Risk and Inaction

When we think about a risk we tend to assume that a decision was taken. We think of action. The patient was given an injection even though there was a risk of harmful side effects. The risk may be justified because the likelihood and/or degree of harm was assessed as low, particularly in comparison with the likelihood and/or degree of benefits. Additionally, and/or alternatively, the quantity and quality of resources that were available to manage the risks, once the decision to act was taken, was suitable. But what if the decision was not to give the injection? Was that a risk decision? Or what if no decision was taken at all; the clinical team had, at least in effect, passed by the patient's bed without beginning to thing about taking a risk?

Surely a decision not to act is just as much a risk decision as the converse. Presumably the question, whether an injection should be provided, only arose because it was perceived to be a possibly appropriate means of tackling at least some of the patient's problems. A risk assessment, of possible benefits compared with possible harms, in the light of the possibilities for managing the risk, was completed. But it was decided that the likely benefits did not, at least sufficiently, outweigh the likely harms, and/or the risk could not be sufficiently controlled. So no action was taken. But it was, nevertheless, a risk decision. It can be analysed in the same manner as a decision for action. It could have been a good or a bad decision. But we know very little about these risk decisions in favour of inaction. In reality these may be so common that they constitute the rule rather than the exception.

Decisions in favour of inaction are much less visible. We notice being injected rather than not being injected, an offender being given parole rather than refused. We notice, and tend to register the fact of change, more than we do continuity. But harm can arise from inaction, just as readily as from action. And, at least in theory, there can be legal liability for inaction as readily as for action. The patient, who does not receive medication because the decision was not to take the risk, may experience loss. If that decision, not to risk, was professionally improper then the patient is entitled to complain and receive compensation. But people do not notice negligent omissions as readily as they do negligent commissions. And we do not recognise, as readily, the decisions that were not even mooted, as we do those that were discussed even though not acted upon. I know what my doctor did last time I had an appointment with him. I recall a decision about cholesterol levels. But I do not know what, if any, other decisions he made, let alone could have made, during that appointment. I would have to undertake extensive research, or consult another doctor, in order to begin to have an idea about what other decisions were taken, or should have been taken.

It will be objected that this involves giving 'risk-taking' too wide a meaning. It could become difficult to discover any incident or occasion that could not be properly analysed in terms of risk. First, the focus is on decision-making rather than risk. Second, the key point, it is submitted, is the potential that this extended analysis gives for preventive and proper professional practice.

It is not—or, only exceptionally, rarely—a simple question of should the patient be given the medication. Medication is proposed, for example, to combat symptoms of schizophrenia. But the medication might cause side effects. A risk judgement that that medication is not appropriate, at that time, for that patient, does not, however correct and properly reached a decision, justify inaction evermore thereafter. The patient still has distressing symptoms. An alternative decision, likely to involve a risk, should be considered, until an active risk can be taken. Even then, usually, that is not the end of it. Most likely another risk decision should be considered from the new state of affairs achieved by the last risk. Yes, risk-taking involves individual decisions. But the image of risk-taking as single, one-off, decisions is very unrepresentative, distorting and inaccurate. Invariably risk-taking is an active process. One decision does, and should, lead to another. A sequence of decisions is taken towards what were, initially, immediate, then short-term, then medium-term and finally long-term, goals. The legal system, when it comes to analyse, as it invariably does, one particular decision amongst a series, misrepresents reality.

Here is another area where lawyers and psychologists could productively collaborate. Lawyers are employed to protect and promote the interests of their clients. Thus, for example, they act when there is a risk that their client will be confined or released. But can and should they only protect their client's interests at those times? We, it is submitted, artificially inflate the importance of some of those occasions for legal intervention. For example the decision, as to whether the patient should be detained in or released from hospital, is highlighted as a major occasion for protecting civil liberties. But moving from hospital living to community living, especially when clinicians are positioned into opposition to patients in the legal hearings, is a major, very difficult to manage, jump. It is regularly made into a bigger risk of harm than it needs to be.

