deconstructing imposed recovery – clinical perceptions of the legal and administrative framework...

ORIGINAL ARTICLE doi: 10.1111/j.1752-9824.2011.01113.x

Deconstructing imposed recovery – clinical perceptions of the legal and

administrative framework for managing restricted mental health

patients – the experience of one hospital in the independent sector

Andy Young RMN, LLB (Hons), LLM, PG Cert Hed.

Senior Lecturer (Mental Health Nursing), Sheffield Hallam University, Sheffield, South Yorkshire, UK

Submitted for publication: 12 July 2010

Accepted for publication: 27 March 2011

Correspondence:

Andy Young

M102 Mundella House

Faculty of Health and Wellbeing

Sheffield Hallam University

South Yorkshire S10 2BP

UK

Telephone: 0114 225 2498

E-mail: [email protected]

YOUNG AYOUNG A (20112011) Journal of Nursing and Healthcare of Chronic Illness 3, 397–

406

Deconstructing imposed recovery – clinical perceptions of the legal and adminis-

trative framework for managing restricted mental health patients – the experience of

one hospital in the independent sector

Aims and objectives. This paper sets out to address the potentially important issue

or issues relating to mental health professionals’ views on the arrangements for the

management of patients subject to a restricted hospital order.

Background. Less-than-optimal outcomes and escalating costs for chronic condi-

tions including mental illness have prompted calls for innovative approaches to

chronic illness management in the context of forensic mental health.

Design. Report of a survey. A grounded theory approach was used for both ‘col-

lecting’ and ‘analysing’ the data.

Method. A total of 14 mental health practitioners were interviewed regarding the

legal and administrative framework for managing restricted patients and their use of

a patient-centred care model to assist restricted patients with serious mental illness

to identify their self-management needs. The research interviews were conducted

between 2008 and 2009.

Conclusions. ‘Imposed’ recovery and the systemic issues and the value assumptions

that health professionals often bring to their interactions with clients need to be

explored further. Not until we have serious debate about such issues as will health

services fully translate the current rhetoric of collaborative partnership into reality

for clinicians and the clients they serve.

Relevance to clinical practice. Forensic practitioners must practice within a legal

framework and carefully balance the needs and rights of patients against the need to

protect the public from harm. Imposed recovery involves a high degree of skill and

expertise in terms of risk assessment, risk decision-making and working interpro-

fessionally and cooperatively with government agencies.

Key words: imposed recovery, discharge planning, mental health, risk assessment,

violence

� 2011 Blackwell Publishing Ltd 397

Background

International mental health care systems are complex.

Managing chronic conditions is difficult and often involves

multi-morbidity or multiple risk factors and complications

once a person develops a chronic condition (McMurran et al.,

2009). These forces together, make for a ‘highly’ complex

area that relies heavily on effective communication, engage-

ment and the skills of all involved within the integrated

system. The reality is that there are often diverse views about

who is the expert and interdisciplinary roles and rules that

need to be worked out and agreed upon. There are structural

impediments and challenges in creating a system of care

where the client is asked for their view, heard and fully

understood and where they are not merely shuttled between

fragmented service silos.

In the UK, national law sets mandates for the commitment

of mentally ill patients. In England and Wales, it has been

proposed that the Mental Health Unit (MHU) at the Ministry

of Justice works ‘collaboratively’ and ‘in partnership’ with

clinicians who have the day-to-day responsibility of caring

and treatment for restricted patients. The Ministry of

Justice do not provide official definitions of these terms but

do state that MHU and forensic practitioners ‘have a

shared goal, but adopt different approaches’ (Srinivas et al.

2006).

This paper sets out to address the potentially important

issue or issues relating to mental health professionals’ views

on the arrangements for the management of patients subject

to a restricted hospital order. Commonly, this category of

patient will have a mental disorder, will have committed a

violent criminal offence and will be detained for secure

treatment to protect the general public from further ‘serious’

harm. A mixed interprofessional group of 14 mental health

professionals, working in one clinical team, in one indepen-

dent sector hospital, were interviewed to ascertain their views

about the legal and administrative system for managing

restricted patients and how well that existing system operates

in practice, at ground level.

