Authors: Gwen Adshead (a) & Gillian Mezey (b)

(a) Institute of Psychiatry, De Crespigny Park, London, SE5 8AF

(b) St George's Hospital Medical School , Jenner Wing, Cranmer Terrace, London, SW17 ORE

Abstract

Although there has been some published literature addressing ethical issues in the chemical treatment of sex offenders (Bowden, 1991 ; Greenland, 1988) there has been relatively little discussion about the ethics of offering psychotherapeutic treatments of various kinds.

This article addresses several ethical issues that arise in the context of the community treatment of sex offenders against children, based on the authors’ experience of working in time-limited groups with child sex abusers (Mezey et al., 1991a).

We would suggest that the ethical issues that arise in the treatment of paedophiles are different from, and additional to, those encountered in the treatment of other types of offender. We address these issues under a number of sub-headings.

The Purpose of Treatment

We suggest that the first, and perhaps most contentious, ethical problem issue is: What is the purpose of treatment and who is it for? The question is ethical and not merely practical because of the nature of the treatment. In general medicine, the answer to this question is easier; treatment is aimed at improving the patient’s welfare in general, and health in particular, and the treatment is ‘for’ the patient, in that the patient seeks treatment, and, by implication, wishes to have it. Psychiatry accepts its responsibility for patients judged incompetent to consent to treatment, and the Mental Health Act 1982 is the legal means by which such patients receive treatment involuntarily, while being protected from abuse.

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However, Part IV of the Act does not cover the whole range of available therapies, focusing exclusively on chemical and biological treatments. This may be related to two assumptions:

• first, that ‘talking treatment’ is essentially innocuous; and
• second, that it is simply not possible on an involuntary basis.

Consent

Arguably, neither of the above assumptions is valid in the case of the convicted paedophile. There is a current vogue (perhaps influenced by political pressures) to offer treatment to sex offenders as an alternative to custody, as a condition of probation orders or during their term of imprisonment. Individuals must consent to a probation order with a condition of treatment before the judge makes the order. Work with this group of offenders constitutes 2-3% of the work of the Probation Service (Probation Inspectorate, 1991).

It is difficult to know exactly what proportion of convicted paedophiles are offered, or are accepted on to, community treatment programmes because these figures are effected by the provision of local services (generally rare), and the view of the magistrate or judge.

However, an American study (Moore et al., 1985) suggested that only 20 per cent of arrested sex offenders are on community programmes. Where such community treatment is offered as an alternative to custody, the validity of the consent is questionable, given the available options. One might argue that they do not seek treatment freely because the threat of imprisonment forces their decision. A counter-argument might suggest that no one makes decisions completely freely in a society that accepts some organized system of laws, and that indeed the law acts to protect members of a group from those others who do act ‘freely’.

Although treatment as a condition of probation is commonplace in forensic psychiatry generally, it is argued that there are particular difficulties in applying the argument when the treatment offered is psychological in nature, and it is not clear what the outcome will be. Treatment is rarely described in detail, particularly not psychotherapeutic treatments. The consent given by the offender is rarely adequately informed and it may cause him some suffering.

This aspect of consent relates to the nature of the treatment itself. Most psychological treatments aim to make the offender take responsibility for his or her offending, and help him or her to stop blaming others. By doing this, the sex offender attempts to take control of his behaviour. This process involves confronting the offender which can be uncomfortable for him. Furthermore, as he takes more responsibility on himself, he may become more depressed and guilty, sufficient to cause a full-blown depressive illness, together with the possible risk of suicide. It is a popular view that community treatments are a ‘soft’ option, so that offenders escape punishment. However, as recently documented, [[page_363]] one man in treatment did commit suicide (Mezey, 1991b).

In general medicine, doctors know that pain and suffering may be inherent in treatment of certain conditions; this is not usually seen to be a problem for psychotherapy. One must ask if the information requirement for freely given consent should be more comprehensive if the treatment is potentially dangerous. It is our view that offenders who are offered community treatment should be advised that it may be distressing to them and that support is necessary. However, it is likely that the stressful circumstances in which offers of treatment are made will continue to influence offenders.

Nature of the Illness

This problem is related to the fact that there is no clear agreement about what is wrong with these offenders, or whether their behaviour can be understood within a traditional medical framework. The ethical issue here relates to the debate about the nature of illness (Kendell, 1975; Gillon, 1989).

