CJMCEMKALraiCEHfflHS

PSYCHIATRY AND THE LAWWhat is meant by 'Men-tal Disorder' and allthose other terms?

Christopher Cordess

The terminologies and, where they exist,the definitions for the various types ofmental disorder far from being preciseare frequently diverse; they change overtime and are variously interpreted.Particular difficulties are encountered inrelation to the criminal justice systemwhere the different terms used may beconfusing to the layman and are notinfrequently disputed by the professionals- be they lawyer, psychiatrist, probationofficer, social worker, nurse or thoseworking in other related capacities.Questions which are the main or ultimateconcern of the law, and informationconveyed by clinical diagnostic labelsand descriptions fit together onlyimprecisely. This can produce frankpolarisation and impasse, illustrated bythe caricature of the psychiatrist in courtprotesting that an offender suffers from'no formal or functional mental illness'in the face of the concerted views ofothers that his behaviour is 'crazy' orbespeaks 'madness'.

In part, this scenario may result froman admirable concern by the psychiatristtowards clinical precision andnosological (categorising) rigour: we allneed to be vigilant to the dangers of the'psychiatrisation' of all eccentric oroffensive behaviour. Such a trend appearsto be on the increase. Bowden (1995),for example, describes how psychiatricservices in Britain, as a consequence ofrecent political manoeuvring, have beenforced into the position of being seen tobe 'responsible' for the prevention ofmuch of the increasing violencecommitted by the psychologicallyunstable, alienated or distressed:psychiatrists are in danger of being heldresponsible "for all the vagaries of humanbehaviour".

In part, however, many of the disputesabout the mental state of violent andanti-social offender reflect genuineconceptual difficulties. Forexample, wellknown and well rehearsed dispute hingesaround the term 'Personality Disorder',

which is ever a contentious term. Somepsychiatrists will even use the term inopposition to treatable mental illness, inorder to exclude an unwanted client orpatient from psychiatric involvement,["this man does not suffer from anymental illness, but has a personalitydisorder, I have therefore discharged himfrom my clinic"]. However, forensicpsychiatrists - albeit holding a range ofopinion amongst themselves - cannotavoid the conceptual, clinical andmanagement difficulties posed by theantisocial personality disordered patient,or those with so-called borderline orsevere narcissistic personality disorder,who frequently clash with society andthe law.

Psychiatrists are in danger ofbeing held responsible "for allthe vagaries of humanbehaviour"

These matters are complex and wideranging: the purpose of this article is toprovide some outline clarification ofsome of the different terminologies usedwhere psychiatry and legal mattersoverlap, not infrequently tussle, and atothers come to a mutual compromise. Itattempts in no way to be comprehensive:for example, I have not included anyelaboration of the changing terminologyused for mental handicap, mentalimpairment, or learning disability whichare largely synonymous but reflectpolitical correctness and linguisticfashion. These may provide the subjectfor a future article.

A glossary of terms• 'Mental Disorder' is thecomprehensive term used in the MentalHealth Acts of 1959 and 1983, underwhich four sub-categories are described:1. Mental illness, 2. Arrested orincomplete development of mind (mentalimpairment or severe mentalimpairment), 3. Psychopathic disorder,4. Any other disorder or disability ofmind.• Mental Illness is not defined withinthe Mental Health Act (1983), butaccording to Butler (Home Office andDepartment of Health and DHSS, 1975)denotes' a disorder which has not alwaysexisted in the patient but has developed

as a condition overlying the sufferer'susual personality'. Generally itencompasses schizophrenia, manic-depressive disorder, and other psychoses,and is (relatively speaking) not usuallythe focus of dispute.• 'Psychopathic disorder' means 'apersistent disorder or disability of mind(whether or not including significantimpairment of intelligence) which resultsin abnormally aggressive or seriouslyirresponsible conduct on the part of theperson concerned'. Psychopathicdisorder as defined clinically is differentto this legal definition: it overlaps withwhat used to be called socio-pathicdisorder in the United States and withantisocial personality disorder asdescribed in the InternationalClassification of Diseases (ICD-10) andthe Diagnostic and Statistical Manual ofMental Disorders (DSM-IV).

• 'Abnormality of Mind' is the legalterm used in the Homicide Act (1957). Itis not defined and is open to wideinterpretation (Cordess, 1985): it is finallyfor the jury to decide upon having heardexpert opinion. It is not necessarily to beconfined to the narrower usage of' mentaldisorder' or 'mental illness', the termsused in the Mental Health Act (1983) ofwhich it is quite independent.