Section 41 of the Mental Health Act 1983 (MHA) enables

a Crown Court, when it makes a hospital order under Section

37, also imposes a restriction order on an offender only when

it appears necessary for the protection of the public from

serious harm. Bartlett & Sandland (2007) describes the

restricted hospital order as, ‘the conceptual intersection

between treatment and punishment and protective custody’

and proposes that this sentencing option is ‘designed to

accommodate those who are both mad, and bad and danger-

ous’. A restriction order engages the supervision of a specialised

division of the Ministry of Justice, formerly C3 unit at the

Home Office. The MHU handles all applications and requests

and serves several functions involving restricted patients in

England and Wales (Ministry of Justice, 2008a). All recom-

mendations regarding a restricted patient’s transfer, leave of

absence, etc. must acquire the approval from the Home

Secretary. Only discharge can be ordered against the Home

Secretary’s advice by the Mental Health Review Tribunal.

The MHU exists through the Secretary of State (Home

Department) to protect the public from further harm from

restricted patients (Baxter 1991). The primary functions of

the MHU are to review reports on restricted patients from

community supervisors, authorise recall of patients from the

community to secure hospitals and evaluate risk assessments

and risk management plans. In addition, MHU officers

respond to requests for community leave, authorise transfers

between hospitals, transfer from prison to hospital and

prepare statements for Mental Health Review Tribunals. The

Ministry of Justice state that the work of the MHU

contributes to their mission to ‘build a safe, just and toler-

ant society’, and consequently, the Home Secretary’s agree-

ment is needed for a restricted patient’s progress through

and eventual discharge from the hospital. The MHU’s

ability to fulfil its responsibilities depends enormously

on the quality of information it receives from clinicians

(Robertson 1989).

Design and method

The study was designed to explore the experience, practice

and decision-making processes of one single team of forensic

clinicians in the independent sector. A grounded theory

approach was used for both collecting and analysing the data.

Data were collected at different times and from different

groups of people and combined through triangulation.

The approach chosen reflects the fact that this paper is not

a report of an experiment; rather, it is a report of a survey.

When the author reviewed the relevant literature, it was

evident that clinical views of the legal and administrative

framework for managing restricted patients had not been

studied, that the literature contained few references to it and

that current representations of the clinical role in the

literature were lacking in empirical support. It was also

evident that mental health practitioners and those with an

interest in the field of forensic mental health did not have a

clear, widely accepted view of what the needs and rights are

for restricted patients. Consequently, using the theoretical

sampling design seemed logical (Flick 2006, Charmaz 2006).

The semistructured interview used was developed in

conjunction with other academics/practitioners to incorpo-

rate questions, which they would like to have asked (see

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398 � 2011 Blackwell Publishing Ltd

Table 1). The author sought comment on the Mental Health

Act’s strengths and weaknesses and day-to-day operation of

the Act rather than speculation as to how the law might

develop in future.

Ethical issues

Ethical approval was granted from the relevant ethics

committee, and the research was conducted according to

these guidelines and research parameters set by the

gatekeeper organisation in the independent sector. A full

explanation of the procedure was given to all participants. If

they chose to participate, they were told of their right to

withdraw at any stage and their confidentiality was assured.

Those participants who agreed to participate were asked to

sign a consent form. The interviews were tape-recorded, and

the transcripts were coded so as to protect the anonymity of

the informants.

The study population

A total of 14 practitioners were selected using theoretical

sampling, i.e. the choice of whom to sample was driven by

the emerging findings rather than any a priori constructed

sample selection criteria. In this way, each subsequent choice

about whom to sample is purposeful. All the participants

were drawn from one forensic multidisciplinary team. All had

experience of attending and presenting at Mental Health

Review Tribunals, and five interviewees (four psychiatrists

and one social worker) had experience of giving evidence in

court. In terms of specialist expertise, one psychiatrist also

had extensive knowledge of the Parole Board and reported

that cases involving mentally disordered offenders are not

infrequent.

Data collection

A semistructured interview was developed that was sent to

clinicians working in an independent secure unit for com-

ment. Received comments were then used to amend the

interview schedule. The final interview schedule incorporated

a broad framework that was constructed to allow clinicians

to explain the complicated processes that occur in mental

health practice. It focused on a number of topics:

1 The clinical experience of caring for and treating those on

a restriction order.

2 The clinical experience of risk decision-making and re-

stricted patients.