We should think of risk-taking as a process, as including decisions for action, inaction and non-decisions. Services should not be allowed to avoid the responsibility to take risks, to tackle clients' problems, to move them on step by step (Elbogen and Tomkins, 2000). Perhaps the patient cannot, realistically, expect discharge from the maximum-security hospital for several years. But that does not justify hospital staff in failing to take a sequence of risk decisions to allow him or her to live with less restriction (and at less cost) albeit within very secure walls. It does not justify failing to take a sequence of risk decisions which could ensure that the individual is better able to make a success of eventual discharge. Lawyers should not be interested exclusively in risk-taking at the 'formal' legal stages such as detention, compulsory treatment, discharge, guardianship. They could do more good for their clients, by advocates in the richer sense of that word, by checking and ensuring that a sequence of risk decisions, appropriate to the client, is taken.

Risk-taking is normal, not abnormal, behaviour. Indeed the failure to take risks ought to be the cause for comment, rather than the converse! A service which does not take risks, or only a few, is as likely, or even more likely, to be a poor service than one that takes several. Risk-taking cannot be avoided; it should be embraced. Imagine that a prison governor is anxious about the number of prisoners who do not return from day release at the correct time. He or she has made risk decisions which have allowed the prisoners out of prison in order to prepare themselves for release, such as by arranging accommodation and employment. On discovering that the risk-taking is 'failing'—because all, some or a few, are not returning to prison when they should— the prison governor has to make a decision. He can stop day release. That will be effective. Fewer prisoners will fail to return on time. This appears to be a successful strategy. No! This approach may appeal to politicians and the popular media but a wider perspective should be adopted. If risks are not taken, in this example, to enable prisoners to develop connections with the community so that it is more likely that their release from prison will be successful, then the eventual release risk decision is more likely to fail. If that release of the offender fails then he or she will have to be detained again, at considerably greater loss and expense than that involved in late return to prison. Lawyers, psychologists, and so many others, have a common interest in ensuring that proactive sequences of risk decisions are taken.

The analysis must be taken a little further. If a service is associated with no, or very few, 'risk failures' then it is likely to be commended, congratulated and regarded as being a good service. Take, for example, a medium secure forensic hospital. One of its many sets of risk-taking jobs is to decide when its patients should be allowed trial leave. It will allow some patients, after a risk assessment, to leave the hospital grounds with an obligation to return by a certain time. If no patients fail to return by the specified time then it will appear to be a wonderful service that ought to be praised and replicated around the country. But it could be a rotten service! That service might, whenever there is any perceived risk of failure, decide not to take a risk. (Its practice is likely to be 'informed' by fear of litigation, or inquiry, should any 'failures' occur.) That service will be making a number of false positive decisions. It will be making erroneous assessments that a patient is liable not to return whenever he or she would do so. Patients will not be getting an opportunity to benefit from day release. They will not get opportunities to practise living in the community again, or to maintain and reinforce social contacts. And that will cause harm. Those patients will not be as well equipped for discharge. They will stay in hospital longer, creating problems for other patients. They will lose motivation. And it will waste money.

We simply cannot avoid it! Not discharging patients who no longer need to be detained is wrong, and is causing harm. In their concern not to make false negative assessments (that is, wrongly deciding that someone is not dangerous) many risk decision-makers make false positive assessments (that is, erroneous assessments that someone is dangerous). Both false negative and false positive decisions are wrong. We 'see' the consequences of false negative decisions more dramatically than we do the consequences of false positive assessments. Both kinds of error need to be addressed. We cannot avoid errors by failing to take risks. To produce an apparently 'excellent' record a hospital, or other risk taker, could adopt a very conservative policy. It could decide that nobody, or hardly anyone, is to be allowed day release. In that way they greatly reduce the likelihood of false negatives, failure to prevent harm. But they increase the likelihood of false positives, failure to identify safety. A unit's absence, absolute or even relative, of 'risk errors' (false positive) implies risk decision-making that is too conservative. The awkward truth is that risk-takers need 'errors'. That some assessments were, apparently, wrong—for example, patients did not return after day release—can be useful information that the service is not being too conservative. Of course the 'errors' should be as minimal as possible; they should be in assessing rather than in managing the risk. Opportunities need to be created whereby 'safe risks', those with low seriousness outcomes, can be taken. And if the idea is still too shocking it can be approached in a different manner. The child unnecessarily removed from parents, the patient unnecessarily (improperly) detained in a high-security hospital, is experiencing harm. It is not a neutral state of affairs! Risk-taking involves balancing. Failure to take a risk can impose as much, or more, harm as can taking a risk! Hopefully lawyers will increasingly identify these losses so that we can develop a more rigorous analysis and practice of risk-taking. And, hopefully, the psychologists and others involved will be prepared for them.

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