Care and containment

The patient requires, and is entitled to, treatment and rehabilitation. The convicted criminal is subject at the least to control and possibly to the exclusion of containment. The problems for forensic mental health is to deal with those declared both patient and criminal, often by the same authority. Forensic mental health inherits the community's expectations that we both care and contain, the emphasis shifting between containment and care with the prevailing political and cultural winds.

Forensic mental health practice is not infrequently driven by the 'scandals' which periodically beset the specialty. These 'scandals' and their associated inquiries or litigations come in two general forms. One form is the perceived failure to have adequately protected the safety of the community by lax, or even intentionally liberal policies, which are believed to have led to inadequate control over dangerous patients. (!Z) The other form derives from a failure to have adequately cared for patients by subjecting them to oppressive and dehumanizing conditions often in pursuit of an over zealous containment and control. (!®,! and 20)

Those who provide care and treatment to mentally abnormal offenders are forced to confront their patients as both criminal and mad. (2!> Madness is the object and core of the activities of mental health professionals and the constructions we place upon madness emerge largely from our professional discourses. Criminality has no privilege within the discourses of mental health disciplines and the constructions placed upon it are likely to be drawn from those current in the wider culture. The criminal is defined in part by his act. Foucault(22) has argued that historically (in what he calls the classical period) crime, sin, and bad conduct remained separate realms with separate criteria and subject to separate authorities and sanctions. He suggests that the law moved in the late eighteenth century from an exclusive concern with the criminal act to 'mechanisms of legal punishment with a justifiable hold not only on offences, but on individuals; not only on what they do but also on what they are, will be, may be'. The ideal postulated by Foucault has some basis, but oversimplifies. In, for example, English law, the Anglo-Saxon Dooms (statutes) laid down a tariff of fines and punishments connected to specific offences and this focus persisted through the Middle Ages. However, Kiralfy (23) notes 'morality may have attached greater importance to the outward and visible act rather than the spirit, but it could not altogether disregard the evil motive'. Walker (24) has demonstrated that from an early period of legal history there was a compromise between a legal system founded on strict liability and the ecclesiastical insistence on the importance of mens rea(criminal intent). The mad, the simple, and the very young were the occasional beneficiaries of a system that was loath to punish acts lacking evil intent. It would be fair, however, to suggest that until the last 200 years the emphasis in the criminal laws of Europe was on recompense or retaliation for a forbidden act, with only occasional concern for the nature of the perpetrator or the context of the offence—an approach which seems to be reasserting itself as part of the current populist politics in Western democracies.

In an offender, exculpation or the mitigation of punishment by virtue of mental disorder has traditionally been regarded as a form of progress. However, Foucault (22) argues these changes, which he characterized as psychological knowledge taking the role of casuistic jurisprudence, were merely a shift in how power was mediated and a partial transfer of hegemony from the courts to psychiatrists, psychologists, and social workers. Criminal behaviour ceased to be constructed solely as deviant behaviour but increasingly became caused, whether by social deprivation or inherited propensities. Crime as evil choice was partly displaced by crime as socially or biologically determined behaviour. The psychology of the individual criminal moved to centre stage and with it the potential functions of mental health professionals who not only had the role of removing the insane from the legal arena but also were expected to contribute to the correction of those disturbances which caused crime in general.

In the nineteenth and early twentieth centuries the notions of punishing the offender were mitigated by both the utilitarian aims of correcting and preventing future offending, as well as by doing justice to the circumstances and background of the offender. The balance between these elements has shifted widely with prevailing judicial and public attitudes and in recent years the claims of the 'rights of the victim' have begun to play havoc with the economics of punishment. In many jurisdictions, pressure groups have succeeded not only in forcing up lengths of sentence but also in focusing disposal almost exclusively on retributions for the suffering imposed on the victim. The increasing, and largely unwarranted, scepticism about the efficacy of rehabilitative or correctional programmes to modify future offending is also fuelling an increasing emphasis on retributive sentencing. (25)

In forensic practice in theory at least, the act with which the patient was charged should have little (if any) relevance to issues of length of detention in a mental health facility. In practice it can become central if we are not careful. The notions of an appropriate tariff for the offence in considering the date of discharge from forensic inpatient facilities is usually a covert influence on mental health professionals but very much an overt concern with government committees and politicians with whom decisions as to date of release so often lie.

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