The offender personality disorder pathway and its implications for women prisoners in England and Wales

Abstract

This article examines how the Offender Personality Disorder Pathway has been tailored to deliver services to a relatively wide population of women prisoners, despite the fact that few of them meet the dangerousness criteria that determine access for men. Although women in custody have a well-established claim to resources that address their mental health needs, there are legitimate concerns about programmes that foster individualised and ‘pathologised’ understandings of female offenders. These are particularly problematic in the contemporary rehabilitative climate which functions in a state of legal and ethical uncertainty about the duty of care owed to those who participate in the programmes. The article calls for a broader understanding of the political and cultural circumstances in which the Offender Personality Disorder Pathway for Women operates and an awareness of the consequences that derive from the coercive environment of the prison, the ideological dominance of risk management and the minority status of women in the criminal justice system.

Keywords

mental health personality disorder rehabilitation risk management women prisoners

Introduction

There are good reasons for criminologists to be exceptionally wary about linking punishment with crime control, particularly where this involves psychological programmes in prison. In comparison with other penalties, imprisonment is associated with the highest levels of proven reoffending and the deterioration of inmates’ mental health and social exclusion. Advancing a policy that confirms the prison as a principal provider of therapeutic services for offenders with personality disorder may therefore appear to be an unpromising strategy, made worse by its reliance upon a transfer of resources from hospitals to prisons. Yet this is precisely the policy advanced in England and Wales post the general election of 2010.

Although driven principally by concerns about the management of male offenders assessed as representing a high risk of serious harm to the public through sexual and violent offending, the development of the Offender Personality Disorder (OPD) Pathway has significant implications for the treatment of women in custody. This article examines how the OPD Pathway has been tailored to deliver services to a wide sector of women prisoners, despite the fact that few of them meet the dangerousness criteria specified for men. It sets out the major objections that feminist criminologists have made to the provision and delivery of psychological treatment in women’s prisons and reviews the extent to which the OPD Pathway for Women has responded to these critical observations. It is argued that although important lessons have been learnt, there remain significant concerns about psychologically intrusive programmes that foster individualised and ‘pathologised’ understandings of female offenders, particularly where these operate in a legal and ethical framework of uncertainty about the duty of care owed to the women prisoners who participate.

Notwithstanding these reservations, the need for therapeutic services amongst women prisoners is undeniable. That much of this existing demand would be best met in the community is also beyond doubt. Nonetheless, there remains a population of women in custody who have a legitimate and often urgent claim to rehabilitative resources that address their psychological well-being. The difficulty is that the rehabilitative needs of women prisoners continue to be understood as reflections of individual deficiencies that are independent of political construction and analysis. The purpose of this article is therefore, to explore the OPD Pathway for Women in a context that acknowledges the psychological distress of individual women prisoners and the potential relief they can gain from therapeutic programmes, but also argues for a broader understanding of the political and cultural circumstances in which the OPD Pathway for Women operates. It will be argued that in England and Wales the current emphasis on rehabilitation in penal policy is fraught with hazards that derive from the coercive environment of the prison and uncertainty about prisoners’ rights, the ideological dominance of risk management and the minority status of women in the criminal justice system.

Personality disorder and criminal justice

Long-standing controversy and uncertainty characterise academic and practitioner debate about the existence and identification of personality disorder and its implications for the treatment of offenders in the criminal justice system. Its legitimacy as a diagnostic category is not universally accepted, principally because the defining criteria are diverse and fail to provide clearly identifiable boundaries for purposes of classification. An individual may also have more than one diagnosis of personality disorder and it is not uncommon for there to be a co-occurrence with specific mental illnesses and substance misuse.

For some personality disorders, there can be over a 100 different possible presentations and therefore some people with the same diagnosis will have very different presentations. Many people will also have more than one diagnosis of personality disorder, and people given the same diagnosis may have very different problems. (Durcan and Saunders, 2015)

In the UK, the Mental Health Act 1983 s1(2) provided a restrictive legal definition of ‘psychopathy’ which required the personality disorder to be persistent and to result in ‘abnormally aggressive or seriously irresponsible conduct’. A clear policy objective was that mentally disordered offenders should be diverted from the criminal justice system, especially from sentences of imprisonment, to be managed and treated in health and social services. Diversion from prison for psychopathic offenders, however, rested not only on their diagnosis but on the testimony of two psychiatrists that their condition was ‘treatable’; by which it meant that treatment would be ‘likely to alleviate or prevent a deterioration’ of their condition.¹ A reluctance by clinicians to grant admission and a shortage of hospital places, together with a wariness on the part of the judiciary to lose penal control over serious offenders and an unwillingness amongst some offenders to be labelled a ‘psychopath’, collectively resulted in a majority of these offenders being sentenced to a criminal disposal rather than diverted to the health service.