Most classifications focus on the underlying psychodynamics of the offence (Cohen et al., 1971; Prentky et al., 1985; Prentky et al., 1989) stressing interpersonal, psychosocial and psychosexual abnormalities. Very few sex offenders are suffering from formal mental illness such as schizophrenia or bipolar affective disorder at the time of the offence, and assault on children is rarely a response to psychotic phenomena.

The majority of sex offenders receiving a medical disposal would be described as being personality disordered. They themselves do not appear to be ‘suffering’ (or not until they have been caught!). The chief problem is not the offender’s but that of the victim and of society. The offender does not generally seek help himself, since he is not troubled by his ‘problem’, except in so far as it brings him into conflict with the law. This is borne out by the striking levels of denial used by these offenders (Mezey et al., 1991a).

Furthermore, treatment is arguably not for him in any sense, since the people who may benefit in the first instance are potential victims. Clearly, one hopes that the offender will benefit too, if only by not reoffending. But it is unclear how, or whether, recidivism rates are influenced by treatment. Getting people to behave better is not part of general medical training and this type of socio-political ‘benefit’ rests uncomfortably with western medical practice.

Third Party Issues

A further ethical dilemma involves the traditional focus of medical training, which is the patient. In the case of sex offender treatment, the patient’s interests cannot always come first because of the potential risk to others, and thus there may be competing interests. It may be said that the problems of third party [[page_364]] interests in medicine are not new. Doctors working in the fields of public health or sexually transmitted diseases also have to consider third party interests.

The GMC ‘Blue Book‘ (General Medical Council, 1985) attempts to outline the circumstances in which a doctor can breach his or her ethical duties in the public interest, and a set of guidelines prepared by the Royal College of Psychiatrists (Royal College of Psychiatrists, 1989) also examines this issue. But forensic psychiatrists have to decide for themselves the balance of duties to the offender, potential victims, and society at large. Whereas the public health practitioners protect the health of others, forensic psychiatrists may by some be expected to prevent crime.

Doctors receive little guidance through medical or psychiatric training about how to weigh up competing interests, and make decisions. Medical ethical literature (Gillon, 1989) gives guidance on conflicting duties to the same patient; the principle of respect for autonomy versus the duty of beneficence, for example. But in forensic psychiatry, the competing interests are between the individual patient and society’s sanctions in the form of the law, or between the patient and the victim. Decisions of this nature which require the doctor to be seen to ‘declare’ for one side or the other can appear to be subjective, and partisan. Therapeutic honesty may be hard to maintain unless it is clear whose interest is paramount. It may be argued that the child victims are particularly vulnerable, and may require special protection.

Decision-making becomes even more complex when doctors are working with other professionals whose training and ethical orientation are different. Groups are often run with probation officers who come from a social work background. Not only do they have statutory duties to protect children, but their training tells them that children’s interests always come first; and the fact that children are involved also makes the decision more emotive.

This can create a dilemma for the psychiatrist because information obtained in the context of the doctor-patient relationship may be appropriated and disclosed on the basis that it is for the protection of the potential victim. Disclosure of ‘hidden’ material is a regular and expected feature of psychotherapeutic work and experience with child sex abusers suggests that the disclosure of past undetected offences is to be expected in the course of therapy (Abel et al., 1987; Salter, 1988).

Social workers tend to regard the disclosure of additional past offences as evidence of continuing risk to children. Psychiatrists may argue that, as treatment for all offences is the same, new disclosures make no difference to the current clinical management. Indeed, reporting previously undisclosed offences is likely to be anti-therapeutic in terms of engaging the offender in future treatment. Psychiatrists have no legal duty to disclose in these situations, unlike the statutory duty imposed on social services (Children Act, 1989; Bentovim, 1992).

These conflicting positions need to be resolved before embarking on treatment. We suggest two possible solutions.

• One is to offer no confidentiality in relation to offending behaviour, although clinicians may feel unhappy about [[page_365]] the implications of this for therapy.
  • (Perhaps therapists should not encourage offender patients to disclose their hidden thoughts, feelings and actions, if it is going to result in loss of liberty.)
• Another solution is to report only serious undetected offences. However, in these circumstances therapists are asked to make judgements for which they do not possess the skills.

Confidentiality is a well-known problem in forensic work, for both medical and nonmedical staff. In practice, the key issue is to decide in advance what the rules will be, to convey them to the patient and abide by them thereafter.

