Examining the use of the recovery model with individuals found not criminally responsible on account of mental disorder: Revealing tensions between risk management strategies and recovery

ORIGINAL ARTICLE

Michael Gulayets,¹ Ashlyn Sawyer¹

¹ MacEwan University, Department of Sociology, Edmonton, Canada

Cite: Gulayets, M., & Sawyer, A. (2020). Examining the use of the recovery model with individuals found not criminally responsible on account of mental disorder: Revealing tensions between risk management strategies and recovery. International Journal of Risk and Recovery, 3(1), 3–22.

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In providing the care and control of individuals found not criminally responsible on account of mental disorder (NCRMD), forensic psychiatry attempts to balance the protection of society with the treatment of mental illness. A new approach in mental health care is the recovery model, which centres on the understanding that there should be a recovery in, not a recovery from serious mental illness. In clinical practice, this means that treatment decisions should be made in collaboration with patients and include their personal circumstances, such as criminality and aspirations. Concepts that intersect with these goals are elements like choice, hope, personal responsibility and empowerment. This paper examines the implementation of the recovery model in forensic mental health settings and provides an in-depth exploration and evaluation of the model as it is practised at a forensic psychiatric outpatient clinic with individuals found NCRMD. Ten participants, including both individuals found NCRMD and psychiatric professionals, took part in semi-structured interviews. Qualitative data analysis of the interview transcripts identified the following six themes: choice, recovery, hope, responsibility, agency, and risk. This paper examines the experiences, perceptions, and challenges of implementing the recovery model in a forensic psychiatric setting and compares its strategies to the predominant risk-based forensic practices. The analysis suggests that it is difficult to implement the recovery model in a forensic setting without compromising either the recovery model or the risk management approach.

Key words: NCRMD, not criminally responsible on account of mental idsorder, recovery model, risk management, outpatient setting, qualitative, forensic mental health

Individuals found not criminally responsible on account of mental disorder (NCRMD) experience a wide variety of forms of regulation as approaches to their care and control shift in response to legislative action, psychiatric techniques, and changes in risk perception. This study provides an examination of the use of the recovery model in the psychiatric care of individuals found NCRMD who have been discharged to a forensic psychiatric outpatient clinic. This paper first offers a brief historical review of the forms of regulation faced by the criminally insane leading up to contemporary practices, such as risk assessment and management strategies and the recovery model approach. Thereafter, it provides the results of a study where individuals found NCRMD and psychiatric professionals were interviewed about their views on the implementation of the recovery model. This paper concludes with a discussion of the results and the implications for individuals found NCRMD and psychiatric staff, as well as the larger psycho-legal system responsible for regulating these individuals.

Shifts in the Regulation of Criminal Insanity in Canada

For more than a century and a half, Canada has followed the M’Naghten Rules in determining criminal insanity. While the rules governing the mental disorder defence have not changed significantly, the forms of regulation faced by those found criminally insane have altered radically. Before the mid-19th century, criminal insanity acquittals were held in common jails with other prisoners and were typically treated no differently than the guilty. In the mid-19th century, one specially constructed asylum located within the walls of the Kingston Penitentiary was provided for the criminally insane in Canada. However, there was little to distinguish the conditions or treatment of inmates in this facility from the penitentiary itself. Ironically, individuals who were relieved of criminal responsibility because of insanity suffered the same or often worse fate than those found guilty of their crimes. The primary reason to employ the defense was as a means of evading the noose [1]. At the end of the 19th century in Canada, a person found criminally insane was “to be kept in strict custody in such place and in such manner as to the court seems fit, until the pleasure of the lieutenant-governor is known” [2]. In practical terms, an insanity acquittal provided for the automatic detention “in strict custody” of the defendant in an asylum until the Lieutenant-Governor of the province saw fit that the person is released. This disposition was automatic and there was no formal process or procedure in law that would allow this person to be discharged. In reality, these individuals were held indefinitely in this strict custody [3].

In the late 19th and early 20th century, the federal government negotiated agreements with the provincial governments for the care and control of the criminally insane to be directed within provincially operated asylums. This marked the beginning of more specialized care, placed in the hands of psychiatrists rather than the custodial care previously endured by inmates. During this period, such specialized care took the form of a “moral treatment,” which attempted to resocialize the person found insane. Throughout the first three-quarters of the 20th century, as psychiatry developed and refined its practices, the criminally insane experienced a wide variety of treatments from techniques such as hydrotherapy, lobotomies, and shock therapy, to the use of more modern treatments such as psycho-pharmaceuticals [4,5].

The deinstitutionalization movement, beginning in the late 1960s, provided the impetus for a shift in regulation and treatment modalities. In 1969, the Canadian government passed a statute that permits (but does not require) the lieutenant- governor to appoint a board to review cases of those held in custody and advise the lieutenant- governor [6]. The review board’s mandate was to review each case shortly after a finding of not guilty by reason of insanity and on an annual basis thereafter for the purpose of providing recommendations to the lieutenant-governor; however, there was no provision that the recommendations should or must be followed by the lieutenant- governor [3]. The formation of panels, whose task was to advise the lieutenant-governor, was a significant development in the governance of criminal insanity, as well as in the rights of those detained under insanity laws. Yet, there was still no provision in law for the release of these individuals, except at the lieutenant-governor’s pleasure.

This predicament was altered in 1972 when the Canadian government added a statute that officially allowed the discharge of a person acquitted of insanity [7,8]. For the first time in Canadian insanity laws, this statute made it clear that the lieutenant-governor may discharge from custody a person found not guilty for reasons of insanity if “it would be in the best interest of the accused and not contrary to the interest of the public.” The lieutenant-governor could make this discharge either absolute or subject to conditions.

