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The Situation of Forensic Psychiatry in Austria
International Journal of Law and Psychiatry, Vol. 23, No. 5–6, pp. 481–492, 2000 Copyright © 2000 Elsevier Science Ltd Printed in the USA. All rights reserved 0160-2527/00 $–see front matter
PII S0160-2527(00)00045-5
The Situation of Forensic Psychiatry in Austria Setback or Progress? Hans Schanda,* Gerhard Ortwein-Swoboda,† Guntram Knecht,‡ and Klaus Gruber§
Introduction Along general lines, the development of mental health care in Austria can be compared with that in other European countries—modified (mainly delayed) by two important historical events: The fall of the Empire at the end of the First World War changed Austria into a small, poor country with existential problems and severe social and political conflicts. Twenty-five years later, the Nazi regime and the Second World War left behind a destroyed country, in which the main interest was economic stabilization. The compensation of fundamental deficits in the care for the mentally ill, inseparably connected with a painful remembrance of the past years, did not belong to the urgent needs of health policy. So, up until the 1970s, mental health care was mainly confined to traditional inpatient treatment in psychiatric hospitals with high rates of involuntary admissions (Katschnig, Grumiller, & Strobl, 1975a,b). The situation for mentally ill offenders was unchanged with respect to the previous decades: If a patient was found to be not guilty by reason of insanity (NGRI), he was exculpated and handed over to the regional psychiatric hospital for further treatment without any control or surveillance by court (Schanda & Knecht 1998). In the course of a penal reform in 1975, the treatment of mentally ill offenders NGRI came under the competence of the Ministry of Justice. This change met the interests of the psychiatrists in the mental hospitals, who saw the forensicpsychiatric patients as an obstacle for opening the wards and other reforms. *Associate Professor of Psychiatry, Medical Director of Justizanstalt Göllersdorf, Göllersdorf, Austria. †Psychiatrist, Justizanstalt Göllersdorf, Göllersdorf, Austria. ‡Assistant Professor of Psychiatry, Psychiatric University Clinic Vienna and Justizanstalt Göllersdorf, Göllersdorf, Austria. §Clinical Psychologist, Justizanstalt Göllersdorf, Göllersdorf, Austria. Address correspondence and reprint requests to Dr. Hans Schanda, Justizanstalt Göllersdorf, 2013 Göllersdorf 17, Austria. 481
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There is a meaningful difference between this new situation in Austria and that in other countries, such as Germany, where criminal commitment lies within the competence of the mental health system—meaningful not only regarding the expenditures, but also regarding the opinion of politicians and the public on the relationship between mental illness and crime; it is also meaningful for the way in which general psychiatry regards all those aspects of treatment dealing directly or indirectly with aggressive behavior in psychiatric patients. From 1975 on, the patients were to be committed by the courts to inpatient treatment at a special institution for an indefinite period of time. But the designated institution was only in planning at that time. So, despite new formal judicial conditions, in practice things did not change very much during the following years for the mentally disordered criminals: They all continued to be treated in the hospitals (Schanda & Knecht, 1998). Regarding all aspects of treatment of mentally ill offenders NGRI, the psychiatric hospitals were not provided with any legal supervision, despite the fact that they were formally under control of the Ministry of Justice, according to three sections of a law regulating the execution of every kind of judicial sentence/detention/commitment. The new law also prescribed criminal commitment for those mentally disturbed offenders who were found to be responsible for their offenses although they had acted under severe “mental abnormality.” Some of these persons were kept in special departments of regular prisons, some of them in a special prison in Vienna with better inmate to therapeutic staff ratio. Official university representation of forensic-psychiatric sciences in Austria was and still is confined to one university institute, not surprisingly belonging to a faculty of law, mainly occupied with the preparation of expert opinions for the courts. The next phase was initiated in 1985 with the opening of the aforementioned central institution for mentally ill offenders NGRI (Justizanstalt Göllersdorf), disburdening the psychiatric hospitals of approximately two thirds of all male forensic patients. The changes in general mental health care began in Vienna with the psychiatry reform at the end of the 1970s, in the rest of the country with the sectorization of inpatient treatment at the beginning of the 1990s. The reforms in the outpatient sector are coming along rather sluggishly, and nobody knows when they will be finished. The last steps in mental health reforms were a new formulation of (inpatient) civil commitment in 1991, replacing the old version, which was based on the incapacitation order of 1916, and a reform of the funding of inpatient treatment in 1997. The Legal Situation Austrian law sees the “will to harm” as prerequisite for criminal culpability, which can be traced back to the Constitutio Criminalis Theresiana from 1770 (Sluga, 1977). Section 11 of the Austrian Penal Code (APC) (Foregger, 1997a), coming into force in 1975, says that lack of “discretion” and/or “disposition” at the time of offense, caused by functional or organic psychoses, severe intellectual disability, or other pathological mental states equal to the aforementioned conditions, makes a person not guilty. The terms discretion and disposition
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correspond by and large with the McNaughten rules of Anglo-American jurisdiction (Appelbaum, 1998). In the case of a mental state according to section 11 APC in causal connection with a minor offense (misdemeanors, potential penalty of less than 1 year) the offending person has to be set free. In the case of a mental state, according to section 11 APC in causal connection with a major offense (felonies, potential penalty of more than 1 year), together with a high probability of further illness-related severe offenses, the person has to be committed for an indefinite period of time according to section 21/1 APC (Foregger, 1997a), until the illness-related “specific dangerousness” is substantially reduced. In contrary to German law, for example, the APC does not provide for the possibility of diminished responsibility. However, if the offense (penalty more than 1 year) was committed not under the conditions of section 11 APC, but under the influence of a “higher degree of mental abnormality” (mainly targeting severer forms of personality disorder) in connection with the “specific dangerousness” prognosis (see Section 21/1 APC), commitment for an indefinite period of time is possible parallel to a prison sentence (Section 21/2 APC) (Foregger, 1997a). The requirement of further inpatient treatment for a mentally ill offender has to be reconsidered once a year by the penal courts. Release (Section 47 APC) (Foregger, 1997a) is in any case probational for 5 or 10 years, depending on the severity of the index offense (and not on illness-related prognosis that is much in keeping with reality). Criminal commitment—but only for a maximum of 2 years, and if total duration of the sentence is 2 years or less—is possible for people with offenses due to substance abuse (Section 22 APC) (Foregger, 1997a), if a positive change in the behavioral/addictive pattern by specific treatment can be expected. A special form of commitment for a maximum of 10 years beyond the prison sentence was preserved for criminals with repeated severe offensive behavior (Section 23 APC). But it turned out that in the last two decades this kind of commitment, although intended for persons with persistent dangerous/ aggressive behavior, was primarily applied to offenders with minor property offenses. It is now a more or less dead law, and there is currently only one prisoner committed under this section. Mentally ill remand prisoners are mainly treated in regional psychiatric hospitals according to section 429/4 Austrian Code of Criminal Procedure (ACCP) (Foregger, 1997a). So section 429/4 ACCP can be seen as the (potential) precursor of criminal commitment for mentally ill offenders NGRI (Section 21/1 APC). Naturally, not all pretrial commitments under section 429/4 ACCP are followed by definitive commitment according to section 21/1 APC. If sufficient treatment during the remand (pretrial) period, usually spent in a psychiatric hospital, is able to sufficiently improve a poor illness-related prognosis, the patient has to be set free. The analogue for preliminary (pretrial) commitment in responsible mentally ill offenders is defined in section 438 ACCP; however, just a few persons are waiting for trial under this section. In 1991, the aforementioned new formulation of civil commitment (Unterbringungsgesetz) (Bundesgesetz, 1990) came into force. The intention was to improve the situation of mentally ill persons involuntarily admitted to psychi-
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atric hospitals. Civil commitment before 1991 was also restricted to dangerousness to self or others, and the sole presence of need for treatment was not considered to be a valid reason. But the new law explicitly targets acute, immediate, and severe danger and defines inpatient treatment as the ultimate alternative. The necessity and unavoidability of acute admission has to be testified independently by two psychiatrists and initiates a legal procedure that lasts approximately 3 weeks and ends with a civil court order that either confirms or rejects the initial psychiatric opinion of the necessity of inpatient treatment. Independently, the hospital is free to discharge such patients at any time; and when doing so it automatically breaks off the civil commitment procedure. Another major change in the new formulation of civil commitment makes legal advisors (“patient-attorneys”) available for the involuntarily admitted patients. These advisors are supposed to assist committed persons and represent their interests in the legal procedure. The Correctional/Forensic Psychiatric System Austria has approximately 8 million inhabitants, a relatively stable social structure, and low rates of migration, substance abuse (except alcohol), and crime. The execution of prison sentences lies within the jurisdiction of the Ministry of Justice, but this Ministry is also responsible for the treatment of mentally ill offenders under criminal commitment (Section 21/1 APC), despite the fact that only two thirds of these offenders are being treated in a special judicial institution (Justizanstalt Göllersdorf), while the remaining one third are still being treated in general psychiatric hospitals (see above).
