Vol.:(0123456789)

Social Theory & Healthhttps://doi.org/10.1057/s41285-021-00167-z

ORIGINAL ARTICLE

The omnipresence of risk and associated harms in secure and forensic mental health services in England and Wales

Sarah Markham1

Accepted: 6 June 2021 © The Author(s), under exclusive licence to Springer Nature Limited 2021

AbstractCurrent legislation and policy frameworks regulating the detention and treatment of mentally disordered offenders in England and Wales are predicated on the assump-tion that a minority of patients have enduring violent tendencies and pose a seri-ous long-term risk to the safety of others. This paper seeks to consider the manner in which notions of risk and the imperative to contain and minimise the potential for harm, present and impact patients in secure and forensic mental health settings. Within this, we consider how mental health stigma and Beck’s concept of the Risk Society can affect the thoughts and actions of those who may be held accountable for rare but potentially serious harmful events. We consider what changes may need to be enacted within secure and forensic mental health services to reduce the inci-dence and severity of consequent risks of harm to patients and their mental health recovery.

Keywords Forensic psychiatry · Human rights · Mental health · Recovery · Risk · Violence

Mental health stigma

When society attributes, upon an individual or sub-population, perceived behaviours that do not adhere to the expected social norms, stigma can arise (Ahmedani 2011). The most established definition regarding stigma originates with Goffman (1963) who stated that stigma is ‘an attribute that is deeply discrediting’, that reduces some-one ‘from a whole and usual person to a tainted, discounted one’. Dudley (2000), working from Goffman’s initial conceptualisation, defined stigma as stereotypes or negative views attributed to a person or groups of people when their characteristics

* Sarah Markham sarah.markham@kcl.ac.uk

1 Department of Biostatistics & Health Informatics, Institute of Psychiatry, Psychology & Neuroscience (IoPPN), King’s College London, PO72 De Crespigny Park, Denmark Hill, London SE5 8AF, UK

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or behaviours are viewed as different from or inferior to societal norms. For exam-ple, members of the general public may perceive those with mental disorders as frightening, unpredictable and strange (Lundberg et al. 2007). Corrigan (2004) also suggests that fear and discomfort arise as a result of the social cues attributed to individuals. Social cues can be evidenced by psychiatric symptoms, awkward physi-cal appearance or social-skills, and through labels (Corrigan 2004, 2007).

Goffman delineates three specific levels of stigma: social stigma (structural stigma within the general public), self-stigma (actual or perceived social stigma internalised by a person) and professional stigma (stigma is held among health pro-fessionals towards their clients) (Goffman 1963). Mental health stigma can have a serious negative impact on the lives and health of individuals with mental disorders. The WHO (2001) cites stigma as a key barrier to successful treatment engagement, including seeking and sustaining engagement with services.

Research over the last two decades has documented some of the impacts of health professional stigma (Nordt et al. 2006; Volmer et al. 2008). Patients have reported feeling labelled and marginalised by health professionals (Liggins and Hatcher 2005). It has also been evidenced that people with mental disorders may not receive equivalent care (compared to non-mentally ill patients) in general health settings once health professionals become aware of their mental health conditions (Desai et al. 2002; NCEPOD 2017).

Mentally disordered offenders detained under Part III of the Mental Health Act (MHA) are especially vulnerable to mental health stigma having already been tagged with the medico-legal label of risk (Tucker et al. 2019). Having enacted a harm, they are presumed to constitute an enduring risk to others regardless of the lack of clini-cal research evidence demonstrating at the individual patient-level direct associa-tions between mental disorder and past offending behaviour with a continued risk to others. The literature suggesting that a history of offending is predictive of future offending is focused on identifying factors associated with violence at a cohort or on population level. Such findings are not necessarily applicable to individual cases (Whiting et al. 2021). It is important to remember that statistical results are not nec-essarily representative of every member of a sample, even less, every member of the corresponding cohort or population. It is posited that risk-averse management strategies may in themselves paradoxically act to increase the likelihood of violence (Barbui and Saraceno 2015). Patients may be reluctant to seek support or disclose violent ideation, especially in the context of formal risk assessment, for fear of being detained under the MHA or prolonging a current period of detention (Dixon 2018).

