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Ovid: Oxford Handbook of Psychiatry

Editors: Semple, David; Smyth, Roger; Burns, Jonathan; Darjee, Rajan; McIntosh, Andrew Title: Oxford Handbook of Psychiatry, 1st Edition Copyright ©2005 Oxford University Press > Table of Contents > Chapter 15 – Forensic psychiatry Chapter 15 Forensic psychiatry P.624
Introduction ‘Forensic’ comes from the latin ‘forensis’ (the forum or court). The scope of forensic psychiatry can be broadly defined as those areas where psychiatry interacts with the law. Although all psychiatrists may be involved, from time to time, in forensic work, forensic psychiatrists in the UK are specifically involved in the assessment and management of mentally disordered offenders and other patients with mental disorders who are, or have been potentially or actually, violent. Provision of forensic services varies across the country and forensic psychiatrists work in a variety of settings (e.g. high-security hospitals; medium-secure units; low-secure wards and sometimes open wards; outpatients, day hospitals, and within community teams; prisons). This section on forensic psychiatry concentrates on mentally disordered offenders. A separate section (Legal and ethical issues) covers mental health legislation and other non-criminal legal matters. The practice of forensic psychiatry is dependent on legislation, the criminal justice system, and local service provision. Hence, although some aspects have fairly wide applicability (e.g. the relationship between mental disorder and offending), many aspects (e.g. legal provisions for mentally disordered offenders) are specific to a particular jurisdiction. We have tried to cover the main legal jurisdictions of the British Isles (England and Wales, Scotland, Northern Ireland, and the Republic of Ireland) in some detail. (The names of these jurisdictions will be abbreviated to E&W, Scot, NI, and RoI respectively.) The other problem with legislation is that it changes over time, and as we write this we are in a time of particular upheaval.

  • In England and Wales, the Mental Health Bill 2002 and Mental Incapacity Bill 2003 have been published. The former is the subject of much controversy and at the time of writing seems to have been stalled.
  • In Scotland, the Mental Health (Care and Treatment) (Scot) Act 2003 has been passed, and will probably be implemented in 2005. It replaces the Mental Health (Scot) Act 1984 and amends the provisions for mentally disordered offenders under the Criminal Procedure (Scot) Act 1995. The Criminal Justice (Scot) Act 2003 also amends the latter, but we await its implementation. The Adults with Incapacity (Scot) Act 2000 is in the early stages of implementation.
  • In Northern Ireland, reform of the Mental Health (NI) Order 1986 and services for mentally disordered offenders are currently under consideration.
  • In the Republic of Ireland, the Mental Health Act 2001 has replaced its predecessor dating back to 1945, and is currently being implemented. Procedures for mentally disordered offenders are set to change with the publication of the Criminal Law (Insanity) Bill 2002.

With all these changes it is difficult to present useful up-to-date information. In this section, provisions for mentally disordered offenders are those contained in the most recently passed Acts. Bills may be mentioned, but it is unclear at present what these will be like when they become Acts. The information presented is therefore up-to-date at the time of writing, but may be superseded relatively soon. P.625
The following abbreviations are used to refer to legislation:

MHA 1983 Mental Health Act 1983
MH(NI)O 1986 Mental Health (Northern Ireland) Order 1986
MH(CT)(S)A 2003 Mental Health (Care and Treatment) (Scotland) Act 2003
CP(S)A 1995 Criminal Procedure (Scotland) Act 1995

Other legislation will be referred to in full, or abbreviations used in tables or boxes will be explained where they arise. P.626
The criminal justice system1,2,3 The criminal justice process The following outlines the chain of events that may happen following the commission of an offence: Offence reported to police → police record offence → police investigate offence → police find suspect → police charge suspect → report to prosecutor → decision of prosecutor to prosecute → initial court appearance (remanded on bail or in custody) → trial → conviction → sentence (community, prison, fine, discharge, mental health disposal). Most offenders will not go through all these stages (e.g. by pleading guilty an offender may go from initial court appearance directly to sentencing). At various stages there may be specific provisions for mentally disordered offenders (see p. 668 for overview and pp. 670, 671 for details). Prosecution E&W Following report by police Crown Prosecution Service decides whether individual should be prosecuted; headed by Director of Public Prosecutions; service divided into areas and further into branches each headed by Chief Crown Prosecutor. Some minor offences prosecuted by police. Scot Lord Advocate responsible for prosecuting serious crimes; heads the Crown Office in Edinburgh; most of work carried out by ‘advocates-depute’. Procurators fiscal prosecute less serious crime locally. NI Department of the Director of Public Prosecutions for NI. Director discharges his functions under the superintendence of the Attorney General. RoI Director of Public Prosecutions responsible for prosecution. Criminal Courts E&W Magistrates’ Court All adult defendants appear here first—decision made to remand on bail or in custody; hear all summary (minor) cases and some indictable (serious cases); maximum sentence 6 months’ imprisonment; magistrates are mainly lay justices of the peace with some legally qualified stipendiary magistrates in some urban areas. Crown Court Deal with more serious indictable offences—cases are committed by the Magistrates Court for trail &/or sentencing; deal with appeals from Magistrates Court; 6 regions or ‘circuits’; trials heard by judge and jury (12 adults); sentencing by judge. Youth Court Juvenile offenders (aged 10–17 years); magistrates with special training hear cases; serious cases committed to Crown Court. Court of Appeal (Criminal Division) Usually 3 judges; hears appeals by defendant against conviction or sentence; hears appeals by the Crown against sentence; can increase or reduce sentence. Queen’s Bench Division of the High Court (Divisional Court) Appeals on points of law and procedure. P.627
House of Lords Hears appeals against decisions of the above court; Law Lords deliver opinions; only points of law of general public importance. Scot District Court Minor cases heard by lay justices of peace (maximum sentence 60 days’ imprisonment) or (only in Glasgow) stipendiary magistrates (similar powers to sheriff). Sheriff Court 6 sheriffdoms, each headed by Sheriff Principal; summary (sheriff alone) or some solemn (sheriff and jury) cases heard; maximum sentence 3 months’ (summary) or 3 years’ (solemn) imprisonment. High Court of Justiciary (Criminal Trials) Hears serious cases; judge and jury (15 adults); unlimited sentencing powers; Edinburgh, Glasgow, and on circuit in other towns and cities. High Court of Justiciary (Court of Criminal Appeal) Cases heard by 3 or more judges; no appeal to House of Lords. NI Essentially as for E&W. Diplock Courts (judge sitting alone) for indictable scheduled (mainly terrorist) cases. RoI District Court Legally qualified justices; summary (up to 6 months’ imprisonment) and some indictable (up to 12 months’ imprisonment) cases heard. Circuit Court Cases heard by judge and jury; indictable cases and appeals from District Court. Central Criminal Court (High Court) Cases heard by High Court judge and jury; serious indictable cases Special Criminal Court Only scheduled offences (mainly terrorist cases); cases heard by 3 judges. Court of Criminal Appeal 1 justice of the Supreme Court and 2 of the High Court hear appeals from 3 above courts. Supreme Court Chief Justice and High Court justices hear appeals from the above court. References 1 Grounds A (1995) The criminal justice system. In Seminars in Practical Forensic Psychiatry (eds. Chiswick D and Cope R). London: Gaskell. 2 Bailey S (1990) Lawyers, legislation, the administration of the law and legal aid. In Principles and Practice of Forensic Psychiatry (eds. Bluglass R and Bowden P). Edinburgh: Churchill Livingstone. 3 Nicholson G (1990) The courts and law in Scotland. In Principles and Practice of Forensic Psychiatry (eds. Bluglass R and Bowden P). Edinburgh: Churchill Livingstone. P.628
Crime1,2,3,4 A crime is an act that is capable of being followed by criminal proceedings. It is a man-made concept defined by the rules of the state and modified by legislation, therefore there are differences between countries and across time in the same country. Age of criminal responsibility: England, Wales, and NI-10 years; Scot-8 years; RoI-7 years. Classification of crime

  • Crimes against the person Offences of interpersonal violence: minor assault, homicide; sexual offences: indecent exposure, rape; robbery
  • Crimes of dishonesty Burglary; theft and handling stolen goods; fraud and forgery
  • Criminal damage Property damage; arson
  • Car crime
  • Drug crime Use, possession, supplying
  • Other

Crime rates The table on p.00 shows the annual number of officially recorded crimes in the countries of the British Isles. From the British Crime Survey only about half of crime is reported to the police (and officially recorded), of which between 25–50% is cleared up by the police.

  • Theft, burglary, criminal damage, and car crime are the most common.
  • Violent crimes are uncommon; sex offences and robbery are rare.

Who commits crimes? Young males aged 10–20 yrs account for 50% of crime. Females -20% of offenders. Peak age: males 14–17 yrs; females 12–15 yrs. What are the ‘causes’ of crime? The following factors are associated with offending. They interact, and causality cannot be assumed.

  • Genetic factors MZ more concordant than DZ twins for officially recorded and self-reported offending. In adoption studies children are more similar to biological than adoptive parents.
  • Intelligence Low intelligence associated with offending.
  • Personality Impulsivity and lack of empathy.
  • Family Childhood factors linked to later offending: poor parental supervision, erratic/harsh discipline, marital disharmony and parental separation, parental rejection, low parental involvement, antisocial parents, and large family size. Offenders who marry non-offending spouses reduce their rate of offending.
  • Peers Most delinquent acts are committed with others. Offending with others versus alone decreases with age. Close relationship between delinquent activities of friends. Offenders are unpopular in non-offending groups but popular in offending groups.
  • P.629

  • Schools No clear evidence that school factors influence offending. The following are not related to delinquency rates: age and state of buildings, number of children, amount of space, pupil/teacher ratio, academic emphasis, teacher turnover, number of outings. High punishment and low praise associated with delinquency—but is this cause or effect? Alternative placements and approaches to disruptive and delinquent pupils may reduce delinquency compared with mainstream education.
  • Socio-economic deprivation Poverty and poor housing associated with later offending. Employment protective.
  • Ethnicity Higher rates of offending in Afro-caribbean than in white males. Lower rates in Asian males. Is association due to socio-economic deprivation, discrimination, different rates of arrest?
  • Alcohol and substance misuse See mental disorder and offending (p. 645).

Crime statistics for the British Isles The following table is based on offences officially recorded by the police for 2001 (Scot and RoI) and 2001–2 (E&W and NI). Different jurisdictions use different categories and definitions so comparisons between jurisdictions should be made very cautiously. Numbers of crimes with percentage of total for that jurisdiction in parentheses.

  E&W Scot NI RoI
Violence against the person 650154 19523 26104 3876
(11.7) (4.6) (18.8) (4.5)
Sexual offences 49612 5987 1431 1939
(0.9) (1.4) (1.0) (2.2)
Robbery 121375 4228 2222 2880
(2.2) (1.0) (1.6) (3.3)
Theft 2267055 169454 41720 45652
(41.0) (40.0) (30.0) (52.7)
Burglary 878535 44868 17143 24015
(15.9) (10.7) (12.4) (27.7)
Fraud and forgery 317399 17410 8619 3492
(5.7) (4.1) (6.2) (4.0)
Criminal damage 1064470 94924 39953 1407
(19.3) (22.5) (28.8) (1.6)*
Drug offences 121332 36175 1108 2380
(2.2) (8.6) (0.8) (2.7)
TOTAL 5527082 421093 138786 86663
(100.0) (100.0) (100.0) (100.0)
* Only arson for RoI

References 1 Simmons J (2002) Crime in England and Wales 2001/2002. London: Home Office. 2 Scottish Executive (2002) Recorded Crime in Scotland 2001. Statistical Bulletin—Criminal Justice Series (CrJ/2002/1). Edinburgh: Scottish Executive. 3 NI Office (2002) A Commentary on Northern Ireland Crime Statistics 2001. Belfast: NI Office, Statistics and Research Branch. 4 An Garda Siochana (2002) Year 2001 Crime Statistics(Annual Report). Dublin: An Garda Siochana. P.630
Homicide Definition Homicide is the killing of a person by another. Types of homicide Legal classification:

  • ‘Lawful’: Justifiable (e.g. on behalf of State); excusable (e.g. accident).
  • ‘Unlawful’: Murder— mandatory life sentence; manslaughter/culpable homicide discretion in sentencing (imprisonment, community, mental health disposal, discharge); infanticide— (not in Scot) sentencing as for manslaughter; death by dangerous driving.

