Forensic mental health nurses weave their way through a maze of personal, social and political dimensions regarding crime and mental illness to broker fitting outcomes for the mentally disordered person. As one may imagine, navigating this maze lends to internal ethical conflict for the nurses.
The court liaison nurse (CLN) plays an integral role in the pathway of the mentally disordered person in the New Zealand criminal justice system. Not only is this role carried out in an area of mental health care that attracts significant public and political attention (Chaplow, 2007), it is constructed by the nurse who is the sole mental health professional within that setting. The nurse is practicing in isolation from health systems, structures and collegial supports. These factors have been identified as having implications in terms of decision making, ethical issues and role related tensions (Turnbull & Beese, 2000; McKenna & Seaton, 2007). Evans (2007) a forensic psychiatrist, suggests other health professionals practicing in that setting would experience similar ethical tensions as the forensic psychiatrist. Therefore the potential for the nurse to experience role conflict is a very real feature of practice. These tensions are born out of the competing demands for the nurse to provide advice to the court and to work in a therapeutic manner with the mentally disordered person. Such challenges and paradoxical practice circumstances inherent in forensic mental health nursing practice are well highlighted in the literature (Burrow, 1998; Holmes, 2001; Martin, 2001; Mason, 2002; Woods, 2002; Peternelj -Taylor, 2004).
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From its formal beginnings in the 1990s nurses have stepped in and developed the CLN role in New Zealand, largely in isolation from robust and knowledgeable nursing support structures. A sense of isolation and lack of support prevails for this small group of nurses. There were approximately forty one nurses providing mental health nursing expertise to the criminal courts in New Zealand at the time of this study. The number of CLNs is small compared to the total number of registered nurses whose main practice area is mental health, n = 4092 (NCNZ, 2012) in New Zealand. Nevertheless the discrete number of CLNs should not preclude recognition of an “expert” level of practice or mean progress towards recognition as “specialist nurses” or “specialty area of practice” is not possible.
Through the use of three data sources, this thesis explores and analyses the court liaison nurse role in the New Zealand criminal courts with the aim of describing the nursing knowledge embedded in clinical practice by focusing on four main questions:
1. What are their nursing backgrounds and professional experience?
2. What are their daily professional activities?
3. What ethical tensions do they experience and how do they manage them?
4. What are their education and training needs and should there be a framework or model for practice?
This introductory chapter explains the researcher’s positioning and research rationale. Then an overview of the court liaison nurse role is set within the contextual background of New Zealand’s forensic mental health services. A look at the differing underpinning ideologies of the relevant systems and corresponding ethical tensions that have shaped the CLN to date follows. The concepts of expert and specialist in relation to the court liaison nurse are introduced as background to the struggle for definition and recognition for the CLNs. Then an overview of the research focus, questions and aims is presented. The chapter concludes with an outline of the thesis structure.
A note on terminology and focus
Reference is made throughout the thesis to the person the nurse assesses. The person may or may not have a mental disorder, mental illness, intellectual disability or other relevant condition. Court liaison nurses used a variety of terms to describe the person they had contact with at court e.g. patient, person, client, consumer, service user, person with experience of mental illness, person with learning disability, mentally disordered offender, and offender. Likewise, many terms were used in the domestic and international literature.
Typically, a patient is defined as ‘a person receiving medical care’ (Collins, 1993). Of note, it could be argued the person who has contact with the nurse in the court setting is not the nurse’s “patient” in the traditional sense. Terminology has important implications. According to Peternelj-Taylor (2004) and other critics (Swinton, 2000) nurses in forensic settings commonly depersonalise the patients and clients they work with through language used. Peternelj-Taylor suggests that how the forensic psychiatric nurse “views” the patient is an important ethical concern (2004). Positioning the patient as the “other” in forensic settings implies a negative form of engagement as opposed to a therapeutic orientation to care (Peternelj-Taylor, 2004). Therefore, to reflect the person the nurse has contact with may not be a patient in the true meaning of the word and to avoid using language that may associate negative connotations both for the nurse and their practice and for the person, the words “person”, “individual”, “people” are applied in the thesis.
The focus of this research is the nursing practice but by no means does this thesis want to detract from the person with mental health concerns in the criminal justice setting and the necessity to understand their journey and needs. Since the context has a considerable influence on the possibilities and limitations of the work of nursing and ability to meet the needs of the mentally unwell person, attention to the landscape or context in which the nursing takes place and the multitude of relationships is of vital importance to understand if the nursing practice is to be explicated. Therefore, it is hoped the research contributes in a positive manner to the wider body of knowledge regarding the interface between the criminal justice and the mental health systems and outcomes for the person with mental disorder.
Although it was the writers preference to refer to health services for people experiencing mental health concerns using the term “mental health” the terms “psychiatric” and “mental health” were both used in the thesis. “Mental health” reflects the true multi-disciplinary nature of the mental health professionals who provide the services to mentally unwell persons (Sullivan & Mullen, 2006). When relevant the term “Psychiatric” was used to be congruent and reflect scholarship the thesis was drawing on.
