International Journal of Law and Psychiatry 32 (2009) 377–382

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International Journal of Law and Psychiatry

Mentally disordered criminal offenders: Legal and criminological perspectives

Moa Kindström Dahlin a,⁎, Clara Hellner Gumpert b, Marie Torstensson-Levander c,
Lupita Svensson c, Susanna Radovic d
a
Stockholm University, Sweden
b
Karolinska Institutet, Sweden
c
Malmö University, Sweden
d
University of Gothenburg, Sweden

a r t i c l e i n f o a b s t r a c t

Keywords: Legal research in Sweden has traditionally focused on a systematization of the legal rules and their practical
Criminology application, while the task of studying the effects of the application of the laws has been handed over to other
Criminal offender branches of the social sciences. In contrast, new legal theories focusing on proactive and therapeutic dimensions in
Compulsory psychiatric care law have gained increasing attention in the international arena. These approaches may be better suited for
Forensic psychiatry
evaluating legislation governing compulsory psychiatric care. Theoretical discussions and studies of causal
Proactive law
Severe mental disorder
mechanisms underlying criminal behaviour, as well as the implementation and value of instruments for
predicting behaviour, are relevant to contemporary criminological research. Criminal behaviour varies across
different groups of perpetrators, and the causes can be sought in the interplay between the individual and social
factors. Multi-disciplinary efforts, integrating research from forensic psychiatry, psychology, sociology, and
criminology, would be beneficial in leading to a better understanding of the causes underlying criminal behaviour.
© 2009 Elsevier Ltd. All rights reserved.

1. Introduction
Specific regulations concerning mentally disordered criminal offen-
ders are found in almost every legal system. The idea that an offender
suffering from a mental disorder should receive special treatment in the
penal process is deeply rooted in most societies. Another cornerstone of
penal law is the legal principle of guilt — that persons breaking the law
without being mentally or physically able to possess the required intent
should not be punished. Consequently, the perpetrator according to
most penal systems is required to be mentally sane to be ascribed legal
responsibility. The Swedish system constitutes one of few exceptions to
this rule, in that a person who has committed a crime under the
influence of a severe mental disorder is not exempted from legal
responsibility. If a person commits a crime under the influence of a
severe mental disorder, the court may sentence him or her to forensic
psychiatric care according to Section 31:3 of the Swedish Penal Code
(1962:700).1 Note that the court still has to prove the existence of
criminal intent for offenders that are judged severely mentally
⁎ Corresponding author. Department of Law, Stockholm University, 106 91 Stock-
holm, Sweden. Tel.: +46 8 16 35 49.
E-mail address: moa.kindstrom-dahlin@juridicum.su.se (M.K. Dahlin).
1
The citation system for Swedish legislation is year of adoption, and then
chronological number as addressed by the Swedish Parliament. The Swedish criminal
code thus was adopted in 1962 and was the 700th measure addressed by the
Parliament that year. Section 31:1 refers to the Section 1 of Chapter 31 of the code.
Swedish legislation is available in Swedish at www.notisum.se and www.lagrummet.se.
An English translation of the Penal Code is available from the website of the
Government Offices of Sweden at http://www.sweden.gov.se/sb/d/3926/a/27777.
disordered. If no such intent can be found, the person accused cannot
be sentenced to either prison or forensic psychiatric care.
Both the academic and the public debate concerning the Swedish
system address several important issues, such as possible causes of
criminal behaviour, the structure and content of psychiatric care and
correctional treatment, and the function of the legal system, to name a
few. These problems are not only treated within the field of forensic
psychiatry. Two other fields for which these questions are directly
relevant are law and criminology. Important societal values such as
democracy, justice, and humanity are put to the test in providing care for
individuals with psychiatric problems. Ideas of who should receive care,
as well as the content and structure of such care are influenced by these
overarching values (Government Legislative Bill, 1990/91:58).