Risk society

Giddens (1999) and Beck (1992, 1999) described contemporary society as a risk society or culture in which risk has become a central organising principle guiding both individual and institutional behaviour. According to Giddens (1990; 1991) one of the major consequences of modernisation has been a tremendous intensification of actual and perceived risk, although Beck (1999) has argued that the advent of late modernity has been accompanied by the mitigation of many risks.

The omnipresence of risk and associated harms in secure and…

The COVID-19 outbreak has dominated the global news agenda throughout 2020 and 2021, posing significant health, social and economic challenges to populations. Prior to the current pandemic, headlines were often focused on events and concerns regarding terrorism, climate change and other global risks to our well-being. Beck, in his book, ’The Risk Society: towards a new modernity’, attributed societies’ pre-occupation with the risk of potential harm to ’reflexive modernisation’, a global transformation towards societies dominated by the concept of risk and an emergence of a collective expectation of catastrophe (Beck 1992). The ethos of wealth creation that characterised industrial modernity has been subsumed by an ethos of risk avoid-ance and an increased awareness of living in an environment of risk, uncertainty and insecurity, all of which can act as a significant catalyst for social transforma-tion, consider, for example, the various social distancing measures which have been implemented internationally.

However, risk associated with the potential for loss, injury, harm, fatality or destruction, can negate the possibility of a positive risk, defined as a risk worth taking because of the potential for a beneficial outcome. Adams (1995) argues that we have entered an era burdened by the risk of over-regulation and excessive leg-islation. Threatened by the increasing risk of litigation, government, business and healthcare feel compelled to invest in stringent regulatory protocols and follow pre-cise safety standards in order to avoid both the risks to public health and safety, and the risks to professional integrity and reputation (Adams 1995). Ironically, the emer-gence of this ethos of enhanced sensitivity to potential risks to well-being, public health and environment, may jeopardise the fundamental socio-political values of liberty, equality, justice, rights and democracy. The significantly risk-averse culture, policy and practices which dominate secure and forensic mental health services are indicative of this.

Mental health services

Mental health services are essentially unique within healthcare systems in legally mandating the subjection of patients under certain circumstances to detention, com-pulsion and restriction. Calls for elements of change have already been expressed in the UK, most notably those advocating values-based, recovery-focused approaches (Department of Health 2007). Compulsion in secure and forensic and broader men-tal health services is rising worldwide; this fact demands not discussion but action (Puras and Gooding 2019). According to the Care Quality Commission (CQC), lev-els of compulsion and coercion in both hospitals and the community in the UK have risen since the last reform of the MHA in 2007 (CQC 2015). The 2018 Review of the Mental Health Act was initiated in response to calls to look at how the legisla-tion in the MHA (1983) is used and how practice can improve. The purpose of the review included seeking to understand the reasons for rising rates of detention under the Act and the processes that are out of step with a modern mental health care sys-tem (DHSC 2018a). In 2019–2020, 50,893 new detentions under the Mental Health Act were recorded (NHS Digital 2021). The Review set out recommendations on

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how the Act needed to change in its final report ‘Modernising the Mental Health Act’ (DHSC, 2018b). This led to the Government’s White Paper Reforming the MHA (DHSC 2021).

It is important to acknowledge that violence and aggression can and do occur in forensic and other psychiatric care settings. However, such rates are low with a predominance of verbal over physical aggression (Foster et  al. 2007). Systematic reviews have found an increased risk of violence associated with certain mental dis-orders (Witt et  al. 2013; Ullrich et  al. 2014). Despite this, the role of psychiatric disorders in the development of violence has been continuously called into question, both in the academic literature and among policy makers. For instance, literature reviews often cite the extremely low number of violent offenders that suffer from psychiatric disorders (Varshney et al. 2016).

Given the parallels between imprisonment and involuntary placement in (foren-sic) mental health services it is pertinent to paraphrase Crewe (2015) ‘the pains of [detention] can be divided up conceptually, and to some degree historically, into those deriving from the inherent features of incarceration, those resulting from deliberate abuses and derelictions of duty, and those that are consequences of sys-temic policies and institutional practices’ (Crewe 2015). In this paper, we focus pri-marily on the latter category, harm caused, at least in part, by disproportionate risk aversion and associated policies, thinking and practice in the context of detention under the MHA. These harms include epistemic and occupational justice, together with certain forms of iatrogenic harm. It should be noted, however that the psycho-logical as opposed to the physical pains of detention, including the loss of liberty, the deprivation of autonomy can be just as damaging as physical mistreatment, espe-cially if caused by professional misperceptions or misjudgements of the degree of risk posed to self or others.

