Academic journal article
By McSherry, Bernadette
Trends & Issues in Crime and Criminal Justice , No. 281
The concept of 'risk assessment' is of increasing relevance when dealing with the prevention of criminal behaviour. This risk can be examined from a number of viewpoints. In an earlier Trends & issues in crime and criminal justice paper (no. 280) the risk of reoffending by Indigenous male violent and sexual offenders was examined. This paper looks at the issue from a mental health perspective. It discusses the implications for sentencing decisions and examines the current legal and ethical background to risk assessment for the purpose of preventing future serious injury to others.
Risk assessment may be legally relevant to mental health professionals in two ways. First, in the forensic context, psychiatrists and psychologists may be called upon to assess the risk that their patient or client may be violent in the future. Risk assessment may be relevant in civil and criminal law as well as in professional conduct contexts. In the civil law field, risk assessment is necessary in relation to the involuntary commitment of those diagnosed with a mental illness or intellectual disability, detention to prevent the spread of infectious diseases, assessing the risk of child abuse in family law matters, child protection proceedings and workplace occupational health and safety. In the criminal law field, mental health professionals may also be asked to write reports in relation to the risk of an accused person reoffending, for the purposes of bail applications, sentencing and preventive detention, the disposition of offenders with mental disorders, and parole. Second, one of the most difficult questions for psychiatrists and psychologists concerns knowing when they should disclose a patient's confidential communication on the basis that the patient may be at risk of harming others. If they breach confidentiality, they may leave themselves open to a legal claim for negligence, breach of contract or breach of confidence by the patient, as well as professional disciplinary action. If the mental health professional does not breach confidentiality, there may be a risk of the patient committing a serious offence, engaging in self harm, or putting other people's lives and well-being at risk.
The development of concepts of risk assessment and risk management
Foucault (1988: 128) has pointed out that '[l]egal justice today has at least as much to do with criminals as with crimes'. In his view, since the 19th century, there has been a shift in focus from punishing criminal conduct to regulating the danger potentially inherent in the individual. Certainly, the assessment of 'risk' has become of such significance in recent years, that is has been viewed as a core organising concept of the Western world (Gray, Laing & Noaks 2002). Risk assessment and risk management now occupy a prominent position in virtually all forms of mental health practice (Mullen 2000).
However, assessing the risk of future violence is a notoriously difficult task (Mullen 2000). During the early 1980s, research suggested that mental health professionals tended to overpredict violence (McAuley 1993: 7) and one study concluded that it was rare for psychiatrists to predict future violence with a better that 33 per cent accuracy (Monahan 1981). During this time, the emphasis was on making clinical assessments of 'dangerousness' that did not provide a medical diagnosis, but involved 'issues of legal judgment and definition, as well as issues of social policy' (Steadman 2000: 266).
Between the mid 1980s until the mid to late 1990s, the focus shifted from assessing dangerousness to a focus on statistical or actuarial risk prediction. This shift to risk assessment and risk management has seen the rise of 'scientific' literature examining a range of risk factors that have a statistical association to a future event. The main limitation of this shift in approach is that actuarial judgments may ignore individual needs and individual differences, whilst focusing too much on historical variables. …