Violence and the Mental Health Services the

(we hope) IT importance of the subject was

social and of

speakers?and no less worthy motive?which packed Church House on March 8th and 9th, and even those on the floor and steps had no difficulty in keeping their attention fixed on the wit and wisdom being provided in the

measure from the platform. The Home Secretary, in taking the Chair, threw out several challenges: crimes of violence are still increasing; not more than 31% of murderers are wholly responsible for their actions; the prevention of violence may lie in improving homes; and (he ended): "Despite the attractions of space travel the great challenge today is the need to explore scientifically the human mind and personality. No territory is more unknown".

good

"Sickness

How far

were

his

challenges

taken

up? Lord Devlin and Lady Wootton spoke lucidly, wittily and at times pungently on Sickness or Sin. Both have been good friends to progress in mental hygiene, and in fact better friends to its practitioners than some of their utterances would suggest; and, indeed, their presence here and their careful papers were yet more valuable contributions. In the latter there is so much to read that we publish them below. They lead to many serious and constructive proposals. To follow them we print a commentary and extracts from the rest of the Conference? whose full proceedings will, of course, be published by the N.A.M.H. later.*

Sin":

or

Lord Devlin's address There is undoubtedly a much closer correspondence of thought between the law and medicine on problems involving violence and mental health than there was a generation ago. It is often said

that

the

existence

of

the

M'Naghten Rules, to which the law is said to cling in defiance of advancing science, was a stumbling block to any unity of thought. If so, the introduction into English law by the Homicide

Act, 1957, of the concept of diminished

will have been beneficial. But I think that the importance of the change in 1957 is not, scientifically speaking, very great and that the effect of the M'Naghten Rules is much misunderstood outside the legal profession. The Rules relate to the direction to be given to the jury; and the jury's business is simply to determine guilt

responsibility

*Price 5s. 6d. (post free).

Copies

can

be

innocence. If the condition of a man's mind is such that he knows, first, what he is doing, and, secondly, that he knows what he is doing is contrary to law, why then, he must be answerable to the law. I do not see how in any legal system it can be otherwise; the law cannot wash its hands of everyone who is suffering, however slightly, from mental defectiveness. What the law does with such a person is quite another matter?a matter for sentence and not conviction. The jury is not concerned with sentence and so the M'Naghten Rules are not either. The real target for attack?and even then it should have been an attack on the form rather than the substance? should have been, not the M'Naghten Rules, but the automatic death senor

ordered in advance from the N.A.M.H. Publications Dept.

tence.

It is

one

thing

man who has done a any

sense

of

to say that a act with

criminal

responsibility, great

small, should be answerable and

quite

to the

or

law;

another to say that the law

should hang him. On the face of it, that was what the law did say until 1957. But it is very dangerous to take

else in this country?at its face value. That is why I say the attack should have gone to form rather than to substance. The ordinary power of sentencing, which the law, in the case of murder takes away from the judge, was to a large extent exercised by the Home Secretary under the prerogative. The 1959 Act was really an Act in relief of the Home Secretary. It took the duty that he formerly had to observe and distributed the burden between jury and the

law?or

anything

judge.

JUDGE'S POWER The jury had to say whether there was was not a substantial impairment of mental responsibility; and if they or

said so, the power of sentencing was conferred on the judge. This was a change of considerable constitutional importance, but not, it seems to me, of much scientific interest. From the point of view of criminal science, the difference made by the Act is that while diminished responsibility used to be at large for the Home Secretary to decide, now it has to be determined according to the formula in the Act. I doubt if it is altogether a good thing in this branch of the law to try to pin things down with a formula, and I know a little of the difficulties that were encountered in the drafting of this one; but so long as there is an for automatic sentence murder, whether it be the death sentence or automatic life sentence, it seems to be a

necessity.

The M'Naghten Rules have existed now for nearly 120 years, and they still exist. I see no prospect of their being altered and they seem to me to be so

simple

and necessary for the

limited purpose they are designed to achieve that I cannot feel that they will

be outdated by any advance of medical science. So long as their very limited function is understood, I see no reason why they should create a stumbling block to a full understanding on these matters between the law and medicine.

MEETING OF LAW AND MEDICINE It is in sentencing and not in convictthat co-operation between the law and medicine is important, and their meeting place lies between two extremes. At one extreme there is the view that the psychiatrist is simply a person who invents long names for simple sins; and at the other extreme there is the view that the criminal calendar is only a list of mental disorders with antiquated descriptions taken from the Ten Commandments. The modern judge holds to a position between these two. I am sure that I am right in saying that when today he has to deal with a crime of violence to which mental abnormality to some extent has contributed, his chief concern in fixing the length of the sentence is the protection of the public rather than the punishment of the crime. (Of course, before the passing of the Mental Health Act the two things tended to go together). In dealing with such a case there are three questions that he has to ask himself: 1. Is he satisfied that he is dealing with a real case of mental abnormality and not just a descent into You may call it wickedness? the question of diagnosis. 2. If he said "Yes", is it something that is curable? 3. If he answered "Yes" to 1 and 2, what sort of a period of detention for treatment is likely to be needed? Diagnosis, cure and treatment. These are the three topics that you are going to discuss and all of them are of paramount practical importance, for the judge has to consider them and try to find the answer to them. From that point of view?I mean their practical importance from the point of view of