The consequently high concentration in the prison population of people with personality disorder and other co-morbidities, such as drug and alcohol dependencies, has drawn attention to the exclusion of this group from mental health services, both during their sentence and post-release.² In an attempt to address this, the 2007 Mental Health Act has adopted a more inclusive approach, whereby its provisions apply to offenders with ‘any mental disorder or disability of mind’ and replaces the ‘treatability test’ for psychopaths with an ‘appropriate medical treatment test’ for all mentally disordered offenders irrespective of their clinical diagnosis.³ By expanding the reach of the legislation and introducing greater flexibility of access, the 2007 amendments acknowledge the unmet need for mental health services that exists amongst offender populations. However, in the absence of substantial investment in forensic services across the health sector, a policy of diversion from the criminal justice system, and especially from imprisonment, has been destined to remain, in most cases, an aspiration rather than a practical reality.

In 2009 Lord Bradley published his review of services offered to people in the criminal justice system with mental health problems and/or learning difficulties. He commented on the high levels of mental ill health amongst the prison population and drew attention to the fact that:

There is currently no formal provision of services for people with personality disorder in prison, despite the fact that such services are available in the community. In addition, there is no coherent and agreed inter-departmental approach to the management of personality disorder within the criminal justice/health sector. (Bradley, 2009: 16)

He recommended the development of a national strategy, coordinated by the Department of Health, the National Offender Management Service and the NHS, for the management of all levels of personality disorder in custody, through to resettlement in the community. Rather than wholesale diversion, his recommendations accepted the inevitability of personality disordered offenders in custody and made proposals that would provide treatment services within penal establishments. It is upon these foundations set by Lord Bradley that the OPD Pathway has been built.

OPD Pathway

The OPD Pathway exists alongside a broader policy agenda that aims to reduce crime and protect the public by enhancing the rehabilitation of offenders. ‘The fundamental failing of policy has been the lack of a firm focus on reform and rehabilitation, so that most criminals continue to commit more crimes against more victims once they are released back onto the streets’ (Ministry of Justice, 2010: 1). The Green Paper, which aimed to transform rehabilitation, contained a specific commitment to increase the treatment capacity for offenders whose high risk of harm is linked to a severe personality disorder (Ministry of Justice, 2010: 37). This was to be achieved by building on the experience of, and diverting resources from, the so-called pilot projects initiated a decade earlier in both prisons and secure psychiatric hospitals, on Dangerous and Severe Personality Disorder (DSPD) (O’Loughlin, 2014). The DSPD programme has now been replaced by the Pathway project, which aims to almost double the number of treatment places for offenders with severe personality disorder, by transferring resources from special hospitals to prisons: ‘We estimate that by organising these services differently we would be able to increase treatment capacity by 2014 from 300 places up to 570, mostly in prisons’ (Ministry of Justice, 2010: 37). In addition to the policy framework provided by the ‘transforming rehabilitation’ agenda, the OPD Pathway has developed alongside an ongoing strategy for the treatment of women in the criminal justice system (Ministry of Justice, 2013).⁴ This acknowledged important gender differences in patterns of offending and accepted that the ‘current system does impact differently on women and men’ (Home Office, 2000: 1). It established the principle that gender equality required differential treatment that not only recognised women’s minority status in the criminal justice system but also responded to their gender-specific needs. The OPD Pathway for Women has been designed with this paradigm in mind, being firmly rooted in, and informed by, the conclusion of the Corston Report (2007) that women offenders require a multi-agency, woman-centred and holistic approach.

OPD Pathway for women

The strategy for women aims to provide an integrated pathway approach, rather than isolated interventions, that is responsive to gender differences at every stage of an offender’s sentence. This includes the design and delivery of treatment programmes in prison, through to post-release supervision in the community and supported resettlement. For male offenders, access to the Pathway depends on them being assessed as representing a high risk of serious harm to the public, specifically through repeat sexual or violent offending that is clinically related to a severe personality disorder. Female offenders who meet these criteria are also eligible but, in addition, the Pathway is open to women diagnosed with a severe personality disorder who do not constitute a risk of serious harm. Their current offence and their risk of reoffending should include violence against the person, criminal damage, sexual offences (excluding those that are economically motivated) and/or crimes against children; or they should be managed by the National Probation Service.⁵ Again, a clinical link was to be established between the women’s offending behaviour and their personality disorder.

The introduction of differential entry criteria for men and women responds to concerns about the equity of service provision. Applying the male criteria to women would have resulted in limited numbers, possibly fewer than 200 of them, gaining access to the Pathway (d’Cruz, 2015: 48). But in addition, documented gender differences in the prevalence of mental health problems, and specifically in the nature of personality disorder, have justified a differential approach. Overall, women offenders are overrepresented in almost all major psychiatric diagnoses (Laishes, 2002; Singleton et al., 1998). However, in relation to personality disorders, women are significantly less likely than men to be classified with an Anti-Social Personality Disorder and more likely to receive a diagnosis of Borderline Personality Disorder (Coid et al., 1999; Fazel and Danesh, 2002). Guidelines issued by the National Institute for Health and Care Excellence (NICE) identify this condition as reflecting

