The Home Affairs Committee has agreed to the following Special Report:—

We have received the following response from the Home Office to our First Report of this Session on Managing Dangerous People with Severe Personality Disorder:[9]

Introduction

1. The Government welcomes the contribution made by the Home Affairs Committee's Inquiry to the debate on managing dangerous people with severe personality disorder.

2. The Committee's Inquiry was prompted by the publication of the Government's consultation document "Managing Dangerous People with Severe Personality Disorder" last July. The paper set out proposals for change designed to achieve the twin objectives of providing better protection for the public whilst improving the treatment of dangerous people with severe personality disorder so as to reduce the level of risk they present to others. The Government recognises that to achieve these objectives, a careful balance has to be struck to protect the human rights of individuals who present a high risk associated with their personality disorder and the rights of the public to be protected from serious harm.

3. The Government is grateful for the Committee's support for the proposals set out in the consultation paper, which will be taken into consideration along with the other responses. The Government will also take account of the outcome of the consultation process on the review of the Mental Health Act, which ended on 31 March. The Government hopes to announce its decision once the Spending Review concludes in the summer.

The Committee's conclusions and recommendations

4. The Government's response to the individual conclusions and recommendations contained in the Committee's report is as follows:

5. The murders committed by Michael Stone caused very real alarm and raised very difficult questions as to the reconciliation of two powerful forces—the need to protect the civil liberties of those who have not committed an offence; and the need to protect society from the offence that they may commit.

6. Is it right that the State should be powerless to intervene in a case where someone has yet to commit a criminal offence and whom the medical profession consider to be untreatable, even if that person poses a very real danger to society?

7. The possibility of indefinite detention for this group is the most controversial of the proposals.

8. In relation to the murders committed by Michael Stone, the independent inquiry into that case, which was set up in accordance with Department of Health (1994) Guidance on the discharge of mentally disordered people and their continuing care in the community, has yet to report. It would be premature to speculate on their findings. However, these proposals are not a response to this or any individual case, but to long-standing concerns about the failure to manage this group effectively. These proposals are therefore intended to protect the public from individuals who may pose a risk because of their personality disorder. But they are also concerned with managing these people in a way that provides better opportunities for them to deal with the consequences of their disorder. The Government has always recognised that to achieve these twin objectives, proper safeguards to ensure that individuals are treated fairly are crucial.

9. In particular, the Government welcomes the Committee's recognition that there is a very careful balance to be struck between the civil liberties of those who may have committed no offence and the risk that those individuals may pose to others. The Government recognises the seriousness with which any proposals potentially involving indefinite detention must be regarded. Any proposals for new legislation will be compliant with the Government's obligations under the Human Rights Act. Powers in statute will ensure rigorous control of the processes for determining whether to impose detention, and the arrangements for holding those subject to detention, and any new procedures will be subject to the normal processes of judicial review. There will also be statutory procedures for review of continuing detention at regular intervals.

10. It would appear that the cumulative effect of both recent legislation and recent court rulings will be that an increasing number of dangerous people with severe personality disorder will serve life sentences rather than fixed terms of imprisonment.

11. The Government has introduced a number of measures to ensure better public protection, including the mandatory life sentence for a second serious violent or sexual offence under section 2 of the Crime (Sentences) Act 1997. The aim of increasing the use by the courts of life sentences for dangerous people, including those suffering from a severe personality disorder, is to ensure better public protection. The Government's concern however, is that sentencing measures alone are insufficient to protect the public from dangerous people with severe personality disorder. The imposition of a life sentence requires the commission, investigation and successful prosecution of a serious offence, or two serious offences if the mandatory life sentence under section 2 of the 1997 Act is to apply. The objective of the Government's proposals is to reduce reoffending by early identification of personality disorder associated with a risk of offending and therapeutic intervention before a serious crime is committed.

The TBS system in the Netherlands and resources

12. There are obvious attractions in a court order following conviction which sends the offender first to prison for a number of years and then for treatment in a secure clinical facility

13. The Government notes the Committee's comment, but as they go on to conclude, a system comparable to that which operates in the Netherlands, would not produce a solution in England and Wales to managing dangerous people with severe personality disorder for many years. Most notably, as the Committee point out, the TBS system would not apply to people in prison now serving determinate sentences who are assessed as dangerous and approaching the end of their sentence, nor the high risk individuals in the community who may previously have been convicted of offences but are not currently before the courts.

