Citation

Shepherd A. Med. Sci. Law 2024; ePub(ePub): ePub.

Copyright

(Copyright © 2024, British Academy of Forensic Sciences, Publisher SAGE Publishing)

DOI

10.1177/00258024241256423

PMID

38778701

Abstract

Many legal jurisdictions offer some form of hospital diversion and disposal as an alternative to incarceration in prison for mentally disordered offenders. Such diversion is commonly understood as offering a non-punitive alternative in terms of sentencing decisions. However, complete loss of responsibility with respect to acts of violence is rare and indicative of extreme degrees of mental disorder. This raises challenges for sentencers when considering disposal options. From the perspective of the patient and healthcare providers while hospital may be framed as non-punitive, it still involves marked loss of freedom and rights. In this essay, it is argued that failure to acknowledge the punitive element, inherent in hospital detention, risks its repression, and a false dichotomy being established with prison being seen as solely punitive and hospital as solely therapeutic. It is suggested that this division is unhelpful, even potentially harmful, and that a synthesis as solution to this dialectic opposition may be generative in terms of therapeutic work in hospitals, clarification of the role of hospitals in terms of criminal justice disposal, and greater transparency in relation to multi-agency working and the social circumstances of patients detained in secure hospitals. Further work to understand this process is suggested with a particular emphasis being placed on the experience of specific groups of patients, such as women, who may find themselves in a notably precarious state within secure care.

Language: en

Keywords

Expert witness; forensic psychiatry; human rights; law; legal system