..a significant instability of interpersonal relationships, self-image and mood, and impulsive behaviour. There is a pattern of sometimes rapid fluctuation from periods of confidence to despair, with fear of abandonment and rejection, and a strong tendency towards suicidal thinking and self-harm. Transient psychotic symptoms, including brief delusions and hallucinations, may also be present. It is also associated with substantial impairment of social, psychological and occupational functioning and quality of life. People with borderline personality disorder are particularly at risk of suicide. (National Institute for Health and Care Excellence, 2002: 3)

Co-morbidity is also said to be common amongst women offenders with personality disorder: most typically ‘with depression, anxiety and psychotic episodes’ (Ministry of Justice and Department of Health, 2011: 6). In addition, data on women prisoners from different common law jurisdictions have consistently demonstrated the prevalence of social disadvantage, high risk of suicide and self-harm and experience of trauma arising from histories of violent and sexual victimisation (Bartells and Gaffney, 2012; Bloom and Covington, 2008; Corston, 2007; Covington, 2014; Derkzen et al., 2012; Hollin and Palmer, 2010). Drawing on official statistical data, the Prison Reform Trust (2015: 51) has reported that, in England and Wales, sentenced women prisoners are twice as likely as sentenced male prisoners to exhibit symptoms indicative of psychosis; and that 30% of women have had a psychiatric admission prior to entering prison, compared with only 10% of men. Their experience of physical, emotional and/or sexual abuse is also more extensive, reported by around half of all women in English and Welsh prisons, compared with only a quarter of all men (Prison Reform Trust, 2015: 34). Their rates of attempted suicide and self-harm are also disproportionately higher: 46% of women prisoners have attempted suicide at some point in their lives, compared with 15% of the men; and women comprise 26% of all incidents of self-harm in prison, despite constituting only 5% of the custodial population (Prison Reform Trust, 2015: 33). Ministry of Justice officials responsible for developing the OPD Pathway have claimed that failure to respond to these gendered differences in determining eligibility would have ‘failed to fill the yawning gap between the level of need and the availability of interventions for women who do not necessarily present a risk of harm to others, but who have significant personality difficulties linked to their offending’ (d’Cruz, 2015: 48). Under the revised criteria it is estimated that 1000–1500 women will be eligible for the Pathway services, most of who at any one time will be in the community, either serving community sentences or under supervision post-release (d’Cruz, 2015: 48).

The range of services for women on the OPD Pathway is diverse and represents differing levels of intensity. All women, whether in custody or the community, are to have access to an independent mentoring and advocacy service. This is intended to provide individualised support in relation to a range of practical difficulties concerning accommodation, finance and children, as well as personal and emotional problems associated with personal safety, substance misuse and self-esteem. Independent advocacy aims to help women access appropriate services and to facilitate communication across different agencies. But whilst emphasis is placed upon the need for services to be gender responsive, there remains a significant lack of attention to the intersection of gender with race and ethnicity, as well as other sources of oppression and inequality. Given the critical history of black and ethnic minority engagement with criminal justice and mental health services, most notably evidence of how risk and race are interrelated in correctional risk and therapeutic discourses, issues arising from these intersectional dynamics should be at the forefront of OPD Pathway development and evaluation (Bernard, 2013; Goddard and Myers, 2016; Joseph, 2014; Russell and Carlton, 2013).⁶

All of the 10 closed prisons for women have some engagement with the OPD Pathway, as do the six approved premises for women in the community:

By spreading our interventions widely, we aim not only to provide opportunities for the highest number of women to participate, but also to do so in a way that gives them timely access as close to home as possible, without the need for frequent moves and disruptions …. (d’Cruz, 2015: 52)

But although the distribution of Pathway services across the female estate reflects an attempt to keep women as close to home as possible, this continues to fall far short of the proximity envisaged in the Corston Report’s proposal to establish a network of small custodial units across the country.

For women in custody the Pathway establishes three new regional personality disorder treatment services, providing approximately 50 places, operated jointly by the National Offender Management Service and local health authorities, together with third sector input.⁷ They provide short and longer term interventions up to three years and principally feature cognitive behavioural programmes. The regional units are supplemented by two national services for women assessed as a high risk of committing another serious offence. The Primrose Unit at HMP and YOI Low Newton, previously the only treatment centre for women under the DSPD programme, provides 12 places for periods up to three years; and (at the time of writing) HMP Holloway offered a 6–16-week structured programme for up to 16 women.

In addition to these OPD-specific interventions, the women’s Pathway also provides access to existing accredited Offender Behaviour Programmes, appropriate for the treatment of personality disorder. Choices, Actions, Relationships, Emotions is principally a cognitive behavioural programme designed for women with a history of violent offending and personality disorder, provided at HMP Foston Hall in Derbyshire and New Hall in Yorkshire. The second is the Democratic Therapeutic Community offered at HMP Send in Surrey, which is an intervention recognised as effective in the treatment of personality disorder amongst male prisoners (Genders and Player, 1995; Newton, 1998; Stevens, 2013).