3 The identification of difficulties associated with the

treatment, rehabilitation and recovery of restricted pa-

tients.

4 The perception of mental health professionals in relation

to how the law and the administrative framework func-

tions in practice at ground level.

Prior to interview, clinicians were sent both the research

protocol and the basic interview schedule. This method of

using a series of confidential interviews was deemed the most

appropriate to explore the complex processes related to care,

treatment and risk decision-making. The interviews were

conducted on site between 2008 and 2009. Each interview

lasted approximately one hour, and the interviewer was a

clinician with mental health and criminal law experience. The

interviews were audio-taped and subsequently transcribed.

The research did ‘not’ involve access to patients, clinical

case notes or observation of clinical practice.

Data analysis

A qualitative analysis was conducted where each interview

was deconstructed to identify emergent units of meaning.

These were then context-analysed to link recurrent units with

categories. Categories from the interviews were compared

across the scripts to build up concepts and identify underlying

uniformities or themes. As new data emerged, the categories

were further refined and summarised.

Table 1 Checklist of the main questions/themes

Q.1 What is your job title and role within the multi-disciplinary

team?

Q.2 What is your perception of your role in relation to restricted

patients?

Q.3 What do you think the specific needs of restricted patients are?

Q.4 What clinical skills do you associate with caring for and

treating this patient group?

Q.5 In terms of how the law operates in practice, do you think it

strikes a reasonable balance between the needs and rights of

restricted patient’s and protection of the public?

Q.6 (a) Do you think there is a true partnership/collaboration

between the Ministry of Justice and mental health practitioners?

(b) What is your experience of this? (c) What might be done to

develop partnership/collaborative working?

Q.7 Who do you think should have the last say in regard to leave

and discharge of restricted patients, Mental Health Review

Tribunals, the Secretary of State or Clinicians? Please explain

your answer.

Q.8 Specifically in terms of therapeutic risk taking, and graduated

leave – in what ways does the legal and administrative framework

for managing restricted patients impact upon clinical practice?

Please can you support your answer with an example from your

own experience?

Q.9 As a clinician what do you think the consequences are for

the patient in terms of having restricted status?

Original article Risk, rights, mental health, imposed recovery


Extant literature

Currently, there is not much written about the management

of restricted patients that is research-based. There is some

work published around the views of older adult patients

(O’Sullivan & Chesterman 2007) and what at the time were

called Responsible Medical Officers (RMOs) on statutory

community aftercare (Humphreys et al. 1998) and also the

implications for practice of forensic community mental

health nurses’ views on statutory aftercare (Riordan et al.

2004). Other non-clinical studies focus upon the law and the

effectiveness of s.37/41 (Street 1998) and judicial practice

(Quarashi & Shaw 2008).

Strengths of the study

The study team was interprofessional and representative of

the skill mix in this particular hospital. The study sample was

three psychiatrists, eight mental health nurses, one occupa-

tional therapist, one social worker and one forensic psychol-

ogist. The author recognises that individuals from some

disciplines may have far greater experience and familiarity

with the legal framework and process (as well as relationships

with the MHU) than others, not least because of the statutory

duties placed on certain of them.

Although the frame of reference is the judicial system in

England and Wales and the policies of that government, the

findings may be relevant elsewhere. Many other legal systems

(e.g. the USA) have their origins in the British legal system,

though there are differences in function and the development

of case law. Whilst the cases and law as discussed in this

paper may not have counterparts within law in other

international jurisdictions, nevertheless, it is proposed that

potential differences do not detract from the importance or

application of the basic assertions.

The author sought to address bias by framing the interview

questions carefully and taking the time to visit the MHU at

the Ministry of Justice to speak to senior staff and to clarify

the current administrative process for managing restricted

patients. It is accepted that the administrative and clinical

roles are different, but not necessarily opposing. Certainly in

terms of mental health law, they both do appear to have a

common goal of treating patients with the aim of allowing

them to safely return to the community.

Limitations of the study

This paper is not a report of an experiment. It is a report of a

survey. The findings are not longitudinal in nature and are

based on data collected from one hospital, located in the

independent sector. Also, the participants are drawn from a

single clinical team working together, and consequently, the

views and attitudes of interviewees may be influenced by

others in the course of the discussion of particular cases and

over time. As the study was completed in 2009, no one in this

hospital, apart from the psychiatrists in the sample, was in a

position to have been undertaking the lead role of Respon-

sible Clinician under the Mental Health Act 2007.

