Citation

McRae L. Med. Law Rev. 2015; 23(3): 321-347.

Affiliation

Birmingham Law School, University of Birmingham, Edgbaston, Birmingham B15 2TT, UK l.mcrae@bham.ac.uk.

Copyright

(Copyright © 2015, Centre of Medical Law and Ethics, King's College London, Publisher Oxford University Press)

DOI

10.1093/medlaw/fwv021

PMID

26037377

Abstract

Following over a decade of treatment refusal by 'risky' offenders preventively detained in Dangerous and Severe Personality Disorder hospital and prison units, the coalition government now aims to improve treatment engagement in high secure prisons by clarifying pathways out of detention. This article asks whether the reconfiguration will end reliance upon preventive detention for public protection. Drawing on original empirical data collected by the author, it is argued that the government is unaware that offenders with 'severe personality disorder' appear to engage with treatment only if it increases their chances of achieving expedited parole. Hitherto, this incentive was provided by the Indeterminate Sentence for Public Protection; its replacement with determinate sentences under the Legal Aid, Sentencing and Punishment of Offenders Act 2012 will worsen treatment engagement, because they provide offenders with a prison release date. The troubling result may be increased reliance by the Secretary of State for Justice on his inherent jurisdiction under the Mental Health Act 1983 to transfer offenders due for prison release to secure psychiatric hospitals. To counter this limitation of risk-focused decision-making, it is proposed that judges be able to impose a new hybrid order combining a custodial term with a subsequent community mental health treatment requirement.

Language: en