Any legal regulation of compulsory psychiatric care is necessarily
the result of a series of difficult adjustments made in order to satisfy
colliding interests within both psychiatry and law, such as the
patient's right to and need for care and his or her conflicting interests
of autonomy, integrity and right to fair trial. Other dilemmas concern
the patient's need for protection from his/herself as well as the
demand on behalf of the caregiver to consider not only the patient's
needs but also public safety. Relevant areas in criminological research
include possible explanations for criminal behaviour, evaluations of
risk assessments among subjects in correctional treatment and
patients in forensic psychiatric care, and the overall discussion
about the posited conflict between treatment and punishment.
Against this background, this article discusses current research in
law and criminology concerning the question of when and how to
treat mentally disordered criminal offenders. We will also allocate a

0160-2527/$ – see front matter © 2009 Elsevier Ltd. All rights reserved.
doi:10.1016/j.ijlp.2009.09.007
378 M.K. Dahlin et al. / International Journal of Law and Psychiatry 32 (2009) 377–382
fair space in the beginning of this paper to present an overview of the
Swedish system concerning mentally disordered criminal offenders.
2. The current Swedish system
Compulsory psychiatric care in Sweden is regulated by two central
statutes; The Forensic Mental Care Act (Lagen (1991:1129) om
Rättspsykiatrisk Vård — LRV) and The Compulsory Mental Care Act
(Lagen (1991:1128) om Psykiatrisk Tvångsvård — LPT). The focus of
this paper is on LRV and the regulation of the care of mentally
disordered criminal offenders. However, it should be mentioned that
the most common form of compulsory psychiatric treatment concerns
individuals who are not suspected of any crime. The Compulsory
Mental Care Act regulates the psychiatric care of persons who refuse
to consent to necessary psychiatric care or who are judged incapable
of participating in such care voluntarily. The purpose of The Forensic
Mental Care Act is to regulate the application of the criminal sanction
of sentencing severely mentally disordered criminal offenders to
institutional psychiatric care. These two acts belong to different legal
areas: The Forensic Mental Care Act belongs to criminal law, which
regulates legal responsibility and possible sanctions for criminal acts
(under certain circumstances, even those only suspected of crime
receive care under LRV). The Compulsory Mental Care Act (LPT) is part
of administrative law; comprising regulations applying to public
administration and the relationship between the authorities and the
individual. The overall objectives differ in these two areas of the law
and different state actors bring these cases to court. However the
consequences for the individual are similar, i.e., circumscribed
autonomy in terms of medication, isolation, and incarceration.
Even though the statutes differ in some aspects, a core legal
concept in both acts is “severe mental disorder” (introduced into the
legislation in 1992). The legislative intent is that the definition of
severe mental disorder should be the same in both acts and in the
Penal Code, where the regulation of legal sanctions is described
(Government Legislative Bill 1990/91:58). The assessment of whether
a criminal offender suffers from a severe mental disorder is made by a
team of forensic psychiatric experts. The team is instructed to con-
sider the kind as well as the severity of the psychiatric condition;
hence, there is a possibility to consider different aspects of any iden-
tified disorder.2
The guiding principle is that a person who has committed a crime
under the influence of a severe mental disorder should be sentenced
to a sanction other than prison as seen from Section 30:6 of the
Swedish Penal Code. If the perpetrator of a crime who normally would
be sentenced to prison is found to have had a severe mental disorder
at the time of committing the crime and is still suffering from such a
disorder at the time of the trial, the sanction, under most
circumstances, would be forensic psychiatric treatment as mandated
by Section 31:3 of the Swedish Penal Code. Note again, that the
requirements for criminal intent still need to be fulfilled. If such intent
cannot be found, a person cannot be convicted for a crime that
requires intent and will be set free. The Swedish treatment of mentally
disordered criminal offenders – that a mentally disordered criminal
offender can be held legally responsible for his or her actions and that
findings of “not guilty by reason of insanity”, or “incompetent to stand
trial” are not allowed – is relatively unique in the international
perspective and has been much debated during the past 25 years,
particularly in the light of the definition of the term “legal
responsibility”. See, for instance, SOU (Swedish Government Official
Reports) 2002:3 on “Mental disorder, crime, and responsibility”.