Results

Balancing risk and rights – the clinical perspective

No one in the clinical team stated that they were

exclusively concerned with risk and the protection of the

public from serious harm. The issue of ‘how a restriction

order impacts adversely on clinical management’ was an

important consideration for this sample of mental health

practitioners.

All of the interviewees pointed out that a full assessment

of risk involves consideration of a wide range of qualitative

and individual factors. This is now well established in the

clinical literature. Assessment of violence risk is a complex

process and one that involves identifying and weighting

various static and dynamic risk factors, motivation, types of

available support, etc. (Maden 2007 and Webster & Hucker

2007). Currently, in England and Wales, there is lively

discussion in the profession about what form risk assessment

should take and what clinical (and actuarial) factors they

should include. Arguably, non-clinical factors such as

unavailability of healthcare records at weekends are probably

as significant as clinical matters. Ultimately, it should be

possible to establish a clinical standard of risk assessment as

there is in the USA and Canada, and protocols may even by

devised (Monahan 1993). This would put the emphasis on a

clinical skill, which practitioners can and do acquire through

training and expertise, rather than on the ability to predict

the future, which is a skill that no one possesses (Prins 2005).

However, despite developments in risk science, there is still

no standard assessment for violence risk in the England and

Wales (Maden 2005, Soothill et al. 2008).

In the present study, four clinicians (a psychiatrist, an

occupational therapist, a psychologist and a nurse) all

highlighted the significance of contextual factors (e.g. geog-

raphy, locale, resources) when assessing risk. Three practi-

tioners (all psychiatrists) believed that the MHU at the

Ministry of Justice, despite reorganisation and rebadging, still

focus squarely upon protection of the public and invariably

err on the side of caution when dealing with restricted

patients. In terms of how the existing system operates in

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practice, the clinical perception was that the legal and the

administrative framework for restricted patients effectively

places risk over rights and so subsumes the needs of restricted

patients.

One psychiatrist stated:

One of the problems is that the law itself and the Mental Health Unit

do tend to focus solely upon the wording of the Act and don’t really

consider exactly how the treatment of patients will be affected. Of

course public protection is vitally important but there are other

relevant public interest considerations, like ensuring individual rights.

Another observed that restricted patients themselves must

appreciate that ‘with empowerment comes responsibility’,

and they must to take some responsibility for their own

actions and be realistic reapplications for leave, transfer

and discharge. Three interviewees (two psychiatrists and a

nurse) commented on the value of restriction orders in

terms of ‘sharing the responsibility’ for the appropriate

disposal and subsequent management of dangerous men-

tally disordered offenders between agencies and decision

makers. They also suggested that the restricted hospital

order plays an important demonstrative role, with their

indefinite nature helping allay public fears about this type

of offender.

All participants commented on the usage of a comprehen-

sive risk assessment focusing not only on ‘what’ the risk is but

also on the ‘severity’ of the risk, the ‘circumstances in which

the risk might recur’, with evidence of reasoned analysis of

the risk factors.

Two practitioners (nurses) described the risk assessment

process in detail and indicated that they attach much

significance to what has happened in the past.

In formulating a treatment plan and doing a risk assessment we don’t

just focus upon the here and now, we look back at the seriousness of

the index offence and consider any risks that might be repeated.

One interviewee (a psychiatrist) suggested that a patient

being discharged only to repeat of the index offence is the

‘worst-case scenario for the patient, the clinician and the

public at large’.

In terms of discharging their professional responsibility,

several practitioners (three psychiatrists) indicated that their

starting point is to consider the relevant statutory phrase

contained within section 41(1) of the Mental Health Act

1983 that a restriction order should be made where it was

‘necessary for the protection of the public from serious harm’.

One interviewee commented:

The MHU look for reassurance that the care team have fully

addressed all the risk factors associated with the patient’s mental

disorder and offending behaviour and that the patient has some

insight into their index offence.

