Criminal Justice, Mental Health and the Politics of Risk

Nicola S. Gray, Judith M. Laing, Lesley Noaks

• Publisher: Routledge-Cavendish
• Year: 2013
• ISBN:
  9781135339586
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

Criminal Justice, Mental Health and the Politics of Risk addresses the important issues which lie at the forefront of decision making and policy in criminal justice and health care. The book brings together several perpectives from a number of distinguished academic lawyers, criminologists, psychologists and psychiatrists. It is multi-disciplinary in its approach and is jointly edited by a lawyer, a criminologist and a psychologist - all of whom have expertise and experience in this field.

The book is written in the light of the current emphasis on risk assessment and management as well as the recent government proposals to reform mental health law and detain dangerous and severely personality disordered individuals. It provides a theoretical overview for academics and students in the fields of medical law, mental health law, criminal justice, psychology, sociology, criminology and psychiatry. In addition, the book's highly topical and pragmatic approach will appeal to numerous professionals and practitioners

CHAPTER 1
RISK: THE PROFESSIONAL, THE INDIVIDUAL, SOCIETY AND THE LAW

Nicola Gray, Judith Laing and Lesley Noaks

Calculating and managing risks which nobody really knows has become one of our main preoccupations. That used to be a specialist job for actuaries, insurers and scientists. Now, we all have to engage in it, with whatever rusty tools we can lay our hands on – sometimes the calculator, sometimes the astrology column. [Beck in Franklin, 1998, p 12.]

1.1 INTRODUCTION – ‘RISK SOCIETY’

A defining feature of contemporary criminal justice discourse has been the prominence of issues of risk. Risk as represented in criminal justice worlds has taken on a variety of guises. Risk ‘talk’ reveals a preoccupation both with those seen to pose a risk and those considered to be at risk. Linked to such preoccupations is a growing absorption with the legal, medical and psychological means by which we seek to manage risk. This text seeks to focus on all three of those elements and also consider the inter-relationships between them.

The body of theory which has defined us as a ‘risk society’ (Beck, 1992; Ericson and Haggerty, 1997) has pointed to the centrality of risk to social arrangements. Recent developments in criminal justice and mental health policy have been underpinned by the ways in which, as a ‘risk society’, we are increasingly motivated to invest in means to obviate the threat to ourselves from all forms of harm – personal, financial, emotional or physical. Identifiable high levels of anxiety in relation to crime provide an important backdrop to an increasing suspicion of the risks that others pose to personal security. Garland (1996) argues that individual households have adapted to high rates of crime with greater investment in physical security precautions and more security consciousness. Entwined with this has been more emotional investment in the ‘war’ against crime by the individual citizen. As a ‘cultural phenomenon’ crime control has become a pervasive feature of the lives of many individual citizens. Responses to crime have occurred both at the individual and at the more collective policy level and are reflected in a number of recent legislative changes outlined below. Consequent to such developments ‘risk institutions and their communication systems have become an important basis of our society’ (Ericson and Haggerty, 1997, p 11).

Sheptycki (1997, p 307) also argues that ‘discourses of insecurity’ and fear of crime are driving the growth in surveillance devices and procedures in many facets of late modern society. There is a related drive to create ‘zones of risk suppression’, which physically separate those who consider themselves at risk from those they judge to be a source of danger. While classically these occur in the gated communities of the USA, the thinking behind them increasingly permeates criminal justice philosophies and practices in the UK. Feeley and Simon (1992) identify the pre-eminence of thinking and working practices which seek to identify and classify sources of risk. Recent attention to sex offender registration schemes, and the promotion of standardised risk assessment tools, commonly for inclusion in pre-sentence reports, represent what they have termed the risk penology. In such climates, Shearing and Stenning (1987) argue that control and surveillance are ‘pervasive’. Such control is ‘consensual’ with little evidence of, or need for, compulsion. Fear and a sense of danger serve to reinforce cleavages in society, emphasising division and a sense of the other. In the ‘Risk Society’ a significant proportion of citizens are more than willing to cooperate to support enhancement in the methods of surveillance. As crime has become increasingly salient for individual citizens they have become increasingly willing to co-operate in the expansion of control networks.

One of the main aims of this book is to analyse the relationship between theoretical models of risk and recent developments in criminal justice and mental health policy. Such developments are reviewed from psychological, psychiatric, legal and criminological perspectives. While the book is divided into sections linked to these elements a major focus of the text is with the interface between the disciplines. Such considerations become important in the face of changes currently being addressed on the boundaries of professional roles. Recent developments, including the recent legislative proposals on Dangerous and Severe Personality Disorder (DSPD), point to an increasing fusion of roles between key players in criminal justice and mental health spheres. This interplay between the key players is a major focus of several contributions to this book (Eastman, Fennell, Kemshall and Maguire).