The points of departure when considering care and treatment of an
individual are the criteria specified in the Health Care Act (1982:763).
Important values, such as good quality of treatment, a patient's rights
2
The assessment made by a team of psychiatric experts is only applied in the
context of the Forensic Mental Care Act.
to autonomy, and safe care are outlined. The Law of Professional
Activity in the Health Care Field (1998:521) states that personnel are
expected to perform their work in accordance with scientific evidence
and reliable experience. Coercion may only be used in reasonable
proportion to the possible gain of the intervention, and the guiding
principle should be to use as little force as possible.
2.1. The organization of the Swedish Forensic Psychiatry
A criminal court cannot sentence an offender to forensic care
without a medical report indicating that the offender is suffering from
a severe mental disorder. Such an assessment is based on a forensic
psychiatric evaluation. The forensic evaluation is issued by a state
authority, the National Board of Forensic Medicine, which is a branch
of the Ministry of Justice. The purpose of the board is to organize, lead,
develop, and follow up evaluations at the four main forensic
psychiatric units in the country.
A court can sentence an offender to one of two kinds of forensic
care; with or without further court proceedings. With the former, a
county administrative court issues decisions concerning discharge
and temporary leaves, while such decisions are made by the
psychiatrist in cases without special court proceedings.
The annual statistics of the National Board of Health and Welfare
(www.socialstyrelsen.se) show that the number of patients registered
in forensic psychiatric care has increased during the last 15 years,
from 800 in 1992, when the current law was introduced, to more than
1400 in 2005. The increase is explained by prolonged inpatient
periods during the same time, which in turn is the likely effect of a
more pronounced tendency of the courts to demand special
guarantees for a minimal risk of relapse in criminal behaviour.
Around 930 patients are in institutional forensic psychiatric care on
any given day.
2.2. Types of crimes
About 30 years ago, 70% of the offenders convicted of murder or
manslaughter were sentenced to psychiatric care and around 25% to
prison.3 Today, these figures are almost completely reversed. A
possible explanation is that the criteria for commitment to psychiatric
care were changed with the introduction of the Forensic Mental Care
Act. The changes entailed, among other things, that the concept
“severe mental disorder” replaced the previous criteria for compul-
sory psychiatric care; namely mental illness, mental retardation, and
conditions equivalent with mental illness. “Conditions equivalent
with mental illness” at that time included several of the personality
disorders. Today, a personality disorder is rarely by itself regarded as a
severe mental disorder.
2.3. Patients in forensic psychiatric care
The great majority of the patients in forensic psychiatric care are
men, but the number of women is increasing. Thirteen percent of all
patients committed to institutional care in 2006 were women. The
majority of patients are between 25 and 54 years old, but 15
adolescents under the age of 20 were referred to forensic psychiatric
care in 2006. More than one-third of the patients suffered from
schizophrenia and 30% were diagnosed with other forms of psychosis.
Although personality disorders, mental retardation, or substance
abuse alone seldom constitute a severe mental disorder, the overall
condition of the patient may motivate the conclusion that his/her
mental disorder is severe and the decision by the court to sentence
him/her to psychiatric care.
3
The remaining 5% received other sentences.
 M.K. Dahlin et al. / International Journal of Law and Psychiatry 32 (2009) 377–382
3. Jurisprudential perspectives
3.1. Proactive dimensions in law — the demand for a polycentric
perspective
The legislation on compulsory psychiatric care is currently under
revision. One reason is the heated public debate that during recent
years has followed a number of violent crimes involving mentally
disordered individuals. Much of the discussion has focused on the use
of coercive measures in psychiatry and on the protection of public
safety. The Government has recently introduced a new form of care —
outpatient compulsory psychiatric care (1 September 2008). This
form of compulsory care is possible to apply with the support of either
The Forensic Mental Care Act or The Compulsive Mental Care Act. The
objective of outpatient compulsory treatment is to provide a legal
basis for treating patients in situations that may not always be
perceived as equally acute as those leading to an initiation of
involuntary institutional treatment (SOU 2006:100). This change
may be viewed as a change of focus in the law from an emphasis on
compulsory psychiatric care as a last resort to a system where legal
measures are used to fulfill a more preventive role of health care. The
change may be described as a shift towards a more proactive legal
approach.
