Do forensic mental health services have an ethical duty towards victims of mentally disordered offenders?

ABSTRACT

Despite important changes in the rights of victims of crime and their role in influencing public policy across most jurisdictions, victims of mentally disordered offenders are often neglected in public discourse. They are also neglected in clinical discourse by forensic practitioners who are responsible for the care and treatment of mentally disordered offenders. In England, as in other countries, this duty is outsourced to public sector agencies for the most part. This review sets out to understand what has been written about ethical obligations of forensic practitioners towards victims. An examination of literature on ethical dilemmas commonly encountered in forensic mental health services has found that most of the existing literature focuses on issues such as the dual obligation nature of the specialty and the difficulties of promoting autonomy in long-term incarceration, with relatively little written about ethical obligations towards the victims of our patients. Some of the ethical and clinical arguments for including victims in our thinking are described, considering the Principlist approach of biomedical ethics, as well as other approaches including relational and communitarian ethics. Some implications for practice are considered.

KEYWORDS:

• Victim
• mentally disordered offender
• ethics

Introduction

There has been a remarkable international shift in the status of victims of crime in the last five decades. From being the forgotten party of the criminal justice system (Reith, 1999; Samuels, 1961; Wemmers, 2010) or powerless bystanders, dependent on the state for a voice, they have become people who actively influence public perception and state policy (Asmussen et al., 2020; Government, 2022).

Victims sometimes neglected in public discourse (Commissioner, 2018; Victims Commissioner, n.d.) are the those of crimes committed by people with mental disorders. Many of these patients in the UK are cared for in the forensic mental health services. This review will focus on this group of victims in England, although these themes apply widely to other jurisdictions.

This review focuses on the ethical responses of institutions. There are additional ethical considerations that apply to clinicians.

Changes in legislation

There have been a number of important legislative changes in England – the Domestic Violence, Crime and Victims Act 2004 (Government, 2004) (DVCVA 2004) led to the establishment of an independent Victims’ Commissioner (Victims Commissioner, n.d.) responsible for representing the views and needs of victims and witnesses in England, and recognised the specific needs of victims of mentally disordered offenders in the English legal system. Further amendments to the DVCVA 2004 were made by the Mental Health Act 2007 (Government, 2007) (MHA 2007), again extending the rights of these victims. A Victims’ Strategy (Government, 2018) was published in England in 2018 which made a further commitment to improve the rights of victims of mentally disordered offenders, followed by the Code of Practice for Victims of Crime (Ministry of Justice, 2020) (the Victims’ Code) in 2020. Further commitments of a similar nature were made in the UK Government’s Mental Health Act White Paper (Department of Health and Social Care, 2021) published in 2021. A draft Victims Bill has been published, as a precursor to a new Victims Law (Ministry of Justice, 2022).

There is, therefore, much interest in the wider system in understanding and strengthening the rights of victims. Victimology research has noted that victims have a higher sense of satisfaction when they receive timely information from authorities (Healy, 0000; Samuels, 1961). Advocacy work has been done by victims’ rights groups such as the Zito Trust (Boycott, 2009) and Hundred Families (Hundred Families, n.d.). Attention has been paid recently to the paucity of information available to victims of mentally disordered offenders, relative to victims of crime where the perpetrator is dealt with by the criminal justice system (Government, 2022). Others have written about the importance of more research into the effectiveness of interventions offered to victims (Mezey, 2007).

However, for the most part, these conversations take place in the realm of the wider public services landscape (Crawford & Goodey, 2019; Croall et al., 0000; Shapland, 2019) and often do not involve health agencies. Whilst there is broad recognition that there are moral and legal duties towards victims, the assumption is these are to be fulfilled by others in the wider system, and do not represent an obligation upon health services. The legal and moral obligation to victims is one that is imposed upon society, to be fulfilled by specified public sector agencies such as the national probation service (Burrows, 2013) in England, criminal justice system such as courts, and social services.

