Book review: Law and Personality Disorder: Human Rights,Human Risks,and Rehabilitation

We all want to feel safe. The threat of violence, and the fear that it invokes, can have a detrimental impact on our lives. The idea that we can prevent violent crime by locking away ‘dangerous’ individuals is, therefore, understandably appealing. Yet, this is a fantasy. Preventing violence is unfortunately not that simple. Exposing this, O’Loughlin’s vital monograph examines the preventive detention of people with ‘dangerous and severe personality disorder’ (DSPD) in England and Wales. This practice, and the surrounding policy and legal framework, seeks to prevent violence by detaining ‘dangerous’ individuals within forensic hospitals and/or prisons until they are assessed as no longer posing a risk to the public. Drawing on her original empirical research, O’Loughlin reveals both the problems with this approach and why it remains popular across Europe, North America and Australasia. Crucially, she shows that preventive detention is not only an ineffective way to protect the public from violence, but is also violent in itself.

Law and Personality Disorder: Human Rights, Human Risks and Rehabilitation is therefore a fundamental read for policymakers, legislatures, practitioners, and academics who are concerned with violence prevention and the ethics of detention. Although O’Loughlin focuses on preventive detention in England and Wales, the ways in which she utilises this as a case study enables significant insights relevant for an international audience. She does this through a genealogical approach that traces the influence of key concepts over time. Specifically, she examines the ways in which culpability, responsibility, and rehabilitation have been conceptualised and interpreted within domestic courts and the European Court of Human Rights (ECtHR). This methodological approach enables O’Loughlin to locate the national policy and legal framework within its broader social, political and historical context. In doing so, she develops our understanding of why this framework is the way it is, revealing harmful socio-legal rationales that affect law, policy and practice across both health care and criminal justice systems, internationally. These rationales, she maintains, are harmful towards all those who do not align with the ideal, rational subject of the law, such as people with personality disorder. Hence, O’Loughlin’s monograph provides multiple significant insights that will have implications beyond preventive detention. As there is insufficient space to discuss all of these insights here, for the purposes of this review, I will focus on those that are most relevant for medical law and ethics.

O’Loughlin provides a comprehensive account of the origins, evolution and implementation of preventive detention initiatives aimed at people labelled with DSPD. These initiatives include the pilot DSPD Programme (established in 2000) and the offender personality disorder (OPD) Pathway, which subsequently replaced it in 2011. Dedicating a chapter to each of these initiatives, O’Loughlin reveals critical insights from her research, which involved documentary analysis and interviews with policymakers, practitioners, and independent evaluators of DSPD initiatives. Although the OPD Pathway ‘incorporates a wide range of treatment, progression, and psychologically informed case management initiatives’, ¹ O’Loughlin focuses on the Pathway within prisons and secure hospitals.

For scholars of medical law and ethics, this case study will be of particular interest as it demonstrates the complex interplay between historical societal concerns, psychiatric constructs and the law. O’Loughlin shows how concerns around the ‘dangerous’ individual led to the creation of a new category – ‘dangerous and severe personality disorder’ (DSPD). Rather than being a psychiatric diagnosis, DSPD is a term that was created by policymakers in the 1990s to describe ‘a small group of people who were presented as posing a significant risk to the public due to a serious form of personality disorder’. ² Developing our understanding of where this concern stemmed from, O’Loughlin helpfully begins by analysing the scientific, ethical and legal debates surrounding personality disorder. Through this, she exposes and disrupts the harmful ‘assumption that personality disorder and dangerousness are causally linked, and that treatment is necessary to reduce risk’. ³ This assumption, combined with the scientific uncertainty surrounding the effectiveness of this treatment, led policymakers to propose new powers of preventive detention towards the DSPD group. Controversially, these governmental proposals stated that these individuals would be detained indefinitely if treatment was deemed to be unsuccessful.