The advent of government proposals to manage high-risk individuals (DSPD) and the consequences of these proposals for the individuals and professionals involved has been a major catalyst for this edited volume. The personality disordered have, over recent years, gained a more prominent profile with the emergence of a number of highly-publicised tragedies and killings, such as the murder of Megan and Lin Russell by Michael Stone, and the notorious paedophile, Sydney Cook, who has confessed his intention to continue to sexually offend against children. In the wake of such incidents, the government published a Consultation Paper, Managing Dangerous People with Severe Personality Disorder – Proposals for Policy Development (Home Office/Department of Health, 1999) in July 1999, to consider ways of

introducing greater control over those who pose a significant risk to others. Its publication followed the announcement that powers would be established to indefinitely detain people with personality disorders who represent a danger to the public. The review process culminated in the government’s White Paper on reforming mental health legislation, published in December 2000 (Home Office/Department of Health, 2000). The White Paper has emphasised the importance of managing risk and fully endorses the aim of public protection. It recommends a radical overhaul of the current mental health legislation and has proposed new criteria for compulsory commitment, which give authority to assess and detain all those who pose a significant risk of serious harm to others as a result of severe personality disorder. Both lawyers and psychiatrists (Crawford et al, 2001; Eastman, 1999; Gledhill, 2000; Laing, 1999) are highly critical of the proposals, perceiving them to be essentially public protection measures rather than progressive and enlightened mental health reforms. The government is making no excuses that the primary objective is risk management and public protection, and society’s interests are being elevated above all others. However, it must not be forgotten that there are other competing interests at stake. It is of equal importance to consider the rights of the individual patient/offender and the interests of the criminal justice and mental health professionals involved, as well as the views and needs of society in general.

There are a number of significant features of this proposed legislation that make the existence of this book important. Foremost is the fact that the legislation proposes for the first time in the history of our criminal justice and mental health systems that individuals are to be indefinitely detained on the basis of ‘risk’. Such developments directly put in jeopardy the civil liberties of these disordered individuals – those defined as the risky ‘other’. Climates of fear and mistrust have historically created periods where the individual freedoms of the minority have been sacrificed to the anxieties and concerns of the majority. Such developments will require professional groups, faced with their extended roles, to question the ethics of what they are being required to do in order to address public insecurities. Politically it may not be popular to question the reliability of the risk assessment and management strategies that we have. Despite this, professionals in criminal justice, mental health and related fields will be required to manage a balancing of individual civil liberties and the greater good of society. Several of the contributors to this text (Fennell, Eastman, Hudson, Kemshall and Maguire, Leacock and Sparks) point to some of the ethical dilemmas that they will face in attempting to carefully balance the rights of those ‘at risk’ (victims and society) with the individual rights of the risky ‘other’.

These ethical dilemmas are particularly acute for mental health professionals, who will be required to assess and manage the risky ‘others’ under the new DSPD proposals. From a psychiatric and psychological

perspective, the main issues raised by the proposed legislation are (1) the profession’s ability to reliably and validly diagnose ‘severe personality disorder’; (2) its ability to accurately identify, assess and manage ‘risk’; and (3) the ethics (professional and personal) of indefinitely and compulsorily detaining individuals purely on the basis of the risk that they pose and when they may not (yet) have committed a criminal offence. These issues will be discussed in Section One of this book – Risk Assessment in Mental Health and Professional Responsibility. The three contributors to this section (Eastman, Hare, Maden) are all internationally renowned clinicians and academics within forensic mental health (psychiatry and psychology), but, as you will see, they all hold widely differing views as to how these dilemmas should be resolved.

An important aspect of the proposed developments in relation to DSPD, and the relatively recent partnership requirements with regard to Dangerous and Sex Offenders (Crawford, 1997) is that their introduction requires a review of working relations between traditionally distinct professional groups. Following on from such legislative changes, groups such as psychiatrists, psychologists, police officers, probation officers and social workers find themselves having to review the boundaries of their role. As subsequent chapters will demonstrate (Eastman, Fennell, Kemshall and Maguire), professional roles are becoming increasingly diffuse and overlapping, as the mental health and criminal justice systems converge. This convergence will have major implications for the working practices of the different professions involved.

