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Theories , Punishment and Law

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Introduction

What is the Dangerous Severe Personality Disorder (DSPD) Programme? Dangerous Severe Personality Disorder is a term to describe a small group of people with a severe personality disorder who, because of their disorder pose a significant risk of serious harm to the public. The government introduced the term DSPD in a consultation paper 'Managing Dangerous People with Severe Personality Disorder' in 1999, which proposed how to detain and treat a small minority of mentally disordered offenders. The main objectives of the governments proposals are to ensure that dangerous people with DSPD are kept in detention for as long as they pose a high risk to others, "Public protection is the central aim of the programme,"1and to modernize the NHS by providing a high quality service to enable them to deal with the consequences of their disorder, reduce their risk to others and can work towards successful re-integration into the community. In England and Wales three are 2,400 people thought to have DSPD. The Home Office estimates that, 1,400 are already in prison; a further 400 are patients in high security psychiatric hospitals with between 300-600 in the community, about 98% of those with DSPD are believed to be men2. Studies suggest that hardly any women perhaps even none, meet the criteria3. The DSPD programme is piloted by the Home Office, Department of Health and the Prison Service. Although DSPD is not a medical diagnosis, people assessed for the programme will have committed a violent or sexual crime and been detained under the Criminal Justice system or current Mental Health Legislation. ...read more.

Middle

The case of Winterwarp v The Netherlands8 developed criteria for avoiding arbitrariness and thus ensuring the lawfulness of the detention of persons of an unsound mind. Lawfulness under article 59 requires the detention must be necessary and proportionate. This case also declared that for the detention to be justified by Article 5.1 (e)10 the mental disorder must be established by an objective medical opinion; it must also be to the extent that requires compulsory confinement, and continued detention will only be valid if the mental disorder persists. 'Nevertheless, the judgment falls short of suggesting that the treatment is an important feature of the detention of these kinds of mental patients'11. Other essential characteristics of art 5 protection which apply to those with severe personality disorders, prisoners and mental patients is that there should be regular review, by a judicial body, of any period of indetrement detention to establish weather, it is still necessary and proportionate;(Thynne Gunnell and Wilson v UK12) also the conditions of the detention must be appropriate to its purpose. The ECtHR13 has never considered a well thought out argument on the detention of those with personality disorders where this is not based on proven recidivism. Objective medical opinion will normally entail a confirmed pattern of prior conduct; and if this does not exist it will make it much more difficult, if not impossible, to reach the threshold test for justifying deprivation of liberty. It is important that mental health tribunals review conditions; of patients compulsorily detained to ensure continuing detention is justified. ...read more.

Conclusion

In all the above cases the court held there cases did not amount to 'inhumane' and 'degrading' treatment. Another possible contravention under article 328 is 'forced treatment' i.e. stomach washout for overdose, forced feeding for anorexia etc. In Herczegtalvy v Austria29, the patient collapsed after a hunger strike in prison, he was forced fed, received neuroleptics against his will, was isolated and handcuffed to a security bed Originally it was considered the way he was treated constituted inhuman and degrading treatment which contribute to the worsening of the patients condition. However the court implied that the medical necessity existed and ruled article 3 was not infringement. The crucial element for it to be a breach is whether the treatment was justified by medical necessity. 1 Thursday, 6 May, 2004 www.bbc.co.uk 2 http://society.guardian.co.uk/mentalhealth/story/0,8150,684845,00.html 3 http://Communitycare.co.uk/Article.html. 4 http://www.dspdprogramme.gov.uk 5 Guardian, John Carvel and Lucy ward Wednesday June 26 2002 6 http://www.critpsynet.freeuk.com/DSPDFinal.htm 7 http://www.justice.org.uk/images/pdfs/4managi.pdf 8 24th October [1979] 2 EHHR 387 9 Human Rights Act 1999 10 Human Rights Act 1999 11 http://www.justice.org.uk/images/pdfs/4managi.pdf 12 25 October (1990) 13 European Court of Human Rights 14 [1997] EHRLR CD 196 15 ECHR Report of judgment and decisions [1998] EHRLR 777 16 Jamie Wilson Wednesday 24th April 2002, The Guardian 17 Human Rights Act 1999 18 [1990] 17 EHRR 30 19 Human Rights Act 1999 20 [1997] EHRLR 436 21 Mental Health Act 1983 22 Human Rights Act 1999 23 1983 24 http://bmj.bmjjournals.com/cgi/content/full/322/7290/848 25 1983 26 [1980] 3 EHRR 27 [2003] EWCA Civ 1036, ICLR, Law Commission Journal 28 Human Rights Act 1999 29 [1993] 15 EHHR 437 ?? ?? ?? ?? L0250365 LW2051 Theories of Punishment and Sentencing 1 ...read more.

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