Recent Penal Legislation in Relation to
MENTAL WELFARE 39
- Author:
Snell, M.D.
Medical Officer, H.M. Prison, Liverpool The new scientific approach to the problem of the criminal may perhaps be said to date from the war period, but one of the most important measures foretelling the change in opinion which was to follow later, was the Mental Deficiency Act of 1913. This (in Sections 8 and 9) involved the recognition of a partial lack of responsibility in the mentally defective individual who committed a crime.
By the passing of this Act, means were afforded whereby our prisons were freed from the care of the mental defective who manifestly should not be committed to prison. In passing, we might note that the incidence of crime among mental defectives is not as high as is sometimes suggested. In 1935 there were 401 persons found guilty of criminal offences who were dealt with as mental defectives. This represents only 1 in 290 of the total number of defectives reported. At Liverpool last year, out of a total of 3,591 receptions, 20 remand prisoners were reported to the Courts as mental defectives and it was necessary to deal with only three cases under Section 9.
The borderline case, that falling between normality and certifiable mental defect, presents a greater problem. In Law they are not excused responsibility for their crimes and they constitute a not inconsiderable number of prison population, as they do that of the general populace. It is no easy task to advise as to their treatment and disposal. Evidence that a delinquent is of subnormal mentality, but not certifiable as a defective, does not, in practice, greatly assist an adjudicator although it may give him a better understanding of the individual before him. I have been asked, when giving such evidence, ” But are there not thousands of such cases? ” These patients need guidance and training. During childhood this is provided to a great extent in special schools and the training centres of the Mental Welfare Associations help to carry it on into adolescence. When they reach prison it has been always a controversial point as to whether they should be segregated or seeded out among the general prison population. If segregated some measure of special treatment may be afforded them, but the way is then opened and underlined for them to regard themselves as mental cases and different from their fellows. This is to be avoided, especially in prison practice. In placing them among normal prisoners they are at a disadvantage and also constitute a drag on their fellows and in some cases may become a * Address (abridged) given at Conference of Association of Mental Health Workers, Chester. February, 1939.
Published with the permission of H. M. Prison Commissioners though it does not necessarily represent their viezvs. subject of ridicule. The nearer a case is to normal the better will he react to prison routine and the wiser and usual method is to place such patients in the ordinary prison, where a watchful but unobtrusive eye can be kept on their conduct and progress; but the lower grades are best dealt with under special conditions where they do not have to compete on equal terms with their fellow prisoners. (In this respect temperamental abnormalities are of more importance than intelligential defects.)
The subnormal offender should, if possible, be dealt with by probation?supervision and guidance being the immediate need?and co-operation between probation officers and mental welfare workers would seem to offer the most hopeful opportunity of achieving this end. As with his normal brother so with the subnormal delinquent, when he does not respond to probation, Borstal treatment is usually resorted to and special facilities obtain for dealing with these cases. The trend of legislation is to avoid imprisonment for all young persons and a growing tendency to send more subnormals to Borstal is being manifested because of the difficulty of dealing with them by other methods when they have failed to respond to probation.
The compulsory centres, proposed by the Criminal Justice Bill, which a young offender would be required to attend in his leisure time, e.g., half-holidays and evenings, may prove a successful alternative to short terms of imprisonment, as may the residential institutions, which are to be called Howard Houses.
May I remind you that before a lad is sent to Borstal he is medically examined as to his fitness to undergo and profit from the training, and reports are obtained from his parents, his school, employers, and the Police; these are carefully considered together with a home report, if available, prior to any recommendation being made to the Court. The number of Borstal Institutions is growing with some rapidity and before a youth is allocated to a particular Institution he is examined psychologically and full regard paid to the circumstances of his case so that he may be sent to the Borstal best likely to suit his individual requirements. Throughout training, stress is laid on this individuality and the inmate’s particular difficulties are studied so that he may be suitably guided and advised.