The traditional ‘psychiatric’ classification:

  • ‘Normal’ homicides—no psychiatric disorder
  • ‘Abnormal’ homicides—psychiatric disorder

However, this is determined by whether the individual was found insane, convicted of infanticide, or found to be of diminished responsibility—therefore it is really a legal classification. Homicide rates 882 recorded homicides in E&W in 2001–2, 106 in Scot (2001), 55 in NI (2001–2), 74 in RoI (2001). Rates per million population per year for 1997–9: E&W 15, Scot 20, NI 31, RoI 13.5, European Union average 17.0, USA 62.6, South Africa 564.9. Victims of homicide Usually male (70%); 60–80% known to offender; 30–50% related or partner; 15% children (highest risk under 1 year old) usually killed by parent (75%); less than 5% parent (matricide > patricide); 40–50% of females killed by partner or ex-partner; males more commonly killed by acquaintances (25% E&W, 60% Scot) and strangers (37% E&W, 20% Scot). Perpetrators of homicide Predominantly male (80–90%); using sharp implement (most common 30–40%), kicking/punching, strangulation (more common with female victims), or blunt force; anger, jealousy, revenge, or threat of separation are usual motives; often involving alcohol, or sometimes drugs. Mental disorder and homicide Minority of homicide offenders are mentally disordered. Alcohol and drug dependence most common, then personality disorder. Schizophrenia, delusional disorder, and depression may be relevant in a few cases. E&W: 5–10% of cases result in diminished responsibility, infanticide, or insanity; half of these result in a hospital disposal. Scot: 4% of cases result in hospital disposal. Psychiatric assessment in homicide cases As with other offences need to assess mental state both currently and at time of offence. In most jurisdictions murder carries a mandatory punishment (life imprisonment in the main jurisdictions of the British Isles). To achieve a hospital disposal the offender has to be found insane or of diminished responsibility (does not apply in Ireland). See p. 678. Homicide inquiries In E&W independent inquiries following homicides committed by people in contact with mental health services have been mandatory since 1994. They have been criticized for being inefficient, P.631
costly, misleading, unsystematic, and unjust. A systematic national approach has been made in the National Confidential Inquiry1. The main issues to be highlighted include: need for training in risk assessment and management; better means of documentation and recording, particularly risk information; addressing non-compliance and disengagement from services; managing comorbid alcohol and drug misuse; access to help for families at times of concern; appropriate use of mental health legislation; policies on management of personality disorder; addressing stigma; culture of blame. Legal aspects of homicide in different jurisdictions E&W Murder Offender of sound mind and discretion, and had malice aforethought (intent to cause death or grievous bodily harm). Intent assumed if reckless, knowing that death or serious harm was virtual certainty. Manslaughter Homicide unlawful, but circumstances do not meet full criteria for murder or there are certain mitigating factors, such as:

  • immediate severe provocation
  • abnormality of mind (diminished responsibility under section 2 (1) Homicide Act 1957; see p. 679)
  • suicide pact (section 4 (1) Homicide Act 1957).

Infanticide (see p. 678) Scot Murder Homicide committed with wicked recklessness or intent. Culpable homicide Equivalent of manslaughter. Provocation, diminished responsibility are recognised, but no legal category for suicide pacts. No officially recognized crime of infanticide, such cases are usually prosecuted as culpable homicide. NI Murder, manslaughter, infanticide—as for E&W. RoI Murder defined as an intentional act to kill (narrower than E&W definition). Manslaughter, infanticide—as for E&W, but no diminished responsibility. N.B. Diminished responsibility will probably be introduced under Criminal Law (Insanity) Bill 2002. References 1 Appleby L (2000) Safer services: conclusions from the report of the National Confidential Inquiry. Advances in Psychiatric Treatment 6, 5–15. P.632
Violence (1)—theoretical background1,2 Definition Violence is an act that causes injury or harm. The term may cover a range of acts from the killing of another person to verbal abuse, and may also be used to cover acts causing damage to property including arson. In this section the focus is on acts of physical assault on others. Property damage and arson are considered on p. 640, and sexual offences on p. 636. Types of aggression Various have been described in terms of the determinants, biological substrate, goals, and characteristics of the aggressive act. Broadly they fall into three groups:

  • Instrumental aggression Aggression as a means to attain a goal, usually planned and not associated with increased arousal (e.g. violence used to carry out a robbery or control the victim of a sexual assault). A related term from animal studies is predatory aggression—aggression used by predatory animals when hunting food (aka interspecific aggression.) Sadistic aggression is a form of instrumental aggression used to achieve sexual and/or emotional pleasure through control and/or inflicting harm on a victim.
  • Expressive aggression (aka affective aggression, reactive aggression, hostile aggression, angry aggression, fear-induced aggression, irritable aggression, indiscriminate aggression.) Aggression with the primary goal of harming the victim in response to feelings of hostility towards the victim; emotional arousal in the perpetrator (due to fear, frustration, anger, resentment) and usually impulsive (although may be planned) (e.g. violence in response to discovery of infidelity or in response to being threatened). A related term from animal studies is defensive aggression—aggression used when threatened.
  • Aggression seen in social interactions (a form of expressive aggression, aka intraspecific aggression) e.g. intermale aggression, territorial aggression, and maternal aggression.

Although some acts of aggression clearly fall into one of these, many combine features of both e.g. aggression may be used to subdue the victim of a sexual assault (instrumental) and also as an angry reaction to the victim striking back (expressive). Theories of aggression

  • Biological Ethological studies of lower animals suggest aggression functions to ensure population control, selection of the strongest for reproduction and social organisation; low levels of 5-HT activity and cholesterol associated with aggression; modest genetic contribution; limbic and frontal areas important in determining aggression; testosterone may facilitate aggression.
  • Psychodynamic Freud: aggression initially seen as response to frustration, later as an instinct; hostile character traits may be caused by fixation at/regression to oral or anal stage. Ego psychologists: aggressive instinct needs to be sublimated or displaced. Neo-Freudians: emphasised socio-cultural origins of aggression. Attachment theory: emphasises early relationships and the impact of their disruption on adult interaction.
  • P.633

  • Learning theory Rewarding/reinforcing contingencies important, leading to the development and maintenance of aggressive responses to certain stimuli or in order to attain goal (material gain, escape from aversive stimulus). Frustration aggression hypothesis: frustration leads to aggression depending on the perceived value of the blocked goal and the degree of frustration (depends on degree of prior reinforcement or punishment); punishment may inhibit aggression, but may itself be frustrating or provide model for aggression. Observational learning (modelling).
  • Cognitive Learning theories seen as too simple and cognition important; cognitive distortions about victims may facilitate aggressive behaviour; appraisal of arousal and context important in determining occurrence of aggression; causal attributions and moral evaluations of self and others may facilitate or reduce aggression.
  • Social Social structure theory: poor socio-economic standing stifles pursuit of financial and social success, so seek success through deviant methods. Social process theory: socialisation process through contact with institutions and social organisations steers individual towards violence. Neutralisation theory: neutralisation of personal beliefs and values as person drifts between conventional and offending behaviour. Social control theory: direct (e.g. through punishment) and indirect (e.g. through social affiliation) control prevents violence. Labelling theory: an original deviant act (primary deviance) results in stigmatisation and labelling, leading to hostility, alienation, and resentment in the individual and further deviant behaviour (secondary deviance).

References 1 Mackintosh J (1990) Theories of violence. In Principles and Practice of Forensic Psychiatry (eds. Bluglass R and Bowden P). Edinburgh: Churchill Livingstone. 2 Gunn J (1993) Non-psychotic violence. In Forensic psychiatry: clinical, legal and ethical issues (eds. Gunn J and Taylor P). Oxford: Butterworth-Heinemann. P.634
Violence (2)1,2 Causes of a violent act Violent acts involve a perpetrator, a victim, and contextual factors. There will usually be an interplay between factors related to these three. Many of the background factors associated with offending generally (see p. 628) are associated with violence, although violent offenders are usually young adults rather than teenagers. The specific factors of importance in determining the occurrence of aggressive acts are the same as those needing to be considered in assessing the risk of violence (see pp. 646, 647). Types of violent offences The range of recognised violent offences (excluding sexual offences) is shown opposite. The seriousness of an assault may be determined by chance factors such as the availability of medical care and the physical health of the victim. Other ways of categorising violent offences are in terms of the victims and circumstances: domestic/spousal abuse, child abuse (see p. 614), elder abuse. Rates of violence Per 10 000 of the adult population there were 676 assaults and 84 robberies in E&W compared with 458 assaults and 54 robberies in Scot in 1999 as estimated from the British Crime Survey 2000 (i.e. number of actual incidents rather than number of officially recorded offences). The total numbers of officially recorded violent offences are shown opposite. Psychiatric assessment and management The clinical assessment of a person who has been violent or who appears to be at risk of violence involves a thorough psychiatric history and mental state examination and an assessment of risk (see pp. 646, 647). If the person is facing criminal charges then a report may have to be prepared considering the issues set out on pp. 666, 667. Management of risk is described on p. 647. The acute management of violent patients is described on p. 896. Domestic violence 1 in 4 women experience domestic violence during their lifetimes. Women are victims of 70% of domestic violence. In over 10% of cases serious injuries occur (e.g. broken bones, loss of consciousness). May be a contributory factor in 25% of suicide attempts and in 75% of cases children witness the violence. Accounts for 25% of violent crime in Britain (which will be an underestimate). Elder abuse Prevalence (from US figures) 3–5% of the elderly subject to violence, neglect, or emotional abuse, particularly females. Perpetrators are usually son or daughter, perhaps under stress, with alcohol or drug problems and unable to cope with looking after victim. P.635
Recorded violent offences The following figures are the violent offences recorded by the police in each of the jurisdictions in the British Isles in 2001 (Scot and RoI) or 2001–2 (E&W and NI). Note that different jurisdictions have different ways of defining and classifying violent offences.

E&W (2001–2) Attempted murder 164
Homicide 886 Threat or conspiracy to murder 740
Attempted murder 858
Threat or conspiracy to murder 13648 Causing death with vehicle 23
Child destruction 0 Wounding/assault occasioning actual bodily harm 6507
Causing death with vehicle 407
Wounding 16537 Aggravated assault 941
Endangering railway passenger or life at sea 18 Common assault 13971
Police assault 1563
Other wounding 212059 TOTAL VIOLENCE AGAINST THE PERSON 26104
Possession of weapons 28740
Harassment 113677 Robbery* 2222
Cruelty to or neglect of children 3048 Rol (2001)
Abandoning child under 2 49 Homicide:
Child abduction 583 Murder 52
Procuring illegal abortion 6 Murder—attempt 2
Concealment of birth 3 Abortion 0
Assault on a constable 30010 Manslaughter 6
Common assault 231625 Infanticide 0
TOTAL VIOLENCE AGAINST PERSON 650154 Murder—threats 14
Robbery* 121375 Procuring or assisting abortion 0
Scot (2001) Assaults:
Serious assault (includes homicide) 7296 Assault causing harm 3114
Coercion 4
Handling an offensive weapon 8671 Harassment 276
Poisoning 4
Robbery 4228 Assault/obstruction/resistingpeace officer 236
Other 3556
Petty assault* 54870 False imprisonment 46
Abduction 81
NI (2001–2) TOTAL ASSAULTS 3082
Homicide 55 Robbery* 2880
* Indicates offences not officially categorised as violent offences in the relevant jurisdiction.

References 1 Cordess C (1995) Crime and mental disorder I. Criminal behaviour. In Seminars in Practical Forensic Psychiatry(eds. Chiswick D and Cope R). London: Gaskell. 2 Gunn J (1993) Non-psychotic violence. In Forensic psychiatry: clinical, legal and ethical issues (eds. Gunn J and Taylor P). Oxford: Butterworth-Heinemann. P.636
Sexual offences (1) Offences range from prostitution and indecent exposure to rape. Other types of offences (e.g. homicide, assault, robbery, theft, and burglary) may have a sexual component, but are not officially recognised as sexual offences. Sex offending, sexual deviation (p. 464), and inappropriate sexual behaviour (a range of sexual behaviours which cause offence and/or harm to others) are overlapping but distinct concepts. A man who commits a sexual offence against a child may or may not be a paedophile and a man who exposes himself may or may not be an exhibitionist. A 17-year-old male who has sexual intercourse with his 15-year-old girlfriend is committing a sexual offence, but will neither have a sexual deviation or be displaying sexually inappropriate behaviour. Here the focus will be on indecent exposure and contact sexual offences against adults and children. Types of sexual offences and offenders The range of officially recognised sexual offences is set out on p. 639. Legal classifications change and a legal label says nothing about the nature of the actual incident. Various typologies (based on the nature of the act, the motivation of the offender, the characteristics of the offender, and the characteristics of the victim) lack validity, reliability, and practical utility. Indecent exposure The most common sexual offence. Classification:

  • Exhibitionists Inhibited men, often previous unremarkable character, with sudden powerful urge to display genitals, who make little attempt to avoid capture and who make no further erotic or obscene gestures/attempt any contact with victim.
  • Disinhibited—by alcohol, stress, or psychiatric disorder.
  • Aggressive, impulsive, and antisocial—a small minority.

