove their claim. The best approach for non-responsibility pleas would be to adopt a more inclusive formulation with less specific terminology, such as disease of the mind, abnormality of the mind, or impairment of the mind.”

Slovenko wrote that the jurisdictions in the United States are divided on the definition of mental disease or defect for an insanity plea or diminished capacity.

For example, the New Jersey Supreme Court has ruled that a personality disorder can form the basis for a diminished capacity defense. The court said” All mental deficiencies, including conditions that cause a loss of emotional control, may satisfy the diminished capacity defense if the record shows that experts in the psychological field believe that the kind of mental deficiency can affect a person’s cognitive faculties, and the record contains evidence that the claimed deficiency did affect the defendant’s cognitive capacity to form the mental state necessary for the commission of the crime.”[22]

On the other hand, Oregon, by legislation, amended its law on the insanity defense to exclude persons who have only a personality disorder. The legislators believed that the defense was used as a way to avoid responsibility. Also, it was noted that prosecutors more commonly contested insanity claims involving personality-disordered defendants and that juries who heard these cases were confused by the battle of the experts that ensued. The legislature sought to restrict the insanity defense to those persons with serious mental illness.[23]

Moving on to compulsory admission to hospital. The Mental Health Act 1983 is the law under which a person can be admitted, detained and treated in hospital against their wishes. The Act covers the rights of people while they are detained, how they can be discharged from hospital and what aftercare they can expect to receive. The Act applies in England and Wales and was recently amended by the Mental Health Act 2007. The 1983 Act sets out the criteria for detention for treatment sections 2 & 3 for civil patients and various provisions of Part 3 for patients concerned in criminal proceedings. Many of these provisions include a criterion that for certain categories of mental disorder treatment must be likely to alleviate or prevent deterioration in the condition, commonly referred to as the “treatability criteria or test”. Also spelt out quite clearly in the 1983 Act is the concept of Psychopathic Disorder, one of the four categories of mental disorder for which compulsory admission to hospital may be appropriate and the abovementioned “treatability criteria” also applies.

Have these provisions within the 1983 been deemed sufficient enough to deal with individuals with serious personality disorders? In practice, the answer is possibly no as The Mental Health Act 1983 allowed doctors to opt out of involvement with patients with psychopathy. Many clinicians and mental health practitioners believe there is nothing that mental health services can offer these individuals and therefore deem them as untreatable. Being untreatable can be highly significant: If the individual is untreatable, then he or she must be released from the hospital detention, no matter how potentially dangerous he or she may be to others.[24]

There have been several legal cases addressing this issue. One example is the case of Hutchison Reid v United Kingdom.[25] In this case, in 1967, the applicant, who lived in Scotland, was convicted of culpable homicide. He was found to be suffering from mental deficiency, a mental disorder within the meaning of the domestic legislation such as would warrant his detention, and was detained in a mental hospital under a hospital order without limit of time. By 1980, he was no longer regarded as suffering from mental deficiency, but was detained on a diagnosis of anti-social personality or psychopathic disorder. Under the provisions of the domestic legislation, where a person suffered from a persistent mental disorder manifested only by abnormally aggressive or seriously irresponsible conduct, he could only be detained where medical treatment was likely to alleviate or prevent deterioration of his condition.

The Sheriff noted that the majority of the opinions were to the effect that the applicant's condition was not curable and that the medical treatment provided by the State Hospital had not alleviated and would not alleviate his condition. However he nonetheless found that the applicant's disorder was severe and that it was appropriate for this applicant to be detained in a hospital for medical treatment.

The applicant appealed to the Inner House of the Court of Session who allowed the appeal and quashed the decision of the sheriff. They held that in the case of a psychopath the discharge criteria in section 64 of the 1984 Act incorporated the “treatability” criterion in section 17 of the Act, i.e.the criterion that, in the case of a person suffering from a mental disorder manifested only by abnormally aggressive or seriously irresponsible conduct, the medical treatment must be such as was likely to alleviate or prevent a deterioration in his condition. Having reviewed the evidence, they found that the Sheriff had wrongly concluded that the applicant was treatable and that the Sheriff was obliged to discharge a restricted psychopathic patient who was not treatable.

The Secretary of State appealed to the House of Lord who in their judgment, agreed with the Inner House that the treatability criterion was incorporated into the discharge criteria in section 64 but rejected its approach to the evidence. They held that treatment which alleviated the symptoms and manifestations of the underlying medical disorder of a psychopath was treatment within the meaning of section 17(1), even if the treatment did not cure the disorder itself.

The applicant eventual appeal reached the European Court of Human Rights. The Strasbourg Court held that Article 5(1)(e) imposed no requirement that detention in a mental hospital was conditional on the illness or condition being of a nature or degree amenable to medical treatment.

The Court held (paragraph 51) that confinement under Article 5(1)(e) may be necessary not only where a person needs therapy, medication or other clinical treatment to cure or alleviate his condition, but also where the person needs control and supervision to prevent him, for example, causing harm to himself or other persons.[26]

Perhaps the key point to note was that even though the treatability criteria existed and can be rejected successfully, the perceived need for public protection was able to undermine the individuals right to civil liberty thus highlighting once again the fact that individuals with serious personality disorders are not well served by the current criminal and civil laws not just in the United Kingdom but in Europe as well.

