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Hamfisted analogy time!

 

Hello, good evening, and welcome to this first episode of TV’s newest gameshow “You’re going to get bitten by an animal – for money!” (c)

The rules are simple, we have three doors – A, B and C.  You choose a door. Behind each door is an animal, and you are going to get bitten by it. Then I am going to give you some money.  You don’t know how much money, the only thing you know is that the most money is for picking Door A, then the next highest is Door B and the lowest amount is Door C.  Now, it might be that the difference between Door A’s money and Door C’s is Fifty thousand pounds, or it might be fifty pence. You just don’t know.

The only rule is, that I will tell you what is behind Door A – you decide whether to choose that door, or reject it. If you reject it, we move on to Door B. It’s too late then to go back to Door A. If you have rejected Door A, and Door B, then and only then do you move on to Door C.  And you have to go through Door C and get bitten by that animal.  Door C is the last resort.

 

Okay, here we go !  Behind Door A is…..   A rottweiler

Are you going to choose Door A, or reject it and move on to Door B?  You don’t know what’s behind Door B – it might be better, it might be worse… that’s the gamble.

 

Assuming you’ve rejected Door A, we go on to Door B.  And behind Door B is….  a chimpanzee.

Are you going to choose Door B, or move on to Door C? The last resort door.  It could be anything – it could be a tortoise, it could be a hamster, it could be a grizzly bear.

 

And this is an example of why the Court of Appeal (notably McFarlane LJ  in Re G, and the President in Re B-S) have concluded that the linear decision-making model is flawed.  If one accepts that the test for Placement Orders is that they should be the ‘last resort’  (this being extrapolated by the Court of Appeal and Wall LJ in Re P, and expanded to ‘nothing else will do’ now – and it is the law, until either the Supreme Court, ECHR or some legislation say otherwise),  then you can’t just reject Door A (parents) and then Door B (extended family) and saythat Door C is the right option for the child and the last resort, just because its the only thing left.  As McFarlane rightly says, if you are going to proceed in a linear fashion and rule out options because they have deficiencies  and then go with whatever is left, you’d end up with the potential for the decision to have been different had you STARTED with Door C.

If, for example, Door C is the grizzly bear, suddenly that rottweiler behind Door A doesn’t seem that bad. You might well have picked Door A, had you known what was behind all three doors from the start.

 

In this example, you also only get to look at the disadvantages – what sort of animal it is that’s going to bite you, and not the advantages – the cash that’s on offer for being bitten. You need to see not only what the Disadvantage of picking each door would be, but also what the Advantage might be.  And you see that laid out clearly, for the range of options before you start deciding which to pick, Only then can you try to make any sort of rational choice.

So, whilst the decision in Re B-S that the social work final evidence has to lay out what’s behind every door – advantages AND disadvantages for each option and robustly analyse each, is going to be a huge culture shift and a massive pain in the neck to prepare, it’s one that makes a degree of sense, when you think about the exercise that’s involved.    {There are quite a few other things in Re B-S I have an issue with, and I’ll come back to those, but this one feels right, although it is making my life difficult at present}

 

 

 

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About suesspiciousminds

Law geek, local authority care hack, fascinated by words and quirky information; deeply committed to cheesecake and beer.

10 responses

  1. I agree, Suess. But I can see this all descending into a rather formulaic trot through the usual pros and cons of the usual options with an identical balance sheet being produced each time. That said, it is a start. I also read into this (and Re B) much more concern about bringing our care cases more into line with the european jurisprudence – I get the feeling that there has been a realisation that we may be rather out on a limb in this respect.

    • Hi Janet, yes, is going to be vital that we don’t just replace one formulaic approach with another more long-winded formulaic response. Am stressing locally how vital it is that the general principles (because there are lots of them involved in this process) are linked directly to what that means for this individual child with all of their history and characteristics.

  2. Hi both! Pros and Cons: Quite: Deal or No Deal? Which brings up something interesting: Probability.

    http://www.bbc.co.uk/news/magazine-24045598

    You can’t just leave it at a statement of options, can you? Because you have to look at the likely outcomes in each case, otherwise the exercise is pointless. The problem is that people, even including judges, are useless at assessing the evidence and the probabilty – likelihood – of any particular outcome. Judges have to do this and tell themselves that they have experience is assessing evidence, but without reseach who knows if they just have years and years of affirming misguided preconceptions? We all have them. The research is clear, for instance, that telling whether or not someone is lying is difficult and often counter-intuitive and that when we think we can tell if someone is telling the truth or lying we are often mistaken. And we also know that witnesses are often convincing it telling what they think is the truth but can also be both convinced of what they say and quite wrong.

    The thing is, most people don’t understand how to assess the likelihood of particular outcomes:

    http://www.nickdunbar.net/articles-and-reviews/thinking-fast-and-slow-by-daniel-kahneman/

    The Court of Appeal doesn’t allow Bayesian analysis in criminal proceedings for unfathomable and possibly incorrect reasoning:

    http://www.theguardian.com/law/2011/oct/02/formula-justice-bayes-theorem-miscarriage

    Appallingly, there is no research on outcomes of care proceedings: would you let a surgeon operate without such post-operation analysis?

    However it’s dressed up it comes down to a feeling, a hunch or an impression. This isn’t to say that judges are wrong, becuase of course they DO have years of experience, just that it requires some further thought.

    Enough hares raised for a Friday!

    • Hi Norma, yes you are quite right – the analysis of the likelihood of the positive and negative outcomes is vital component. As you say, lawyers are historically pretty awful at probability (see Sally Cannings case for terrible example), and at the moment, finding the stats on those outcomes is tricky. Research on outcomes seems to me to be utterly vital. I read a decent piece the other day, where all the children subject to Care Orders over a few years in Newcastle were followed up years later to look at outcomes, but that’s late 90s research, and I’d really want it to cover all children who were in care proceedings not just the ones cared for by the State, but it would be a start for a research model.

      Be interested to see how Essex are doing their final statements now, as you were the unlucky authority in Re B-S, if I recall. (although you won the appeal, it must have been a dispiriting train journey home for those involved)

      • I heard that Norfolk and Suffolk are putting together a pro-forma for this and I hope to wangle a copy.

  3. You are wasted with the law, you should be working for Endemol or similar (more pay, kudos and longer and better lunches), they are always looking for game show ideas and this one could be a winner.

    PS agree with the point you are making

  4. Could I just clarify that I didn’t mean to say that judges are useless at assessing evidence, it’s the probability aspect that isn’t really dealt with. All the judges I know are simply splendid.

    • Yes, Norma, I took you to mean that (though clarification always helpful). It is human beings who are hopeless at assessing probability; it is not a critique aimed specifically at judges. We are all bad at it. Even when we see the maths, it jibes with our own internal modelling. (Daniel Kahneman is very very good on explaining this)

  5. I totally agree with all of the above. Even if Judges have years of experience, without feedback as to whether their rulings/assumptions turned out to be correct, all that experience might just be bolstering incorrect assumptions. As Norma says, we have good Judges that care deeply about what they do, but I just feel that we need to build more empiricism into the system somehow. Most Judges come up through the Bar – and as a barrister I am in the same situation. You tend to assume that because you never see a case again, things have turned out well but the truth is often far from that. I have tried to talk about Bayes theory in closing subs but so many of us are frightened of maths.

  6. I know ABOUT Bayes and probability but I don’t actually understand either and it’s unlikely that I ever will. Agree about Kahneman: though personally my style is that I think slowly and jump to conclusions. On the question of permformance assessment and outcomes I higly recommend Atul Gawande’s books (and he’s on Twitter, too).

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