Most do not reoffend. A small number may progress to more serious sexual offences. Rates of further indecent exposure: first time offenders 20%, previous sexual offences—60%, previous sexual and non-sexual offences—70%. Factors which may indicate risk of escalation to more serious offences are as set out below for sexual offences generally. Rape and other sexual assaults on adults Usually perpetrated by men against women and, less often, other men. Female perpetrators uncommon. Typologies lack validity, but may be classified as: aggressive, sexual, or sadistic. Most rapists are young males from poor social and educational backgrounds who have a history of other offending. A small number of these offenders are sexual sadists. Sadistic fantasy is common in men, but sadistic sexual offending is rare—features which may be associated with acting out sadistic fantasies are social isolation, coexisting other paraphilias, lack of empathy, disinhibition (by alcohol, drugs, stress, or psychiatric disorder). 15% of rapists reoffend sexually and 20% go on to commit non-sexual violent offences. Rape and other sexual assaults on children Female children are victimised more than males.

  • Intra-familial abuse (incest) is usually perpetrated by fathers or step-fathers against daughters. Family pathology (dysfunctional families with generational blurring) often mixed with pathology in the perpetrator (alcohol misuse, personality disorder, paedophilia—but only in a minority).
  • P.637

  • Extra-familial abuse is less common. Adolescent offending is associated with poor social skills, physical unattractiveness, and isolation from peers. Adult offenders are more likely to have paedophilic sexual fantasies than adolescent offenders and intra-familial offenders. In some cases offending against children reflects general antisocial tendencies or the expression of repressed paedophilic impulses in susceptible men disinhibited (by alcohol, stress, or psychiatric disorder). Many offenders become skilled at targeting and grooming victims to gain their trust. A very rare minority have sadistic paedophilic fantasies. Cases of sexually motivated killing of children are extremely rare.

Rates of sexual offences Rates of recorded sexual offences are shown on p. 639. Many sexual offences are not reported. Rates of sexual reoffending Extra-familial child offenders > offenders against adults > incest offenders. Internet offences There are an increasing number of cases of people arrested for using and/or distributing child pornography over the internet. Many of these people would probably not have been identified as sexual offenders previously. P.638
Sexual offences (2) Characteristics of sex offenders A heterogeneous group—possible relevant factors: deviant sexual fantasy, sexual dysfunction, abnormal personality (impulsivity, lack of empathy, inhibition, social anxiety), relationship difficulties (poor social skills, social isolation), alcohol or drug misuse, denial and minimisation of offending, cognitive distortions (regarding sex, women, or children), problems with assertiveness and control of anger, previous histories of victimisation. Mental disorder and sex offending The most common mental disorders found in sex offenders: personality disorder, paraphilias, alcohol and substance misuse; severe mental illness is rare. Sex offenders with psychosis share many of the features of other sex offenders and offending is rarely due to specific psychotic symptoms. Disinhibition due to mania or organic disorders may lead to, usually minor, sexual offences. Most sex offences committed by people with LD are associated with lack of sexual knowledge, poor social skills, and inability to express a normal sex drive appropriately. A few more serious and persistent LD offenders may share characteristics of other sex offenders. Assessment of sex offenders Full psychiatric history and MSE—emphasis on the nature of the incident(s), psychosexual history, and previous offences, utilising sources of information other than the accused. It may be difficult to build up a full picture of a person’s sexual fantasies and activities. Some centres (mainly in North America) use penile plethysmography (measuring the extent of penile erection in response to various stimuli). Risk assessment (pp. 646, 647) Consider the following factors: sexual deviation; personality disorder; mental illness; substance misuse; relationship problems; employment problems; previous offences (sexual and non-sexual); previous supervision failure; frequency, types, and escalation in sexual offending; physical harm to victims and use of weapons; denial/ minimisation and cognitive distortions; future plans and attitudes towards intervention. Management of sex offenders Some mentally disordered offenders require treatment in hospital (esp. those with mental illness or marked LD). In psychotic sex offenders it is usually important to address factors common to other sex offenders. Those with personality disorders, paraphilias, and substance misuse are normally dealt with by the criminal justice system. Within the criminal justice system, both in prison and the community, group CBT programmes have been developed. A small number of sex offenders receive psychodynamic treatment at specialist clinics. Medications such as anti-androgens, anti-gonadotrophins, and SSRIs may be used in a few offenders. Specific legal provisions The Sex Offenders Act 1997 requires sex offenders to register their address with the police. The Crime and Disorder Act 1998 enables courts to impose Sex Offender Orders on convicted sex offenders who are not registered under the Sex Offender Act and whose behaviour gives cause for concern. The order requires the offender to register with the police and to desist from behaviour that has P.639
been identified as indicative of future risk. The same Act allows courts to impose extended sentences on sex offenders. The extended sentence comprises a custodial element with an ‘extended’ period of supervision post-release for up to 10 years. Recorded sexual offences Sexual offences recorded by the police in each of the jurisdictions in the British Isles in 2001 or 2001–2. Note that different jurisdictions have different ways of defining and classifying sexual offences.

E&W (2001–2) Prostitution offences 1328
Buggery 354 Other crimes of indecency 41
Indecent assault on a male 3613 TOTAL CRIMES 5987
Gross indecency between males 163 NI (2001–2)
Rape of a female 9008 Rape 252
Rape of a male 735 Attempted rape 40
Indecent assault of a female 21765 Buggery 27
Indecent assault of female 286
Unlawful sexual intercourse with a girl <13 170 Indecent assault of female child 308
Unlawful sexual intercourse with a girl <16 1336 Indecent assault of male 34
Indecent assault of male child 55
Incest 93
Procuration 130 Homosexual acts 5
Abduction 263 Indecent exposure 333
Bigamy 74 Indecent conduct towards a child 23
Soliciting or importuning by a man 1648 Other sexual offences 32
Abuse of position of trust 408 TOTAL OFFENCES 1431
Gross indecency with a child 1665 RoI (2001)
TOTAL OFFENCES 41425 Sexual assault 1048
Indecent exposure (recorded with other offences) 8187 Sexual offence involving mentally impaired person 10
Gross indecency 33
Scot (2001) Buggery 36
Rape 589 Unlawful carnal knowledge 78
Assault with intent to rape 164 Rape (section 4) 66
Indecent assault 1154 Bestiality 2
Lewd and libidinous practices 1557 Aggravated sexual assault 18
Indecency 150
Indecent exposure 808 Rape of a female 335
Incest 34 Incest 16
Homosexual acts 133 Brothel keeping 5
Sexual intercourse with a girl <16 179 Prostitution 142

Other offences1 Arson Arson (fire-setting in Scot) is considered to be a serious offence due to its potential to threaten life and cause massive destruction. Only a small proportion (less than 20%) of arson offences lead to prosecution. Classification As with sex offenders and other offenders typologies are fraught with problems. The following groups have been described (but they are not mutually exclusive): insurance fraud, covering evidence of crime, politically motivated, gang activity, revenge/anger, cry for help, desire for power, desire to be hero, fascination with fire, sexual excitement, suicide, psychiatric disorder. Psychiatric disorder Alcohol/substance misuse and personality disorder are the most frequent; less common are psychosis, organic disorders, and learning disability (previously highlighted association due to studies of patients in secure hospitals). Pure ‘pyromania’ is rare—features are usually seen in individuals with personality disorders. Assessment Full psychiatric assessment with detailed examination of current and previous offences. Management Treatment of mental disorder if present; specific psychological interventions have been proposed but little evidence; important to take steps to prevent access to matches and lighters if ongoing risk in hospital setting. Outcome Rates of further arson 2–20%, rates of any reoffending 10–30%. No specific indicators of risk. Other damage to property Acts of vandalism are common, especially in adolescence. There is little psychiatric literature on criminal damage excluding arson. Stalking Stalking is not a specific offence, although the recent Protection from Harassment Act 1997 and Malicious Communications Act 1998 have introduced legislation of specific relevance for E&W. Stalking is a pattern of intrusive behaviour (unwanted contacts and communications), which implicitly or explicitly threatens a victim and leads to considerable fear. Behaviours include threats, assaults, sending gifts, initiating legal action, and making complaints. Figures from USA indicate that 8% of women and 2% of men have been stalked at some point. Many cases not reported to police. Most cases involve males stalking women with whom they have had a relationship previously. Classification Problems as with other typologies. Psychotic v non-psychotic; previous relationship v no previous relationship. A typology based on motivation and context: rejected (pursues ex-intimate in hope of reconciliation and/or vengeance), intimacy seekers (believe they love victim and that victim reciprocates), incompetent suitors (intrudes seeking a date or brief sexual encounter), resentful (seeking revenge for actual or perceived slight), predatory (prelude to sexual assault). P.641
Psychiatric disorder Commonly personality disorder (narcissistic/ borderline/antisocial/paranoid, sometimes schizoid or dependent) and alcohol/drug misuse. May be psychotic: various types of delusions may be involved, primary erotomania is rare. Assessment Diagnosis of any mental disorder and assessment of relationship with victim. Management Clinical management may include treating mental disorder, understanding what is sustaining behaviour, confronting denial/minimization/ justification, enhancing empathy, addressing social and interpersonal deficits, managing alcohol and drug misuse. But no clear evidence available to guide management. Outcome Research from USA. About half cease within a year and a quarter last 2–5 years. 25% of cases result in violence and 2% in homicide. Crimes of dishonesty Burglary, theft, and fraud are common offences which are rarely associated with psychiatric disorder. Shoplifting has attracted some clinical attention. About 5% of shoplifters suffer from significant mental disorder (personality disorder, substance misuse, depression, schizophrenia, dementia). Pure kleptomania is extremely rare (see p. 386). Drug offences Mental disorder rarely an issue. Car crime Impaired ability to drive may be caused by a number of disorders (see p. 828). Occasional rare cases of people disinhibited by mania or impaired by dementia who cause serious injury or death. However, mental disorder is rarely an issue in car crime. References 1 Mullen, PE et al (2001) The management of stalkers. Advances in Psychiatric Treatment 7, 335–42. P.642
Mental disorder and offending (1)—overview What is the relationship between mental disorder and offending? Mental disorder is common and offending is common, so it would not be surprising to find an individual with both. But is the relationship more than coincidental? When looking at studies of this relationship one needs to consider:

  • The nature of the sample studied (community v institutional; clinical v epidemiological; pre-treatment v post-treatment; offenders v non-offenders)
  • The criteria used to define mental disorder (legal v clinical v operationalised) and the method used to determine its existence (case notes v interviews; clinically trained v lay interviewers)
  • The criteria used to define offending (types of officially recorded offences included; inclusion of unreported or unprosecuted ‘offences’) and the method used to detect offences (official records v self-report v third-party report).

Most of the research has focused on violence. The following are the main conclusions to be drawn from current evidence.

  • People with mental disorder as a broad group are no more or less likely to offend than the general population.
  • Some specific mental disorders do increase the risk of a person acting violently, particularly alcohol and drug-related disorders and personality disorders (especially those with predominant cluster B characteristics).
  • Schizophrenia has a modest association with violence, but the overwhelming majority of people with schizophrenia are never violent, being more likely to be victims than perpetrators of violence.
  • In people with mental disorders the factors most strongly associated with offending are the same as for non-mentally disordered offenders: male gender, young age, substance misuse, disturbed childhood, socioeconomic deprivation.
  • When considering an offence perpetrated by a person with mental disorder, one should bear in mind that, as with any offence, there is interplay between the perpetrator, the victim, and the situational circumstances. Although mental disorder may play a part it is rarely the only factor that leads to an offence.

