<<Back            Contents            Next>>

Risky business

Forensic mental health professionals who deal with violent offenders will benefit from new legal and ethical guidelines to help them with their complex work. FIONA PERRY reports.

A forensic psychiatrist interviews a violent criminal who has been referred by his solicitor for assessment before sentencing. During the course of the interview, the patient threatens to physically harm several people.

How should the psychiatrist deal with the patient's threat? Is it a mere expression of anger and helplessness, or is there a very real risk of the patient carrying out another violent act?

The psychiatrist faces both a legal and an ethical dilemma: should she break client confidentiality and warn someone of the patient's threat? If she does, she may leave herself open to a legal claim for negligence, breach of contract or breach of confidence by the patient. If she doesn't, the patient may well commit another serious offence, endangering other lives.

Surprisingly, no clear legal or ethical guidelines for practice exist for forensic mental health professionals in Australia, says Associate Professor Bernadette McSherry, an expert in mental health law in Monash University's Faculty of Law.

"At the moment, there's a lot of uncertainty for psychologists and psychiatrists working in this area," Dr McSherry explains. "Certainly, there are no clear legal guidelines via legislation or court decisions. The law in this area is usually reactive rather than proactive ­ the courts or parliament usually have to wait until a problem occurs or someone is sued before a law is passed.

"There are codes of ethics, but these are very general and may not help mental health professionals with specific problems."

The ultimate aim of the study is to devise a set of guidelines that will aid forensic mental health professionals in their decision-making and promote consistency in risk assessment. The research will also be of benefit to law enforcement authorities, criminal lawyers and policymakers.

Under the study, relevant legislation and case law in Australia and common law countries such as England, Canada and New Zealand will be examined, along with current codes of practice and ethical principles relating to risk assessment and breaches of confidentiality.

A questionnaire and face-to-face interviews with forensic psychologists and psychiatrists will seek to identify the main factors that influence mental health professionals' assessments of the risk of future violent behaviour in their clients, and when they would consider breaching confidentiality in the public interest.

Dr McSherry says one of the aims of the empirical study is to establish whether forensic mental health professionals agree on factors they believe identify people at risk of violence.

"Our aim is firstly to discover whether there are patterns in the factors that professionals think identify people at risk of violence ­ if there aren't any patterns, it may suggest that mental health professionals rely more on gut instinct than on factors identified in the academic literature," she explains.

"Secondly, we want to find out whether there is a difference in approach between psychologists and psychiatrists."

The guidelines, to be completed in 2003 by Dr McSherry and Professor Mullen, will be based on results from the empirical study, as well as on legal cases in the area, she says.

"The legal and ethical guidelines will quite likely centre around three aspects of risk assessment cited in a major Canadian Supreme Court case in the area: first, whether there is a risk to an identifiable person or group of persons; second, that there is a risk of serious bodily harm; and third, whether the danger is imminent."

In the Canadian case, a psychiatrist, 'Dr Smith', was asked by defence counsel to write a report about 'Mr Jones', who had been charged with aggravated assault on a prostitute. Mr Jones told Dr Smith that what he had done was a "trial run" and that he hoped to carry out further rapes and killings. Dr Smith wrote a report stating that Mr Jones was a dangerous individual who would most likely commit further offences.

Defence counsel did not use the report and Dr Smith took court action to obtain a declaration that he could breach confidentiality in the public interest. A majority of the Supreme Court of Canada agreed that he could, because Mr Jones posed a danger to public safety and there was risk of imminent death or serious bodily harm.

To date, there are no court reports of a patient suing a forensic psychologist or psychiatrist in Australia for breach of confidentiality, but Dr McSherry says the potential is there, with a case similar to the Canadian example reported in New Zealand.

For more information on Monash's new postgraduate degree in forensic accounting, visit www.law.monash.edu.au

 <<Back            Contents            Next>>