Victim liaison in England

Mentally disordered offenders in the English legislation can be treated in hospitals following conviction, instead of being incarcerated in prisons when the requisite criteria are met, which include the presence of a mental disorder; where they remain in custody, they can be transferred to hospitals from prisons for treatment under the Mental Health Act 1983, as amended in 2007 (Government, 2007).

Victims of mentally disordered offenders are entitled by statute to information at specified points of the patient’s progress through treatment and rehabilitation, and may put forward views regarding conditions to be attached to discharge, such as exclusion zones. This information is provided to them by victim liaison officers from the probation service. The National Probation Service operates the victim contact scheme (Prison and Probation Service, H. M, 2022) which is an information provision arrangement, and Victim Liaison Officers (VLOs) are reliant on being given this information by forensic mental health hospitals. While hospitals may have individuals identified to act as points of contact for victim liaison officers for sharing of information required to be disclosed by statute, in England, it is still the psychiatrist in most cases who is the clinician (Government, 2007) with overall responsibility for the treatment of the patient who will need to make a judgment regarding what, if any, additional information should be shared with the victim, whilst considering their duty of confidentiality to their patient.

Forensic mental health services

Forensic mental health systems (NHS England, 2018) in the UK, comprising secure hospitals and community forensic teams, work at the interface of health and criminal justice. They provide mental health services to mentally disordered offenders in hospitals, liaise with all parts of the criminal justice system, and with other agencies including social services, housing, and voluntary sector partners; however, their role in victim liaison is not explicit.

Whilst there has been interest in Restorative justice approaches, a recent scoping review found that these are not broadly accepted or offered in forensic mental health hospitals, despite evidence of positive impact on patients, victims and institutions (Martin et al., 2022; Tapp et al., 2020). These are typically led not by forensic mental health hospitals but by criminal justice agencies.

Ethical dilemmas in forensic mental health services

Whilst there is a large and growing body of literature regarding ethical dilemmas in forensic mental health services, it typically focuses on themes of dual responsibility to health and the criminal justice system, confidentiality, working with people who evoke a particular, often negative response in clinicians because of the nature of their offences, the difficulties of respecting and promoting autonomy in people who are deprived of their liberty, etc. Almost without exception, the emphasis is on the clinical and ethical duty of clinicians to the patient. These have been summarised by a number of authors (Adshead, 2000, 2014; Adshead & Sarkar, 2005; Buchanan & Grounds, 2011; Kaltiala-Heino & Eronen, 2015; Niveau & Welle, 2018; Sen et al., 2007).

Only a few authors have specifically focused on the relationship between forensic mental health services, and the victims of their patients.

Mezey (Mezey et al., 2002) described the experience of surviving family members of victims of homicides in a large-scale survey of victims and victim support workers. This focused on psychological and social impact, and victims’ experience of seeking help from the Victim Support service. This survey found that not all relatives of homicide victims received support from victim services. They had high levels of distress, were more likely than non-clinical populations to meet diagnostic criteria for post-traumatic stress disorder, and only a minority were referred for specialist psychiatric or psychological help, despite 57% of victims support workers believing that their clients would benefit from professional help. Difficulties with terminology were noted, where the victim of a violent assault is a victim, whereas secondary victims such as partners, parents and children who may be severely affected are only victims once removed. This paper noted that those who are left behind may identify with the person they have lost, and experience feelings of pain, anger and distress as if the primary wrong has been done to them.

Shepard (Shepherd, 2005) noted that legal changes through the DVCVA represented a substantial step towards giving victims of crime similar levels of recognition to the offenders who harmed them, arguing that measures to reduce or prevent crime should be combined with treatment of victims.

Bentley (Bentley, 2006) explored the likely ethical issues for clinicians arising from increased involvement with victims in hospitals, focusing on the knotty issue of sharing information; it was noted that victims should be appropriately and effectively included in the care and treatment of mentally disordered offenders, but this would require additional resource.