The formation of review boards raised the accountability of the psychiatric system, and the inclusion of discharge provisions increased the procedural options available to the lieutenant- governor. While these developments enhanced the procedural safeguards in the detention of the criminally insane, the review boards were strictly advisory, and the lieutenant-governor was still given a wide amount of discretion over the place, manner, and duration of committal of a person found not guilty for reasons of insanity. Within this system, the courts had no jurisdiction on habeas corpus to review, challenge, or reverse the exercise of this discretion.

The early 1990s saw a radical shift in the regulation of criminal insanity. In the Swain verdict, the Supreme Court determined that the automatic detention of an individual acquitted of insanity deprives them of the right to liberty and that such deprivation does not accord with the principles of fundamental justice. As a result, the Canadian federal government was required to rewrite the legal provisions regarding the insanity defence and in February 1992 Bill C-30 was subsequently passed [9].

Bill C-30 made several significant changes to the regulation of criminal insanity. Along with changes in terminology (e.g., “criminally insane” becomes “not criminally responsible on account of mental disorder”; “disease of the mind” becomes “mental disorder”) the new provisions introduced several other changes, such as making an appeal of the disposition rendered possible (s.672.72) [10]. Perhaps the most significant change was to the nature of the disposition of individuals found NCRMD. After a verdict of NCRMD is rendered, the case comes under the jurisdiction of a provincial or territorial review board that is responsible for granting a disposition concerning the individual. With the passage of Bill C-30, the review board of each province or territory was elevated from a strictly advisory role to the sole adjudicator of the disposition of individuals found NCRMD. The Canadian Criminal Code (s.672.54) provides that one of the following dispositions be made following a ruling of NCRMD:

• if, in the opinion of the court or Review Board, the accused is not a significant threat to the safety of the public, the accused is discharged absolutely; or
• the accused may be discharged subject to such conditions as the court or Review Board considers appropriate; or
• the accused may be detained in custody in a hospital, subject to such conditions as the court or Review Board considers appropriate [10].

The Canadian Criminal Code instructs that a disposition takes into consideration the need to protect the public from dangerous individuals, the mental conditions of the accused, the reintegration of the accused into society, and the other needs of the accused. Under the law, indefinite detention without regular review is no longer possible, automatic detention is no longer a certainty, and the supervision of the criminally insane in the community becomes not only a possibility but, for the majority of patients, the preferred situation. This transformation from “strict custody” to a disposition that balances the needs of the accused with the protection of society clearly demonstrates a changing attitude toward the rights of offenders with mental disorders. This attitude also indicates and necessitates changing modes regulation of criminal insanity.

Contemporary Forms of Regulation of Individuals Found NCRMD

By the end of the 20th century, the notion of risk predominated theoretical, and practical approaches in sociology, criminology and psychiatric practice [11-14]. Case law reinforced that the primary task of the review board system was to engage in risk assessment and management activities. For example, in the 1999 case of Winko v British Columbia (Forensic Psychiatric Institute), the Supreme Court of Canada ruled that the review board engages in a “risk management exercise” that provides a disposition that is “least onerous and restrictive” for the accused [15]. Discharge must be issued in cases where there is not sufficient evidence to establish a significant threat to the safety of the public. Similarly, in 2003, the Supreme Court of Canada (R. v. Owen) added that although the review board is required, like the court, to make findings of fact, its most important and difficult task is to make predictions regarding future risk of harm [16]. More recently, the Canadian government amended the Criminal Code, allowing courts to designate some individuals found NCRMD as high-risk accused (HRA) [17]. Under these provisions, individuals found NCRMD following a serious violent event (e.g., homicide, aggravated assault) are designated HRA based on the likelihood of future violence or the extreme nature of the offence that led to the verdict. Individuals designated HRA are detained in hospital, can have their disposition reviews extended from annually to every three years, and cannot be conditionally or absolutely discharged unless a Superior Court lifts the designation [18-20]. With these new provisions, the emphasis is still clearly on risk assessment and management; however, the focus shifts from least onerous and restrictive dispositions to a risk management focus that prioritizes public safety.

Within the context of the care and control of individuals found NCRMD, psychiatric treatment teams and review boards increasingly use actuarial and structured clinical risk assessment tools to identify dynamic and static risk factors associated with re-offending and relapse [21]. The primary objective of this approach is to assess the risks posed by the individual and to implement strategies that manage them through psychiatric techniques, as well as dispositions and conditions imposed by the review board [22-24].  In the attempt to balance individual rights and freedoms with public safety, risk assessment and management formed as methods of understanding the relation between diverse predictors (e.g., substance use, psychiatric symptoms, negative attitudes) and violence as a means to guide mental health practitioners and review board decisions, as well as policy, legislation, rights, and liberties [25].

Despite the widespread use of risk assessments and research suggesting their clinical benefit, some issues have been identified with their use. For example, the risk-based approach to psychiatric care has been criticized as lacking clinical transparency and not involving the individual in their own care, which suppresses patient ambition and recovery. In addition, concepts measured by assessments, such as risk and responsiveness, are imprecisely defined, which undermines the objective claims of these measures [26].

