1st Edition

Managing Fear The Law and Ethics of Preventive Detention and Risk Assessment

By Bernadette McSherry Copyright 2014
    266 Pages
    by Routledge

    288 Pages
    by Routledge

    Managing Fear examines the growing use of risk assessment as it relates to preventive detention and supervision schemes for offenders perceived to be at a high risk of re-offending, individuals with severe mental illness, and suspected terrorists. It outlines a number of legislative regimes in common law countries that have broadened ‘civil’ (as opposed to criminal) powers of detention and supervision. Drawing on the disciplines of criminology and social psychology, it explores how and why such schemes reflect a move towards curtailing liberty before harm results rather than after a crime has occurred. Human rights and ethical issues concerning the role of mental health practitioners in assessing risk for the purposes of preventive detention and supervision are explored, and regimes that require evidence from mental health practitioners are compared with those that rely on decision-makers’ notions of ‘reasonable belief’ concerning the risk of harm. Case studies are used to exemplify some of the issues relating to how governments have attempted to manage the fear of future harm.

    This book aims to educate mental health practitioners in the law relating to preventive detention and supervision schemes and how the legal requirements differ from clinical assessment practices; examine the reasons why there has been a recent renewal of preventive detention and supervision schemes in common law countries; provide a comparative overview of existing preventive detention and supervision schemes; and analyse the human rights implications and the ethics of using forensic risk assessment techniques for preventive detention and supervision schemes.

    Part I: Introduction and Theories of Risk and Precaution. Introduction. Theories of Risk and Precaution.  Risk Assessment Instruments and Techniques.  Part II: The Laws of Preventive Detention and Supervision  Laws of Preventive Detention.  Supervision, Control, and Community Treatment Orders.  Proving Risk in Preventive Detention and Supervision Proceedings.  Part III: Human Rights and Ethical Issues  Human Rights Issues.  The Ethics of Forensic Risk Assessment.  Part IV: Conclusion  Conclusion.  Appendix A: Table of Cases.  Appendix B: Table of Statutes.


    Bernadette McSherry, BA(Hons), LLB(Hons), LLM (Melb), PhD (York, Canada), Grad Dip Psych (Monash), is a Professor and Foundation Director of the Melbourne Social Equity Institute at the University of Melbourne, and an Adjunct Professor of Law in the Melbourne School of Law and the Faculty of Law, Monash University. She was previously a Professor of Law, an Australian Research Council Federation Fellow and Director of the Centre for the Advancement of Law and Mental Health at Monash University. She is a Fellow of the Australian Academy of Social Sciences and a Fellow of the Australian Academy of Law. Professor McSherry is a legal member of the Mental Health Review Board of Victoria and has acted as a consultant to government on criminal law, sentencing and mental health law issues.

    "This is a topical book. It is replete with references to academic discussion of forensic psychiatry – hundreds of them in review articles; more than twice the number of the book’s pages. Many lay readers will lack access to those articles....For those lawyers whose practice includes issues of preventive detention, this book will be a valuable repository of research."

    Graham Fricke, Law Institute Journal