As referred to in the previous section, the rise in risk aversion and increased focus on the management of perceived risk is reflected more widely in society, as acknowledged in some key sociological texts (Beck 1992). According to Beck, in times of insecurity, there seems to be a tendency to fall back on authoritarian instru-ments, leading in the context of secure and forensic mental health settings to the dominance of explicitly risk-averse policies and practices (Beck 1992; Wimmer and Quandt 2006). This phenomenon can dominate thinking and practice within forensic psychiatry to the extent that the quality of clinical practice and patient human rights and well-being may be seriously compromised.

In mental health care, the concept of risk is most commonly understood as a like-lihood of an event happening with potential harmful outcomes for self and others (Morgan 2000). The CQC has warned that the more positive recommendations from national mental health policy such as a shift towards more collaborative decision making and risk assessment, are in effect ignored by services characterised predomi-nantly by compulsion, coercion, containment and control (CQC 2012, 2015). The rhetorical valuation of collaboration in policy and planning, including in the NHS Long-Term Plan, sits uncomfortably alongside the reality of restriction and control (NHS England, 2019).

Involuntary detention in a psychiatric inpatient unit is regarded as one of the most ethically concerning practices in medicine, principally due to associations with

The omnipresence of risk and associated harms in secure and…

exclusion, disempowerment, fear and low satisfaction with care (Wyder et al. 2016; Smith et al. 2014). For those members of society whose failure to manage the poten-tially disabling consequences of their mental health conditions has led them into conflict with the criminal justice system, the immediate outcome can be a significant removal of their rights and the imposition of restrictions severely limiting their qual-ity of life for indefinite periods of time. When sentencing offenders who at the time of the offence have any mental disorder, the assessment of whether the disorder has any impact on sentencing should be individualistic and focused on the issues in the case. Culpability may be reduced if an offender was at the time of the offence suf-fering from a mental disorder. A careful analysis of all the circumstances of the case and all relevant materials is required. A hospital order provides for the offender to be detained in hospital for treatment. Where a hospital order is made, the Crown Court may make a restriction order if it appears to the court that it is necessary to do so for the protection of the public from serious harm, having regard to the nature of the offence, the antecedents of the offender and the risk of their committing further offences if set at large (Sentencing Council 2020).

There is evidence that the First Tier Mental Health Tribunal Service, through lack of governance by rules of procedure and evidence, can fail to operate so as to protect the civil rights of patients as might be implied by the provisions of the Act itself (Markham 2020). The principal concerns are that such tribunals are overly influ-enced by the views of the doctors currently in charge of patients’ care and that some tribunals amount to little more than ‘glorified clinical case conferences’ (Peay 1981). This criticism probably applies more strongly to tribunals relating to mentally disor-dered offenders than to general psychiatric patients subjected to civil detention in the interest of their own health and safety given the higher degree of risk associated with such individuals and has obvious ethical implications (Jewell et al. 2017). It has been suggested in the research literature that mental health tribunals may need to do more to safeguard legislative principles and human rights standards that promote patient autonomy (Macgregor et al. 2019).

Secure and forensic mental health services

In England and Wales, individuals who have committed a criminal offence in the context of suffering from a mental disorder may on sentencing receive a hospital order instead of a custodial sentence. This constitutes treatment for their mental dis-order and offending behaviour in a secure and forensic psychiatric hospital. Simi-larly, individuals who have received a custodial sentence may subsequently be trans-ferred to a secure and forensic psychiatric hospital for part of or the entire duration of their sentence. The severity of an offence and the degree of risk assigned to an individual patient effectively determine both access to services and the degree to which the human rights of said individual may be qualified and for what length of time (Andreasson et al. 2014).