ing

sentencing?I do not disparage the importance of theory, but naturally I

would suggest your conclusions must satisfy two conditions. First, they must command general those who assent know; among because a matter that is still in the stage of argument between experts is not usually a safe basis to pass a sentence on. Secondly, they must be made intelligible and convincing to the ordinary man. I quite appreciate that neither of those conditions is easy to fulfil. I know from experience how difficult it often is to state a legal proposition in a way that complies with both of them; and you are dealing with a new and developing science. I appreciate that. But inevitably what those conditions mean is, first, that it is probably only the hard core of your thinking that will be of any immediate value to the law?what is still mainly experimental must for that purpose be

discarded; secondly, psychiatrists must not talk to the judge as if he were a fellow expert.

CRIMINOLOGY AND PENOLOGY I have often heard it said by experts in different fields that judges ought to familiarise themselves with this, that or the other, and it is specially tempting to say that they ought to familiarise themselves with criminology and penology, because those are subjects with which, in the public eye, they seem constantly to be dealing, but in point of fact you must remember that except for a very small percentage? perhaps 5% or 10% of the judges and magistrates who administer justice in this country?they deal with crime only as a part-time occupation and with very many other things besides. A judge of the High Court, I suppose, spends perhaps a quarter of his time on the average in the trial of crime and in sentencing. The vast majority of sentences are passed by people like Chairmen of Quarter Sessions, Recorders who sit only for a short time in the year and, of course, by lay magistrates. If a judge of the

Court were to make himself on every subject with which he has to deal he would have to be an expert on commercial practices, on conditions in factories and on numerous other topics; conditions in factories especially, because industrial accidents occupy a great deal more of the judge's time in the High Court than do his trials of crime. He would have to make himself an expert in all those fields. It may be that that is not a good thing; it may be that we are feeling our way towards new processes in sentencing, but so long as justice is administered in the way it is now, that is the principle to which you have to relate any practical conclusions at which you arrive. In England today sentence and verdict alike are the decisions of laymen and that is a deliberate choice. You can expect a judge to be perhaps rather more intelligent than the average juryman, if only for the reason that he is paid rather more and you can expect him to be perhaps rather more receptive, but when he passes sentence he is not passing sentence as an expert, he is passing sentence fundamentally He is doing it as a as a juryman. public act and he is speaking when he passes sentence not for himself but for the public. Indeed, as he speaks and passes sentence, there is around him in the court the public who have the right to understand what he is doing and why he is doing it and the right to approve or disapprove, so that the experts, whether it is on psychiatry or any other subject, go into the witness box to inform and to convince the

High

expert

judge. NOT LIKE A DOCTOR I think it was the Lord Chief Justice, who said not so very long ago, that a judge could not be expected to believe in the facts of life until he had heard them three times in evidence, and then again in argument. That is merely a neat way of putting the fact that what the judge is listening to is not necessarily for his information but because everything must be done in public and

he is there to hear the evidence (even the final decision is simply his) out loud in public and in a manner

though which

must

convince

member of the public self. He is not like

hands a prescription patient and the patient

an

ordinary

well as hima doctor who to his across is not expected

as

it

to understand it, but merely to take to the chemist and have it made up. no

experience

as

yet of its workings but I am bound to say that the parts with which I am particularly concerned?Part IV and Part V?just from their text and from reading them, appear to me to represent a most notable and valuable advance on anything that has gone before. One point in particular where the law and medicine are concerned together is much assisted by Part V of the Mental Health Act. From the medical point of view there is, or used to be, not merely a danger that the sentence that the judge passes is too long because they think that more sympathy should have been shown for a defective mental condition, but on the other side the real danger that the sentence might be too short.

SENTENCE THE CRIME A judge can and should take

mental condition into account when he is sentencing a crime, but he must sentence for the crime and not for the mental condition. Thus it might arise, and within one or two cases within my experience, it did arise, that the maximum term, which I as a judge felt that I could properly impose by way of deprivation of liberty which was a punishment, was less than that which may very well be required for treatment.

Part V of the Mental Health Act is welcome in that respect. It allows the court to order a convicted person to be detained in a mental hos-

most

pital. The importance of that is not merely that he substitutes mental hospital for prison?because under the old law I think that something like it could in many

cases

be done, and

that the person so detained is autoreleased. He cannot be released before it comes to an end unless by the exercise of the special powers of the Secretary of State?but he may be kept afterwards until those who are responsible are satisfied that it is safe to allow him out.

