Personality disorder and the law
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Personality disorder and the law

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  • 1. Princeton University Law Journal, Volume III, Issue 2, Spring 1999 PSYCHOPATHY, THE LAW AND INDIVIDUAL RIGHTS Anselm EldergillThe Home Office and the Department of Health are at present What then is the evidence which suggests that people said toconsidering the introduction of new legislation aimed at be psychopaths have a disease or disorder which requiresprotecting the public from individuals with severely disturbed medical attention? Personality is what makes one individualpersonalities. Previous schemes of preventive detention have different from another; the whole system of relativelyended in failure, and the dilemma facing the present permanent abilities and tendencies distinctive of a givenGovernment is how to identify and contain the dangerous individuals brain. Although limited development of thewithout endangering civil liberties. human personality may be caused by an innate structural defect, such as mental retardation, this is rare. No one hasThe question, "what should the law do about this state of demonstrated any injury or disease which accounts for theaffairs?" is simply another way of asking, "what should we characteristics of those with highly dissocial personalities (ordo through our Parliament?" Logically, the first issue to be those of their counterparts: empathic, law-abiding citizens).addressed is whether those people presently categorised as Although this is also the case with schizophrenia, there arepsychopaths are mentally disordered: if not, they have no important differences. Schizophrenia is a process whichplace in a hospital and there can be no justification for without intervention develops and interferes with the body indetaining them there. Related to this is the question of certain characteristic ways. It results in a markedwhether they are suitable for, or deserving of, punishment. deterioration in the individuals level of mental functioning,Should their mental states entitle them to more or less lenient and this implies significant, corresponding, structural ortreatment than that ordinarily meted out for the offences they physiological changes.commit?There has never been any agreement about whether persons If the brains of people classed as psychopaths are notdescribed as psychopaths should be dealt with under mental diseased are they, therefore, normal? That depends upon howhealth legislation. It has variously been argued that persons one defines what is normal. The mental state and behaviourwith disturbed personalities who commit violent or anti- of an individual said to have a personality disorder issocial acts are nothing more or less than what used to be abnormal, in the sense that it deviates from the social norm,called evil people; that there is no such thing as wicked but normal in relation to his own individual norm: that is, it ispeople, only people who are mentally sick; and that such consistent with what is known about his development andpersons would be mad if not bad, crime being an outlet into functioning over time. Here then, the individual is onlywhich their unsound tendencies are discharged. abnormal by reference to a social norm and such a deviation cannot be said to constitute a disease, because mere socialThese different opinions are associated with different ideas deviation is not evidence of biological disorder. This requiresabout responsibility and free will, and the extent to which evidence of injury or deviation from the individual norm. Ifsome peoples personalities do not enable them to refrain there is no evidence of either then one is simply confusingfrom anti-social conduct. For those who are concerned that individuality with ill-health: treating as biologically abnormalthe law concerning human liberty should be governed by an undiseased, uninjured, creature living its natural life, sosome moral framework, and not merely be arbitrary and self- that medicines are pesticides.serving, such concerns merit careful consideration. How thencan one respond to them? It can be said that our conscious The motivation for this social control is transparent. Peoplethinking and deciding are embodied in the workings of our want to live in a cultivated society, and they cultivate societybrains, and consequently our behaviour is determined by our in much the same way that they cultivate nature in theirthinking and choosing. That, while determinism provides an gardens. This involves eradicating disease in the garden, butexplanation for our choices and actions, it is humans beings, also weeding it and controlling pests, that is containing ornot deterministic rules, that cause events. That the fact that an destroying organisms which are doing nothing more thanindividuals personality, as determined by his genes and expressing their natures. There is nothing unique in this, forprevious experiences, dictates the choice he makes does not the same power is claimed over animals and unborn life, andmean that he has not chosen between alternatives. And whilst most other things that interfere with personal survival ornot everyone has the same capacity to eschew the wrong, fulfilment. But it is why CS Lewis wrote that, To be curedthis does not preclude us from judging their actions, because against ones will and cured of states which we may notwhether an action is harmful is not affected by its regard as disease is to be put on a level with those who haveantecedents. In short, our conscious decisions and actions are not yet reached the age of reason or those who never will; tomatters of personal choice: each chooses what suits his be classed with infants, imbeciles and domestic animals. Butpersonality, not that of others, and must be accountable to to be punished ... because we have deserved it ... is to beothers for that choice. The counterpart of freedom and treated as a human person made in Gods image.autonomy is accountability for acts freely and autonomouslydone. 1