This is the medical point of view, which emphasises the importance of individual treatment for the mentally ill-balanced person whether he be criminal or not, and it differs from the legal viewpoint which is concerned primarily with public protection. It is, nevertheless, correct to say that the medical outlook is influencing legislation increasingly and is altering the attitude of the Courts to offenders when they are satisfied that some form of psychological or psychiatric treatment is desirable.
In addition to cases of simple subnormal mentality a large number of adolescent delinquents exhibit emotional and temperamental abnormalities with varying degrees of mental instability. It is to be expected that a proportion of these, as they leave adolescence behind, will become stabilised and the training and the psychologically directed guidance which they receive in the institution assists to this end. Actual psychological treatment, as such, is not, however, always, nor in fact usually, a necessary adjunct to the training of the adolescent offender.
Offences due to mental defect and those which result from immaturity of character formation and irregular development of the natural instincts must, therefore, be carefully distinguished. While the Mental Deficiency Acts provide for the action to be followed in the case of the former the latter must be dealt with in a more expectant manner, and treatment should be directed towards training and instruction, with supervision. In some cases this is best undertaken under institutional conditions such as obtain at Borstal whereas in others the less rigid control of probation may suffice. Prolonged and skilled observation may be necessary to determine whether mere delayed character development, with failure in the formation of inhibitions, is the causative factor in the production of the antisocial conduct and whether the condition will prove transient, and social adaptation follow stabilisation once adolescence is safely passed. When such irregular development persists into adult life we are faced with forms of mental instability which frequently lead the individual into repeated conflicts with the law owing to his inability to maintain obedience to the social conventions. He then becomes at once the bane of the legislator and prison administrator. His abnormalities are insufficient to justify his permanent segregation and, although his intentions are often higher than his actions, he is unable to exercise the necessary self-control for long at a time. The result is that he becomes another recruit to the recidivist ranks. Exhortation and persuasion by a sympathetic observer do assist in keeping him on the rails for a while but usually fail to have a permanent effect; in a few cases, however, where there are mental conflicts and repressions, deeper psychological treatment may help to socialise this class of offender. Legislation hopes to ensure improved opportunities for the diagnosis of these conditions in offenders. Special remand homes are contemplated for the observation of problem cases under 17 years of age and arrangements are suggested for the provision of reports from skilled investigators in older cases not remanded to prison. It must, however, be emphasised that sometimes a lengthy period of observation, noting the degree of response to discipline and training, may be necessary before a real decision can be established regarding the true nature of the symptoms under discussion. An accurate picture of the home life and environmental circumstances of the patient is, of course, also a requisite for accurate diagnosis. The natural outcome of focussing attention on the treatment of offenders is an increased interest in the prevention of crime and there is reason to hope that the Child Guidance Clinics help to prevent the problem child of to-day becoming the criminal of to-morrow.
Now we come to the insane offender. I do not propose to discuss the legal definition of insanity, or the question of fitness to plead. Suffice it to say that all who have to assist in the working of these matters at least agree thai hardship to the individual does not occur in practice, and I think it is correct to add that the tendency is to apply the legal criteria of insanity less rigidly.
Close 011 three thousand men and women are remanded to prison each year for reports as to their states of mind; of these nearly 300 are found to be insane and dealt with at the Courts. At Courts of Summary Jurisdiction, where the medical view of insanity is ordinarily accepted, it is usual in cases of lesser crime, where medical evidence of unsoundness of mind has been given, for steps to be taken to ensure the detention of the accused in a mental hospital.
I*have referred to the power of the Court in the case of the certifiable mental defective, under existing law to make an order for him to be dealt with as a mental defective. If an offender is certifiable as insane, a Court of Summary Jurisdiction in England and Wales has no similar power. Clause 30 of the new Bill proposes to enable such Courts to make an order for the treatment of an offender who is certifiable as insane in the same way as they can at present make an order for the treatment of an offender who is mentally defective.