Correctional/Forensic-Psychiatric Facilities The correctional system (see Table 1) disposes of 17 court-prisons including one for juvenile delinquents in Vienna with 70 places. These prisons, attached to major regional courts, are responsible for remand prisoners and for prisoners serving sentences of mainly less than 1 year. Longer sentences are executed in nine prisons. One of these is for female offenders with 160 places and one for juvenile delinquents with 124 places; both have special departments for responsible mentally ill disordered offenders according to section 21/2 APC. Three of the nine prisons are reserved mainly for (male) offenders with longer to life-long sentences, and all of them have departments for responsible mentally ill offenders under section 21/2 APC. Three institutions are dedicated to special purposes: one, the Justizanstalt Göllersdorf, for the treatment of nonresponsible male mentally ill offenders NGRI (Section 21/1 APC) with 120 beds, one for the treatment of responsible mentally disordered offenders according to section 21/2 APC (131 places) and one for the treatment of substance abusers according to section 22 APC (112 places).
The Inmates Table 1 shows the prevalence rates of inmates of correctional and forensicpsychiatric institutions on October 31, 1998. We find 1,729 remand prisoners,
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TABLE 1 Inmates of Correctional/Forensic-Psychiatric Institutions in Austria (6685 Men, 386 Women, Prevalence October 31st 1998) Pre-trial s 429/4 (s 438) ACCP
Normal m Court/remand prisons (jails)a n ⫽ 17 Prisonsb n ⫽ 9 Special/forensic-psychiatric institutions n ⫽ 3 Psychiatric hospitalsc n⫽9 Total
f
1569 100 — 1 10
Criminal Commitment
—
— — 1579 101
m
f
11 —
3 —
5
—
26 42
4 7
Detention
s 21/1 APC
s 21/2 APC
m
m
m
f
2088 123 2456 115 97
f
2 1 — —
20 118 —
f
— — 98 2
s 22 APC m
f
7 — 1 —
117 — 16
1
— — 60 16 4 — — — 4641 258 180 17 219 2 24 1
ACCP ⫽ Austrian Code of Criminal Procedure, APC ⫽ Austrian Penal Code. a In two court prisons special departments for 22 male inmates with drug abuse. b In each of the 3 prisons for long-term sentences special departments (52 places) for male Section 21/2 APC-inmates (responsible mentally ill offenders), in one of them a special department for 10 male inmates with drug abuse; in the only prison for male juvenile delinquents 12 places for Section 21/2 APC-inmates; in the only women’s-prison a special department for Section 21/2 APC-inmates (14 places). c In 4 of the 9 psychiatric hospitals special departments for non-responsible mentally ill offenders (Section 429/4 ACCP, section 21/1 APC).
including 49 under the special condition of preliminary criminal commitment mostly according to section 429/4 ACCP (only three under Section 438 ACCP). Kept under normal detention are 4,899 persons, 221 of whom as responsible mentally ill offenders (Section 21/2 APC), 25 under commitment because of offenses due to substance addiction (Section 22 APC) and 197 under criminal commitment according to Section 21/1 APC (NGRI). Regarding the capacity of the several institutions (see above) we can see that the Section 22 APC institution is oversized (112 places), so that most of its capacity is used for normal prisoners with substance abuse problems or addiction. The institutions for nonresponsible and responsible mentally ill offenders (Section 21/1 and Section 21/2 APC) are increasingly overcrowded. The male to female ratios for remand and sentenced prisoners are 15.6:1 and 18:1, respectively. In preliminary and definitive criminal commitments we find a different situation: While the male to female ratios for responsible mentally ill offenders according to Section 21/2 APC (mainly persons with severe personality disorders) and Section 22 APC substance abusers are 109.5:1 and 24:1, respectively, the proportion of women among mentally ill offenders in the stricter sense (with organic or functional psychoses, mental retardation) is much higher: The male to female ratio for definitive criminal commitments of nonresponsible offenders (Section 21/1 APC) is 10.6:1, for preliminary (pretrial) ones (Section 429/4 ACCP)—leaving apart the three aforementioned Section 438 ACCP-cases—even 5.6:1. It is noteworthy that the proportion of women increased in the last years (see Beck & Wencel, 1998; Beck, White, & Gage, 1991).
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The Staff (Excluding Administration and Justice Guards) Social, psychological, and psychiatric care in the correctional system has a rather short tradition in Austria. The first social worker was employed in 1955, the first psychologist in 1960, the first psychiatrist as late as 1975. At the moment, for 6,961 inmates (7,071 minus 110 in general psychiatric hospitals) the Ministry of Justice relies upon the services of 26 psychiatrists, 54 psychologists (most of the former and some of the latter are employed part-time), 100 social workers, and 5 occupational therapists. There is, of course, a higher staff to inmate ratio in the three institutions for mentally ill offenders (Section 21/1 and Section 21/2 APC) and section 22 APC substance abusers; together they absorb nearly 60% of all psychiatrists and about one third of all psychologists. This leaves 11 psychiatrists and 37 psychologists for the 6577 inmates in the other institutions (6,961 minus 384 inmates of special institutions).