14. We conclude that substantial initial expenditure will be needed for the future management of dangerous people with severe personality disorder, irrespective of what other changes are made in the law affecting them or the way the facilities are organised. This is a cost which, in the interests of public safety, we believe to be justified.

15. The Government welcomes the Committee's recognition that its proposals are necessary in the interests of public safety. The Government recognises that there is a need for better specialist provision, more research, better assessment tools and therapeutic interventions which is where the bulk of any new resources will go. The Government has already announced the establishment of a pilot project at HMP Whitemoor to look at the assessment of those who are dangerous and severely personality disordered. This is expected to be the first of a number of pilots in a variety of secure settings across the Prison Service and NHS.

16. The experience of the Netherlands, in our opinion, supports the proposals in option B for managing dangerous people in the UK.

17. The Government is grateful for the Committee's support for the analysis set out in the consultation paper and notes their preference for option B. The Government is still considering the most appropriate way forward but hopes to be able to make an announcement once the Spending Review concludes in the summer.

18. We recommend that the Home Office should publish the cost benefit analysis underlying its consideration of the options proposed, including the implications of adopting a TBS-type arrangement in the UK.

19. The Government notes the Committee's recommendation. As part of the further analysis of the options, a cost-benefit analysis is currently being undertaken, which, alongside the consultation responses, will assist Ministers in making a decision on the way forward. At the moment, this work is very much at the preliminary stage, and more precise longer term estimates will be needed once further development work has been carried out. Once an announcement on the way forward is made, and this first stage of analytical work has been completed, the Government intends to make available details of the supporting material which has assisted Ministers in their consideration of the options.

Treatability

20. There are differing views and approaches among medical professionals about treatment of dangerous people with severe personality disorder.

21. The Government is aware that there is a developing evidence base of research about the treatment of dangerous people with severe personality disorder. A range of interventions is available and there is some evidence to suggest that some of these are effective in different sub groups of the severely personality disordered population. It is crucial to the future management of this group that these approaches, and modified approaches, are piloted and evaluated in different sub groups. New interventions will also be developed. The development of a multi-agency and multi-disciplinary approach needs to be facilitated so that the responsibility for management does not lie with one agency or profession alone, and all disciplines can make good use of new research evidence.

22. We conclude that if these proposals were confined to dealing with people who have been found guilty of serious criminal offences the resistance to them from the medical professions would be significantly less. Such a restriction would not, however, address the Government's desire to protect the public from the risk presented by some people with personality disorder who are currently living in the community.

23. The Government is aware of the anxieties of many mental health professionals about the detention of those who are not before the courts for sentencing for a current offence. The Government does not accept however, that these proposals for detention on the basis of an individual's mental disorder and the risk he or she presents is fundamentally any different in principle to that which currently applies under the Mental Health Act. Under the Act, if an individual is suffering from mental disorder and is a serious risk to him or herself or others, the issue of detention is a matter for professional and clinical judgement, a judgement which is scrutinised by an independent Mental Health Review Tribunal. These proposals envisage a similar model with robust assessment procedures and improved services specifically focussed on reducing risk associated with personality disorder.

24. The Government acknowledges the importance of credible assessment tools which will command the confidence of the courts and the clinicians who will have to make judgements about detention. The Government sees piloting and evaluation of the assessment tool and therapeutic interventions in a variety of settings as a crucial step to building that confidence.

Prevention of personality disorders

25. We recommend that the Home Office, the Department of Health and the Department for Education and Employment should examine the costs and benefits of identifying in early adolescence individuals who may develop a severe personality disorder and become dangerous. It may well be that intervention before the personality disorder becomes settled in the late teenage years would have long-term benefits both for the individual and for public protection.

26. Annex E to the consultation paper set out the Government's initiatives in this area and highlights the Government's recognition of the importance of prevention, both primary and secondary. The Government notes the Committee's recommendation and accepts that a comprehensive approach is required to identify the specific causative factors and effective interventions in childhood and adolescence as well as adulthood.