Researcher positioning and rationale for research
My background as a registered nurse included practicing in community, court, prison and inpatient forensic mental health settings over thirteen years. My experiences as a court liaison nurse inspired me to commence this doctorate. The four areas of interest of this research were shaped by several assumptions I had about the CLN role. Firstly I considered it was a stimulating and challenging autonomous role for nurses, which needed to be treasured and developed. Secondly there was a lack of clinical and educational support available for nurses in this role. Finally, along with other CLNs I believed this area of practice should be recognised as a specialty area.
An opportunity to attend a justice liaison (court and prison liaison) nurses’ conference as a novice court liaison nurse was influential. An excellent presentation by a forensic psychiatrist outlining the role of the CLN led me to question why nurses were not the ones defining and speaking about their own role. In addition, the scholarship of Buresh and Gordon (2000) concerning the importance of nurses valuing what they do and speaking in their own voice about their nursing practice and making nursing practice visible was motivational. Nursing information about the delivery of health care was missing in many public and political forums and Buresh and Gordon entreated nurses to consider the impact their information could have on aspects such as resource allocation, education budgets and so on across the health spectrum (2000).
Likewise, Gage and Hornblow (2007) identified that historically nurses were not expected to talk about the distinctive features of their roles that make a difference to the health of the people they cared for, and nor did nurses require this of themselves. They also entreated nurses to embrace opportunities that arise out of a continually changing health sector to re-examine professional roles and culture and demonstrate maturity and leadership (Gage & Hornblow, 2007). These challenges posed to nurses struck a chord with me at the time. My own practice experiences led me to believe this was a nursing role that was poorly understood and CLNs themselves needed to make this role visible and heard.
Similarly, Crowe’s 1997 article encouraging nurses to critically analyse their practice and the context in which it occurred provided thought provoking background for the researcher over the years. Crowe contested that nurses must come from an informed position which implies that in order to do so, collaboration and knowledge is required (1997). Accordingly Crowe stated that education should be self determined rather than by service providers or others (1997). The lack of tailored education for court liaison nurses and the “learn on the job” attitude seemed unsafe and unnecessary to me even in my novice status at the time.
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The autonomy and the opportunity to develop working relationships with professionals from other disciplines albeit very different kinds of relationships compared to those with fellow health professionals afforded by the role was appreciated. Nurses infrequently receive positive feedback or the sense that one is making a difference, particularly in an overworked, over stretched health system. Therefore the feedback from the judiciary, and the sense of being valued with recognition as a credible expert practitioner was affirming.
However, despite feeling valued and able to contribute in a positive manner in the court setting for people with mental health difficulties, it was obvious that nurses were not prepared in undergraduate education for immersion in a legal environment. Nor was there any specific training pathway for nurses to practice in this role let alone in forensic mental health nursing overall. In New Zealand, there was no precedent for nursing practice in the criminal courts. Consequently, there were no formal documented parameters. Court liaison nurses had to “learn by the seat of their pants”. Both my colleagues and I found obtaining adequate support and professional clinical supervision with nursing colleagues was problematical due to lack of understanding of the unusual practice setting. I spent many hours agonising over issues such as informed consent and sharing health information in the court. Therefore, I anticipated that the relatively new status and novelty of the CLN role in New Zealand would provide a unique opportunity to advance the principle that nurses should define their own roles. Not only should CLNs define their own role but nurses need to understand their own role and therefore the boundaries of it to ensure they are practicing safely (Bowring-Lossock, 2006).
From discussions with colleagues it was apparent there were regional variations in how the court liaison service was being delivered. This observation was supported by McKenna and Seaton (2007), who also expressed that there was no published assessment of the effectiveness of the service. There was a scarcity of information and clarity regarding the role in New Zealand. Similarly I discovered that little was known internationally regarding nursing practice and roles in the criminal justice setting. One piece of research literature by Turnbull and Beese in the United Kingdom focused on the nursing role in this environment (2000). This piece of research revealed similar themes to those I had experienced in practice and were drawn on in the formulation of this research. Likewise Seaton’s contribution to a chapter describing the role of the court liaison nurse in New Zealand was affirming in that Seaton discussed issues that I had experienced in practice (McKenna & Seaton 2007). Despite the small sample size, I decided to commence this study to illuminate the role, give voice to Court liaison nurses through description of the joys and frustrations of CLN practice, and initiate research that recognises the special knowledge required to practice in this unique environment.
Another important consideration in this research was to assist with understanding the nursing role in ensuring appropriate pathways for the mentally disordered/impaired person within the criminal justice system are accessible. Historically according to Chaplow (2007) advocacy for offenders with mental health problems has not been a priority. Chaplow (2007) suggests this may be because of the mentally unwell offender’s initial presentation and high risk behaviour to others (Chaplow, 2007). The research sought information regarding whether necessary resources were available to the nurse and for the person to achieve suitable outcomes.
Best practice and outcomes for consumers is founded on a knowledgeable and supported workforce. For that reason, increased knowledge regarding the supports and education CLNs require will result in delivering better services to the people who use the service. This study contributes to the fundamental body of knowledge that underpins mental health nursing practice through exploration and articulation of the nurses’ knowledge about their own roles and educational needs. Furthermore the research enriches international scholarship and practice regarding mental health nursing.