Finally, offenders’ progress along the Pathway is assisted by a period of residence on one or more Psychologically Informed Planned Environments (PIPEs). These new additions are not exclusively reserved for those with personality disorder but are intended to be available for all offenders identified as having complex needs (Turley et al., 2013). Their purpose is to serve four functions and to focus specifically on the transition between services (Turner and Bolger, 2015). In the prison context they aim to help prisoners prepare for the treatment environment (a Preparation PIPE), support a prisoner engaged in treatment elsewhere in the prison (a Provision PIPE) or facilitate transition after the completion of a treatment programme (a Progression PIPE).The PIPE model is also applied in community-based approved premises where, in keeping with the pathway approach, it aims to facilitate the transition from custody to effective resettlement (Approved Premises PIPE). The need to pay attention to an offender’s transition between services arose from the recognition that those who were completing intensive treatment interventions frequently returned to unsympathetic penal environments that triggered negative reactions and undermined earlier progress made in the treatment setting (Livesley, 2003; NICE, 2009; Turner and Bolger, 2015). PIPEs are therefore not intended to deliver a particular mode of treatment but to contribute to the effectiveness of a wider treatment pathway by facilitating transition from one service to another.

Clearly, the OPD Pathway for Women has supported and responded to the need for gender-specific programmes in women’s prisons. In their delivery, however, there has been considerably less attention to the complex range of inhibiting factors that shape the context in which the OPD Pathway must function. Drawing upon important feminist critiques of rehabilitative practices, the following sections explore both the ideological and structural impediments that undermine the operational objectives of the women’s Pathway.

Critical considerations for the OPD Pathway for women

Presenting imprisonment as a rehabilitative option, particularly when services in the community have suffered severe cuts to resources, inevitably risks an expansionist approach to custody if sentencers lose sight of the harmful consequences of custodial sentences. Rehabilitative ambitions are capable not only of triggering custody but also of extending it beyond what is retributively proportionate. A major criticism of the rehabilitative ideal that prevailed in the middle years of the 20th century was that it promoted indeterminate sentences, high levels of discretion by penal administrators and inconsistent periods of detention, with little or no justificatory evidence of success. Associated with this were concerns about the disguised and invasive control inherent in rehabilitative programmes. Far from being benign, rehabilitative regimes can be experienced as singularly punitive by those targeted for improvement. In consequence, without appropriate safeguards in place, the operation of correctional programmes, especially those incorporating psychologically intrusive methods, may sit uneasily alongside other institutional obligations that are owed to prisoners under the European Convention of Human Rights and domestic human rights law (Genders and Player, 2014).

Feminist critiques of rehabilitation, individualism and pathology

Warnings about the legitimacy of rehabilitative regimes for women prisoners have highlighted the dangers of importing treatment programmes designed for men, where scant account is taken of women’s gendered pathways into crime and the distinct needs they present in a custodial setting. In the UK and other western democracies such as Canada and Australia, the importance of gender-responsive treatment in penal policy has been integrated into official planning processes (Department of Health and Ministry of Justice, 2011a; Laishes, 2002; Stathoupoulos et al., 2012). The OPD Pathway for women conforms to this narrative, aspiring to ‘offer individual needs assessment; look at each woman as a whole, not just at her offence; and acknowledge a woman’s expertise in her own “story”’ (d’Cruz, 2015: 49). The objective is to shift from ‘service-centric’ to ‘woman-centric’ provision, engaging service users in the design, delivery and review of all OPD services.

A relatively recent perspective drawn from North American experience and acknowledged in the Women’s Pathway is that gender-responsive treatment for women offenders must be ‘trauma informed’(Covington, 2014; Segrave and Carlton, 2010).⁸ In the context of treatment programmes for women prisoners, it requires an understanding of the impact that traumatic experiences have had on women’s coping strategies and mechanisms of survival. ‘For both service providers and the women survivors who access services, it is important to understand what trauma is and its impact on the thoughts, feelings, beliefs, values, behaviour, and relationships of the victims’ (Covington, 2014: 3). Feminist criminology, however, has tended to conclude that where women-centred approaches have been adopted in custodial settings they have typically failed to deliver the beneficial outcomes anticipated by their proponents and have led some to conclude that rehabilitation in prison is illusory and a contradiction in terms (Baldry, 2008; Carlen and Tombs, 2006; Hayman, 2006).