matically

I have mentioned the Mental Health

Act of 1959. I have

tainly prison afforded treatment for people who were suffering from mental disorders; the importance of it, therefore, is not merely the substitution of the mental hospital for prison, but that it permits the judge to fix only a minimum period of detention and when that has been passed it does not mean

cer-

RELIEVING THE JUDGE That will relieve the judge of a great of responsibility in a difficult task when he has to ask himself, "Am I giving a long enough sentence, or may it be that this man who no one will have any power to detain any longer after his sentence is finished, will be let out before it is safe that that should be done?" and that will relieve the judge of feeling that he must pass a longer sentence than otherwise he would have desired to do. You will be concerned also to some extent with Part IV of the Act. Part IV of the Act is not dealing with violence when a crime has been committed but it is dealing among other things with the possibility of a crime of violence being committed and it is the new legislation which now governs the circumstances in which such people may be detained if necessary against their will. I hope and believe that those provisions, which are much more flexible and much more valuable than anything that has gone before, will succeed in bridging another difference of outlook that existed between the law and medicine. The detention of a man against his will, whether he is sick or healthy, if he has committed no crime, touches the liberty of the subject, and so in the eyes of every judge there is required for it clear and precise authority to be found in the letter of the law. The letter of the law as expressed in the measure

old Acts

Mental Deficiency out-dated very badly long before 1959. Nevertheless, the duty of the judge in that Statute as in all others, is to interpret the law and not to modernise it?modernisation is for Parliament. and

Lunacy was

certainly

JUDICIAL OFFENDER? I suspect all the same that there were many medical men and social workers anxious to get into an institution as quickly and as urgently as possible someone whom they believed was a danger to himself as well as a danger to others, who found the judicial in-

"Sickness

or

sistence upon the letter of the law both irritating and pedantic. It is possible that on an identification parade I might be picked out as one of the judicial offenders in that respect. If so, then it is fitting that I should end upon a note of relief and apology?a note of relief that these difficulties should no longer arise, and a note of apology that I should have contributed, however unwittingly, to their occurrence; but I would invite you as a matter of forgiveness to recollect in tranquillity that judicial pedantry is Dart of the stuff of which freedom is made.

Sin":

Lady Wootton's paper* of the role of the

If

in dealing start from the might two propositions: first that the law now makes extremely wide and flexible provision for treating violence, or indeed

case

discussion

ANYmental health well services with violence

crimes, as a medical problem; and, second, that little use is yet made of these provisions. To summarize the any

provisions: (1) A person

accused of a crime of violence may be found unfit to plead and be detained in hospital without trial. (2) If the charge is one of murder, the accused may plead insanity within the M'Naghten Rules, and if this is proved, he will again be detained during Her

Majesty's pleasure. Alternatively he may offer a defence of diminished responsibility, and if this

succeeds he will be convicted of manslaughter, and liable to any sentence that the Court thinks fit ranging from an absolute discharge to life imprisonment; or alternatively to a hospital or guardianship order under the Mental Health Act. (3) In the case of convictions for

crimes

than murder, which are with imprisonment, the courts can, in the case of any of the varieties of mental disorder recognised by the Mental Health Act make a hospital or guardianship order. Similar provisions apply also to children and to be beyond young persons found control or in need of care or protection. other

punishable

may

hospital order is made in such a by Quarter Sessions or Assizes, it be accompanied by a restriction

a

order which

can

be for either

an

indefi-

nite duration or for a specified term. Such a restriction order deprives the patient of access to a Mental Health tribunal makes and also inapplicable other provisions relating to the detention of patients admitted to hospital under compulsion. The Home Secretary can however order the discharge of a person subject to a restriction order even within the period of the order. (4) In the case of charges punishable

with imprisonment dealt with by the magistrates' courts, the court may make a hospital or guardianship order without proceeding to a conviction, provided that

it is satisfied that the accused did the This act with which he is charged. power, however, is restricted to cases of persons suffering from mental illness or severe subnormality and does not apply to other subnormals or to psychopaths. Restriction orders cannot be made by magistrates' courts. (5) In the case of any offender a court may make a period of mental treatment (including resident treatment) a

conditon of

a probation order. (6) Finally persons suffering from "psychopathic disorder" which results in "abnormally aggressive or seriously irresponsible conduct" can be compulsorily detained, or subjected to guardian-

*We print the script submitted by Lady Wootton before the Conference

ship if

under twenty-one years of age, without recourse to the courts at all. The same applies of course to other forms of mental disorder, but the reference to "abnormally aggressive conduct" in the definition of psychopathy suggests that this disorder may be specially relevant to a discussion of violence. It would seem that provisions so wide and varied should have a place for every violent person who may properly be regarded as a medical problem. Up till now however few of these provisions have been extensively used. From the coming into force of the Mental Health Act on November 1st, 1960 to

September 30th, 1961 there have been 10,099 convictions for crimes of violence. Only in 97 of these cases were hospital orders made, 41 with restriction orders. During the same period magistrates'

exercised their power to make orders without registering a conviction in 87 cases, but these relate to offences of any kind, not merely to crimes of violence which are unlikely to bulk large in this figure, as serious violence is not dealt with by the magistrates. The number of persons suffering from psychopathic disorder admitted to hospital without court proceedings during the first six months' operation of the Mental Health Act was 169, of whom 46 were still in hospital and still classified as psychopaths at the end of this period, 28

courts

hospital

of them still under

compulsory

powers.