Part III of the MHA concerns the most stigmatised and restricted of patients who are detained in secure forensic psychiatric hospitals where past behaviours including serious offences such as manslaughter or serious violence towards

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others retain salience not only in the present, but potentially indefinitely, and the concept of risk is omnipresent: dominating policy, procedure and practice. A mixed-methods study exploring the characteristics and needs of long-stay patients in high and medium secure settings in England found that about one third of patients in high secure care might be placed in too high a level of security; for medium, secure care about one quarter was judged to be detained in settings with too high levels of security; only a minority of patients were expected to be in the community in 5 years’ time (Völlm et al. 2017).

The dominant discourse of the mental health and legal systems encourages and supports the unproven reductive narrative whereby mental disorder is assumed to cause violence, and the risk of violence will persist unless the correspond-ing mental health conditions are treated successfully (Vivian‐Byrne 2001). This places significantly high imperatives on psychiatrists to be able to know exactly what to do to diagnose and treat patients and potentially to disregard individual patients’ capacity for self-agency, experiential learning, adaptive decision-mak-ing, and behaviour change (Vivian‐Byrne 2001). This can have significant impli-cations for the patient, together with other practitioners and agencies involved in managing the patient’s perceived risk. With regard to mentally disordered offend-ers, the unproven illness-risk paradigm can act to discourage them from taking responsibility for their past and future actions and thereby fail to minimise the risk they may pose to others. The adaptive and very natural response of assum-ing responsibility for the harm one has committed and associated experiential learning, may also be stifled through a perceived need to comply with the med-ico–legal narratives of incapacity and lack of self-control, together with the fear of adverse consequences if one does not (Vivian‐Byrne 2001). Furthermore, it can be very discouraging and disempowering for patients to experience clinicians negating their sense of ownership of and accountability for their actions (White and Epston 1990).

The unproven assumption that the risk mentally disordered offenders present to others is enduring if not innate, may have originated and be maintained by a lack of understanding of how risk presents at the individual patient level together with professional (mental health) stigma. The secure and forensic mental health system sustains its legitimacy predominantly by acting to assuage public fear of the per-ceived risk posed by people with mental disorders. A consequence of this is that a substantial degree of effort and resources are directed towards risk assessment and prevention rather than care and treatment (Centre for Mental Health 2013). The restrictive nature of these settings is pervasive, extending beyond the high fences and locked nature of the buildings, to the limited range and purposefulness of activ-ities available to patients (Haw et  al. 2011). According to the overarching princi-ples of the MHA (1983) forensic psychiatric care must be provided within the least restrictive setting possible, whilst simultaneously maintaining appropriate levels of security, however this standard of care may not be actualised (DoH 2015). How-ever secure and forensic psychiatric settings are designed in accordance with both protective and preventive models of care, and are therefore overtly risk-averse and dominated by physical and procedural security measures (Tomlin et al. 2018). It is not simply lack of sufficient financial resources, but also incongruence between the

The omnipresence of risk and associated harms in secure and…

cultures of health and criminal justice systems and the degree of organisational sep-aration (Eastman 1993) that has contributed to the isolation of forensic psychiatric services from mainstream psychiatric services and the dominance of custodial and security-based over therapeutic ways of working with and treating mentally disor-dered patients (Gostin 1986).

It is important to acknowledge that sound case management and treatment, espe-cially the promotion of client self-determination may involve positive risk taking. National guidelines have recognised that ‘In order to achieve therapeutic gain, it is sometimes necessary to take risks. A strategy of total risk avoidance could lead to excessively restrictive management, which may in itself be damaging to the individ-ual’ (Ministry of Health 1998). Adaptive risk management, thus, involves a dynamic balancing of potential benefits and harms (Carson 1996). The DHSC advocates for a stronger patient focused and positive risk-taking approach in secure and forensic psychiatric settings in England and Wales (DoH 2008). The major cause for the suggested deficits in the duty of care is an assumed shift towards a risk-averse cul-ture within society, organisations and mental health teams. There is no doubt that working with mentally ill (potentially) violent offenders is a difficult and problem-atic social domain unlikely to find optimal solutions. There is a notorious conflict between the possibility of innocent victims and the rights of mentally ill for heal-ing and improvement. The Secure Recovery model negotiates such challenges by advocating a gradual transition of responsibility from the treating team back to the patient in accordance with their clinical progress (Drennan and Alred 2012).