  • 2. Whether or not one accepts this, the legal presumption in protected from serious harm; and a jury is satisfied beyond allfavour of liberty means that it is for psychiatrists to establish reasonable doubt that he will commit further serious violencethat a certain manner of thinking or behaving is a form of unless further detained. Those who observe societys lawsmental disorder which is sufficiently severe to justify giving may reasonably expect to be protected from such people, asthem powers of compulsory detention and treatment. This indeed they generally are at present. If the lesser of two evilscannot be demonstrated. The evidence suggests that present is always to be chosen, this seems to be the lesser of them,medical interventions have, like liberal prison regimes, the and a reasonable balance of the different legitimate interests.reformation of the individual as their aim. This isunacceptable because the proper function of medical science What cannot be justified as a lesser evil is any system whichand practice is to treat individual suffering attributable to permits the preventive detention of non-offenders whosedisease or injury, not to alleviate the suffering of society; and, dangerousness has not been demonstrated. It would be unjustin the field of mental health, to treat those diseases or injuries to detain them for crimes they have not committed and arewhich interfere with the development or expression of an actuarially unlikely to commit. It would be immoral, becauseindividuals personality, not to reform his personality by the old maxim that you shall not do evil that good may comereference to some social, or political, norm. is applicable in law as well as in morals. It would be inutile, because any impact on the rates at which serious offences areIf medical intervention is inappropriate, how tolerant should committed is likely to be marginal. There is little gain insociety be of violence, and of individuals who seem to have a detaining a handful of notionally dangerous civilians eachpronounced, natural, inclination towards violent acts? The year when guilt in criminal proceedings must be provedview presented here has been that those persons presently beyond all reasonable doubt, because every year we releasedealt with as psychopaths are not mentally disordered, and without penalty thousands of rapists and other violentthat they should be excluded from mental health legislation. offenders. Lastly, it would be unwise. For, when the publicBelieving that, there is no contradiction or inhumanity in perceives that they are no safer despite such a reform, ratherholding that they should be imprisoned or detained if their than realise and learn from their folly, they will demand thatoffence and forensic history merits that. However, if this basic freedoms be further curtailed and the penalties madeargument is ever accepted by Parliament, it will be necessary more severe. Such demands misunderstand the functions ofto confer on courts alternative powers to deal with violent or the law and its natural limits. It is not within the power of thesexual offenders, and in particular that group of persons for law, given the venality of the times, to cleanse the Augeanwhom hospitalization will no longer be an option. stable. As Montesquieu observed, in moderate governments, the love of ones country, shame, and the fear of blame areParadoxically, the problem may best be dealt with in a restraining motives, capable of preventing a multitude ofmanner similar to that already used in the criminal courts to crimes. Here, the greatest punishment of a bad action istry issues of insanity and unfitness to plead. The procedure conviction ... In those states a good legislator is ... morewould be as follows. If an offender who is not mentally ill or attentive to inspire good morals than to inflict penalties. Onlyimpaired is convicted before the Crown Court of a sexual or those who know the cost but not the value of our freedomsviolent offence and, in order to protect the public from would embark upon such a journey. Nothing which has greatserious harm, he is imprisoned for a term which exceeds that value is without cost, and the value of anything is what one iscommensurate with the offence, the court may empanel a jury prepared to sacrifice for it. The value attached to trial byto determine the following issue: whether they are satisfied ones peers is the financial cost of the jury system; the valuebeyond all reasonable doubt that the defendant is a person of justice is demonstrated by a willingness to see the guiltywho, if released at the end of the sentence, will commit an go free rather than risk convicting the innocent; and the valueoffence involving sexual assault or the infliction of grievous of liberty is demonstrated by stoically bearing the many evilsbodily harm. If the jury are satisfied, the court shall also which liberty permits. If the defence of these freedoms wasmake a secure accommodation order, directing that he be worth the sacrifice of millions during two wars then, unlessdetained in civilian accommodation after his sentence society has become wholly degraded, it must withstand theexpires, until the Home Secretary or the Lifers Panel is death of a few during peacetime. Such a scheme has no utilitysatisfied that the safety of others no longer requires this. which can justify its innate immorality and the infliction of such great injustice; and it would be highly imprudent toUnder such a scheme, therefore, a person will only be liable interfere with public liberties in the name of public safetyto indefinite detention if it is established beyond all when the necessity of such a scheme has not been firmlyreasonable doubt that he has committed a violent or sexual established.offence; a judge is satisfied that the public need to be ABSTRACT 2