Serous Sex Offender Legislation in NSW: An Issue for Forensic Mental Health Professionals

1. Serous Sex Offender Legislation in NSW: An Issue for Forensic Mental Health Professionals Dr Stephen Allnutt Forensic Psychiatrist

2. NSW Serious Sexual Offender Legislation • Available to a sex offender who is in custody in a correctional centre for a “serious sex offence” or an “offence of a sexual nature” • Sex Offender • “a person who has at any time been sentenced to imprisonment following his or her conviction of a serious sex offence, other than an offence committed while the person was a child” • Serious sex offence • in the case of an offence against an adult or a child, the offence is punishable by imprisonment for seven years or more and • in the case of an offence against an adult, the offence is committed in circumstances of aggravation

3. NSW Serious Sexual Offender Legislation • Application period restricted to the last 6 months of the term of imprisonment • State Attorney-General may apply to relevant Supreme Court for the continued detention of an offender • Supreme Court may determine an application for a continuing detention order by making: • an extended supervision order • a continuing detention order • dismissing the application

4. NSW Serious Sexual Offender Legislation • Supreme Court decision • Must be satisfied “to a high degree of probability” that the offender is likely to commit a further serious sexual offence if he/she is not detained and that “adequate supervision will not be provided by an extended supervision order” • Up to a 5 year duration and subsequently renewable • Occurs at the end of sentence and is involves a re-examination of the offender and his/ her offences • Requires the opinion of two psychiatrists

5. Fardon vs Attorney General (Qld) • On a issue limited as to whether or not the s13 of the Dangerous Prisoners (Sexual Offenders ) Act 2003 (Qld) conferred jurisdiction upon the Supreme Court of Qld which was repugnant, to or incompatible with, its integrity as a court. • His continued detention was upheld by the High Court • 1 out of 6 dissenting judgments • “Even with the procedures and criteria adopted, the act ultimately deprives the people such as the appellant of personal liberty, a most fundamental human right on a prediction of dangerousness, based largely on the opinions of psychiatrists which can only be, at best, an educated or informed “guess. The Act does so in circumstances, and with consequences, that represent a departure from past and present notions of the judicial functions in Australia” - (Kirby J)

6. Traditional Medical Ethics • Focus on the duty to the individual over and above the duty to society as a whole • Autonomy, confidentiality, beneficence

7. Psychiatric Ethics in the forensic paradigm • Forensic psychiatrist steps into a legal paradigm that deviates from traditional “medical/treatment paradigm” • Greater emphasis on the duty to society • Potential conflict • What my role? To whom is my primary obligation owe? How do I behave in a beneficent manner in doing this? What about the subjects confidences ?

8. Medical ethics and society’s needs • More recently society has made increasing demands on medicine to respect collective rights at the expense of individual rights: • Protection of the public vs. confidentiality (Tarasof. Local ) • Coercive psychiatric treatment vs. autonomy • ? Expert forensics evidence vs confidentiality, beneficence • Conflicts with tradition

9. Ethics • Taken to logical conclusion in capital cases • Determination of capacity to be executed • Treating to be “fit to be executed” • Opinions that result in potentially poor outcome for the person • unfit to stand trial, not insane/sane • risk to others -parole hearing, prohibited employment, • preventive detention

10. Resolution • Tension between both views • The conflict maintains ethical balance

11. Ethics and the Mental Health Act • Beware of legal profession’s tendency to turn to psychiatry to control difficult cases that pose predominantly social problems. • Thus maintaining its (the legal profession’s) fidelity to its own ethical position that… • … in the absence of a legally defined offence no one can be deprived of freedom” (Rosenman 1999)

12. Issues for Legal Professionals • Breach of the principle of legality • Governments should punish criminals and not criminal “types” • Principle against double punishment • “Increasing the punishment imposed by the the first court for precisely the same conduct (Kirby J)” • Principle that criminal detention must only follow a finding of guilt • McSherry (2005)

13. Issues for Legal Professionals • We are probably able to identify individuals who fall into a high risk group but falling into a high risk group does not mean that the person as an individual in that group is high risk , the person could in fact be a low risk but be assessed as having the characteristics of a high risk offender. • The counter argument to this is that most medical decisions are based on research on groups and not individuals. Sp why is this a problem?

