IJLP-01087; No of Pages 8 International Journal of Law and Psychiatry xxx (2015) xxx–xxx

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International Journal of Law and Psychiatry

Public health system and psychiatry in the treatment of ‘dangerous’ young offenders in Brazil Rafael Bernardon Ribeiro a,b,⁎, Quirino Cordeiro a, José G.V. Taborda c a b c

Department of Psychiatry at Santa Casa Medical School, São Paulo, Brazil Experimental Health Unit (UES), São Paulo 2008-2010, Brazil Department of Clinical Medicine, Federal University of Health Sciences of Porto Alegre, Porto Alegre, Brazil

a r t i c l e

i n f o

Available online xxxx Keywords: Mental health Justice Young offenders Civil commitment Treatment

a b s t r a c t We describe the Experimental Health Unit, a special forensic mental health facility in Brazil, created by court order and administered by the São Paulo Department of Health. It was designed for young offenders receiving compulsory inpatient treatment for severe personality disorders. All nine patients admitted to date came from Foundation CASA (a socio-educational centre of assistance for adolescents, the juvenile correctional centres managed by the São Paulo state Department of Justice). The court decision is questionable, relying on a new interpretation of the Child and Adolescent Statute and the law that regulates psychiatric treatment in Brazil. The public health system and psychiatry have been supporting the isolation of some individuals from society, based on the seriousness of their crimes and possession of particular personality characteristics. The decision to commit and send a small group of personality disordered individuals to this unit as inpatients is an unfair decision, since jails and correctional centres hold a high number of psychopathic who have also committed barbaric crimes. The central mental health issue is the role that the public health system should play in the custody of dangerous people; the cost-effectiveness of this model, the accuracy of risk assessment and tractability of people with severe personality disorders are also debatable. From a legal perspective, the operation of this facility raises questions about age of legal majority, the maximum period of incarceration of young offenders and use of wholelife sentences for certain types of crimes and criminals in Brazil. © 2015 Published by Elsevier Ltd.

1. Introduction The Experimental Health Unit (Unidade Experimental de Saúde), in its current form, was created in Brazil by a São Paulo state decree. Originally designed as a Winicott-oriented special unit for very young offenders with relational problems, to be operated in partnership with the Federal University of São Paulo and Foundation CASA (the São Paulo correctional centre for young offenders), its original purpose has changed. Decree nb 53427/08 reads:

“[The Governor of São Paulo state] considering the orders from the Judiciary to the Executive to admit as inpatients in psychiatric facilities, under restriction, adolescents and young adults who have committed serious offences, have a diagnosis of personality disorder,

⁎ Corresponding author at: Rua Major Maragliano, 241, Vila Mariana, 04017-030 São Paulo, SP, Brazil. Tel.: +55 11 3466 2100. E-mail address: [email protected] (R.B. Ribeiro).

are considered highly dangerous persons, and had their ‘social and educational internment’ commuted to a ‘protective measure’, … decrees hereby as follows:

1st Article — It is hereby created, within the state Department of Health, directly under the Chief of Staff's administration, the Experimental Health Unit. 2nd Article — The purposes of the Experimental Health Unit are: I Admit highly dangerous adolescents and young adults diagnosed as personality disordered, exclusively sent by courts, for psychiatric treatment under restriction: a) discharged from Foundation CASA [a socio-educational centre of assistance for adolescents, one of the juvenile correctional centres managed by the São Paulo state Department of Justice] b) civilly committed by family courts; II Provide to the inmates human treatment, according to the principles laid down in the Federal Law nb 89/90, from July 13th

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Please cite this article as: Ribeiro, R.B., et al., Public health system and psychiatry in the treatment of ‘dangerous’ young offenders in Brazil, International Journal of Law and Psychiatry (2015), http://dx.doi.org/10.1016/j.ijlp.2015.03.013

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R.B. Ribeiro et al. / International Journal of Law and Psychiatry xxx (2015) xxx–xxx

1990, which establishes the Child and Adolescent Statute, and upcoming amendments.1

All aspects of the legal treatment of minors (those under 18 years old, also referred to as ‘juveniles’ in the context of the penal system) in Brazil is regulated by the Child and Adolescent Statute (ECA), namely Federal Law nb 8069/90 cited above (all Brazilian legislation is available at: www.lexml.gov.br). Crimes and contraventions are considered ‘infractions’ (Article 103), and severe and violent infractions can be punished with internment in correctional centres, up to a maximum period of 3 years. Liberation before the 21st birthday is mandatory. Article 121 of the ECA reads: “The internment constitutes deprivation of liberty, and is under the principles of briefness, exceptionality and respect for the developing person.

§ 3rd the maximum imprisonment term will not exceed the period of 3 years in any circumstances; § 4th On reaching the limits established on the previous paragraph, the adolescent must be placed at liberty, or on a ‘semi-liberty’ or ‘assisted liberty’ regimen. § 5th Liberation before the 21st birthday is mandatory.”

As the extract above demonstrates, subjective issues such as risk, severity of crime or criminal profile cannot override the chronological criteria, meaning that every single juvenile offender must be released after three years of internment or on his or her 21st birthday, whichever comes first. The criteria are very straightforward and do not differentiate occasional offenders and recidivists, petty criminals, offenders with mental disorders or severely aggressive and violent young offenders; even serial killers and serial rapists are subject to these provisions. In 2007 there was strong and consistent pressure from the São Paulo Juvenile Courts (DEIJ) on the state Departments of Health and Justice, demanding that the state Department of Health admit and treat young offenders with severe personality disorders, particularly sociopaths and psychopaths whose sentence (the so called ‘socio-educational measures’) had expired, and who therefore had to be released from confinement. This movement was triggered by a well-known and high profile case, that of a rapist and murderer who was about to be set free under the law described above. There was popular commotion and pressure despite the fact that many other cases of similar or even greater severity are released by juvenile courts every day, out of the spotlight, under the ECA. The purpose of this article is to discuss the role of the public health system in treating individuals with personality disorders and psychopaths, discussing what is possible, what is not, and what kind of risks and costs are worth taking, given the current scientific and statistical evidence. This is a fundamentally an essay about Brazilian legislation and public policies which affect a specific population, namely juvenile offenders (minors) in São Paulo state whose custody in a secure facility was based on their mental health status. We have analysed critically the pertinent laws (i.e., ECA, Penal Code and Federal Law 10,216/2001), state administrative decrees and court sentences in order to initiate academic debate over this unusual situation, which has gained national and international attention.