27. Longitudinal research studies point to the risk factors leading to the development of personality disordered adults, such as early experiences of physical and sexual abuse, but these experiences do not inevitably lead to the development of personality disorders and there is still a lack of evidence as to what protective factors exist. This is a key area for further research so that specific interventions in children and adolescents can be accurately targeted. Accordingly, a review of the literature on the primary prevention of severe antisocial personality disorder has been commissioned which will inform future Government funded research and service development in this area. The Committee's recommendation will then be considered further in light of the outcome of the literature review.

Safeguards

28. We agree that a high standard of proof should be required, but the phrase "beyond reasonable doubt" cannot be meaningfully applied to diagnosis or prognosis in the way it can to fact. It is never unreasonable to doubt a prediction or a judgement. For this reason only, we do not believe that it is a useful test.

29. The Government agrees with the Committee's conclusion.

30. We conclude that among the safeguards which ought to be introduced is a regular opportunity for Parliament to review the operation of any legislation to implement these proposals.

31. We recommend that any legislation should be subject to annual report to Parliament by a Commissioner and annual renewal of the legislation by means of an order subject to the affirmative procedure in each House.

32. The Government notes the Committee's recommendation and recognises the benefits of an annual report to Parliament. The Government has made it clear that appropriate legislation will be brought forward when Parliamentary time allows. Once a final view on the shape of the system for the future has been taken, the Government will give further consideration to the recommendation that the legislation should be subject to annual report.

33. However, the Government does not accept that new legislation for managing dangerous people with severe personality disorder should be subject to annual renewal. The Government is confident that legislation can be brought forward in due course that is compatible with the European Convention on Human Rights, as well as the liberties traditionally protected by Parliament without this additional measure. The Government also believes that this requirement could undermine the stability of any new arrangements in their early years as well as inhibiting the development of a long term strategy for managing this group.

34. We welcome the attention the Home Office is paying to bringing victims of crime closer to the heart of the criminal justice system. We endorse the suggestion that victims or their next of kin should be able to make statements about the effect a crime has had on them and for such a statement to be attached to the case papers. We also believe that the arrangements for informing and consulting victim's families under the Victim's Charter should apply to individuals detained under the Mental Health Act 1983 where appropriate.

35. The Government is grateful for the Committee's comments. In its consultation paper "Reform of the Mental Health Act 1983", it is consulting on whether rights in the Victim's Charter for victims and their families to be given information about the detention and release of offenders should be extended to cover those restricted patients who have committed serious violent or sexual offences.

Definition of the group to which new powers should apply

36. We recommend that the proposals should be applied to individuals only when an assessment predicts it is almost certain that they will commit a very serious criminal offence.

37. The Government notes the Committee's recommendation. The proposals in the consultation paper will be targeted very carefully at those who pose the highest risk, and where the risk is clearly linked to their personality disorder. The assessment tool will be piloted and evaluated to ensure that it is sufficiently robust for this purpose.

Safeguard of civil liberties

38. We recommend that continued detention should be subject to regular review by a judicial body at stated intervals—on the basis of multi-disciplinary assessment and subject to independent medical opinion.

39. The Government agrees with the Committee's recommendation that detention should be subject to regular independent review. The review process will be complimentary to the provisions in the Mental Health Act and the Government will consider the specific point that review should be "by a judicial body at stated intervals—on the basis of multi-disciplinary assessment and subject to independent medical opinion" in the light of emerging evidence from piloting of the assessment tool and in due course, therapeutic interventions.

40. On balance we recommend that a separate service as set out in option B is most likely to protect the public, meet the needs of the individuals concerned and satisfy the requirements of the European Convention on Human Rights.

41. The Government welcomes the Committee's support and recognises the need to provide a therapeutic environment, which will allow dangerous and severely personality disordered offenders to address offending behaviour related to their personality, rather than a penal one. This will be a key issue in considering the most appropriate way forward for this group.

42. We recommend that new powers to detain dangerous people with a severe personality disorder should be accompanied by the most stringent safeguards in order to satisfy the requirements of the European Convention on Human Rights, as well as the liberties traditionally protected by Parliament.

43. The Government agrees with the Committee's recommendation. The Government has always recognised that these proposals must be compatible with the European Convention on Human Rights and that individual civil liberties must be safeguarded. The Government has demonstrated its commitment in this area by the introduction of the Human Rights Act, which will come into force in October.

4 May 2000