Finance: Sorting mad from bad

In America they call it "junk justice" - when dangerous psychopathic prisoners are released from jail despite fears that they will reoffend, and the law is powerless to prevent it. The problem was highlighted here last month when a judge was forced to jail a dangerous stalker for the maximum five years for assault occasioning actual bodily harm, rather than send him to a secure mental hospital without limit of time, because of a dispute over his mental state.

Judge Gerald Butler, sitting at Southwark Crown Court, said he feared for the consequences, because Clarence Morris, described by doctors as a psychopath with violent tendencies towards women, would have to be released on licence after just two years, given the year he had spent on remand.

Morris has a string of previous convictions of sex attacks, violence and dishonesty. He was convicted last year of an eight-month campaign of harassment against Perry Southall, a dental nurse he called "Pam" because of her resemblance to Baywatch actress Pamela Anderson.

The judge said there was a conflict of opinion between two psychiatrists who said he should be sent to a secure hospital for treatment, and a third who said that, despite his dangerous attitude towards women, aggravated by drug-taking, he was not mentally ill. Since the latter diagnosis meant that Rampton secure hospital would not take him, and Morris was too dangerous to go to a medium-secure unit, the judge said the only realistic course was to jail him.

At the time, courts could choose only between punishment or treatment.

According to the Home Office, this had led to offenders given a hospital order being discharged as soon as treatment was complete, regardless of the severity of the offence. On the other hand, those jailed had no guarantee of treatment and had to be released at the end of their sentence, regardless of their mental state, except when prisoners were serving life.

So it included a new hospital direction in the Crime (Sentences) Act, squeezed on to the statute book last week in a deal with Labour. This enables a court to pass a prison sentence and order the offender's immediate admission to hospital. Initially, the power is there to deal with those suffering from a psychopathic disorder - defined by severe personality disorder and abnormal social behaviour - but the intention is to extend it to cover other mentally disordered offenders.

Under the direction, the offender will stay in hospital for the duration of the sentence if treatment is a long-term process. At the end of that period, a doctor can detain the person under civil powers and discharge him or her only when the treatment is complete. However, if the offender recovers during treatment, he or she can be sent to prison to serve the balance of the sentence, rather than being discharged early.

At the centre of the problem is the 1983 Mental Health Act which sets out four categories of mental disorder. If someone is suffering from severe mental impairment or mental illness, the law accepts that hospital is the most appropriate place for them. But if they are suffering from less severe mental impairment or a psychopathic disorder, then a secure hospital has to take them only if they are considered treatable - hence the potential for conflict over diagnoses.

Kath Harrison, head of MIND's legal unit, said they wanted all those suffering from mental disorders to receive treatment, without it hinging on a psychiatric diagnosis.

She argued that the new hospital direction was merely "playing to the gallery" because the Government was frightened the public saw the previous hospital orders as a soft option. But the Morris case clearly showed this was not so, since that patient could have been sent to a secure hospital without limit of time and instead would be free in about two years.

"Clarence Morris raises questions about whether judges should be able to force a hospital to take someone.

"But it also raises questions about the assumptions behind the punishment and treatment of mentally disordered offenders. Should you lock people up simply because they are a risk? Generally speaking, in our society, we lock people up for what they have done, not for what they may do. The exception is when someone is suffering from a mental disorder and is treatable."

A senior QC experienced in cases of mentally disordered defendants said that the new provision added a "useful measure of flexibility. "But I do not believe that it addresses the real problem that the Morris case threw up, because it is still going to be a requirement that the offender is treatable and there is disagreement over what that means.

"It is unfortunate that people who appear to the public to be plainly severely mentally disordered, and whom judges want to send to a secure hospital, sometimes do not got there. It is a conflict that is not easy to resolve."

It also poses problems for the Prison Service, concerned at the number of mentally disordered prisoners among the rapidly rising inmate population. Last year, 800 prisoners were sectioned and sent to psychiatric hospital, compared with 337 in 1990.

The number of severely personality-disordered prisoners who are violent and dangerous and in prison because they are considered incurable is relatively small. However, given the problems of control involved, the prison service is setting up three new close supervision units at Durham, Hull and Woodhill prisons, with 60 places between them.

Tony Black, the retired chief psychologist at Broadmoor Hospital, spent four years on the Mental Health Act Commission. He said that the provisions in the Mental Health Act to cover people needing treatment for psychopathic disorder included treatment to prevent their condition deteriorating.

"But psychiatrists are reluctant to use that particular interpretation of the Act," he says.

"Psychopathic disorder is unlikely to be treatable by medical, drug-based methods. It requires a more psychological approach with an intensive retraining of life strategies similar to the approach used for compulsive gambling, alcohol, drug or sexual abuse.

"The law at present is unsatisfactory if you are trying to guarantee public safety. It is no good just banging someone up as punishment unless you are going to try to ensure that at the end of the sentence you are not releasing a potential danger.

"The public likes to think the solution is to give all such offenders a life sentence - but that escalates prison numbers and costs and is not an efficient use of either.

"What would be far more effective would be to look at the best ways of enabling someone to change their behaviour. The public is protected if this process is undergone in a secure setting and the subsequent discharge is intensively monitored and supported through more rigorous use of the current Mental Health Act's mandatory aftercare procedures."

However, he added: "Under our present Home Secretary, the emphasis is on making the whole system more harshly punitive than constructively remedial. "But leaving people untreated is irresponsible and dangerous. For the present, I am resigned to the fact that a large chunk of my life's work is shelved until the pendulum swings back to a less vindictive society, prepared to take a more constructive view of how it deals with its violent offenders".