1 All São Paulo state decrees and court sentences are available at: www.imprensaoficial. com.br.

2. Pathway to the Experimental Health Unit All nine inmates/patients sent to the Experimental Health Unit by court order since 2007 were assessed by official state institutions, either the Institute for Social Medicine and Criminology of São Paulo state (IMESC) or the Legal Medicine Institute of São Paulo (IML), and/or by qualified doctors from the Institute of Psychiatry at the Clinics Hospital, University of São Paulo School of Medicine (Ipq-HC-FMUSP); and received a diagnosis and recommendations for treatment. This is a standard procedure, and hundreds of inmates undergo psychological and psychiatric assessments when admitted to Foundation CASA, the juvenile correctional centre in São Paulo. Whenever a psychiatric disorder is diagnosed, treatment is started promptly in loco, by a trained multidisciplinary mental health team. Personality disorders, in Brazilian forensic psychiatry, are not considered incapacitating mental illnesses of the same order as schizophrenia and bipolar disorder. The mainstream view is that most of these individuals can understand right and wrong (cognitive capacity), but might have some problems with impulse control (volitional capacity) (Morana & Camara, 2006). However, there is not usually a consensus on a diagnosis of impulse control impairment in these cases. Liability to stand trial thus depends on the expert opinion and understanding of the case, and the criminal context. In adult criminal justice, there is a statutory requirement to take into account both cognitive and volitional capacity, as well as the role of the disorder in offending (causal relationship) (Morana & Camara, 2006). Cognitive and volitional capacity are important considerations in the appraisal of mental capacity to stand trial as adults; this opens the way for individuals with personality disorder to plead ‘diminished capacity’ or ‘diminished responsibility’ and paradoxically, receive a less severe sentence. The great majority of the Experimental Health Unit's patients would be considered fully responsible if they were subject to these criteria. However, these concepts in Brazilian penal law do not apply to juvenile offenders (those under 18 years old), who are judged under the ECA principles. In Brazil, juvenile offenders cannot be sent to forensic hospitals, which are part of the adult penal system. For these individuals sent to the Experimental Health Unit, psychiatric assessments provided the technical basis for an innovative initiative. Having no legal means to keep these adolescents in a correctional facility beyond their 21st birthday, or after a three-year period of imprisonment, treatment for a mental disorder emerged as the only pretext for responding to society's demand that they not be released. In Brazil, the Federal Constitution strictly forbids whole-life sentences and there is no capital punishment. The age of majority for criminal punishment is 18 years, this is controversial and has been debated by every sector of society: lay people, the media, human rights activists, Congress and legal professionals. From a legal perspective the decision to commute internment in a juvenile correctional facility to detainment in a forensic mental health unit when there is no evidence that the individual is suffering from an acute mental illness is questionable, being neither provided for nor regulated by the ECA. Strong social pressure and pressure from within the justice system to keep certain kinds of individuals apart from society permanently, on the basis of their intrinsic personality characteristics, the seriousness of their offences, and the risk of recidivism, was behind the majority of the nine compulsory admission orders received by the unit. These decisions were well accepted by the Brazilian society. Regardless of the merits, it seems that psychiatry and the public health system are being used to justify the increases in the length of sentences and compulsory inpatient treatment, without precise rules. The sentences have been variously justified on the grounds of treatment, public protection, safety and popular demand. The legal argument used was Federal Law nb 10,216/01, which regulates psychiatric treatment in Brazil (Ministry of Health, 2004). According to this law, compulsory admissions are those determined by court order, and cannot occur without well justified medical request. The 4th Article states: “inpatient treatment, of any kind, will

Please cite this article as: Ribeiro, R.B., et al., Public health system and psychiatry in the treatment of ‘dangerous’ young offenders in Brazil, International Journal of Law and Psychiatry (2015), http://dx.doi.org/10.1016/j.ijlp.2015.03.013

R.B. Ribeiro et al. / International Journal of Law and Psychiatry xxx (2015) xxx–xxx

be chosen only if extra-hospital resources fail; §1st treatment objectives will permanently be social reinsertion of the patient in his or her environment”; in the 9th Article, it is stated that “compulsory internment, according to the law, is determined by the judge in charge, who will take into account the facilities, security conditions, the patient's own protection, protection for other patients and staff” (Ministry of Health, 2004). The next step, as all the patients concerned were approaching the age of legal majority when they would cease to be under the jurisdiction of the ECA, was to impose civil commitment and return responsibility for their cases to the original county, rather than the Juvenile Central Court. The transfer of these exceptional cases to civil and family courts put them under the charge of a judge who was unfamiliar with their particular features; so far, no magistrate (from primary to higher courts) has lifted the original order to “treat under restriction”. Those inmates who became inpatients have been periodically reassessed by the same government forensic services which identified their condition. The state Department of Health has also called experts to perform psychiatric examinations of those who consented, and the material has been sent to the respective courts. The conclusions of these psychiatric examinations vary from recognition that an individual poses extreme danger, with recommendations for indeterminate custody in some assessments, to simply confirming that medicine and psychiatry cannot currently provide any curative care for an individual. The assessments sponsored by the state Department of Health were intended to clarify the diagnosis for the judges, whether there was a treatable mental disorder, indications for inpatient treatment in a mental health facility, what type of treatment was indicated, the prognosis, and provide suggestions about case management. Those who consented where assessed within the therapeutic sphere: under the Brazilian Civil Mental Health Act rather than criminal law. In theory, ‘risk management’ is not a formal legal requisite for their discharge. On two occasions documents were sent to courts, with no practical consequences. In most cases, individuals were remanded to the Experimental Health Unit for reasons of social safety; not for psychiatric treatment. The judge in charge can choose which expert opinion to follow, and may request another opinion, if he or she disagrees with a line of thinking. For example, the attorneys for the last inmate to be discharged convinced the judge in question, on the basis of medical, social and psychological assessments, to send him to an outpatient clinic (psychosocial attention centre) to complete his ‘treatment’ for the condition which was responsible for his admission to the system; however, there was nothing to treat in a psychosocial attention centre. This proved to be a successful defence strategy. Table 1 Legal pathway to the Experimental Health Unit. Child and Adolescent Statute (ECA); 10,216/01 Federal Law (Brazilian Civil Mental Health Act). Socio-educational measure (ECA) ↓ conversion to Protective measure by Juvenile Central Court (ECA) ↓ and Compulsory inpatient treatment (10,216/01 law): treatment under detention, at the Experimental Health Unit, on psychiatric grounds ↓ after 3 years of incarceration or at 21 years of age (ECA): extinction of all restrictions and release from the Juvenile Justice System ↓ maintenance of detention under Civil Commitment (files transferred to civil and family courts) and Compulsory Inpatient Treatment orders (10,216/01 law) ↓ Discharges (4 cases) Alleged reasons: improper mental health care at the unit (human rights violation; 3 cases) and/or improvement of condition (2 cases)