A factor contributing to this shift is the criticism of how the previous
regulation was applied. A patient in compulsory psychiatric care could
be allowed to spend part of the time before discharge in care outside a
psychiatric institution, for example at home or in intermediate care.
Such time periods could be quite long, and the reason for allowing
restricted conditions outside institutions was that a supervised period of
adjustment to the community would subsequently diminish the need
for further coercive interventions. However, since the intention of the
law at that time was to use compulsory care as a last resort, and only
when institutional care was appropriate, the application of the law was
not in harmony with its legal objective (RÅ, 1998, ref. 51). Furthermore,
it turned out that this legal practice was not only used with the intention
to terminate coercive care and thus deviated from its explicit objective
(The National Board of Health and Welfare Report, 2002). As a
consequence, this application of the law was prohibited, and with it
the possibility of having patients successively advance from a high
degree of control to less regulated forms of care. The new regulation
aims to give “legal possibilities to deliver the necessary psychiatric care
to those patients who cannot be fully discharged from compulsory care
but who do not need to be placed in institutional care” (legislative bill
2007/08:70). It has been argued that since the law allows for
compulsory care among patients not in absolute need of institutional
care, the total time during which coercion is used may be prolonged. On
the other hand, since the law makes it possible to use forms of coercion
other than institutional care, the time for inpatient care may actually be
shorter than before, and the alternative coercive interventions may
interfere less with the patient's autonomy (Parliamentary Standing
Committee on Social Affairs Report 2007/08:SOU15, p. 9).
The changes described above illustrate a shift of legal focus; from a
position where the protection of an individual's autonomy (the right
of privacy and consent) was viewed as the most important value to
defend, to a position where the use of coercion is made possible to an
extended degree. The importance of public safety, as well as the needs
and rights of the mentally disordered to receive proper care at the
correct level when necessary, are reasons cited to legitimize the new
legal approach. The focus may be described as polycentric, targeting
three central but potentially competing interests; the right to
autonomy, the right to proper care, and the protection of public
safety. To satisfy two of these interests, the right to care (e.g. to avoid
deterioration of a patient's mental health) and public safety, the law
may need to be used preventively. Thus, the outlined legal
development implies the use of legal instruments to avoid harm,
crime, or suffering — a proactive regulation.
379
The legal system traditionally tends to work reactively, i.e. the
focus is on solving already existing problems. Efforts aimed at
avoiding problems before they begin – i.e. proactively – are less
common. A proactive approach is not foreign in law, but in contrast to
many other fields, this perspective is not widely researched or
practiced in Sweden (Wahlgren, 2006). The legal regulation of
coercive care today already involves elements of proactive mechan-
isms. For example, in the assessment of whether forensic care should
be combined with or without further court proceedings, the court is
required to consider the risk of relapse in crime. Other examples are
child custody cases where aspects of whether there is a risk of
impaired health and development are taken into consideration.
Historically, such legal risk assessments have been made in unstruc-
tured ways and few elaborated methods have been established
(Wahlgren, 2003). Demands for increased use of proactive solutions
in the legislation on compulsory psychiatric care are likely to lead to
more structured assessments increasingly consistent with psychiatric
research findings. This is elaborated below.
3.2. A complex branch of law
Current knowledge about the effects of psychiatric coercive care is
minimal, and few studies are available (Kisely, Campbell, Preston, &
Xiao, 2007). In a recent publication, the National Board of Health and
Welfare called attention to this fact, stressing the need for resources
for more research on the actual results (National Board of Health
and Welfare, 2007). This report also emphasized the basic starting-
points for both psychiatric practice and the legislation on compulsory
psychiatric care; the principle of proportionality, which states that
proceedings involving disadvantages for an individual must stand
in proportion to the benefits of the measure, and that the use of
more coercion than necessary to achieve the purpose intended is
prohibited.
