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The Political Diagnosis: Psychiatry in the Service of the Law:

The Political Diagnosis: Psychiatry in the Service of the Law

By James L. Knoll IV, MD | 13 May 2010

Dr Knoll is director of forensic psychiatry, associate professor of psychiatry, SUNY Upstate Medical University, Syracuse, and director of the Forensic Fellowship Program, Central New York Psychiatric Center, Marcy. Dr Knoll reports that he has no conflicts of interest in the subject matter of this article.

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Perhaps one of the positive things to come out of the Kansas v Hendricks wave of sexually violent predator (SVP) commitment laws during the past decade is that our knowledge base on sex offenders has grown tremendously. Much of the research of value in this area has focused on better delineating characteristics of this heterogeneous group of offenders.¹ Our experience with sex offender treatment has also gained ground.^2,3

I begin this article with a silver lining, and bypass the dark cumulus clouds that have been gathering since the US Supreme Court issued the Hendricks ruling in 1997. Presently, there are significant limitations in the field, and the ones causing most of my apprehension lie in the area of sex offender risk assessment and SVP commitment hearings. But the most troubling matter of all has been how these laws have intermingled psychiatric science with public policy.

Sex, violence, and politics

The cause of my apprehension is what the late Michael Crichton referred to as bad science “tricked out” for public policy ends.⁴ To date, there are no rigorous scientifically established means of detecting high-risk sexual re-offending, or of determining whether an individual is a “sexually violent predator.”⁵ Although a variety of instruments have been developed (psychopathy checklist–revised [PCL-R], Static-99, phallometry, Minnesota Sex Offender Screening Tool, and so on), these tests are often challenged in court as not meeting admissibility standards (ie, Frye or Daubert legal standards for admitting expert evidence and testimony). So while the research database has grown, the question remains: is it reliable enough to be proffered as expert testimony? Approximately 10 years ago, a nationally recognized expert in the area did not think so.6 Experts in the field continue to have serious reservations and express caution about the (mis)use of these actuarial instruments for expert testimony.^7-9

Sex Offender Management and Treatment Act

In March 2007, the state of New York enacted the Sex Offender Management and Treatment Act.¹⁰ The new act, Mental Hygiene Law Article 10, is patterned after the sex offender commitment act in Kansas.¹¹ In New York, the jury must find by a unanimous verdict that the sex offender has the now infamous nonpsychiatric diagnosis of “mental abnormality.”¹² What exactly is a mental abnormality? The New York definition states that it is “a condition or disease that makes an individual behave in a way that causes the individual to commit a sex offense and causes that person to have serious difficulty in controlling that behavior.” Thus, embedded in its very definition is that mental abnormality “causes” the proscribed behavior.

So we see that mental abnormality is actually a somewhat tautologically defined legal term. But because forensic mental health professionals are the ones who are tasked with SVP evaluations, they have attempted to give this term meaning within their science. Have these attempts reached a consensus? It would appear that they have not. There continues to be substantial disagreement, for example, about whether antisocial personality disorder alone is a qualifying disorder for commitment under SVP laws.^13,14 In current SVP evaluations, qualifying disorders frequently end up being personality disorder or paraphilia disorders “not otherwise specified,” diagnoses that may be associated with questionable validity and reliability.^15,16 At the very least, this seems to raise concern about civil commitment based on some of the weaker links in psychiatric diagnosis. Furthermore, let us acknowledge the reality that SVP commitment is no ordinary civil commitment. The quid pro quo of liberty in exchange for treatment has been transmuted into indefinite confinement in exchange for treatment efforts.

Since Kansas v Hendricks, many individuals have been committed under SVP laws by the courts, yet the error rate for commitments is unknown.¹⁷ In the business of sex offender risk assessment, false-negative and false-positive errors carry serious consequences, such as miscarriage of justice, violation of individual liberty, stigmatization with the label “sexually violent predator,” or possibly endangering the public. Although the following is only 1 example, it illustrates the tragic circumstances of the very first offender to test New York’s new SVP law.