The Recovery Model

Within this context of risk assessment and management, there has recently been growing interest and utilization of a new recovery model in psychiatric practice. The model aims to empower the patient to play an integral part in their own care and recovery. Where previous models emphasized expert power and control over diagnosis and treatment of mental illness, the recovery model focuses on hope, wellness, choice, cultural and individual differences, self-empowerment, and the alleviation of stigma [27-29]. From this perspective, recovery is understood as a process or continuum, subjectively defined and directed by the person experiencing mental health issues instead of by an expert. In other words, recovery is not a singular outcome; it can mean different things to different people within different settings [30]. In terms of treatment, clinical decisions are considered best made in collaboration with patients and should include their personal circumstances, such as criminality, family relations, socioeconomic standing, culture, and aspirations [31]. Clinicians must understand that they are in a partnership with their patient who is not compelled to accept their directives. It is implied that patients are given a level of empowerment in the form of choices about their personal treatment and recovery, followed by negotiation and agreement [31]. The negotiation and agreement phase is particularly important as recovery advocates share the belief that mental illness exists and it can impair rational processes. However, alongside this is the philosophy that people suffering from mental illness are full moral and political agents and should not be defined based on their diagnosis or collection of symptoms [32]. The recovery movement doesn’t ignore the importance of psychiatry and diagnostics but emphasizes that psychiatric decisions should also include consumers of psychiatry and allow for agency and social participation [32]. This can be important when considering issues within psychiatry like treatment resistance because it is most often regarded as a frustrating clinical phenomenon that demoralizes doctor and patients, leading to pejorative responses [31]. Within forensic psychiatry, outcomes of risk assessments in review boards are sometimes directly linked to these same issues, making it challenging for consumers and staff alike to become and stay motivated.

This new definition of recovery suggests that a focus on hope and empowerment will facilitate reductions in recidivism and allow for healthy integration back into society. The recovery model relies on a hope that people, through personal recovery, will be inclined to reduce risk factors, increase treatment compliance, and foster wellbeing because of their ability to cultivate hope in themselves rather than relying on an institutional process. Thus, the recovery model allows for a relationship of trust to grow through collaborative mechanisms. In other words, instead of generating power-over the individual, the recovery model’s conceptualization of empowerment includes generating power-to, power-with, and power-from-within the individual.

Recovery Model in Forensic Practice

The virtue of client empowerment is promoted within mental health care but can be challenging when put into forensic practice. Making matters more complex is the reality that the recovery model is a relatively new psychiatric model and is arguably more complicated to implement in forensic mental health settings, especially with individuals found NCRMD [28,33]. Studies that have examined the implementation of the recovery model in a forensic setting are also limited and have mixed results.

Shepherd et al. provided a meta-analysis of studies that examined the recovery process in forensic settings, finding three themes salient in the literature: safety and security, hope and social networks, and identity [34]. Safety and security were described to be provided either relationally with a caregiver or through one’s physical environment. Both of these elements have the capability to become toxic if perceived as more restrictive than supportive. The concept of hope was also seen in relation to a forensic client’s desire for supportive relationships, individual expression, and personal autonomy. A tension exists within forensic mental health care between these desires and the necessity of risk management. Shepard et al. found that identity work served as a final theme in literature and contained three principles: making sense of past experiences, understanding the role of mental disorder, and constructing a sense of self [34]. Examples used by participants included recalling personal traumas, developing an understanding of offending behaviour and mental illness through supportive treatment, and identifying past and future social roles within the community. Other studies examining patient-centred approaches to recovery in forensic care have similarly found positive relationships, collaboration, hope, identity, meaning in life, self- acceptance, and self-management as being central concepts to the process [35-39].

What is intertwined among these concepts are the crucial differences between general and forensic mental health settings, particularly the constraints forensic clients have because of their criminal label. Additionally, personal recovery within forensic settings has been found to be subsumed at times by an exaggerated emphasis on judicial measure, where the construction of personal development often paralleled judicial progress rather than through client definition [34, 40,41]. In other words, the concept of choice is provided on the basis of limited opportunity as opposed to autonomous choice. An example of this was found in Livingston et al.’s evaluative study on the effectiveness of patient engagement interventions in a forensic hospital [42]. That research found that the recovery model had little effect on internalized stigma and service engagement, despite an overall improvement in client experience within the forensic system.

In part, obstacles faced by the recovery model in forensic environments have been directly attributed to issues related to judicial status, client self-image, compliancy, and insight [40]. Issues of this nature can prove to be especially difficult to change in forensic clients. Correspondingly, forensic clients suffering from serious mental illness may only experience improvement in symptoms and functional impairment over a long period of time and to a limited extent [43]. As such, viewing recovery as synonymous with an absence of mental illness may be unattainable in some cases and detrimental to one’s personal development in others.

Another difficulty in implementing the recovery model in a forensic setting is that many social and political forces influence the way clients are seen and managed [44]. By utilizing an individualistic approach, client decision-making may be greeted with anxiety by clinicians and lead to inconsistencies in treatment [26]. Professional resistance to the recovery model includes feeling that empowerment in treatment is already common practice, that the recovery model adds to workloads, does not align with organizational priorities or service needs, represents a fad, requires expensive services, exposes liability, can be used with only a small portion of clients, and is difficult to define [27,42,45]. Furthermore, there is a lot of skepticism over whether individuals found NCRMD would be able to make and abide patient-directed treatment styles, and whether review board members, psychiatric staff and broader society would accept less risk-based approaches in their care and control. Because medical models and other contemporary treatment models appear to provide a sense of control and certainty, consumer-centred models have been perceived as a threat to the security and safety of clients and the public [27].

Despite these challenges, the implementation of the recovery model within forensic practice has been recognized to be successful in improving perceptions around treatment. The recovery model provides the opportunity to foster a sense of hope and empowerment within clients who may feel disenfranchised by the involuntary processes placed upon them [42]. Likewise, it has been suggested that recovery-based care can provide clients with an otherwise unlikely opportunity to develop a self-identity, escape social exclusion, and lend peer support to others in similar circumstances [26,42]. Rather than fearing that recovery-oriented care may disrupt treatment and increase risk, some authors have suggested that this approach can be helpful in clarifying a client’s risk, as well as strengthen client-clinician partnerships in working on protective factors [28,46]. An example of this was established in Bouman et al., where forensic outpatients who had satisfaction with health, life fulfillment, and meaning in life were found to have decreased levels of recidivism [47]. There is also evidence to support that the recovery model in forensic psychiatry can significantly increase treatment engagement [48].

