NADD Bulletin Volume II Number 3 Article 3

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Assessing the Risk Presented by Criminal Offenders and Other High Profile Groups with Mental Retardation as it Relates to the Community Continuum of Care

Edwin J. Mikkelsen, M.D.; Wayne J. Stelk, Ph.D.; Ivonna Edkins, M.A.

Individuals who engage in high risk behavior present many challenges to clinicians and other treatment team members. We have previously written extensively about the particular dilemmas presented by those individuals with mental retardation who present a risk to others (Mikkelsen & Stelk, 1997). For the most part, these are individuals whose behavior could be construed as criminal, even if they have not become involved with the criminal justice system or they have been involved and the charges have been dismissed. Although not recapitulated here, that material will be reviewed for the key elements of risk assessment.

The key concepts involve the importance of careful attention to a detailed chronology of past offenses and related overt behaviors, the impact of destabilizing factors such as substance abuse and untreated mental illness and the interplay of these factors with unpredictable life stressors. The destabilizing factors are particularly important as if they are reversed, i.e. cessation of substance abuse and/or effective treatment of mental illness; then the risk of reoffending related to these factors should be greatly reduced. This assessment can then enable the treatment team to construct a program that provides the individual with the maximum amount of autonomy and freedom that is possible, while still supplying sufficient structure and supervision to greatly minimize, if not eliminate, the risk of reoffending.

In this paper, we want to expand on the principles of evaluating an individual’s risk to others. In addition, related but different issues, will be raised when considering individuals whose volitional behaviors appear to be putting themselves in substantial risk of self harm. In cases where the behavior of an individual with dual diagnosis is overtly self-destructive, there are usually recognized accepted mechanisms for responding to the behavior that are similar to those that would be used by anyone in the general population who exhibited similar behavior. For example, an individual with a developmental impairment who is deemed to be at significant risk for suicide would presumably receive the same level of intervention as an individual in the general population. This intervention would entail an evaluation which could lead to voluntary or involuntary psychiatric hospitalization according to the statutes and regulations of the state in which the individual resides.

The judgement of risk potential becomes biased for the individual with dual diagnosis versus the general population when the risk of self-harm is less clear. The divergence from this general population response model commonly arises when the risk lies within the realm of volitional, potentially self-harmful behavior in which the person engages. On a daily basis an extremely large number of the general population engage in behaviors with absolutely no thought that any governmental agency or entity would intervene to stop the behavior or otherwise restrict their right to free expression and self-determination so long as it did not harm or otherwise restrict the liberty of others. We believe there are certain key concepts and factors which lead clinicians and treatment team members to intervene in a restrictive manner to thwart behaviors exhibited by an individual with dual diagnosis that would usually only be seen as a “poor choice” by a member of the general population.

The first of these factors is what we have previously referred to as “the concept of control and responsibility.” Simply put, this principle states that the more a person feels responsible for the behavior of another, the more they will seek to control the behavior of that individual. If an individual feels that he/she is potentially being held accountable for the actions of another, and if the other is engaging in volitional but potentially harmful behavior, this will induce a state of anxiety in the responsible individual, i.e. evaluator/service provider/case manager. The responsible individual will thus be more apt to intervene so as to restrict the actions of the other. The increased control will diminish the other’s risk of self-harm, thereby decreasing the risk that the responsible individual will be held accountable for an adverse outcome resulting from the other’s risk-taking behavior. This sequence of actions leads to an increased sense of control on the part of the responsible individual which decreases their unpleasant sensation of anxiety, and thus reinforces and perpetuates the restrictive controlling behavior of the responsible party.

The second related concept is that of “competency.” While precise definitions and regulations concerning competency may vary slightly from jurisdiction to jurisdiction, one of the definitions found in the The New Webster Encyclopedia of the English Language (1982), is particularly apt for this discussion: “Sufficient or fit for the purpose; adequate; having legal authority or power.”