Several clinicians (two psychiatrists and three nurses)

thought the existing system to be ‘too risk-centric’ and

configured in such a way as to disempower front-line

practitioners. For example, three expressed concern that

individual MHU caseworkers can occasionally ‘overreact’ if

a patient is denied leave and they respond with displays of

anger, aggression and/or self-harm, even if they are short-

lived and born out of frustration. They reported that

immediate behavioural responses (and sometimes the clinical

interventions framed to deal with them) can be perceived

‘negatively’ by MHU and lead to repeated denial of Section

17 leave.

In interview, the predominant clinical view across this

group was that it is natural for restricted patients to respond

angrily and negatively to set backs if they have been in

hospital a long time and/or have been told by clinicians in

case conference that are ‘doing well’, in terms of making

demonstrable clinical progress and hitting treatment markers.

Transient challenging behaviour does not always mean that a

patient is a serious risk to the public. Self-harm might be a

well-established coping mechanism and is not indicative of

risk to others in most cases. Two participants (a psychiatrist

and an occupational therapist) pointed out that whilst the

Ministry of Justice has the last say in regard to leave,

discharge and transfer, they do not have to deal with the

‘clinical fall out’ from their decision-making, and this can be

significant if the patient cannot understand why leave has

been refused.

Clearly, in some cases, the therapeutic alliance with the

patient is affected and so careful thought must go into

deciding what information is to be shared and what is not.

Practitioners must value and respect patient rights, and

patients should be aware of the processes related to them

(Patel 2007).

Confidentiality is of vital importance; however, it is not an

absolute obligation, and in some circumstances, disclosure

may be required by law, or the clinician might determine as a

matter of professional judgement that disclosure is needed

whether in the patient’s own interests or in those of the

general public (Herring 2010).

Some individuals with antisocial personality disorder are

treatment rejecting (Tyrer et al. 2003), and there is some

evidence that some psychopathic patients may try and

dissemble, in an attempt to play the system when there are

no actual positive clinical outcomes. In a systematic review,

D’Silva et al. (2004) specifically address the question of

whether treatment does actually make some patients worse.



Transfer and discharge of restricted patients – who should

have the last word?

Two interviewees (psychiatrists) lamented the fact that they

did not have unfettered power in relation to the transfer and

discharge of restricted patients.

One stated:

Surely we are best placed to view risk in context as we understand

how clinical factors and risk factors sit together, we routinely manage

serious risk in relation to other patients so why not restricted

patients? Risk decision-making for this group is too serious to be

managed remotely.

The other doctor outlined the facts of a case (from a previous

job) to illustrate his point that transfer delays sometimes run

contrary to the needs of restricted patients.

Patient X had been detained in a Special Hospital and considered by

their RMO (and clinical team) as suitable to move to a local RSU.

The prospective RMO at the RSU assessed them and indicated his

willingness to accept them as a patient, the nursing staff assessed

them as suitable and the Secretary of State granted permission for a

one day orientation visit which was successfully completed. The

RMO then applied for permission to transfer and received the

following reason for the refusal to permit transfer:

We believe patient X’s rehabilitation should now be put on hold.

The effect of the refusal was that the patient had to face their next

MHRT in a Special Hospital rather than in a Regional Secure Unit

(RSU), with a RMO who was recommending transfer to lower

security, in the knowledge it could not be achieved, but opposing

discharge. The Patient in fact received a deferred conditional

discharge but waited (in Special Hospital) some two years after the

Tribunal considered the test for discharge to be met the as a

Community RMO could not be found.

Another clinician (an occupational therapist – OT) com-

mented that MHU caseworkers do not always appreciate

‘exactly how things are on the ground’ because ‘reading

about something is not the same as seeing it’. The OT went

on to explain that local geography and services can signif-

icantly impact upon risk decision-making around therapeutic

leave and the gradual testing of patients expected by MHU.

Restricted patients rely heavily upon the use of therapeutic

leave to demonstrate clinical progress, yet they have no

control over where they are placed and/or local resources. Six

escorted leaves in one area might be very different to six

escorted leaves in a different area.

It is interesting to note that from a clinical point of view, the

risk decision-making process is essentially viewed as being

more or less the same for restricted and non-restricted patients.

Three interviewees (a nurse, a psychiatrist and a psychologist)

questioned whether public protection could and should be

equated with public interest. They suggested that the public

interest might be better served by ensuring individual rights

and clinically assessed therapeutic risk taking.