Mezey (Mezey, 2007) observed that although victims were regarded as the central pillar of the government’s fight against crime, this had not led to research on the effectiveness of initiatives to support victims, as most forensic psychiatry research was focused on the offender patient. The author argued that more research with victims was required as they can influence decisions regarding sentencing, disposal and release of offenders at all levels of the criminal justice system, and therefore are a powerful lobbying group. Another argument for clinicians to engage with victims was that as interpersonal violence is generally a product of a complex interaction between the victim and the offender, risk assessment and management strategy should include an analysis of individual victim characteristics as well as victim-offender dynamics.

Taylor and Gunn (Gunn & Taylor, 2014) have examined a range of issues to do with victims in the second edition of their authoritative textbook on forensic psychiatry, emphasising the importance of learning from victims and survivors. They note the complexity that forensic mental health services grapple with, but also, crucially, the role played by the voluntary sector, especially the Zito Trust (Boycott, 2009). They note the absence of a structure that automatically engages the victims of a serious crime by a mentally disordered offender to provider support, therefore exposing the victim to further additional bureaucratic burdens, and that the ideal of patient confidentiality has been used to restrict the flow of information. They go on to describe the operation of the victim contact scheme in relation to victims of mentally disordered offenders, and conclude that for any of this to work well requires victim liaison officers, clinicians and clinical teams, and forensic mental health services to work together.

What do forensic mental health services think about victims?

There are few published studies exploring the views of forensic mental health services or forensic psychiatrists regarding victims. Anecdotally, most forensic practitioners would say that they do think about victims of mentally disordered offenders; that they consider the index offence in their thinking about risk assessment and management, and that they liaise with statuary agencies such as probation services and share information about the progress of their patients as required by law. However, also anecdotally, this does not seem to be the experience of victims themselves, or that of charities and third sector organisations which support them and advocate for them (Boycott, 2009; Hundred Families, n.d.).

Nor is this necessarily the experience of VLOs in England, who are tasked with acting as a conduit between victims and hospital staff, to ensure that specific information is shared with victims at specified stages of the patient’s progress through the hospital system. For instance, the inspection of victim contact arrangements by HM Inspectorate of Probation in 2013 (Inspectorate of Probation, 2013) found that there was lack of sufficient training for VLOs in relation to mentally disordered offenders and VLOs reported reluctance by hospital staff to share information regarding mentally disordered offenders with them.

Whilst it is hoped that planned changes to legislation, including those to be brought in through reform to the MHA in England, will help with strengthening the rights of victims of mentally disordered offenders who are in the hospital system, the experience of victims and victim liaison officers posits a more fundamental question: do forensic mental health services have an ethical duty towards victims of mentally disordered offenders?

Duties of forensic mental health services

Forensic mental health services have a duty to treat their patients’ mental disorder and to address factors related to offending to reduce recidivism where possible. As patients have also offended, services also have a clear duty to society in their role in public protection; this dual obligation is well recognised in relation to clinicians working in these services (Buchanan & Grounds, 2011; Robertson & Walter, 2008). Any duty towards victims is wrapped up in the wider duty towards society, with no specific separate consideration.

Why is this problematic?

It can be argued that victims, whilst clearly part of the wider community, also share a set of characteristics that set them apart from society as a whole. Victims have been harmed directly and specifically by the crime, whilst the impact on wider society is indirect.

Forensic mental health services acknowledge and accept explicitly their role in public protection, including making assessments of future risk based on, among other factors, past history of harm to others. Yet, victims, who are members of the public who have been directly and specifically (often seriously) harmed already by the mentally disordered offender, are not seen as being owed a specific duty, even though it can be argued that they, more so than unnamed members of the public, merit specific and additional consideration. Mezey (Mezey & Eastman, 0000) and Bentley (Bentley, 2006) have argued for increased social inclusion of victims of mentally disordered offender-patients as decision-making regarding treatment and rehabilitation of such patients already involves a third party, the Ministry of Justice (Ministry of Justice, n.d.) as well as a fourth party, the victim or potential future victims.