PROBATION ORDERS I regret that I have no figures as to number of children and young persons found to be in need of care or protection or beyond control who have

the

been dealt with by hospital orders; nor of the number of cases in which mental treatment has been made a condition of a probation order. The latter may well be quite numerous as the power to order such treatment dates back to the Criminal Justice Act of 1948, and the courts at all levels are now thoroughly familiar with it; but since it is unusual to make probation orders for crimes of violence (except in the case of a small number of juveniles) it is probable that this is not numerically an important method of dealing with violent offenders, though it may be very valuable in occasional cases. Only in the case of murder charges can it be said that a substantial proportion of offenders are treated as medical rather than penal cases. Out of 86 persons committed for trial for murder

in 1960, fifteen were found to be insane on arraignment; and, while nine were found guilty but insane, in another 23 a verdict of manslaughter was cases returned on grounds of diminished Altogether, since the responsibility. Homicide Act of 1957 came into force, has been diminished responsibility successfully pleaded in 117 cases. Of these 43 occurred since the passing of the Mental Health Act and in fifteen of these hospital orders were made. Thus almost one-third of the diminished responsibility cases have been made subject to hospital orders in the period during which this procedure has been available.

COMPLEX PROVISIONS The of these very complexity provisions should itself serve to remind us how important it is to distinguish

between one type of violence and another in choosing the appropriate treatment. We are still much too apt to speak of crime in general as though it were a and to phenomenon homogeneous generalise about "criminals"; and even if we focus attention solely on crimes of violence there are still great differences between one category and another. To mention only a few major distinctions, violence is quite different according as it occurs: (1) between neighbours or relatives living in close contact with one

another, (2) in the course of conflicts between organised gangs carrying on territorial wars against one another, (3) as the result of some quarrel, (4) as incidental to another crime, as in planned robbery or an unpremeditated assault while trying to escape,

(5)

as

an

incident

of

sexual

abnor-

mality. The question

for this conference is whether the various facilities that I have described are used in the right number and in the right type of these now

various cases: whether, in practice, the line between the medical and the penal is drawn in the proper place. According to our traditional legal conceptions this distinction between the medical and the penal is equivalent to the distinction between the sick and the sinful: the criterion is culpability, not treatability, although, as I shall mention later, even in existing law there are already one or two slight hints of the rival conception of treatability as the

appropriate criterion. Even in terms of culpability, however, we have already travelled a long way from the days when every adult was held to be fully responsible for his own criminal actions unless he was so crazy as to fall within the The M'Naghten definition of insanity.

Mental Health Act now recognises four different types of mental disorder and since the first of these is an omnibus category of "mental illness" the definitions are surely wide enough to admit every type of case in which culpability could be affected by mental disorder; while the Homicide Act in addition provides?in the now familiar words ?for suffering from such persons abnormality of mind as "substantially impairs" their responsibility for their acts.

The Homicide Act is of course peculiar in that it leaves the decision as to the accused's mental condition to be settled by the jury before a verdict is reached: in other cases it is for the judge or magistrates to determine, after conviction or after it is established that the accused did the act with which he is charged, whether his mental state is such that a hospital or guardianship order would be appropriate. In all cases, of course, these decisions can only be reached in the light of medical evidence, though, theoretically at any rate, medical evidence, even if uncontradicted, is not necessarily conclusive on the issue of diminished responsibility.

DIMINISHED RESPONSIBILITY As is well known, a defence of diminished responsibility has presented juries with some remarkably subtle problems, the solution of which, as things In are, may be a life and death matter. the earlier cases little judicial guidance was as a rule given; judges would call attention to the words of the relevant section of the Act and leave the jury to get on with it as best they could. More recently, however, some distinctions have been established, but these are almost entirely of a negative character. It is now clear that diminished responsibility is not a matter of intelligence, and indeed many offenders with normal or superior intelligence have achieved a successful defence on this ground. Nor is it to be confused with what is sometimes called "partial insanity". Again, while a fit of rage or or drunkenness is obviously not in itself adequate ground for a defence of diminished responsibility the possibility that some

people's mental condition renders them abnormally susceptible to the effects of

alcohol is not to be left out of account. Nor is it necessarily to be inferred that a condition of diminished responsibility exists even if the medical evidence to this effect is uncontradicted; conceivably this might be outweighed by evidence from other sources pointing in a contrary direction. Most important of all, however, is the Lord Chief Justice's frank admission in the Byrne case that "in a case where the abnormality of mind affected the accused's self-control the step between 'he did not resist his impulse' and 'he could not resist his one which was inimpulse' was capable of scientific proof". "There was no scientific measurement of the degree of difficulty which an abnormal person found in controlling his impulses." .

.

.