Mere containment and preventative detention may not serve the

public interest in the long run. Given that restricted patients are being

treated in a hospital environment it is hard to justify the inclusion of

political factors in the risk decision-making process.

The significant demands and constraints that restricted

hospital orders place upon patients, as well as their

resource-intensiveness, mean that their use can be justified

only if employed accurately and appropriately. In the study,

five clinicians (two nurses, two psychiatrists and one

psychologist) thought that determining that someone is no

longer a risk should not be left to one person, or even ‘one

group’ of people as a single person might feel isolated with

the responsibility for ensuring the safety of both the public

and the patient. Two clinicians (a psychologist and a nurse)

commented that the non-clinical perspective provides ‘a

welcome degree of objectivity when it comes to risk

decision-making’. Their reasoning was that some clinicians

can become too close to their patients (as they care for them

over a long period of time). Also, the team can sometimes be

divided on risk issues or the view of the Responsible Clinician

prevails even though the majority of the team disagree.

Is there an effective dialogue between clinicians and the

Ministry?

All of the clinicians interviewed answered in the affirmative,

but they emphasised the importance of an ‘effective’ and

‘continuing’ communication between the Ministry of Justice

and the Mental Health Review Tribunal, to ensure that both

have a good understanding of the other’s position and

concerns.

One interviewee (a psychiatrist) stated it would be useful to

have a formal procedure for an ‘enhanced dialogue’ with the

MHU, particularly in relation to complex or ‘stuck’ cases,

where leave requests have been repeatedly declined by the

MHU.

Five of the interviewees (three psychiatrists and two nurses)

commented on the usage of direct communication with MHU

caseworkers and senior officers. They welcomed the intro-

duction of Ministry open days and liked the idea of

partnership working, though some seemed to be unaware

of modernisation issues and the transition of the MHU from

Home Office to Ministry of Justice. Ministry governance

around leave response times was viewed positively, though

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two clinicians (a psychiatrist and a nurse) commented on the

frustration of having to wait several weeks for authorisation

to transfer a patient, even though it was clinically indicated

and delay caused distress and irritation to the patient and the

clinical teams. Two members of the sample team (nurses)

thought that a paperless office system might speed up risk

decision-making, and several others (psychiatrists) thought

that it would be helpful for ‘all’ trainee Responsible Clini-

cians to visit an MHU open day as part of their training, so

that they can speak to individual caseworkers and see first

hand what working conditions are like and how individual

cases are dealt with.

Eight practitioners (nurses and psychiatrists) believed

MHU field visits to be a very good idea, as potentially such

visits can foster greater understanding between clinicians and

MHU and explode myths and assumptions around profes-

sional roles. Also, visiting officers have the opportunity to

consult with the wider multidisciplinary team and explore

risk issues in the context of the care programme.

However, none of the interviewees could think of a single

instance, either in their current job or in their previous

positions, where MHU had made a fieldwork visit to attend

case conferences and s.117 review meetings. One interviewee

(a psychiatrist) said he would like to know the following:

How many MHU field visits are made each year? Which cases

are prioritised? And what are the criteria for these visits?

Unfortunately, at the present time, the Ministry of Justice

does not publish statistics in relation to the number of MHU

field visits made each year. Similarly, it is not clear how MHU

officers prioritise such visits.

Deconstructing imposed recovery

Three broad themes can be identified from the findings:

Theme 1: Clinical disempowerment

Whilst the Ministry are keen to promote modernisation,

collaborative working and improvements in file management,

there is little evidence of substantive changes and improve-

ments on the ground in relation to administrative decision-

making and therapeutic risk taking. In fact, several of the

clinicians interviewed felt limited and, at times, frustrated by

the constraints placed upon them by the MHU at the

Ministry of Justice.

Theme 2: The need for further modernisation

The MHU propose that they have fundamentally reviewed all

of their processes and streamlined their operation to become

more efficient (Ministry of Justice, 2008b). Furthermore, they

assert that they are committed to providing a better service by

being more responsive, ensuring faster decisions around leave

and discharge and making fieldwork visits to resolve complex

cases (Ministry of Justice, 2008a). However, the consensus

view of this small group of clinicians in the independent

sector is that more needs be done to further improve lines of

communication and decision-making around leave and dis-

charge.