Regardless of the opinion, approach, or implementation of the recovery model, its core philosophy juxtaposes historical and contemporary models of forensic treatment and requires that the delivery of care experienced by offenders with mental disorders be reconsidered. Noticeable among the literature is the difficulty and complexity of dual recovery, both from mental illness and criminality, especially within the confines of the review board system. An exploration of the use of the recovery model within forensic psychiatry will provide a better understanding of this approach in the regulation of individuals found NCRMD.

Methods

Research Setting and Participants

This project strives to gain insight into the experiences, perceptions, and opinions of individuals found NCRMD and psychiatric professionals about the introduction of the recovery model in a forensic setting. Data were collected through semi-structured interviews conducted at Forensic Assessment and Community Services (FACS), the forensic psychiatric outpatient clinic of Alberta Hospital Edmonton (a service of Alberta Health Services). FACS is the primary outpatient clinic that provides the care and follow-up for individuals found NCRMD when they are discharged to the community by the Alberta Review Board. Participants included individuals found NCRMD who received outpatient treatment under the recovery model, and psychiatric staff from FACS (e.g., nurses, social workers, occupational therapists) who were primarily responsible for delivering the recovery model in this setting.

Neither author is employed at the clinic or was involved in the clinical care of the individuals found NCRMD. This project was reviewed by the MacEwan University Research Ethics Board, which deemed it to be quality improvement research, and was also approved by Alberta Health Services.

Purposeful sampling was used to recruit participants; however, all interviewees for this research project voluntarily participated. Since not all patients at FACS were being treated with the recovery model at the time of this research, a staff member approached NCRMD clients being treated with the recovery model and psychiatric staff with knowledge of the recovery model and asked them if they were willing to participate in an interview.

Data Collection

In total, five individuals found NCRMD and five psychiatric professionals volunteered to participate in the research project. All participants were given the chance to read over, ask questions and sign the consent form before the interview took place. Individuals were informed that participation in the research interview was voluntary, information shared would remain confidential and that all participants had the right to decline or withdraw from participating at any time, without penalty. Individuals found NCRMD were also informed that participation was not a legal requirement, nor part of their treatment, and that interview data would not be shared with staff or review board members. Likewise, psychiatric professionals were informed that this research project was not an evaluation of staff members, but an examination of the application of the recovery model in this setting.

All interviews took place in a private office at FACS and lasted 30 to 60 minutes. Specific information on individual characteristics such as index offence, diagnosis, or psychiatric and criminological history was not asked nor included. Interviews with individuals found NCRMD focused primarily on their perception of treatment and their understanding of the recovery model’s basic tenets. Questions guiding these interviews included topics such as power, empowerment, hope, choice, and personal responsibility. Interviews with psychiatric professionals focused on their experiences, perceptions, and opinions on treatment models being used with the NCRMD population, their knowledge of the recovery model, and to what degree they believed it could be implemented within a forensic mental health setting. Staff interviews also included questions on specific recovery model core values such as hope, choice, empowerment, and personal responsibility. All interviews were audio-recorded to facilitate data transcription.

Data Analysis

Data collected through all interviews were analyzed using thematic analysis, a form of pattern recognition [49,50]. Data analysis began with the transcription of recorded interviews and the removal of any potentially identifying information. Pseudonyms are used to maintain anonymity. After transcriptions of the interviews were completed, memos, reflections, trends, and initial themes were noted to maintain rigour.

In the second phase of coding, the interview documents were uploaded to NVivo, a data analysis software that allows data codes to be collected and organized. In this phase, each interview was reviewed for codes and larger themes that provide insight into how the recovery model works within a forensic psychiatric setting.

In the final phase, codes were grouped into six main themes: giving choice, recovery as a journey, facilitating and maintaining hope, client responsibility and accountability, balancing agency, and (re)considering risk. Both first-order and second- order themes are presented in Table 1.

Results

Giving Choice

Many of the questions looming over the recovery model’s introduction into a forensic psychiatric setting reflect the boundaries of client-driven choice that can be made while under the gaze of both legal and psychiatric supervision. If, by definition, a person deemed NCRMD is found such on the basis that they were incapable of making choices between right and wrong at the time of their offence, to what extent should they be able to make or guide choices in their treatment? Likewise, to what extent can client-directed choices be fully made in treatment when, under legal disposition, community safety and minimizing risk must take precedence?

In both NCRMD client and psychiatric staff interviews, choice as part of the recovery model was conceptualized to be much more complex than just patient-driven decision-making. Instead, it appeared to be imagined on varying levels, where patients are consulted and given choices about what they feel would most likely lead them to recovery instead of being prescribed predetermined treatment plans. However, this approach required staff to take on a less restrictive, “more conscious” approach to “take a step back” and allow the client to sit in the driver’s seat of their lives.

So, it really is client-driven and allowing them to kind of evolve, I guess you could say in their journey… if you want to call it that. But really, them being the driver and we’re just the supporting passengers kind of thing. (Staff)

The opportunity to be given choices over treatment not only asserted the client as the driver but also made them feel that being provided the option of choice reflected the trust staff had in them to make good decisions and better support themselves and other clients within the NCRMD system. One staff member highlighted this, mentioning how having the opportunity to make choices about their treatment was a way for clients to escape the rigidity of previous treatment approaches. At the same time, staff also noted that they now had increased freedom in decision-making. As well, the recovery model provided an increased ability to practise outside strict treatment guidelines and gain meaningful feedback through collaboration between professionals and recovery clients.