Junco and junk science

The first individual to test New York’s SVP law was a Mr Douglas P. Junco.¹⁸ Mr Junco had just finished a 15-year sentence for attempted first-degree rape and second-degree assault. For unknown reasons, Mr Junco chose to have a jury trial at his sex offender commitment hearing. Some have noted that juries in SVP commitment proceedings “typically vote to civilly commit, whereas judges tend to form opinions based on the merits of each individual case.”¹⁹ (For a different view on judicial deliberations, see “Blinking on the bench: how judges decide cases.”²⁰)

Despite his unpolished courtroom demeanor (he snickered and yawned throughout the victim impact statements), a 12-person jury found that he did not have a mental abnormality.²¹ Of interest was the observation that “conflicting testimony from mental health experts played a big part in the decision.”²² Jurors, perhaps concerned about the decision they had made, asked the judge to deliver Mr Junco a special admonition: “They wanted me to tell him not to throw away the opportunity they had given him.”²³ Soon after Mr Junco’s release, he traveled to Savannah, Ga, where he was required to register as a sex offender. Other than that, he had no other requirements or necessary supervision. Six months later, in February 2008, Mr Junco found himself facing new charges and a possible life sentence. He was charged with rape, kidnapping, and incest, which allegedly involved an unidentified female in the Savannah area. At the time of this writing, Mr Junco was awaiting trial on the new sex offense charges.

This case seems to be a prime example of when “science and policy have become inextricably mixed to the point where it will be difficult, if not impossible, to separate them out.”⁴ Who can blame jurors for being confused when experts in the field have yet to clarify a legal construct that was “designed to satisfy legislation without any concern for diagnostic criteria that are currently acceptable within the confines of mental health practice”?²⁴ Science must stand on its own to remain meaningful. When science is mixed with public policy agendas, policy invariably dissolves science. The resulting cloudy solution obscures what can be discerned with certainty.

Policy versus psychiatry

When psychiatry—the medical specialty concerned with the diagnosis and treatment of mental illness²⁵—becomes co-opted by a political agenda, it creates an unhealthy alliance. For science-based fields, it is science that will always be the host organism to be taken over by political viruses. In the case of SVP laws, once psychiatry has been taken over by “public policy DNA,” the autonomous functioning, and thus the reliability, of the science is in jeopardy. Furthermore, psychiatry may come to resemble a new organism entirely—one that serves the ends of the criminal justice system.

As technology advances, there is the potential for a neoplastic growth of “risk assessment industries” that will cling to, and feed off, such political trends like scavenger fish on a great white shark. This will lead to more collected data, resulting in greater concern, which then justifies more risk assessment and commitment. Indeed, forensic mental health professionals now have a vested interest in this public policy agenda. It was reported that in California, forensic evaluators “billed the state for millions of dollars” in sex offender commitment evaluations, “with one psychologist bringing home $1.5 million. State officials defend the expense as necessary to defend public safety in the face of inadequate staffing.”²⁶ Note how the public policy emphasis has excluded any arguments about the scientific reliability of the methods, rendering them irrelevant. One trusts (and hopes) that in the United States, sex offenders will be the line at which public policy ceases to shape science. Yet this is not the first time psychiatric science has been drafted in such a manner, nor is the US alone in this tradition.

Dangerous and severe personality disorder

A recent article in Current Opinion in Psychiatry, “Assessment and Management of Dangerous and Severe Personality Disorders,” gave me a chance to further reflect on the phenomenon of political diagnoses.²⁷ Just as in Kansas v Hendricks, high-profile cases led the British government to adopt the term “dangerous and severe personality disorder” (DSPD) to protect the public from individuals who had committed serious crimes but in whom only a personality disorder could be diagnosed. Australia followed suit in the 1990s, after an episode of extreme violence was committed by Garry David. Preventive detention laws were directed, it could be said, at specific-named individuals to protect the public.²⁸

Unless you are already familiar with DSPD, you may be saying to yourself (preferably in a civilized British accent): “Right! What’s all this then about a dangerous, severe personality?” Well, the UK Ministry of Justice and the Department of Health have given us the proper definition. The diagnosis of DSPD can be made if “(1)(a) the patient is more likely than not to commit an offense that might be expected to lead to serious physical or psychological harm; (b) the patient has a severe disorder of personality; (c) there is a link between the disorder and the risk of offending; (2) severity of the disorder is defined as having (a) a PCL-R score of more than 30; (b) a PCL-R score of 25 to 29 with at least 1 DSM-IV personality diagnosis other than antisocial personality disorder; or (c) 2 or more DSM-IV personality disorder diagnoses.”