Tracing the legal and policy changes that followed, O’Loughlin reveals how policymakers navigated this controversy amid scientific uncertainty and the political pressure to respond to ‘dangerous individuals’. Crucially, she illuminates the ways in which the international framework for human rights enabled the justification of harmful coercive measures. Within this framework, and the surrounding discourses, rehabilitation is constructed ‘as something that can enhance the wellbeing of offenders, protect their right to liberty, and protect the public’. ⁴ This, she argues, allows policymakers and legislators to ‘present coercive preventive detention measures as both humane and necessary’, ⁵ despite the poor evidence base for interventions aimed at reducing serious reoffending.

O’Loughlin effectively challenges the portrayal of preventive detention initiatives as both humane and necessary. Fundamentally, she demonstrates that preventive detention initiatives are likely to result in long-term arbitrary detention, excessive punishment, and the over-inclusion of individuals who would not go on to reoffend. She shows that these risks not only stem from the lack of appropriate and effective treatments, but also from the limitations of contemporary risk assessments and practices. O’Loughlin discusses these limitations in depth, demonstrating that we are unable to ‘accurately identify which individuals in a high-risk group will go on to offend’. ⁶ This creates difficulties with both identifying individuals for preventive detention initiatives and determining when they should be released. Consequently, individuals may be kept in detention for longer than necessary, she argues.

For people labelled with a personality disorder, this risk of prolonged detention is exacerbated by the stigma attached to the psychiatric construct and the uncertainty surrounding its treatability, O’Loughlin maintains. There is an assumption that people with personality disorders ‘are both unlikely to change and likely to try to deceive others into believing they have changed’. ⁷ This, she argues, helps to produce a ‘personality disorder double bind’, which makes it ‘extremely difficult’ for these individuals to secure release from detention. ⁸ In England and Wales, this is amplified by the ways in which mental health law and criminal law intersect. This legal intersection, O’Loughlin shows, produces discriminatory, differential treatment towards individuals labelled with DSPD, allowing them to be moved from detention within prisons to detention within forensic hospitals.

Significantly, O’Loughlin highlights that the experience of being detained can be harmful irrespective of whether this occurs within a hospital or a prison. Within both, individuals experience some of the same restrictions and material deprivations, including: limited freedom of movement; loss of privacy; and isolation. As O’Loughlin suggests, this can be distressing and can exacerbate certain mental health conditions. The conditions of detention therefore undermine the potential therapeutic benefits of treatment, she argues. These potential benefits are further compromised, she maintains, by the ways in which individuals are coerced into participation. While this coercion can take various forms, O’Loughlin argues that it is always implicitly present when individuals must demonstrate progress within treatment in order to progress towards release from detention. As treatments typically ‘require active participation and motivation for change on behalf of the patient, coercive approaches are unlikely to be successful’. ⁹

In terms of human rights law, then, O’Loughlin demonstrates the ways in which preventive detention initiatives risk violating two rights protected by the European Convention on Human Rights (ECHR). Specifically, the right to liberty (protected under Article 5) and the right not to be subjected to inhuman and degrading treatment or punishment or torture (protected under Article 3). She examines the ECtHR’s case law on the ‘right to rehabilitation’, which is seen as protecting the aforementioned rights, alongside the case law on the public’s ‘right to security’. Through this, she provides original insights into the ways in which these rights are understood in relation to one another. She shows how this understanding has affected the ECtHR’s response to the risks posed by preventive detention, revealing this response to be inadequate on multiple grounds. For instance, she highlights that a nebulous public’s ‘right to security’ is prioritised over the human rights of specific individuals within detention. In addition, she shows that the ECtHR’s conceptualisation of rehabilitation ‘takes for granted the disputed logic’ that an individual’s risk of violence ‘can be reliably assessed and reduced through targeted treatment programmes’. ¹⁰ This allows rehabilitation to be framed as protecting an individual’s human rights, as it is seen as offering a way out of detention. O’Loughlin highlights that as the ECtHR places the onus on the individual ‘to earn their right to release rather than on the state to justify their continued detention’, ¹¹ it does not sufficiently account for the fundamental power imbalance between the prisoner and the state.