I really like the direction that our team is going, in that it is nice to be able to… have… a clinical director that’s in support of this and allowing us to kind of branch out and look at things outside the way it’s been looked at for the last however many years. (Staff)

As much as staff felt that adopting the recovery model’s fundamentals into their organization was no new practice and allowed both client and clinician to work outside of strict guidelines, all participants mentioned how sharply this model contrasted larger institutional practices that had either been used previously or remained prominent in inpatient mental health settings and the criminal justice system. Clients’ experiences with the restricting nature of inpatient confinement lead to a greater appreciation of the opportunity they now have to possess any sort of voice or agency, let alone choice in treatment. For example, a client said: “So, a lot of it just is being grateful for what I have now compared to what I had before.”

Clinicians validated the viewpoints of the clients, pointing out that the concept of choice is usually stifled once a mental label and criminal label meet. Because of the long duration within the forensic system, choice had become irrelevant for many clients. One staff member described past healthcare system practice as “ a very old archaic way of thinking,” in that withholding client choice over decisions about their lives, demanding people to do what the system told them to do, and expecting people to live a better life afterward, was in no way intrinsically motivating. Clinicians discussed how clients were surprised that after losing a great deal of independence, agency, hope, and empowerment, that a model based on these ideals would ever be offered to them.

Choices sparked a lot of interest in a lot of our clients because a lot of times choice had been taken away from them through the judicial system or hospitalization, where choice is no longer a factor. (Staff)

Not knowing that they had choice previously. Some client’s reaction is kind of eye-opening, like “What do you mean I get to decide what I want to do?” because they had years of “This is the program you need to attend.” (Staff)

Nevertheless, all participants acknowledged that the legal barriers imposed upon NCRMD individuals provide a significant impediment for clients receiving more freedom of choice in areas both within and outside of the recovery model. In this case, the agency of choice was contingently juxtaposed to legal disposition. The level to which one can make choices regarding care is less about one’s capacity to make good decisions and more about whether these proposed choices fall within court-mandated orders. For clients, it was pointed out that attending the forensic outpatient clinic and participating in meetings or being exposed to the recovery model itself is not of one’s own course of action but simply available options that the system has to govern them.

Uhm, just the fact that I have to come. Like it’s not of my own volition, it’s expected of me and if I don’t, well then I get into trouble. It’s not enjoyable. Not having full autonomy over your own life is pretty shitty. (Client)

Psychiatric staff acknowledged that the legal constraints work against the recovery model principles that they are trying to instill, making it hard to inculcate them effectively. Both clinicians and individuals found NCRMD experienced an uphill battle of maintaining hope, facilitating empowerment, and acting with agency under the umbrella of legal conditions imposed by the review board. However, psychiatric staff also mentioned that because of the legal guidelines that must be met by individuals found NCRMD, minimized choice, at times, is necessary to ensure that these standards are met and that safety of the individual and the community takes precedence over the agency that the individual experiences in their treatment.

I mean with our guys, there’s some points where we need to kind of take control of their treatment just because of that legal disposition. (Staff)

We kind of push them into doing some kind of structured daily activity, and then when they quit doing that, or want to quit doing that, we say no. (Staff)

Recovery as Journey

The process of self-motivation and actualization is not dissimilar from the journey of recovery nor the NCRMD legal process. One client mentioned that recovery was an ongoing process that required a person to consistently work on themselves, but also said that the review board system was similarly lengthy and ongoing, where, “everything is so slow, so cautious.”

The process of recovery and risk reduction became one and the same. A central theme that emerged when clients were asked what recovery meant to them was that recovery was the maintenance of good mental health or a clear mind. The other component to recovery for clients was reducing risk factors. This included abstinence from drugs and alcohol, continuing with psychiatric and medical treatments, having good hygiene, being prosocial, and taking things day by day in a “normal kind of a manner, like a normal citizen.”

Although no client specifically mentioned the recovery model as being particularly beneficial to their recovery, they did mention that perhaps the recovery model could benefit those who have a harder time being able to set goals. They also mentioned that the recovery model was more helpful for staff than themselves as it reminded staff of their goals and directed their work with them:

It was presented to me to do a care plan and then a follow-up and it’s kind of helped me with my recovery ’cause that way they know where my thoughts are and it’s on paper, so they don’t just forget about it if they read it or something. (Client)

Staff differentiated rehabilitation from recovery, stating that rehabilitation was something that aligned more closely with a restorative justice process, where risk factors were worked upon to bring about real change. Recovery, on the other hand, was more about empowering the client to make their own choices, set their own goals, and the meaningfulness attached to the process of doing so. However, recovery was also seen as something that fulfills the outcomes of reduced risk to self and the community, and that part of the recovery process may involve a reduction in agency if risk is increased.

So sometimes part of that recovery might mean that they might have to go back to the hospital to stabilize or restabilize themselves and to prevent anything that could be harmful to the community or themselves. (Staff)

In this respect, the concept of recovery both built and dismantled therapeutic alliances. Recovery was a stepping stone that worked towards building a healthy future and stable relationships with the community, serving somewhat in parallel to risk reductive practices.

Both the concept of recovery and the recovery model itself were recognized as not being able to surpass or reconcile previous psychiatric experiences, stigma, and current legal restraints.

Sometimes it’s tough with mental health though, to break down those barriers, the stigma, and getting them to trust that you’re willing to help, because for a lot of them, I would think that their experiences with mental health hasn’t been great. (Staff)

Staff mentioned that recovery, for both clients and themselves, involved a process of unlearning past forensic psychiatry ideals and practices. The ability for clients to make their own choices in treatment required time, motivation, and the facilitation of empowerment.