As you might guess, “there is no agreement in the scientific literature on how to identify those with severe personality disorders.”²⁷ Equally predictable is the conclusion that “evidence for the effectiveness of any intervention for dangerous and severe personality disorders is limited.”²⁷ Of course, despite this limitation, individuals who have been adjudicated as having DSPD can be detained for potentially indefinite periods of time for “treatment” in a secure forensic hospital. If you are developing a strong feeling of déjà vu at this point, do not be alarmed. The similarities between the DSPD commitment programs of the United Kingdom and the SVP commitment laws of the United States are striking and are listed in Table 1.

Taking these relatively recent “political diagnosis” commitment acts into consideration, it is not difficult to delineate the historical trend in the criminal justice system during the past 50 or so years. That trend can be summarized as: rehabilitation gave way to retribution, which is now giving way to preventive detention—albeit after full retribution has been achieved. In our current preventive detention stage, one may be inclined to wonder about the reliability of the evaluative instruments and/or tools we currently use to justify such commitments. Given the seriousness of the consequences—indefinite detention—this curiosity does not seem misplaced. The PCL-R, the purported gold standard of tools being used in court hearings, is the subject of debate, revision, and controversy.^29-32

Experts in the field have noted the ease with which PCL-R scores may be “presented in court” in a manner “biased toward the side that called the examiner to testify.”^33(p178) While the PCL-R has found support for its ability to assist in assessing risk of violence and/or criminal behavior in the community, it is also used in ways that are not scientifically supported. Myths and scientifically unsupport-ed uses of the PCL-R are listed in Table 2.³

To be clear, the PCL-R is a well-researched tool, which has spawned innumerable scholarly articles. It is certainly a well-respected instrument and, if used correctly in an objective manner, may be helpful in a forensic and correctional treatment setting. But this is quite different from using it to proffer expert witness opinions in court, where methods must be reliable and data run the risk of being biased.

Conclusions: science and social control

Given the distinct similarities between the SVP laws of the United States and the DSPD laws of the United Kingdom, is it too outrageous to speculate that a psychopathy, or DSPD-equivalent, commitment law might be on the distant horizon in the United States? While this is too hard to predict, it is not at all inconceivable. Remember, the driving force behind such initiatives is usually only 1 highly publicized, egregious offense away. The question will then be, Can American psychiatry embrace yet another political diagnosis at the behest of the criminal justice system? We have the technology. We have the “tricked out” science. We most certainly have the greed. Once bending psychiatric science into a shape that fits public policy becomes acceptable, one more twist or bend in the name of “social control of perceived dangerousness” becomes effortless, and even commendable.

CAFCASS: The Law About Children - CARE

Care: The Starting Point

When a local authority makes an application for an order to safeguard the welfare of a child the cases are usually referred to as public law cases. There are a number of different orders that a local authority can apply for but the most common are care orders, supervision orders, emergency protection orders and secure accommodation orders.

In these proceedings, the child is automatically a party and is represented by a Children's Guardian appointed by Cafcass. The Children's Guardian is an independent person who is there to promote the child's welfare and ensure that the arrangements made for the child are in his or her best interests. The guardian appoints a solicitor to act for the child. Occasionally the child and guardian will not agree on what is in the child's interests and if the solicitor decides that the child is of sufficient age and understanding they will be able to instruct the solicitor.

Public funding (legal aid) is usually available for the parents to be represented in these proceedings.

The Welfare Checklist - section 1 Children Act 1989

When a court is considering making any of these orders it must have regard in particular to:

a) The ascertainable wishes and feelings of the child concerned (considered in light of his age and understanding);
b) His physical, emotional and / or educational needs;
c) The likely effect on him of any change in his circumstances;
d) His age, sex, background and any characteristics of his, which the court considers relevant;
e) Any harm which he has suffered or is at risk of suffering;
f) How capable each of his parents and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs;
g) The range of powers available to the court under the Children Act 1989 in the proceedings in question.

For all proceedings under the Children Act 1989 when the court considers a question of the child's upbringing the child's welfare is the court's paramount consideration.

Emergency Protection Orders (EPO) - Section 44 Children Act 1989

These orders are obtained from the court to ensure the short term safety of a child. Any person can make an application including a local authority or other authorised body. The court will only make the order if they are satisfied that there is reasonable cause to believe that the child is likely to suffer significant harm if:

1) he is not removed to accommodation provided by the local authority or
2) he does not remain in the place where he is currently being accommodated e.g. in hospital.

A local authority has to show that their enquiries under section 47 of the Children Act 1989 are being frustrated and access to the child is required urgently. An authorised person, which includes an officer of the NSPCC, will have to show the same urgency in a situation where their enquiries are being frustrated.