Some guidance to the question of how much weight should be given to the conflicting claims of the offender and the victim may be found in the case of Tarasoff and the GMC statement (see above). One author (Mackay, 1991) has suggested that the law in the United Kingdom might follow the Tarasoff (1976) judgment, in that if the doctor becomes aware that the patient is a danger to a specific person, then the doctor has a duty to warn that person. Certainly in the context of a psychotherapy group that emphasizes child protection, it seems logical to take the view that if an offender tells the group that he is planning to offend against an individual, then steps should be taken to protect the potential victim.

Research Issues

In the field of research issues, there is a conflict of interests between ‘good’ science and the legal process. Treatment needs to be evaluated, not only from the scientific point of view but also because it is unethical to offer treatment that is not demonstrably effective, or that might be dangerous, or to allocate scarce resources to ineffective treatments.

Randomized controlled trials are the most desirable way of evaluating new treatments. However, it may also be unethical to carry out such a trial, randomly allocating offenders to treatment and no-treatment groups (Marshall and Eccles, 1991 ; Prentky and Burgess, 1990). The legal process itself may be affected by the offer of experimental treatment, in that pressure is placed on someone suspected of an offence to plead guilty and receive a non-custodial sentence. Those offenders who plead not guilty are generally not assessed or offered treatment; for the psychiatrist failure to offer a treatment option can result in the offender receiving a custodial sentence.

The argument against depriving sex offenders of a possible source of help becomes more germane if it is believed that treatment is for the protection of victims. Since it has not yet been demonstrated that treatment works, it cannot be unethical to withhold such treatment. However, it may be claimed that the potential damage to victims is so great that no chance of its happening should be allowed, even in the interests of research.

Recently, the Home Secretary announced that treatment will be provided for sex offenders in prison, which will take the form of ‘modules’ of group therapy run by both prison and probation officers (Prison Service, 1991). These modules will last up to one year. Such a plan [[page_366]] in its present form must be treated with some reservation unless treatment is linked with evaluation (Player, 1991; Eastman et al., 1991).

Most sex offending goes undetected; this has both legal and ethical implications for research. A number of men plead not guilty to charges of offences against children. A proportion are acquitted, although it is hard to estimate how many.

A recent report from NACRO (NACRO, 1992) suggests that the conviction rate following children’s disclosure of sexual abuse is only 20 per cent. In relation to rape only 10 per cent of charges result in conviction (Lloyd and Walmsley, 1989). Some of those acquitted subsequently admit their guilt (Abel et al., 1987) and some convicted offenders continue to maintain their innocence. Research on treatment outcome should include all convicted men (Finkelhor, 1989), including those who deny their offences.

It is difficult to ask a man questions about an offence that he denies committing. Positive responses to questions about sexual fantasy or paraphilic behaviours are incriminatory and are not usually forthcoming where a man is currently facing charges. The implication of this in research terms is that offenders willing to co-operate in psychiatric evaluation and treatment may not be representative of the population as a whole; the most disordered and dangerous offenders escape attention, or actively refuse offers of help.

Training Issues

The assessment and treatment of child sex offenders requires experience, and supervision. We would argue that it cannot be undertaken without training, and that it cannot be assumed to be part of a normal psychiatric, psychology, or probation workload. Psychiatrists may find themselves carrying out assessments of, or working with, sex offenders without adequate training, claiming an expertise and level of understanding they do not possess. This means that men may be imprisoned or released (with potentially serious consequences for both the individual and the public) on the basis of specious expertise. Unless psychiatrists receive instruction in medical ethics, they will not be aware of ethical dilemmas associated with clinical practice.

Conclusion

As is common with ethical issues, more questions are raised than can be easily answered. This does not make discussion fruitless; rather it raises the quality of the debate. We argue that important ethical decisions are being made all the time in relation to the treatment of sex offenders. There is a real danger, however, that, like the original offences, such issues will be minimized, distorted and denied. [[page_367]] We would suggest that workers need to achieve a balance of interests between the offender and the victim. To support one is not to harm the other.

References

Abel, G. G., Becker, I. V., Mittelman, M. S., Cunningham-Rathner, J., Rouleau, J. L. and Murphy, W. D. (1987) ‘Self Reported Sex Crimes of Non-incarcerated Paraphiliacs’. Journal of Interpersonal Violence, 2(1): 3-25.

