Justifying risk decisions

Copyright © 2008 John Wiley & Sons, Ltd 18: 139–144 (2008)DOI: 10.1002/cbm

EditorialJustifying risk decisions

Criminal Behaviour and Mental Health18: 139–144 (2008)Published online in Wiley InterScience (www.interscience.wiley.com) DOI: 10.1002/cbm.690

DAVID CARSON, Institute of Criminal Justice Studies, University of Portsmouth, Old Portsmouth, UK

Professionals, working in mental health services, must take many decisions about risk. Fears of criticism or legal liability can, though, cause intense anxiety and lead to conservative, often improper decisions. I suggest practical steps to reduce the likelihood of inappropriate criticism whilst improving the quality of decisions. Although presented here almost as a checklist, the following proposals should be understood as an integrated programme for tackling the ‘blame culture’. The evidence and theory to support them are presented more fully in a recent book (Carson and Bain, 2008).

Focus on risk in decision-making

The focus has tended to be upon understanding, predicting and controlling ‘the risk’. This abstracts and reifi es the issues from their practical context and, the decisions that must be taken, but practitioners need to be able to justify their decisions, and indecision. A focus on the process of decision-making will high-light the integral, iterative, relationship between risk assessment and risk man-agement. Both must be considered; whilst good risk management may prevent a poor risk assessment causing harm, the converse does not apply.

A decision-making focus allows us to adopt defi nitions which work for, not against, professional practice. For example, ‘risk’ in clinical situations is fre-quently understood in terms of the chance of harm. But there is no law, conven-tion or other requirement, which prevents us from insisting that risk-taking can be as much about chance of benefi ts (e.g. discharge) as about chance of harms (e.g. suicide). Whilst the House of Lords, in a leading case on the standard of care expected of professionals, assumed that ‘risk’ involved the chance of harm it specifi cally recognized that it would be appropriate to balance those with the chances of benefi t (Bolitho v. City and Hackney Health Authority, [1998] A.C. 232).

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It is easier to justify risk decisions if the potential benefi ts are articulated and assessed as part of the decision. Practitioners may be unused to identifying poten-tial benefi ts but they can do so simply by identifying the short-, medium- and long-term goals of their proposed risk decisions. And they should be prepared to communicate, to judges and others, the importance of those benefi cial outcomes. For example, should judges be told that gaining a patient’s motivation is ‘useful’ or ‘critical for making progress’? Time spent agreeing on multi-disciplinary state-ments about the importance of particular outcomes, albeit variable for each case, will help to convince potential critics that the risk assessment was balanced and justifi able.

Focus on the decision-making process also highlights core contextual issues. For example most mental health practitioners’ decisions, or advice, relates to a time period; the suicidal patient will be checked at specifi ed intervals, and that requirement will be regularly reviewed at specifi ed time intervals. Risk assess-ments, and management plans, should be explicit about these time periods. Decision-makers should only make risk assessments for periods of time they con-sider professionally proper, that is based on the fi t between quality research evi-dence and detailed knowledge of the person being assessed. The iterative classifi cation tree approach to predicting violence by discharged mentally disor-dered patients, for example developed by the Macarthur Research Network (Monahan et al., 2001), was based on violence reported within 20 weeks (p. 34).

Risk assessors should decline requests to assess ‘the risk’ for an open-ended or inappropriately long period of time. They should explain that such assessments are not supported by research and, given other wide ranging factors relevant to risk within the person under assessment and his environment, they are invita-tions to error. They could also insist that such assessments are qualifi ed by certain assumptions, for example that a specifi ed risk management plan remains in opera-tion and that the patient or client remains co-operative.

‘Risk assessment’ should be understood as collecting relevant information about what might happen – how benefi cial and harmful – and its likelihood. It is an apolitical information gathering and assessing exercise. However ‘risk man-agement’ concerns the quantity and quality of the ‘resources’ available to help implement and infl uence the risk decision towards success, and away from harm. These resources include the knowledge, skills, facilities, funds, programmes, and the time available of the people managing the risk. Good risk management is essentially informed and controlled risk taking and not the same as risk assess-ment. Quality risk decisions require information, but quality risk management requires much more, and this should be explicit.

The decision-making context should be transparent. For example, some risk decisions may be better acknowledged as ‘facing up to dilemmas’. Often there is a sense that risk decisions can be postponed, and that harm will not result from inaction. That is not always the case. There will be cases when, whatever deci-

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sion is taken, including delay in changing the status quo, harm is probable. Such cases require the professionals to ‘face up to a dilemma’, and this feature should be taken into account when anyone judges their decision. Surgeons who must amputate limbs at the scene of a car crash in order to save life must perform the operation according to agreed professional standards but these cannot be pre-cisely the same standards as would be applied for cold surgery. Professionals are entitled to be judged by the standards appropriate for tackling emergencies or dilemmas, rather than some absolute standard (Rogers, 2006).

Adopt ‘precepts’ about risk and risk-taking

The public response to professionals’ risk-taking cannot be arranged and guar-anteed, but it may be infl uenced. Mental health service providers should agree and publicize a number of ‘precepts’ about the nature of risk and risk-taking. These are self-evident ‘truths’ about risk-taking, generally agreed with their pro-fessional associations and employers. As this should improve staff morale, and reduce the risk of litigation, employers ought to embrace these principles.

By adopting such precepts, the organization would be publicly declaring its willingness to judge and be judged by the statements. Space prohibits a full list of precepts but the following are indicative:

• Risk is part of life so, by defi nition, it is inevitable that harm will sometimes occur, irrespective of the quality of risk decisions and risk management.

