There is an irony to writing a chapter on the English law relating to psychopathy at the current moment, for that term has recently disappeared from the English legal lexicon. Since the introduction of the Mental Health Act 2007, psychopathy, like all other personality disorders, will be considered as a mental illness, subject to no more specific legislative provisions. Advocacy for the removal of the term dates back at least a quarter of a century, although there has been less commonality of view as to how personality disorders, and in particular serious personality disorders giving rise to...
There is an irony to writing a chapter on the English law relating to psychopathy at the current moment, for that term has recently disappeared from the English legal lexicon. Since the introduction of the Mental Health Act 2007, psychopathy, like all other personality disorders, will be considered as a mental illness, subject to no more specific legislative provisions. Advocacy for the removal of the term dates back at least a quarter of a century, although there has been less commonality of view as to how personality disorders, and in particular serious personality disorders giving rise to perceived dangerousness, should be approached by law.
As the term no longer exists in law, what is this chapter about? Reflecting recent legal and policy discussions, as well as the focus of this volume, there is a temptation to focus on personality disorders perceived to give rise to dangerousness, or the pathological lying, callousness, and manipulativeness of the sort envisaged by Hare's psychopathy checklist. Antisocial personality disorder manifesting itself in serious violence, perhaps resulting in homicide or serious sexual assaults, serves as an obvious example.
Such a focus is already a politically charged choice. Although such potentially threatening personality disorders have monopolized recent political debate, they represent a minuscule proportion of the prevalence of personality disorders in society. It would seem that roughly 10% of adults have a personality disorder (Department of Health (DOH), 2003, 11); obviously, the vast bulk are not of the dangerous type described above. Staggering amounts of money have, however, been spent in the last 10 years constructing and staffing the four units for persons diagnosed with ‘dangerous and severe personality disorder’ (DSPD). As is always the case with major resource allocations, it is fair to ask what was not funded so that these facilities could be built. To keep the discussion within the realm of personality disorder, it is fair to ask what the effects would have been if these funds had been spread equally on services for people with all forms of personality disorder, rather than focused on those of particular political visibility.
The question arises in a slightly different form for the purposes of this book. As is usual in an edited collection, I have not at the time of writing this seen the other submissions, but it is likely that they will expressly or implicitly adopt this definitional focus on the more frightening types of personality disorder. Certainly, such a characterization raises questions of responsibility, the focus of this volume, but so do other issues relating to less dramatic forms of personality disorder. It is fair to ask whether the arguments regarding a person with severe antisocial personality disorder engaging in severe sexual violence will be the same as those that would be made for a kleptomaniac engaged in petty theft from a discount supermarket. Distinctions between these offenders may perhaps be made based on public protection, but these are not arguments about the moral responsibility of those individuals. It is less obvious that distinctions about moral responsibility can be made, once it is accepted that the offending behaviour in both cases flows from the personality disorder. Viewed in this light, the focus of this volume on ‘psychopathy’ to the implied exclusion of other personality disorders and related diagnoses appears problematic.
The policy promoting the move away from the term ‘psychopathy’ within the Mental Health Act 1983 has been based on two arguments. The first is that the term is no longer clinically prevalent or helpful. No doubt, other authors in this volume may wish to engage with this point; it is perhaps wise for a lawyer not to express a view. The second is that the term is unduly stigmatizing, in the context of legislation that is meant to be about promotion of mental health, rather than criminal law (see, e.g. Home Office and DHSS 1975, para 5.23, DOH 1999, para 6.4.7–8). In practice, it is difficult to see that either of these factors were particularly influential in the eventual removal of the term; that flowed from political expedience. Further, it remains to be seen whether the removal will have the desirable effect of reducing stigma. Will people previously considered to be ‘psychopaths’ grow to be treated with respect, or will ‘personality disorder’, a phrase admittedly not expressly used in the legislation but which would appear to be intended as the appropriate descriptor in policy documents, become the new term of abuse, tarring even people with relatively minimal personality disorders with the stigma previously restricted to ‘psychopaths’?
This chapter will attempt to steer a middle ground through the definitional quagmire. It will be guided by the agendas of existing legal frameworks and policy discussions, agendas where the more violent forms of personality disorder are foregrounded. Nonetheless, it will also attempt to ask what effect such a focus has on those with less dramatic forms of personality disorder.
Chapter. 7021 words.
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