Mental disorder and offending (2)—specific disorders and offending1,2,3 Schizophrenia The life-time risk of violence in people with schizophrenia is about 5 times that in the general population. People with schizophrenia account for less than 10% of all violent crime in Britain. The factors most commonly associated with violence in people with schizophrenia are those associated with violence in people without psychosis. Alcohol and drug misuse are particularly important. Specific symptoms may be important but clearly are not enough in themselves, otherwise virtually every person with schizophrenia would be violent. Threat control-override symptoms (delusions regarding being threatened or being controlled) have been found to be associated with violence, but again, most patients with these symptoms are never violent. The role of command auditory hallucinations is unclear. When people with psychosis are violent the victim is more likely to be known to them (particularly relatives) than when violence is committed by non-psychotic individuals. Delusional disorders Delusional disorders are probably over-represented among patients detained in secure psychiatric hospitals, however the research on the association between delusional disorders and violence is difficult to interpret as the samples are usually selective and uncontrolled, and in many studies patients with delusional disorders are lumped in with patients with other psychoses, especially schizophrenia. Increased risk of violence has been reported to be associated with persecutory delusions, misidentification delusions, delusions of jealousy, delusions of love, and querulous delusions. Jealousy may be dangerous whether it is delusionally based or not. In some cases it is difficult to differentiate between pre-morbid personality disorder (perhaps with paranoid and/or narcissistic features) and delusional disorder. The relevant beliefs are probably no less risky if they are over-valued ideas than if they are delusional. Affective disorders Affective disorders have a far less strong relationship with offending and violence than schizophrenia. Mania commonly leads to minor offending due to grandiosity and disinhibition, but rarely leads to serious violence or sexual assaults. Depression is very rarely associated with violence or offending. Extended suicide (also known as altruistic homicide), in which a depressed parent (usually the father) kills members of their family before attempting and perhaps succeeding in killing themselves, is extremely rare and impossible to predict. In some cases it occurs in depressive psychosis associated with nihilistic delusions, but more commonly there is a history of marital breakdown in people who are depressed and suicidal but not psychotic. A historical association between shoplifting and depression has been highlighted, but is probably insignificant. P.645
Alcohol and substance-related disorders Alcohol and drug-related problems are more strongly linked to offending and violence than any other mental disorders. A number of aspects of alcohol and substance misuse may be relevant: direct effects of intoxication or withdrawal; funding the habit; the personal and social consequences of dependence; the neuropsychiatric sequelae of prolonged misuse; the social context (peer group, socio-economic deprivation, childhood mistreatment), and personal characteristics (impulsivity and sensation seeking), which may lead to substance misuse, may also be associated with offending. Personality disorders Personality disorder is more strongly related to offending and violence than mental illness. Personality disordered offenders are heterogeneous: only a small number are psychopathic (see p. 448). Various aspects of personality disorder may be related to offending: impulsivity, lack of empathy, poor affect regulation, paranoid thinking, poor relationships with others, problems with anger and assertiveness. Learning disability Offending occurs more often in people with milder forms of learning disability than in those with severe learning disability. Offences are broadly similar to those in non-learning disabled offenders and are associated with family and social disadvantage. Evidence for increased rates of sex offending and fire-raising is based on highly selected patient samples in secure hospitals and is therefore questionable. In some learning disabled offenders poor social development, poor educational achievement, gullibility, and impaired ability to communicate may be important factors. Profound and severe learning disability may be associated with disturbed behaviour, including aggression, but would rarely come to the attention of the criminal justice system. Organic disorders Aggression is well recognised in dementia, but rarely leads to serious violence. Delirium and brain injury may lead to aggression. In head injury cases it may be difficult to differentiate the effects of the head injury from pre-morbid personality. Epilepsy is twice as common in offenders as in the general population, but this is probably due to shared environmental and biological disadvantages that predispose individuals to both. Violence resulting from epileptic activity is extremely rare. References 1 Higgins J (1995) Crime and mental disorder II. Forensic aspects of psychiatric disorder. In Seminars in Practical Forensic Psychiatry (eds. Chiswick D and Cope R). London: Gaskell. 2 Walsh E, Buchanan A, Fahy T (2002) Violence and schizophrenia: examining the evidence. BJP 180, 490–5. 3 Chiswick D (1998) The relationship between crime and psychiatry. In Companion to Psychiatric Studies (eds. Johnstone EC, Freeman CPL, Zealley AK). Edinburgh: Churchill Livingstone. P.646
Assessing risk of violence1,2,3 Context Risk of violence to others is assessed by psychiatrists in a range of situations, (e.g. acute assessments in casualty, allowing patients leave; court reports, determining whether a patient should progress from a secure setting). Types of violence risk assessment

  • Clinical Traditionally carried out in an unstructured manner, perhaps guided by the research literature. Clinical risk assessment criticised due to lack of reliability, validity, and transparency.
  • Actuarial (e.g. VRAG): Statistical approaches based on multivariate analyses of factors in samples of forensic patients or prisoners to determine which predict further violence. Variables predictive of recidivism given weightings and combined to give score. From this score a probability of recidivism can be calculated. Criticised as factors identified invariably historical unchangeable attributes. Considered by some to be inflexible and unable to inform risk management.
  • Structured clinical (e.g. HCR-20): Intermediate approach. Combines historical factors of actuarial approach with dynamic factors in structured way. Clinically the consideration of each factor is more important than the actual scores, so act as useful aide memoirs. The approach here is based on this method.

Information Sources of information determined by nature and context of assessment, using as many sources of information as possible: records (psychiatric, general practice, social work, prison, school, criminal), interviews (patient, relatives, staff), psychometric (e.g. PCL-R). Factors to consider (based on HCR-20)

  • Historical Previous violence (convicted and non-convicted, nature, motivation, victims, context); relationships (lack of relationships, unstable relationships); employment (poor employment record, disciplinary problems); substance misuse; mental illness (noting its relationship to previous aggression); personality disorder (dissocial, emotionally unstable, paranoid, psychopathy); childhood problems (behavioural disturbance, mistreatment); previous difficulties with supervision (absconding, lack of attendance, lack of compliance).
  • Current (internal) Symptoms (delusions, hallucinations); threats (towards particular victim or group); fantasies (violence, sexual); attitudes (pro-criminal, minimisation, denial); impulsivity; insight (into illness, into personality, into previous violence and precursors); response to treatment (pharmacological and psychosocial); plans (realistic).
  • Current (external) Weapons; access to victims; support (formal and informal); destabilisers (alcohol, drugs, homelessness, victimisation); stress (relationship problems, debt, life events).

Formulation Anchored by historical factors with current factors indicating immediate/short-term risk. Risk of what, to whom, when, under what circumstances? Acknowledge uncertainties and information gaps. Emphasise context(s) in which person may be at increased/decreased risk. If using actuarial methods: are they applicable to this person/risk? Are normative values from an appropriate sample? Communication The assessment must be communicated in an appropriate and understandable way to others. It must also be documented. Use of scores, percentages, or terms such as low, medium, or high should be explained. Risk management The factors identified in the risk assessment should indicate areas to be addressed in management. They may point to the need for specific treatments (pharmacological or psychological), supervision, support, or detention. Risk assessment instruments A number of risk assessment instruments have been developed. Some are structured clinical methods, while others are actuarial. The following list indicates the type of risk assessed and whether the tool is actuarial or structured clinical in nature. Most of these tools require specific training and all require familiarity with the tool and the risk being assessed. There is no consensus as to which tools should be used and when, and some argue that risk assessment tools should not be used at all.

Historical, clinical and risk 20—(HCR-20) Violence/structured clinical
Violence risk appraisal guide (VRAG) Violence/actuarial
Psychopathy checklist—revised (PCL-R) Violence/actuarial
Risk assessment, management, and audit systems (RAMAS) Violence/structured clinical
Risk assessment guidance framework (RAGF) Violence/structured clinical
Offender assessment system (OASys) Violence/structured clinical
Reconviction prediction score (RPS) Violence/actuarial
Risk of reconviction (ROR) score Violence/actuarial
Offender group reconviction scale (OGRS) Violence/actuarial
Risk of sexual violence protocol (RSVP)(previously SVR-20) Sex offending/structured clinical
Sexual offending risk appraisal guide (SORAG) Sex offending/actuarial
Rapid risk assessment of sex offender recidivism (RRASOR) Sex offending/actuarial
Static 99 Sex offending/actuarial
SONAR Sex offending/actuarial
Matrix 2000 (previously structured anchored clinical judgement (SACJ) Sex offending/actuarial
Spousal assault risk assessment (SARA) Spouse abuse/structured clinical

References 1 Quinsey VL, Harris GT, Rice ME et al (1998) Violent offenders: appraising and managing risk. Washington DC: American Psychological Association. 2 Webster CD, Douglas KS, Eaves D, Hart SD (1997) HCR-20 Assessing risk for violence (version 2). Vancouver: Simon Fraser University. 3 Royal College of Psychiatrists (1996) Assessment and Management of Risk of Harm to Other People. Council Report CR53. London: Royal College of Psychiatrists. P.648
Secure hospitals and units1 Within the health service there are psychiatric hospitals and units that offer varying degrees of security. The terms high, medium, and low security are used to categorise these services, and give some indication of the level of risk that can be managed within a particular unit. However, there are no clear definitions of these levels of security; different units at the same security level may operate in very different ways; there is blurring between the different levels; and rather than thinking of patients in terms of level of security required it is better to consider a particular patient’s risk, how this should be managed, and how a particular unit may or may not be able to manage the risk. The network of secure services for a particular area vary considerably from region to region. Security does not just rely on the physical barriers and monitoring, although these are important. Knowing patients well (from studying their backgrounds and interacting with them) and developing good relationships with them contribute to ‘relational security’. Multidisciplinary risk assessment and management are also important. High security hospitals There are five high security hospitals in the British Isles:

  • English special hospitals—Ashworth, Broadmoor, and Rampton Hospitals. Serve E&W and are each part of a local NHS Trust. Each has about 500 beds.
  • State Hospital (Carstairs). Serves Scot and NI. Managed by a special health board. About 250 beds.
  • Central Mental Hospital (Dundrum). Serves the RoI. Managed by the Eastern Health Board. About 80 beds.

Patients admitted from prisons, courts, or less secure hospitals. Patients must be detained under mental health or criminal procedure legislation. Majority of patients have committed offences, but a substantial minority are transferred from other hospitals where they are unmanageable. Patients should pose a grave immediate danger to the public. Admissions are usually for several years. Medium secure units Medium secure units are not as virtually escape-proof as high security hospitals but are more secure than locked wards. Vary in size from 30–100 beds. Each region in E&W has one or more medium secure units; in Scot medium secure units are developing with one open so far; there are no such units in NI or the RoI. Patients are admitted from prisons, courts, and less secure units, and also from high security hospitals. Admissions are not usually for more than 2 years. Patients may move on to low security, open wards, or the community, being managed by general or forensic services depending on local service provision, patients’ backgrounds, and clinical needs. Some specialist units have developed for personality disordered patients, learning disabled patients, women, and adolescents. The State Hospital, Carstairs and the Central Mental Hospital, Dundrum admit many patients who would be admitted to medium secure units in E&W due to the under-development of local secure forensic provision in Scot, NI, and the RoI. P.649
Low security units Low secure units and wards have locked doors but do not usually have a secure perimeter. Some regional forensic services have a combination of low and medium secure wards; in areas of Scot and NI there are low secure forensic wards without medium secure units. Psychiatric intensive care units (PICUs) are low secure short-stay wards primarily for the care of acutely disturbed general psychiatry patients. In a few areas they also take patients from courts, prisons, and more secure units, but they are not well-suited to providing longer-term assessment or treatment. Referring a patient to secure forensic services

  • A comprehensive assessment should be made and details of this should be sent with the referral.
  • Particular attention should be given to the risk the person poses (p. 646) and why this risk cannot adequately be managed in less secure services.
  • Patients should meet the criteria for compulsory detention in hospital under relevant legislation.

References 1 Kennedy, HG (2002) Therapeutic uses of security: mapping forensic mental health services by stratifying risk. Advances in Psychiatric Treatment 8, 433–43. P.650
Police liaison (1) Prevalence of psychiatric disorder 2–5% of people held in custody by the police suffer from mental disorder. About 1–2% suffer from severe mental illness. Liaison and diversion

  • Diversion of people with mental disorders from the criminal justice system to health care can operate at any stage of the criminal justice process. The term is often used to refer to early diversion, the transfer of mentally disordered people from police custody or at their first court hearing.
  • Diversion schemes operate in some areas whereby a specific service is provided to the police and/or courts to help identify and divert mentally disordered individuals. These schemes may also be known as police or court liaison schemes.
  • Police or court liaison is the process or system by which mental health services provide assessment and/or diversion for people with mental disorder at an early stage of the criminal justice process.
  • In some areas there are formal diversion schemes, but from area to area there are differences.