CULPABILITY All

these

conscientious

attempts

to

keep in step with the times certainly complicate the conception of culpability; they can hardly be said to clarify it. The

distinction between the sick and the sinful is preserved; but it is now drawn, hesitantly and uncertainly, in a new place or perhaps one should say in several new places, and with the candid admission that its proper location cannot be scientifically determined. Meanwhile things have been happening also outside the courts altogether. If we are to judge from psychiatrists' clientele, the scope of what passes for mental illness has been enormously widened in the past 30 or 40 years. Nowadays people look for psychiatric advice when they cannot get on with their husbands or wives, when thev lack confidence in their jobs or in social life, when their children steal or wet the bed. These developments are more marked in the United States than they are here, and more marked here than apparently in Russia where more old-fashioned views still prevail as to the respective spheres of morals and medicine. Some time ago I asked a young economics lecturer on the staff of one of America's most renowned universities how many of his academic colleagues of his own generation he thought were having or had had, psychiatric treatment; the reply was "probably about fifty per cent". If these people are all to be classified as suffering from mental illness, it is certainly an alarming thought that the education of students should be entrusted to such a collection of invalids. One can only take

JO

comfort in the fact that their illness was generally apparent to ordinary lay observation. This immense extension of the field of psychiatry can, it would seem, be described in either of two ways. On the one hand it can be read as proof that we have long suffered from a vast mass of undiagnosed mental illness which is only now coming to light and getting the treatment that it demands. That, I think, is the version most commonly heard, though some psychiatrists at least, it is fair to say, take the view that the problems with which they are asked to deal too often go far beyond anything that can reasonably be classified as illness. Equally well, however, can it be said on the other hand that, as Dr. Szasz has trenchantly put it in his new and challenging book on The Myth of Mental Illness, to define psychiatry as a medical speciality concerned with the study, diagnosis, and treatment of mental illnesses is "worthless and misleading". "Mental illness," he writes, "is a myth. Psychiatrists are not concerned with mental illnesses and their treatment. In actual practice they deal with personal, social and ethical problems in living." To the ordinary person concerned only with his own and his family's problems this distinction between medicine and ethics may appear to be merely a verbal matter. If a psychiatrist can help with those problems, let him do so. What does it matter by what name they are called? But to the convicted offender the distinction between sickness and sin cannot be thus dismissed; for in his case it may spell the difference between punishment and treatment. not

TOWARDS TREATABILITY Doubtless, I have said enough to show that the situation is extremely confused; and becomes more so, as we try to refine our notions of culpability and to bring them into closer relation with the complexities of reality. In the circumstances I would suggest that the sensible course is to shift the emphasis away from culpability and towards treatability: to make a distinction, not so much between the responsible and the irresponsible, or between the sick and the sinful, as between those who are likely to respond better to medical or alternatively to other forms of treatment. As I have said there are already hints of this even in the present law. Under the Mental Health Act the definition of psychopathic disorder includes the requirement that J1

condition should "require or be to medical treatment". Note, however, that the conjunction is "or", not "and": acceptance of the treatability criterion is here only half-hearted. On the other hand under the Criminal Justice Act mental treatment may be made a condition of a probation order if the court is satisfied, on medical evidence, that the condition of the offender is such as requires and may be susceptible to this

susceptible

treatment.

RELATIVE CULPABILITY Such a shift of emphasis would, among other advantages, obviate the dangerous absurdity inherent in the conception of diminished responsibility under the Homicide Act, which would logically require that offenders who are not fully responsible should be subjected to less severe sentences, as being less guilty than mentally normal persons who commit similat crimes?even though it is the irresponsible who are likely to be the more dangerous of the two just because they may not be able to control themIn practice, it seems probable selves. that regard for the safety of the public often causes sentences to be imposed which are not thus adjusted to the supposed niceties of relative culpability; but nevertheless it is worth noting that, whereas a fully responsible murderer in a non-capital case automatically gets a sentence of life imprisonment, up to December, 1960 forty-five out of eightyfive diminished responsibility cases had received sentences ranging between one and ten years.

In welcoming the proposition that we should accept defeat in the impossible task of assessing degrees of guilt or responsibility and concentrate instead on the choice of whatever treatment offers the best hope of success, there are, however, one or two notes of caution still to be sounded. A doctor's job is to In the case of infectious cure his patient. illnesses he may of course also have to take account of possible incidental risks to the community; and in any case he may find himself incidentally concerned with considerations affecting the welfare of the patient's family. But his overriding duty is always to his patient. In criminal cases other considerations may be no less vital. Not only must the public be protected from potentially dangerous criminals, but sentences are also supposed If to have a generally deterrent effect. medical evidence suggests that a partibe cular individual should quickly

curabje by appropriate treatment, it may nevertheless be thought undesirable that he should be set at liberty too soon, lest this should encourage others to follow his example. On : this whole question of the effectiveness of sentences as general deterrents it must be admitted that we are still very much in the dark; superficial investigation suggests that such effectiveness is easily exaggerated, if only because the public is very ill-informed as to the sentences likely to follow on the commission of a particular crime; and in any case the factors involved are much more complicated than is generally recognised. In the case of crimes of violence in particular perhaps the value of general deterrence is minimal. Violence is by definition violent; and anyone in a mood for violence is not very likely to indulge in cool and rational calculation of the probable consequences of his actions. Nevertheless even in these cases the deterrent aspect of sentences cannot be

simply forgotten.