It will be crucial for the different disciplines involved to understand the concepts, professional ethics, methodologies, and practices of others. In the field of forensic mental health ‘multi-disciplinary’ is usually taken to mean the different health-related disciplines who, together, provide care for mentally disordered offenders (for example, mental health nursing, psychology, psychiatry, occupational therapy, social work). Because these disciplines work together (often on a daily basis) in the assessment, treatment and management of individuals with severe mental disorder and offending behaviour, they have developed an understanding and mutual respect for the philosophies and language, techniques and professional practices of each other. Unfortunately, the same might not be said to be true for the scientific and academic disciplines, however.

From a legal perspective, the need to balance the competing interests is crucial, as respect for individual rights and the protection of civil liberties are fundamental and gaining increasing prominence in light of the enactment of the Human Rights Act 1998 in October 2000. The Act has incorporated international human rights law directly into the United Kingdom legal system. This means that as well as protecting the public, any resulting legislation will also be required to emphasise and protect the rights of the detained individuals themselves. Specifically, under s 19 of the Act

there is now an express obligation to ensure that any future legislation conforms with the European Convention on Human Rights (ECHR). With respect to the detention of dangerous people, any future legislation must comply with Article 5 of the Convention which safeguards against the arbitrary deprivation of liberty, especially Article 5(1)(e) which provides for the detention of ‘persons of unsound mind, alcoholics, or drug addicts or vagrants’. In future, therefore, not only will courts be required to interpret any legislation in accordance with the Convention, but there is also this express obligation imposed on the government to ensure that any future legislation is compatible with it. In light of these obligations, contributors to Section Two of the book – Risk Management and the Law: Balancing Individual Rights and Public Protection (Fennell, Hudson) – assess the government’s proposals from a human rights perspective. Their chapters focus on the role of the law and how it should ensure that rights and risks are carefully balanced to ensure compliance with the ECHR. It is also important to ensure that the procedures for assessing risk are robust and reliable in order that justice and due process is respected, and individual liberty is not deprived on the basis of inaccurate or exaggerated predictions of risk.

The pre-eminence of risk in our society cannot be understated – all sectors of society are preoccupied with notions of risk. Ericson and Haggerty in their attention to the role of the police in the ‘risk society’ point to an ‘insatiable quest for more and better knowledge of risk’, which can merely serve to reinforce pre-existing anxieties rather than counter them. Furedi in his text Culture of Fear (1997) also points to the prominence of notions of risk in how individuals organise their lives and evaluate their existence. He is not only concerned with crime related fear but rather with the proliferation of a whole range of anxieties, including fear about health and the environment. For him individuals increasingly live their lives through a prism of risk, adopting a range of risk limitation strategies, intended to enhance their risk aversion. Linked to this a risk management industry has emerged, which includes the various modes of classification and categorisation recently adopted in criminal justice spheres. Feeley and Simon (1992) propose that resort to the actuarial language of prediction is likely to be an ongoing process and will remain as a distinguishing characteristic of penal practice for the foreseeable future. With that in mind, several contributors highlight the prominence of risk assessment strategies and the use of actuarial data in predicting and managing risky behaviour in a number of different contexts. Kemshall and Maguire’s chapter provides a pertinent review of how such approaches impact on multi-agency work with sexual and violent offenders. Eastman, Hare and Maden assess the efficacy of different risk management tools employed in psychology and psychiatry for identifying risk in disordered individuals; whereas Levi focuses on empirical data in identifying and regulating the risks of financial crime and Horlick-Jones uses the Notting Hill Carnival as an example of the importance of empirical work in effective risk management.

Traditionally mental health professionals, criminologists and lawyers have very little understanding of their respective roles, what their concepts and professional language mean, their scientific methodologies and techniques, or codes of conduct. Each discipline may also have very different perceptions of risk and different expectations about our ability to successfully identify, assess and manage risky behaviour. The proposed DSPD legislation will dramatically alter our working practices and require us to work much more closely together. Consequently there will be a need to develop new ways of working in harmony with each other. It is at this point that there is maximum opportunity for error, confusion, miscarriage of justice, and clinical catastrophe. Ignorance becomes dangerous and creates further risk. It is at these points in time that we need to develop our knowledge base and attempt to understand the working practices and philosophies of our colleagues in different disciplines. This is what this book aims to do. The three sections of this book each focus on different, yet overlapping, issues, each central to each discipline’s (mental health, law, criminology) respective ability to balance all the competing interests and work effectively within the ‘risk society’ that we have become.