But I also think that it’s more work for staff… because you have to spend the time with the client. Like I said before, you have to motivate them or spend the time to figure out what they need ’cause sometimes they don’t know.… they’ve been in the system for so long that they’ve never had a choice. (Staff)

Facilitating and Maintaining Hope

Staff mentioned that part of facilitating empowerment in clients is about being less judgemental and open to real, honest conversations with clients without punishing them for it. One staff member stated that they felt the recovery model had helped provide a comfortable space that could facilitate truth and betterment. Increasing hope in clients was in part related to the amount of hope staff had in their client advocacy as well as in the recovery model. Another element of this was also believing that the recovery model would create more hope in review board members that clients have the ability to succeed and that clients would feel more hope from the board’s encouragement.

In terms of what facilitated hope in clinicians, the progression of the client, the achievement of their goals, and overall joy or meaning in the client’s life were listed most frequently. Also, much like the process of recovery, hope in a client involved the understanding that there may be periods of no change or setbacks and that ultimately hope needed to be based on whether the client was content with where they are.

That we see a client progressing from year to year to year to eventually get off the warrant. Or the ones that may still need the warrant for a longer period of time, they are happy, they are content where they are in their lives, and they’ve reached maybe what they consider their plateau. We may think they have a ways to go yet, but they are happy where they are at. That they actually have some joy in life. (Staff)

That being said, hope for clients was not completely separated from reducing risk. Hope also correlated to clients achieving absolute discharge, which meant that the clinicians succeeded in their efforts.  Conversely, when a client was unable to get off the warrant, both hope in the client and in the staff member’s level of job satisfaction was felt as disempowering. Some staff stated that they would like to see more clients get off the warrant when they have abided requirements mandated by the review board. Similarly, they discussed the difficulty in trying to empower clients who saw the review board as an obstacle in their lives. One clinician mentioned that although their job is that of care and control, when a client is struggling in treatment, both the client and clinician experience a loss in hope.

I think when someone is struggling and the treatment team isn’t able to intervene, I think we feel like we have less hope in them and I think they feel like they have less hope for themselves as well. (Staff)

Another staff member stated that the amount of hope they feel throughout a client’s recovery is ultimately unrelated to the duty that they have to fulfill. “Do I have more hope or less hope? My job is the same. Obviously, we want all of our clients to succeed. Some won’t get there.”

One individual found NCRMD talked about feeling hopeless and the effects it had both on their personal and legal recovery. The individual lost their conditional discharge and was readmitted to the hospital after going into a manic state. When asked about hope in treatment, the client responded.

No, that’s a really fair question ’cause what would have affected that negative decision I made I was referring to earlier…. Like if you feel hopeless about your situation or things are getting to you because say, progress has been halted or even there’s been steps backwards and you feel like you’ll never get out of the situation, you might just stop caring and for a brief moment may make some stupid mistake. (Client)

Without a feeling of hope and empowerment in their lives and in their treatment, client progress was halted. During difficult times, through the social support of the treatment team, clients mentioned that they were reminded that poor decisions were not necessarily characteristic of the individual but rather based on feeling a sense of hopelessness. Clinicians stated that conversations about situations that halted recovery were not about blaming the client for what they did but having them take personal responsibility and discover the reasons why it happened in the first place.

Client Responsibility and Accountability

Personal responsibility in a forensic setting was understood both by staff and client as:

… understanding and being able to take responsibility for a person’s mental wellness, such that they can maintain the ability to be safe in the community and understand what they’re doing with regards to social norms and if not that at least the legal system. (Staff)

As much as staff felt that the recovery model is a step in the right direction, there was still a consideration as to how the model’s emphasis on accountability could fit into a forensic framework.

I think it’s a model that’s sort of recognized as beneficial…. It’s definitely the model that we should be using primarily, but I think it’s difficult to interpret how accountability and responsibility for the patient fits into it. (Staff)

Part of this had to do with staff criticism that the recovery model can be interpreted or applied without clients being fully responsible for their actions. This would, in turn, remove the natural consequences associated with decision-making that we face in our day-to-day lives. As such, the client would be shielded from consequence and the potential for public risk could become apparent when they are no longer guided by outpatient staff members.

Conversely, it was suggested that outside of the recovery model, other contemporary models also shield clients from being held personally responsible.

So, lots of times our clients end up being shielded from those original, natural consequences because they have so many supports around them. So, we end up sort of having to make those, uhm, consequences more, more black and white for them. (Staff)

This was seen as making it more difficult for a client who is under the recovery model to fully understand personal responsibility in decision-making. One clinician mentioned that it’s easier for clients to be dependent on staff to make choices for them than it is to make choices for oneself and be responsible for the outcomes of these choices. 

I think it, in ways, wears heavier on the client because it’s sometimes hard to figure out, especially if you have a mental illness or are kind of lost, right. Especially if you’ve made a lot of choices, being at the centre and having to direct your own path is sometimes harder than having someone tell you “This what you have to do. This is how you’re going to make it better. I have the answer for you.” (Staff)

Another staff member had a differing perspective, mentioning that when risk management and the recovery model are done in conjunction, risk would decrease, hope and agency would increase, and the recovery process would be shorter. It was also stated throughout interviews with psychiatric professionals that if a client was taking the recovery model seriously and risk factors were being managed, trust in clients and in the recovery model would increase. As one clinician pointed out, even if clients partake in risk-reducing activities to gain more agency, outcomes will still be of benefit because they have been personally responsible for their choices, they made those choices for themselves, and they aligned with factors that benefit mental health.

The complexity of what choice means for a client encouraged clinicians to interpret choice as being more guided than free. Complete free choice was seen negatively and understood as not only allowing the client to be able to choose whatever they wanted but also having the option to choose nothing at all. By allowing a client to make the choice not to participate in bettering themselves through treatment, staff believed this undermined the personal responsibility that links choice and consequence, and also undermined the efforts made by clinicians to facilitate client success.