In many cases where a person is diverted, the police, prosecutor, or court will discontinue the criminal justice process. This will be particularly appropriate in most cases where individuals with mental disorder will have committed relatively minor offences. However, diversion does not necessitate this, and where appropriate, particularly where more serious offences have been committed, a prosecution may be pursued in parallel with diversion for care and treatment. Powers allowing police to take a person to a place of safety

  • The police have powers under mental health legislation to convey a person who they believe is suffering from mental disorder to a place of safety. (Specific powers are set out opposite.)
  • The purpose of these powers is to allow for a psychiatric assessment.
  • The use by the police of these powers does not oblige mental health services to admit the person.

Arrest and detention in custody Where an offence has been committed a mentally disordered offender may be arrested and taken into police custody.

  • Issues to be addressed when assessing a person in police custody:
    • Is there evidence of mental disorder?
    • Is treatment in hospital required? If so how urgently?
    • What is the nature of the alleged offence and is there any evidence of a serious risk to others?
    • Is the person fit to remain in police custody?
    • Is the person fit to be interviewed by the police? Do they require an appropriate adult?
    • Would they be fit to plead if they appeared in court? (see p. 672)
  • P.651

  • Options following assessment if person appears to be mentally disordered:
    • admission to hospital informally or under mental health legislation
    • treatment in the community
    • recommend admission on remand following first court appearance
    • recommend further assessment on remand in custody or on bail following first court appearance.
  • Fitness to remain in police custody There are no legal criteria to determine whether a person is ‘fit to remain in police custody’. A person may be unfit to remain in police custody due to physical illness or mental disorder. Where a person is mentally disordered such that there would be a serious immediate risk to their own health if they remained in the police cells, then they would be unfit to remain in police custody, and should usually be admitted to hospital.

Powers allowing the police to take a mentally disordered person to a place of safety E&W Section 136 MHA1983 allows the police to apprehend a person who appears to be mentally disordered found in a public place, and convey them to a place of safety where they may be detained for up to 72 hours. The place of safety should be a mental health setting, but often a police station is used. The purpose of section 136 is to allow for the person to be assessed by mental health services. Following the assessment the person may be diverted to mental health services (informally or under compulsion), arrested and taken into police custody, or released. Scot Section 297 MH(CT)(S)A2003 allows similar provisions in Scot, but detention may only be for up to 24 hours. NI Article 130 MH(NI)O1986 allows similar provisions in NI, but detention may only be for up to 48 hours. RoI Under the section 12 MHA2001, if a garda has reasonable grounds for believing that a person is suffering from a mental disorder and that, because of the disorder, there is a serious likelihood of the person causing harm to himself/herself or another person, the garda may take the person into custody. If necessary, the garda may use force to enter the premises where it is believed that the person is. The garda must then go through the normal application procedure for involuntary detention in an approved centre. If the garda’s application is refused, the person must be released immediately. If the application is granted, the garda must remove the person to the approved centre. N.B. In E&W, Scot, and NI these powers do not allow the police to enter premises if they want to remove a person who appears to be suffering from mental disorder. Under these circumstances powers are available under s135 MHA1983, s293 MH(CT)(S)A2003, and article 129 MH(NI)O1986. P.652
Police liaison (2)1,2,3 Police interviews—fitness, false confessions, and appropriate adults Mental disorder may affect a police interview by: impairing the ability of a person to communicate; leading to the person giving unreliable evidence; or making a person vulnerable to becoming distressed. In some cases mental disorder may be so severe that a person is unfit to be interviewed.

  • There is no legal basis for fitness to be interviewed but the following issues may be relevant:
    • Does the detainee understand the police caution after it has been fully explained to him or her?
    • Is the detainee fully orientated in time, place, and person and does he or she recognise the key persons present during the police interview?
    • Is the detainee likely to give answers which can be seriously misconstrued by the court?
  • Where a person is mentally disordered and fit to be interviewed, an appropriate adult should be present during the police interview. Appropriate adult schemes operate differently in the different jurisdictions of the British Isles (see below).
  • False confessions have been at the heart of some notorious miscarriages of justice. Three types are recognised:
    • Voluntary (the person voluntarily presents and confesses to a crime he has not committed)
    • Coerced compliant (persuasive interrogation leads to a person confessing to an offence he knows he has not committed)
    • Coerced internalised (amnesia or subtle manipulation by the interrogator leads to the person believing he has committed a crime which he has not).

Appropriate adults

  • E&W The Police and Criminal Evidence Act (PACE) 1984 and its Codes of Practice provide a statutory basis for appropriate adults. Appropriate adults should be requested by the police where a detained person is under 16 or is deemed to be ‘vulnerable’ (perhaps due to mental disorder). The appropriate adult may be a relative or carer.
  • Scot No statutory basis for appropriate adult schemes. Schemes operate to provide appropriate adults, who should not be a relative or carer, and who should be requested by the police when they are interviewing any mentally disordered person. These schemes do not cover children.
  • NI Similar statutory basis as E&W.
  • RoI No specific provisions.

References 1 Gudjonnson GH (1993) The psychology of interrogations, confessions and testimony. Chichester: Wiley. 2 Birmingham L (2001) Diversion from custody. Advances in Psychiatric Treatment 7, 198–207. 3 Pearse J and Gudjonnsen G (1996) How appropriate are appropriate adults? Journal of Forensic Psychiatry 7, 570–80. P.653
Court liaison Broadly covers all aspects of psychiatric assessments for courts, but here is used narrowly to refer to psychiatric assessment at an early (usually the first) court appearance. The terms ‘liaison’ and ‘diversion’ in relation to police and courts are described on p. 650. Preparation of court reports and giving evidence in court are covered on pp. 662, 663, 664, 665, 666, 667. Some areas have court liaison or diversion schemes, aimed at identifying people with mental disorders at an early stage of the court process and diverting them to appropriate mental health services where necessary. Some screen all detainees, but most rely on referrals from criminal justice staff when mental disorder is suspected. In many schemes the first assessment is by a CPN who then refers the person on if necessary. Back up from psychiatrists is necessary for those cases where admission, particularly under compulsion, may be necessary. Features of successful court liaison schemes

  • ‘owned’ by mainstream general or forensic services
  • staffed by senior psychiatrists
  • nurse-led and closely linked to local psychiatric services
  • good working relationships with courts and prosecution
  • good methods for obtaining health, social services, and criminal record information
  • access to suitable interview facilities
  • use of structured screening assessments
  • direct access to hospital beds
  • ready access to secure beds
  • access to specialised community facilities
  • integrated with police and prison liaison schemes

In many areas there are no dedicated schemes. Under these circumstances it is important that it is clear to the police, courts, social services, and health services how an urgent assessment may be obtained if necessary. Issues to be addressed when assessing a person at an early court appearance

  • Is there evidence of mental disorder?
  • Is assessment and/or treatment in hospital required?
  • If so, how urgently?
  • What is the nature of the alleged offence and is there any evidence of a serious risk to others?
  • Is the person fit to plead? (see p. 672)

Options following assessment if person appears to be mentally disordered

  • admission to hospital informally or under mental health legislation
  • treatment in the community
  • P.655

  • recommend admission on remand (see p. 668)
  • recommend further assessment on remand in custody or on bail

In many cases it will be appropriate for the criminal justice process to be discontinued. However, where serious offences are alleged it would usually be appropriate, if diversion is necessary, for the person to be remanded in hospital (see pp. 668, 669). P.656
Prison psychiatry (1)—overview Introduction The average daily population of prisons in the UK is almost 50 000. Prisons in the UK are either local prisons (accommodating remand prisoners and prisoners serving sentences of less than 2 years) or training prisons (taking prisoners serving sentences of more than 2 years). In practice a number of prisons perform both functions. Security varies depending on the categories of prisoners held. All prisoners are categorised solely on security considerations: ‘A’ (the highest category requiring maximum security) to ‘D’ (the lowest category, suitable for open conditions). Most female prisoners are kept in separate prisons. The prison remand A person accused of committing an offence may be held on remand in prison whilst awaiting trial and/or sentence. Courts should not remand a person in custody unless there is a good reason not to grant bail. Mentally disordered offenders are more likely to be remanded in custody than other offenders perhaps because: they are more likely to be homeless; they are considered less likely to comply with bail; they are perceived as more dangerous because of their mental disorder; there are a number of statutory objections to bail for mentally disordered defendants even where the offence is not punishable by imprisonment; and even though remands in custody for reports are discouraged there is a lack of hospital or specialist bail facilities. The prison sentence A prison sentence is imposed on an offender by a judge. He will consider a number of factors, including any mitigating or aggravating circumstances. The sentence may serve one or more of the following functions: punishment, deterrence, reparation, incapacitation, rehabilitation. In certain circumstances there may be a mandatory prison sentence (e.g. a life sentence for murder). Most prisoners serving determinate sentences are released before the end of their sentence and subject to a period of supervision and/or recall. The exact nature of this depends on the nature of the offence and the length of the sentence imposed. Life-sentenced prisoners have a tariff (time to serve as punishment) set by the judge; when this has been served release is a decision for the Home Secretary advised by the parole board (for mandatory life-sentenced prisoners in E&W) or for the parole board (for discretionary life-sentenced prisoners in E&W and for all life-sentenced prisoners in Scot). Mental disorder in prisoners The prevalence of mental disorder in the prison population is high, especially in remand and female populations. Psychotic disorders: 2–10%; affective/neurotic disorders: 6–59%; alcohol-related disorder: 22–63%; drug-related disorder: 20–73%; personality disorder: 10–75%. It has been estimated that 23–55% of prisoners have psychiatric treatment needs, with 2–5% requiring transfer to psychiatric hospital. P.657
Mental health services in prison Traditionally the prison medical service has been separate from the mainstream health service. Health screening occurs on reception to prison but is cursory and ineffective. Officially prisons should give prisoners access to the same quality and range of health care services as the general public receives from the NHS. Psychiatrists from the health service provide sessions or may visit for a particular case. Prisons may have mental health nurses who provide assessment, monitoring, and support for prisoners and advice to other staff. Some prisons have multi-disciplinary mental health teams. In E&W greater partnership between the NHS and the prison service is proposed in the provision of mental health services to prisoners. P.658
Prison psychiatry (2)—the role of the psychiatrist1,2 Psychiatrists may be asked to assess prisoners for the following reasons:

  • To provide court reports (see p. 662)
  • To provide assessment and treatment at the request of a prison medical officer
  • For statutory purposes (e.g. preparing reports for the parole board)

When arranging to see a prisoner, a psychiatrist should make an appointment which will fit in with the prison routine. There will usually be only 2–3 hours in the morning or afternoon when there is access to prisoners. The psychiatrist will have to wait to be escorted by prison staff. Assessment of prisoners Prisoners should be seen on their own unless prison staff or other sources indicate this would be unwise. It may be difficult to get relevant information about the prisoner’s day-to-day functioning and presentation from prison staff, although attempts should be made to do this. Ask the prisoner for a relative’s telephone number and permission to speak to them. The prison medical file may not contain all the necessary information, and in some cases other prison records should be examined. History taking, MSE, and information gathering should proceed as with any other psychiatric assessment. Short cuts and sloppy practice should not be allowed to creep into psychiatric practice in prison. Options in the management of mentally disordered prisoners If a psychiatrist assesses a prisoner and finds that they are mentally disordered he may:

  • Treat the person in prison
  • Arrange for the person to be transferred to mental health services, either by arranging direct transfer from prison (see p. 671) or by recommending a mental health disposal through the courts if the prisoner has not been sentenced yet.

No prison, or prison medical centre, is recognised as a hospital under mental health legislation. Therefore compulsory treatment under the Mental Health Act cannot be given. All prisoners with severe mental illness should be transferred to hospital for treatment. Legal provisions for transferring prisoners to hospital are set out on p. 669. Similar provisions for remand prisoners are discussed on p. 668 and listed on pp. 670, 671 for each jurisdiction. Treatment in prison

  • Medication, monitoring, and modest psychological treatment (supportive psychotherapy perhaps utilising some cognitive-behavioural or psychodynamic techniques) may be offered to prisoners with mental disorders who do not require treatment in hospital.
  • Various treatment programmes to address offending behaviour have been developed in prisons. These are run by the prison service and do not involve mental health services. Programmes are available for areas P.659
    such as sexual offending, anger management, alcohol and substance misuse, problem solving.
  • Some prisons specialise in treating certain mentally disordered prisoners—e.g. HMP Grendon in England offers therapeutic community treatment for personality disordered prisoners who volunteer to be transferred there; there is a 17-bed psychiatric unit at HMP Maghaberry in NI.