• 'Disease of the mind' is also a legalterm and not a psychiatric one, used inthe Criminal Procedure (Insanity) Act(1964, Section 1) otherwise known as'The Insanity Defence' the 'specialverdict' or the McNaughton Rules. Adisease which produces a malfunctioningof the mind may, in law, constitute adisease of the mind.• 'Under Disability' is a term confinedto the Criminal Procedure (Insanity) Act(1964, Section 4) and is synonymouswith 'Unfitness to Plead'. Whereas thisusually had the consequence of detentionwithout limit of time, most often in aspecial hospital, judges now havediscretion with regard to placement andduration under the Criminal Procedure(Insanity and Unfitness to Plead) Act(1991).

• 'Mental Condition'is the term usedin relation to probation orders with arequirement that the offender submit topsychiatric treatment. The court, underSection 2 of the Powers of CriminalCourts Act (1973), needs to be satisfied,on the evidence of an approved doctor.

CJM No. 21 . Autumn 95

CJMCRMMJIME MATHS

PSYCHIATRY AND THE LAWthat 'the mental condition is such asrequires and may be susceptible totreatment, but is not such as to warrantdetention in hospital'. The CriminalJustice Act (1991) did not change thissubstantially except to allow greaterpowers of treatment for sexual offendersand those dependent upon drugs andalcohol.• 'Whilst the balance of the mindwas disturbed' is the phraseology usedwithin the Infanticide Act (1938) S.l(l)."Where a woman by any wilful act oromission causes the death of her childbeing a child under the age of twelvemonths, but at the time of the act oromission the balance of her mind wasdisturbed by reason of her not havingfully recovered from the effect of givingbirth to the child or by reason of theeffect of lactation consequent upon thebirth of the child, then, notwithstanding

that the circumstances were such that butfor this Act the offence would haveamounted to murder, she shall be guiltyof [an offence], to wit of infanticide, andmay for such offence be dealt with andpunished as if she had been guilty of theoffence of manslaughter of the child".This Act has been much criticised sinceit is based upon the erroneous assumptionthat mental illness is the main 'cause' ofinfanticide: it rarely is. The ButlerCommittee reasoned that the Act wassuperfluous since the Homicide Act couldcover women charged with infanticide,but other learned bodies have disagreed.

The fact that the terminologies at theinterface of psychiatry and the law arelargely ill-defined, or not defined at all,may be seen as confusing andunnecessarily complicating. They do,however, have the great merit that theygive lee-way for interpretation which

frequently has its own advantage in theindividual case. _

ReferencesBowden, P(1995) 'Confidential Inquiryinto Homicides and Suicides by Mentally111 People; A Preliminary Report onHomicide'. Editorial. PsychiatricBulletin, 19,65-66Cordess, C (1985) 'The Homicide Act:origins, anomalies and proposals forchange'. Bulletin of the Royal College ofPsychiatrists, 9, 245-246Home Office and Department of Healthand DSS (1975) Report of the Committeeon Mentally Abnormal Offenders (ButlerCommittee). Cmnd 6244, HMSO,London.

Christopher Cordess is ConsultantForensic Psychiatrist, West LondonHealthcare NHS Trust.

MENTALLY DISORDEREDOFFENDERS AND THE NHS

The Butler and the Glancy reports in the mid 70sdrew attention to the shortage of beds in the NHSoffering treatment in security below the high secu-rity available in the special hospitals. These reportsled to the creation of a centrally funded develop-ment programme to ensure the provision of me-dium secure beds. After a slow start, the number ofpurpose built medium secure beds is now increas-ing rapidly (fig 1). Additionally, health authoritiesand independent providers are investing their ownfunds in the development of secure care. As a resultthe NHS expects by December 1996 to have avail-able to it some 1,600 high security, 2,200 mediumsecurity and 2,000 low security beds.

Together with the great expansion of court assess-ment and diversion schemes of which there arenow estimated to be at least 100, this has led to manymore mentally disordered offenders receiving hos-pital care. Admissions under s37 or s37/41 of theMental Health Act have increased by 28% between1990 and 1993 and transfers to the NHS from prisonunder s47 or s48 have doubled over the same pe-riod. The number awaiting admission to a securebed is now falling steadily, (fig 2)

Dr John Reed, Department of Health.

Fig. 1

MEDIUM SECURE PSYCHIATRIC BEDS

in England from central capital programme

1250

1975 1977 1979 1981 1983 1985 1987 1991 199419951996Dept of Health

Fig. 2

PATIENTS AWAITING ADMISSION

to medium secure beds

Nov 1993 Jan 1994 Apr 1994 Jun 1994 Sept 1994 Nov 1994 Apr 1995

Source: Royal College of Psychiatrists

CM No. 21. Autumn 95