Some may take advantage of it… some may have the attitude where “I don’t feel like doing anything” for the next 2 months, 6 months, 2 years. When they’re delaying recovery. (Staff)

In terms of clinician responsibility, none of the staff felt that the recovery model had in any way changed the level of personal responsibility or liability they had in client decisions and actions. For clients, it was mentioned that their legal obligations made them personally responsible regardless of what model is being used. Some mentioned that this was because free choice in a forensic psychiatric setting disregarded individual circumstances that a patient may be faced with.

All clients interviewed felt that what the recovery model was trying to implement, such as goal planning, self-monitoring, and collaborating with staff, was something they had personal responsibility doing regardless of what model was being used. Many also felt that the amount of responsibility and choice they experienced was the most someone in their legal situation could have.

Balancing Agency

The emphasis on client agency under the recovery model is not just providing clients with more choice, but helping clients understand the choices that are available to them and facilitating a sense of empowerment through that understanding. A critique of previous treatment models was that the motivation for a client to comply with treatment and court-mandated orders was achieved through external force. However, this motivation had no lasting effect on the client once they were discharged. The recovery process, in the opinions of psychiatric professionals, allows for more internal change and better treatment compliance.

Teasing out that concept of choice for them and with them is really what it’s about, at least in my understanding what they can choose, and lots of times with the legal system, we’re restricted in what choices they can make, but I think having them make those choices, understanding that they’re making those choices and how those are affecting them. (Staff)

This concept was also reiterated by clients, as one stated, “It’s up to me if I’m going to comply with my disposition order.” Most clients also felt that the amount of agency they had currently experienced was sufficient to them and that they were satisfied with the amount of choice they had, or even if they had more choice, they would be in a very similar position as they are right now.

The issue with facilitating agency while minimizing risk also arose in the interviews with staff. They noted that the more agency a client has in making decisions, the more limited they may be in other ways due to the legal disposition both the individual and staff have to abide by. In other words, increased client agency can be complicated by risk factors.

It’s easy to talk of sharing power when you’re talking about “Do you want to go to school?” or “Do you want to get a job?” It’s different to talk about sharing power when you’re like “I know you want to come off your medication, but that means that we have to put you into a secure hospital setting to do that because we’re pretty convinced it’s going to be dangerous to you and to other people. (Staff)

In this regard, balancing client agency grew to include balancing both the ideals of the recovery model with the practice of risk management. However, it appears the recovery model cannot be practised as a separate system apart from risk management, but rather as an auxiliary component of risk management.

We want to be able to let them take ownership of their lives and make those decisions so that in the end, or if there is any chance or warnings that there is going to be risk, we need to manage it and then (the decision) kind of becomes a treatment team decision. (Staff)

The issue of balancing care and control with recovery and risk also confused the stability of the therapeutic alliance necessary for the practice of the recovery model. Practitioner-patient relationships was less dependent on how well fit both parties were with one another, but whether staff were perceiving the client as at risk versus in recovery. Through this, clients felt inclined to govern themselves in ways that would make them appear capable of managing themselves without intervention or concern for the risk they may pose.

They’re nice people and you can talk to them, but like I said, they’re friendly, not your friends. So, you still have to watch not what you say, but how you say it. ‘Cause they look at it, from my understanding, they look at things from a risk factor. What’s the possible risk that I could be doing and if I just say it wrong, then I could be penalized by it. (Client)

It really seems like if there’s any one negative thing, even if it’s completely out of your control, they will take that and punish you for it. (Client)

Psychiatric staff acknowledged that working with individuals found NCRMD usually involved a long-term, close working relationship that can seem intrusive at times. Ideally, staff-client relationships should consist of equal power relations, but in practice within the forensic system, there is an undeniably large power differential that cannot be avoided due to the legal conditions imposed on the individual and enforced by the professional. Staff acknowledged that situations where clients exert personal agency can be potentially a double-edged sword because greater independence can also increase the amount of risk or concern staff have for the client’s mental stability. These concerns directly impacted whether a client’s agency in decision-making would be allowed or minimized.

(Re)Considering Risk

In relation to the process of minimizing choices available to the client, psychiatric staff acknowledged that sometimes restrictions were imposed on clients that may not have been necessary to ensure safety.

Like there are times that we might be a little more conservative, a little bit more restrictive than what might be ideal, but I think that also comes from also kind of erring on the side of caution. (Staff)

Cautiousness stems from the clinician’s duty to manage the client’s risk to themselves and the community. The emphasis on risk management often prevented staff from engaging in activities with the client that were not directly risk related.

Maybe I’d like to spend more time with somebody or help them get more engaged with something, but it doesn’t really benefit them risk-wise, and in that respect, I’m not supposed to spend my time doing that. (Staff)

Recovery model principles did not always align with risk management tasks and at times seemed to challenge the concept of risk. Staff reported that some client activities that appeared to be risky previous to the recovery model may have been seen as such because they did not align with what a “normal” lifestyle looks like. An example of this that was brought up by two staff members who described an issue with one client who breached his disposition every day by smoking marijuana, but who otherwise posed minimal risk to himself and others.

So, always looking at it from a risk perspective and saying, “Okay well, yes he got a positive screen, but he’s not ill, we don’t feel he’s posing a risk now,” so what do we do about that? Do we breach him and put him in the hospital where he really doesn’t need an admission? (Staff)

I’m not saying I’m a proponent of drug use, but he’s not really a harm right now. He’s not causing any harm, his mental health has actually improved, but I strongly believe that the board would not accept that life choice and would expect him to quit and stop using before they would ever consider giving him any more freedoms or liberties. (Staff)

The responses from both staff members challenge typical notions of risk and also suggest that minimizing choice and uncritically imposing risk management strategies can actually be counterproductive. Staff also discussed this dilemma when daily routines were considered, questioning when lifestyle choices become risk factors.