Particularly criticised by feminist writers are correctional mental health policies that decontextualise offending behaviour and rely upon psychiatric labels to construct women offenders as psychologically disordered (Hannah-Moffat, 2000, 2004; Kilty, 2012). Pycho-therapeutic programmes predicated on the assumption that women’s offending is rooted in their inability to reason appropriately, ‘encourages participants to adopt the criminal personality story-line to the exclusion of all other constructions of self and experience’ (Pollack, 2005: 75). Rehabilitation is consequently construed in terms of restructuring or reforming each individual’s distorted way of thinking, controlling their emotions and thereby eliminating their problematic behaviours. Women are directed to self-regulate, taking responsibility for their choices and the consequences that flow from them, so as to become rational, pro-social decision-makers. One consequence of this pathologising agenda, however, is that feminist insights into the different pathways women follow into crime, particularly those characterised by male violence and sexual abuse, are transformed into ‘individualistic and psychologised understandings of criminal women’ (Pollack, 2007: 159). These analyses have specifically revealed how the individualisation and pathologisation inherent in correctional programmes in women’s prisons have transformed efforts to empower women into gendered strategies of control that ultimately serve to discipline and increase their regulation (Hannah-Moffat, 2001; Kendall, 2002; McGorkel, 2003; Pollack, 2005, 2006).

Much of this individualised and pathologised discourse is evident in the OPD Pathway for women, which is specifically designed to address and respond to the high levels of Borderline Personality Disorder identified in populations of women offenders. It highlights a diagnostic label that conveys an inherent defect in the individual, prioritising impaired thinking, poor decision-making and a lack of emotional control as key pathologies, and privileges psychiatric and psychological discourse in its correction.

To be critical of the labelling process, however, is not to deny that women in prison experience serious mental health problems and that access to psychologically informed treatment programmes, as part of a pathway response, can help to relieve psychological distress and enable personal development and the reinforcement of skills necessary for independent living in the community. But recognition that a diagnosis of mental disorder can have serious stigmatising consequences, both for a person’s self-perception and their assessment by others, provides an important dimension to the form that services take. The risk of stigmatisation has long been recognised and responded to in the policy and practices of other jurisdictions. Since its pioneering strategy for Federally Sentenced Women in the 1990s, one of the key principles underlying policies for the delivery of mental health services by the Corrections Service of Canada has been the avoidance of labels that function to reduce women to only their psychiatric condition (Laishes, 2002; Task Force on Federally Sentenced Women, 1990). In recent guidance issued by the NHS and NOMS, the stigma associated with personality disorder has also been explicitly acknowledged: ‘The term personality disorder has sometimes been used as a pejorative label and the diagnosis given as a means of excluding sufferers from mental health services’ (NHS England and NOMS, 2015). Ongoing concern has resulted in some reconsideration of how personality disorder is thought about, moving away from categorical or diagnostic approaches ‘to a more dimensional approach which considers traits or symptoms along a continuum’ (Durcan and Saunders, 2015: 3). Guidance published by the Department of Health to those working with service users in the community has urged caution in defining someone as personality disordered: ‘We all have personalities, and we all have aspects of our personalities that are troublesome at times. People with personality disorder are not fundamentally different from anyone else, but might, at times, need extra help’ (Department of Health, 2014: 6). Guidance to those working with offenders also urges caution, setting out the ‘three Ps’ criteria that limit the diagnosis to those whose personality traits are problematic, persistent and pervasive. To be classed ‘problematic’ the characteristics must deviate from the norm for that society, be a source of unhappiness to the person or others and/or ‘to severely limit them in their lives’ (Department of Health, 2014: 9). Characteristics are considered ‘persistent’ if they ‘continue over a long period of time’ (Department of Health, 2014: 9). No fixed period is set but the implication is that they should be life course persistent, emerging in adolescence or early adulthood and continuing into later life. Finally, to be ‘pervasive’ the problematic traits should cause distress in most, if not all, aspects of the person’s life, including their intimate, social and working relationships; their experience of the world around them and their relationship with themselves or their ‘inner world’. The guidance emphasises the importance of a restrictive use of the diagnosis:

Because of the dangers of casual or careless labelling, we would discourage you from labelling your clients as having a personality disorder unless you are professionally trained to do so. It is much more useful to think about them as having complex needs, or personality difficulties, and to think about what those are, and how they affect the person. (Department of Health, 2014: 9)

Feminist criminologists maintain, however, that an illness-based approach to trauma can be alienating and disempowering. Covington (2012: 2) claims that the promotion of an illness-based model fundamentally misconstrues the social dynamic under review and misunderstands the women’s traumatic responses, which are not symptoms of individual pathology but ‘normal reactions to abnormal or extreme situations’. Segrave and Carlton (2010) have been particularly wary of allowing legacies of abuse and the long-term impacts of multiple traumas to be synonymous with sources of mental disorder. They define trauma not as a psychological state but as a set of experiences that give rise to strong emotions that are closely coupled with socio-economic disadvantage. They emphasise that trauma in the lives of women prisoners is not an isolated event but arises in response to ‘situations where abuse, death, criminalisation and imprisonment are constants from an early age’ (Segrave and Carlton, 2010: 292). Such resistance to the pathogenic model of treatment draws attention to the structural forces and cultural practices that intersect and shape the lives of women offenders. Yet these are precisely the factors that tend to be air-brushed out of the therapeutic landscape of the criminal justice system, dismissed for being beyond the realistic remit of the programmes or acknowledged only as a contextual backdrop against which the women’s distorted psychological identity has been allowed to take root and develop.