Secure and forensic mental health services have been framed as unethical mani-festations of state control in which behavioural change programmes deny patients any meaningful autonomy (Holmes and Murray 2011). The reality may comprise packages of care dominated by confinement and restriction with at most isolated instances of therapeutic impact, for instance weekly or fortnightly psychology or occupational therapy sessions (Heyman et al. 2004; Durcan 2011). Forensic patients may be detained for significantly longer periods than individuals who have commit-ted similar offences but who are not deemed to be suffering from a mental disorder (Nijman et al. 2017).

Many individual professionals within forensic mental health services are given expert status by the legal system, other agencies, and sometimes individual patients and staff within those services. However, contemporary epistemological thinking questions the modernist equation linking objective knowledge, certainty and expert status (Flaskas 1997).

Risk Aversion as a catalyst for harm

In the final report of a joint review by the Home Office and Department of Health of services for mentally disordered offenders and others requiring similar services, 23 Reed proposed that the needs of this cohort can be met only by a broad and inte-grated range of health and social services. The principles espoused by Reed were that high-quality care should be provided by health and social services according to individual need, near to the patient’s home or family, as far as possible in the

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community but otherwise in conditions of no greater security than is justified; the ultimate aim should be to maximise rehabilitation or opportunities for independent living (Chiswick 1992).

Since the publication of the Reed Report, recovery-oriented care has become the overarching principle for mental health policy and practice in the UK and elsewhere (DoH 2008). However, it can be argued that the pre-existing culture of risk aver-sion within services may impact negatively upon the provision of recovery-oriented practice. Indeed, the Department of Health (DoH) has stated that traditional risk-management procedures restrict recovery-oriented practice (DoH 2008).

In secure and forensic psychiatric settings, a tension is perceived to exist between the promotion of responsibility and autonomy, and the need to protect patients from posing a risk to themselves and others, through qualification of their human rights and the restriction and confinement this entails (Roychowdhury 2011). Psychiatrists are not necessarily indifferent to the impact of detention on their patients’ concerns but are themselves subject to imperatives of surveillance and control of mentally disordered offenders (DHSC 2018b). It is the consultant forensic psychiatrists who make the risk judgements who are accountable to the Ministry of Justice for any harm enacted by their patients and who, therefore, have a strong professional and personal interest in ensuring their patients are under restriction. The 2018 Independ-ent Review of the MHA expressed clear concerns about the disproportionately risk-averse nature of psychiatric practice, citing clinicians’ subjective, self-protective anxieties as a significant cause (DHSC 2018b). In a study on professionals’ views about the impact of defensive practice on risk assessment, one worker commented: “Sometimes I think we try to change somebody’s circumstances to deal with our own anxieties, rather than the concerns they have about themselves or the risks they actually present” (Langan and Lindow 2004). This can lead to patients becoming reluctant to be wholly open with their care teams regarding symptoms, ideations and other vulnerabilities, because they fear how their experiences may be interpreted and acted upon. Thus, a patient may feign agreement and compliance in order to appear to not lack insight or to be challenging those in authority, rather than be open about their true state of mind and potentially risk further restriction.

In 2008, the Royal College of Psychiatrists published a report aiming to encour-age practitioners to rethink the concept of risk to others (RCPsych 2008). The report endorsed several key recommendations that risk formulation should be strength-based based on, and integrated within a thorough clinical assessment including justified risk taking (defined as taking risk decisions for a positive outcome for the patient) that a risk-management plan should form an integral part of an overall treat-ment plan and not be separate from it, and that clinicians should be aware of the limitations of their risk assessment skills.

Over the last few decades, increased attention has been paid to individuals’ per-ceived risk, with the operative presumption that it results predominantly from men-tal disorder. Despite this the role of psychiatric disorders in the development of vio-lence has been continuously called into question, both in the academic literature and among policy makers. For instance, literature reviews often cite the extremely low number of violent offenders that suffer from psychiatric disorders (Varshney et al. 2016). Research has clarified that individuals often commit violence for reasons

The omnipresence of risk and associated harms in secure and…

unrelated to mental disorder, and that the vast majority of people who are violent do not suffer from mental health conditions (Mulvey 1994). The absolute risk of violence among the mentally ill as a group is still very small and only a small pro-portion of the violence in our society can be attributed to persons who are mentally disordered (APA 1994). An individual’s capacity to do harm is not necessarily a symptom or indicator of a mental disorder, and violence itself is not a clinical diag-nosis (Philips 1999).