• The quality of a risk decision cannot properly be impugned just because harm resulted. Equally a risk decision should not be assumed good just because no harm occurred. And failure to make a necessary decision may be the cause of harm, and deserve censure.

• When judging a risk decision, both the risk assessment and risk management should be considered, including the quantity and quality of resources made available for the latter.

• By defi nition risk assessment involves imperfect knowledge and risk manage-ment involves fi nite resources.

• Risk assessment inevitably involves diffi cult decisions about values. That others would have made different decisions does not, on its own, indicate that a poor or improper decision was made.

• Anyone, including managers, supervisors, system designers, and employers (i.e. not only those in the front line) can be the cause of poor risk decision-making, such as where insuffi cient or inappropriate support, advice, information, train-ing, or other resources are provided.

• If risk-taking is to improve then there must be analysis of good decision-making, not just inquiries where harm results. People will learn more useful lessons from what works than from what does not work.

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Recognize multiple responsibilities for action on poor risk-taking

It is traditional to conceive of ‘the risk’ as being in others (e.g. patients), products or more distant environments, but the risk assessors and clinicians immediately managing the risk are part of the dynamic process of delivering safety. Assessors may increase risk if their decision-making is of a poor quality. Research has identifi ed a number of causes of poor decision-making (e.g. Breakwell, 2007). Procedures could be developed to minimize their likelihood and/or signifi cance. For example, we are all at risk of cognitive overload; there is a limit upon the amount of information we can process at any one time. Decision aids can help to structure the information and the process. Decision-makers particularly need feedback on successful decisions. That would be much more appropriate, and valuable, for promoting good practice than the reports of inquiries into cases where harm has occurred. Who will take responsibility for positive feedback?

Managers, employers (such as hospital trusts), and professional associations have the power to act upon organizational problems. For example, one profession may be unwilling to exchange information with another, which is not bound by the same rules of confi dentiality. Different administrative boundaries between organizations, for example between health and social work services, can lead to a proliferation of different working practices, forms, arrangements. Unnecessary complexity, in obtaining information to undertake assessments and to implement management plans, makes risk decision-making more risky.

Use the law pro-actively

Those wishing to sue risk decision-makers are most likely to adopt the law of negligence (Rogers, 2006), but even in an inquiry, rather than litigation, some of the fi ve tests for negligence are likely to be considered, at least implicitly. For example, there can be no liability for negligence if the risk decision did not cause the loss. If a clinician made a poor risk decision, but the harm would have hap-pened anyway because of other factors, there is no liability in the law of negli-gence. However, an inquiry, or disciplinary hearing, would still be entitled to condemn the decision-maker as the inquiry only needs to consider the quality of the decision.

The most important requirement for the law of negligence, in practical terms, is that the risk decision was one which no responsible body of co-professionals would have made. Although the decision, on this core issue, is made by the trial judge it is one of fact, not law. The judge has to decide what is professionally acceptable, with only a limited provision for concluding that those standards are indefensible (Bolitho, op. cit.). The ready availability of clear, current, profession-ally endorsed standards and values should reduce litigation. If complainants can readily observe that the standards and practices involved, in their case, were consistent with contemporary practice, they are less likely to risk suing.

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Identify and act on ‘weak spots’

Even if the risk assessment and management plans were consistent with current professional standards, critics are increasingly likely to focus upon process prob-lems, for example problems in communicating risk assessments are relatively easy to demonstrate. Does the clinician, who hears an outcome described as ‘signifi cant’ and ‘likely’, understand the same things as the speaker? If not, then all the effort put into obtaining a research supported assessment may be wasted.

The use of risk factors may also be criticized. For example, in the system adopted, is it implicit that all the factors are equally predictive? That is unlikely to be justifi ed by the research (Monahan et al., 2001). Do some factors lead to ‘double-counting’? For example is the same reason for concern repeated just because described in different language? Is the same evidence repeatedly, and inappropriately, used to support different factors? The risk assessment ought not to be a function of how the risk factors are written. It might be wise to use a ‘sieved funnel’ to ensure that the use of each factor only adds the appropriate extra concern, be that about the outcome or its likelihood. Risk factors can also be criticized for being biased. They help to articulate the likelihood and degree of harm, not of success. Preventive factors may help to suggest that certain harms are less likely than might have appeared. But that is not the same as having factors which help to predict the success of the risk decision.

Conclusion

The risk of being unfairly criticized for making, or advising upon the risk deci-sions which being a mental health professional entails, can be reduced, but it requires a continuing investment of time and other resources as a learning para-digm is necessary. The focus should be on a transparent process of active deci-sion-making. Passive avoidance of risk taking may itself be harmful. Assessment and management of risk acknowledges the continuing role of chance, and that there are few, if any, certainties. It is possible to learn from mistakes, but learning from success is insuffi ciently emphasized in this fi eld.

References

Breakwell GM (2007) The Psychology of Risk. Cambridge: Cambridge University Press.Carson D, Bain AJ (2008) Professional Risk and Working with People: Decision-making in Health,

Social Care and Criminal Justice. London: Jessica Kingsley.Monahan J, Steadman HJ, Silver E, Appelbaum PS, Clark Robbins P, Mulvey EP, Roth LH, Grisso

T, Banks S (2001) Rethinking Risk Assessment: The Macarthur Study of Mental Disorder and Violence. Oxford: Oxford University Press.

Rogers WVH (2006) Winfi eld and Jolowicz on Tort. London: Sweet & Maxwell.

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Address correspondence to: David Carson, Institute of Criminal Justice Studies, University of Portsmouth, 147 High Street, Old Portsmouth, PO1 2HY, UK. Email: [email protected]

Justifying risk decisions

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