The developmental structure of the OPD Pathway for women does pay some attention to the structural problems that contribute to the dysfunctional lifestyles and social disadvantage of many women offenders. There is, for example, some demonstration, most notably through the women’s access to independent mentoring and advocacy services, of a broader sociological conception of the challenges women face and the services they need. The notion of an integrated approach that facilitates the continuation of services beyond release acknowledges the connection between pro-social decision-making and access to systemic support. The OPD Pathway for Women also addresses the inherent risk of disempowerment that derives from an individual’s engagement in corrective programming. By following good practice in other jurisdictions it is expected that women participants will engage in all elements of programme design, delivery and review (Laishes, 2002; Stathopoulos et al., 2012). The aim is to ‘acknowledge a woman’s expertise in her own “story”’ and to allow women to identify their own needs (d’Cruz, 2015: 35). However, giving women a ‘voice’ in their engagement with rehabilitative services is particularly challenging in prison settings and made even more difficult to achieve in the context of an illness-based approach to trauma that perpetuates ‘the notion that clients are deficient and disordered’(Pollack, 2005: 81).

Yet prison inmates can also be seduced by the appeal of an illness model of treatment. There are persuasive emotional and pragmatic reasons for women prisoners to absorb and reproduce interpretations of their flawed reasoning and to volunteer themselves for therapeutic interventions. Outwardly, treatment programmes promote an optimistic message of empowerment that is attractive to many women in custody. Although required to take responsibility for the harms they have caused to themselves and others, they are also encouraged to believe that they can move on and redirect their futures in ways that break with cycles of destructive and self-defeating patterns of behaviour. There are also sound pragmatic justifications for women prisoners to defer to dominant ideas and beliefs and not ‘rock the boat’. Assessments of their responses to treatment programmes are important sources of information that shape parole and resettlement decisions within an overarching context of risk management. Those women who resist or reject the institutionalised interpretations of their problems are in danger of being viewed as remaining ‘at risk’ of further offending and in need of continued regulation. In the prison environment, therefore, the OPD Pathway for women operates alongside strong systemic forces that encourage women to reproduce psychologised treatment discourses that define them as unwell, lacking agency and sound judgement, and simultaneously, individually responsible for their criminality.

Impact of risk management

The neoliberal model of rehabilitation that currently informs government policy and underlies the OPD Pathway for women differs in important ways to that which prevailed in the penal-welfare environment of the 1960s and 70 s (Raynor and Robinson, 2009). The contemporary rehabilitative ideal has evolved within a framework of risk management so that its principal purpose and emphasis is no longer the welfare and well-being of the offender but the management of risk she poses to the public by reoffending (Garland, 2001). ‘Despite record spending and the highest ever prison population we are not delivering what really matters: improved public safety through more effective punishments that reduce the prospect of criminals reoffending time and time again’ (Ministry of Justice, 2010: 5). Investment in rehabilitative programmes has been justified on the ground that public safety is enhanced by their effectiveness: ‘it is no longer offenders themselves who are seen as the main beneficiaries of rehabilitative interventions, but rather communities and potential victims’ (Robinson, 2008: 432). ‘Our central objective is to make the public safer by breaking the cycle of crime …… Cutting crime and ensuring public safety is at the heart of our strategy’ (Ministry of Justice, 2010: 7). This shift of moral emphasis is accompanied by an explicitly coercive edge to current policy. The political message, embedded in the management of risk and the protection of harm to the public, is unequivocal: offenders who fail to engage successfully with rehabilitative opportunities will be met with a punitive response.

Offenders should be required to tackle their criminal behaviour. It is crucial that all those managing offenders make it clear to them that they will be swiftly caught and punished if they do not accept the opportunities offered to them and instead return to a life of crime. (Ministry of Justice, 2010: 25)

In relation to female offenders, criminological literature has shown how the re-legitimation of rehabilitation in the context of contemporary risk management has played a critical role in translating their experiences of victimisation and therapeutic need into correctional risk factors. Feminist criminologists, such as Kelly Hannah-Moffat (2004, 2006) and Shoshana Pollack (2007), have exposed the ways in which assessments of women’s propensity for violence and risk of recidivism are often based on how assertively they have responded to their own experiences of violent and sexual abuse. Retaliation against exploitation and maltreatment come to reflect their failure to manage problems that arise in intimate relationships. In this way, the concept of risk arises from their impaired reasoning and distorted decision-making.