Special Programs, Special Institutions The situation in the special staff sector (number and distribution) just described answers for the most part the question concerning special systematic programs for certain groups of offenders (e.g., sex offenders or offenders with repeated severe violence) within the regular prison system. Only in 2 of the 17 court (remand) prisons and in one of the three prisons for inmates with longterm sentences do small departments for the treatment of substance abusers exist (total 32 places, see Table 1); in one of the latter there also exists a department for the rehabilitation of prisoners with very long and life-long sentences. Worth mentioning is the implantation of so-called “drug-free zones” in a number of prisons during the last years, where inmates voluntarily undergo drug tests in exchange for certain rewards and privileges. In the special institution for section 22-inmates, predominantly occupied by normal prisoners with substance abuse (see above, also Table 1), a cognitivebehavioral-oriented therapeutic concept with routine drug-testing is offered. This institution is also involved in the rehabilitation of a small number of longterm prisoners in the last stage of their sentences. The special institution for the treatment of responsible mentally ill offenders (Section 21/2 APC) has a tradition of psychodynamically oriented individual psychotherapies—a concept which is now being gradually changed to a more cognitive-behavioral approach.
Mentally Ill Offenders NGRI In a population of 8 million, we counted a total of 1,093 preliminary (pretrial) (Section 429/4 ACCP) and 706 definitive commitments (Section 21/1 APC) between 1975 and 1996 (Schanda, Knecht, & Gruber, in press). Most of the male patients (47%) suffered from schizophrenia, followed by mental deficiency (17%) and organic psychoses (12%); all of them characteristically had high comorbidity rates of substance abuse (mainly alcohol) and personality disorder (see Räsänen et al., 1998; Rice & Harris, 1992; Scott et al., 1998; Steadman et al., 1998; Swartz et al., 1998a). Homicidal offenses and severe
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bodily injuries occurred most frequently with 22% each, followed by property offenses with or without violence (18%) and arson (13%). Sex offenders are seldom found to be NGRI. However, we can find them among responsible mentally ill offenders (Section 21/2 APC). As expected, affective psychoses play a much greater role in women than in men, often in connection with infanticide. According to the legal situation, the distribution of diagnoses and offenses differs substantially from that found in the German data (Section 63 of the German penal code covers Section 21/1 APC, but also parts of Section 21/2 APC, leading to higher prevalences of “pure” personality disorder cases and sex offenses). Sixty-five percent of the 706 definitively committed patients were released prior to 1996 after a mean duration of commitment of 3.4 years (44 days–20.6 years); there were no significant differences between men and women. As mentioned before, since 1985 nearly two thirds of all mentally ill offenders NGRI (Section 21/1 APC) have been treated in a special high security institution (Justizanstalt Göllersdorf) run by the Ministry of Justice, the rest of them in the nine psychiatric hospitals of the country, four of which have small forensic-psychiatric wards. The selection criteria for placement are mainly degree of dangerousness, presence or absence of a personal social environment, and prognosis. Higher degree of dangerousness, lack of social relationships and/or bad prognosis point to placement in the high security institution. There, aside from psychopharmacological treatment, rehabilitation leans heavily on all kinds of group therapies with structured activities and social skills training and focuses primarily on the improvement of insight, compliance, and behavioral deficits. Compared with penal institutions, Göllersdorf enjoys the highest staff to inmate ratio; however, compared with analogous institutions in the mental health system (Schumann, 1993), Göllersdorf’s ratio is more than low. Apart from a larger forensic aftercare institution in Vienna run by the Ministry of Justice and three small forensic outpatient clinics provided by psychiatric university clinics, treatment after conditional release is by and large dependent on the good will of psychiatric hospitals, holders of sheltered care, outpatient clinics, and some psychiatrists in private practice. Many of the discharged mentally ill offenders have to accept as an additional condition of release the services of a probational officer. This can be interpreted not only as a consequence of the intermediate position of the patients between psychiatry and penal law, but also as a pragmatic attempt to compensate the inadequacies of present-day mental health care in coping with the problems created by certain kinds of patients. The Problems in Practice The following section deals mainly with general mental health care and mentally ill offenders NGRI. The “traditional period” of psychiatric care in Austria lasted for a rather long time. Psychiatry reform started in the second half of the 1970s in the capital city of Vienna (approximately 1.5 million inhabitants). In the rest of the country it was initiated much later and is progressing very slowly— partly due to the changed political and financial situation since the 1970s. In practice this means that a substantial reduction of hospital beds and inpatient treatment (minus 49% beds and minus 67% mean length of stay in hospital per
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patient between 1970 and 1990) (Forster, Kandolf, Laburda, & Mixa, 1994) was not sufficiently accompanied by the provision of outpatient facilities. Regarding improvement of mental health care and control of psychiatry, the legislator and his advisers (see Forster, 1997) expected much of the revision of the law governing inpatient civil commitment that came into force in 1991 (Bundesgesetz, 1990). At first sight, the new criteria for commitment did not differ very much from the old version: Before and after 1991, danger to self or others—and not need for treatment—was the main requirement. But the new formulation defines involuntary inpatient admission and treatment explicitly as the ultimate alternative in acute and serious danger, if other less restrictive provisions are not available. In many cases, less restrictive treatment alternatives are certainly available. The only question, which was hardly taken into consideration, is how can a noncompliant, full-blown psychotic patient accept them? However, the decrease of civil commitments, expected by the legislator, did not occur: Despite enormous regional differences, the figures on the whole remained more or less stable at first. But we were confronted with an enormous increase in offenses by mentally ill persons. Investigating this development with respect to male patients (Schanda & Knecht, 1997), we found in male patients a 75% increase of preliminary (pretrial, Section 429/4 ACCP) and a 30% increase of definitive (Section 21/1 APC) criminal commitments in the first 2 years after the new legislature, compared to the 2 years before. Since the total number of involuntary admissions to psychiatric hospitals did not change between 1989 and 1992, one could not conclude that a direct shift from the civil mental health system to the forensic system had taken place. Rather, the ratio between the announcements to court of involuntary admissions to psychiatric hospitals and completed civil commitment procedures turned out to be the crucial figure. The time interval between an involuntary admission and a decision of the civil courts is approximately 3 weeks. As mentioned before, psychiatry is able to release a patient at any stage of the procedure. In those hospitals/regions where the drop-out rates of involuntarily admitted patients within the first 3 weeks of hospitalization were high (i.e., enforced discharge), the number of criminal commitments increased; in those few hospitals/regions where the drop-out rates were rather low, the number of criminal commitments remained stable. Inappropriate enforced/early discharge can occur because offensively acting patient-attorneys may try to avoid involuntary hospitalization at all costs, and because psychiatrists (or judges) may be unfamiliar with risk factors and/or unwilling to be blamed as repressive. Paradoxically, the worst situation could be found in Vienna, despite the fact that the density of outpatient facilities is by far higher than in the rest of the country. But in Vienna we found an enormous decrease in the number of involuntary admissions to mental hospitals since the new civil commitment legislation, potentiated by one of the highest drop-out rates of these patients within the first 3 weeks. So, in 1992 the ratio of completed civil commitment procedures to preliminary criminal commitments in Vienna was only 8:1, in a region with stable criminal commitment figures 200:1 (Schanda & Knecht, 1997). Another finding was that the proportion of preliminary (pretrial) to definitive criminal commitments also changed: While in the last 2 years of the old civil commitment formulation 77% of the Section 429/4 ACCP-patients were
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definitively committed according to section 21/1 APC – a rate which was comparable to that of the last decade—this was the case in only 57% in the first 2 years with the new formulation. In addition, during the same time we could find a change in the pattern of offenses: While the total number of pretrial criminal commitments increased by 75%, those attributed to homicidal offences did so by “only” 50%; however, those ascribed to bodily injury and offenses against freedom (threat, compulsion) increased by 138% and 144%, respectively (Schanda & Knecht, 1997). These findings indicate that an indirect shift of less dangerous patients from the civil mental health system to the forensic system has taken place. In the meantime the prevalence of criminally committed persons, between 105 and 115 in the 10 years before the new legislation, went up to 206 by the end of 1998 (Figure 1). Civil commitments, decreasing continuously in the last 20 years before 1991, increased, after being stable for 2 years, by 50% since 1992 (Forster, 1996). We cannot presume that psychiatrists suddenly changed their position on coercion, nor is it possible to blame the patient-attorneys, the judges, or the law alone for the development described. (Unfortunately, the involved groups sometimes choose this polarizing way of argumentation in their discussions.) Rather, we rather think that the gradual changes in mental health care as a whole have also led to a change in the psychiatrists’ conception of themselves. To protect themselves and their patients from old prejudices, many psychiatrists—like other mental health professionals and interested laymen—show a
FIGURE 1. ---䊉--- Section 429/4 Austrian Code of Criminal Procedure (ACCP), ---䊏--- Section 21/1 Austrian Penal Code (APC).