Risk-oriented treatment must both be effective and not harm patients. This is especially apposite to the risk of violence as low base rates for serious violence may mean that there will always be many false positives for every true positive pre-diction. Thus, a significant proportion of those identified as being at high risk of violence do not commit violence. This means that large amounts of resources are deployed to contain and restrict individuals who are not going to commit acts of violence (Large et al. 2014).

Approaches to the risk assessment are categorised into three groups: clinical, actuarial, and structural clinical judgement. Actuarial approaches attempt to assess individual risk using information derived from group data rather than from an indi-vidualised assessment. Their accuracy in predicting rare events is low because pre-dictive validity is limited to those who are similar to the population from which the actuarial data were drawn (Sreenivasan et  al. 2000; Dahle 2006). Clinical approaches to risk assessment have been criticised as yielding assessments based upon little more than a psychiatrist’s intuition, experience, and clinical orientation (Large and Nielssen 2017). The concern is that the selection and measurement of risk factors can be sensitive to individual bias and variable inter-rater reliability. In contrast-structured professional judgement approaches formulate estimates of risk by reviewing and scoring a set list of empirically validated risk factors believed to be associated with violence, although not necessarily at the individual patient level. However, the weight assigned to the various risk and protective factors when gaug-ing a patient’s level of risk remains a subjective clinical judgement.

In reality, no one can predict future harm with any degree of certainty (RCPsych 2008). Risk assessments may identify factors associated with the potential to com-mit harm, but this does not necessarily imply that a given individual exhibiting a given factor will pose a risk to others. An individualised assessment of risk of future harm requires the acquisition of considerable data from which conclusions may be drawn. Understanding the context, opportunity, frequency, intensity, and severity of past harmful acts, identification of circumstances and stimuli that may lead to harmful behaviour such as substance abuse, paranoid psychosis, relational difficul-ties, economic problems, and recidivism are essential in devising a comprehensive risk-management plan. Callaghan and Grundy (2018) reported that risk assessment and management to tackle violence in mental health remain fraught with empirical, conceptual and practical concerns. They concluded that on the basis of the limita-tions of the predictive efficacy of risk assessment tools, it is ethically dubious to sub-ject people to interventions with limited benefits. Risk assessment processes tend to reinforce stigma by classifying individuals as risky, sanctioning society’s prejudices and fear through scientific authority (Callaghan and Grundy 2018).

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Furthermore, in practice, especially with forensic community mental health teams with high caseloads and minimal patient contact, risk assessment and associated decision making, including the recall of restricted patients to secure settings may be made on in ad hoc, poorly reasoned and non-evidenced manner, the motivating factor being team members’ need to satisfy their subjective anxieties and discomfort regarding the management of uncertainty (Natarajan et al. 2012). The more swiftly a forensic mental health practitioner interprets perceived behaviour, the less opportu-nity there is for engagement and dialogue with the patient concerned, and the more opportunity for misconceptions and misunderstandings to present, potentially result-ing in an unnecessary and unjustified infringement of an individual’s human rights (Anderson and Goolishian 1988).

A risk-averse culture which emphasises and prioritises risk avoidance above all clinical and therapeutic goals may invariably lead to excessive restriction and the compromise of individual patient’s human rights (Molodynski et  al. 2016). Per-ceived risk can lead to the intensification of patient supervision, modifying medi-cations, hospitalisation and the notification for protection of potential victims (Tar-diff 1999). Disproportionate risk aversion may also result in invisible harms such as epistemic, occupational and procedural injustices. This may impact negatively on patient self-concept and the potential to engage in treatment, experience meaningful recovery and build positive lives. At the service level, this also affects staff morale and learning, quality of practice, and the long-term burden on health care services and the tax payer (DHSC 2018b).

