the introduction of supervision registers in england and wales: a risk communications analysis

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The introduction of supervision registers inEngland and Wales: A risk communications analysisEstella Baker Lecturer aa Law , University of Leicester , University Road, Leicester, LEI 7RHPublished online: 04 Jan 2008.

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ARTICLES

The introduction of supervision registers in

England and Wales: a risk communications analysis

ESTELLA BAKER

ABSTRACT Following the series of incidents during the early 1990s in which psychiatric atients living in the community committed serious harm to themselves or o tR ers, the De artment of Health issued circular HSG(94)5 to health authorities instructing i e m to establish supervision registers for such patients. Despite the fact that the circular was extensively criticized on procedural, substantive and polic grounds, its proposals have nevertheless been implemented.

munications perspective and argues that the initiative should be understood as, first, an attempt to deflect attention from the unacceptable consequences of community care and, second, a response to the wider electoral concerns of the government.

This article consi d ers the actions of the Department of Health from a risk com-

Keywords: supervision registers, community care, dangerousness, risk communication, risk assessment, negligence liability

INTRODUCTION

One unhappy feature of the mental health landscape during the 1990s has been a succession of incidents in which patients have committed serious harm to themselves or others within a comparatively short period of their release from mental health facilities. Apart from sparking a series of inquiries (see,

The Journal of Forensic Psychiatry Vol8 N o 1 May 1997 15-35 8 Routledge 1997 ISSN 0958-5184

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for example, North East Thames and South East Thames Regional Health Authorities, 1994), many of these incidents have gained considerable media attention. In the light of the promotion of ‘care in the community’, and the nature of the modern media industry, the increased profile of such occurrences was perhaps inevitable. Not surprisingly, however, there is little toler- ance for the more undesirable consequences of the former among either the general public or politicians whilst demands for ‘newsworthiness’ mean that the contributions of the latter are liable to reinforce perceptions of the mentally disordered as threatening and dangerous. Therefore, coming against the backdrop of the gathering strength of the victims’ movement (Tyrer and Kennedy, 1995: 194), the government felt it incumbent upon it to take steps to address the public concern aroused by these incidents. This was not least because continued adherence to the policy of community care was necessary in order to fulfil other important elements of its political mandate. Conse- quently, the first half of the decade saw a series of policy initiatives targeting the potentially dangerous mentally disordered, of which the establishment of supervision registers was one.

The registers were introduced under the auspices of circular HSG(94)5 (Department of Health, 1994) which the Department of Health issued to health authorities in February 1994. The circular began by explaining their purpose. According to paragraph 2, the registers represented a key element in (1) the reduction of risk, (2) the prioritization and delivery of care to patients, (3) the meeting of planning needs with respect to the target group of the register, and (4) the facilitating of contact between patients and health care teams. Having established its agenda, the circular then went on to spell out the detail of the arrangements that were to be made.

Although there were some positive reactions (Tyrer and Kennedy, 1995), response to the circular was largely hostile; fault being found for a comprehensive set of reasons (Cohen et al., 1996: 414). Nevertheless, the government persisted with its proposals and has proceeded to implement the registers. This article analyses the proposal from the perspective of risk communications with a view to explaining why the successful establishment of the registers was perceived to be a political priority. In order to set the dicussion in context, however, it will begin by summarizing the main features of the registers and outlining the principal objections to their introduction.

SUMMARY O F CIRCULAR HSG(94)5

Broadly, the circular dealt with eligibility, registration content and procedure, access, withdrawal, and management of the register. The latter two matters (see further Department of Health, 1994: paras 13-19,23-9) are not relevant to the discussion here and will not be considered further. However, as far as

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SUPERVISION REGISTERS 17

the remaining issues are concerned, the position can be summarized as follows. Beginning with eligibility, the circular defines the ‘catchment group’ of the registers as patients aged 16 and over whose condition satisfies a very wide definition of ‘mental illness’ contained in paragraph 2, and who are identified as falling within at least one of three specific risk groups (Depart- ment of Health, 1994: para. 9). These are:

significant risk of suicide; significant risk to others; significant risk of severe self-neglect.

Entry on the register must state which group(s) the patient has been identified as belonging to and include any relevant information regarding material- ization of the risk.

The decision to register a patient is formally one for the consultant psychiatrist. However, it is to be made in consultation with other members of the care team and, ideally, the general practitioner of the patient. The patient plus, at his or her discretion, an advocate, friend or carer, must be afforded the opportunity to have their views taken into account (Department of Health, 1994: paras 3-5). Once registered, normally, the patient must be informed orally and in writing that an entry has been made, together with the reasons. Supplementary information regarding the use to which information on the register can be put, to whom it can be disclosed, and the mechanisms for review must also be provided. However, these procedural safeguards are not entirely water-tight since the information may be withheld, albeit tem- porarily, if its communication is thought detrimental to the physical or mental health of the patient (Department of Health, 1994: para. 12).