Bentovim, A. (1992) ‘Ethical Aspects of Disclosure of Child Sexual Abuse’, presentation at Section of Forensic Psychiatry Annual Meeting, York.

Bowden, P. (1991) ‘Treatment: Use, Abuse and Consent’. Criminal Behaviour and Mental Health, 2: 13042.

Campbell, E. J. M., Scadding, J. G. and Roberts, R. S. (1979) ‘The Concept of Disease’. British Medical Journal, 29 September 1979.

Children Act, The, 1989 (England and Wales). London: HMSO.

Cohen, M. L., Garofalo, R. F., Boucher, R. and Seghorn, T. (1971) ‘The Psychology of Rapists’. Seminars in Psychiatry, 3: 307-27.

Drane, J. F. (1984) ‘Competency to Give Informed Consent’. Journal of the American Psychiatric Association, 252(7): 925-7.

Eastman, N., Adshead, G., Mezey, G. and Bartlett, A. Letter to The Times, 17 June 1991.

Finkelhor, D. (1989) ‘Abusers: Special Topics’. In Finkelhor, D. et al. (eds) A Source Book of Child Sexual Abuse. Newbury Park, CA: Sage.

General Medical Council (1985) Guidelines: Professional Conduct and Discipline: Fitness to Practise. London: General Medical Council.

Gillon, R. (1989) Philosophical Medical Ethics. London: Wiley.

Greenland, C. (1988) ‘The Treatment and Maltreatment of Sexual Offenders’. Annals of New York Academy of Sciences, 528: 373-8.

Kendell, R. E. (1975) ‘The Concept of Disease and its Implications for Psychiatry’. British Journal of Psychiatry, 127: 30515.

Lloyd, L. and Walmsley, R. (1989) Changes in Rape Offences and Sentencing. Home Office Research Study no. 105. London: HMSO.

Mackay, R. (1991) ‘Walking the Tarasoff Tightrope’. Medicine, Science and the Law, 30(1): 52-6.

Marshall, W. L. and Eccles, A. (1991) ‘Issues in Clinical Practice with Sex Offenders’. Journal of Interpersonal Violence, 6 (1): 68-93.

Mezey, G., Vizard, E., Hawkes, C. and Austin, R. L. (1991a) ‘A Community Programme for Convicted Sex Offenders: A Preliminary Report’. Journal of Forensic Psychiatry, 2: 11-25.

Mezey, G. (1991b) ‘Treatment in the Community’. Criminal Behaviour and Mental Health, 1:169-72.

Moore, H. A,, Zusman, J. and Root, G. C. (1985) “Non-Institutional Treatment for Sex Offenders in Florida’. American Journal of Psychiatry, 142: 964-7.

National Association for the Care and Resettlement of Offenders (1992) Criminal Justice and the Prevention of Child Sexual Abuse. London: NACRO report.

Player, E. (1991) ‘Treatment for Sex Offenders: A Cautionary Note’. Prison Service Journal, 85: 2-9.

Prentky, R. and Burgess, A. W. (1990) ‘Rehabilitation of Child Molesters’. American Journal of Orthopsychiatry, 60(1): 108-17.

Prentky, R. A,, Cohen, M. L. and Seghorn, T. K. (1985) ‘Development of a Rational Taxonomy for the Classification of Sex Offenders: Rapists’. Bulletin of the American Academy of Psychiatry and the Law, 13: 39-70.

Prentky, R. A., Knight, R. A., Rosenberg, R. and Lee, A. (1989) ‘A Path Analytic Approach to the Validation of a Taxonomic System for Classifying Child Molesters’. Journal of Quantitative Criminology, 5: 231-57.

Prison Service (1991) Treatment Programmes for Sex Offenders in Custody: A Strategy. HM Prison Service, Directorate of Inmate Programmes.

Probation Inspectorate (1991) The Work of the Probation Service with Sex Offenders: Report of a Thematic Inspection. HM Inspectorate of Probation.

Royal College of Psychiatrists (1989) Council Report GR7. London: Gaskell.

Salter, A. (1988) Assessment and Treatment of Child Sex Offenders: A Practical Guide. Newbury Park, CA: Sage.

LAW REPORT

Tarasoff v Regents of the University of California, [1976], 551 P 2d 334.