In exceptional circumstances a local authority can apply for an EPO without notice to the parents.

In circumstances where the applicant believes that the child will be safe in the interim period, an application for an EPO will be made on notice to the parents. This gives them an opportunity to come to the court and advise the court of their views and plans to safeguard the child. When the court makes an EPO, the court can also make an exclusion requirement under s44 A where:

a) there is reasonable cause to believe that if a person is excluded from the home, the child will cease to suffer or cease to be likely to suffer significant harm and
b) another person living in the home is able and willing to give the child the care which it would be reasonable to expect a parent to give him and consents to the exclusion.

The exclusion order may require a person to leave the home where he is living with the child, prevent him from entering the home or exclude him from a defined area. A power of arrest may be added to the order.

An emergency protection order is only a short order granted for up to a maximum of 8 days but can be extended for a further seven days. The order grants the applicant parental responsibility but only permits him to take such action as is reasonably required to safeguard the welfare of the child.

The court can give directions it considers appropriate with respect to the contact the child is to have with any named person or any medical or psychiatric examination or assessment of the child under S44 (6). If the child is of sufficient understanding to make an informed decision he may refuse to submit to the examination or other assessments.

Care Orders - section 31 Children Act 1989

These orders are usually sought by a local authority (although the NSPCC can bring proceedings it is extremely rare for them to do so) in respect of children who they believe are suffering or are likely to suffer significant harm and:

a) the harm is attributable to the care being given to the child not being what it would be reasonable to expect a parent to give him or
b) that the child is beyond parental control.

No care or supervision order may be made with respect to a child who has reached the age of 17 (or 16 if the child is married).

Care orders continue until the child is 18 years, unless discharged earlier. Once a local authority has made an application for a care order the court can make a series of interim orders under s38 which gives the local authority parental responsibility and the power to remove the child from home. Further investigations and assessments are carried out before any final orders are made by the court.

While a care order is in force with respect to a child, the local authority designated by the order shall:

a) have parental responsibility for the child;
b) have the power to determine the extent to which a parent or guardian of the child may meet his parental responsibility for him.

The local authority can make decisions as to where the child will live and with whom, and how the child will have contact with named people.

There is a positive duty on the local authority to allow reasonable contact between a child in care and their parents. What is reasonable is sometimes in dispute and in those circumstances, the court can be asked to make specific directions about how and when contact should occur.

If the local authority want to suspend or stop contact for a period longer than seven days they need to obtain a court order to do so. If there is a dispute between the local authority and parents about contact, either party can seek a court order to define contact. If the local authority believe that there should be no contact between the child and his parent / guardian the court can make an order authorising the local authority to refuse to allow any contact.

Sometimes children who are the subject of care orders will remain at home being cared for by their parents, however it is more usual for children who are the subject of care orders to live with foster carers or in residential establishments.

Although the local authority has parental responsibility there are some decisions which require everyone with parental responsibility to agree including:

1) agreeing for the child to be adopted;
2) causing the child to be brought up in any religious persuasion other than that which they would have been brought up if the care order had not been made;
3) allowing the child to live outside the UK for more than 28 days

If agreement cannot be reached then the court can make an order.

Where the plans for the child are for adoption or to live outside England or Wales, further court orders specifically permitting this are required. The Adoption and Children Act 2002 and supporting regulations require local authorities to give early consideration to applying for a placement order or obtaining the consent of birth parents to placement.

Children who are the subject of care orders are the subject of regular reviews by the local authority. Each child will have an individual care plan that sets out how all their needs will be met. These reviews will consider amongst other things the arrangements for contact with the family and others, as well as the child's health and educational needs. All local authorities must appoint Independent Reviewing Officers who must work to ensure compliance with care plans. The local authority has responsibilities to ensure that plans are made and preparations in place before the child is 18, to enable the child to make the transition to independence, and the local authority continues to have duties towards the child until they are 23 years old.

Supervision Orders - section 31 Children Act 1989

These orders are made on the same basis as care orders i.e. that the child is suffering or is likely to suffer significant harm.

These orders do not confer parental responsibility on the local authority, but when there is a supervision order in force it is the duty of the supervisor to:

1) advise, assist and befriend the supervised child
2) take steps that are reasonably necessary to give effect to the order and
3) where the order is not wholly complied with or the supervisor considers that the order is no longer necessary, to consider whether or not to apply to the court to vary or discharge the order.

