Troublesome Offenders, Undeserving Patients: The Precarious Rights of Mentally Disordered Offenders

Abstract

This chapter affirms the importance of trying to establish an ethical basis for working with ‘mentally disordered offenders’ in the context of academic and policy debate that is often centred around ideas of effective treatment and system management. It is argued that a respect for human rights constitutes the most secure foundation not only for ethical policy and practice, but also for an approach that can contribute to solutions and to positive outcomes – both in terms of meeting the needs of mentally disordered offenders and in reducing reoffending. Rights are here understood as ethical entitlements and, although law is essential in defending and promoting these rights, it is also necessary to find a perspective from which to critique the law. The initial account suggests that human rights include both liberties (freedom from oppression and cruelty, for example) and claims (demands on government to foster circumstances in which people may thrive). The daunting question of what are the rights of mentally disordered offenders is explored by considering each of a paradoxical set of rights that have been attributed to them. It is argued that examination of these putative rights exposes some assumptions about (and ambivalent attitudes towards) mental disorder. It is likely that cultural influences and stereotypes influence reactions towards people believed to be mentally unwell and that these reactions may subvert or distort policy objectives. An understanding of the social origins of mental distress, including the effects of social disadvantage and exclusion, is set against the dominance of medical conceptions which have dominated policy debate. The chapter concludes by asserting claim rights, as well as the safeguards of liberty rights, and making connections between the entitlements of mentally disordered offenders and the ‘Good Lives Model’ which is now influential in desistance research. In the context of contemporary economic difficulties and the volatile politics of crime and punishment, the fundamental importance of establishing a secure ethical foundation for policy and practice must be asserted.