Cases of insanity among prisoners serving sentences are, of course, certified by two medical men and two magistrates and removed, by order of the Secretary of State, to a mental hospital.
As with mental deficiency, so here, the real problem arises with the borderline cases, the incipient and undeveloped psychotic. The practice of the Courts in asking for reports meets the necessity as regards those cases remanded in custody and now if the Court omits to request a report the Prison Medical Officer always makes it aware of such medical matters as he thinks should be brought to its notice.
The Bill before Parliament proposes to make some provision for Courts of Summary Jurisdiction to obtain a medical report on the mental condition of an offender who is not remanded to prison in order to assist the Court in deciding how to deal with him. Clause 38 will enable the Court to remand an offender on bail with a requirement that he submits himself to medical examination, and provides for the payment of the cost of mental examinations at approved institutions or by approved persons.
The importance of recognising such cases of non-certifiable mental abnormality and the possibility of their treatment by special methods has been appreciated by the Prison Medical Authorities and during the last four years an investigation into the psychological treatment of selected cases has been in progress at Wormwood Scrubs Prison. This was instituted in an endeavour to form a frank and unbiased valuation of such treatment. A psychotherapist was attached to the prison and possible cases for treatment have been selected from time to time by Medical Officers at various prisons and Borstal Institutions throughout the country and transferred. We are now awaiting with interest the report which is being prepared. In estimating the success or failure of such treatment a thorough after history and follow-up is indispensable. Unless this is obtained from reliable sources but little regard can be paid to apparent successes. It is fortunate that in many of the prison cases the follow-up has been carried out by the Central Association for Mental Welfare. Certain facts are already accepted? perhaps the most striking among which is that the number of cases to whom psychotherapy is applicable is relatively small.*
Apart from those considered suitable for intensive psychotherapy there exists a number of cases of minor abnormality, the temporarily mal-adjusted and the like, who benefit very appreciably from psychotherapic conversations. In prison, close attention is given to such patients with, I think, a not inconsiderable degree of success. In addition to repeated interviews with the doctors they undoubtedly derive benefit from the regular life and peaceful atmosphere of the mental observation ward. Such improvement is particularly to be seen in certain remand cases. Temporary depression due to domestic or other difficulties, and some anxiety states are among those which often show a response to these conditions. Cases of sexual offences are notoriously difficult to treat, but others, in whom the offences are associated with some sexual difficulty as a contributory or underlying cause, may be encouraged to an understanding of their condition. These patients frequently require supervision for a lengthy period of time on release. Sometimes the Court will accept suggestions in the case of remand prisoners and deal with them in such a manner that the necessary supervision is obtained. The frequent difficulty is, who is to do the supervising.
The Criminal Justice Bill recognises the existence of offenders who, though not certifiable as insane or mentally defective, are suffering from some form of mental illness or abnormality which may be susceptible to treatment. Clause 19 provides that probation orders may include a provision requiring such persons to submit themselves to mental treatment and the Bill further enables payment to be made for such treatment as part of the expenses of probation committees.
The orbit of the psychiatrist has now been extended beyond the confines of the mental hospital and I suggest that the sphere of action of the Prison Medical Officer might likewise be enlarged. It is not infrequently suggested that prison is not the proper place for psychological investigation and that the doctor, by reason of his official position, is unlikely to receive the confidence and the co-operation of the prisoner. While obviously there will be exceptions I think it can be said, without hesitation, that the Prison Medical Officer does obtain the confidence of the majority of his patients and that often the prisoner, finding in him his first opportunity of discussing his difficulties with a sympathetic and understanding listener, is ready to accept the advice and treatment offered him. There is one point the value of which, perhaps, is not fully appreciated and it is that just because the Medical Officer is an official the prisoner regards him to some extent impartially and * As the Report has now been published and is reviewed on page 55, Dr Swell’s further references to it which here followed, are omitted.?Ed. does not expect to meet him outside in the future. I am speaking here more particularly of remand cases. The patient in these circumstances may discuss matters which he might otherwise conceal and often is prepared to accept advice of a personal nature which in other circumstances it would be hard for him to do. I firmly believe that sometimes a little plain speaking and straight talking does a world of good.