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The pathway adopted, with slight variations, in most of the cases dealt with by the Experimental Health Unit can be seen in Table 1. 3. Legal aspects The decision to send young inmates who are thought to meet the DSM-IV-TR (American Psychiatric Association, 2000) criteria for axis II disorders to a forensic mental health facility was unusual and legally questionable, since it depends on a new interpretation of the ECA and Federal Law nb 10,216/01 (which regulates psychiatric treatment in Brazil — a Brazilian Civil Mental Health Act). We conclude that fundamentally, the legal argument for holding these young offenders at the Experimental Health Unit is based on a misinterpretation of the Brazilian Civil Mental Health Act and the concept of compulsory psychiatric inpatient treatment (Ministry of Health, 2004). The court orders compelled the Department of Health to provide inpatient treatment for these nine clients; the state Health Secretary personally faced the threat of arrest if the Court was not obeyed. The juridical manoeuvre used in most cases, as seen above, was to commute ‘social and educational internment’ to a so-called ‘protective measure’, until the cases could be transferred from the Juvenile Courts to Adult Civil or Family Courts. Under the ECA ‘protective measures’ apply in a broad range of challenging and risky situations, and can be used whenever the judge in charge understands that the subject needs some kind of assistance; they are very convenient in such cases. The original idea was to provide the subject with protection against harm and abuse from society, parents, the state, or from themselves (Article 98). Article 101 allows the judge to order inpatient or outpatient medical, psychological or psychiatric treatment according to the needs of the individual and in fulfilment of the global protection principle set out in Article 98. Under the ‘protection principle’, these individuals were transferred from Foundation CASA to the Experimental Health Unit. One example of court sentence follows below: “This is not the case of deprivation of liberty by unorthodox legal proceedings, as sustained by the Public Defendants' Office, but the case of assuring him the right of a proper socialization process to overcome the factors that led him to disobey the law. Furthermore, it is noted that the exchange of ‘social and educational internment’ for a ‘protective measure’ is covered by Articles 99, 100 and 113, all from ECA, the judge in charge of execution being authorized to adopt the most appropriate legal treatment for adequate re-socialization, without any connotation of disrespect to the judged matter, since this last is subject to the principle of rebus sic stantibus” (judge's sentence, Juvenile Central Court, São Paulo).2 [Gramkow (2012)] The state Department of Health, having no tradition of dealing with a potentially dangerous criminal population, had to make an agreement with the Penitentiary Administration to provide for these cases and thus the Experimental Health Unit was created. In the nine cases in which an individual has been transferred to the Experimental Health Unit, the decisions were justified under almost the same grounds; some judicial decisions are transcribed below as examples. 3.1. Juvenile court decision A treatment order: “Considering all the documents presented and the large amount of medical and psychological assessments stating that XXX has permanent organic personality disorder, with sociopathic traits and 2 Sentences made in the São Paulo state court's jurisdiction are available online at www. tjsp.jus.br.

Please cite this article as: Ribeiro, R.B., et al., Public health system and psychiatry in the treatment of ‘dangerous’ young offenders in Brazil, International Journal of Law and Psychiatry (2015), http://dx.doi.org/10.1016/j.ijlp.2015.03.013

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intellectual disability, and is high dangerous, I nominate his uncle as temporary guardian. … By the same reasons I grant the anticipated judicial protection, according to the 10,216/01 law in its 9th Article, determining a compulsory internment in a psychiatric facility to be chosen by the São Paulo state Department of Health” (judge's sentence, District Civil Court, Bertioga, São Paulo state).2 [Gramkow (2012)] A ‘civil commitment’ decision: “… from interrogation, his callousness when alluding to the facts is evident, and he contradicted himself numerous times. The clinical assessment of the irreversibility of his personality disorder, with behavioural and psychopathic problems, is conclusive. The records document the different versions presented by the subject in each stage of the process within the Juvenile Court, and the psychologists were able to witness and understand his contempt when describing his criminal acts, without regrets. Indeed, he revealed enjoyment when describing his cruelty. Regardless of any kind of improvement, it is clear that the patient represents a risk to himself and society, and will never be eligible for discharge, thus requiring continuous psychiatric care, surveillance and treatment as an inpatient in an appropriate facility…. After the above statements, I decide to rule for civil commitment …” (judge's sentence, District Family Court, Sorocaba, São Paulo state)2. [Gramkow (2012)]

3.2. Superior tribunal decisions The Brazilian judicial system allows a series of appeals and reviews by superior tribunals. The court hierarchy is as follows: 1. First instance or District Court 2. Second instance or State Justice Tribunal (TJ-SP) — State Court 3. Superior Tribunal of Justice (STJ) — Federal Court of Appeal (a kind of third instance) 4. Supreme Federal Court (STF) — the highest Brazilian court; deals with constitutional issues In general the higher courts will not consider the substance of the case, but will discuss technicalities, such as the time limits for appeal or inappropriate jurisdiction. For example in a habeas corpus decision the STJ found the petition not appropriate for that Court: “Initially, we must emphasise that the precedent jurisprudence number 691 of the Honourable Supreme Court [STF] forbids the acknowledgment of habeas corpus filed against lower courts' decisions that denied preliminary injunction required in another writ. Therefore, only in case of an absurd denial or total lacking of technical substance would its acceptance be possible. The group, by unanimity, decided not to grant the request” (Habeas Corpus — juvenile offender — social and educational measure — maximum 3 years time — replacement by “protective measure” — sentencing by the STJ 5rd Chamber on 25/10/2010 — process under Secret of Justice)4. There was a similar outcome in another habeas corpus judged by the STJ: “according to the information sent by São Paulo's Tribunal of Justice, on 08/09/2008, when ruling about the merits of this habeas corpus, the original court granted the requested order, which is object of the present appeal. Therefore, the object of this petition is null. Being so, I rule the action cancelled” (Habeas Corpus — juvenile offender — Process under Secret of Justice).3 3

Sentences available at: www.stj.jus.br.