Turning to the question of access, a distinction is drawn between those entitled to information held on the register as of right and those to whom its disclosure is discretionary. The former category consists of the patients themselves who may have a limited right of access under the Access to Health Records Act 1990 or orders made under the Data Protection Act 1984 and, secondly, those involved in planning and/or providing care for the patient, to whom the register is to be ‘readily accessible’. Outside this ‘need to know’ group, information may be disclosed to a fairly comprehensive set of external agencies including social services authorities, independent sector providers and, with respect to mentally disordered offenders, probation and other criminal justice agencies. Such discretionary disclosure may be made with the consent of the patient or in its absence if justified in the public interest (Department of Health, 1994: paras 20-2).

As stated above, the scheme established by these arrangements provoked considerable criticism when it was announced. This was directed at procedural, substantive and policy levels and it is to this criticism that discussion will now turn.

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CRITICISMS OF THE PROPOSAL

Procedural criticisms

The procedural criticisms were broadly of three kinds. First, and most fundamental, objections were quickly raised regarding the legal status of the guidance. As a point of principle, it can be argued that the registers promised potentially damaging consequences for the liberty of subjects and, therefore, ought properly to have been introduced by primary legislation (Harrison, 1994: 1017). Plainly, however, this was not done. Moreover, appropriate authority for the circular in secondary law also appeared to be lacking. Harrison identified the power vested in the Secretary of State to make directions under s.17 of the National Health Service Act 1977 as its most plausible foundation. However, as she pointed out, not only did the guidance not purport to be made under that section but ‘it is not possible to direct through guidance, and the Government has conceded that the circular “does not have the force of law” ’ (Harrison, 1994: 1017). Enquiry as to the validity of its legal base involves more than a matter of mere legal nicety. First, such enquiry raised questions about the degree of democratic control exercised over the introduction of the registers since they were not subject to the intense parlia- mentary scrutiny that is normally applied to legislation. Second, it has significant practical consequences as regards identification of the appropriate mechanisms both for regulating implementation of the registers and for seeking redress against their abuse.

The second criticism was more specific and related to the lack of provision of a right of appeal against a decision to register a patient. Whilst the consequences of registration do not match those flowing from compulsory admission to hospital, as has been seen, inclusion on the register may lead nevertheless to the disclosure of confidential information to third parties contrary to the wishes of the patient or may colour subsequent decisions regarding treatment and management in a manner that is prejudicial to civil rights (Baker, 1993: 538-9). At the very least, patients may suffer stigma through being included (Holloway, 1994: 595; Prins, 1995a: 220; Tyrer and Kennedy, 1995: 194). For this reason alone, the omission of a right of appeal was unacceptable.

Thirdly, the circular was criticized for vagueness (Prins, 1995a: 220). Although it set up a comparatively onerous list of requirements, much of the detail as to how they were to be achieved was omitted (see, for example, Department of Health, 1994: paras 7,12-19).

Substantive criticisms

Put at its most succinct, the underlying problem of a substantive kind can be summarized as a manifest lack of regard for the civil liberties of patients

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(Caldicott, 1994: 386; see also Cohen et al., 1996). This was revealed in a number of interrelated ways. The first develops the allegation of vagueness. Reference has already been made to the breadth of the definition of ‘mental illness’ incorporated in the circular (see further Caldicott, 1994: 385; McCarthy et al., 1995: 195). Not only does this ensure that a large group of patients are potentially ‘at risk’ of registration but the definition does not cor- relate with other provisions of mental health law, particularly the definitions provided by s.1 of the Mental Health Act 1983. Therefore, the circular created a new legal - or quasi-legal - species of disorder and is thus liable to extend the existing confusion and ambiguity regarding definitional matters in mental health law (Hoggett, 1996 ch. 2; Prins, 1995a: 220).

Secondly, as Prins pointed out,

Risk assessment (a lynchpin of registration) is a very imprecise art and some professionals are inadequately trained for it.

(Prins, 1995a: 220; see also Holloway, 1994: 594)

So much has been written about the practical and ethical problems associated with dangerousness and its prediction that it is impossible to give more than a brief flavour of this complex subject here (see, inter alia, Bowden, 1985; Pollock and Webster, 1990; Prins, 1986 ch. 4; Prins, 1990; Prins, 1995b: ch. 9; Walker, 1996). As is well known, apart from the absence of consensus as to a definition of the concept (Bowden, 1985: 265 f.; Prins, 1986: 84; Prins, 1990: 499 f.; Walker, 1983: 23), in essence, the principal problems surround the inherent difficulties of predicting the future behaviour of individuals with accuracy. Obvious difficulties arise in investigating the implementation of this task because a positive assessment of dangerousness generally attracts the imposition of a protectionist measure which is expressly designed to prevent the risk of harm from materializing. However, where studies have proved possible, the early data suggested that decisions are characterized by excessive caution to the extent that the prediction that an individual was dangerous was twice as likely to be wrong as right (see, inter aliu, Kozol et al., 1972: 371; Steadman and Cocozza, 1974; Thronberry and Jacoby, 1979). Not unnaturally, this provoked grave moral and ethical doubts regarding the continued reliance upon predictive judgements as a basis for decision-making (Baker, 1993; Bottoms and Brownsword, 1983 and, contra, Walker, 1983; Bowden, 1985: 274,277; Walker, 1996: ch. 1).