Suicide in prison Suicide is the most common mode of death in prisons. The rate is approximately 9 times that in the general population. The most common means is by hanging. Remand prisoners, young offenders, and those with histories of substance misuse and violent offences are at particular risk. Many factors probably contribute to the increased rate of suicide in prisons, including:

  • histories of psychiatric disorder
  • previous self-harm
  • alcohol and substance misuse
  • social isolation

These are compounded by:

  • uncertainty
  • powerlessness
  • bullying
  • isolation

The task of identifying prisoners who are at risk is extremely difficult as those who kill themselves share the same vulnerabilities and stresses with many other prisoners who do not. A major factor that may reduce suicide rates is improvement in prison conditions. Isolation of prisoners at risk in strip cells still occurs although it is becoming less frequent and is against official guidance. References 1 Birmingham L (2003) The mental health of prisoners. Advances in Psychiatric Treatment 9, 191–201. 2 Chiswick D and Dooley E (1995) Psychiatry in prisons. In Seminars in Practical Forensic Psychiatry (eds. Chiswick D and Cope R). London: Gaskell. P.660
Legal provisions for transfer of prisoners to hospital Sentenced prisoners E&W Section 47 MHA1983 allows for the transfer of a mentally disordered sentenced prisoner to hospital. There must be reports from two registered medical practitioners addressing what category of mental disorder the person suffers from and whether this is of a nature or degree to warrant hospital detention. The reports are submitted to the Secretary of State who decides whether or not to grant a ‘transfer direction’. Section 49 MHA1983 allows the Secretary of State to add a ‘restriction direction’ to a transfer direction, which has the same effect as a restriction order under section 41 (see p. 671) and may last as long as the sentence the person was serving. In practice section 47 is rarely made without section 49. Scot Section 136 MH(CT)(S)A2003 sets out similar provisions for Scot. There must be reports from two medical practitioners (one approved) addressing whether the prisoner has a mental disorder, that the mental disorder is ‘treatable’, that the person would be at risk or pose a risk to others, and that the transfer is necessary. The reports are submitted to the Scottish Ministers who decide whether or not to grant a ‘transfer for treatment direction’. All transferred prisoners are treated as restricted patients for the duration of the prison sentence that they are serving. NI Article 53 MH(NI)O1986 sets out similar provisions for NI. Two medical practitioners (one appointed for the purposes of part II by the Mental Health Commission) must submit reports to the Secretary of State. The issues are similar to E&W, except the mental disorder must be mental illness or severe mental impairment. The order is called a ‘transfer direction’. Article 55 allows the addition of a ‘restriction direction’ as in E&W. RoI The law in this area is complex and obscure. Section 8 Criminal Justice Act 1960 confirms provisions under section 2 and section 3 of the Criminal Lunatics (Ireland) Act 1838 and section 13 of the Lunatic Asylums (Ireland) Act 1875, allowing for the transfer of insane prisoners from prison to hospital. Transfer to the Central Mental Hospital is allowed under Central Lunatic Asylum (Ireland) Act 1845. Two doctors must certify insanity and the Minister of Justice must authorise the transfer. Section 17 Criminal Justice Administration Act 1914 allows the transfer of a prisoner to the Central Mental Hospital for assessment or treatment on a ‘hospital order’ authorised by a Minister of Justice. The prisoner does not need to be certified and this is therefore an informal measure. P.661
In practice, forms issued by the Minister for Justice, Equality, and Law Reform are used. Criminal Law (Insanity) Bill 2002 does not contain provisions for the transfer of prisoners (which would therefore remain unchanged); this has been criticised by several bodies, and such provisions will probably be included. Prisoners awaiting trial or sentence E&W Section 48 MHA1983 is similar to section 47 but provides for transfer of unsentenced prisoners. Other differences from section 47: the person must have mental illness or severe mental impairment (cannot be used for psychopathic disorder or mental impairment) and there must be urgent need for treatment. This section also enables the transfer of civil prisoners and people detained under immigration legislation. Scot Section 52 CP(S)A1995 provisions (‘assessment orders’ and ‘treatment orders’), as described on p. 670, may be used for prisoners awaiting trial or sentence. The necessary medical recommendations are made to the Scottish Ministers who then apply to a court for the person to be admitted to hospital, in the same way as for a hospital remand made at any court appearance. NI Article 54 sets out similar provisions for NI as section 48 MHA1983 for E&W. Again, one of the two doctors must be approved under part II by the Commission. The prisoner may not be transferred to the State Hospital, as it is in another jurisdiction and the court process has not been completed. RoI Provisions are as set out above for sentenced prisoners. P.662
Court reports and giving evidence (1) A psychiatrist may be required to provide reports and give evidence in criminal and civil proceedings; the following deals with reports in criminal proceedings. Introduction Reports may be requested by the prosecution, the court, or by a solicitor. The assessment should be objective and professional, and should not be influenced by which ‘side’ has made the request. The clinical issues The clinical issues will involve those that psychiatrists usually assess: diagnosis, treatment needs, prognosis, etc. However, specific attention needs to be given to how these clinical issues interact with the legal issues in question. What is the relationship between any psychiatric disorder and past, present, and future offending? How might treatment or the natural course of the disorder impact on the likelihood of further offending? What impact might the current mental state have on the person’s ability to participate in the court process? The legal issues The request for psychiatric assessment should indicate the legal issues towards which the psychiatrist should direct the assessment. However in many cases the instructions are not specific. The main issues to consider are usually:

  • Fitness to plead (see p. 672)
  • Responsibility (see pp. 676, 677, 678, 679)
  • The presence of mental disorder and whether assessment and/or treatment under compulsion (or otherwise) is required (see pp. 668, 669)
  • The risk the person poses (may be relevant in whether a restriction order is imposed, in determining if disposal should be to a secure unit or special hospital, or perhaps in determining the nature of the sentence imposed; see p. 669).

Before the interview

  • Comprehensive background information should usually be provided by those requesting the report. Unfortunately this is often lacking. Ideally one should have the opportunity to examine: document specifying the charges, police summary, witness statements, records of interviews with the accused, records of previous offences, other reports. Sometimes tape recordings of interviews, photographic or video evidence may be available.
  • Arrangements should be made to interview the person in prison (if they have been remanded in custody), as an outpatient (if they have been remanded on bail), or in hospital (if they have been admitted to hospital). The psychiatrist should be given reasonable time to complete the assessment and produce a considered report. If there is insufficient time then this should be stated in the report and any opinion given should be qualified.

The interview

  • Check the person’s correct name and details. Introduce yourself and state who has requested the report.
  • Make it clear that the interview is not confidential and that the information in the report will be seen by others.
  • Clarify that the person has understood this, and seek their consent to prepare the report.
  • If the person refuses to be interviewed then this should be respected and reported to the person requesting the report.
  • Ask the person’s permission to contact a relative and/or their GP for further information.
  • Follow the usual format for a psychiatric assessment.
  • Enquiry about the circumstances of the offence and the person’s understanding of the court process will need to be made in addition.
  • More than one session may be necessary in some cases.
  • Physical examination and investigations should be performed if indicated.

After the interview Further information may be gathered from the following sources:

  • Interviews with relatives or staff (health care, prison, or social services):
  • Health (psychiatric or general practice), prison, social work, or educational records.
  • In some cases specific psychometric testing by a psychologist may be necessary (e.g. where a person appears to be learning disabled).

Court reports and giving evidence (2)1–4 The report

  • The various strands of the assessment should be brought together in the report.
  • The report should be clear, concise, well structured, and jargon-free.
  • Technical terms (e.g. schizophrenia, personality disorder, delusions, hallucinations, thought disorder) should be explained if they are used.
  • If a number of sources of information have been used, indicate where the particular factual information in the report has come from, particularly when there are inconsistencies (e.g. ‘according to…’, ‘he stated that…’).
  • The main body of the report should present the information gathered; the opinion should present the conclusions concerning the relevant issues and lead to the recommendations.
  • The opinion and recommendations should confine themselves to psychiatric issues. Punitive sanctions, such as imprisonment, should never be recommended.

There is no set format for a report, just as there are different ways of presenting history and mental state. A suggested structure is given on pp. 666, 667. What will happen to the report?

  • The report becomes the property of whoever requested it.
  • Defence reports may or may not be produced in evidence in a particular case; prosecution reports must be revealed to the defence.
  • Copies of the report should not be sent by the psychiatrist to others (such as the patient’s GP, another psychiatrist, or a probation officer) without the consent of both the person examined and the person who commissioned the report.
  • A psychiatric report may come to be included in various records (health, prison, probation), and may in the future be used for reference or in further legal proceedings.

Giving evidence In most cases a psychiatrist will not be required to give oral evidence. However under some circumstances this will be the case: a report requires clarification, the court finds it difficult to accept the opinion, there are conflicting reports, in specific circumstances where oral evidence is obligatory (e.g. where a restriction order is under consideration). If you are requested to attend court:

  • Clarify with the court when you should attend.
  • Prepare in advance by examining the papers and re-reading your report.
  • Consult references and anticipate questions.
  • Present in a smart, confident, professional manner and be punctual.
  • Counsel may request a conference before the court sits.
  • Have a brief interview with the accused in the court cells if he has not been seen for sometime and particularly where fitness to plead may be an issue.

When called to give evidence you will be asked to take the oath, and then will be questioned by the barrister or solicitor who called you. You will then be cross-examined by the ‘other side’ before being re-examined. You may take notes with you, but ask the judge before referring to them. Speak clearly and slowly, and explain technical terms. Address the judge. If counsel’s questioning is not allowing you to get the appropriate information across, then ask the judge if you may clarify your response. A note on addressing the judge:

  • E&W—High Court ‘My Lord’ or ‘My Lady’; local judge ‘Your Honour’; Magistrate’s Court ‘Sir’ or ‘Madam’.
  • Sc—High Court and Sheriff Court ‘My lord’ or ‘Sir’ and ‘My lady’ or ‘Ma’am’.
  • NI—as E&W.
  • RoI—‘Your Lordship’, ‘Judge’, or ‘Sir’.

References 1 Bluglass R (1995) Writing reports and giving evidence. In Seminars in Practical Forensic Psychiatry (eds. Chiswick D and Cope R). London: Gaskell. 2 Bluglass R (1990) The psychiatrist as an expert witness. In Principles and Practice of Forensic Psychiatry (eds. Bluglass R and Bowden P). Edinburgh: Churchill Livingstone. 3 Chiswick D (1990) The psychiatric report: Scotland. In Principles and Practice of Forensic Psychiatry (eds. Bluglass R and Bowden P). Edinburgh: Churchill Livingstone. 4 Grounds A (1993) Psychiatric reports for legal purposes in the United Kingdom. In Forensic psychiatry: clinical, legal and ethical issues (eds. Gunn J and Taylor P). Oxford: Butterworth-Heinemann. P.666
Suggested format for criminal court report

  • The following sets out a comprehensive list of the matters that may be set out in a report.
  • Not all of the issues will be relevant in every case. For example:
    • Where there is little information available and the recommendation is for further assessment, then the report may be relatively brief, focusing on the issues of relevance to the making of any relevant order.
    • Where the person has been convicted, consideration of fitness to plead, insanity at the time of the offence, and diminished responsibility (in murder cases) is irrelevant.
    • Where a report is updating a previous report prepared in the same case relating to the same offence (or alleged offence) or is recommending the extension of an order, then the report may be relatively brief, as long as it addresses whether the person fulfils the criteria for that order and why extension is necessary.

Preliminary information

  • At whose request the assessment was undertaken, circumstances of assessment (place, time, any constraints on assessment such as inadequate time to complete assessment due to prison routine).
  • Sources of information used (interview with the person, interviews with others, documents examined).
  • The person’s capacity to take part or refuse to take part and understanding of the limits of confidentiality.
  • If any important sources of information could not be used, there should be a statement as to why this was the case.

Background history family history; personal history; medical history; psychiatric history; recent social circumstances; personality; forensic history. Circumstances of offence or alleged offence Progress since offence or alleged offence: particularly where there has been a considerable period of time since the (alleged) offence. Current mental state Opinion

  • Fitness to plead
  • Presence of mental disorder currently and whether the criteria for the relevant order are met
  • Presence of mental disorder at the time of the offence:
    • The relationship between any mental disorder and the offence (this is still relevant even if the person has been convicted as it may affect the choice of disposal)
    • Whether the person was insane at the time of the offence
    • In murder cases, whether there are grounds for diminished responsibility
  • P.667

  • Assessment of risk:
    • The risk that the person might pose of re-offending
    • The relationship between this risk and any mental disorder present
    • Does the person require to be managed in a secure setting (medium secure unit, high security hospital)
  • What assessment or treatment does the person require?
    • Does the person need further assessment? (Where? Does the person need a period of inpatient assessment and at what level of security? Why? What issues remain to be clarified?)
    • Does the person require treatment? (What treatment do they need and where?)
  • State any matters that are currently uncertain and the reasons they remain uncertain


  • Should the court consider using any particular order (and if so what arrangements have been made for the person to be received in hospital or elsewhere under this order)
  • Whose care will the person be under

Consider whether an alternative order may be appropriate if circumstances change so that the order recommended above cannot be acted on e.g.