In one decision, the legal merits of the habeas corpus petition were discussed by STJ Judges4: “The controversial issues are related to the possibility of compulsory inpatient treatment under civil commitment, when the socio-educational internment time reaches the legal limits; however, the legal requirements [psychiatric assessment] were fulfilled, ruling out the hypothesis of illegal constraint. The 10,216/2001 law exempts outpatient treatment trial if the insufficiency of such a strategy is demonstrated. It is believed that this is the very situation in the present case. As documented in the second instance decision denying the habeas corpus, the patient has ‘history of aggression, with uncommon perversity, which points to the presence of severe personality disorder, putting at risk himself and others, leading to the inexorable conclusion that compulsory deterrence, in an appropriate facility, under judicial supervision, with appropriate psychiatric treatment, could reform his capacity to live in society’. Being so, the habeas corpus petition, as a substitution to ordinary appeal was adjudged denied” (Habeas Corpus — juvenile offender — sentencing by the STJ 3rd Chamber on 05/04/2010 — Process under Secret of Justice). One of the most recent court decisions was a judgement in November 2010, of habeas corpus with respect to one patient, where the state Department of Health was nominated as the coactive entity, responsible for the deprivation of liberty (illegal imprisonment). The TJ-SP recognised that the defence was wrong in making the state Department of Health responsible, as it was just executing a court order, and dismissed the action on those grounds. At least one ‘extraordinary appeal’ petition has been filed at the Supreme Court; it has been waiting for judgement since July 2010. 4. Human rights and political issues As demonstrated above, the inmate solicitors and public defenders have tried all possible legal measures to free their clients, and several requests have been denied. In a political move all the persons concerned with the defence of child and adolescents rights: solicitors, public defendants, human right activists, public health and workers from the public attorney's office, professional councils for Psychology, Medicine, Social Service, Nursing, etc. and representatives from the Experimental Health Unit (i.e., from the state Department of Health), assembled as a group to discuss these matters and work together. This group is trying to debate the individuals detained in the Experimental Health Unit situation, study each case and propose actions that might lead to the release of these youngsters into the community. The present case has even been denounced by the non-governmental organization Centro de Defesa da Criança e do Adolescente — Interlagos (Centre for the Rights of the Child and the Adolescent Interlagos) to the United Nations Subcommittee on Prevention of Torture (SPT), which visited the Unit during their inspection in Brazil in September 2011. An extract from the official report sent to the Brazilian Federal authorities follows below: Experimental Health Unit, São PauloThis facility held six young adults (20 to 22 years old), who had been sentenced for serious crimes committed when they were underage. The SPT was positively impressed by the material conditions of this unit, as well as by the inmate/staff ratio and by the professionalism of the technical team in charge. This unit was created under the aegis of the predecessor of Foundation CASA and was later transferred under the São Paulo Health Secretariat by virtue of an executive decree. The Experimental Health Unit was not a unit for socio-educational measures nor was it foreseen in the ECA. It was also not a prison or remand center, nor a hospital for custody and treatment. Those confined in this unit had already served their maximum 3-year sentences as juveniles. Nevertheless, they remained in detention for an unlimited period of time due to their alleged dangerousness. The SPT is gravely

Please cite this article as: Ribeiro, R.B., et al., Public health system and psychiatry in the treatment of ‘dangerous’ young offenders in Brazil, International Journal of Law and Psychiatry (2015), http://dx.doi.org/10.1016/j.ijlp.2015.03.013

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concerned about the legal situation of those held in this center, and about the mental suffering that an indefinite detention may cause. The SPT recommends that the experimental health unit be deactivated. The SPT also recommends strict respect of the provisions of the ECA, pursuant to which the maximum period of internment for children and adolescents should not exceed three years and release shall be compulsory at the age of twenty-one” (United Nations Subcommittee on Prevention of Torture & Other Cruel, I. o. D. T. o. P, 2012). In December 2012 the São Paulo Regional Medical Council (CREMESP) Mental Health Technical Commission organized a seminar on the existence and mandate of the Experimental Health Unit. Representatives from the professional councils of Psychology, Social Care and Medicine, the Foundation CASA correctional centre, Universities (University of São Paulo; USP, Federal University of São Paulo; UNIFESP and State University of Rio de Janeiro; UERJ), IMESC, state Department of Health, Ministry of Health, Public Attorneys' Office, Public Defenders' Office and São Paulo Justice Tribunal were invited.4 The seminar debated the issues of imputability, age of legal majority, treatability of personality disorders and psychopathy, risk assessment and ways of dealing with the cases of the six persons detained at the Experimental Health Unit for medical reasons at that time. There was some disagreement among the participants, who were from different ideological and technical backgrounds; however, there was a common belief that the Experimental Health Unit “cannot be considered a facility for psychiatric or psychological treatment, or to resocialise young offenders”. There was also a common understanding that this population should not have been referred to psychiatric inpatient treatment in the first place. As one of the lecturers, Dr. Daniel Martins de Barros (USP), concluded: “they were referred to the Experimental Health Unit based on the hypothesis of a medical/psychiatric condition; they remained there until now because they are evil”. The CREMESP Mental Health Technical Commission is due to publish a report on these issues, based on the discussion at this seminar; this will constitute the formal institutional position.