Increasingly, however, the pessimism that resulted from the earlier research is being challenged. For example, Monahan has pointed to a second wave of studies which indicate that predictions can be more accurate than was previously thought (1984: 10-1 1). Picking up on wider trends, this has led him, in conjunction with other colleagues involved in the MacArthur Risk Assess- ment Study (Steadman et al., 1993; Steadman et al., 1994), to embark upon a major redefinition of the research agenda in terms of risk assessment rather

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than dangerousness prediction (Steadman et al., 1993: 24 f.). As the language of circular HSG(94)5 is also couched in terms of risk, it too can be understood in terms of the emergent risk paradigm. Although painted as ‘new’, however, it is important not to be overly misled by the claims of the risk assessment lobby. The notion that predictions of dangerousness should be based upon identified risk factors is not original. On the contrary, practitioners in the field have been encouraged to seek evidence of such factors for many years (Prins, 1986: ch. 4; Prins, 1995b: ch. 9), albeit perhaps not in the systematic way that is now being advocated. But where the virtues of such an approach were recognized, the necessary skills to put it into effect were sometimes wanting. It is the replication of these practical problems which Prins foresees as having the potential to affect the registers in addition to the wider ethical problems.

The third focus of criticism of a substantive kind related to the issue of confidence. Apart from practical concerns about whether it could be maintained (Caldicott, 1994: 386; Cohen et al., 1996; Holloway, 1994: 594), doubts were raised as to the legality of the relevant advice contained in the circular. English law in this area is not as fully developed as it might be. However, breach of confidence appears to be permissible only in cases of iniquity or, alternatively, in the interests of public protection (X v Y [1988]; W v Egdell[1990]; R. v Crozier (1 990); Hellewell v Chief Constable of Derbysbire [ 19951). The circular appears to sanction disclosure outside these circumstances and thus seems to be in breach of the common law (Harrison, 1994: 1017). Moreover, it has also been suggested that the advice it contains may contravene the Euro- pean Convention on Human Rights and Fundamental Freedoms (1 950). But the issue is not clear-cut. Although Article 8 of the Convention protects the right to privacy, the right is not absolute but, under paragraph 2, must be weighed against competing public interests including, inter alia, public safety and the protection of health (Robertson and Merrills, 1993: 127 f.). Both of these considerations are of potential relevance in the context of the registers.

Policy criticisms

Aside from the problems surrounding the circular itself and the guidance it contained, further criticisms were levelled at the consequences foreseen to follow from the establishment of the registers. Many of these centred upon the potentially adverse impact upon the doctor-patient relationship (Caldicott, 1994: 386; Holloway, 1994: 594). First, it was perceived that the existence of the registers would require doctors to perform a more tangible policing function than was previously the case (Prins, 1995a: 220). Quite how much substance there is to this worry is a matter of debate. There is nothing new to the perspective that psychiatry is an instrument of social control (Szasz, 1962; Szasz, 1987; Norrie, 1993: ch. 9), nor about the vexed question

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of the ethics of its practice (Stone, 1984; Rosner and Weinstock, 1990). Argu- ably, therefore, the introduction of supervision registers merely requires psychiatrists to perform a familiar role in a fresh situation.

Second, introduction of the registers raised obvious questions regarding the position of psychiatrists in relation to registration decisions. For example, a psychiatrist who is reluctant to place a patient on the register must take into account the consequences that might flow from failing to do so if the patient should subsequently commit serious harm. In particular, it was suggested that the introduction of the registers will assist the victims of such episodes to bring successful actions in negligence against psychiatrists in respect of the violent acts of their patients (Caldicott, 1994: 386; Holloway, 1994: 594; Waterhouse, 1994 but see contra Tyrer and Kennedy, 1995: 194). Clearly, should such cases occur, psychiatrists will be under considerable pressure to register patients as a prospectively defensive measure. This is a matter which will be considered in detail below. Suffice it to say here that significant obstacles exist to the fruition of this fear and, in any event, the mere failure to register a patient is highly unlikely in itself to provide adequate grounds for a claim to lie.

Thirdly, from the perspective of the patient, if doctors are suspected to be under pressure to ‘play safe’ with regard to registration then this is liable to inhibit their willingness to speak frankly, thus undermining the treatment process. Insofar as a reluctance to be placed on the register might be a reflec- tion of its unnecessarily authoritarian and stigmatizing title (Holloway, 1994: 595; Prins, 1995a: 220; Tyrer and Kennedy, 1995: 194), it was suggested that an alternative, more benign substitute such as ‘support registers’ might have been more acceptable (Haghighat, 1994). However, not only was the suggestion not taken up but it does not need a cynic to point out that, in reality, the change wrought by such an amendment would be largely cosmetic.