  • If the person is or is not found to be insane
  • If the person is or is not convicted

Medical practitioner’s details: name; current post; current employer; qualifications; whether fully registered with the GMC; approved under relevant mental health legislation; a statement that the report is given on soul and conscience (in Scot); statements as to whether the medical practitioner is related to the person and has any pecuniary interest in the person’s admission to hospital or placement on any community based order (if a mental health disposal is being recommended); the medical practitioner should sign the report. P.668
Overview of the pathways of mentally disordered offenders through the criminal justice and health systems The following gives an overview of the criminal justice process, and how at each stage mental disorder may lead to certain courses of action being taken. Different procedures are available in the 4 main jurisdictions of the British Isles (see also pp. 670, 671 for a summary of the legal provisions for each jurisdiction). The numbers appearing in superscripts below give an indication as to which procedures are not applicable in all 4 jurisdictions: 1. E&W and Scot only; 2. Not in RoI; 3. Scot only. Arrest and police custody After being apprehended an individual may be diverted to mental health services informally or under civil procedures. Police may also have specific powers allowing them to take mentally disordered individuals for assessment by psychiatric services. Pre-trial

  • At a pre-trial court appearance a mentally disordered individual may be remanded to hospital for assessment and/or treatment2. With more minor offences criminal proceedings may be taken no further and an individual may receive care from mental health services either informally or using compulsory measures under mental health legislation.
  • If an individual is remanded in prison, but appears to be mentally disordered, procedures may allow for the transfer of that person to hospital.
  • If an individual is remanded on bail, conditions may be attached so that they are required to be assessed and/or treated by psychiatric services.


  • If a person’s mental state is such that they cannot participate in the court process then they may be found unfit to plead and would subsequently only be liable to receive a mental health disposal.
  • Mental disorder may affect a person’s legal responsibility for their actions:
    • Automatic behaviour (automatism) may lead to complete acquittal or acquittal on the grounds of insanity.
    • A severe mental disorder may be such that a person is held not to be legally responsible for their actions and they are acquitted on the grounds of insanity (also known as not guilty by reason of insanity). Following such a finding they would only be liable to receive a mental health disposal.
    • In murder cases, mental disorder may lead to diminished responsibility, reducing the offence to manslaughter, thus avoiding the mandatory life sentence and allowing flexibility in disposal (which may be a penal or mental health disposal).
    • Despite the presence of mental disorder at the time of trial and/or at the time of the offence, a mentally disordered offender may plead or be found guilty. Mental disorder may then be taken into account when sentence is passed.
    • P.669


  • Procedures may allow a mentally disordered offender to be assessed in hospital after conviction but prior to sentencing2.
  • Individuals remanded in prison awaiting sentence may be transferred to hospital if they appear mentally disordered, as at the pre-trial stage2.

Sentencing Following conviction a mentally disordered offender may receive a mental health disposal2:

  • A compulsory order to hospital
  • A compulsory order to hospital with special restrictions in more serious cases
  • A compulsory order to hospital with a prison sentence running in parallel1
  • A compulsory order in the community3
  • Other community disposals

They may alternatively, despite the presence of mental disorder, receive a penal disposal either in prison or the community. During a prison sentence if a person appears to be mentally disordered they may be transferred to hospital. References 1 E&W and Scot only. 2 Not in RoI. 3 Scot only. P.670
Legal provisions for procedures relating to mentally disordered offenders

  E&W Scot NI RoI
Detention of mentally disordered person found in public place s136 MHA1983 s297 MH(CT)(S)A2003 a130 MH(NI)O1986 s12 MHA2001
Detention of mentally disordered person in private premises s135 MHA1983 s293 MH(CT)(S)A2003 a129 MH(NI)O1986 s12 MHA2001
Remand to hospital for assessment s35 MHA1983 s52B-J CP(S)A1995 a42 MH(NI)O1986 —
Remand to hospital for assessment s36 MHA1983 s52K-S CP(S)A1995 a43 MH(NI)O1986 —
Transfer of untried prisoner to hospital s48 MHA1983 s52B-J P(S)A1995 or s52K-S CP(S)A1995 a54 MH(NI)O1986 *
Criteria for fitness to plead R v Prichard HMA v Wilson Stewart v HMA R v Prichard R v Prichard (s3 CL(I)B2002)
Procedure relating to a finding of unfitness to plead s2–3 and sch 1–2 CP(IUP) A1991 s54–57 CP(S)A1995 a49 and 50A MH(NI)O1986 Lunacy(Ireland) Act 1821, Juries Act 1976 (s3 CL(I)B2002)
Criteria for insanity at the time of the offence M’Naghten Rules HMA v Kidd CJ(NI)A1966 Doyle v Wicklow County Council
Procedure relating to a finding of insanity at the time of the offence s1&3 and sch 1–2 CP(IUP) A1991 s54 and 57 CP(S)A1995 a50 and 50A CJ(NI)O1996 Trial of Lunatics Act 1883 (s4CL(I)B2002)
Criteria for diminished responsibility s2 Homicide Act 1957 Galbraith v HMA CJ(NI)O1996 — (s5 CL(I)B2002)
Post-conviction but pre-sentence
Remand to hospital for assessment s35 MHA 1983 s52B-J CP(S)A1995 s200 CP(S)A1995 a42 MH(NI)O1986 —
Remand to hospital for treatment s36 MHA1983 s52K-S CP(S)A1995 a43 MH(NI)O1986 —
Interim hospital/compulsion order s38 MHA 1983 s53 CP(S)A1995 — —
Transfer of untried prisoner to hospital s48 MHA1983 s52B-J CP(S)A1995 or s52K-S CP(S)A1995 a54 MH(NI)O1986 *
Compulsory treatment in hospital under MHA s37 MHA1983 s57A CP(S)A1995 a44 MH(NI)O1986 —
Restriction order s41 s59 MHA1983 a47 CP(S)A1995 — MH(NI)O1986
Hybrid order (hospital disposal with prison sentence) s45A-B MHA1983 s59A CP(S)A1995 — —
Compulsory treatment in community under MHA — s57A CP(S)A1995 — —
Guardianship s37 MHA1983 s58(1A) CP(S)A1995 a44 MH(NI)O1986 —
Intervention order for incapable adult — s60B CP(S)A1995 — —
Psychiatric probation order sch2 (p5) Powers of Criminal Courts (Sentencing) Act 2000 s230 CP(S)A1995 sch1(p4) CJ(NI)O1996 —
Transfer of sentenced prisoners to hospital s47 MHA1983 s136 MH(CT)(S)A2003 a53 MH(NI)O1986 *
Restriction direction for transferred prisoner s49 MHA1983 ** a55 MH(NI)O1986  
a = article; p = paragraph; s = section; sch = schedule; CJ(NI)A1966 = Criminal Justice (NI) Act 1966; CJ(NI)O1996 = Criminal Justice (NI) Order 1996; CL(I)B2002 = Criminal Law (insanity) Bill 2002; CP(IUP)A1991 = Criminal Procedure (Insanity and Unfitness to Plead) Act 1991; CP(S)A1995 = Criminal Procedure (Scot) Act 1995; MHA1983 = Mental Health Act 1983; MHA2001 = Mental Health Act 2001; MH(CT)(S)A2003 = Mental Health (Care and Treatment) (Scot) Act 2003; MH(NI)O1986 = Mental Health (NI) Order 1986;- = no such procedure in this jurisdiction; (…) = proposals in CL(I)B2002 for RoI are in parentheses;-
* = procedure may involve various old pieces of legislation.
** = all s136 MH(CT)(S)A2003 transfer directions in Scot are restricted.

Fitness to plead (1)—assessment Essence If a person’s mental disorder is such that they cannot participate adequately in the court process, then it has long been held that it is unfair for the person to be tried. If this is the case the court finds the person unfit to plead (also known as insanity in bar of trial (in Scot) and incompetent to stand trial) and the trial does not proceed. Legal criteria The details of these vary in different jurisdictions, but broadly cover the same issues. (See opposite) Clinical assessment of fitness to plead The assessment of fitness to plead is concerned with the current mental state and ability of an accused. This involves:

  • Making a diagnosis of mental disorder
  • Determining the impact of this disorder on the abilities covered in the legal criteria.

Clinicians should be aware that the mental state of an individual may change and therefore if some time has elapsed between a clinical examination and the accused’s appearance in court then a brief re-examination may be necessary. Diagnoses that may be relevant: Dementia and other chronic organic conditions, delirium, schizophrenia and related psychoses, severe affective disorders (mania and depression), LD. Features of an individual’s mental state due to their disorder to be taken into consideration:

  • Ability to communicate (schizophrenic thought disorder, manic flight of ideas, depressive poverty of speech, dysphasia of dementia)
  • Beliefs (e.g. the individual may have delusions that they have a divine mission and that the court process is irrelevant to them)
  • Comprehension (may be impaired in dementia, acute confusion, or learning disability)
  • Attention and concentration (may be impaired in any of the conditions listed above)
  • Memory (as noted above amnesia for the alleged offence is irrelevant, but short-term memory failure due to organic impairment may be such to make following proceedings in court impossible).

In some cases suggestions may be made as to how the communication and understanding of the accused may be facilitated. However such suggestions must be practicable in court. In most cases psychiatric evidence is unanimous and followed unquestioningly in court. A recommendation that an individual is unfit to plead should be reserved for cases where this is beyond doubt. In borderline cases certain measures (such as a hospital remand) may allow further assessment and treatment to clarify the issue. Where the index offence is relatively minor it may be appropriate for charges to be dropped and for civil detention to be initiated. In such cases prosecutors are usually keen to take this course. P.673
Fitness to plead—legal criteria for finding E&W: R v Prichard (1836) 7 C&P 303 ‘Whether he can plead to the indictment… [&]… whether he is of sufficient intellect to comprehend the course of proceedings on trial, so as to make a proper defence—to know that he might challenge any of you [the jury] to whom he might object—and to comprehend the details of evidence…’ Scot: HMA v Wilson 1942 JC 75 ‘… a mental alienation of some kind which prevents the accused giving the instruction which a sane man would give for his defence or from following the evidence as a sane man would follow it and instructing his counsel as the case goes, along any point that arises.’ Similar criteria set out recently: Stewart v HMA (No. 1) 1997 JC 183 ‘The question for [the trial judge] was whether the appellant, by reason of his material handicap, would be unable to instruct his legal representatives as to his defence or to follow what went on at his trial. Without such ability he could not receive a fair trial.’ The test excludes amnesia for the circumstances of the alleged offence. NI: As for E&W RoI: Currently as for E&W, but proposals for statutory definition under s3(2) Criminal Law (Insanity) Bill 2002: ‘An accused person shall be deemed unfit to be tried if he or she is unable by reason of mental disorder to understand the nature or course of the proceedings so as to: (a) plead to the charge, (b) instruct a legal representative, (c) make a proper defence, (d) in the case of a trial by jury, challenge a juror to whom he or she might wish to object, or (e) understand the evidence.’ P.674
Fitness to plead (2)—procedures What happens after a person is found unfit to plead? A person who is unfit to plead may not be subject to penal sanctions. Traditionally the person would be detained indefinitely in a secure hospital with special restrictions on discharge until they recovered to the extent that they could be tried (although the person would rarely go back for trial even if they recovered!). This unsatisfactory arrangement is still the case in the RoI. In E&W, Scot, and NI, following a finding of unfitness to plead, there is a trial of facts where the court determines if the person did the act charged. If the facts are found the person may be subject to one of a range of mental health disposals depending on their mental state, their needs, and the risk they might pose. See following for details. Proceedings following a finding E&W

  • Proceedings set out in the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991.
  • Following a finding of unfitness to plead there is a trial of facts held to determine whether on the balance of probability it is likely that the person committed the offence.
  • If this is not found to be the case the defendant is discharged; if it is found to be the case the person may be subject to one of the following disposals:
    • Hospital order (almost identical to s37 MHA1983)
    • Hospital order with restriction order (almost identical to s37 and s41 MHA1983)
    • Guardian order (almost identical to s37MHA1983)
    • Supervision and treatment order (similar to psychiatric probation order)
    • No order
  • If the person had been charged with murder then there is a mandatory hospital order with an unlimited restriction order.


