The Paradox of Psychopathy

Many would advocate a laissez-faire approach to persons with psychopathic disorders. If they do not appear to be suffering and motivated, attempts to treat these patients might be wasted efforts. Civil commitment is inappropriate because the disorder does not cognitively disturb their ability to consent. In Foucha v Louisiana,¹¹ a psychopathically disordered insanity acquittee had to be released from involuntary hospitalization because, even if dangerous, he lacked a mental illness for which continued hospitalization would be justified. If, however, a person with psychopathy violates criminal law, he is subject to punishment, including imprisonment, just as any other person. Incarceration to punish the person and protect society is preferred over treatment and civil commitment. Criminal intervention is reactive, not proactive, and retributive justice is blind to whether the person has a personality disorder.

Involuntary hospital commitment is most easily justified when the unwilling patient has a mental disorder that deprives him or her of the capacity to consent, is amenable to psychiatric treatment, and creates a serious risk of harm to himself or others. Psychopathy alone statistically elevates the risk of harm to others but does not result in incapacity to consent and is not generally considered responsive to standard psychiatric treatments.

In Zinermon v Burch,¹² the US Supreme Court noted that Burch was voluntarily admitted to a hospital and no attempt was made to ascertain whether he was competent to sign the voluntary admission forms. This and the resultant deprivation of liberty was sufficient to state a claim in Federal Court. Of course, those with psychopathy alone should be competent to voluntarily agree to hospitalization. The US Supreme Court's Burch decision¹² notwithstanding, many patients have historically been and many continue to be hospitalized voluntarily and involuntarily without having been found legally incompetent to make treatment decisions. Those who are hospitalized involuntarily show a wide range of decisional capabilities.

Most committed patients eventually benefit from treatment sufficiently to qualify for hospital discharge. Depending on jurisdictional law, some persons with developmental disabilities and sexual offenders are subject to long confinement with little to suggest the possibility of recovery as a result of treatment. Historically, persons with mental illnesses were sometimes committed for life, before the advent of effective psychotropic medicine. Whether the patient is likely to respond to inpatient treatment is an important consideration for civil commitment, but amenability to treatment per se is not necessarily dispositive.

To address the risk of personal violence or harm to others, 3 qualities must be assessed: the seriousness of the risk, its likelihood, and its proximity in time.¹³ Even if unlikely to occur immediately, a risk that appears serious and near-certain must be considered grave. If violence is about to occur, its seriousness need not be extremely catastrophic to justify intervention.

When the risk is secondary to psychotic agitation associated with schizophrenia, the application of these 3 considerations: treatment decision capacity, treatment amenability, and risk—is straightforward for purposes of addressing the overall appropriateness and specific jurisdictional legal criteria for involuntary hospitalization. For the remitting patient with schizophrenia who is also psychopathic, the matter becomes more complicated. If he is no longer considered high risk, the patient may not qualify for involuntary hospitalization. However, if the patient with schizophrenia is also psychopathic, psychopathy cannot be overlooked because psychopathy may increase the risk of present and future aggression more than schizophrenia alone.

Joyal and colleagues¹⁴ suggest that many index crimes, even when perpetrated by patients with schizophrenia, are actually driven by aspects of their disordered personality. Any significant aggression during active psychosis can reasonably be attributed to the psychosis for purposes of justifying civil commitment, even if the exact causal mechanism cannot be demonstrated and psychopathy may have contributed. Once the psychotic and other schizophrenic symptoms have dissipated, the risk of aggression due to psychopathy in the distant future would not justify continued commitment under the standard civil commitment law for mental illness.

A gray area is the impulsive aggression that can persist after psychotic symptoms have subsided. Conceptually, such aggression can represent incomplete control of schizophrenic symptoms, such as persistent impairment of frontal lobe functions, the impulsive aggression seen in psychopathy, or a third comorbidity such as intermittent explosive disorder. Regardless, it can be difficult to sort out the exact origin in the patient with both schizophrenia and psychopathy. Because the aggression is out of the patient's control and can reasonably be expected to respond to appropriate treatment, we recommend erring in the direction of hospital treatment, supported by involuntary court order if necessary.

Hospital discharge planning must take into account environmental factors that can interact with psychopathic features with resultant recurrence of aggressive and antisocial behaviors and psychotic decompensation. Such risk-enhancing factors include availability of weapons, street drugs, and adversely influencing people such as members of criminal gangs. To be optimally effective, any therapy or programming begun in the hospital should be continued in the community following discharge.

Much remains to be learned through basic and clinical research about developing strategies to help those with psychopathic disorders lead more constructive and meaningful lives, or at least to minimize the risk of harming others and inviting harm to themselves. Paradoxically, persons who have psychopathic disorders may well be more "predictably" aggressive than those with other disorders, yet their reputation for untreatability and uncommitability is not without foundation. Nonetheless, the assessment of psychopathy can be useful in establishing a total treatment context for addressing common co- occurring conditions such as substance abuse and impulsive aggression, as well as major mental illness such as schizophrenia.