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tendency to deny unpleasant aspects of clinical reality, mainly with respect to the violent behavior of patients and coercive treatment (Schanda, 1999). The new legislative situation in civil commitment works as a kind of magnifier that makes the existing problems visible and available to scrutiny. In Austria the treatment of mentally ill offenders is a matter of the justice system. This situation favors the opinion of some psychiatrists that they only need to be marginally responsible for the aforementioned aspects of their profession (Gunn & Monahan, 1993). This situation causes a problem in each of the two intersections between general and forensic psychiatry. The effects of insufficient treatment and care for mentally ill people who exhibit violent/illegal behavior have already been described. The second problem arises at the time when the release of mentally ill offenders seems to be appropriate. In the last years it has become increasingly difficult to place such patients in open wards of psychiatric hospitals, sheltered care, or other outpatient facilities, because their staff and administrators have become increasingly reluctant to take on their aftercare, arguing that it is not their task to “solve the problems of Justice.” Moreover, the penal courts that are responsible for release now have less confidence in the ability and willingness of general psychiatry to adequate care of those patients who are ready to be released. The next “logical” step in this development was an economic reform of inpatient funding in 1997. This reform encourages psychiatrists even more to shorten the time of inpatient treatment by means of financial pressure (Meise & Hinterhuber, 1998). So, the treatment of severely mentally ill people—often with a high degree of comorbidity—is not only a difficult (and sometimes unloved) matter for psychiatric hospitals—it is also becoming increasingly unprofitable. Conclusion Despite a relatively favorable situation in Austria regarding crime rates, drug abuse, homelessness, and economic status, mental health care is going in a problematic direction that is well known in the United States and other European countries. One can find comparable financial and ideological arguments and comparable deficits in care-giving and attitudes with respect to certain groups of mentally ill people (see Hollingsworth, 1996; Rössler, 1998; Torrey, 1997). Up until the mid-1990s, many professionals held the opinion that the negative aspects of the development in mental health care found in other countries, cannot be a problem for Austria. Obviously every country has to make its own experiences, because it is hardly capable of learning from the mistakes of its neighbors. What is needed is a general concept that targets the deficits in mental health care as well as in forensic psychiatry. But at the moment, the main action is confined to attempts of the Ministry of Justice to provide beds for the increasing number of mentally ill offenders and to restrain the exploding costs. (When the curve in Figure 1 really is flattening, it still has to remain open. In any case, the annual incidence of new section 21/1 APC-commitments between 1996 and 1998 was twice as high as in the years before 1991, and the prevalence by April 2000 is already 240).
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Pressure of the public and the media after severe incidents induces politicians to promise quick and simple solutions for complex problems. But isolated interventions on the criminal-law side of the system, now under discussion (e.g., conditional criminal commitment), without the aforementioned provisions could turn out as a barrel-burst. New penal laws are no substitutes for knowledge, sense of responsibility, and reality-based long-term conceptions. The more important demands, however, lie in the general mental health sector. But it is much harder to convince the civil legislative branch that there is a need for reforms. And even if, for example, outpatient civil commitment were to exist, whether or not it would work would depend not so much on the formulation of the law, but rather on the quality of its administration by professionals (Geller, 1990; Swartz, Swanson, Hiday, Wagner, & Borum, 1998b). On the other hand, in the last years we have seen a growing interest in forensic psychiatry and also in the aforementioned problems of general mental health care brought about by information campaigns and recent research in this field that have been mostly initiated by the central institution for the treatment of nonresponsible offenders. This research on mentally ill offenders includes treatment aspects, factors influencing release policy and relapse rates, psychopathology of homicidal offenders, frequency of homicidal offenses in comparison with the normal population, shift from the mental health to the justice system. Forensic psychiatry is, after all, slowly becoming more than a neglectable subdiscipline in Austrian psychiatry, and its representatives make themselves increasingly heard. The discussion about a reform of civil guardianship laws for better care of patients at risk can be seen as a first step—albeit still far away from the introduction of case-management or forensic release programs (Porporino & Motiuk, 1995; Wiederanders, Bromley, & Choate, 1997). Time will show whether the new impetus can be used to restrain the trend of the last years.