5. Structure, costs and treatment The Experimental Health Unit structure is an outstanding facility by Brazilian forensic mental health standards. It was originally designed for 40 patients and consists of five comfortable houses, where the patients can circulate freely. Each house has two bedrooms, one living room, four toilet boxes, one kitchen and one laundry room. Given the actual occupancy, most ‘patients’ have their own room, or even a house. The ‘patients’ also have at their disposal a gymnastics room, multi-sport court, musical instruments (guitars), weekly religious services from two denominations, a multimedia room (DVD player, television, CD player, projector), and a computer room (4 computers with no access to the internet). Until September 2010, the unit had a psychologist, a psychiatrist, two nurses, a technician in nursing, an educator with experience in occupational therapy and arts, a social worker, a physical education teacher, a social worker and temporary contracted music teachers. As well as the administrative offices, it also has one large medical consulting office and a nursing station equipped with emergency material for basic life support (including an automatic external defibrillator). It does not resemble a prison, a psychiatric asylum, a custody and treatment hospital run by the Penitentiary Administration, or a youth correctional centre (such as Foundation CASA). The cost is high as there are just five ‘patients’ in residence; one has been there more than seven years. It is difficult to estimate the exact cost of maintaining the facility because of the many indirect costs.

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Available at: http://www.cremesp.org.br/?siteAcao=Noticias&id=2720.

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Since it opened, the Unit has received nine inmates by court order, based on previous medical assessments. The administration has a very narrow milieu of possible interventions, since the inmates are compulsory patients who believe that in their cases the ‘social contract’ has been broken and they have been ‘betrayed’ by the system, given that under the ECA discharge is mandatory after three years of internment or on reaching 21 years of age. All the inmates claim their situation is illegal and unfair. In some cases, there was a history of an identifiable condition that could be treated pharmacologically e.g., impulsive aggression, anxiety, mood disorder or attention deficit and hyperactivity disorder (ADHD). This raises a major ethical issue, as the individuals concerned could choose whether or not to accept treatment as they had not been declared ‘not guilty by reason of insanity’, they were not putting themselves at risk, nor did they pose a risk to anyone else which might justify intervention against their will as they were being held 24 h a day in a controlled and guarded environment, where rival groups were kept apart and there were frequent assessments to identify any changes in the situation. These individuals were offered appropriate medical and psychological assistance, but only a minority accepted, for the above reasons. One individual, who was not psychopathic and had been referred for treatment for challenging behaviour, participated successfully in a multidisciplinary intervention at the Experimental Health Unit and was discharged safely into the community after treatment for ADHD, learning disability and impulsivity. Antisocial personality disorder and psychopathy are described in the literature as totally ego-syntonic, meaning that there is a lack of concern for the consequences of these traits and behaviours (Dolan & Fullam, 2004; Khalifa et al., 2010; Miller, Jones, & Lynam, 2011). The lack of formal rules at the Experimental Health Unit and inmates' indeterminate detention made it very difficult properly to plan any intervention. The system makes no provision for discharge or even supervised release into the community under licence, although this is standard in modern forensic psychiatric services. There is no outpatient service that could supervise forensic patients. In spite of the excellent facilities and the number of professionals and technicians, only three out of the nine cases handled by the Unit have accepted the care plan proposed. As an alternative to changing the internal environment a token economy was instituted (Liberman, 2000). This is a behavioural technique, more concrete than conventional psychiatric interventions, which focuses on explicit and well-defined behaviours and uses tokens or a scale of points as a reward system. The project was an attempt to reinforce positive behaviour, collaboration and pro-social attitudes and modify the internal dynamics of the Unit, thereby reducing, in a passive way, resistance to psychological and medical approaches. The project has had good preliminary results but it is important to note that this approach does not aim to treat personality disorders, merely to facilitate the management of the individuals inside the Unit.

6. Discussion The creation of the Experimental Health Unit has started a debate not only on the age of legal majority, but also on the role of psychiatry and psychology in detaining and treating individuals with personality disorders – particularly psychopaths - and in predicting future violence and recidivism. In the legal field, these landmark cases have led to a discussion over the age of legal majority, the appropriate maximum period of incarceration for young offenders and use of whole-life sentences for certain types of crimes and criminals. This is an important matter in the context of the rate of recidivism in Brazil, estimated to be between 60% and 70%, according to the National Council of Justice.5 In the USA, 9.8% of approximately 12,000 homicides each year are committed by juveniles (Zagar, Grove, & Busch, 2013). This same study pointed out that most 5

Available at: www.stf.jus.br/portal/cms/verNoticiaDetalhe.asp?idConteudo=116383.

Please cite this article as: Ribeiro, R.B., et al., Public health system and psychiatry in the treatment of ‘dangerous’ young offenders in Brazil, International Journal of Law and Psychiatry (2015), http://dx.doi.org/10.1016/j.ijlp.2015.03.013