Why think about victims?

In addition to the moral imperative to recognise the specific needs of victims in their own right, there are benefits to victims, and to forensic mental health hospitals and clinicians. For victims themselves, the provision of specific psychological and psychiatric input for their trauma is left to other players in the system to recognise and address, and whilst this may be the appropriate route, recognition of the impact upon them and their trauma by clinicians treating the perpetrator may itself be important for them. What this may entail has been well described by Taylor (Gunn & Taylor, 2014). It may also enable them to develop a better understanding of the forensic mental health hospital system that is charged with treating the perpetrator.

Thinking about victims would also benefit forensic practitioners, as recognition of the impact of the index offence and the ensuing psychological trauma upon victims will only help us to better understand the index offence and future risk in its fullest sense, as well as put in place specific and clear risk management approaches. This is especially the case where victims are also members of the patient’s family.

Particularly where victims are family members, specific consideration of victims may help them to have both their identities recognised, as family members who may wish to remain involved in the care of their relative, maintain familial links and repair relationships in the future, but also as victims of crime who are entitled to specific input from the state, including being kept informed formally of key stages of the offender’s progress. This is arguably even more important where the offender is a child – parents and siblings have to straddle, in such cases, complex and nuanced roles and identities. Such specific recognition may help family victims to acknowledge feelings of guilt; they may blame themselves and not feel able to see themselves as victims, deserving of input in that regard. Where the victim is a parent of a child perpetrator, even more specific and nuanced considerations will apply.

Another group of victims are those of individuals found not guilty by reason of insanity (described as not criminally responsible in some jurisdictions). A review (Quinn & Simpson, 2013) noted the perceived lack of justice following this verdict, compounded by paucity of information shared with victims. This group, where even the court has ruled that the perpetrator was not criminally responsible for the act, may feel even more marginalised.

There are also benefits for the patient from proactive engagement by their clinical team with the victims. This may help patients to develop a better understanding themselves of the index event, and develop a narrative that may help the patient makes sense of the event. The clinical team’s engagement with the victim may help the team to help the patient. In some cases where the patient is grappling with the post-traumatic effect of the index offence, the clinical team’s engagement with the victim(s) may inform the team’s therapeutic approach with the patient.

Ethical considerations

Whilst engaging with victims may have clinical benefits for all parties, what are some of the ethical considerations at play?

The most widely used normative ethical approach in clinical practice is the Four Principles Approach (Beauchamp & Childress, 2009) which espouses beneficence, non-maleficence, autonomy and justice, and is usually applied to our thinking about patients. However, if we accept that forensic mental health services have an explicit duty to third parties in the form of society and the criminal justice system (Adshead, 2000) this duty should be extended to victims, who are identified third parties who have suffered actual harm and therefore, in many cases, would be identified by risk assessments as being at greater risk of future harm from the patient in the future. Risk to wider society is relatively more hypothetical; yet that duty is widely accepted by forensic services, whilst the duty to victims, it can be argued, is currently outsourced to other public sector agencies.

Adshead (Adshead, 2014) has argued that the two ethical paradigms for forensic mental health services are justice and welfare; and when viewed through the lens of the four principles approach, ethical conflict arises from the competing interests of beneficence, which can be thought of as promotion of the patient’s welfare, and respect for justice, which is understood narrowly as distributive justice only – the fair allocation of resources, which, at first glance, has little of relevance in one’s clinical work with an individual patient in a forensic setting, or is seen as retributive justice, which is explicitly not the responsibility of clinicians. An argument that can be made here is that if forensic mental health services explicitly recognise their duty towards victims, the duty to promote welfare – beneficence – would be owed to both the patient and the victims. This would address one concern sometimes expressed by forensic services, that there is bound to be a conflict between the interests of the patient and the welfare of the victims, and they cannot hold both perspectives simultaneously. This belief, that the needs of the two parties are necessarily adversarial, is perhaps perpetuated (Adshead, 2000; Austin et al., 2009) by a traditional application of medical ethics, which holds that the primary, and indeed, only duty that is owed is to one’s patient.