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Katschnig, H., Grumiller, I., & Strobl, R. (1975a). Daten zur stationären psychiatrischen Versorgung Österreichs, Teil 1: Inzidenz. Wien: Österreichisches Bundesinstitut für Gesundheitswesen. Katschnig, H., Grumiller, I., & Strobl, R. (1975b). Daten zur stationären psychiatrischen Versorgung Österreichs, Teil 2: Prävalenz. Wien: Österreichisches Bundesinstitut für Gesundheitswesen. Meise, U., & Hinterhuber, H. (1998). Leistungsorientierte Krankenhausfinanzierung—Verliert die Psychiatrie? Neuropsychiatrie, 12, 177–186. Porporino, F. J., & Motiuk, L. L. (1995). The prison careers of mentally disordered offenders. International Journal of Law and Psychiatry, 18, 29–44. Räsänen, P., Tiihonen, J., Isohanni, M., Rantakallio, P., Lehtonen, J., & Moring, J. (1998). Schizophrenia, alcohol abuse, and violent behavior: A 26-year followup study of an unselected birth cohort. Schizophrenia Bulletin, 24, 437–440. Rice, M. E., & Harris, G. T. (1992). A comparison of criminal recidivism among schizophrenic and nonschizophrenic offenders. International Journal of Law and Psychiatry, 15, 397–408. Rössler, W. (1998). Psychiatric services. Current Opinion in Psychiatry, 11, 191–195. Schanda, H. (1999). The Ashenputtel-principle in modern mental health care. Criminal Behaviour and Mental Health, 9, 199–204. Schanda, H., & Knecht, G. (1997). Strafrechtliche Folgewirkungen des Unterbringungsgesetzes. Neuropsychiatrie, 11, 154–160. Schanda, H., & Knecht, G. (1998). Der Umgang der Psychiatrie mit Gewalttätern. In R. Müller-Isberner & S. Gonzalez Cabeza (Eds.), Forensische Psychiatrie aktuell (pp. 109–122). Bad Godesberg: Forum-Verlag. Schanda, H., Knecht, G., & Gruber, K. (in press). Zur Situation des Maßnahmenvollzugs nach § 21/1 StGB. In K. Gutierrez & B. Schmid-Siegel (Eds.), Lehrbuch der Forensischen Psychiatrie. Wien: Maudrich. Schumann, V. (1993). Maßstäbe und Grundsätze für die Personalausstattung von forensisch-psychiatrischen Einrichtungen für Erwachsene – Ein Entwurf. Recht und Psychiatrie, 11, 11–17. Scott, H., Johnson, S., Menezes, P., Thornicroft, G., Marshall, J., Bindman, J., Bebbington, P., & Kuipers, E. (1998). Substance misuse and risk of aggression and offending among the severely mentally ill. British Journal of Psychiatry, 172, 345–350. Sluga, W. (1977). Geisteskranke Rechtsbrecher. Wien, München: Manz. Steadman, H. J., Mulvey, E. P., Monahan, J., Clark Robbins, P., Appelbaum, P. S., Grisso, T., Roth, L., & Silver, E. (1998). Violence by people discharged from acute psychiatric inpatient facilities and others in the same neighborhoods. Archives of General Psychiatry, 55, 393–401. Swartz, M., Swanson, J., Hiday, V. A., Borum, R., Wagner, H. R., & Burns, B. J. (1998a). Violence and severe mental illness: The effects of substance abuse and nonadherance to medication. American Journal of Psychiatry, 155, 226–231. Swartz, M., Swanson, J., Hiday, V. A., Wagner, H. R., & Borum, R. (1998b). Does involuntary outpatient commitment reduce hospital readmissions among violent patients? 23rd International Congress on Law and Mental Health, Paris, June 28–July 3. Torrey, E. F. (1997). Out of the shadows. Confronting America’s mental illness crisis. New York: John Wiley and Sons. Wiederanders, M. R., Bromley, D. L., & Choate, P. A. (1997). Forensic conditional release programs and outcomes in three states. International Journal of Law and Psychiatry, 20, 249–257.
PII S0160-2527(00)00045-5
The Situation of Forensic Psychiatry in Austria Setback or Progress? Hans Schanda,* Gerhard Ortwein-Swoboda,† Guntram Knecht,‡ and Klaus Gruber§
Introduction Along general lines, the development of mental health care in Austria can be compared with that in other European countries—modified (mainly delayed) by two important historical events: The fall of the Empire at the end of the First World War changed Austria into a small, poor country with existential problems and severe social and political conflicts. Twenty-five years later, the Nazi regime and the Second World War left behind a destroyed country, in which the main interest was economic stabilization. The compensation of fundamental deficits in the care for the mentally ill, inseparably connected with a painful remembrance of the past years, did not belong to the urgent needs of health policy. So, up until the 1970s, mental health care was mainly confined to traditional inpatient treatment in psychiatric hospitals with high rates of involuntary admissions (Katschnig, Grumiller, & Strobl, 1975a,b). The situation for mentally ill offenders was unchanged with respect to the previous decades: If a patient was found to be not guilty by reason of insanity (NGRI), he was exculpated and handed over to the regional psychiatric hospital for further treatment without any control or surveillance by court (Schanda & Knecht 1998). In the course of a penal reform in 1975, the treatment of mentally ill offenders NGRI came under the competence of the Ministry of Justice. This change met the interests of the psychiatrists in the mental hospitals, who saw the forensicpsychiatric patients as an obstacle for opening the wards and other reforms. *Associate Professor of Psychiatry, Medical Director of Justizanstalt Göllersdorf, Göllersdorf, Austria. †Psychiatrist, Justizanstalt Göllersdorf, Göllersdorf, Austria. ‡Assistant Professor of Psychiatry, Psychiatric University Clinic Vienna and Justizanstalt Göllersdorf, Göllersdorf, Austria. §Clinical Psychologist, Justizanstalt Göllersdorf, Göllersdorf, Austria. Address correspondence and reprint requests to Dr. Hans Schanda, Justizanstalt Göllersdorf, 2013 Göllersdorf 17, Austria. 481
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There is a meaningful difference between this new situation in Austria and that in other countries, such as Germany, where criminal commitment lies within the competence of the mental health system—meaningful not only regarding the expenditures, but also regarding the opinion of politicians and the public on the relationship between mental illness and crime; it is also meaningful for the way in which general psychiatry regards all those aspects of treatment dealing directly or indirectly with aggressive behavior in psychiatric patients. From 1975 on, the patients were to be committed by the courts to inpatient treatment at a special institution for an indefinite period of time. But the designated institution was only in planning at that time. So, despite new formal judicial conditions, in practice things did not change very much during the following years for the mentally disordered criminals: They all continued to be treated in the hospitals (Schanda & Knecht, 1998). Regarding all aspects of treatment of mentally ill offenders NGRI, the psychiatric hospitals were not provided with any legal supervision, despite the fact that they were formally under control of the Ministry of Justice, according to three sections of a law regulating the execution of every kind of judicial sentence/detention/commitment. The new law also prescribed criminal commitment for those mentally disturbed offenders who were found to be responsible for their offenses although they had acted under severe “mental abnormality.” Some of these persons were kept in special departments of regular prisons, some of them in a special prison in Vienna with better inmate to therapeutic staff ratio. Official university representation of forensic-psychiatric sciences in Austria was and still is confined to one university institute, not surprisingly belonging to a faculty of law, mainly occupied with the preparation of expert opinions for the courts. The next phase was initiated in 1985 with the opening of the aforementioned central institution for mentally ill offenders NGRI (Justizanstalt Göllersdorf), disburdening the psychiatric hospitals of approximately two thirds of all male forensic patients. The changes in general mental health care began in Vienna with the psychiatry reform at the end of the 1970s, in the rest of the country with the sectorization of inpatient treatment at the beginning of the 1990s. The reforms in the outpatient sector are coming along rather sluggishly, and nobody knows when they will be finished. The last steps in mental health reforms were a new formulation of (inpatient) civil commitment in 1991, replacing the old version, which was based on the incapacitation order of 1916, and a reform of the funding of inpatient treatment in 1997. The Legal Situation Austrian law sees the “will to harm” as prerequisite for criminal culpability, which can be traced back to the Constitutio Criminalis Theresiana from 1770 (Sluga, 1977). Section 11 of the Austrian Penal Code (APC) (Foregger, 1997a), coming into force in 1975, says that lack of “discretion” and/or “disposition” at the time of offense, caused by functional or organic psychoses, severe intellectual disability, or other pathological mental states equal to the aforementioned conditions, makes a person not guilty. The terms discretion and disposition