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criminal offences are committed by a small group in society, about 5% of the population - mainly alcohol abusers, career offenders, educational dropouts, homicidal individuals and people with mental health problems (maybe untreated) with a propensity for violence - and recommended that this group should be targeted by public policies (Zagar et al., 2013). These individuals have a high cost to society: it is estimated that a young person who abuses alcohol costs society between US$718,000 to US$1,200,000 over his or her lifetime; for a serious career criminal this cost is between US$1,410,000 to US$1,670,000, and for a high school dropout it is between US$ 665,000 and US$965,000 (Zagar et al., 2013). Since individuals from this 5% of persistent offenders are overrepresented in prison populations, and most rehabilitation programmes are ineffective in reducing their risk of re-offending, recidivism remains high in most countries. In the UK, where both justice and forensic mental health services are well structured, a 2007 survey which followed 595 patients admitted and subsequently discharged from a medium-secure unit over a period of 20 years, found that the two-year re-offending rate was 26%; whereas for prisoners released from the general prison system in 2001 it was 58% (Davies, Clarke, Hollin, & Duggan, 2007). Statistics show that between 10% and 19% of sex offenders (a particular concern of society) commit another sex crime within 4 to 5 years (Beech, Mandeville-Norden, & Goodwill, 2012; Mann, Hanson, & Thornton, 2010). In one pooled sample of 28,757 adult sex offenders, the recidivism rate for sex crimes was 11.5%, for violent crime 19.5% and general recidivism 33.2% (Hanson & Morton-Bourgon, 2009). Recidivism for any kind of crime can be as high as 43%, demonstrating that sexual offences are not the only concern in this population (Hanson & Morton-Bourgon, 2009). In one Australian adolescent sample of 303 male sex offenders, 25% was reconvicted before their 18th birthday; as adults 9% was charged with sexual offences and 61.3% were convicted for non-sexual offences (Nisbet, Wilson, & Smallbonel, 2004). The general picture is of high reoffending rates as the rule, rather than the exception. The great challenge is to differentiate between those who will reoffend and those who will not. Two important recent meta-analyses explored this form of risk assessment. Singh, Grann, and Fazel (2011) compared the predictive value of the most commonly used risk assessment tools in a pooled sample of 68 studies (25,980 participants from 13 different countries), including populations from community penal/rehabilitation services, prisons and mental health facilities. In this sample, 8155 (31.4%) reoffended. Risk assessment tools were compared using the Area Under the Curve (AUC; good prediction tests will have values close to 1) technique. The risk assessment tools with the highest median AUC were the Sexual Violence Risk-20 (AUC = 0.78; Interquartile Range (IQR) = 0.71–0.83), the Sexual Offender Risk Appraisal Guide (AUC = 0.75; IQR = 0.69–0.79), and the Violence Risk Appraisal Guide (VRAG; AUC = 0.74; IQR = 0.74–0.81) (Singh et al., 2011). Yang, Wong, and Coid (2010) conducted an important meta-analysis of the effect sizes for nine risk assessment tools in a set of 28 studies with sample sizes from 6348 to 7221, depending on the tool used. All the instruments had moderate power to predict violence (AUC between 0.56 and 0.71; most within the 0.65–0.69 range). Effect sizes were significantly larger for the Historical, Clinical, Risk Management-20 (HCR-20; AUC = 0.71) and the Offender Group Reconviction Scale (AUC = 0.71) than the Hare Psychopathy Checklist Revised — PCL-R (AUC = 0.65), but the differences were too small. There were no significant differences between the nine tools in terms of ability to predict future violence, although they did have particular theoretical and clinical characteristics. The authors stressed that although tool selection might appropriately be influenced by specific requirements, “If prediction of violence is the only criterion for the selection of a risk assessment tool, then the tools included in the present study are essentially interchangeable” (Yang et al., 2010). These studies show clearly that psychiatric risk assessment tools have a better than chance prediction of recidivism, but accuracy is far from 100%. Science might have reached a limit in terms of positive predictive value for prediction (Hare, 2006; Jackson & Richards, 2007;

Morana, Stone, & Abdalla-Filho, 2006). We may never approximate 100% sensitivity and sensibility, given the nature of human behaviour. A difficult question, which cannot at present be answered, is whether a particular ‘at risk’ individual will or will not reoffend; we can only give a probability (Doyle, Carter, Shaw, & Dolan, 2012; Jackson & Richards, 2007; Yang et al., 2010). A recent study has drawn attention to the difficulty of predicting reconviction (Coid, Ullrich, & Kallis, 2013). This study examined the success of HCR-20, VRAG and Offenders Group Reconviction Scale II in predicting the rate of reconviction for a violent offence within 3 years of release in a UK sample of 1396 male convicted prisoners. For individuals with antisocial personality, the predictive performance ranged from poor to totally ineffective (Coid et al., 2013). For psychopaths (PCL-R ≥ 30), no instrument showed better than chance performance in this study (Coid et al., 2013). These findings are cause for great concern, we know that psychopaths are more violent and reoffend more than other classes of offender; yet our ability to predict violent reoffending seems to be worse for this group than for offenders in general. The authors of this study argued that the difficulty of predicting reoffending in psychopaths might be due to their unpredictable behaviour, the difficulties in differentiating low and high risks with the items included in these instruments (not discriminative) and the fact that psychopaths' characteristic ability to lie and con can mislead clinical judgement when using the instruments (Coid et al., 2013). The other issue raised by the creation of the Experimental Health Unit is the role of public health services in managing criminality and violence. Preventive detention under criminal law is a concept accepted and used in many countries, including Germany, Australia, the USA, the Netherlands and the UK, with a regular interface with mental health and psychiatric services (Felthous & Saß, 2013; Tollenaar, Laan, & Heijden, 2014). Dangerous and severe personality disorder programmes in the UK and statutes dealing with management of violent sexual predators in the USA are examples (Cipolla, 2011; Maden & Tyrer, 2003). Bluntly, the penological purpose is to incapacitate, to prevent the individual from committing further crimes. However, such measures must be based on the law, and every citizen accused of any crime deserves lawful process, with proper defence, and if convicted, sentencing. For offenders suffering from mental illness, compulsory treatment – as an inpatient or under a community treatment order – should carry no connotation of punishment whilst still following the universal principle of protecting individuals from harming themselves or others. Compulsory hospital treatment should not be misused as a means of confinement or preventive detention (Felthous & Saß, 2013). However, in Brazil, as in the USA, it is not uncommon for the prosecution to use an insanity strategy for defendants with a borderline pathological mental health condition, such as personality disorder, paedophilia, in order to have them committed to a forensic hospital for an indefinite term; longer than would have been the case if they were held fully responsible for their criminal acts and imprisoned (Felthous & Saß, 2013). These initiatives and the use of an inclusive definition of mental disorder carry the risk of hospitalizing individuals without mental illness; medicalising antisocial conduct that should be dealt with by the criminal justice system and thereby helping to stigmatize further patients with a mental illness (Felthous & Saß, 2013). This is exactly what happened in the nine cases discussed here, although these cases were dealt with in the juvenile justice system. Personality disorders are treatable and recognised as a medical problem (Gibbon et al., 2010; Khalifa et al., 2010; Rodrigo, Rajapakse, & Jayananda, 2010). It is known that psychopaths, as defined by Hare reoffend more than the general criminal population (Hare, 2006). A significant association between the Hare Psychopathy Checklist and recidivism with an effect size (Hedges's d) of 0.5 was found in a metaanalysis of 15,826 individuals (Leistico, Salekin, DeCoster, & Rogers, 2008). The score on the Psychopathy Checklist Youth Version (PCLYV), designed for use in young populations, has been positively associated with violent offending, indiscipline in correctional centres and

Please cite this article as: Ribeiro, R.B., et al., Public health system and psychiatry in the treatment of ‘dangerous’ young offenders in Brazil, International Journal of Law and Psychiatry (2015), http://dx.doi.org/10.1016/j.ijlp.2015.03.013