3.3. Objective and efficiency of the legislation
A common approach among Swedish legal scholars is to regard the
efficacy of legislation as an issue beyond the legal discourse. It has
been claimed that the result of this view is insufficient knowledge of
the practical consequences of the legislation (Wahlgren, 2008, p. 85).
There are no established routines for analyzing the effects of the
legislation, and techniques for evaluating legislation are not included
in the curriculum of the Swedish legal education. This means, in
principle, that no knowledge is required when it comes to a legislative
evaluation in Sweden (Westerlund, 2006). Peter Wahlgren, professor
of Law and Information Technology at Stockholm University, argues
that there is no articulated knowledge about what constitutes a
“good” law and claims this to be a troublesome state of affairs for the
legal system (Wahlgren, 2008). Law in this respect differs from most
other academic fields. Wahlgren argues that the task of evaluating the
effects of legislation should be regarded as an important part of the
democratic process as well as a prerequisite for scientific legitimacy
(Wahlgren, 2008, p. 87).
Individuals treated in compulsory psychiatric care may have
complex needs that must be met by various systems and services in
society. Demands for better cooperation between medical care, social
services, and the judicial system requires more exact definitions of the
aims and values forming the cornerstones of applicable law
(Monahan, 2008). A main objective of the legislation on coercive
care is for people receiving this care to be better off after participating
in treatment. It may be argued that a proactive law approach increases
the need for follow-ups on how the law is applied and operates in
everyday life, as well as how it is received in the community.
Accordingly, the Committee on Health and Welfare of the Swedish
Parliament emphasized the need for an evaluation of the introduction
of the law on outpatient compulsory psychiatric care (Report 2007/
380 M.K. Dahlin et al. / International Journal of Law and Psychiatry 32 (2009) 377–382
08:SOU15). We will return to the restrictions of the traditional view in
Swedish legal research at the end of this article.
4. Criminological research
We now turn our focus to another area of research that has several
points in common with forensic psychiatry and the law; criminology.
Contemporary Swedish criminology has, on the whole, shown
relatively little interest in forensic psychiatry and its role in the
system of legal sanctions. With the exception of the ideological
discussions during the 1970s (e.g. Nycander, 1970), Swedish
criminological research has mainly focused on means of predicting
relapse in criminal behaviour and, in connection with this, on risk
assessments both among subjects in correctional treatment and
among patients in forensic psychiatric care (Belfrage, 1995; Anders-
son, 1991). Recently, a criminological approach theoretically influ-
enced by Michel Foucault has been applied to questions pertaining
both to psychiatric and correctional treatment (Andersson, 2002;
Hörnqvist, 2007). Within this approach, the conflict between
treatment and punishment has been discussed — a question that in
part goes back to different ideas about the factors underlying criminal
behaviour. A few other investigators, using a more traditional
theoretical and empirical approach, have been focusing on the causes
of criminal behaviour and hence also on the development of evidence-
based crime prevention (see e.g. Wikström, 1991, 2006).
4.1. Criminal behaviour and rationality of control
The view of mentally disordered criminal offenders that dominat-
ed criminological research in the 1970s was influenced by the critical
attitude towards the treatment- and rehabilitation paradigm, a
theoretical perspective originally developed by Michel Foucault.
Foucault examined the history of madness as a social and cultural
construct and argued that the very concept of mental illness is
normatively defined. Mental hospitals are according to this analysis
first and foremost a way for society to control the lower classes
(Foucault, 2006). Foucault's “Madness and Civilization” has been
regarded as a critique of the psychiatric discipline per se and is often
quoted in the anti-psychiatric movement. Within the Swedish branch
of this movement, a debate concerning the legitimacy of forensic
psychiatry was initiated (Nycander, 1970; Elwin, Heckscher, & Nelson,
1974). The sociologist Kaj Håkanson argued that the emphasis on
treatment might result in conserving a system that really ought to be
changed. The introduction of psychiatrists in correctional treatment is
according to Håkansson a way to legitimize a badly functioning
system. He further maintained that the very idea that criminal
behaviour is an illness that can be treated diverts the attention from
society, where the real causes of the problem are to be found. Unjust
distribution of public resources and the relevance of social inheritance
become neglected factors when the problem of criminal behaviour is
seen from a psychiatric perspective (Håkansson, 1969).
