Risk assessment is the concept on the increasing knowledge and importance in dealing with prevention of criminal behaviour. It is applicable and legally relevant to mental health professionals. In a forensic context, psychiatrists and psychologists may be asked to examine and assess the potential risks a patient or client could be potentially violent in the future. (Australian Institute of Criminology, 2004)
Risk assessment is relevant in other sectors such as civil and criminal law. In civil law – risk assessment relates to involuntary commitment of those diagnosed with a mental health issue or intellectual disability, detention to prevent the spread of infectious diseases, assessment of the risk of child abuse in family law matters, child protection proceedings and workplace occupational health and safety. In criminal law matters, mental health professionals are usually ordered to write reports in relation to the risks of an accused person reoffending for the purposes of bail applications, sentencing and preventative detention, dispositions of offenders with mental disorders and parole. (AIC, 2004)
The common concern and dilemma for a psychiatrist or psychologist is knowing whether they should or should not disclose a patient’s confidential communication on the fact that they may be at risk of harming other individuals. If mental health professionals do not breach confidentiality, the risks are likely that a patient may commit a serious offence, including engaging in self harm or placing other individuals lives and well being at risk. In terms of this, if confidentiality is breached, health professionals could face a legal claim for negligence, breach of contract or breach of confidence by the patient alongside disciplinary action. (AIC, 2004)
A risk can be seen and defined as two main types of risk;
- The likelihood of future offending and reconviction.
- The risk of serious harm, if reconvicted; the offence will be one of ‘serious harm’. (Her Majesty’s Prison and Probation Service, 2019)
It is beneficial and important that risk assessment tools are sound and provide reliable and valid estimates. An effective risk assessment tool will demonstrate a clear description of the tool and its purpose with the overall approaches to assessment. It is vital that it provides evidence that the tool does what it aims to do. It is important that there is commitment to ongoing research and validation ensuring ongoing fitness for purpose guaranteeing that accessors that use risk assessment tools are capable in its use and the use of the tool is implemented as intended. (Her Majesty’s and Probation Service, 2019)
Risk assessment tools are increasingly being used in the criminal justice system and forensic psychiatry. Over more than 200 structured risk assessment tools are available in the assessment of risk of violence, psychiatry and criminal justice. (European Psychiatry, Volume 42, 2017)
The criminal justice systems purpose is doing justice, controlling crime and preventing crime. As part of those three purposes the criminal justice system uses risk assessment tools for several reasonable situations. Pretrial detention, in which courts use risk assessment to assist with decision making in which defendants can safely be released pending trial. This measures the possibilities if the defendant will appear and whether they are likely to commit another offence while they are on release. It may support in the sentencing process to help a judge decide whether an offender should be prosecuted and imprisoned or placed under community supervision. It may also determine if any certain conditions should be placed upon the offender by the judge.
Probation and paroles’ use risk assessment instruments in terms of predicting chances that offender might be at risk of recidivism and identify an offender’s criminogenic needs. The results of the assessment assist probation and parole agents in making decisions about the level of supervision an offender will receive and developing an individualised case management plan that will focus on rehabilitation programs to help reduce the likelihood and risk of recidivism and sanctions for violations of the conditions of release.
Correctional services will use risk assessment to make decision about the level of security where inmates will be assigned – low, medium, maximum or super maximum prisons. Prison classifications are to identify inmates who are at high risk or may have management problems. Risk assessment is used by parole boards and released in making decisions whether offenders can be safely released from prison.
The effectiveness of risk assessment tools may be enough to support in the decision making about who will need to be incarcerated and who need be treated safely and supervised in the community, as risk assessment instruments have had the abilities to predict the risks of recidivism. Inaccurate, invalid or unreliable risk assessment instruments could lead to negative consequences for individuals and community reintegration opportunities as well as other things.
Risk assessment tools are increasingly being used in the criminal justice system and forensic psychiatry – though there is very little relevant, reliable and unbiased data regarding predictive data. In psychiatry the criticism of risk assessment focused on possibilities in deploying risk assessment tools, mental health professionals may fail to fulfil their professional obligations to their patients. (European Psychiatry, Volume 42, 2017)
Risk assessment is considered as being made up of three distinct components. Functional assessments which are based on interviews with the offender about the events that are associated with their crime. The interviewer considers an offender’s cognition, feelings and decisions and actions. Actuarial assessments explore statistical relationship of the characteristics of the offender – such as a previous criminal conviction, criminality and the probabilities of reconvention. Dynamic risk assessments that use risk factors which change as a result of therapy or experience of prison. (Howitt. D, Introduction to Forensic Psychology)
The use of risk assessment may be used to identify beneficial and appropriate treatments, may facilitate earlier release or discharge from a psychiatric institution. Applications of risk assessment could also provide necessary evidence to secure an end to the detention that was imposed. Risk assessment does not necessarily mean it is 100 percent accurate, but it does focus on characteristics and behaviour of an offender rather than the actual crime one has committed.