Theme 3: Problems associated with imposed recovery

The Ministry of Justice propose that the legal and adminis-

trative system for managing restricted patients is demonstra-

tively successful. This is not contested by the author.

Ultimately, those detained under s.37/41 Mental Health Act

1983 receive active treatment, with some success as many do

ultimately get discharged conditionally.

However this study suggests that, whilst this may be true,

the existing framework is something of a blunt tool and

inevitably subsumes the needs and rights of individual

restricted patients, effectively side-lining both clinical con-

cerns and clinicians themselves. When asked to deconstruct

the meaning of recovery, clinical staff identified a number of

potential obstacles to condition/self-management within a

secure environment for this type of offender patient. In some

cases, the existing system for managing restricted patients

may amount to ‘antirecovery’. Clinical solutions focused

upon self-management, collaborative care planning, collabo-

rative risk assessment and an enhanced dialogue with MHU

caseworkers at the Ministry of Justice.

Discussion

The practical effect of Section 41 is to drastically curtail

clinical freedom, and the order seems to be aimed at the

Responsible Clinician and the clinical team, rather than the

individual restricted patient, though their position is clearly

affected.

The restrictions are set out in s.41(3) Mental Health Act

1983 (as amended by the Mental Health Act 2007). Without

the permission of the Home Secretary, the Responsible

Clinician cannot:

• give a restricted patient leave from hospital;

• transfer the patient to another hospital;

• remit the patient to prison; discharge the patient into the

community;

• recall the patient from the community;

• remit to stand trial; a patient who is found unfit to plead

makes subjection to a restriction order and recovers



substantially to stand trial. It is perhaps more accurate to

view restrictions as applying to clinicians rather than the

patient themselves.

In practical terms, this means that there are additional

frustrations and challenges for both patient and clinician

(Baxter 1991). Whether section 41 is considered a useful

adjunct to treatment or as a further restriction on liberty,

recidivism in postdischarge mentally disordered offenders is

less than would be anticipated from the Offenders Index

(Ly & Howard 2004). However, an individual under

restrictions ‘cannot be regarded simply as a patient whose

interests are paramount’ (R v Birch 1989). Although

restricted patients are still entitled to basic statutory

protections (e.g. the right to have their treatment plan

reviewed by a second opinion doctor) just as unencum-

bered s.37 patients are, the restricted hospital order

effectively ‘places control over treatment’ (Bartlett &

Sandland 2007).

The Richardson Committee (in its Review of the Mental

Health Act 1983 in November 1999) was critical of the

existing system for restricted patients and stated:

The Human Rights Act demands that an individual subject to

detention on the grounds of his or her mental disorder must have the

right to test the legality of that detention before an independent court

and it is hard to condone a system that leaves vital preliminary

decisions exclusively in the hands of a member of the Government.

The Committee recommended that the final decision on

these decisions should rest with the Mental Health Review

Tribunal, which should be specially constituted to hear

restricted cases, though they would be obliged to consult with

MHU before making any such decision. The Mental Health

Act Commission, in their Eleventh Biennial Report (2006),

agreed and went so far as to describe the discretionary

powers of the Home Secretary in relation to restricted

patients as ‘anachronistic’. In the same year, the report of

the independent inquiry into the care and treatment of

George Leigers (County Durham and Tees Valley Strategic

Health Authority 2006) also questioned the legal and

administrative framework for managing restricted patients.

To date, all of these recommendations for law reform have

gone unheeded by Government, and the discretion of the

Home Secretary has been retained in relation to restricted

patients. Furthermore, all restriction orders are now unlim-

ited by time (Prins 2008).

A true partnership?

Academics robustly challenge the notion of a genuine or true

partnership between clinicians and the MHU and are equally

critical of the suggestion that there is a shared goal but

different approaches.

Professor Nigel Eastman (2006) writes:

Partnership assumes parties working towards a common goal on an

equal footing. Neither assumption is correct here. Although forensic

mental health services direct themselves explicitly towards enhancing

public safety, they do so in conjunction with treatment aimed at the

relief of dysphoria in the patient. The interest of the Home Office in

the patient’s mental health is solely in terms of its impact on the risk

of harm to others. There is therefore no ‘partnership’. Rather, there is

constructive tension between agencies working towards differently

valued and balanced objectives. Certainly the relationship is not one

of equal power.

