“Dangerousness Assessments are Impossible”:A Psychiatrist Speaks Out

[Jinken Shimbun, September 27 2002, No.338]

On September 5, Dr. Timothy Harding addressed a JCLU regular seminar entitled “Japan's Mental Health System from an International Human Rights Perspective: Flaws in the Bill on Medical Treatment and Observation of People Who Have Committed Serious Crimes While in a State of Insanity” (Coordinator: Ms. Nobuko Kobayashi; Translator: Mr. Yoichi Kitamura). Dr. Harding, a psychiatrist and professor, is Director of the Institute of Forensic Medicine at the University of Geneva. He was in Japan from 1985 to 1989 as part of an International Commission of Jurists mission that recommended reform of the Japanese mental health care system. The following is an excerpt from his speech.

Past and present

History teaches us that the mentally ill are particularly vulnerable to human rights abuses. They were among the first victims of the Third Reich in Germany. In Europe, to combat this situation the European Court and the Convention on Protection of Torture (CPT) have devoted considerable effort to protecting the mentally ill from violations of their human rights.

In the United Kingdom, however, the popular press has contributed to the image of the dangerous madman lurking in the shadows of every residential area and threatening innocent people in the streets, children at school, and old people in their homes. But the facts show that the mentally ill contribute very little to the overall rate of violent crime in society. I believe the same may be true in Japan, although I am unable to read the popular press, following the Ikeda incident last year.

So, one piece of advice to the NGO community and the JCLU in particular: try to involve journalists in the debate on human rights of the mentally ill - and not just journalists from serious newspapers or TV programs, but also from the mass media.

Legal Provisions/ Institutions/ Professional Competence and Options: A Dynamic Interaction

To examine the legislation on treatment of mentally ill criminals in different justice systems, not only provisions laid down by the New Law but also institutional frameworks and the range of professional mental health competence and options should be taken into consideration, because these three elements intricately interact with each other.

Specifically, in addition to legal provisions the following elements are important:

1. The state of psychiatric services within the prison system;
2. The availability of mental health professionals with competence in the forensic field;
3. The intentions of the authorities to create new secure forensic psychiatric services.

The New Law in Japan

Four points can be raised regarding the New Law:

1. The new provisions do appear to fill a 'legislative gap' bridging the legal and psychiatric systems. At present, many mentally disordered offenders are 'diverted' to the mental heath system by procedures which lack transparency or due process.
2. A potential for arbitrariness exists in the new procedure. The examination of the facts is discretionary and the accused are not necessarily represented by a lawyer, but are 'accompanied' by an attendant who may be a lawyer.
3. The role of the psychiatrist who sits with the judge is ethically ambiguous, even more so than that of a forensic specialist.
4. It seems unlikely that the special courts would be subject to critical scrutiny, since the proceedings are essentially secret and not in the public domain. The same would be true of the contribution of mental health professionals, both those sitting with a judicial role and those writing expert reports. A closed and non-transparent system is likely to develop a dysfunctional way of working, characterized by an unhealthy symbiosis between judges and psychiatrists and a lack of accountability. It is unlikely that such courts would be aware of critical issues, such as the fragility of dangerousness assessments and the availability of appropriate treatment services.

Above all, the government has advanced much more rapidly with its legal proposals than with plans to develop treatment services. It can be feared that special secure hospitals with an essentially custodial function will be created without a pathway of care leading to the community. The new hospitals will therefore rapidly become overcrowded and treatment standards will fall.

The proposals appear to give tasks to psychiatrists which they cannot perform effectively (predicting dangerousness and making judicial decisions). On the other hand, mental health professionals well-trained in forensic work and working as a multi-disciplinary team can be very effective in treating mentally ill offenders, reintegrating them into the community, and significantly reducing the risk of future violence. Paradoxically, the proposals say nothing about the need to train an adequate number of professionals to perform these tasks, which would contribute both to patient welfare and to public security.

Discussion

After Dr. Harding's speech, an intensive discussion was held regarding the assessment of dangerousness and other issues. Dr. Harding said psychiatrists may be able to assess an individual's potential dangerousness within the span of a few hours, but not far into the future.

Reported by Mitsuko Osugi (Lawyer, Kyoto Civil Liberties Union)

Translated by Satoshi Ueno & Nobuko Kobayashi