TTie other note of caution relates to rights of the offender himself. Since the duration of medical treatment cannot be accurately forecast in advance, those who are subjected to compulsory hospital the

treatment necessarily receive what looks to them like an indeterminate sentence. There may well be an important dilemma here as between the demands of what we are accustomed to regard as justice and

the requirements of successful medical treatment, for it may sometimes take longer to establish a cure than the gravity of the original offence is thought to justify. The risk of the "white-coated jailer" is by no means negligible. This dilemma can, I think, only be resolved in terms of a balance of the claims of the individual concerned and of the community. Even though in general the choice between medical and other treatments may be governed by their respective prospects of success in rehabilitating the offender, I do not think that we are justified in imposing on him any form of treatment in either category, the severity or duration of which is out of all proportion to the damage that he has done or that in the absence of such treatment he is thought likely to do, to the community. No technique can, of course, be devised by which this balance can be scientifically struck; but the community like the individual may sometime take the view that there are minor ailments whose cure is not worth its price.

Conference Commentary in the for a

As will be seen, Lord Devlin and raised major issues, which were discussed again and again throughout the two days. But they also raised several surprising, if minor, points, which were quickly taken up. Lord Devlin's introduction of the judge as a layman must have surprised many. Granted he cannot be expert in all fields he meets, and granted too (as Lord Devlin did not say) that his general background of fervent advocacy as a barrister seems an odd training for judicial impartiality, yet many would feel that he must have some expertise in sentencing.

Lady Wootton

judge sentencing a man to prison prescription he does not under-

to be made up by someone he has not seen before. These apart, Lord Devlin's main contention was the need to bridge the divergence between the law and medicine, and his own example of humanity and tolerance was perhaps the greatest contribution to it.

stand,

NO MYTH Lady Wootton flew a kite about Dr. Szasz's The Myth of Mental Illness, and was brought down to earth by Dr. Stafford Clark's statistics. "Mental illness is not a myth, nor is it primarily a social, political or moral phenomenon 95% of the psychiatrists' work is the diagnosis and treatment of mental illness, and in this context schizophrenia is one of the most serious illnesses of this kind, and also one of the most common. 20% of all hospital beds in the world are occupied by schizophrenics. That is what mental illness really is. Behavioural disorders and social crises and catastrophes have necessarily engaged the attention of psychiatrists, because the most single dynamic contribution to the understanding of man's mental life was laid down by Freud and enabled not everyone, only doctors, to become aware there were forces at work in human mental life not

Professor promptly Hargreaves voiced this. The doctor, he said, becomes an expert by following up his cases: similarly, it ought to be a judicial responsibility for the judge to become expert by following up the results of his sentences. Experts are

...

needed in penology; and the penal system needs pulling together into^ a penal service, not just a prison service and commissioners.

CRITICAL COMMENT Secondly, Mr. Kenneth Robinson felt that the judge was not in fact fitted to answer Lord Devlin's second and third questions (see page 5), but

.

that the psychiatrist, whose daily task this was, would do it better. (Later Dr. Cuthbert emphasised the difficulties.) Mr. Robinson, debarred from criticising any of H.M. Judges in chance his seized Parliament, gloriously and courteously, and ended up by criticising the lot of them by asking the N.A.M.H. to repeat this Conference in the presence of the

.

.

recognised, or acknowledged, or treated objectively by the indi-

vidual." Wootton's second kite, that far too much psychotherapy was given in the U.S.A., was scarcely tackled; the fallacy is perhaps that it fails to distinguish psychotherapy from simple

Lady

psychiatric advice. Her interesting point that the legal provisions were rarely used was only partly answered by Dr. Cuthbert's statistics (applicable, admittedly, to the unusual field of the special hospitals).

whole judiciary. Again, Lord Devlin's example of a prescription (see page 7) was not very sound: for firstly, most doctors

today, and especially psychiatrists, feel they do better if they explain to their patients just what is happening; and secondly, the old-fashioned "blind" prescription has a fairly exact parallel

But Lady Wootton's chief theme and a major contribution to the conference was on the move from a 13

of culpability to one of Stafford Clark was misinformed on treatability; and it was on this?and this point. "If we are honest I think we must on the responsibilities of the therapist admit that this unpopular advice is, (or punisher)?that she stimulated the in founded on common

concept

fact,

constructive and animated discussion. What violence was treatable? And how, and where, was treatment most

to be

the

given?

Working Hospitals.

Professor Hargreaves supported her views that we should be guided more by a criterion of treatability; but he pointed out the dangers that, if this were carried to extremes, the penal system would simply off-load their responsibilities on to the National Health Services?and this was simply "deportation" again. "The penal service must take back its

.

Besides, if the mental hospitals were be held responsible for custody, they would be "marching backwards", said Dr. Stafford Clark: "The doors are going to be locked again", and we had only had them open for the past few years. Indeed, it had taken us 2,000 years to get rid of chains. to

"OPEN DOOR" METHOD

Party

on

Special

.