In recent years, the problems involving criminal behaviour in
relation to governmental control have once again been focused upon
in Swedish criminology (Andersson, 2002). The issues discussed in
this context concern control both within correctional criminal
treatment and in psychiatric care. Another central topic for crimino-
logical research has been the study of how this branch of science has
influenced the government's view of causal explanations of criminal
behaviour. In a thesis from 2002, Andersson describes the develop-
ment of Swedish criminology as a shift from a science focusing on
individuals to a more sociologically oriented discussion, where
explanations for criminal behaviour have been sought in structural
and socio-economic factors rather than within the individuals
themselves. We can discern a return to the view of criminal behaviour
as primarily a problem of individuals. This entails that the psychia-
trists once again will play an important role in the sanction system
(Andersson, 2002). One important aspect of this is the new
categorisation of certain dangerous clients as non-reformable and
hence only possible to control by means of incarceration. The author
calls this approach the “discourse of chronics”, a discourse that
generates a small and easily identifiable group with an important role
to play in the definition of good and bad (Andersson, 2002, p. 105).
This categorisation, however, presents a dilemma for the government.
Society's way of handling this group is founded on the assumption
that a non-reformable clientele is a reality, but at the same time there
is a public and political demand for these individuals to be reformed
by evidence-based care. Alas, there is so far no evidence that bears on
this issue. The problem is thus that scientific research has not yet been
able to provide an answer to whether it is possible to change these
individuals, while the care actually given is built on the assumption
that this is possible.
Basic research in criminology consists of the describing, explain-
ing, and understanding of criminal behaviour and its background
factors. One central problem concerns the individual and contextual
factors that have an influence on people's propensity to commit crime.
Crime can be defined as a violation of a moral rule that has also been
legally defined, and the decision to commit a crime may be regarded
as a result both of factors within the individual and of social and
situational factors (Wikström, 2006). Within this line of research,
studies are conducted of criminal career patterns, and the so-called
chronic or life-course-persistent discourse is formulated. “Chronic
criminals” refers to the small but persistent group of criminals who
are characterized as heavily disposed to commit crime, which in turn
is explained by the observation that they have a diminished or weakly
developed capacity of self-control and a weakly developed moral
appreciation. From the individual's point of view, this entails a focus
on qualities such as cognitive capacity, rationality, control of impulse
and affect, empathy, role-taking and moral development, as well as
the strength of the individual's social ties to other people and
commitment towards significant people and institutions. This area of
research, if conducted in cooperation between criminology and
forensic psychiatry, might possibly contribute to deeper insights
into both the causal mechanisms behind crime and to efficacious
interventions for the so-called chronics (Wikström & Torstensson,
1997).
4.2. Risk and risk assessment
Another area that has received attention in Swedish criminological
literature and debate is the value of the instruments for prediction of
criminal behaviour. The critics of the treatment- and rehabilitation
paradigm regard these instruments as stratifying tools to delimit the
most vulnerable and defenseless individuals and give them the hardest
punishments (Börjesson, 1966). The issue of their value as a psychiatric
method, i.e. as instruments for prediction of dangerousness, was
introduced in wider criminological discourse in the 1990s (Belfrage,
1995). The concept medical criminology, as introduced by Belfrage,
referred to the discipline that evaluates interventions by studying risk
factors (both from an individual and a social perspective).
What is the stance within Swedish criminology when it comes to
the value of risk assessments? We can distinguish three main
positions. The first and probably most influential standpoint entails
a critique of the use of risk factors and risk assessments.