Guidance on working with women offenders on the OPD Pathway appears to endorse this way of thinking:

Risk of harm to others and to the self are linked to PD [personality disorder] through a variety of mechanisms including poor impulse control, problems with regulating emotions, poor relationship skills and expectations, and thinking problems such as a tendency to catastrophise or to see things only in black and white. (NHS England and NOMS, 2015: 101)

It advises that risk assessment with women ‘has to be broad, to incorporate risks to self and to others’ and, because formal methods have been designed on male offenders, all risk assessments of women should be accompanied by a case formulation which ‘offers a hypothesis about the cause and nature of the presenting problems’ (NHS England and NOMS, 2015: 101). The danger here is not only that women again become defined and responded to principally in terms of their diagnosed condition, or that their risk of causing harm is perceived to be rooted in inherent defects of their personality. It is also that assessments of their progress in treatment require them to corroborate their own pathologies and, most importantly, to accept responsibility for the harms they cause and become effective managers of their own risk factors. So long as this process of ‘responsibilisation’ is focused on the control of inherent defects of thinking, feeling and behaving, the relevance of socio-economic and cultural factors that structure the women’s lived experiences continues to be obscured from view. The significance of this is that any subsequent manifestation of risky behaviour is understood as a failure to self-regulate and as an indication of a persistent and harmful defect of the person. This manifestation of risk management consequently distorts and misrepresents the women’s perspectives and, according to Meda Chesney-Lind (2006), fosters a particular misapprehension and over-prediction of their propensity for future dangerousness.

Power relations in prisons

A fundamental characteristic of penal institutions is the monopoly of coercive power reserved to staff and the near-total dependence of prisoners. The relational problems associated with this are uniquely challenged in a penal context where treatment services are to be delivered by members of prison staff who must play two potentially competing roles: one therapeutic and the other custodial. Concern about the capacity of prison staff to fulfil therapeutic roles dominated responses the government received to its consultation paper on the proposed OPD Pathway (Department of Health and Ministry of Justice, 2011a, 2011b). Doubts were expressed about the availability of appropriate expertise and the compatibility of these functions with other occupational priorities. Implementation of the Pathway appears to have principally addressed these reservations by emphasising a commitment to staff training which, in relation to those working with women, has focused on such areas as ‘trauma informed practice, de-escalation, self-harm management and formulation’ (d’Cruz, 2015: 49).⁹

Creating an enabling environment on the OPD Pathway has rested predominantly on building stable and consistent staff–offender relationships. Rooted in Bowlby’s attachment theory, the Pathway is built on the premise that a woman’s personal sense of well-being is organised around and dependent upon her relationships with others. Facilitating stable placements with a consistent staff team and fostering mutually supportive relationships amongst women engaged in programme activities, all aim to facilitate the safe and secure environment that trauma-informed treatments depend upon. Yet training for prison staff in England and Wales is low in comparison with many other European countries and institutional regimes do not prioritise the delivery of rehabilitative programmes (Genders and Player, 2010). Most importantly, however, and still missing from this analysis, is recognition of the imbalance of power that defines staff–inmate relationships and the potentially conflicting roles that prison staff are expected to play. Although the rehabilitation of offenders may be a stated purpose of imprisonment, the penal culture of the prison means that its rehabilitative efforts occur in a relational context of blame, whereby day-to-day experiences come to be shaped principally by penal values and ambitions rather than therapeutic ones.

Arguably, the women’s OPD Pathway addresses this problem and strengthens its commitment to therapeutic goals by bringing together criminal justice and healthcare expertise in the co-commissioning and operation of services. As pointed out by Lacey and Packard (2013), the professional emphasis in healthcare is upon therapeutic rather than punitive priorities. Accomplishing such change, however, assumes a balance of power between these two staff groups that has been difficult to achieve in existing prison-based therapeutic communities (Genders and Player, 1995, 2010). The present allocation of power that has been created by shifting resources from the Department of Health to NOMS, on the ground that services can be provided more economically in prisons rather than hospitals, does not obviously support a cultural transformation of the kind required.

The vulnerability of the therapeutic process in women’s prisons is exacerbated by an inherent uncertainty about the duty of care that prison authorities owe to prisoners, particularly those engaging in rehabilitative treatments. This, in turn, reflects a deeply embedded resistance amongst UK politicians to the concept of prisoners’ rights.¹⁰ At its core lies a strong adherence to the notion of ‘less eligibility’, whereby rights are effectively replaced with privileges and participation in rehabilitative services is situated in a discourse of obligation rather than entitlement. Although prisoners in England and Wales do possess a body of rights established in domestic and international law, particularly by the European Convention on Human Rights and associated rulings from the European Court of Human Rights (ECtHR), this legal framework and the principles it embodies has failed to establish a culture of rights in English and Welsh prisons (Easton, 2011).

One source of intractability stems from the failure of the Ministry of Justice to distinguish those limitations on rights that are the legitimate consequence of a custodial penalty and those that arise incidentally from the administrative practices adopted in penal institutions (Lazarus, 2006: 742). This conceptual clarification would enable certain normative standards to be established, against which special duties of care could be identified and the legitimacy of any interference in prisoners’ rights by the prison authorities could be assessed. Given that prisoners assume a status of almost complete dependence on the prison for their well-being, the ECtHR has made clear that prisoners have special rights that are not shared by the population at large. These include protection from harms that arise from the inadequacy of service provision as well as its limited availability.¹¹ However, in relation to intrusive psychological therapies, the duty of care owed to prisoners is woefully ill defined (Genders and Player, 2014). But reliance on legal rights as a protective mechanism can also be misplaced. In relation to mental health policies, Bernheim (2016) has argued how the ‘rhetoric of rights’ within a context of individuation and responsibilisation can be used to shore up existing power relations and marginalise and control those who do not make use of the opportunities for normalising their behaviour.