A supervision order may require the supervised child to comply with directions given by the supervisor to do things such as:

1) live at a place specified by the supervisor;
2) present themselves to specific people at specific places or times e.g. to meet with the social worker;
3) to participate in activities specified on certain days.

A supervision order can also require the child to submit to medical or psychiatric examination as directed by the supervisor. This requirement will only be included where the court has been satisfied on evidence as to its need.

Initially a supervision order lasts for one year. The supervisor can apply to the court to extend supervision order, but the supervision order can only be in place for a maximum of three years.

Secure Accommodation Orders - section 25 Children Act 1989

These orders permit a local authority to place a child in secure accommodation.

The court can make a secure accommodation order where:

a) A young person has a history of running away, is likely to run away from any other kind of accommodation and if he runs away is likely to suffer significant harm; or
b) If the young person is not kept in secure accommodation he is likely to injure himself or other people.

A secure accommodation order can only be made with respect to a looked after child: if they are not subject to a care order an order can only be made for a child who is under 16 years, if the child is subject to a care order they can be placed in secure accommodation until the age of 18 years. Children under 13 can only be kept in secure accommodation with the consent of the Secretary of State.

The court's authority is not required for the first 72 hours that a child is placed in secure accommodation. However if the local authority believes that the child needs to be in secure accommodation for longer, an application must be made to the court. The court cannot make the order unless the child is legally represented in court.

The court can make a secure accommodation order for up to three months on the first application, and then for periods of up to six months on subsequent application. However, where the child is on remand to the local authority from a criminal court having been charged with a criminal offence, different rules apply.

Regardless of the length of the court order, if during the course of the order the child no longer meets the criteria for an order, the local authority must remove the child from secure accommodation.

The local authority must make arrangements for contact between the child and their parents, or seek a court order to suspend or stop contact if they believe that it is not in the child's interest for contact to take place.

There will be regular reviews of the care plan for the child and to monitor the child's progress whilst in the secure setting. These reviews should also consider the future plans for the child, once they have left the secure setting. Whilst in the accommodation the child must receive education.

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Memory and thought, How you baby thinks and remembers - toddler/1-year-old | Bounty

Memory and thought, How you baby thinks and remembers - toddler/1-year-old | Bounty

Memory and thought

Your toddler is remembering more and figuring out how things work.

At around a year, most toddlers:

• Are able to wave bye-bye.
• Search for a lost toy because they can remember it.

Find out more about your toddler at 1

Around 18 months, most toddlers:

• Are able to point to their eyes, mouth and nose as you name them.
• Go back to a game if interrupted.

Find out more about your toddler at 18 months

At around two, most toddlers:

• Are able to ‘post’ simple shapes through holes.
• Remember daily routines; sit on the bottom step when it’s time to put shoes on, fetch a book for story time.

Find out more about your toddler at 2

By three, most toddlers:

• Are able to do large-piece jigsaw puzzles.
• Act out versions of the real world; pour a cup of pretend ‘tea,’ take toys for a ride.

Find out more about you child at 3

Pro-riot care worker suspended after Facebook comment - 8/12/2011 - Community Care

Pro-riot care worker suspended after Facebook comment - 8/12/2011 - Community Care

Pro-riot care worker suspended after Facebook comment

Kirsty McGregor

Friday 12 August 2011 12:36

A care worker has been suspended after posting pro-rioting messages on Facebook.

John Hannan, a former support worker from Merseyside, left comments on the social networking site's 'Lets Get The Riots To Liverpool' page, inciting people to join in with the violence and looting.

His comments were brought to the attention of his employer, Sanderling House, a Liverpool-based care home for people with acquired brain injuries, on 9 August.

The home suspended Hannan and asked Facebook to take the comments down. The page has now been taken off the website.

A spokesperson for Voyage, which runs Sanderling House, said: "Although the material did not refer to Voyage, its staff or service users, we were extremely concerned about the nature of the comments.

"We have a clear policy on the use of social media and all staff members are briefed about this.

"We will not tolerate what we perceive to be unacceptable behaviour and that's why we took swift and immediate action once this matter was brought to our attention."

Hannan told local newspaper The Liverpool Echo: "I never meant to incite hate or for people to burn down houses. I was saying about the way police treat us, like what happened to Mark Duggan [the man shot by police in Tottenham, whose death sparked the London riots]."

He added: "What I was trying to say was if you riot you should riot against the police and not anyone else. What is the point of burning cars and houses?"

What do you think? Join the debate on CareSpace