The starting point for this critique is that we need to identify causal
mechanisms in order to predict risks, and without proper knowledge
of such mechanisms, the chance of developing effective measures to
prevent new recruitments as well as relapses in criminal behaviour is
slim (Wikström & Torstensson, 1997). Unfortunately, too little effort
has been given to the task of increasing understanding of such causal
mechanisms. Factors such as socio-economic status, school achieve-
ment, and family structure have been ascribed great importance in
spite of the fact that such variables rarely contribute more than 1% of
 M.K. Dahlin et al. / International Journal of Law and Psychiatry 32 (2009) 377–382 381

the explained variance. Whether and, if so, why those factors research regarding this field by legal as well as criminological
constitute generative mechanisms behind crime has not been scholars. Part one showed that the Swedish system constitutes one
thoroughly discussed. This illustrates one of the main problems of of few exceptions from the idea that an offender has to be mentally
criminology, namely on risk factors rather than causal mechanisms. sane to be ascribed legal responsibility. The current Swedish system
The British criminologist and psychologist David Farrington describes concerning compulsory psychiatric treatment was presented in part
this thus: two. Part three identified the development of outpatient compulsory
psychiatric treatment, the proactive dimensions in mental health law
“A major problem with the risk factor approach is to determine
and the suggestion that this shift creates a need for follow-ups on how
which risk factors are causes and which are merely markers or
the law works. Part four exposed the fact that Swedish criminology
correlates with causes” (Farrington, 2000);“Existing research tells
has shown limited interest in the role of forensic psychiatry, in
us more about criminal potential than about how that potential
particular the individual-oriented perspective.
becomes actuality of offending in any given situation” (Farrington,
In conclusion, Swedish legal scholarship has traditionally focused
2007);“Little is known about the causal processes that intervene
on the systematization of legal rules and therefore, has always
between risk factors and offending” (Farrington, 2003).
considered as one of its major tasks to maintain a sharp boundary
against other academic disciplines, among them political science.
A risk assessment cannot entail anything further than just being an
Statements as to how the law should be construed (the politics of law)
assessment of the risk of committing crimes, and for such judgments
are still quite rare in Swedish legal scholarship and basically restricted
to be reliable they must be tempered with knowledge of causal
to comments concerning inconsistencies in the rule system as such. It
mechanisms that can capture the probability that a certain action may
has also been regarded as outside the area of legal scholarship to look
or may not occur. This demands that the formation of risk assessment
for causal factors underlying criminal behaviour as well as for the
tools is an empirically based and tested criminological theory.
effects of the implementation of the law, the contention being that
The second position is more pragmatic. For various reasons we
more socially oriented disciplines, such as criminology and/or
need to identify risk groups in the population, the primary aim being
sociology, are better suited for such studies. Within traditional
to build a foundation for preventive actions. The proponents of this
Swedish legal scholarship, a paper such as the present one, combining
view are aware of the limitations of the method — predictions of this
legal scholarship with findings from other academic disciplines, could
kind nearly always include a number of false positive results, as well
be considered controversial.
as a number of false negatives. But given the absence of alternatives,
If one considers this feature of clear division between areas of
this is still the best method at hand (Torstensson & Wikström, 1999).
legitimate investigation as the one characterizing Swedish legal
A similar discussion has taken place within forensic psychiatry/
scholarship, it is no surprise that proactive legal approaches and
psychology, where the need to focus on risk management rather than
therapeutic jurisprudence have been viewed with suspicion by
risk assessment has been identified as the main task for clinicians (for
traditional Swedish legal scholars. To study the proactive as well as
an overview, see e.g. Douglas & Skeem, 2005). Even though several
the therapeutic dimensions encompassed within the law postulates
risk factors may be strongly correlated to negative outcomes (e.g.
influences from other disciplines of science (including psychology,
young age at first conviction), they may not necessarily be of clinical
medicine and sociology) and raises questions about the border
relevance. Risk management, which today may be described as being
between the application of law and epistemology of such scientific
a part of forensic as well as general psychiatric work (Monahan,
disciplines, i.e. their basic paradigms as to methodologies and content.
