A fundamental issue facing any system of mental health law is that of determining the importance to be given to public safety considerations. One of the criteria for the exercise of compulsory psychiatric powers is that the patient poses a danger to others. This criterion emphasizes the expectation that society has of psychiatry as a guardian, a role with which psychiatrists, with good reason, tend to feel uncomfortable. The principal function of psychiatry is not to protect the public from persons who are considered dangerous, but is rather to provide treatment for those suffering from a mental disorder. In spite of this discomfort, psychiatric hospitals are nevertheless given the task of confining those whose mental condition makes them a threat to others.
The tension between custodial and therapeutic functions is particularly evident in respect of psychopathic personality disorders. Here again the issue is one of boundaries: is psychopathy properly located within the category of mental disorders, or is it a non-medical behavioural phenomenon? That is a debate for another place; what is legally significant is the fact that psychopathy is medicalized to the extent of (i) appearing in psychiatric diagnostic manuals, (ii) being acknowledged by psychiatric expert witnesses as a mental disorder, and (iii) being included by mental health legislation in the category of mental disorders. Once the condition is so recognized, medical responsibility for the psychopath becomes an issue.
The particular difficulty that psychopathy poses for mental health law is that although the condition may be acknowledged as being a mental disorder, it is also widely viewed as being untreatable. Psychiatry, having identified the condition, may then be reluctant to accept responsibility for responding to it in a therapeutic context; not an unreasonable position in circumstances of acute pressure on psychiatric resources from those suffering from conditions that are readily treatable. In one view, then, the dangerous psychopath is more appropriately housed by the prison service, although this will require that he or she first have committed an offence which will bring him or her within the purview of the criminal courts. The psychopath who has not committed an offence, or who has committed an offence but given a hospital disposal, poses a unique challenge for the mental health services. If the condition is considered as not being amenable to treatment it may be difficult to detain the person under mental health legislation, if such legislation, as is the case in Britain, makes reference to a treatability criterion for detention in hospital. It will only be if 'treatment' is interpreted sufficiently widely as to include nursing care or the provision of a structured, hospital environment that the person suffering from psychopathic personality disorder may be contained in a secure psychiatric setting. The response of the English courts to this issue is discussed by Baker and Crichton.(16)
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