Secretary.' "Surely this is the

Dr. Kidd, however, thought this an exaggerated anxiety: he was quite prepared to take the violent and to use the "open door" method?except for the aggressive and antisocial psychopaths. His four points were clear enough:?

with the violence associated with mental illness. "Thirdly, this open-door hospital cannot treat the aggressive or antisocial psychopath. "Fourthly, the aggressive or antisocial psychopath, Scott has said, needs special treatment in special units." Later, Dr. Guthbert discounted the fear that psychiatric hospitals might be forced back into the role of custodial care from which they have been quietly but firmly escaping over the last two decades. He felt Dr.

.

"I would like to quote the last part of their paragraph 24 as I think that what was envisaged in 1958 may well be taking place now, as justices are showing evidence of concern over the lack of security arrangements in hospitals to which they are being asked to send people for treatment. I quote:? " 'In the absence of satisfactory security arrangements at National Health Service psychiatric hosiptals, the courts might well hesitate to make orders sending patients to The alternative those hospitals. would no doubt usually be a senof imprisonment, and the tence result would thus be that a number of people whose real need was psychiatric treatment would be caught up in the penal system, and would only receive the treatment they required if they were later transferred to hospital by order of the Home

responsibility".

"Firstly, the open-door therapeutic community, psychiatric hospital or unit must not be jeopardised in the interest of security. "Secondly, this open-door hospital can deal effectively and adequately

largely

sense, and the circumstances leading to its being given arose from the findings and unanimous opinions of

very last thing should tolerate: it is the negation of all the complete humanitarian principles on which the whole Act is founded."

that

we

MORE SPECIAL UNITS The need for more Special Units had indeed been implied by many speakers, and it thus took clearer shape. But (Professor Hargreaves had asked) were the public prepared to pay for them? Dr. Kidd outlined the need: "As yet these units are for the most part not available?let us hope that all Boards will urgently set up suitable units for the treatment of these people, because, until these units are available, the violent psychopath must be considered not susceptible to treatment and can, therefore, only go to prison, which is more than regrettable as we would surely all agree that the aggressive .14

We reach the penal institutions. must raise the standard of treatment to one not yet existing in the penal institutions?the standard mentioned in this Act. Until then we are not entitled to take them into our care, and are tempted to play violence against violence and cruelty with cruelty in the face of explosions of misery, or retaliation, which are both brutal and inadequate."

psychopath is as sick as the schizophrenic and we have not done our duty by him or by the public until we

have made

task of

a

start on the difficult treatment in

attempting his

suitable and adequate surroundings, and these psychopathic units set up by Regional Boards should also, presumably, have accommodation for that very small number of psychotics who present a continuing and persistent problem in the mental

hospital." what of the staff? Lady "white-coated Wootton's phrase jailers" led Dr. Stafford Clark to And

that the general public? which they the staff from were drawn?must understand the behaviour of those in their care, and must respect them as human beings. Are they carefully selected? Under what conditions do they work? A mental nurse later called attention to the view that many mental hospitals are on the point of breakdown from staff shortage. Dr. Stafford Clark had stressed very forcefully Tinbergen's account of herring gulls. If the young gull's behaviour stimulates protective instinct in its parents, they will defend it to the death; if it fails to do so, because it is damaged itself, they will eat it. Again, if one of their number is caught in a net and behaving in an unusual way, they will be first alarmed by it and then attack it. He went on to horrify his audience for minutes on end by a string of quotations of eyewitness accounts, from the first century to the nineteenth, of ordinary human beings' cruel and degrading behaviour to their fellows in the pillory or in mental hospitals. He ended: "Why do the herring gulls eat their young and attack another member of the flock? Because they no longer recognise them as being of the same order of creature. While doctors no longer recognised human being as such when mentally ill, they could treat them as they did. While people, such as "the whitecoated jailors", regard the men in their care as totally different from themselves, then the spirit will spread into the mental hospitals, and their present enlightenment will not

emphasise and

DIAGNOSIS? Under this heading, Dr. Jackson and Dr. Stafford Clark provided the two papers, but the latter dealt mostly with the attitude of society, and pointed out that doctors learnt nothing about their patients while chained in the dark, while Dr. Jackson considered the difficulties in arriving at a diagnosis in the atmosphere of the court. As he said, it is impossible to find in every case the precise answer which will satisfy the needs of the individual and of society; yet the court has to do something to make itself feel happier. It also needs to share its responsibility. Indeed, the custom still persists of sharing it with Almighty God by a prayer at the start; and the court likes also to be satisfied that it is protecting and representing society. The atmosphere of the court is not always the best one for deciding whether the accused was sane or not (some might have added "or for deciding whether he is guilty or not"), and it isn't easy for experts to give evidence objectively: a point raised by many doctors before now. Dr. Jackson said he'd like to try to find out what a judge thinks he is doing, and what he is really doing. Mr. Justice McVeigh went further to suggest a M'Naghten test on these lines for

judges. With these difficulties in mind, the audience heard Dr. Gibbens turn to diagnosis and plead for a closer study of each individual: "Violence is a symptom which in itself means nothing. It is what it is combined with that gives it significance. It is the man who is frightened by events who ultimately commits an aggressive act."