Thus, O’Loughlin exposes a fundamental paradox concealed within the international framework for human rights: ‘by taking coercive measures to protect the public’s “right” to be safe and to feel safe, the state generates risks to the safety of the individuals it subjects to coercion’. ¹² These risks to an individual’s safety, O’Loughlin argues, become obscured through human rights discourses and the ways in which ‘rehabilitation’ is framed within these. Our response to this, she maintains, ‘must be a project of law and policy reform’. ¹³

To conclude her monograph, O’Loughlin sketches out a modest set of proposals for these reforms. These proposals, which are intended as a starting point for future research, helpfully include specific suggestions for domestic laws and policy, as well as for the ECHR. Hence, they will be a valuable resource for policymakers, legislatures and scholars who are seeking to improve the treatment of people with mental health conditions within legal and judicial systems, internationally. As part of these proposals, O’Loughlin advocates for imposing legal limits on the use of preventive detention. At the same time, however, she argues that ‘there is a need to move away from the view that detention, whether in hospital or in a prison, is required as a response to serious crime’. ¹⁴ While she offers some useful suggestions that will assist us with this, it will be difficult to change this perspective as long as preventive detention is still viewed as a legitimate solution. Ultimately, O’Loughlin’s reformist approach implies that detention within prisons and/or hospitals is required, at least under certain circumstances. ¹⁵ But, if detention is not required as a response to ‘serious crime’, then why is it needed at all? The evidence O’Loughlin provides highlights how these carceral institutions are not only ineffective when it comes to preventing interpersonal violence, but they are also violent in themselves. The only way to prevent this violence is through abolition. ¹⁶

Furthermore, as O’Loughlin herself states, ‘in order to survive [. . .] initiatives with radical roots are likely to be forced to fall in line with the dominant culture of the prison system’. ¹⁷ The harmful underpinning rationales and paradoxes that she identifies are therefore likely to remain intact with a reformist approach, even if this approach is ‘radical’. ¹⁸ This is not to say that we should disregard O’Loughlin’s proposals. Rather, it is to recommend that subsequent research examines the extent to which these proposals could inadvertently continue (and legitimise) the violence within the system. For this, it may be helpful to consider the concept of ‘non-reformist reforms’. These are reforms ‘that create changes within the system, but without contributing to its expansion or legitimization’. ¹⁹ They can allow us to address and reduce systemic violence, while we develop new ways to respond to interpersonal violence without the harmful carceral-industrial-complex. ²⁰

In addition, as O’Loughlin focuses on the OPD Pathway within prisons and secure hospitals, questions remain around the extent to which coercion (and the threat of detention) is felt within ‘community-based’ initiatives under the Pathway. This is particularly important to consider given that the majority of deinstitutionalisation debates are underpinned by problematic spatial assumptions, which misleadingly position ‘the community’ as safe from the violence of institutionalisation. ²¹ The notion that individuals need to engage and ‘progress’ with their rehabilitation can have an impact on the levels of coercion and violence experienced within ‘the community’. ²² This can make facilities within ‘the community’ feel as though they are prisons. ²³

Nevertheless, O’Loughlin’s monograph is an essential read for all those concerned with institutional violence and the ethics of detention. Crucially, it disrupts the fantasy that we can prevent violence by detaining ‘dangerous’ individuals for ‘rehabilitation’ until they are no longer a ‘risk’. As O’Loughlin shows, we can neither accurately identify ‘dangerous’ individuals, nor determine whether interventions have effectively reduced the risk of violent behaviour. Yet, individuals continue to be subjected to harmful coercive measures based on risk assessments across health care and criminal justice systems internationally. By revealing how these coercive measures are legitimised within the international framework for human rights, O’Loughlin offers critical avenues for addressing and preventing institutional violence. Her proposals for reform provide us with a useful starting point for addressing this violence within the existing legal and policy frameworks. These frameworks, however, heavily rely upon state coercion and the detention of individuals as a way of responding to violence and risk. Thus, to truly address institutional violence, and the harms that O’Loughlin identifies, we must move beyond reforms and adopt an abolitionist approach – one that challenges punitive detention and prioritises healing, community accountability, and transformative justice.