14. Issue for Mental Health Professionals • Lack of consultation with the mental health professionals in the development f the legislation • Lack of evidence that the legislation can reduce serous sexual offending • Potentially deviates too far from even forensic medical ethics • Sullivan (2005)

15. Issues for Mental Health Professionals • Potentially places mental health professionals in the position of utilizing medical intervention as a form of social control rather than doctors treating patients. • Lower standards of informed consent and voluntariness • Coercive treatment of people without mental illness. • Mental Health Professionals seen by the public as agents of the state • Sullivan (2005)

16. Issues for Mental Health Professional • Base rate of sexual recidivism is relatively low - about 14% over 5 years and 35% over 12 to 20 years of opportunity • Sex offenders have a higher risk of non-sexual offending than sexual offending • While this might relate to detection, there is no evidence that sexual offenders are at higher risk than other offender groups • Issue is public concern, impact of sexual offending and thus a lower risk tolerance • Low harm sexual offences have greater recidivism rates than high harm sexual offences • Mercado and Ogloff (2007) • Hanson and Morton-Bourgon (2004)

17. Issue for Mental Health Professionals • Given these issues should mental health professionals be involved in the application process? • Failure to be involved could result in worse outcomes for those before the court • However no involvement could result in eventual change to the law but at the expense of others • If we are involved however need to utilize the best possible technology

18. Risk Assessment-First Generation • “…psychiatrists and psychologists are accurate no more than one out of 3 predictions of violent behavior over a several year period among institutionalized populations that had both committed violence in the past (and thus had high base rates for it) and who were diagnosed as mentally ill.” • (Monahan (1981):The Clinical Prediction of Violent Behavior; Rockville;NIMH)

19. Risk Assessment-First Generation • Problems with first generation research • Inadequate predictor variables • Poorly defined and inadequate criterion measures • Constricted samples • Unsystematic research efforts • Monahan (1988):Int J Law and Psychiatriatry; 11;249-257)

20. Risk Assessment - Second Generation • Forensic mental health decides to be scientific • New Research emerges • Sepejak, Menzies, Webster and Jensen (1983), Swanson ( 1990), Link and Stueve (1994), Lidz, Mulvey, Gardiner (1993) • Clinician's accuracy in prediction of violence exceeds chance levels

21. Risk Assessment - Third Generation • Increasing interest in the identification of variables correlated with increased risk • Development of an evidence based approach to Risk Prediction • Risk factors associated with offending • Actuarial Tools • In past 25 years there has significant advance and continues to advance

22. The Approaches to Risk Assessment • The 2 Extremes • Unstructured Clinical Judgment • Actuarial Approach • The Middle Ground • Empirically Guided Risk Assessment • Structured Professional Guidelines • Even Better • Structured Professional Judgment (SPJ)

23. Factors associated with increased sexual recidivism that have empirical support • Hanson and Morton-Bourgon (2004)-31,000 subjects • Victims: male, unrelated or strangers • Sexual deviancy: deviance sexual interest and paraphilia; sexual interest in children; sexual arousal to children on phallometry. • Antisocial orientation: high score of PCL; difficulties with self regulation; employment instability; substance abuse; intoxication; hostility, rule violation; non compliance to supervision and conditions

24. Factors not associated with increased risk of sexual recidivism • Intuitive variables; sexual abuse as a child, social skills deficits, loneliness, low self esteem; depression; degree of force used; victim empathy; denial and minimization • Treatment variables: lack motivation for treatment; poor progress in treatment • But no single factor predicts sexual recidivism • Hence the development of tools that combine risk factors • Mercado and Ogloff (2007)