J5

this

Evidence from warders suggested that a first offender who had committed robbery with violence generally was a "steady" in prison. Dr. Miller's sore throat curtailed his remarks, but every word was valuable. "We do not look at the problem of diagnosis?i.e., of violence? carefully enough. We must ask ourselves questions, when, where, what and why? We must consider human

beings

their

atmosphere is

not

universal in

prison doctors.) Dr. Gray disturbed the audience by describing that the great increase of prisoners was partly due to the reception of many former mental hospital patients, looking for a bed for the night, and found loitering on enclosed premises.

As to cure, Dr. Donald West and Hill were Denis both Professor cautious; it sounded as if they had

in relationship to themselves, environment?e.g., do they

been led

on

to discuss it after being to speak on "Whither

originally invited

from families which allow violence? We tend not to spend enough time on our diagnosis or to look at the aetiology." With this, diagnosis began to look more difficult than some had thought. Was treatment any easier? How can the violent be handled? Is "cure" come

Research?"

Dr. West appealed for research not only on aggressive psychopaths, but also on the semiautomatic frustration reactions of animals and human beings. Professor Hill put the problem in

more

biological

possible? AND CURE? Dr. Kidd spoke in general of the

TREATMENT,

value of the lack of restraint and of the "open door" in combating violence. He quoted the fewer broken windows and smashed doors since the doors had been opened?though he didn't say if food and social activities had also improved. But to treat aggressive psychopaths in ordinary mental hospitals was most difficult. Dr. Craft, from his experience of running an experimental unit for psychopaths, stressed the effect of community morale on the diplay of aggression; and reminded us of the possibility of brain damage being sometimes responsible, as well, of course, as the child's early upbringing. He listed several types of treatment for specific cases and pointed out that those sent to the State Institutions would be among the most aggressive But his and violent in the country. study of 50 cases sent there showed only 9 released after 13 years. As he said, "Not very encouraging". Dr. Gray spoke of his experience as a prison doctor and stressed the concern of the staff to help the prisoner: "he will be consulted by the inmates and staff alike on day-to-day problems". (But the account of two recent prisoners?see page 41 suggests that 16

terms: "I think it reasonable to assume that the potentiality for violence This makes exists in all of us. biological sense, and here biology, and social psychoanalysis psychology are in accord. We are born with an inherent tendency to show aggressiveness, and we share

this tendency with many higher mammalian forms of life. In this division of mammals, it is clear that we belong to the aggressive, predatory group, and are equipped with all the physiological machinery for offence which they

possess." Professor

Hill

also

searching questions:

"What, then, is the problem? Who has

asked

some

nature of the to be cured

Is it the individual of what? is it society? Are those who antisocial violence show always abnormal persons, and if so, in sense what 'abnormal'? Is the abnormality a qualitative difference from the majority of persons in this respect, or is it only a quantitative difference?one of degree and distinguishable only by the consequence of the acts committed? Most of us have engaged in school fights and many neurotic persons repeatedly harbour murder in their hearts, but only one in 20,000 of us ever commits an actual murder. If the abnormality of antisocial violent persons is a qualitative abnormality, is it then a known disease, maland or

Continued

on

page 38

Continued

from

are

two

page 16

degeneration? There concepts of abnormality?

development

or

the ideal and the statistical. The first is based on moral judgments and evaluations based on attitudes; the second is a scientific measurement of the extent to which any given phenomenon varies from the statistical average. If there is wide variation beyond a certain limit, the chances that it is due to normal biological processes becomes smaller, and on the fringe area of the curve it may be difficult to determine whether the effect is due variation or due to to normal pathological causes." Finally, there is the influence of the environment not only on the handling of aggressiveness but on its causation. Dr. Hill quoted the failure of the attempt to avoid violence by forbidding children to play soldiers. But "the public interest in antisocial behaviour, particularly sexual and violent, was never greater. When the two are combined in a rape murder, the issues arouse an intense interest on a national level. The nation's press report all the details of the trial, and every event of any possible relevance about all those concerned." He ended: "Can we, in fact, imagine our society without its thrillers, its crime news, its gangster films and its great detectives of fiction? In our culture, the hero-detective of fiction is only slightly more omniscient and omni38

potent than the scapegoat villain. I say scapegoat, for it may well be asked to what extent the violent criminals of our society are not the scapegoats of that society. Perhaps by their presence and their activities, the rest of us are kept safely from exposing our own innate violent tendencies. The contemplation of the villain and the details of his villainy give us vicarious pleasure, provided always, of course, he is caught and suffers the punishment due to Freud made this point very him. 'If clear in 'Totem and Taboo'. someone has succeeded in satisfying the repressed desire, the same desire must manifest itself in all his companions; hence, in order to keep down this temptation, the envied individual must be deprived of the fruit of his daring.' "Social psychiatry has already learned that society's attitudes to mental illness may determine the form and the prognosis of those illnesses, and even perhaps their incidence. Communities may be compared as to their attitudes to mental disorders and the relative incidence of these disorders in them. Insofar crime and violent anti-social as behaviour are dependent upon factors other than physical disease and personal psychopathy, they are social diseases and as such are influenced by social attitudes. It is time that these matters were given greater consideration. Indeed, the cynic may say of our society with its evident ambivalent attitudes, that it has all the crime and violence that it deserves."