2008), implies focusing on conditions amenable to treatment, for
That is because the law is a system of norms, not truths. Law changes
example ongoing substance abuse (Douglas & Skeem, 2005).
over time and is not a static phenomenon, but rather varies with
The third line of reasoning is inspired by Foucault: risk assess-
fluctuating moral and political values and ideas. These values in turn
ments are here regarded as an instrument used by the government to
are reflected in the development of knowledge. For instance, the
select and control subjects in order to legitimatize its politics
answer to questions such as “what is known in the field of
(Hörnqvist, 2007). Within this tradition, the concept risk is also
psychiatry?” are outside the traditional legal investigations taking
used in another meaning. Hörnqvist describes the risk model as a
place in Sweden.
control strategy and argues that risk as such does not exist except in
However, an opening towards these broader approaches of the
relation to a particular strategy. Such a strategy is used to decide the
relation between law and other disciplines can be noticed among
goal and the targets of the intervention and to assure that the
some Nordic legal scholars, although they do not consider themselves
organization does comply with this overall goal. The use of programs
as belonging to any specific approach (e.g. Gunnarsson, Svensson, &
such as “cognitive skills” and “motivational interviews” within
Davies, 2007). This opening is more in-line with the methodology of
criminal treatment is analyzed to illustrate this state of affairs, and
legal scholarship as embedded outside Sweden. One can immediately
these methods are regarded as good examples of productive power.
note an openness of these legal scholars towards methods and data
The government (represented by The National Prison and Probation
coming from other disciplines, for example morals, politics, econom-
Administration) defines what the internee should achieve (such as
ics and, last but not least, scientific discourses such as medicine.
increased self-control and linguistic abilities) and is thereby intending
Among the new theories that more than others have been keen to this
to increase the likelihood of re-integration of the internees in the
opening towards non-purely legal discourses and methodologies are
social structure. Participation in these programs is voluntary, but
the legal approaches grouped under the label of the “Comprehensive
coercion in the form of close surveillance and limited autonomy is part
Law Movement” (cf. Wahlgren, 2006). These new legal movements
of the programs. One conclusion is that the goal to reduce relapse in
(including a gender perspective, a crime victim (victimology)
criminal behaviour is secondary to the primary goal of covering up the
perspective, ethical perspectives, etc.) share the aim of looking for
critique that has been raised against the increasing number of
broader and more holistic views of law, and thus, generate a need for
internees.
new inter-disciplinary approaches. Investigating the legislation on
compulsory psychiatric care from such a holistic perspective, where
5. Summary and conclusions the widened possibilities of the law are emphasized, can be seen as an
urgent task from a societal point of view.
In summary, the purpose of this article has been to give a brief Moreover, the connection between Swedish criminological re-
overview of the Swedish system concerning mentally disordered search and that of forensic psychiatry has also been weak. To the
criminal offenders but also to present the interest in and extent of extent it exists at all, it has primarily touched upon the following
382 M.K. Dahlin et al. / International Journal of Law and Psychiatry 32 (2009) 377–382
areas: (i) a critical, ideologically founded discussion within criminology
about causal explanations based on an individual approach and the
consequences for punishment and rehabilitation, and (ii) the practical
applications of criminological research on the shaping of risk assess-
ments. In the first line of research, studies of career patterns have been
conducted, partly with the purpose of discerning possible causes behind
criminal actions. Here, criminological research can contribute to the
academic and clinical disciplines of forensic psychiatry. A central task is
to enrich the knowledge about the patterns and causes of criminal
behaviour. Since criminal behaviour varies across different groups of
perpetrators, and the causes should be sought in the interplay between
individual and social factors, such research could possibly contribute to a
wider understanding of the factors behind the criminal act. A better
understanding of the underlying causes behind criminal behaviour
might also provide a good foundation for better preventive and
rehabilitating efforts in both criminal treatment and forensic psychiatry.
To make such an approach possible, a multi-disciplinary effort is
required, as well as an increased integration between different fields of
research, in this case between the sociological and the more individual-
oriented criminology.
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