25. Actuarial Tools • There is evidence that actuarial tools are more accurate than unstructured clinical assessment • Sexual Recidivism (Hanson and Brussiere 1999) • Clinical r=0.1 • Actuarial r=0.46 • Mentally ill Offenders Bonta et al (1998) • Clinical r=0.03 • Actuarial r = 0.39 • Hanson (2007) • Empirical actuarial d=.70 • Clinical d=.43

26. Actuarial Tools • Use of an equation, graph, table to provide a probability estimate of risk for a particular risk group (Grove WM, Meehl PE (1996); Psychology, Public, Policy and Law (2); 293-323) • Better inter-rater reliability • Have scientific validity and statistical accuracy • Easy to use. You don’t have to be that skilled ( beware)

27. But..Problems with Actuarial Instruments • May not be generalisable to the Australian population • Factors are mostly static and do not account for other risk reducing factors and circumstances • Based on outcomes in context of strict research conditions • Tells you more about the behavior of that risk group as a whole less about about the individual within the group. • Becomes the focus of the assessment with inexperienced clinicians at the expense of clinical experience • Does not assist in management plan ( back to the old “dangerous” concept) • Does not predict “serious sexual recidivism” but any sexual recidivism that is it does predict recidivism consistent with the statutory requirement.

28. Does treatment work? • Hall 1995 (12 studies, N=1313) • CBT, and hormonal treatments have modest effects • White 1998 ( 1 study) • more rigorous meta-analysis • Rejecting the less scientific rigorous studies that Hall (1995) included • No statistical difference between treatment and non treatment groups for hormonal treatments or psychological treatments • Except for imaginal desentisation • Relapse prevention was promising

29. Does treatment work ? • Gallagher et al, 1999 (25 studies) • CBT effective, not hormonal treatments • Hanson et al 2002 (43 studies,N= 9454) • Treatment group (13.3%) had less recidivism than non treatment group (16.8%) • Nonetheless concluded that “the balance of available research suggests that current treatments reduce recidivism, but firm conclusions await more and better research” • Losel et al 2005 (60 studies, N=22,181) • Treated showed 36 % less recidivism than contols • Hormonal treatments and CBT

30. Does treatment work? • Overall the studies on which conclusions about the effective is based are only moderate in scientific rigour • This is the case for both psychological and hormonal treatments • What treatment works for whom and when remains unclear

31. Conclusion • If mental health professionals are going to engage in this process then empirically validated risk assessment approach is required and that is not clinical assessment alone • I would advocate for using risk assessment as these tools have scientific basis, and objective methodology that brings reliability to the assessment process • But mental health professionals need communicate the limitations of our opinions particularly in regard to individual risk - in this court is alone • Forensic mental health clinicians are severely limited in the the degree to which they can assist the court in determining the risk of the individual, the court is alone in this. • Personally I do not believe there is sufficient evidence to allow judicial decisions in preventative detentions hearing to be made based on treatment issues alone.

32. NSW Serious Sex Offender Legislation and he questions asked of psychiatrist • What is this individual’s risk of committing a serous sex offence (at some time in the future)-Risk Assessment • Can the risk be managed by means of an extended supervision order-Risk Management / Treatment

33. Principles of Risk Assessment • “Science, particularly in its applied form, can never achieve the certainty of the law” • (Kahle and Sales (1980): Reported in Palermo et al: J of Forensic Sciences: 36; no. 5: 1991; pp 1435-1444) • Process is never complete without a risk management plan • Communication of that plan and the risk to a responsible personRisk assessment and management is a recurrent process not a single time event • “Dangerous/ness” is a socio-legal term and should not be used by mental health workers • Risk fluctuates

34. Principles of Risk Assessment • Risk can never be eliminated. It may be ameliorated. Mental Health professionals undertake “responsible risk taking” (thoughtful defensible decision making) • Risk should be expressed as probability not as an absolute • Risk assessment should begin with the application of empirically based factors • A risk statement has a finite life and must be reviewed