The quality of practitioner peer relationships may impact significantly on the ability of staff to assess the potential for harm. When patients experience themselves being treated as a risk entity in need of surveillance and restriction rather than an individual in need of care and treatment, then their openness with healthcare staff may be compromised (Castel 1991). This may be especially the case with restricted patients who may be aware that the concerns of their care team may be communi-cated directly to the MoJ potentially affecting future applications for S117 leave.

Psychiatric practitioners can be prone to conceptualising risk in very narrow terms: as risk to others, risk to self and risk arising from vulnerability. Risks to patients arising from the stigma and social exclusion of being detained under the MHA (Kelly and McKenna 2004), and the iatrogenic effects of psychiatric treat-ment (Rogers and Pilgrim 2001) may be routinely disregarded. One of the princi-pal psychological harms which patients may experience in risk-averse settings is epistemic injustice, a phenomenon in which the person is wronged in their capacity as a knower due to prejudice such as mental health stigma, thereby impairing the transmission of knowledge via testimony (Fricker 2007). People with mental health conditions may be highly vulnerable to this form of injustice as stereotypes cen-tre on compromised reasoning ability and the risks assumed to be associated with this, stereotypes that are to some extent enshrined in law and structural features of healthcare systems. Patients report that mental health practitioners fail to listen to their concerns, and that their testimony about their health and needs is either ignored or marginalised and that they feel mistrusted (DHSC 2018a). Reported instances of clinicians discounting their patients’ self-accounts led to one author remarking that clinicians wanted patients to be ‘seen but not heard’ (Hagen and Nixon 2011).

The omnipresence of risk and associated harms in secure and…

The 2018 Independent Review of the MHA further reified that patients’ knowledge regarding which treatments work best for them can be disregarded without explana-tion by clinicians, and that patients who disagree with their treating team may be labelled by default as ‘lacking insight’ or ‘non-compliant’, and (in forensic settings) ’risky’. If a patient raises a concern, they can often find themselves facing a per-ceived impenetrable wall of denial from both the service provider and practitioners concerned (DHSC 2018b).

Hermeneutical injustice can arise through epistemic isolation: situations where a person or group lacks the knowledge of, or means of access to, particular informa-tion. Forensic patients may be at particular risk of hermeneutic injustice given the locked confines of the secure ward and minimal access to the outside world or inter-net. Hence, the need for patients is to be educated in meaningful and accessible ways regarding the nature, purpose and limitations of risk assessment and management. Possible consequences for practitioners of excluding patients’ views from care, treat-ment, risk formulation and management include impoverished clinical knowledge and understanding regarding the patient and their well-being, together with poorer therapeutic outcomes (Stiggelbout et al. 2015).

Occupational injustice, a lack of meaningful occupation, and consequent bore-dom, has also been identified as a negative and enduring feature of forensic inpatient environments (Wright et al. 2011). This is of relevance to recovery and minimising risk as meaningful activity can act to increase an individual’s sense of autonomy and self-efficacy, and provide opportunities for positive social interaction thereby reduc-ing recidivism (Nijdam-Jones et al. 2015; Tapp et al. 2013).

Mitigating the omnipresence of risk and associated harms

The notion of emergent risks as explored via Beck’s concept of the risk society can be understood as perceived rather than actual risks. Regardless of whether the risks are real or imaginary, people will be more inclined to believe and act on them in risk-averse working cultures. Therefore in secure and forensic mental health set-tings, there is a very real need to examine the limitations of current thinking and practice with regard to risk formulation, assessment, management and the various heuristics deployed in both the communication of, and judgements made, regarding what constitutes acceptable and unacceptable levels of risk.

In the Influence of Risk Society, Beck (1994) posits that over the course of mod-ernisation, individuals have become less able to tolerate and manage ambivalence and ambiguity, associating uncertainty with reduced safety and potentially as a threat to their health, economic security or psycho-emotional well-being (Lupton 1999). This can lead to what Giddens termed ontological insecurity characterised by obsessive exaggeration of perceived risks to personal existence, extreme introspec-tion and moral vacuity (Possamai-Inesedy 1989). The opposite condition, ontologi-cal security, when achieved, provides the individual with a sense of continuity and stability, enabling them to cope effectively with risk situations, uncertainty, personal tensions and anxiety (Possamai-Inesedy 1989).