In Ireland, a diagnosis of personality disorder on its own is not sufficient grounds for involuntary admission under the 2001 Mental Health Act. There are similar restrictions in relation to social deviancy and addiction to drugs or intoxicants. Mental health legislation in England and Wales has taken a different position in relation to personality disorders but this has drawn criticism for being overly restrictive, particularly from a human rights perspective. [27]

In Western Australia, it is generally thought that personality disorder is untreatable, although support may be given to encourage control of aggressive and violent behaviour.[28]

The general consensus in psychiatric literature is that ‘involuntary treatments imposed on a person [who has a personality disorder but is] not motivated to change have no chance of success’.[29]

The Office of the Chief Psychiatrist in Western Australia has also reported that deterrent forms of punishment do not usually modify the behaviour of persons suffering from personality disorder.[30]

It was issues raised by cases such as Hutchison V Reid that lead to the revamping of the Mental Health Act 1983 in the United Kingdom. The 2007 Mental Health Act amended the definitions of the term mental disorder from the 1983 Mental Health Act. The definition of mental disorder in the 1983 Act was revised from “mental illness, arrested or incomplete development of mind, psychopathic disorder and any other disorder or disability of mind” to “any disorder or disability of the mind” and is therefore more inclusive of all mental disorders. The Act established personality disorder as a mental health condition requiring appropriate assessment and treatment.

The new Act proposed that people with a mental disorder would be liable to compulsion for as long as their disorder is sufficiently serious, if it was necessary for their protection or that of others and if there was treatment available which was appropriate to their condition.

The government viewed this as closing a perceived ‘loophole’ in the 1983 Act under which people judged as a potential risk to society but whose condition is not considered ‘treatable’ cannot be detained and thus cannot receive compulsory treatment. It marked the abolition of the so-called “treatability test” in relation to psychopathic disorder and made provisions enabling compulsory treatment in the community.

In parallel with the consultation on reform of the Mental Health Act 1983, the Home Office conducted a consultation on ‘Managing Dangerous People with Severe Personality Disorder’ in July 1999.[31] As a result of that, the Dangerous with Severe Personality Disorder (DSPD) Programme was established. The aim of the programme was to develop, pilot and evaluate new mental health services for the very small number of people who are dangerous as a result of a severe personality disorder thus enabling the Government to legally incarcerate individuals who were a threat to the public under the guise of mental illness. It is viewed as a way to circumvent the European Conventionon Human Rights, which prohibits preventive detention except in those of unsound mind.

In conclusion, it is reasonable to argue that individuals with serious personality disorders are poorly served by current laws in the United Kingdom. This is based on the fact that the Government will always prioritise the need for public protection over the rights of the individual often under the glare of media attention. The changes in legislation with regards to the definition of mental disorder and the concept of available treatment certain reinforce that opinion with some amount of certainty. The medical fraternity who have chosen to protest against such changes have found themselves coming up against the juggernaut of political will.

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[2] Oxford English Dictionary Online (2010) Oxford University Press. Available at : [Accessed 20 November 2011]

[3] International Statistical Classification of Diseases and Related Health Problems (ICD-10) (World Health Organisation 1992)

[4] Diagnostic and Statistical Manual of Mental Disorders (DSM-IV) (American Psychiatric Association 1994)

[5] Diagnostic and Statistical Manual of Mental Disorders (DSM-IV) (American Psychiatric Association 1994)

[6] International Statistical Classification of Diseases and Related Health Problems (ICD-10) (World Health Organisation 1992)

[7] Mental Health Act 1983 (As amended)

[8] Higgins, J. (1995) Crime and mental disorder: II. Forensic aspects of psychiatric disorder. In Seminars in Practical Forensic Psychiatry.(eds. D, Chiswick & R. Cope). London: Gaskell.

[9] Managing dangerous people with severe personality disorder: proposals for policy development. Home Office, Department of Health (1999)

[10] Homicide Act 1957 s2(1).

[11] HM Advocate v Savage (1923) JC 49 at 51.

[12] Scottish Law Commission (2004) Report on Insanity and Diminished Responsibility, Report No. 195

[13] Carraher v HM Advocate (1946) JC 108

[14] Galbraith v HM Advocate (2002) JC 1.

[15] Scottish Law Commission (2004) Report on Insanity and Diminished Responsibility, Report No. 195

[16] P.Fairall & P.W Johnston (1987) Antisocial personality disorder and the insanity defence. 11 Criminal Law Journal 78-95

[17] Law Reform Commission of Western Australia – Review of the Law of Homicide: Final Report (2007)

[18] Durham v US 214 F 2d 847, 874-875 (DC Cir 1954)

[19] The American Law Institute Test – Model Penal Code, Proposed Draft, Philadelphia (1962) s4.01, p66

[20] R. Slovenko: Psychiatry in Law/Law in Psychiatry (ed 2). New York: Routledge, 2009

[21] R.Slovenko (2009) Personality disorders and criminal law. 37 Journal of the American Academy of Psychiatry and the Law 182-185

[22] State v. Galloway, 628 A.2d 735 (N.J. 1993)

[23] Ore. Rev. Stat. § 161.295(2) (1983)

[24] S. Sarkar (2002) A British psychiatrist objects to the dangerous and severe personality disorder proposals. 30 Journal of the American Academy of Psychiatry and the Law 6-9

[25] Hutchison Reid v United Kingdom [2003] 37 EHRR 211, ECtHR

[26] Hutchison Reid v United Kingdom [2003] 37 EHRR 211, ECtHR

[27] Mental Health Commission Ireland. Forensic Mental Health Services for Adults in Ireland: Discussion Paper (2006)

[28] Office of the Chief Psychiatrist (WA) (2004) Report on Alternative Powers in Relation to Persons Diagnosed with Dangerous and Severe Personality Disorder.

[29] Williams CR, ‘Development and Change in Insanity and Related Defences’ (2000) 24 Melbourne University Law Review 711, 730

[30] Office of the Chief Psychiatrist (WA) (2004) Report on Alternative Powers in Relation to Persons Diagnosed with Dangerous and Severe Personality Disorder.

[31] Managing Dangerous People with Severe Personality Disorder: Proposals for Policy Development. London: Home Office/Department of Health, TSO, 1999