Lastly, based on his survey of the operation of risk registers in other contexts, Prins suggested that, paradoxically, the effect of supervision registers might be to relax vigilance and control (Prins, 1995a: 220; see also Caldicott, 1994: 386). This counter-intuitive conclusion can be explained by the fact that placing an individual on a register can come to be perceived as taking adequate action, and thus replace more proactive forms of intervention. Con- sequently, registers can cultivate the very complacency which they are intended to counteract. As a result of this observation and others, Prins raised the most fundamental question of all: what do the registers add to the pre- existing umbrella of care and supervision, inter aliu, under the various sec- tions of the Mental Health Act 1983 (Prins, 1995a: 220)? In view of the widespread disapprobation which the circular received, the question was, of course, a highly pertinent one. But it was made all the more salient in the light of the estimated cost of implementing the proposals, which the Royal College of Psychiatrists assessed to be 277 million per annum (Caldicott, 1994: 385).

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This contrasts favourably with the figure of 2500 million suggested by the National Schizophrenia Fellowship (Tyrer and Kennedy, 1995: 193).

It is evident that some of the above criticisms were more fundamental than others. What cannot be denied, however, is the comprehensive nature of the adverse reaction that circular HSG(94)5 provoked. It is hard to believe that the general tenor of the response was not foreseen, even if it was underesti- mated. The question arises, therefore, as to what hidden merits the proposal might have which would have commended it to the Department of Health. It is in the exploration of this issue that principles established in the study of risk communication appear to offer a plausible explanation.

SUPERVISION REGISTERS A N D RISK COMMUNICATION

Principles of risk communication

The risk paradigm has emerged in relation to health issues only comparatively recently. Consequently, the literature under consideration here is not the product of research into mental health but forms one of the principal strands in the evolving discipline of risk analysis (Ansell and Wharton, 1992; Royal Society, 1992; Scott et af., 1992), which finds its conceptual origins in the natural sciences and engineering. Expertise in communication may not seem the most obvious product of such a background. However, in recent decades, escalating public concern regarding the hazards associated with technologi- cal advance has presented common challenges in a variety of apparently unre- lated contexts. These concern, first, the problem of how to market risks as acceptable commodities and, second, how to maintain levels of confidence in the institutions managing them (Renn and Levine, 1991). In the quest for answers, academic interest has focused upon the understanding of risk, together with the need to identify methods for educating institutions, politicians and the general public about it. The objective here, therefore, is to adopt the principles that have been developed in analysing the proposal to establish supervision registers.

At this stage, it is necessary briefly to describe a number of basic proposi- tions of risk communication whilst entering the caveat that the account which follows has been highly simplified. According to the literature then, a ‘message’ about risk means a ‘purposeful exchange of information’ (Renn and Levine, 1991: 177 f.). Secondly, the variable ‘message’ must be treated as dis- tinct from the variable ‘messenger’ because they behave independently of one another. In other words, although the information about the messenger conveyed by a risk signal may complement the content of the message, equally, it may be in direct conflict (Renn, 1991: 296 f.). For the same reason, it is

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I Message Messenger I MICRO Factual Individual MESO Institutional Group MACRO Policylcultural Society

Figure 1 Three-tier framework of analysis

important to distinguish between the factual (content and source) and infer- ential (conclusions based upon the content and source) components of a message (Renn, 1991: 300 f.). Thirdly, both messages and messengers may be analysed according to the three-tier framework shown in Figure 1 (Renn and Levine, 1991: 200 f.; Renn, 1991: 292 f.).

The framework is important because it is suggested that an understanding of its operation is instrumental to the ability of management institutions to address concerns about the risks for which they bear responsibility. To take a straightforward example: suppose the existence of opposition to a nuclear power station. Superficially, hostility may appear to stem from fear of the technology, a factual or micro-level concern. However, in reality, it may reflect a lack of confidence in the management of the installation, an institutional or meso-level concern. Theoretically speaking, to act as an effective antidote, remedial action taken in response to a risk message must be attached to the level of the originating anxiety. Therefore, technical, or micro-level, improvements would be inappropriate since they would constitute a solution at the wrong level. Instead, management would need to implement reforms at meso level, such as the introduction of more rigorous safety procedures, in order to address the concerns effectively. If these were successfully accom- plished, not only would trust be engendered in the contents of the response but confidence would be inspired in its communicator and the overall credibility of the managing institution enhanced (Renn and Levine, 1991: 179). Conversely, a response which was carelessly targeted would have a correspondingly negative impact upon the perceptions of its recipients (Renn and Levin, 1991: 199,209 f., 213).

A risk communication analysis of circular HSG(94)5

If the media campaign which helped to kindle the proposal to install the registers is considered in terms of risk analysis, it emerges that more than one risk message was ‘at large’. Interwoven with the obvious central issue of the perceived threat posed by the presence of uncontrolled patients in the community were implied threats to interests of fundamental importance to central government. In specific terms, the media campaign conveyed

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unfavourable messages concerning the validity of the community care programme and the competence of the government to manage the mentally disordered. For the Department of Health this was no trivial matter because the effect was to challenge two core aspects of its political strategy.