1.2 SECTION ONE: RISK ASSESSMENT IN MENTAL HEALTH AND PROFESSIONAL RESPONSIBILITY

Section One focuses upon our ability to predict future risk of offending in the individual and the different methodologies and scientific principles applied to this endeavour. This is very much the domain of psychologists and psychiatrists and these professionals attempt to assess, manage, control and treat ‘risk’ within the individual. Risk of reoffending can be assessed for any criminal behaviour, but most often applies to risk of serious violent and sexual offences.

In Chapter 1, Maden argues that the advances in the epidemiology of crime do not, and cannot, aid us in the risk assessment and risk management of the individual patient. To illustrate his point, Maden uses examples of epidemiological statistics, which demonstrate an association between certain ethnic groups and high, or low, rates of criminal behaviour. He argues that although these associations undoubtedly exist it would be wrong to base a risk assessment of any given individual purely on the basis of their ethnic origin. So too, argues Maden, would it be wrong to evaluate risk of dangerousness solely on the presence of mental illness or personality disorder, even though an association between these groups and criminal behaviour may exist. He cogently argues that population studies should not be applied directly to individuals and uses case examples to demonstrate that serious harm has been caused when this has been attempted. Maden

also describes the advantages of learning lessons about individual clinical risk assessment and management from Inquiries after Homicide (statutory inquiries that occur if a mentally disordered person who has been in recent contact with psychiatric services kills somebody) and states that these lessons have never been identified from large scale actuarial risk studies. Importantly, not only do these Inquiries teach us important lessons about what the scientific risk assessment literature has not identified (and perhaps never can), but they also paint a picture not of clinicians using the best risk assessment tools and methods available and struggling to push the limits of these methodologies still further, but of failures of basic clinical care by individual clinicians and agencies. These failures are at the level of human error and occur both in terms of not taking sufficient account of the patient’s history, poor evaluation of current mental state, discontinued treatment (by either poor diagnosis or poor compliance), not taking appropriate action early on in relapse, and poor communication both within and between agencies. Thus, Maden argues, it is not our poor ability at predicting risk in mentally disordered offenders that leads to tragedy but the inability of certain clinicians and agencies to follow simple rules of basic clinical care.

Hare’s chapter describes the concept of psychopathy and its measurement. He describes psychopathy as ‘a personality disorder defined by a cluster of interpersonal, affective, and lifestyle characteristics that results in serious negative consequences for society’. The validity of the construct of psychopathy is also discussed, specifically with regard to its ability to predict violent and sexual reoffending in male and female prisoners, adolescent offenders, mentally disordered offenders, and civil psychiatric patients. The evidence that psychopathy (as measured by the Psychopathy Checklist – Revised; PCL-R) can predict recidivism across all forensic populations is striking. It is now increasingly accepted by both forensic psychologists, clinical psychologists, psychiatrists and the legal profession that any assessment of future risk of violence should include an assessment of psychopathy using the PCL-R. Indeed, Hare goes so far as to state that the evidence that the PCL-R is the best identified predictor of violent reoffending to date is so strong that failure to conduct such an evaluation as part of a risk assessment on an individual may be unethical from a professional viewpoint.

The chapters by Maden and Hare illustrate the broad differences of opinion between the professions of psychiatry and psychology about how best to conduct risk assessment and management and the ethics of this endeavour. On the one hand Hare argues that it is ‘unethical’ and ‘unprofessional’ not to use assessments with proven predictive validity for assessing future risk of serious offending. On the other, Maden argues that such ‘group’ statistics offer little in the assessment of risk for the individual and indeed that it can be misleading and unethical to base such assessments on anything other than clinical observation. These markedly different

opinions on the assessment of risk of future reoffending cut to the core of, and cast major doubts upon, the government’s proposed legislation for DSPD, where assessment of risk is a central and essential component.

To add further fuel to the fire, both Maden and Hare only discuss risk assessment and risk management of people who have already offended. They do not address the issues involved in conducting individual risk assessments in people who have never previously been convicted. Presumably, this is because currently such assessments are a rare event. The validity of risk assessments of individuals who have n...

Table of contents

• COVER PAGE
• TITLE PAGE
• COPYRIGHT PAGE
• CONTRIBUTORS
• ACKNOWLEDGMENTS
• CHAPTER 1: RISK: THE PROFESSIONAL, THE INDIVIDUAL, SOCIETY AND THE LAW
• SECTION ONE: RISK ASSESSMENT IN MENTAL HEALTH AND PROFESSIONAL RESPONSIBILITY
• SECTION TWO: RISK MANAGEMENT AND THE LAW: BALANCING INDIVIDUAL RIGHTS AND PUBLIC PROTECTION
• SECTION THREE: RISK IN SOCIAL CONTEXTS
• BIBLIOGRAPHY