The term “sufficient or fit for the purpose” appropriately conveys a relative state that might vary somewhat according to the “purpose.” The other key concept inherent in this definition is that implied by the word “sufficient,” which suggests an adequate level of competence that is closer to the lower end of the competency continuum than the higher end. This view of competency would also suggest a dynamic process that could potentially vary over time and from situation to situation. This relative, dynamic, situationally-specific process view of competency is in sharp contrast to the legal concept of competency that usually drives clinical decision making. The legalistic view of competency is that it is a dichotomous, yes or no, state that is largely constant and would vary little from situation to situation. Most statutes account for some gradations in competency such as a medical guardian for complex medical decisions only, a conservator for financial matters and guardians of the person for more complete decision-making. The nature of the legal system and the practical impossibility of making numerous situation-specific legal decisions usually leads to a point in time dichotomous decision which can have far-reaching effects. The competency factor can interact with the control responsibility paradigm to further increase the anxiety of responsible parties who are deciding whether or not to allow an individual who has been adjudicated “incompetent” to engage in volitional activities that carry even relatively low levels of risk.

The other major consideration can be conceptualized as an unattainable (and thus false) goal of perfection in these matters. This state of idealized perfection can be defined as the individual with dual diagnosis having almost complete self-determination with little or no risk of self-harm coming from this self-determination. The perfect balance of self-determination versus risk can occur in the lives of individuals with dual diagnosis just as it can in the general population. However, it is certainly not a universal occurrence in the general population, and it is unrealistic to assume that it could universally occur in the population of those with dual diagnosis.

Examples from the general population where the ideal does not occur are readily available in the media. Every year many competent, well-trained individuals expire in the risk-taking act of mountain climbing. Skilled white-water rafters drown in unexpected turbulence, and expert skiers die by crashing into trees. In a less dramatic note, thousands of diabetics do not comply with their diets, individuals with hypertension do not take their medication as prescribed, and much larger numbers knowingly smoke cigarettes and/or drink alcohol to excess. Thus, individuals with dual diagnosis are usually held to a risk versus self-determination standard that is magnitudes higher than that employed for the general population.

Clearly, the response to these dilemmas is not a total abdication of responsibility. We favor a probabilistic process-oriented approach which is not only specific to the individual, but also to the specific situation. The decision-making equation that can be used is similar to the risk benefit analysis that goes into making pharmacological decisions involving individuals with difficult-to-diagnose behavioral disorders (Mikkelsen, 1997). The equation used in that process encompasses the probability of success of the intervention, the distress caused by the behavioral disorder, and the side effect profile of the proposed medication.

In risk versus self-determination situations, the equation would be modified to include the desire of the individual to partake of the activity, the relative competence of the individual to make an informed decision concerning the risk of the activity, and the potential for a negative outcome. The potential negative outcomes incorporates a range of severity, i.e., how much does this individual want to do this? How much of the risk do they comprehend? How likely are they to be seriously harmed or die as a result of engaging in the activity?

The other givens in this process of balancing self-determination versus the potential for self-harm are that the team must exercise this highly individualized assessment within the broad guidelines of the competency statutes of their jurisdiction. They also need to provide optimal educational and other supports to maximize the individual’s capacity to make truly informed decisions.


Mikkelsen, E.J. & Stelk, W.J. (1997) Assessment of risk in criminal offenders with mental retardation. The NADD Newsletter, 14(6): 91-95.

Mikkelsen, E.J. (1997) Risk-benefit analysis in the use of psychopharmacologic interventions for difficult-to-diagnose behavioral disorders in individuals with mental retardation. Psychiatric Annals, 17(3): 207-212.

Thatcher, V. (Ed.). (1982). The New Webster Encyclopedia of the English Language. Chicago: Consolidated Book Publishers.

For more information contact:

Edwin J. Mikkelsen, MD
67 Yarmouth Road, Wellesley Hills, MA 02181