Theoretically, the objectives of the community care programme are per- fectly laudable. However, the reality of its implementation is that the detail of the policy has been dictated more by the imperative to relieve the Ex- chequer from the financial burden on the public sector than by the desire to improve the quality of life of its recipients. Delivery of tax cuts rather than delivery of services has been uppermost in the mind of the government. Sud- denly to find, therefore, that an area of policy significant to the delivery of fiscal promises was under attack in this way must have been deeply alarming. Furthermore, given its enthusiastic commitment to managerialist approaches to public policy, the implicit suggestion that the government lacked managerial competence also struck at the heart of its self-perceived identity and projected public image (compare Lacey, 1994: 540 f.). In two vital respects the media campaign seemed poised to unravel key strands of policy, thereby threatening the electoral interests of the government. As well as the direct challenge of what to do about the violent and disturbed behaviour of patients in the community, the government was under attack at both a policy and an institutional level.

Analytically, then, at least three separate operative risks were involved in the situation:

Risk one: the threat to self and others posed by the mentally disordered, i.e. a threat against individualdthe community at large or, in risk terms, a threat to micro-/macro-level interests; the threat to the community care policy represented by the media campaign, i.e. a threat to government policy, or, in risk terms, a threat to a macro-level interest;

Risk three: the threat to government as a managerial institution represented by the media campaign, i.e. a threat to the institution of government or, in risk terms, a threat to a meso-level interest.

Risk two:

Having identified these risk communication messages, the next question to ask is whether the analysis sheds fresh light upon the proposal to introduce supervision registers and, in particular, whether it discloses a hidden rationale for the promotion of such a controversial measure.

Dealing first with risk one (the threat posed by the mentally disordered), the analysis throws one singular fact into sharp relief. Despite the catalogue of faults found with the circular, remarkably little attention was devoted to the apparently central question of whether the registers are likely to satisfy

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their implied objectives of improving public safety and reducing public fear. Moreover, recent research suggests that investigation of this issue is fraught with difficulty (Cohen et al., 1996). However, the answer suggested by risk communication is that they will not prove effective. The establishment of the registers constitutes a response at policy (macro) level. Therefore, although the initiative may have some positive effect upon public anxiety, it is most unlikely to afford any reassurance to individuals on a personal (micro) level. Consequently, it appears that yet another defect in the guidance can be added to those previously discussed.

The hitherto unmitigatedly negative picture, though, changes when risks two and three are considered. Regarding the former, since the threat relates to a macro-level policy interest, the macro-level initiative to establish the registers has the potential to prove an effective counter to it. Action has been taken at the appropriate level to reinforce the community care programme. Not only should this enhance confidence in the policy but it should also afford the tangential benefit that the pressure on fiscal policy is simultaneously relieved, thereby achieving a further objective of the government. Furthermore, this is an example of a situation in which the message and the messenger complement one another. Therefore, success in responding to risk two generates a correspondingly favourable outcome in relation to the institutional threat described by risk three.

Research has identified the quality of responsiveness to be positively cor- related with institutional credibility (Renn and Levine, 1991: 197-8), and responsiveness is the impression likely to be conveyed by the package of initiatives designed to bolster the community care programme. Therefore, by moving to neutralize the threat to policy, the Department of Health has simultaneously acted to countermand the meso-level threat to its own credibility. Moreover, in so far as circular HSG(94)5 was cast in the language of the Citizen’s Charter (1991) and adopted managerialist principles, it was consistent with the broader policy agenda (Lacey, 1994; Peters, 1986) and was designed to accentuate the image which the government wishes to convey to the general public. Thus, in this way too, the proposal addressed electoral concerns. Overall, therefore, from the perspective of the government, the introduction of supervision registers promised considerable dividends. The full force of its attraction, though, does not become apparent until the question is asked as to who will shoulder the responsibility if the registers are seen to fail. When explored in terms of risk communication, the answer suggested justifies the identification, at the time the proposal was announced, of an underlying strategic objective to enable central government to evade the blame for policy failure, deflecting it instead on to service providers (Caldicott, 1994: 386; Holloway, 1994: 594).

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THE SHIFT I N RESPONSIBILITY EFFECTED BY THE REGISTERS

Before considering its consequences, it is necessary first to define ‘failure’. For the purposes of this discussion, it will be taken to mean the occurrence of a further incident in which former patients, whether registered or not, commit serious harm to themselves or others, or descend into circumstances constituting severe self-neglect. The reasons for this definition are twofold. First, it is the continuation of such occurrences that the registers are intended to prevent (Department of Health, 1994: para. 9). Second, there is good reason to suppose that this definition of failure, especially in so far as it refers to the commission of serious violence to others, will be that adopted by the media and, by extension, the general public.

So who is likely to be blamed if such an incident occurs? As other com- mentators have noted (Caldicott, 1994: 386; Holloway, 1994: 594), the obvious answer is the health authorities charged with implementing the registers and, more especially, the psychiatrists responsible for registration decisions. Thus the full beauty of the proposal from the point of view of the Department of Health can be seen. In addition to the benefits identified above, the initiative provides a fresh illustration of a well-worn strategy in that it enables central government to generate a useful distance between itself and a potentially contentious aspect of social policy for which, in reality, it is substantially responsible.

