Both the new sentencing measures described earlier and aspects of the Criminal Justice Act 1991 have major practical and ethical implications for mental health clinicians and services in England, including being likely to involve particularly psychiatrists more directly in the sentencing process. (i!,) For example, Sections 4 and 2(2)b of the Criminal Justice Act 1991, which allow the imposition of 'longer than normal' sentences on the basis of risk to the public, infer direct involvement of psychiatrists in sentencing,(42) since professional risk assessment can be used in determining the length of punishment. Similarly, the the recent announcement by the United Kingdom Home Secretary of a 'reviewable order' for both convicted and unconvicted and treatable and untreatable psychopaths,(43) which will depend upon 'diagnosis' of a legal concept of 'severe personality disorder' and risk assessment by mental health professionals, challenges both the validity and reliability of diagnosis and risk assessment and also the ethical nature of forensic psychiatric practice per se.
The ethics of psychiatric involvement in the criminal justice system is particularly highlighted by the latter, at least partial, shift in psychiatric jurisprudence in the United Kingdom away from the traditional welfare model and towards a justice model, focusing particularly on both punitive and public protective sentencing even of MDOs. This has profound professional ethical implications. Going beyond the United Kingdom, consideration of the involvement of psychiatrists in the 'ultimate punishment' of execution is useful in the same context. Whilst reflecting identical ethical issues concerning professional involvement in the criminal justice system relating to any degree of punishment, capital punishment focuses the ethical analysis most acutely. Ultimately, medical involvement in any degree of punishment, or in public protection, can be seen in terms of juxtaposition of the ethical role of the individual 'doctor as doctor' versus 'doctor as citizen'.
The latter distinction leads naturally to consideration again of confidentiality, this time as the primary focus of such ethical 'dual functioning' by doctors in a forensic context. As already inferred, in England and Wales the decision of the Court of Appeal in W v. Egdelf36) concerning breach of confidence in the public interest (in relation to a detained patient) and aspects of both the Crime (Sentences) Act 1997 and the Criminal Justice Act 1991 (in relation to sentencing) have important implications for psychiatrists. Information may be gained under the cloak of a clinical evaluative purpose, with a view to possible discharge from hospital or to 'therapeutic sentencing' to hospital, but then used by a court (or even by the doctor him- or herself) to achieve public protection through judicial (or medical) perception of increased risk arising out of the same (originally clinically acquired) information. One way of attempting to deal with this difficult issue of clinical confidentiality in a 'non-privileged' legal situation is by way of the ethical notion of a 'confidentiality contract'. (44> This emphasizes the role of the defendant (or detained patient) in taking his or her own 'confidentiality risks', based upon the clinician openly offering knowledge to him or her of his or her legal situation during psychiatric assessment. However, ultimately even this approach can offer only a limited degree of protection against the tension (again) between welfare and justice, where one set of information or professionals is used towards two social purposes. In the end, is the psychiatrist assessing a defendant for possible welfare sentencing to hospital, or for possible discharge from detention in hospital, to give an explicit warning to the defendant in advance of interviewing him or her? To do so may cause the defendant to remain silent, potentially to his or her mental health disadvantage. Not to do so may risk the doctor becoming a route to increased punishment or preventive detention. The same problem is reflected even at the earlier stage of assessment for trial, since an interview towards the possibility of finding a mental condition defence may also reveal information relevant to guilt or innocence per se.
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