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An adaptive response to a societal or organisational preoccupation with risk, and a means of developing and maintaining ontological security, at both the individual and organisational level is offered by the concept of reflexivity as expounded by Giddens (1990). Reflexivity is essentially a process of continuous monitoring and surveillance, and of making adjustments as new information and revised knowledge become available (Giddens 1990). Reflexive individuals and institutions are able to retain a degree of liquidity, plasticity or flexibility that allows them to adaptively respond to and manage perceived risks and other uncertainties (Hall 2001).

Over the last three decades, an increasing awareness has developed of the limita-tions of professional knowledge, expertise and objectivity. In theory, if not actual practice, it has been recognised there needs to be a shift away from viewing prac-titioners as bolding objective certainty towards an appreciation of the reality and value of more subjective observer-dependent second-order positions (Hoffman 1985). In line with Mason’s work on the importance of incorporating the concept of safe uncertainty into practice, by promoting safety without sacrificing uncertainty, practitioners would benefit from using their skills collaboratively with patients to identify or diagnose causal issues and presenting conditions, and how they may be resolved or remedied (Mason 1993).

Conclusion

Central to the role of the forensic psychiatrist is being able to achieve a balance between public protection, whereby the patient is perceived to be an enduring risk entity and practising in alignment with current medical ethics by prioritising the patient’s well-being, providing care and treatment and protecting the patient’s rights. There remains a need to improve the understanding of risk as it may present at the individual patient level, the sensitivity, specificity and reflexivity of risk assessments and to develop intervention programmes which can be evidenced to resolve risk-related issues.

Evidence-based medico-legal constructions of patient responsibility for instance that patients can be found responsible for a criminal offence and subsequently given a hospital order or prison transfer, may directly contradict core beliefs underpinning the secure psychiatric system, such as the notion that patients are not fully respon-sible for their actions because of their mental disorder and, therefore, should not be allowed the freedom and autonomy enjoyed by those who do not have a mental health condition (Malla et al. 2015). In order for more patients to be better supported to move to positions of reflexivity and taking responsibility, clinicians need to relin-quish some of their purported certainty regarding the existence of direct causal relations between mental disorder and risk and responsibility, and allow patients to acknowledge that it is also themselves and not merely their mental health con-ditions that are responsible for any acts of violence they have committed. I would argue there is also a need for patients with sufficient mental capacity to be held more accountable for the decisions and actions they take, and to thereby be allowed to take more responsibility for themselves and, in conjunction with their care team’s support, work towards leading safer, prosocial and independent lives. Such a shift in

The omnipresence of risk and associated harms in secure and…

the legislation and policy might manifest in an increased use of S47 and S48 of the MHA, which respectively allow for a prisoner who needs treatment of their mental disorder while serving their sentence or on remand, to be transferred to a mental health setting, usually a secure and forensic hospital. It may also lead to an increased use of S45A of the MHA which allows a judge to direct a mentally disordered indi-vidual’s removal to hospital after conviction for an offence safe in the knowledge that once treatment is no longer necessary, the patient can be taken to prison to serve out the remainder of their sentence in prison. Whilst contentious, I suggest that, coupled with increased investment and quality improvement in prison mental health supported perhaps by organisations such as the CQC and the Royal College of Psychiatrist’s QNPMHS (Quality Network for Prison Mental Health Services), this would alleviate to some degree the subjective anxieties held by clinicians and the Ministry of Justice that lead to disproportionate risk-averse policy and practice and the unnecessary restriction of patients. It should be noted that guidance already makes it clear that mental health prison mental health services should provide a transfer and remission to and from mental health hospital navigator function to coor-dinate patient care and ensure smooth pathways into and out of prison (DoH 2005).

The provision of treatment and care, including risk assessment, management and monitoring, would benefit from being implemented within relationships of mutual equality, rather than expert authority, and grounded upon an understanding of the value of responding with proportionate epistemic regard to patient perspectives, knowledge and beliefs. Such practice has the potential to support clinicians and patients in developing mutually beneficial relationships in which there is a strong sense of relational and therapeutic trust. I suggest this would serve to minimise mis-perceptions regarding risk and enhance patient outcomes together with the quality and experience of clinical practice.

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