Before we used to be like “If you don’t keep your apartment reasonable, we have to move you back to hospital” but now we don’t do that. We say “Well, how come you’re not able to do it? What can we do to help you?” Maybe it’s just okay that it doesn’t get done. Maybe that’s better, right? I don’t know. (Staff)

Clinicians described the rigidity of the review board in defining acceptable lifestyle choices that had to be met to be considered the lowest possible risk and at consideration for conditional or absolute discharge. A staff member stressed that along with opening up the definition of what risk is, for the recovery model to work in a forensic setting the review board would also have to be open to interpreting what is and isn’t an acceptable life choice in relation to this new definition of risk.

So, part of it is having them accept the model and accept individual’s different life choices. So, I’m not saying about a choice that harms others, but having choices that may not necessarily be someone on the board’s choice in life but being able to accept that it’s someone else’s choice in life. (Staff)

It’s a very westernized Canadian lifestyle that they expect people to live, whereas we have, if you look at our patients, all types of people with different genders and different sexualities, and stuff like that and that I think is really hard for the board to understand. So, then the individual is expected to live this very prescribed lifestyle… and so it has pushed some very marginalized and very vulnerable individuals into a system that really doesn’t work for them. (Staff)

If such issues are not reconciled, staff questioned how the recovery model and its basic principles would be able to be sustained. Ultimately, the recovery model would have to adjust to current practices and ideals of the review board, or the review board would have to adjust to the recovery model and new notions of what the concept of both risk and recovery mean.

Discussion

Since the establishment of the M’Naghten Rules more than 150 years ago, individuals found criminally insane have experienced a wide variety of approaches in their care and control. A contemporary approach used in psychiatry is the recovery model. The six themes highlighted within the results of this study—choice, recovery, hope, responsibility, agency, and risk—demonstrate that the simplicity of the recovery model is complicated by the complexity of the forensic system. The questions around the use of the recovery model in a forensic setting are less about whether it can be applied and more about how its application interacts with these themes and the dominant risk management approach.  Several issues become apparent when the recovery model is implemented in a forensic psychiatric outpatient setting.

First, the legal dispositions imposed on individuals found NCRMD continue to restrict autonomy when the recovery model is used within a forensic setting. No matter the amount of choice and agency clients and clinicians believe they have, both acknowledge that these concepts are bound by legal dispositions and risk management practices, which take precedence. Although choice and opportunities for agency are provided to clients, these choices are constrained by the expectation that clients can and will make decisions that align with the expectations of their care providers and the review board. Moreover, if a client withheld the demonstration of autonomy or responsibility, the progress of their recovery was questioned and they were likely to experience increased monitoring, independent of client preference or whether they felt ready or had the capability to make decisions for themselves.

Second, at a fundamental level, definitions of recovery differ between the recovery model and the risk management model. The recovery model allows clients to self-define recovery, which means that recovery will mean something different for every individual. On the other hand, the risk management model defines recovery using much narrower, more standardized clinical indicators (e.g., remission, compliance, insight) or absence of recidivism.  With such potentially different objectives, what is considered recovery in one approach might be insignificant or irrelevant in the other.

A final implication of the use of recovery model techniques is that they can be adapted into risk management techniques. Clients mentioned how the model seemed to serve as a tool for the treatment team to check up on them and know what they were thinking or doing. In this respect, the recovery model can be perceived as another risk assessment tool—a mechanism to assess and govern clients while also holding them responsible for their individual choices.

Conclusions

This research highlights the challenges faced by individuals who simultaneously experience mental health and criminal labels. Both clients and staff acknowledge how the amount of choice a client could have was less about their ability to make choices and more about whether these choices were considered high or low risk, and whether they align with court mandated orders. Although the recovery model aims to individualize the treatment process, the question remains, how much and in what areas can individualization in treatment occur? For clients, even the decision to participate in the recovery model was not of one’s own course of action but an available procedure that the forensic system has in governing the individual. In this setting, it appeared that clients who were already in a good position in their recovery were selected to participate in the recovery model and collaborate on their treatment decisions. What was required of clients to participate in the recovery model was a demonstration of compliance and the ability to govern themselves, reduce risk factors, and make choices that would facilitate success in the system. In other words, to be selected to participate in the recovery model, one had to demonstrate that they were already successfully engaging in recovery model practices.

The findings of this project are similar to previous studies that examine the use of the recovery model in forensic psychiatric settings. The recovery model becomes limited in its application when risk management techniques take precedence [27,34,40-42]. While the recovery model succeeds in increasing choice, hope, and responsibility in the client, it appears that it cannot be implemented without compromising some major elements of the model. The tensions between the introduction of the recovery model and existing risk management practices prove to be complicated and suggest that the application of the recovery model cannot be fully implemented without modification to some of the basic tenets of the model. Amalgamating the two models raises the question: has the recovery model been implemented into a forensic setting, or has forensic psychiatry simply utilized components of the model that are beneficial for risk management strategies? The recovery model, in its purest form, appears incompatible with the culture of current forensic psychiatry. This disparity highlights the complicated balance that forensic psychiatry attempts to strike between care and control, risk and recovery.

Acknowledgments: The authors wish to thank the clients and staff at Forensic Assessment and Community Services, especially the NCR team, for their generous support and participation in this project. The authors also acknowledge the support and contribution of Alberta Heath Services Research Office and Forensic Psychiatry Program.

Ethical Approval: This study was reviewed and approved as quality improvement research by the MacEwan University Research Ethics Board. The study was also endorsed by Alberta Health Services Research Office.

Conflict of Interest: none

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Corresponding author

Michael Gulayets, Department of Sociology, MacEwan University, City Centre Campus10700–104 Avenue NW, Edmonton, AB T5J 4S2, Canada GulayetsM@macewan.ca