For Eastman and others (Peay 2003) the essential difference

between MHU officers and clinicians is that practitioners

have a duty of care and this duty is firmly rooted in both law

and ethics. Risk decision-making in relation to restricted

patients is not just about the law; there are also important

ethical considerations, and in some cases, these may be

overlooked or the relevant ethical issues overshadowed by

legal concerns.

This academic view was shared by some of the clinicians in

the sample, and one psychiatrist provided an example of how

the needs of restricted patients can be subsumed. Some

practitioners questioned whether the discretion of the Home

Secretary should be retained in restricted cases.

However, it is accepted that this is only one point of view.

In modern enlightened times, perhaps we should question

whether it is right that clinicians have unique expertise in risk

assessment and management. Some would argue that pro-

posals for transfer or discharge should be ‘approached with

caution’ (Baxter 1991) and that it is somewhat arrogant of

healthcare professionals to assume that their views are those,

which ought to predominate. The law as it currently exists

has been brought into being by what is considered to be a

democratic process and approved and passed in Parliament

by elected representatives.

The need for robust regulation

The creation of the Care Quality Commission (CQC), a

regulatory body spanning health and social care, indicates a

bold move towards joined-up thinking in health and social

care and tighter regulation of services. However, potentially,

at least, the demise of the Mental Health Act Commission

(a dedicated visiting body) could have negative consequences

for restricted patients if enough resources are not made

available to MH Commissioners at the CQC and/or the

regulatory function becomes too ‘diluted’ (Shaw et al. 2007).

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Given the discretionary powers of the Home Secretary and

administrative oversight of clinical risk decision-making in

relation to this particularly vulnerable group of patients, it is

essential that the operation of the Act is scrutinised carefully

at ground level and clinicians given the opportunity to

highlight deficiencies in the system, which impact negatively

upon care and treatment.

Conclusions

This paper has sought to address the potentially important

issue or issues relating to forensic mental health professionals’

views on the arrangements for management of patients

subject to a restricted hospital order. A mixed interprofes-

sional group of 14 mental health professionals, working in

one clinical team (in one independent sector hospital), were

interviewed to ascertain their views about the legal and

administrative system for managing restricted patients and

how well that existing system operates in practice, at ground

level.

Given the modest nature of the study, the huge number of

potential confounding factors and the differences in experi-

ence and practice across the rest of England and Wales, there

are difficulties in how the findings might be justifiably

generalised as the findings indicate that consideration of a

request for leave in one part of the country may be viewed

very differently by the Ministry of Justice than in another.

Responses from participants suggest that the experience,

knowledge and understanding of the process of management

of restricted patients and communication with the MHU and

its officers may have shown differences had the sample been

both larger and taken from more than one hospital.

In terms of what can be legitimately drawn from this study:

First, the clinicians interviewed felt limited and, at times,

frustrated by the constraints placed upon them by virtue of

the need to interact with the MHU at the Ministry of

Justice. Findings suggest that some staff were not totally

familiar with policy changes at MHU.

Second, the consensus view (across ‘this’ particular multi-

disciplinary team) is that the existing legal and adminis-

trative framework for managing restricted patients can

sometimes make it difficult for clinicians to fulfil some

aspects of their professional role and allow them to strike a

proportionate balance between ensuring the needs and

rights of restricted patients ‘and’ protecting the public from

harm. Whether or not the current system for managing

restricted patients can be justified is debatable, but clinical

opinion would suggest that in practice it is slightly mis-

leading, if not disingenuous, for MHU to claim that there is

a ‘true’ partnership between Ministry of Justice and clini-

cians, though they both have a common goal of treating

patients with an aim of allowing them to safely return to

the community.

Incidental findings indicate that generic, structured assess-

ment and collaborative care planning approaches may result

in self-management education targeted to the individual,

improved self-management and quality of life. However,

further study is required to test the feasibility and usage of

combining a generic, clinician administered and peer-led self-

management group approach for this category of offender

patient. Imposed recovery and the systemic issues and the

value assumptions that health professionals often bring to

their interactions with clients need be explored further. Not

until we have serious debate about such issues as will health

services fully translate the current rhetoric of collaborative

partnership into reality for health professionals and the

clients they serve.

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