  • Proceedings set out under s54—57 CP(S)A1995.
  • Following a finding of insanity in bar of trial there is an ‘examination of facts’.
  • Whilst awaiting this the person may be placed in prison, on bail, or in hospital under a temporary compulsion order.
  • At the ‘examination of facts’ a determination is made as to whether on the balance of probability it is likely that the person committed the offence.
  • If this is not found to be the case the defendant is discharged; if it is found to be the case the person may be subject to one of the following disposals:
    • Compulsion order (almost identical to s57A CP(S)A1995) in hospital or the community
    • Compulsion order in hospital with a restriction order (almost identical to s57A and s59 CP(S)A1995)
    • P.675

    • Interim compulsion order (almost identical to s53 CP(S)A1995)
    • Guardianship order or intervention order (identical to such orders under the Adults with Incapacity (Scot) Act 2000);
    • Supervision and treatment order (similar to a psychiatric probation order)
    • No order
  • In Scot there is no longer a mandatory restriction order in murder cases. The interim compulsion order is to be used in all cases where the person appears to pose a considerable risk to others; following assessment, if the person is determined to pose a high risk according to the criteria set out under section 210E CP(S)A1995, then the mandatory disposal is a compulsion order to hospital with a restriction order.


  • Articles 49 and 50A MH(NI)O1986 set out almost identical procedures as for E&W.


  • A finding of unfitness to plead currently leads to a High Court order for indefinite detention at the Central Mental Hospital. Any application for discharge or parole must be approved by the Minister for Justice.
  • Proposals under the Criminal Law (Insanity) Bill 2002 are that:
    • If a person is found unfit to be tried, and the court is satisfied that there is a reasonable doubt that he committed the act alleged, it will acquit him and no further action under criminal proceedings will be taken.
    • If that is not the case, then following a finding of unfitness to be tried the person must be examined by a doctor to determine if they meet the criteria for detention under the Mental Health Act 2001; this may occur via a 28-day period of assessment in a designated centre.
    • If the person does meet such criteria then they are detained in a designated centre until they are fit to be tried or they no longer require detention in hospital. The designated centre may be a prison or hospital.

Fitness to stand trial Fitness to stand trial is a separate issue from fitness to plead. It concerns whether a person is so unwell (either mentally or physically) that they are unable to appear in court or appearing in court would be detrimental to their health. In most circumstances an individual who was unfit to stand trial due to mental disorder would be unfit to plead. P.676
Criminal responsibility (1) If a person was mentally disordered at the time of an offence this may affect their legal responsibility for their actions. The relevant legal issues are:

  • insanity at the time of the offence
  • automatism
  • diminished responsibility (pp. 678, 679)
  • infanticide (p. 678)

Insanity at the time of the offence In some cases the court may find that a person’s mental condition was such that they cannot be held responsible for their actions; they are then acquitted on the grounds of insanity (also known as insanity at the time of the offence, not guilty by reason of insanity, or guilty but insane [the present term in the RoI]). For legal criteria, see opposite page. Automatism

  • If an individual commits an offence when his body is not under the control of his mind (e.g. when asleep) he is not guilty of the offence.
  • Legally this is called an automatism. (NB This is different from the clinical concept of automatism occurring during a complex partial seizure.)
  • In E&W two legal types of automatism are recognised: insane and sane (automatism simpliciter). The distinction is based on whether the behaviour is likely to recur:
    • Insane automatism—due to an intrinsic cause (e.g. sleepwalking, brain tumours, epilepsy) results in an acquittal on the grounds of insanity.
    • Sane automatism—due to an extrinsic cause (e.g. confusional states, concussion, reflex actions after bee stings, dissociative states, night terrors, and hypoglycaemia) results in a complete acquittal.

N.B. The distinction is less important now that there is a flexible range of disposals available for those found insane.

  • In Scot (until recently) sane automatism was not recognized—it is now recognised only in cases where an external factor is shown to have caused the accused’s dissociated state of mind.

What happens after a person is acquitted on the grounds of insanity?

  • Disposal after an acquittal on the grounds of insanity is identical to that following a finding of unfitness to plead with the facts found in E&W, Scot, and NI; and that following a finding of unfitness to plead in the RoI. (See opposite).

Insanity at the time of the offence—legal criteria E&W: M’Naghten Rules of 1843 (West and Walk 1977) ‘Every man is presumed to be sane, until the contrary be proved, and that to establish a defence on the grounds of insanity it must be clearly proved that at the time of committing the act the accused party was labouring under such a deficit of reason from disease of the mind to not know the nature and quality of the act; or that if he did know it, that he did not know that what he was doing was wrong’. Also: ‘If the accused labours under a partial delusion only [meaning an isolated delusional belief or system, rather than a partially held delusion or over-valued idea], and is not in other respects insane, he should be considered in the same situation as to responsibility as if the facts with which the delusion exists were real’. Scot: HMA v Kidd 1960 JC 61 ’… in order to excuse a person from responsibility on the grounds of insanity, there must have been an alienation of reason in relation to the act committed. There must have been some mental defect… by which his reason was overpowered, and he was thereby rendered incapable of exerting his reason to control his conduct and reactions. If his reason was alienated in relation to the act committed, he was not responsible for the act, even although otherwise he may have been apparently quite rational.’ NI: Criminal Justice (NI) Act 1966 A defendant who is found to have been ‘an insane person’ at the time of the alleged offence shall not be convicted. ‘Insane person’ means ‘a person who suffers from mental abnormality which prevents him —

  • from appreciating what he is doing; or
  • from appreciating that what he is doing is either wrong or contrary to law; or
  • from controlling his own conduct’

Mental abnormality is defined as ‘an abnormality of mind which arises from a condition of arrested or retarded development of mind or any inherent causes or is induced by disease or injury’. RoI: Currently to be found guilty but insane the rules are similar to the M’Naghten Rules with the addition of an alternative strand (Doyle v Wicklow County Council (1974) IR 55), that he: ’…was debarred from refraining from committing the damage because of a defect of reason due to his mental illness.’ Proposals under s4(1) Criminal Law (Insanity) Bill 2002: ‘Where an accused person is tried for an offence and, in the case of the District Court or Special Criminal Court, the court or, in any other case, the jury finds that the accused person committed the act alleged against him or her and, having heard evidence relating to the mental condition of the accused given by a consultant psychiatrist, finds that—(a) the accused person was suffering at the time from a mental disorder, and (b) the mental disorder was such that the accused person ought not to be held responsible for the act alleged by reason of the fact that he or she—(i) did not know the nature and quality of the act, or (ii) did not know that what he or she was doing was wrong, or (iii) was unable to refrain from committing the act, the court or the jury, as the case may be, shall return a special verdict to the effect that the accused person is not guilty by reason of insanity.’ P.678
Criminal responsibility (2) Diminished responsibility

  • In murder cases, a person’s mental condition may be such that although they cannot be fully absolved of responsibility they are found to be of diminished responsibility (known as impaired mental responsibility in NI).
  • Diminished responsibility does not currently apply in the RoI although proposals for its introduction are contained in the Criminal Law (Insanity) Bill 2002.
  • A finding of diminished responsibility does not result in acquittal, but in conviction for the lesser offence of manslaughter (or culpable homicide in Scot).

For legal criteria, see opposite page. Infanticide

  • In cases involving the killing of a child aged under 12 months by the mother she may be convicted of infanticide instead of murder if the court is satisfied that the balance of her mind was disturbed by reason of her not fully having recovered from the effect of giving birth to the child, or by reason of lactation consequent upon the birth (Infanticide Act 1938 for E&W, Infanticide Act (NI) 1939, Infanticide Act 1949 for RoI).
  • These criteria set a lower threshold than those for diminished responsibility.
  • Disposal in such cases is flexible, as with manslaughter.
  • This defence is not available in Scot where diminished responsibility would be used instead in such cases.

What happens following a finding of diminished responsibility?

  • A person is convicted of manslaughter (or culpable homicide in Scot) instead of murder.
  • There is therefore no mandatory sentence of life imprisonment and the court may pass any sentence it sees fit: penal sanctions in the community or prison, or any of the mental health disposals available following conviction (see pp. 670, 671).

Diminished responsibility—legal criteria E&W: Section 2 Homicide Act 1957 states ‘When a person is party to the 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 a party to the killing.’ In R v Byrne (1960) 44 Cr App R 246 ‘abnormality of mind’ was interpreted widely: ‘… a state of mind so different from that of ordinary human beings that the reasonable man would term it abnormal. It appears to us to be wide enough to cover the mind’s activities in all its aspects, not only the perception of physical acts and matters and the ability to form a rational judgement whether an act is right or wrong, but also the ability to exercise will-power to control physical acts in accordance with that rational judgement.’ Scot: these were recently set out in Galbraith v H MA Advocate 2001 SCCR 551. The conclusions of the court were: ‘In essence, the judge must decide whether there is evidence that, at the relevant time, the accused was suffering from an abnormality of mind which substantially impaired the ability of the accused, as compared with a normal person, to determine or control his acts.’ ‘Psychopathic personality disorder’ and voluntary intoxication are excluded. The effect of a finding of diminished responsibility is that the accused is found guilty of culpable homicide rather than murder. NI: Criminal Justice Act (NI) 1966 defines the defence of ‘impaired mental responsibility’: ‘Where a party charged with murder has killed or was party to the killing of another, and it appears to the jury that he was suffering from mental abnormality which substantially impaired his mental responsibility for his acts and omissions in doing or being party to the killing, the jury shall find him not guilty of murder but shall find him guilty (whether as principal or accessory) of manslaughter.’ RoI: Not currently available. Proposals under s5(1) Criminal Law (Insanity) Bill 2002: ‘Where a person is tried for murder and the jury or, as the case may be, the Special Criminal Court finds that the person—(a) committed the act alleged, (b) was at the time suffering from a mental disorder, and (c) the mental disorder was not such as to justify finding him or her not guilty by reason of insanity, but was such as to diminish substantially his or her responsibility for the act, the jury or court, as the case may be, shall find the person not guilty of that offence but guilty of manslaughter on the ground of diminished responsibility.’ P.680
Assessing ‘mental state at the time of the offence’ Clinical examination

  • Necessitates the reconstruction of the circumstances of the offence and in particular the mental state of the accused at that time.
  • Along with interviewing the accused it is extremely helpful to peruse witness statements, police reports, and transcripts of police interviews (or if possible, to view videotaped interviews).
  • Other important sources to help with ‘retrospective’ assessment:
    • Relatives, or other persons, who knew the defendant at the time.
    • Any psychiatric assessment carried out soon after the offence (if the police or court were sufficiently concerned about their mental state).
    • Any records of contact with psychiatric services at the time, and the views of relevant staff who were involved in these contacts.

Putting the legal criteria into clinical terms For insanity at the time of the offence:

  • The accused should have been suffering from a severe mental disorder which was the overwhelming factor in determining the occurrence of the offence.
  • There should be a clear relationship between the offence and the symptoms of the mental disorder.
  • However it should be noted that the criteria for insanity at the time of the offence in Scot, NI, and the RoI are broader than not knowing what one is doing or that it is wrong, and encompass an inability to control one’s actions due to mental disorder (see criteria on p. 677).
  • Diagnoses that may be relevant: dementia and other chronic organic disorders (including those secondary to alcohol or drug misuse); delirium (including delirium tremens); schizophrenia and related psychoses; severe affective disorders with psychotic symptoms; severe LD.

NB In most successful cases the diagnosis is a psychotic disorder, and delusions or hallucinations are directly relevant to the behaviour constituting the offence. For diminished responsibility:

  • The accused should have evidently been suffering from an ‘abnormality of mind’ (i.e. a mental disorder not severe enough to deem them ‘insane’, but of sufficient degree to substantially impair their ability to determine or control their actions; see criteria on p. 679).
  • Diagnoses that may be relevant: any of the diagnoses listed above for insanity, as well as: non-psychotic affective disorders; acute stress reactions, adjustment disorders, and post-traumatic stress disorder; personality disorders (not primary dissocial personality disorder in Scot); sexual deviation (not in Scot); mild to moderate LD and pervasive developmental disorders (including autistic spectrum disorders).
  • Other conditions that have been successful in gaining a diminished responsibility verdict are ‘pre-menstrual syndrome’ and ‘battered spouse syndrome’.

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