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correspond by and large with the McNaughten rules of Anglo-American jurisdiction (Appelbaum, 1998). In the case of a mental state according to section 11 APC in causal connection with a minor offense (misdemeanors, potential penalty of less than 1 year) the offending person has to be set free. In the case of a mental state, according to section 11 APC in causal connection with a major offense (felonies, potential penalty of more than 1 year), together with a high probability of further illness-related severe offenses, the person has to be committed for an indefinite period of time according to section 21/1 APC (Foregger, 1997a), until the illness-related “specific dangerousness” is substantially reduced. In contrary to German law, for example, the APC does not provide for the possibility of diminished responsibility. However, if the offense (penalty more than 1 year) was committed not under the conditions of section 11 APC, but under the influence of a “higher degree of mental abnormality” (mainly targeting severer forms of personality disorder) in connection with the “specific dangerousness” prognosis (see Section 21/1 APC), commitment for an indefinite period of time is possible parallel to a prison sentence (Section 21/2 APC) (Foregger, 1997a). The requirement of further inpatient treatment for a mentally ill offender has to be reconsidered once a year by the penal courts. Release (Section 47 APC) (Foregger, 1997a) is in any case probational for 5 or 10 years, depending on the severity of the index offense (and not on illness-related prognosis that is much in keeping with reality). Criminal commitment—but only for a maximum of 2 years, and if total duration of the sentence is 2 years or less—is possible for people with offenses due to substance abuse (Section 22 APC) (Foregger, 1997a), if a positive change in the behavioral/addictive pattern by specific treatment can be expected. A special form of commitment for a maximum of 10 years beyond the prison sentence was preserved for criminals with repeated severe offensive behavior (Section 23 APC). But it turned out that in the last two decades this kind of commitment, although intended for persons with persistent dangerous/ aggressive behavior, was primarily applied to offenders with minor property offenses. It is now a more or less dead law, and there is currently only one prisoner committed under this section. Mentally ill remand prisoners are mainly treated in regional psychiatric hospitals according to section 429/4 Austrian Code of Criminal Procedure (ACCP) (Foregger, 1997a). So section 429/4 ACCP can be seen as the (potential) precursor of criminal commitment for mentally ill offenders NGRI (Section 21/1 APC). Naturally, not all pretrial commitments under section 429/4 ACCP are followed by definitive commitment according to section 21/1 APC. If sufficient treatment during the remand (pretrial) period, usually spent in a psychiatric hospital, is able to sufficiently improve a poor illness-related prognosis, the patient has to be set free. The analogue for preliminary (pretrial) commitment in responsible mentally ill offenders is defined in section 438 ACCP; however, just a few persons are waiting for trial under this section. In 1991, the aforementioned new formulation of civil commitment (Unterbringungsgesetz) (Bundesgesetz, 1990) came into force. The intention was to improve the situation of mentally ill persons involuntarily admitted to psychi-
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atric hospitals. Civil commitment before 1991 was also restricted to dangerousness to self or others, and the sole presence of need for treatment was not considered to be a valid reason. But the new law explicitly targets acute, immediate, and severe danger and defines inpatient treatment as the ultimate alternative. The necessity and unavoidability of acute admission has to be testified independently by two psychiatrists and initiates a legal procedure that lasts approximately 3 weeks and ends with a civil court order that either confirms or rejects the initial psychiatric opinion of the necessity of inpatient treatment. Independently, the hospital is free to discharge such patients at any time; and when doing so it automatically breaks off the civil commitment procedure. Another major change in the new formulation of civil commitment makes legal advisors (“patient-attorneys”) available for the involuntarily admitted patients. These advisors are supposed to assist committed persons and represent their interests in the legal procedure. The Correctional/Forensic Psychiatric System Austria has approximately 8 million inhabitants, a relatively stable social structure, and low rates of migration, substance abuse (except alcohol), and crime. The execution of prison sentences lies within the jurisdiction of the Ministry of Justice, but this Ministry is also responsible for the treatment of mentally ill offenders under criminal commitment (Section 21/1 APC), despite the fact that only two thirds of these offenders are being treated in a special judicial institution (Justizanstalt Göllersdorf), while the remaining one third are still being treated in general psychiatric hospitals (see above).
Correctional/Forensic-Psychiatric Facilities The correctional system (see Table 1) disposes of 17 court-prisons including one for juvenile delinquents in Vienna with 70 places. These prisons, attached to major regional courts, are responsible for remand prisoners and for prisoners serving sentences of mainly less than 1 year. Longer sentences are executed in nine prisons. One of these is for female offenders with 160 places and one for juvenile delinquents with 124 places; both have special departments for responsible mentally ill disordered offenders according to section 21/2 APC. Three of the nine prisons are reserved mainly for (male) offenders with longer to life-long sentences, and all of them have departments for responsible mentally ill offenders under section 21/2 APC. Three institutions are dedicated to special purposes: one, the Justizanstalt Göllersdorf, for the treatment of nonresponsible male mentally ill offenders NGRI (Section 21/1 APC) with 120 beds, one for the treatment of responsible mentally disordered offenders according to section 21/2 APC (131 places) and one for the treatment of substance abusers according to section 22 APC (112 places).
The Inmates Table 1 shows the prevalence rates of inmates of correctional and forensicpsychiatric institutions on October 31, 1998. We find 1,729 remand prisoners,
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TABLE 1 Inmates of Correctional/Forensic-Psychiatric Institutions in Austria (6685 Men, 386 Women, Prevalence October 31st 1998) Pre-trial s 429/4 (s 438) ACCP
Normal m Court/remand prisons (jails)a n ⫽ 17 Prisonsb n ⫽ 9 Special/forensic-psychiatric institutions n ⫽ 3 Psychiatric hospitalsc n⫽9 Total
f
1569 100 — 1 10
Criminal Commitment
—
— — 1579 101
m
f
11 —
3 —
5
—
26 42
4 7
Detention
s 21/1 APC
s 21/2 APC
m
m
m
f
2088 123 2456 115 97
f
2 1 — —
20 118 —
f
— — 98 2
s 22 APC m
f
7 — 1 —
117 — 16
1
— — 60 16 4 — — — 4641 258 180 17 219 2 24 1
ACCP ⫽ Austrian Code of Criminal Procedure, APC ⫽ Austrian Penal Code. a In two court prisons special departments for 22 male inmates with drug abuse. b In each of the 3 prisons for long-term sentences special departments (52 places) for male Section 21/2 APC-inmates (responsible mentally ill offenders), in one of them a special department for 10 male inmates with drug abuse; in the only prison for male juvenile delinquents 12 places for Section 21/2 APC-inmates; in the only women’s-prison a special department for Section 21/2 APC-inmates (14 places). c In 4 of the 9 psychiatric hospitals special departments for non-responsible mentally ill offenders (Section 429/4 ACCP, section 21/1 APC).
including 49 under the special condition of preliminary criminal commitment mostly according to section 429/4 ACCP (only three under Section 438 ACCP). Kept under normal detention are 4,899 persons, 221 of whom as responsible mentally ill offenders (Section 21/2 APC), 25 under commitment because of offenses due to substance addiction (Section 22 APC) and 197 under criminal commitment according to Section 21/1 APC (NGRI). Regarding the capacity of the several institutions (see above) we can see that the Section 22 APC institution is oversized (112 places), so that most of its capacity is used for normal prisoners with substance abuse problems or addiction. The institutions for nonresponsible and responsible mentally ill offenders (Section 21/1 and Section 21/2 APC) are increasingly overcrowded. The male to female ratios for remand and sentenced prisoners are 15.6:1 and 18:1, respectively. In preliminary and definitive criminal commitments we find a different situation: While the male to female ratios for responsible mentally ill offenders according to Section 21/2 APC (mainly persons with severe personality disorders) and Section 22 APC substance abusers are 109.5:1 and 24:1, respectively, the proportion of women among mentally ill offenders in the stricter sense (with organic or functional psychoses, mental retardation) is much higher: The male to female ratio for definitive criminal commitments of nonresponsible offenders (Section 21/1 APC) is 10.6:1, for preliminary (pretrial) ones (Section 429/4 ACCP)—leaving apart the three aforementioned Section 438 ACCP-cases—even 5.6:1. It is noteworthy that the proportion of women increased in the last years (see Beck & Wencel, 1998; Beck, White, & Gage, 1991).