It is possible to identify a dual mechanism through which this ‘distancing’ can be achieved. The first is that disquiet about deficiencies in policy implementation at national level can be retargeted at local level by redefining the problem in terms of defects in service delivery. This in turn will contribute to the second distancing effect. Rather than the spectacle of a centralized media campaign, the energy devoted to seeking redress for register failures will be fragmented among a mass of uncoordinated individual claims. As a consequence, it will be much more difficult to gain a representative picture of the overall standard of implementation of the community care policy, thus diminishing the visibility of any problems that arise. What is more, if the implications of the resulting shift in focus are considered, it is apparent that the move has even greater subtlety than appears at first sight. This is because, under the present state of the law, the prospects for such claims are poor.

Suppose, for example, that a patient is discharged from hospital, not entered on the register, and then goes on to commit a serious act of violence. The majority of such individuals are unlikely to be seised of sufficient resources to make them worth suing for battery. Therefore, it can readily be imagined that, consistent with the fears aired above, the victim might seek compensation by means of a negligence action against the consultant psychiatrist who decided against registration. Considerable obstacles, though,

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would be faced in pursuing such a claim. To succeed, the plaintiff-victim would have to demonstrate that a duty of care was owed by the defendant- doctor and, second, that the duty had been breached. Neither would be easy to establish. Moreover, even before the question of breach arose, an arguable claim would be vulnerable to being struck out for reasons of public policy (Osman v Ferguson [ 19931).

Tackling first the problem of establishing a duty of care, it is well accepted that foreseeability alone is insufficient to generate such a duty. Instead, English law demands the presence of a close degree of proximity between the parties amounting to a special relationship (Home Office v Dorset Yacht Co. [1970]; HiU v Chief Constable of West Yorkshire [1989]; Swinney and another v Chief Constable of the Northumbria Police [1996]). Such a relationship is not readily identified but it is possible to envisage relevant situations in which a court might find that it was present. For example, an analogy might be drawn with the facts of Osman v Ferguson [1993]. In this case the plaintiff family had suffered an escalating pattern of violent and bizarre behaviour from a third party, which ultimately resulted in the death of one family member and serious injury to a second. Despite express knowledge of the vic- timization, the police had failed to intervene in any meaningful way. Acting on the assumption that the pleaded facts were proved, the Court of Appeal recognized the existence of a special relationship between the plaintiffs and the defendant Police Commissioner on the grounds that the former had been exposed to a risk of danger ‘over and above that of the public at large’ ([I9931 at 350). A situation in which a psychiatrist neglected to respond to threats against a small identified class, such as family members, threats that were then subsequently acted upon, might similarly be deemed to generate a sufficiently proximate relationship for a duty of care to arise. But such examples are exceptional. More usually, in cases such as the Zito killing (North East Thames and South East Thames Regional Health Authorities, 1994) where the victim is selected at random, the law is currently unreceptive to providing a remedy. Not only does a special relationship not subsist but there is not even foreseeability. For redress to become available it would be necessary to develop a general duty of care akin to the Turasoff doctrine in the United States. Broadly speaking, this obligates psychiatrists to take steps to protect potential victims from the serious danger of violence posed by their patients (Tarasoff v Regents of University of California (1976)). Thus far though, English law has held out against the adoption of this troublesome doctrine. Whilst the courts have given limited endorsement to the unauthorized disclosure of confidential information deriving from a psychiatric examination in circumstances where it appeared justified in the interest of public protection (W v Egdell [1990]), this is a long way short of imposing a positive duty to make such disclosure (Mackay, 1990).

In those circumstances where there was held to be an arguable case that the

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requisite proximate relationship existed, the question of whether the claim should none the less be struck out for reasons of public policy would then arise. Such was the fate of the action in Osman v Ferguson [1993]. The Court of Appeal took the view that allowing the claim to proceed would not promote the observance of a higher standard of care. O n the contrary, it might prove counter-productive since, for defensive reasons, police forces might be encouraged to adjust their priorities so as to divert resources away from the investigation of crime ([1993] at 351 following Hill v Chief Con- stable of West Yorkshire [1989] at 63-4). This objection, though, does not hold good in all policing situations (Swinney and another v Chief Constable of the Northumbria Police [1996]) and is probably not applicable in the context of the registers. Instead, it can be argued that the public interest would be advanced by the imposition of liability because their essential purpose is to protect public safety through promoting the cautious practice of psychiatry in community settings. Furthermore, there is a material distinction between the general crime-fighting function of the police on the one hand, and the specialized protective function that psychiatrists are expected to perform in relation to the registers on the other. The reluctance of the courts to interfere with operational policing decisions is well entrenched since it has long been accepted that, constitutionally, the police are in a uniquely independent position regarding their authority to determine their own organizational priorities (R. v Metropolitan Police Commissioner, ex parte Blackbctrn [1968] but see Marshall and Loveday, 1994: 296 f.; see also Hill v Chief Constable of West Yorkshire [1989] at 63-4). But self-evidently, this same constitutional argument could not avail psychiatrists. However, this is not to say that a constitutionally based case against the imposition of La- bility could not be constructed at all.