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non-compliance with treatment. Although a study of 220 adolescents followed for 10 years found that 30% of patients with high psychopathy scores who completed a treatment programme reoffended violently; 80% of non-completers reoffended, demonstrating that mental health treatment can do something for an engaged patient (Salekin, Worley, & Grimes, 2010). However there are severe limitations on what can be done for most antisocial patients, particularly if they are diagnosed as psychopaths (Hare, 2006; Jackson & Richards, 2007; Morana & Camara, 2006; Morana et al., 2006; Salekin et al., 2010). Two Cochrane reviews have focused on treatment for antisocial personality disorders. The first, on psychological treatment, concluded that so far, no study has demonstrated significant changes in antisocial behaviours following psychological treatment (Gibbon et al., 2010). The second, on pharmacological interventions, found insufficient evidence to support the use of drugs to treat antisocial personality disorder (Khalifa et al., 2010). Two other meta-analyses demonstrated a significant relationship between treatment attrition and dropout, and a diagnosis of psychopathy, disruptive behaviour, negative treatment attitudes and denial (Olver, Stockdale, & Wormith, 2011; Salekin et al., 2010). Consequently, the non-compliant population had higher recidivism levels (Olver et al., 2011). The best odds will apply to offenders who really want to get some kind of treatment (Morana et al., 2006; Olver et al., 2011; Salekin et al., 2010). Expanding the discussion, a recent review focused on interventions for sensu lato delinquency in youngsters (Zagar et al., 2013). In this paper, the authors presented a meta-analysis of behavioural change in serious offenders (mostly males) in a series of intervention studies, with different designs, conducted between 1958 and 2002. A reduction in raw recidivism rate of 12% was found, the most effective treatments were “multi-modal, carefully monitored, and closely supervised by researchers” (Zagar et al., 2013). The most effective interventions, which lasted more than 100 contact hours and longer than six months and reduced recidivism by up to 32%, were ‘group counselling’ and ‘jobs’ (Zagar et al., 2013). If we extend this line of argument, preventive programmes targeting the most at risk youngsters could save running costs for correctional facilities and reduce the social costs of crime in the future. School-based programmes, such as the Californian graduation rewards programme, can reduce crime by as much as 22%. Costing US$1 billion, this programme is estimated to prevent 220,000 crimes a year (Zagar et al., 2013). The most effective school-based interventions in terms of effect size for improved behaviour are social skills training and “Attention/Activity Level in School”; these along with early intervention for ADHD and other mental disorders in infancy and adolescence would probably produce the best results in terms of lowering school dropout and delinquency, and improving learning skills (Langevin & Curnoe, 2011; Zagar et al., 2013). These data demonstrate that treatment in at risk populations can be preventive, and can also be very costeffective, for example, each American dollar spent on education for lowincome children, can generate a US$20.57 return (Zagar et al., 2013). Returning to the case of the Experimental Health Unit, it can be argued that if the same principle that guided the transfer of individuals to the Unit were to be used for every inmate in the system, a significant proportion of the criminal population (adults and adolescents) should be transferred immediately to the jurisdiction of the state Department of Health. From various studies we know that about 1% of the general population and about 15% of the criminal population will meet the sufficient criteria for psychopathy (ranging from 3% to 73%, in different studies) suggesting that they could have the same outcome as the nine cases discussed here (Coid et al., 2009; Hare & Neumann, 2009), but psychiatry still does not have appropriate drugs and techniques to treat these individuals. Cost-effectiveness is very questionable. In practical and economic terms, it would be a waste of public resources. If we consider justice and fairness, based on the Brazilian codes of law, the decision to detain individuals indefinitely under the terms applied in the case of the individuals currently held in the Experimental Health Unit is an arbitrary decision, covering only a small proportion of criminals who share the same personality characteristics and have

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committed similarly serious crimes. Perhaps for these reasons, and based strictly on Brazilian law (i.e., the ECA), the United Nations SPT recommended in its official report to the Brazilian government that the Experimental Health Unit be deactivated. The São Paulo Medical Council, in its recent book on the forensic and mental health aspects of treatment for offenders with a mental illness has dedicated one chapter to the Experimental Health Unit, in view of the uniqueness of its position and the issues raised in the seminar described above, and in Brazilian society in general (Ribeiro & Cordeiro, 2013). In this chapter, the authors conclude that today, the unit no longer has a therapeutic function, as there is no formal medical indication for the internment of its ‘patients’. They have been kept in state custody by court order for safety reasons, not for clinical reasons, thus misusing psychiatry, ostensibly to protect society (Ribeiro & Cordeiro, 2013). A further technical report on this matter is expected from the Council, and will probably add fuel to the fire, in the form of an account of official medical opinion on the issue; it is likely to add more political pressure to this already exceptional situation. 7. Conclusions This Unit did not come into existence by chance: it emerged as a result of society's demands, and the National Congress and the Government cannot ignore its symbolic importance. Its merit is to have initiated a debate, at a high level, about criminality, severe personality disorders and the Brazilian penal and juvenile legal codes. Certainly more research is needed to widen our understanding of the biological mechanisms underpinning personality disorders and treatments for them. It is also of fundamental importance that there is research on this important matter, with clear rules, appropriate tools, and inclusion and exclusion criteria for treatment. An ideal scenario would see a similar unit accepting only voluntary, motivated clients, with a better prognosis, as the forensic service is very expensive and must be cost-effective (Rodrigo et al., 2010; Zagar et al., 2013). Preventive programmes and evidence-based interventions in juvenile facilities may help to save money and lives, and prevent crime (Zagar et al., 2013). Another neglected aspect, necessary for good outcomes, is well-structured post-discharge follow-up, involving health services, social care and law enforcement agencies. Supervision, support and surveillance are fundamental to reducing recidivism and ensuring that the resources spent in forensic hospitals are not spent in vain. This kind of model has been used in the UK, where individuals are transferred step by step from maximum security to low security facilities, and then to community services (Beech et al., 2012; Doyle et al., 2012). High-risk clients receive regular drug screening and are monitored with electronic tags. Electronic surveillance costs only a fraction (13.5%) of the costs of maintaining an individual in jail, and can be a good choice in various contexts (Zagar et al., 2013). To conclude, at present state of the art forensic psychiatric tools do not allow us to predict future criminal behaviour with 100% certainty, or to draw general conclusions or guarantee any kind of cure or complete rehabilitation of these individuals (Singh et al., 2011; Yang et al., 2010). However, we are talking not just about nine ‘patients’ detained at the Experimental Health Unit but about hundreds of individuals with a personality disorder and psychopaths, detained in detention centres, prisons and juvenile correction centres in Brazil. We cannot accept a system which treats offenders with the same profile differently, based only by public notoriety and the seriousness of the violence committed. Legislators must tackle the problem of which the Experimental Health Unit is just a symptom. It is not an easy issue to solve; the individuals detained in the Experimental Health Unit have been studied and are now labelled, in spite of being just the same as up to 15% of the general population of Foundation CASA. Individuals from Foundation CASA are set free on a daily basis, quietly and without alarm. If the Brazilian society demands changes in penal and juvenile laws, the legislative Houses must consider the matter; we cannot accept the simple transfer