A scheme in which a clinic could be run in connection with the prison and perhaps staffed by the prison Medical Officer might prove to be of benefit in dealing with some cases after they leave prison. This could be worked up to bring about an increased co-operation between the probation officer, the mental health worker and the doctor with resultant benefit to the mental health of the non-certifiable offender. It might at least save some of them from committing repeated crimes and returning regularly to prison.
Criminal conduct is not necessarily dependent on mental abnormality. A correct perspective is a first requirement in these matters; the safe-breaker who, when I was X-raying his wrist, asked me whether the X-ray apparatus would be any use for ” busting peters ” did not fall into the abnormal group. He was a physically fit man of average intelligence who deliberately chose this method of livelihood and he and his partners had a business arrangement whereby their families were cared for while they were in prison. He said he expected to serve approximately 3 years in 4, in prison and was prepared to do so.
Norwood East has stated “To ensure permanent advantage from medical methods of attack the approval of legal, medical and public opinion is necessary “, and he points to the satisfactory working of the Mental Deficiency Acts and the public support for the compulsory detention of defectives who have committed crime as being due largely to the fact that the medical principles relating to mental deficiency are held to be satisfactory. The importance of this fundamental principle must be remembered in discussing the scientific treatment of crime, and he goes on to say ” No progress can be expected in this direction unless the judicial and administrative authorities, and the public are satisfied that modern therapy can be relied upon to produce beneficial results in certain cases of crime.”
To suggest that all criminals require psychological treatment is but to undermine the cause of those who are in real need of it and likely to respond to it. Further it has been put forward by some that all offenders, including first offenders ?however trivial their offences?should be subjected to compulsory psychological investigation, the investigator having the power to detain the subject pending the investigation. This has, I think, only to be mentioned to be discarded as at once impracticable and undesirable if for no other reason than that co-operation and not compulsion is the necessary setting for all psychological investigation. In conclusion I would say that prison is a deterrent principally to those who do not need a deterrent. The majority of prisoners settle down in a more or less comfortable manner to the circumstances and routine in a comparatively short time and this in my view shows the futility of the short sentences for most cases. Something more is required; investigation and guidance?not necessarily deep psychological analysis, but something which is continued on release from prison in the form of probationary supervision,?this, of course, is !he method of the Borstal Association. There are many cases who will not return to prison ?they do not need mental investigation but often friendly talk and advice is of much assistance to them?they are those who do not normally need a deterrent but have for once made a mistake and yielded to temptation and circumstances. The adequate protection of society must take priority over the interests of the individual; our contribution to the problem as workers on the mental health side must be to forward the study of the individual delinquent and therebv be in a position to determine the best methods of dealing with him.
Immature prophecy and over zealous enthusiasm will bring into disrepute and enshroud in scepticism new departures from established practice. The careful worker, whether official or unofficial, will gradually adjust his perspective as new methods prove their worth.
I have mentioned the new Criminal Justice Bill where it touches the mental side of our problem most intimately, but obviously it would not be proper for me to comment on its more controversial aspects. I have indicated the general penal changes which have taken place in recent years and have followed the appreciation of the contribution of psychological medicine to the treatment of criminals. The bases of psychological medicine are still somewhat fluid. It has, however, helped us to a better understanding of many of our cases although further study is necessary before its final place can be satisfactorily assigned. The future prospect is one of hopeful anticipation, which, to be realised, must be based on proved and sound foundations, and these can only be established by the unhesitating and liberal co-operation of all who are engaged in the care and treatment of the abnormal delinquent.
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