Protecting the Public? by Tessa Boyd-Caine

Author:Tessa Boyd-Caine [Boyd-Caine, Tessa]
Language: eng
Format: epub
Tags: Social Science, Criminology
ISBN: 9780415627962
Google: Q7F1VURVftIC
Publisher: Routledge
Published: 2012-01-15T04:11:49+00:00

Making it legal

The general acceptance of the executive's function was shared equally by psychiatric and legal practitioners in this research. Undoubtedly, some lawyers had a principled objection to executive discretion per se. However, most acknowledged that the executive had a legitimate role in providing public protection. Thus legal practitioners rarely criticized the fact that Unit staff assessed expert clinical reports and risk assessments.

Instead, they levelled their concerns at the cautiousness and slowness of decision-making by officials exercising the executive's discretion. In the view of several lawyers, the problem lay in the conflation of probabilities of risk on a population basis, with the desire to predict and prevent individual behaviour. This led to overly cautious decision-making because, according to practitioners, the Mental Health Unit was looking for minimal or zero risk before it determined that a patient could spend time in the community. Yet as we have seen, the very nature of risk assessment meant that as soon as a risk factor was identified, there would be a chance – no matter how small – of the dangerous behaviour occurring. An assessment of zero risk was a literal impossibility.

This produced a ‘catch 22’ scenario. Applications seeking to move a patient to less secure conditions were required to produce an assessment of the risks posed by that patient. That evidence then provided the justification to reject an application, should the Unit so determine. This was summed up in the words of one legal practitioner who stated, ‘my understanding of the Home Office's position is that they want to be absolutely sure that it's safe to move somebody on before they move on. And you can't ever be absolutely sure.’ For her, the worst effect of the Home Office's approach was not upon applications for discharge, because these applications had a second port of call in the form of the Tribunal. The more serious problem was the inability to achieve patient progress from more to less secure settings in preparation for release. The over caution of officials demonstrated their failure to grasp the difference between risk assessment and risk management; the fact of risks alone was enough to deny a patient's application, regardless of how well the care team had prepared for such possible eventualities.

A number of other participants shared this belief that the political imperative to prevent risk ignored the reality that risk assessment was an inexact science, nor could it predict an individual's behaviour. Officials, it was suggested, assumed that risk assessments could be easily obtained; should be comprehensive and accurate; and that a positive assessment establishing the presence of risk was grounds for refusing less restrictive conditions of detention or discharge. Some practitioners perceived this failure to appreciate the complexities of risk assessment as a consequence of non-expert decision-makers in the Mental Health Unit, as the following comments by a lawyer indicated:

They're civil servants, they have no medical qualification whatsoever, and it is always going to be the case that if you get enough reports which express perfectly valid hesitations

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