Family questions risk-management in psychiatric case

By WARREN BROOKBANKS

The tragic case of Fiona Maulolo has a depressingly familiar ring to it. An innocent member of the public is killed by a severely disturbed psychiatric patient with whom she has been in an intimate relationship.

Understandably, the grieving relatives of the victim want answers from those they rightly consider are, or ought to be, held accountable for their terrible loss. The problem is that, thus far, all attempts at sheeting home responsibility for the events surrounding Ms Maulolo's death at her Lower Hutt home in 1997 have fallen on rocky ground.

A civil action based on negligence and alleging that the health authority owed a duty not to discharge Leslie Parr without a proper clinical assessment, and to warn his immediate family circle, was unsuccessful.

The court was not persuaded that there was a sufficiently close relationship between Ms Maulolo's family and the defendant health authority to warrant the imposition of a duty of care.

In August, the Wellington coroner, Garry Evans, found a lamentable failure on the part of the two health boards involved, both to communicate between themselves on the needs of the patient and on issues of risk-assessment and safe management.

In particular, he emphasised the need to ensure that forensic reports, detailing a patient's history as a mentally disordered offender, were made immediately available to clinicians in order to work out optimal safe-management strategies.

At present, the law does not permit forensic psychiatric reports to be disclosed to persons other than the offender and his counsel, the prosecutor and certain named public officials in the corrections and mental health services.

Disclosure to the health professionals with responsibility for the care of the person to whom the report relates is not permissible.

I endorse the coroner's recommendations. It makes sense that, in assessing the risk of psychiatric patients with a proven history of dangerous behaviour, all information bearing on relevant historic and current risk factors should be available to enable public officials to devise care plans that secure the best mental-health care for patients, while protecting the public from the risk of harm.

In addition, the coroner has recommended the establishment of a national clinical management system to ensure that those who present a high risk of self-harm or harm to others are identified and entered into an appropriate clinical management system that provides additional safeguards to manage risk.

While there will inevitably be some professional resistance to this proposal, the idea is not unprecedented. Worldwide, expertise in assessing the risks presented by violent offenders and mental-health patients subject to different types of restriction orders, is developing rapidly and new interventions are being designed to lessen the risks.

The complex issues surrounding the risk-management of dangerous violent behaviour has led a high-powered British Government committee looking at serious violent and sexual offenders in Scotland to recommend the creation of a risk-management authority.

Its purpose would be to promulgate and continuously update best practice in risk-management and risk-assessment. It would also have operational responsibility for ensuring an individualised risk-management plan for those persons considered to pose a risk of serious harm to the public.

The model proposed for Scotland would be operationally autonomous with a policy framework set by officials and with a separate board. However, it would be independent of any professional, organisational or political identity.

In addition, it would be able to commission research and accredit risk-assessment and risk-management processes while setting the standards of competence for practitioners working in the area.

Such a model would have close affinities to that recommended by Mr Evans and, if ever established, go some way to confronting the systemic risk-management failures that led directly to the Maulolo tragedy.

Such a body, which would be required to report annually to Parliament, would be better equipped to manage the communication issues which so badly affected that case. Furthermore, it would be better placed to assess and implement the new and rapidly developing technologies of risk-assessment and risk-management.

Finally, an independent statutory authority of this kind might also be instrumental in addressing the loss of confidence in the justice system experienced by families such as that of Ms Maulolo, as they have struggled to come to terms with their loss through costly but unsuccessful, litigation.

Perhaps an over-arching risk management authority would be able to address issues of risk-assessment and management in an objective manner, free from the partisan and self-protective manoeuvring that may characterise a local health authority as it seeks to distance itself from the smoking gun of professionals' neglect.

But, as the Maulolo case vividly demonstrates, the issues around such events are never simply clinical-management questions.

They are always deeply emotional and traumatic.

An important part of the risk-management process must also include some means whereby the state is able and willing to address such issues as the loss of human dignity, the restoration of damaged relationships, the expression of empathetic understanding and the prevention of future harm that are not addressed in adversarial litigation.

Without these questions being seriously addressed, justice may appear to the victims of such outrageous events as nothing more than a phantom.

* Warren Brookbanks is an associate professor of law at Auckland University.