Choice, deliberation, violence: Mental capacity and criminal responsibility in personality disorder

Personality disorder is associated with self-harm and suicide, as well as criminal offending and violence towards others. These behaviours overlap when the means chosen to self-harm or attempt suicide put others at risk. In such circumstances, an individual's mental state at one and the same time may be deemed to meet the conditions for criminal responsibility, and to warrant involuntary hospital admission. I explore this tension in how people with personality disorder are treated at the hands of the criminal and civil law respectively in England and Wales: they may be deemed sufficiently mentally well to be punished for their crimes, but not deemed sufficiently mentally well to retain the right to make their own decisions about matters of serious importance to their own lives, including whether or not to continue them. The article divides into four sections. After introducing this tension, Section 2 sketches the nature of personality disorder and the psychology underlying self-directed and other-directed violence. Section 3 addresses the questions of whether people with personality disorder who are violent, whether towards self or others, typically meet the conditions for criminal responsibility and mental capacity respectively, considering in particular whether their underlying desires and values, or their emotional distress, affect their mental capacity to make treatment decisions. Section 4 then considers what we might do to address the tension, within the confines of current legislation. Drawing on The Review of the Mental Health Act 1983, I argue that we are ethically justified in involuntarily admitting to hospital people with personality disorder who pose a serious risk to themselves only if we simultaneously undertake to offer genuine help for their future, in the form of appropriate treatment, social support, and better life opportunities — a provision which, as things stand in England and Wales, is sorely lacking.