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?
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� 2011 Blackwell Publishing Ltd 399
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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400 � 2011 Blackwell Publishing Ltd
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.
Original article Risk, rights, mental health, imposed recovery
� 2011 Blackwell Publishing Ltd 401
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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402 � 2011 Blackwell Publishing Ltd
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
Original article Risk, rights, mental health, imposed recovery
� 2011 Blackwell Publishing Ltd 403
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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404 � 2011 Blackwell Publishing Ltd
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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