At present, despite the difficulties that result, there is no clearly forged distinction under English law between the duties and responsibilities associated with the public and private uses of psychiatry (W v Egde11[1990]). Conse- quently, practitioners who perceive a conflict between the interests of a patient and those of the general public must fall back upon the non-statutory advice of the General Medical Council in determining the appropriate boundaries of professional conduct and, in particular, in identifying where their overriding duty lies. The establishment of a precedent that a psychiatrist owed a duty of care to a third party in respect of the actions of a patient would be highly significant, therefore, because it would constitute a tangible step towards the creation of a formal legal duty to consider the interests of society as paramount. Such a development might be welcomed by doctors in so far as it helped to clarify the parameters of their professional duty. However, it would interfere materially with the normal expectations of the doctor-patient relationship to the detriment of the patient. Echoing the argument that the registers ought properly to have been introduced by primary

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legislation, there is a case from a civil liberties perspective that such a serious modification of patient expectations ought also to be effected by statute. However, the prospects for such a principled stance are poor. Situations with the potential for conflict between the interests of society and those of individual patients are rife in forensic settings but have yet to attract legislative attention. Therefore, the undesirable state of affairs in which the courts are left to resolve complex ethical dilemmas on a piecemeal basis looks set to con- tinue. In the light of this, given that the registers are deliberately designed to focus attention upon the need to concentrate resources on a specific group of problematic patients, it is probable that the courts will experience little difficulty in concluding that the imposition of liability would serve to further, rather than hinder, their underlying purpose. In short, it does not seem likely that considerations of public policy would obstruct the plaintiff in pursuing a negligence action in the rare circumstances in which an arguable claim was made out.

Having established the existence of a duty of care, the plaintiff would next be confronted by the second obstacle: proving that the duty had been breached. According to precedent, the standard of care expected of a psychiatrist is that ‘of an ordinary skilled man [sic] exercising and professing to have the [skill of psychiatry]’ (Bolam v Friern Hospital Management Com- mittee [1957] at 586). The standard is to be judged ‘in accordance with a practice accepted at the time as proper by a responsible body of medical opinion even though other doctors adopt a different practice’ (Sidaway v Governors of Bethlem Royal Hospital [1985] at 881, per Lord Scarman). Quite how these principles would be applied in the context of risk assessment in relation to supervision registers, it is interesting to speculate. However, as with the question of duty, the odds of success seem to be stacked against the plaintiff.

To begin with, it is necessary to emphasize a basic point applicable to all professional negligence claims: a small body of medical opinion can none the less constitute ‘a responsible body’. Therefore, the defendant would not need to go as far as demonstrating that the majority of psychiatrists would have acted identically in order to defeat the claim. Second, it is necessary to consider what implications the peculiar character of the risk assessment process itself might have for the question of liability.

Given that the view that dangerousness prediction is highly inaccurate remains the prevailing one (but see Monahan, 1984; Monahan, 1988 contra), a sudden flood of negligence claims arising from such predictions might provoke any one of at least three reactions. The first possibility is that the acknowledged deficiencies in prediction might lead psychiatrists entirely to withdraw from performing dangerousness assessments. A response which took this form would mirror experience in the United States in the wake of the Tarasoff decision. The discovery that they owed a duty of care to the potential victims of the violence of their patients, coupled with the

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knowledge of the limitations of prediction techniques, persuaded many psychiatrists drastically to re-evaluate their self-proclaimed expertise in prediction (Beck, 1990). However, given that an equivalent expansion in the duty of care seems unlikely to occur under English law, a reproduction of the American approach seems an unlikely eventuality. What then of the second possibility?

The argument here rests upon a superficial grasp of the research evidence as merely pointing to the inaccuracy of prediction, without further elabora- tion. A case could be made that errors are only to be expected and that this reality somehow explained away what might otherwise be received as cul- pably faulty judgement. The argument is hardly compelling since it amounts to fostering inaccuracy as a defence. But, if accepted, it would reduce the issue to the question of whether the doctor had reached the registration decision by a sufficiently professionally credible route to meet the standard of care. Provided that this was so, the negligence claim would fail. In this context, the ongoing transition from dangerousness prediction to risk assessment might become highly relevant. This is because, aside from the fact that the risk assessment model is incorporated into the body of circular HSG(94)5 itself (Department of Health, 1994: paras 9-1 1, Appendix A, Part 2, inter alia), the putatively scientific methodologies and transparent decision-making pro- cesses (Steadman et d., 1993; Steadman et d., 1994) that are characteristic of the paradigm shift are particularly amenable to legal arbitration. Therefore, a clinician who adhered to the new risk assessment orthodoxy ought to have an advantage in persuading a court that a decision had been taken in accordance with prevailing professional standards. Were this line of reasoning to prevail, it is clear that in all but extreme cases the effect would be to deny a remedy to those victims who had progressed beyond the difficulties of establishing a duty of care.