In recognising both duties explicitly, forensic mental health services would consider both sets of duties in parallel, and it is likely that in many cases, there is not the chasm between the two sets of interests that one might fear. This is especially the case, again, for victims who are family members of the patient. and even when victims of violent crimes, they support safety and deterrence, rather than revenge (Reith, 1999).

Consideration of other ethical approaches is useful, as one criticism of the traditional application of the four principles approach is that it does not adequately recognise the relational nature of the autonomy of individuals (Adshead & Davies, 2016; Rose, 2005; Verkerk, 2001; Völlm et al., 2016). Patients may spend many long years in forensic mental health services, but will eventually return to society; indeed, the push has been increasingly to move away from the long-term institutionalisation of patients and to aid their return to the community (Martin et al., 2012). Therefore, an explicit recognition of the role of the patient’s relationships with other people allows us to recognise a much more complex type of autonomy, moving away from the hyper-individualistic approach to autonomy (Callahan, 2003) that is assumed in much ethical discourse. This hyper-individualistic approach to autonomy, of course, can be especially problematic for patients who are not white, or those who identify with a non-dominant culture, as they may have other cultural frameworks for autonomy, in which families and communities play a significant part.

This enables the adoption of a relational approach to ethics in these services (Austin et al., 2009) which emphasises the interdependent nature of human relationships, recognising uncertainty of decision-making and vulnerability of clinicians as moral agents; it encourages and enables the meeting of multiple obligations. This can, therefore, include a consideration of victims, not only patients. Relational ethics, fundamental to any field where the emphasis is on providing care, recognise that an individual’s autonomy can only be properly understood in relation to others; others here will include, reasonably enough, the individual’s care team in hospital, his family, friends; but also victims; the patient is, through the act of committing the offence, forever tied in a relationship with the victim. This makes the victim a part of the patient’s world, and therefore a part of the clinician’s world. This approach does not reject the more uncomfortable facets of the relationship between the patient, the victim and the clinical team, even if the victim is physically absent; it provides a space to acknowledge the painful emotions which a consideration of the victim must elicit, and a therapeutic canvas, not blank, for engaging in the necessary work.

Communitarian ethics (Etzioni, 2011; General Medical Council, 2017) may be a more useful framework here. In giving equal prominence to both individual autonomy and the common good, we emphasise rights of individuals as well as their responsibilities. This enables an explicit recognition of the offender-patient and the victim as part of a network, even if they are to never meet again. Therefore the clinician, and by extension, the forensic mental health system, would be expected to consider the essential inter-relatedness of people, barriers such as incarceration notwithstanding.

The above exploration of the duty of care from forensic mental health services to victims of their patients from a perspective of the major theoretical ethical formworks shows that there are good reasons for forensic mental health services and clinicians to consider the needs of victims. However, this leads to a number of practical considerations.

Implications in practice

The key immediate practical consideration would be of confidentiality (Bentley, 2006; Government, n.d.; Niveau & Welle, 2018) which remains the cornerstone of the clinicians’ ethical, clinical and legal obligation to their patient. Any disclosure of information beyond what is statutorily required will need to be justified ethically and legally. Sometimes, it may be possible for forensic mental health services to disclose some carefully considered information regarding the patient’s illness or treatment to the victim with the patient’s consent. In practice, this is more likely to occur where the victim is a family member or carer, or where the victim as a family member is involved in therapeutic work, such as family therapy. In many cases, however, engaging with the victim need not involve sharing of new information regarding the patient with them. It may involve forensic mental health services merely engaging with the victim, either via the VLO or, in a small number of cases where the victim has been told of the specific location of the hospital where the patient is admitted, directly with the victim, should this be agreeable to the victim. In all cases, the purpose of such involvement is not to breach confidentiality but to recognise victims as people with specific needs and views in their own right (Gunn & Taylor, 2014).