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The Staff (Excluding Administration and Justice Guards) Social, psychological, and psychiatric care in the correctional system has a rather short tradition in Austria. The first social worker was employed in 1955, the first psychologist in 1960, the first psychiatrist as late as 1975. At the moment, for 6,961 inmates (7,071 minus 110 in general psychiatric hospitals) the Ministry of Justice relies upon the services of 26 psychiatrists, 54 psychologists (most of the former and some of the latter are employed part-time), 100 social workers, and 5 occupational therapists. There is, of course, a higher staff to inmate ratio in the three institutions for mentally ill offenders (Section 21/1 and Section 21/2 APC) and section 22 APC substance abusers; together they absorb nearly 60% of all psychiatrists and about one third of all psychologists. This leaves 11 psychiatrists and 37 psychologists for the 6577 inmates in the other institutions (6,961 minus 384 inmates of special institutions).
Special Programs, Special Institutions The situation in the special staff sector (number and distribution) just described answers for the most part the question concerning special systematic programs for certain groups of offenders (e.g., sex offenders or offenders with repeated severe violence) within the regular prison system. Only in 2 of the 17 court (remand) prisons and in one of the three prisons for inmates with longterm sentences do small departments for the treatment of substance abusers exist (total 32 places, see Table 1); in one of the latter there also exists a department for the rehabilitation of prisoners with very long and life-long sentences. Worth mentioning is the implantation of so-called “drug-free zones” in a number of prisons during the last years, where inmates voluntarily undergo drug tests in exchange for certain rewards and privileges. In the special institution for section 22-inmates, predominantly occupied by normal prisoners with substance abuse (see above, also Table 1), a cognitivebehavioral-oriented therapeutic concept with routine drug-testing is offered. This institution is also involved in the rehabilitation of a small number of longterm prisoners in the last stage of their sentences. The special institution for the treatment of responsible mentally ill offenders (Section 21/2 APC) has a tradition of psychodynamically oriented individual psychotherapies—a concept which is now being gradually changed to a more cognitive-behavioral approach.
Mentally Ill Offenders NGRI In a population of 8 million, we counted a total of 1,093 preliminary (pretrial) (Section 429/4 ACCP) and 706 definitive commitments (Section 21/1 APC) between 1975 and 1996 (Schanda, Knecht, & Gruber, in press). Most of the male patients (47%) suffered from schizophrenia, followed by mental deficiency (17%) and organic psychoses (12%); all of them characteristically had high comorbidity rates of substance abuse (mainly alcohol) and personality disorder (see Räsänen et al., 1998; Rice & Harris, 1992; Scott et al., 1998; Steadman et al., 1998; Swartz et al., 1998a). Homicidal offenses and severe
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bodily injuries occurred most frequently with 22% each, followed by property offenses with or without violence (18%) and arson (13%). Sex offenders are seldom found to be NGRI. However, we can find them among responsible mentally ill offenders (Section 21/2 APC). As expected, affective psychoses play a much greater role in women than in men, often in connection with infanticide. According to the legal situation, the distribution of diagnoses and offenses differs substantially from that found in the German data (Section 63 of the German penal code covers Section 21/1 APC, but also parts of Section 21/2 APC, leading to higher prevalences of “pure” personality disorder cases and sex offenses). Sixty-five percent of the 706 definitively committed patients were released prior to 1996 after a mean duration of commitment of 3.4 years (44 days–20.6 years); there were no significant differences between men and women. As mentioned before, since 1985 nearly two thirds of all mentally ill offenders NGRI (Section 21/1 APC) have been treated in a special high security institution (Justizanstalt Göllersdorf) run by the Ministry of Justice, the rest of them in the nine psychiatric hospitals of the country, four of which have small forensic-psychiatric wards. The selection criteria for placement are mainly degree of dangerousness, presence or absence of a personal social environment, and prognosis. Higher degree of dangerousness, lack of social relationships and/or bad prognosis point to placement in the high security institution. There, aside from psychopharmacological treatment, rehabilitation leans heavily on all kinds of group therapies with structured activities and social skills training and focuses primarily on the improvement of insight, compliance, and behavioral deficits. Compared with penal institutions, Göllersdorf enjoys the highest staff to inmate ratio; however, compared with analogous institutions in the mental health system (Schumann, 1993), Göllersdorf’s ratio is more than low. Apart from a larger forensic aftercare institution in Vienna run by the Ministry of Justice and three small forensic outpatient clinics provided by psychiatric university clinics, treatment after conditional release is by and large dependent on the good will of psychiatric hospitals, holders of sheltered care, outpatient clinics, and some psychiatrists in private practice. Many of the discharged mentally ill offenders have to accept as an additional condition of release the services of a probational officer. This can be interpreted not only as a consequence of the intermediate position of the patients between psychiatry and penal law, but also as a pragmatic attempt to compensate the inadequacies of present-day mental health care in coping with the problems created by certain kinds of patients. The Problems in Practice The following section deals mainly with general mental health care and mentally ill offenders NGRI. The “traditional period” of psychiatric care in Austria lasted for a rather long time. Psychiatry reform started in the second half of the 1970s in the capital city of Vienna (approximately 1.5 million inhabitants). In the rest of the country it was initiated much later and is progressing very slowly— partly due to the changed political and financial situation since the 1970s. In practice this means that a substantial reduction of hospital beds and inpatient treatment (minus 49% beds and minus 67% mean length of stay in hospital per
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patient between 1970 and 1990) (Forster, Kandolf, Laburda, & Mixa, 1994) was not sufficiently accompanied by the provision of outpatient facilities. Regarding improvement of mental health care and control of psychiatry, the legislator and his advisers (see Forster, 1997) expected much of the revision of the law governing inpatient civil commitment that came into force in 1991 (Bundesgesetz, 1990). At first sight, the new criteria for commitment did not differ very much from the old version: Before and after 1991, danger to self or others—and not need for treatment—was the main requirement. But the new formulation defines involuntary inpatient admission and treatment explicitly as the ultimate alternative in acute and serious danger, if other less restrictive provisions are not available. In many cases, less restrictive treatment alternatives are certainly available. The only question, which was hardly taken into consideration, is how can a noncompliant, full-blown psychotic patient accept them? However, the decrease of civil commitments, expected by the legislator, did not occur: Despite enormous regional differences, the figures on the whole remained more or less stable at first. But we were confronted with an enormous increase in offenses by mentally ill persons. Investigating this development with respect to male patients (Schanda & Knecht, 1997), we found in male patients a 75% increase of preliminary (pretrial, Section 429/4 ACCP) and a 30% increase of definitive (Section 21/1 APC) criminal commitments in the first 2 years after the new legislature, compared to the 2 years before. Since the total number of involuntary admissions to psychiatric hospitals did not change between 1989 and 1992, one could not conclude that a direct shift from the civil mental health system to the forensic system had taken place. Rather, the ratio between the announcements to court of involuntary admissions to psychiatric hospitals and completed civil commitment procedures turned out to be the crucial figure. The time interval between an involuntary admission and a decision of the civil courts is approximately 3 weeks. As