The women’s OPD Pathway has been introduced into prisons against a backdrop of financial crisis and economic restraint, conditions that had already impaired the functioning of the most established treatment facility for personality disorder in the male estate, namely, the therapeutic communities at HMP Grendon (Genders and Player, 2010). There are self-evidently important ethical issues in play here. Exposing psychologically vulnerable women in a coercive environment to psychically intrusive treatment without full confidence in the integrity of the programmes highlights the significance of having clearly defined and accessible legal safeguards. Yet the extent to which women prisoners are able to defend their interests by holding prison authorities accountable for the standards of treatment that are delivered through the Pathway, and for any consequential harms that are caused, is seriously compromised by the prevailing uncertainty about the duty of care owed to prisoners engaged in rehabilitative programmes. Consistent with the principle of ‘less eligibility’, treatment programmes tend to be presented as an unmitigated good, offered to prisoners as an act of beneficence at the tax payers’ expense, and with which they have an obligation to engage and reform. From this perspective, the risk of harm that can be caused through therapeutic engagement is invisible and claims to prisoners’ rights can be excluded as fanciful and irrelevant (Genders and Player, 2014). Without an acceptance of the normative structure inherent in human rights law, the moral status of prisoners as people lacking full eligibility will continue to determine the ways in which conflicting penal objectives are resolved. Clarification of legal rights and the prison authority’s duty of care are therefore fundamental to the development of therapeutic programmes for prisoners with complex needs.

Conclusion

The uncertainty and diversity that attaches to the diagnosis of personality disorder, together with the broadened criteria for programme admission, affords the OPD Pathway considerable reach into women’s prisons. Recognising that few women prisoners represent a risk of serious harm to the public, but that many of them have complex and unmet needs that profoundly affect their well-being in custody, appears to legitimise an expansive approach to the OPD programme that is motivated by concern for their welfare as well as their risk of reoffending. But utilising the women’s Pathway as a vehicle to deliver therapeutic services and more humane treatment to an extended population of women generates its own hazards. Arguably a principal problem is that access to the new treatment services will be restricted only to those women who are judged to have a personality disorder. Clearly some women who would otherwise benefit will be screened out on this basis. To avoid this risk of attrition and to maximise women’s access to services, a flexible approach to classification has been encouraged, one that does not require a formal clinical diagnosis. Instead, prison staff need only be persuaded that a woman’s personality traits are problematic, persistent and pervasive. As discussed earlier, these qualities are not strictly defined and permit a high degree of discretion. Yet this flexibility and potential inclusiveness generates its own problems, particularly in the context of contemporary risk management which has reinvested in rehabilitation primarily for purposes of public protection. The OPD Pathway exemplifies this model, replacing the DSPD programme but continuing to focus treatment on the management of dangerousness posed by serious offenders. Including an inflated population of women within this framework inevitably risks up-tariffing the threat of harm they pose to the public, simply by linking the causes of their offending behaviour with the stigma of risk associated with personality disorder.

The Bradley Report and subsequent publications on the development of the OPD Pathway for Women, have repeatedly drawn attention to the multiple and complex level of mental health needs amongst women prisoners, particularly the high levels of co-morbidity with other mental disorders, such as depression and anxiety, alcohol and drug misuse. Imprisonment is itself a common source of mental distress, embodying stigma and condemnation and triggering mental health needs relating to loss, fear and insecurity. In the light of this it is unclear why women’s access to therapeutic services has to be associated with a particular disorder. Not only does it promote an artificial clarity and deny the complexity of interaction between the women’s psycho-social histories and their present experience in custody but it also prioritises an illness-based understanding of women’s rehabilitative needs. Linking rehabilitative treatment in prison with strategies that both pathologise and responsibilise women, not only ignore structural and cultural intersections that give meaning to their decision making, but also undermine the system’s potential for empowerment by expanding the disciplinary and regulatory powers of the prison.

The prospect that therapeutic interventions do not necessarily convey an unmitigated good, and that unintended consequences can be harmful to individual participants and counterproductive for the institutional providers, represents a woefully neglected perspective in contemporary penal policy. Although the development of the women’s OPD Pathway affirms the centrality and indispensability of women-centred programmes, in practice it falls short of this ideal. Despite its best intentions, the OPD Pathway for Women tends to have followed the well-worn tradition of adapting policies that have been designed to respond to the problems posed by men.

Footnotes

Notes

Elaine Player is Professor of Criminology and Criminal Justice at the Dickson Poon School of Law, King s College, London, UK. Her research focuses on the treatment of women in the criminal justice system, sentencing and imprisonment.

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