It may be that the interests of the patient and the victim are incompatible, for example, where victims vehemently oppose the patient’s discharge from hospital. In such cases, that is a well described process for victims to make legal representations⁵³ and they can be supported by the VLO to use this process. Or it may be that the victim has specific views regarding risk, which may not be shared by clinicians. Again, all victims are likely to want is to know that their views have been heard, and not necessarily that their views are the sole determinant of the course of action adopted by clinicians.

Forensic mental health services may feel that their duty towards the patient is somehow inherently in conflict with any engagement with victims. However, forensic mental health hospitals routinely engage with state agencies, in the interests of public protection. In this context, therefore, there should be no additional conflict in engaging with victims.

Forensic mental health services may worry that victims will be influenced by a desire for retribution and may present obstacles to the patient’s recovery and discharge from hospital. However, this does not seem to be the case from available evidence, with charities reporting (Hundred Families, n.d.) that most victims are not motivated by a desire for revenge, only by a wish to help improve the mental health system.

There may be instances where the patient does not feel that the clinical team should engage with the victim, because the victim will either turn the clinicians against him, or actively obstruct his treatment or discharge. In such cases, again, forensic mental health services can assure the patient that their primary duty remains to the patient, but also that they already have an explicit duty to the public in terms of public safety, and engaging with victims is merely a logical extension of that duty. In any case, services will need to carefully consider at what stage to inform the patient of their engagement with victims, and it may be that the patient is only made aware that his clinical team has contact with the victim, but not of any further detail. Each case turns on its own merits, and nuanced considerations will be needed in individual cases.

Victims may decline to have contact with forensic mental health services directly, or via VLOs. This is, of course their choice, but does not take away from forensic mental health services considering their ethical duty towards victims.

An immediate action that forensic mental health services can take is to make links with victim liaison officers operating in their area through the National Probation Service. They can invite victim liaison officers into services and help them to understand the purpose and operation of these services, improve their knowledge of mental disorders and their treatment, and provide descriptions of a patient’s typical journey through the forensic mental health system. Forging of such links proactively can only help VLOs discharge their duty towards victims more efficiently.

Conclusions

Despite there being an increasing focus by policy-makers on victims in considering justice and reparation by society, victims of mentally disordered victims remain marginalised (Bentley, 2006; Mezey, 2007). They may be an influential lobbying group, but in the eyes of forensic mental health services, they remain the problem of other public sector agencies. There may well be pockets of excellent practice in some teams, with explicit inclusion of the victim(s) in the thinking of forensic mental health services, but the anecdotal experience of victims suggests this is by no means consistent.

Forensic mental health services should consider their ethical duties towards victims of their mentally disordered offender-patients. Clinical benefits for services in such engagement are likely to include better understanding of the offence, and improved risk assessment and management. There are likely to be significant benefits for victims, especially when they are also family members, including explicit recognition of their psychological trauma and provision of timely information at key stages via victim liaison officers or equivalent.

Ethical reasons to engage with victims include Principlist considerations, especially those of welfare and beneficence, but also justice. Application of communitarian and relational ethical frameworks enables us to recognise the interdependent nature of human relationships and provides a framework for promoting the rights of individuals and their responsibilities.

Practical implications of such engagement need to be considered, most importantly confidentiality; however, as described above, engagement with victims need not involve disclosing information; and information may be disclosed with the patient’s consent.

It has been acknowledged (Gunn & Taylor, 2014; Mezey & Eastman, 0000) that the involvement of the victim in the clinician – patient relationship in forensic mental health services is not seen as a natural fit, and may lead to considerable awkwardness. But forensic mental health is a discipline that has, more so perhaps than any other speciality, accepted the dual obligation upon it. Where we embrace (if awkwardly) our obligation to public safety, what justification is there to exclude victims?

Acknowledgements

I am grateful to Prof Pamela Taylor, Prof David Baldwin and Dr Gwen Adshead for their advice.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Additional information

Funding

No funding was required for this review.