mentioned before, psychiatry is able to release a patient at any stage of the procedure. In those hospitals/regions where the drop-out rates of involuntarily admitted patients within the first 3 weeks of hospitalization were high (i.e., enforced discharge), the number of criminal commitments increased; in those few hospitals/regions where the drop-out rates were rather low, the number of criminal commitments remained stable. Inappropriate enforced/early discharge can occur because offensively acting patient-attorneys may try to avoid involuntary hospitalization at all costs, and because psychiatrists (or judges) may be unfamiliar with risk factors and/or unwilling to be blamed as repressive. Paradoxically, the worst situation could be found in Vienna, despite the fact that the density of outpatient facilities is by far higher than in the rest of the country. But in Vienna we found an enormous decrease in the number of involuntary admissions to mental hospitals since the new civil commitment legislation, potentiated by one of the highest drop-out rates of these patients within the first 3 weeks. So, in 1992 the ratio of completed civil commitment procedures to preliminary criminal commitments in Vienna was only 8:1, in a region with stable criminal commitment figures 200:1 (Schanda & Knecht, 1997). Another finding was that the proportion of preliminary (pretrial) to definitive criminal commitments also changed: While in the last 2 years of the old civil commitment formulation 77% of the Section 429/4 ACCP-patients were
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definitively committed according to section 21/1 APC – a rate which was comparable to that of the last decade—this was the case in only 57% in the first 2 years with the new formulation. In addition, during the same time we could find a change in the pattern of offenses: While the total number of pretrial criminal commitments increased by 75%, those attributed to homicidal offences did so by “only” 50%; however, those ascribed to bodily injury and offenses against freedom (threat, compulsion) increased by 138% and 144%, respectively (Schanda & Knecht, 1997). These findings indicate that an indirect shift of less dangerous patients from the civil mental health system to the forensic system has taken place. In the meantime the prevalence of criminally committed persons, between 105 and 115 in the 10 years before the new legislation, went up to 206 by the end of 1998 (Figure 1). Civil commitments, decreasing continuously in the last 20 years before 1991, increased, after being stable for 2 years, by 50% since 1992 (Forster, 1996). We cannot presume that psychiatrists suddenly changed their position on coercion, nor is it possible to blame the patient-attorneys, the judges, or the law alone for the development described. (Unfortunately, the involved groups sometimes choose this polarizing way of argumentation in their discussions.) Rather, we rather think that the gradual changes in mental health care as a whole have also led to a change in the psychiatrists’ conception of themselves. To protect themselves and their patients from old prejudices, many psychiatrists—like other mental health professionals and interested laymen—show a
FIGURE 1. ---䊉--- Section 429/4 Austrian Code of Criminal Procedure (ACCP), ---䊏--- Section 21/1 Austrian Penal Code (APC).
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tendency to deny unpleasant aspects of clinical reality, mainly with respect to the violent behavior of patients and coercive treatment (Schanda, 1999). The new legislative situation in civil commitment works as a kind of magnifier that makes the existing problems visible and available to scrutiny. In Austria the treatment of mentally ill offenders is a matter of the justice system. This situation favors the opinion of some psychiatrists that they only need to be marginally responsible for the aforementioned aspects of their profession (Gunn & Monahan, 1993). This situation causes a problem in each of the two intersections between general and forensic psychiatry. The effects of insufficient treatment and care for mentally ill people who exhibit violent/illegal behavior have already been described. The second problem arises at the time when the release of mentally ill offenders seems to be appropriate. In the last years it has become increasingly difficult to place such patients in open wards of psychiatric hospitals, sheltered care, or other outpatient facilities, because their staff and administrators have become increasingly reluctant to take on their aftercare, arguing that it is not their task to “solve the problems of Justice.” Moreover, the penal courts that are responsible for release now have less confidence in the ability and willingness of general psychiatry to adequate care of those patients who are ready to be released. The next “logical” step in this development was an economic reform of inpatient funding in 1997. This reform encourages psychiatrists even more to shorten the time of inpatient treatment by means of financial pressure (Meise & Hinterhuber, 1998). So, the treatment of severely mentally ill people—often with a high degree of comorbidity—is not only a difficult (and sometimes unloved) matter for psychiatric hospitals—it is also becoming increasingly unprofitable. Conclusion Despite a relatively favorable situation in Austria regarding crime rates, drug abuse, homelessness, and economic status, mental health care is going in a problematic direction that is well known in the United States and other European countries. One can find comparable financial and ideological arguments and comparable deficits in care-giving and attitudes with respect to certain groups of mentally ill people (see Hollingsworth, 1996; Rössler, 1998; Torrey, 1997). Up until the mid-1990s, many professionals held the opinion that the negative aspects of the development in mental health care found in other countries, cannot be a problem for Austria. Obviously every country has to make its own experiences, because it is hardly capable of learning from the mistakes of its neighbors. What is needed is a general concept that targets the deficits in mental health care as well as in forensic psychiatry. But at the moment, the main action is confined to attempts of the Ministry of Justice to provide beds for the increasing number of mentally ill offenders and to restrain the exploding costs. (When the curve in Figure 1 really is flattening, it still has to remain open. In any case, the annual incidence of new section 21/1 APC-commitments between 1996 and 1998 was twice as high as in the years before 1991, and the prevalence by April 2000 is already 240).
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Pressure of the public and the media after severe incidents induces politicians to promise quick and simple solutions for complex problems. But isolated interventions on the criminal-law side of the system, now under discussion (e.g., conditional criminal commitment), without the aforementioned provisions could turn out as a barrel-burst. New penal laws are no substitutes for knowledge, sense of responsibility, and reality-based long-term conceptions. The more important demands, however, lie in the general mental health sector. But it is much harder to convince the civil legislative branch that there is a need for reforms. And even if, for example, outpatient civil commitment were to exist, whether or not it would work would depend not so much on the formulation of the law, but rather on the quality of its administration by professionals (Geller, 1990; Swartz, Swanson, Hiday, Wagner, & Borum, 1998b). On the other hand, in the last years we have seen a growing interest in forensic psychiatry and also in the aforementioned problems of general mental health care brought about by information campaigns and recent research in this field that have been mostly initiated by the central institution for the treatment of nonresponsible offenders. This research on mentally ill offenders includes treatment aspects, factors influencing release policy and relapse rates, psychopathology of homicidal offenders, frequency of homicidal offenses in comparison with the normal population, shift from the mental health to the justice system. Forensic psychiatry is, after all, slowly becoming more than a neglectable subdiscipline in Austrian psychiatry, and its representatives make themselves increasingly heard. The discussion about a reform of civil guardianship laws for better care of patients at risk can be seen as a first step—albeit still far away from the introduction of case-management or forensic release programs (Porporino & Motiuk, 1995; Wiederanders, Bromley, & Choate, 1997). Time will show whether the new impetus can be used to restrain the trend of the last years.
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