For example, in the late nineteenth century, the American criminal justice system began to shift towards rehabilitation rather than capital or corporal punishment. In relation to the dominating rehabilitation focus, the criminal justice system was based on an individual’s characteristics rather than just the crimes that they committed. (Kehl, Danielle, Priscilla Guo, and Samuel Kessler, 2017, Algorithms in the Criminal Justice System)
Data that currently exists, suggest that most risk assessment tools have poor to moderate accuracy in most applications. More than half of individuals that are judged by tools as high risk are incorrectly classified – meaning they will not go ahead and offend, and they may have been detained unnecessarily. False negative rates are found to be much lower. In typical cases around 9 percent of those who are classified as low risk offenders will go on to offend, reasons for this may be because they were discharged or released too soon, posing a risk to the public. Tools with a low rate of false negatives will be most effective at protecting the public. The balance between false positives and false negatives is an ethical issue and will depend on the social and political context in which the tool is being used. The selection of optimal risk assessment for a given application compromise between false negatives and false positives. Attempts in reducing the number of false positives will increase the number of false negatives. (European Psychiatry, Volume 42, 2017)
There will be likely false positives and false negatives, though there has been more research and improvement of predictive accuracy of instruments, risk assessment correctly predicts recidivism 70 percent of the time. Research suggests assessment instruments can distinguish between high, medium or low risk offenders to some extent with accuracy.
Some policy makers might be concerned with discrimination such as inmates of colour will be assessed as high risk for recidivism and could result in tormenting outcomes such as being incarcerated for a longer period. It is a valid concern, risk assessment instruments are shown to have no intent of racial bias, unfortunately the applications of an instrument can have an unequal effect.
The Council of State Governments identifies what could be done to reduce bias in assessments. These include validating the assessment instrument by using a third party and assess the instruments predictive accuracy by race and gender. Assess if the instrument is being administered correctly and develop a plan to address any bias in the risk assessment instrument resulting from the instrument itself or the way it is being used. (Congressional Research Service, 2018)
It has been argued that implementing risk assessment into the criminal justice system helps to determine appropriate treatment for offenders. Risk assessment has its benefits, but also has valid reasons why it is not beneficial. If the offender is predicted to reoffend confidentiality cannot be breached, hence a negative outcome can occur. It is important to understand that regardless what level of risk the offender is at, risk assessment can be inaccurate as every individual is different. Not every person has the same mindset, or the same intentions. It is important that we ensure individual’s in the community are safe and those who pose a threat are incarcerated or dealt with as humanly as possible. The high number of false-positive limits the effectiveness of the risk assessment tools. As a result, risk assessment should be used in the criminal justice system as it does back up possibilities of an offender’s behaviour. As of 2019, twentieth century, the criminal justice system has improved and will always work on changing and improving the laws – especially in the western world. If there was not such a strategy to prevent crime, the results could be far more detrimental.
- McSherry B 2004. Risk assessment by mental health professionals and the prevention of future violent behaviour. Trends & issues in crime and criminal justice no. 281. Canberra: Australian Institute of Criminology. https://aic.gov.au/publications/tandi/tandi281
- Kehl, Danielle, Priscilla Guo, and Samuel Kessler. 2017. Algorithms in the Criminal Justice System: Assessing the Use of Risk Assessments in Sentencing. Responsive Communities Initiative, Berkman Klein Center for Internet & Society, Harvard Law School.
- Vera Institute of Justice’s Center of Sentencing and Corrections, Risk and Needs Assessment, memorandum to the Delaware Justice Reinvestment Task Force, October 12, 2011, pp. 9-12, https://ltgov.delaware.gov/taskforces/djrtf/ DJRTF_Risk_Assessment_Memo.pdf (hereinafter “Vera Institute of Justice’s memorandum re: risk and needs assessment”).
- T. Douglas, J. Pugh, I. Singh, J. Savulescu, S. Fazel Risk assessment tools in criminal justice and forensic psychiatry: The need for better data European Psychiatry, Volume 42, 2017, pp. 134-137
- Taanvi Ramesh, Artemis Igoumenou, Maria Vazquez Montes, Seena Fazel Use of risk assessment instruments to predict violence in forensic psychiatric hospitals: a systematic review and meta-analysis
- European Psychiatry, Volume 52, 2018, pp. 47-53
- James N . 2015. Risk and Needs Assessment in the Criminal Justice System. Congressional Research Service. https://www.usf.edu/cbcs/mhlp/tac/documents/behavioral-healthcare/screening-risk/risk-and-needs-assessment-in-cjs.pdf
- Her Majesty’s Prison and Probation Service. 2019. Risk Assessment of Offenders. A summary of evidence relating to offender risk assessment, risk of reoffending and risk of serious harm. https://www.gov.uk/guidance/risk-assessment-of-offenders#what-are-risk-and-protective-factors
- Howitt. D. 2017. Chapter 27. Assessment of risk, dangerousness and recidivism. Introduction to Forensic and Criminal Psychology. Pearson Education Limited