Fitness to plead
The issue of fitness to plead can be raised before the trial starts. In the case of sexual offenders a pretrial report might well demonstrate the presence of mental impairment or severe mental impairment as defined in Part 1 of the Mental Health Act 1983. Such people have often themselves been victims of sexual abuse and can be regarded as vulnerable adults who easily slip into the victim-perpetrator cycle.
The rules to determine fitness to plead are determined by Section 4 of the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991. To be fit to plead a defendant should be able to:
• understand the charge and its implications
• enter a plea of guilty or not guilty
• challenge jurors
• instruct counsel
• follow the evidence in court.
If the defendant is found unfit to plead, disposal is then at the judge or magistrate's discretion. The preparation of a psychiatric report on the sexual offender and the offence
A primary purpose of a psychiatric report is to establish whether there is formal mental illness (DSM-IV Axis I disorder). It should here be noted that whilst paraphilias are considered in DSM-IV as belonging to Axis I, i.e. mental illness, there is an increasing body of opinion that would place them in Axis II personality disorder owing to their enduring nature and defensive functioning. Reports on sex offenders are most often useful to a court if they explore other factors:
• the personality of the offender in detail and from a developmental and aetiological perspective
• the need for containment and security that a court would request given its requirement to apply justice and to protect the public on society's behalf
• the appropriateness and suitability of treatment, whether pharmacological and/or psychological.
To prepare for the assessment it is important to establish the following.
1. That the instructions are adequate and the request for such a report is within your remit. It is important to ascertain in exactly which forum the report will be used. All available documentation, such as previous psychiatric notes, social enquiry reports, depositions and criminal records of offences, etc., should be made available.
2. The approximate number of interviews necessary, which should be arranged in advance. Two to three interviews are likely to be necessary for an assessment to allow the development of rapport as well as the time to take a full history.
3. That the person is made aware of the purpose of the assessment at the beginning of the first interview and that any matters that arise during the assessment may be mentioned in the report. Written consent for access to medical or other relevant files should be sought.
Whilst it is obviously necessary to take a full psychiatric history, the assessment of sexual offenders should give special emphasis to the following areas:
• early patterns of child care
• attachment patterns to parental figures
• inconsistent parenting
• separations including time spent in care
• other traumatic experiences from infancy onwards, with particular reference to physical and sexual abuse
• exposure to oversexualized adult behaviour
• early sexualized behaviour in latency
• learning difficulties at school
• evidence of disturbed behaviour, particularly bullying and cruelty to animals
• sexual development in adolescence
• fragile sense of sexual identity
• difficulty in establishing healthy same-sex peer relationships
• evidence of depression in childhood and adolescence, including low self-esteem
• normal sexual experimentation in adolescence and fixation on deviant fantasy in action
• other criminal activity.
It is striking that many of the patients interviewed with these features in mind demonstrate very similar profiles, with faulty parenting, high degrees of early separation and loss, and a prevalence of overexposure to precocious sexual experience. They fail to relate in a healthy way to peers and instead develop a perverse mode of relating which repeats a usually forgotten or repressed traumatic sexual experience in a mindless and compulsive manner. If the roots of this can be traced and the meaning of the criminal behaviour better understood, there is a chance that links could be made during subsequent treatment. In time the behaviour becomes less compulsively driven and less maladaptive behaviours are adopted. Psychoanalytic theory would view this behaviour as a defensive structure necessary for psychological survival for which a price must be paid in the form of personal distress both to victims and to the perpetrators themselves and the condemnation and punishment by society. The courts may be assisted by being offered a conceptual framework, whether psychoanalytic, cognitive-behavioural, or sociological, with which to understand these often bizarre and destructive acts in the absence of formal mental illness. It particularly helps with disposal and places the option of treatment more clearly on the agenda.
The final form that the report for the court takes is described elsewhere (see Chapter11.6). Treatment of sex offenders
Under certain circumstances it may be appropriate to consider a sex offender for psychiatric treatment. The basis for this treatment may be that it is imposed by a court as a condition of probation or as a condition of a parole licence, or entered into on a voluntary basis by the patient. The settings in which this may take place are considered below.
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