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Darjee & Crichton The MacLean Committee Psychiatric Bulletin 2002), 26,6^8 RAJAN DARJEE AND JOHN H. M. CRICHTON opinion &debate The MacLean Committee: Scotland's answer to the `dangerous people with severe personality disorder' proposals? The MacLean Committee was established in 1999 by the between secure psychiatric hospitals and prisons, for Scottish Office to review and make recommendations dangerous people with severe personality disorder concerning the sentencing ofserious violent and sexual Home Office and Department of Health, 1999; Home offenders, including those with personality disorder. It Affairs Select Committee, 2000) has been criticised by provides an alternative perspective on the problem of psychiatrists Chiswick, 1999; Mullen, 1999; Gunn 2000) offenders with personality disorder to that of the Home and the Health Select Committee 2000). Office and Department of Health 1999) for England and There has sometimes been a mistaken assumption Wales. It principally recommends: that psychopathic disorder does not exist in Scottish legislation. Although the label `psychopathic disorder' a) Special sentencing - an order for lifelong restric- does not appear, the same category exists, with virtually tion - for offenders likely to pose a continuing and identical criteria to those used in England and Wales serious risk to the public. Darjee et al, 1999). The difference between Scotland and b) New mandatory procedures for the assessment of England has been in practice rather than in law: since the risk. early 1980s offenders with primary personality disorders c) Establishment ofa risk management authority. have not been recommended for psychiatric disposals in d) Special sentencing for mentally disordered offenders Scotland. Most serious violent and sexual offenders likely to pose a continuing and serious risk. receive determinate prison sentences and a small number The MacLean Committee Scottish Executive, 2000) was will receive a discretionary life sentence. The disposals established in March 1999 by the UK Government, with available for mentally disordered serious offenders in the following remit: Scotland are almost identical to those in England and To consider experience in Scotland and elsewhere and to make Wales Chiswick, 1997). Many such offenders will suffer proposals for the sentencing disposals for, and the future from personality disorder in addition to their primary management and treatment of, serious sexual and violent of- mental disorder, but primarily offenders with personality fenders who may present a continuing danger to the public, in particular: disorder do not receive hospital disposals. to consider whether the current legislative framework matches the present level ofknowledge ofthe subject, provides the courts with an appropriate range ofoptions The recommendations of the MacLean and affords the general public adequate protection from Committee these offenders . to compare practice, diagnosis and treatment with that The Committee concluded that special sentencing elsewhere, to build on current expertise and research to arrangements were necessary for high-risk offenders; inform the development of a medical protocol to respond those convicted ofserious violent or sexual offences or to the needs ofpersonality disordered offenders exceptionally less serious charges) who, because oftheir . to specify the services required by this group of offenders circumstances are likely to pose a continuing risk to the and the means ofdelivery public. To give an estimate ofthe size ofthe problem, in . to consider the question ofrelease/discharge into the community and service needs in the community for Scotland during 1998 50 people who had previously been supervising those offenders. convicted of a similar offence were imprisoned for a violent sexual offence. The Committee reported in June 2000. This paper The Committee proposed the establishment ofan describes the main proposals, discusses their implications `Order for Lifelong Restriction' OLR) for such offenders, for forensic psychiatry in Scotland and compares them which could only be imposed by a senior Scottish court with proposals for `dangerous people with severe after a period of formal risk assessment. The assessment personality disorder' in England and Wales. ofserious violent and sexual offenders set out in the MacLean Committee proposals is summarised in Fig. 1. Background After a tariff for the offence had been served, release would be dependent on the level ofcontinuing risk of In several countries there has been concern about serious recidivism. Offenders would be released on offenders who have committed serious violent or sexual licence, subject to conditions intended to reduce risk and offences where there is felt to be a continuing risk of recall to prison ifthose conditions are not met. further offending Heilbrun et al, 1999). In England and Key to the proposals is the establishment ofa Risk Wales a `third way', involving institutions half-way Management Authority RMA), who would establish and 6 Darjee & Crichton The MacLean Committee disseminate best practice information regarding risk be available in such cases unless the offender was found assessment and management; commission research; `insane'either in bar oftrial or at the time ofthe offence. accredit the centres tasked with formal risk assessments; In their terms ofreference, the Committee was opinion set training standards for those involved in assessments; required to give special consideration to offenders with &debate agree a risk management plan that must be prepared for personality disorder. They concluded that a third way each OLR; and commission appropriate risk management approach in Scotland would be neither feasible nor services. While in custody the risk management plan advantageous and that ifoffenders with personality would include security classification and therapeutic disorders are assessed as high risk they should be programme and would be reviewed regularly by the managed along the lines recommended for other high- RMA. Release from custody or recall would be the risk offenders. responsibility ofthe Parole Board, operating through the Designated Life Tribunal DLT), who would set licence conditions that would form the basis of a community risk Discussion management plan. Previous reports in this area have recommended the In the community there would be specialist services introduction ofindeterminate sentences for certain for high-risk offenders, and intensive supervision and dangerous or high-risk offenders with personality surveillance. Components ofthis might include: electronic disorders Home Office & Department of Health and monitoring, announced and unannounced visiting, alcohol Social Security, 1975; Fallon et al, 1999). The current and drug testing, strict conditions regarding place of English and Welsh proposals depend on a psychiatric residence and participation in treatment and rapid and diagnosis; preventive detention can be applied where no predictable return to conditions ofgreater security in the offence has been committed or a sentence tariff has event ofnon-compliance. been completed. By concentrating on risk posed by new The proposals also apply to mentally disordered serious offenders rather than those of a particular diag- serious offenders, who would currently be placed on nosis, the MacLean proposals avoid many ofthe ethical restricted hospital orders. High-risk offenders with concerns raised over English and Welsh proposals mental disorders who may require treatment in hospital Mullen, 1999). The House ofCommons Home Affairs would be assessed in a secure psychiatric hospital on an Select Committee 2000) was critical ofthe English interim hospital order. There would be an assessment of proposals and recommended that the Scottish approach whether the offender was high risk and/or requiring should be adopted ``to make clear that they are treatment in hospital for mental disorder. If they were concerned with offending behaviour and not with mental both, then they would receive an OLR with a hospital disorder''. direction Section 59a, Criminal Procedure Scotland) Risk assessment is central to the MacLean proposals. Act 1995); this is Scotland's `hybrid order', which The Committee favoured structured clinical assessment combines a period ofhospitalisation with a prison along the lines ofHistorical, Clinical and Risk, 20 items sentence. A hospital order with restrictions would not HCR-20) Webster et al, 1997) over an actuarial Fig.1 The assessment ofhigh-risk offenders in Scotland, proposed by the MacLean Committee Scottish Executive, 2000). IHO, interim hospital order; OLR, order for lifelong restrictions.`Mental disorder' refers to an individual suffering from mental disorder of a nature or degree that makes it appropriate for him or her to receive medical treatment in hospital Section 171)a) Mental Health Scotland) Act 1984. `Insane' refers to an individual found insane in bar of trial or acquitted of the offence on the grounds of insanity. 7 Darjee & Crichton The MacLean Committee approach e.g. the Violence Risk Appraisal Guide VRAG); offences and offenders rather than on psychopathic Quinsey et al, 1998) that was considered inflexible, unable disorder or severe personality disorder. The MacLean opinion to inform risk management and difficult to apply in court. proposals offer an alternative approach that is worth &debate It should be noted that neither the VRAG nor the HCR- considered scrutiny beyond the borders ofScotland. 20 has been validated

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