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Michiel van der Wolf is a psychologist and a lawyer. He started his career in 2003 as a trainee psychologist in Dutch forensic mental healthcare units, known as ‘TBS clinics’. His doctoral thesis explored the historical background of the current treatment bottlenecks in the TBS system. Michiel is currently Professor of Forensic Psychiatry, at Leiden University and Associate Professor of Criminal Law, at the University of Groningen. Here, Michiel discusses the Dutch approach for dealing with those considered as mentally disordered offenders.
As the expression ‘going Dutch’ suggests, we are not particularly known for our financial generosity in the Netherlands. However, contrary to what the saying implies, it is not 'every man for himself’ in our country. We do pride ourselves in a long history as a welfare state – and also as a frontrunner in investing in and developing forensic mental health services.
Since 1928, Dutch criminal law has included a unique safety measure for the care of mentally disordered offenders considered a danger to society: the TBS order, a court-ordered detention in a clinical treatment setting, the duration of which is ‘at the government’s disposal’ (‘terbeschikkingstelling’).
Throughout its history, this TBS order has been aimed at both the legally insane (who bear no criminal responsibility) and offenders deemed to have diminished responsibility for their crime, by reason of a mental health condition. The TBS order has led many offenders diagnosed with personality disorders to have been treated in high security forensic mental health settings, alongside patients with major mental illnesses, for indeterminate duration. It has often been argued that labelling these offenders as 'mentally disordered' and having 'diminished responsibility' places an obligation on the State to take their treatment seriously.
It is not uncommon, as ICPR’s recent sentencing research has also shown, for a person convicted of murder or some other serious offence of violence, to receive a comparatively short prison sentence, followed by a TBS order commencing immediately afterwards, and potentially lasting far longer than the period spent in custody.
The TBS order – a brief history
After the second World War, a spirit of humanism and therapeutic optimism[1] led to enormous investments in this TBS system. These treatment facilities were financially supported by the Ministry of Justice.
‘Give me the money, and I will cure all delinquents’, is a famous quote from those early days, attributed to the forensic psychiatrist Pieter Baan. New, state of the art, facilities were built and many offenders were entrusted to the State’s care. In the late 1950’s, almost 1,500 TBS patients were treated in these facilities. This number dropped to under 400 in the 1980's, mainly due to a shift in focus during the two previous decades on legal protections and safeguards against excessive restrictions on liberty.
At that time, the Ministry of Health covered up to 80% of the budget. The cost of treatment was estimated at 80% of the budget, while security accounted for the remaining 20%, which was covered by the Ministry of Justice.
In those years, TBS facilities often welcomed international visitors interested in this unique way of dealing with dangerous mentally disordered offenders. The English were especially interested, as we can see in academic articles: ‘… the much-envied TBS-provision in the Netherlands…’ (Conor Duggan) or ‘… the feeling that the Dutch, just across the North Sea, were doing things so much better…’ (Tony Maden). The idea of successfully treating dangerous, personality-disordered offenders was one of the arguments underlying the English DSPD units,[2] although the system as a whole could never be adopted without also importing the corresponding and unique features of Dutch criminal law.
From ‘care’ to ‘security’ – a shift in approach
From the late 1980s, harsher penal policies and the increase of multi-problematic and drug abuse-related patients led to a new growth in the TBS population. Money became an issue, mainly due to a shortage of facilities and longer treatment durations.
In 2008, the TBS population peaked at 2,100 and a new funding model was introduced: the Ministry of Justice would now take financial responsibility for all forensic care, including that provided in general (non-TBS) mental health facilities. The argument for this new system was ‘he who pays the piper calls the tune’, and it aimed to create outflows towards less secure facilities, while allowing the Ministry to demand increased security in general mental health facilities. This latter aspect had its roots in a few cases of high-profile re-offenses. These cases had led to the introduction of more safety regulations within the execution of the TBS order. As a result, the average length of in-patient treatment increased to over ten years. The TBS order became less popular among defendants, who increasingly refused to undergo forensic assessment (which is necessary before a criminal court can make a TBS order), often on the advice of their lawyers. It was also less popular with judges, who had to impose the order.
Ten years later, in 2018, the TBS population had dropped to around 1,300.
A contagious labelling effect was observed after the policy change made forensic patients more recognizable: they bore the double stigma of being deemed dangerous and disordered. This might explain the reluctance of community-based treatment facilities to take these patients in. The barrier between forensic care and community care seems simply to have shifted, rather than being removed, contrary to the intention of this change of policy.
Reassessing priorities
In 2019, the Forensic Care Act codified the financial model introduced in 2008. The TBS population is currently rising again and the budget is under severe pressure. TBS facilities have brought legal claims against the Ministry of Justice, which is slowly turning off the financial tap. Academia has voiced its support for shifting part of the budget back to the Ministry of Health, as the much-needed investment in TBS services will be increasingly prone to cuts if Justice remains in charge of the budget.
In a nation of merchants and accountants, money is indeed an issue, including when it comes to forensic mental health. In the case of the TBS system, we should ‘go Dutch’ if we really care about forensic mental healthcare. By splitting the budget between the Ministries of Justice and Healthcare, we can put offenders’ care and treatment on a sustainable footing. Society will have the protection it needs, provided in the most cost-effective way.