The third and, it is submitted, most likely possibility is that the contribution of the registers would be to reinforce the prevailing culture of caution in decision-making practices. As previously explained, a closer examination of the research literature reveals that the assessment errors fall preponderantly in the direction of over-, not under-, prediction. Applied to supervision registers, this suggests that more individuals will be included on the register than is actually necessary. There is a sense, then, in which excessive caution constitutes the ‘normal’ mistake. Paradoxically, particularly if the fact of registration came to be accepted as instrumental in defending a negligence action, it is possible to detect the seeds of a logically fallacious argument in which the degree of miscalculation involved in a poorly judged decision against registration became exaggerated to the extent that the decision was virtually certain to be held negligent. The almost inevitable result would be to realize the fear that psychiatrists will come under excessive pressure to place patients on the register. Moreover, the pressure would be reinforced by the fact that errors of

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SUP E RV I S I 0 N REG I ST ERS

over-reticence do not incubate negligence actions in the same way as errors of insufficient caution (although they may generate actions for judicial review: R. v. Parole Board, ex parte Bradley [1990]; R. v. Parole Board, ex parte Watson [1996]). Not only are there no third party victims of violence in the former case but patients seeking to challenge registration decisions would face an uphill struggle. Self-advocacy of their own safety would be liable to be mis- interpreted as calculated manipulation (Peay, 1989) and, ironically, the self- same uncertainties associated with prediction might rebound as justifications for continued detention. Furthermore, history shows that one piece of damning information about an individual can easily destroy a portfolio of positive assessments where public safety is in issue (W v Egde11[1990]; Peay, 1989). And, were these forces for caution insufficient in themselves, there would then be the further contribution made by public opinion and adverse media publicity to be taken into account. Set against all of t h i s are the ethical objections which arise from the knowledge that individuals are denied their ordinary civil rights on the basis of inaccurate assessments of dangerousness (see, inter a h , Baker, 1993; Bottoms and Brownsword, 1983). As serious as these objections are, the plight of such persons does not have the same head- line-grabbing capacity as the mayhem caused by those who are set free and go on to commit acts of grave harm in the community. Consequently, the former group will never attract the intense public concern that contributed to the establishment of the registers. All in all, therefore, the most likely result to flow from an increase in negligence actions would seem to be that the existing pressures for defensive decision-making (Peay, 1989) would be amplified. Moreover, the more that caution became the standardized norm, the greater the handicap that would exist to defending a negligence action on the basis of practices outside that norm through demonstrating compliance with the standards of ‘a responsible body of medical opinion’. Ultimately, it is possible to foresee the development of a vicious circle in which psychiatrists would become trapped in an exponential spiral of action and reaction to promote safety at the expense of civil liberties.

CONCLUSION

In the light of the argument presented here, it is difficult to resist the conclusion that the initiation of supervision registers was motivated more by the need of the government to respond to its own political problems than by the avowed commitment of the Secretary of State to the ‘enlightened and civilised policy’ (Department of Health, 1993: 3) of community care. Certainly, the analysis suggests that, whilst buttressing the government’s image with the voters, the scheme in HSG(94)5 contains elements that are designed to deflect public attention from the activities of central government so as to enable it to

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32 J O U R N A L OF FORENSIC PSYCHIATRY Vol. 8 No. 1

shirk responsibility for shortcomings in its policies. In so far as pursuit of the community care programme did influence the content of the proposal, the uppermost concern seems to have been to address the need to regulate the delivery of psychiatric care in the post-hospital era rather than the desire to protect patients from the risks of violence and neglect. Moreover, the circular contains remarkably little to substantiate the endorsement by the Minister, in the press release announcing the establishment of the registers of the principle that ‘the rights of those with mental illness should be fully recognised’ (Department of Health, 1993: 3). O n the contrary, apart from the fact that circular HSG(94)5 purported to sanction the infringement of certain rights, most notably those relating to privacy and confidentiality, it is arguable that prevailing inadequacies of dangerousness assessment render the registration decision itself so arbitrary as to be contrary to human rights. Furthermore, if the potential of the registers for promoting the defensive practice of psychiatry is realized, then their introduction seems well calculated to ensure that an ever widening pool of individuals find that their civil liberties have been trespassed upon, and in a manner against which they have very limited channels of redress. What is more, in the light of the difficulties experienced with attempts to evaluate the effectiveness of the registers, it has also been suggested recently that their continued use may be unethical (Cohen et al., 1996: 417). Nor are potential victims the winners from this initiative. The registers have little genuine merit in terms of promoting public safety and, where failures in community care occur, will leave victims with the unenviable and very likely fruit- less task of seeking a remedy under the law of tort.

ACKNOWLEDGEMENTS

This is a revised version of a paper delivered at the XXIst International Con- gress on Law & Mental Health, Tromsa, Norway, 25-9 June 1995 and com- pleted during a period of sabbatical leave. The author would like to thank Professor Herschel Prins for his assistance in preparing the original paper and the School of Criminology, Simon Fraser University for their hospitality during the academic year 1995-6.

Estella Baker, BA, MPhil, Lecturer in Law, University of Leicester, University Road, Leicester LEI 7RH

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LAW REPORTS

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449 CA.

Supreme Court.

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the introduction of supervision registers in england and wales: a risk communications analysis

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