Please cite this article as: Ribeiro, R.B., et al., Public health system and psychiatry in the treatment of ‘dangerous’ young offenders in Brazil, International Journal of Law and Psychiatry (2015), http://dx.doi.org/10.1016/j.ijlp.2015.03.013

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of inmates to the public health system, underpinned by a misuse of psychiatry, and questionable juridical arguments. As discussed above, some countries do that legally, and issue preventive and indeterminate detention orders; for example there are statutes dealing with violent sexual violent predators in operation in 17 states of the USA, the UK created the legal ‘diagnosis’ ‘dangerous severe personality disorder’, Germany also has specific laws and the Netherlands has the Institution for Habitual Offenders (Inrichting voor Stelselmatige Daders; ISD) programme for high frequency offenders (Barrett & Byford, 2012; Jackson & Richards, 2007; Leistico et al., 2008; Tollenaar et al., 2014). However, in Brazil, some questions remain unanswered: what will be done with the five individuals still held at this unit? What kind of risk is worth taking in these cases? Who will be brave enough to release them? Acknowledgements We would like to thank Dr. Luis Roberto Barradas Barata for his full support and guidance, and Dr. Nilson Ferraz Paschoa, for the close supervision and advice; thanks also to Ivis Bertin, the security coordinator, who went far beyond his duties to make the Token Economy work. The first author had a scholarship to fund his MSc studies at the King's College from Associação Beneficente Alzira Denise Hertzog Silva (ABADHS), received through an agreement with the Fundação Faculdade de Medicina (FFM) and the Department of Psychiatry, University of São Paulo Medical School. He also received a grant from the King's College–Santander partnership. References Barrett, B., & Byford, S. (2012). Costs and outcomes of an intervention programme for offenders with personality disorders. British Journal of Psychiatry, 200(4), 336–341. http://dx.doi.org/10.1192/bjp.bp.109.068643. Beech, A. R., Mandeville-Norden, R., & Goodwill, A. (2012). Comparing recidivism rates of treatment responders/nonresponders in a sample of 413 child molesters who had completed community-based sex offender treatment in the United Kingdom. International Journal of Offender Therapy and Comparative Criminology, 56(1), 29–49. http://dx.doi.org/10.1177/0306624X10387811. Cipolla, C. (2011). “Preventative corrections”: Psychiatric representation and the classification of sexually violent predators. The Journal of Medical Humanities, 32(2), 103–113. http://dx.doi.org/10.1007/s10912-010-9134-0. Coid, J. W., Ullrich, S., & Kallis, C. (2013). Predicting future violence among individuals with psychopathy. British Journal of Psychiatry, 203(5), 387–388. http://dx.doi.org/ 10.1192/bjp.bp.112.118471. Coid, J., Yang, M., Ullrich, S., Roberts, A., Moran, P., Bebbington, P., & Hare, R. (2009). Psychopathy among prisoners in England and Wales. International Journal of Law and Psychiatry, 32(3), 134–141. http://dx.doi.org/10.1016/j.ijlp.2009.02.008. Davies, S., Clarke, M., Hollin, C., & Duggan, C. (2007). Long-term outcomes after discharge from medium secure care: A cause for concern. British Journal of Psychiatry, 191, 70–74. http://dx.doi.org/10.1192/bjp.bp.106.029215. Dolan, M., & Fullam, R. (2004). Theory of mind and mentalizing ability in antisocial personality disorders with and without psychopathy. Psychological Medicine, 34, 12. http://dx.doi.org/10.1017/S0033291704002028. Doyle, M., Carter, S., Shaw, J., & Dolan, M. (2012). Predicting community violence from patients discharged from acute mental health units in England. Social Psychiatry and Psychiatric Epidemiology, 47(4), 627–637. http://dx.doi.org/10.1007/s00127-0110366-8. Felthous, A. R., & Saß, H. (2013). Introduction to this issue: International perspectives on preventive detention. Behavioral Sciences & the Law, 31(3), 307–311. http://dx.doi. org/10.1002/bsl.2061. Gibbon, S., Duggan, C., Stoffers, J., Huband, N., Vollm, B. A., Ferriter, M., & Lieb, K. (2010). Psychological interventions for antisocial personality disorder. Cochrane Database of Systematic Reviews(6), CD007668. http://dx.doi.org/10.1002/14651858.CD007668.pub2. Gramkow, G. (2012). Fronteiras psi-jurídicas na gestão da criminalidade juvenil: o caso Unidade Experimental de Saúde. (PhD dissertation) Pontifícia Universidade Católica De São Paulo (Retrieved from: www.sapientia.pucsp.br/tde_busca/arquivo.php? codArquivo=13912). Hanson, R. K., & Morton-Bourgon, K. E. (2009). The accuracy of recidivism risk assessments for sexual offenders: A meta-analysis of 118 prediction studies. Psychological Assessment, 21(1), 1–21. http://dx.doi.org/10.1037/a0014421.

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Please cite this article as: Ribeiro, R.B., et al., Public health system and psychiatry in the treatment of ‘dangerous’ young offenders in Brazil, International Journal of Law and Psychiatry (2015), http://dx.doi.org/10.1016/j.ijlp.2015.03.013