The landscape of the court liaison nurse
The following section outlines the contextual background of forensic mental health court liaison services in New Zealand. Therefore explaining the landscape the court liaison nurse practices in and providing awareness regarding why the role for a nurse has evolved with the mentally disordered person in the criminal justice system. A brief introduction to the conflicting ideologies of the relevant systems lays the foundation for understanding potential ethical tensions and role conflict experienced by the nurse and the influences that have contributed to shaping and defining the CLN practice.
Evolution of a growing population of mentally disordered offenders
Significant socio-political changes influenced the development of mental health services to the courts and the court liaison nurse role (Mason, Ryan & Bennett, 1988; Chaplow, 2007; Ogloff, Davis, Rivers & Ross, 2007). From the 1950s through to the 1990s intense deinstitutionalisation was common in Western countries generating considerable change in the way health services were provided for the mentally unwell (Scull, 1985; Coleborne & MacKinnon, 2006; Brunton, 2005). This philosophical change created gaps in service provision, particularly for people with mental illness who presented with a high level of risk and those who were imprisoned (Mason et al, 1988).
Following the trend over recent decades towards community care commentators have observed prisons appear to have become the new revolving door for the group of people who bounce between justice and mental health (Brinded & Evans, 2007; Morrissey, Meyer, & Cuddeback, 2007). This trend became referred to as “criminalizing mental disorder” (Teplin, 1984; White & Whiteford, 2006). In seeking explanation for this trend authors suggest there is no doubt the lack of mental health resources available in the community were a factor in the elevated numbers of mentally ill people arrested and low detection rates among detained persons (Abram & Teplin, 1991; Birmingham, Mason, & Grubin, 1996; Brooke, Taylor, Gunn & Maden, 1996; Baksheev, Thomas & Ogloff, 2010).
Alongside the radical change in delivery of mental health care that followed de-institutionalisation prison populations have been growing. New Zealand’s rate of imprisonment at 199 per 100 000 population is above the mean of 146 per 100 000 over 218 independent countries and dependent territories (Walmsley, 2011). High levels of psychiatric morbidity are consistently reported in prisoners from many countries over four decades (Fazel & Seewald, 2012). The international trend of increasing prison musters with over 10 million prisoners worldwide (Walmsley, 2011) involves implications for not only court liaison nurses and mental health services but for wider health services in the provision of health care to prisoners.
Mental illness research has found that rates of major mental illnesses such as schizophrenia and depression are between three and five times higher in offender populations compared with those expected in the general community (Ogloff, Davis, Rivers & Ross, 2007; Brinded, Simpson, Laidlaw, Fairley, Malcolm, 2001). A later systemic review and meta analyses of the prevalence of psychosis and major depression conducted by Fazel and Seewald (2012) asserts that these overall statistics have not changed significantly. Psychotic illness is diagnosed in 3.7% of males and females and major depression in 11.4% of prisoners (Fazel & Seewald, 2012). However Fazel and Seewald highlight disparities in rates of mental illness amongst various prisoner groups and recommend further research is needed to confirm whether higher rates of mental illness (5.5%) are found in low-middle-income countries compared with high-income countries (3.5%) (2012). However, even though overall rates of mental illness among prison population have remained relatively static for some time rates of mental illness in prison populations are elevated compared with the general population. This information has implications for court liaison services and general mental health services regarding the ability for early detection and intervention for people with mental illness in the justice system (Teplin, 1984; Baksheev et al, 2010).
The prison statistics are just one part of the landscape of offenders with mental health problems who present with complex needs at all points of the criminal justice system from point of arrest through to release. According to Baksheev et al (2010) while the needs of the ‘captive population’ is well researched and understood the needs of people at time arrest and whilst in police custody is not well researched. Several studies have found the prevalence of mental illness in police custody is disproportionally higher than in the prison population, health needs are unmet, and these people are vulnerable and there is a need for better screening and education of parties involved (Baksheev et al, 2010; Riordan, Wix, Kenney-Herbert, Humphries, 2000; Ogloff, Warren, Tye, Blaher & Thomas, 2011; James, 2000; Steadman, Morris, & Dennis, 1995).
In response to the high prevalence of people with mental disorder amongst the justice population a variety of responses have evolved. Included among these is an assortment of schemes and specific courts implemented internationally to find appropriate outcomes for the mentally disordered offender (James, 2006; Shaw, Creed, Price, Huxley & Tomlinson, 1999; McKenna & Seaton, 2007). Two main types of schemes emerged Liaison and Diversion schemes (James, 2006). The extent and purpose of these schemes is examined in Chapter two. In an attempt to go beyond the legal model’s sole focus on legal rights, which often neglected the patient needs a movement known as Therapeutic Jurisprudence developed within legal scholarship (Winick, 2003) The purpose of this approach is to consider all aspects of the legal world, assess their therapeutic impact and to determine how they can be changed to increase therapeutic outcomes (Winick, 2003). An outline of New Zealand’s response to the increasing population of mentally disordered people in the criminal justice sector follows: the development of forensic mental health services and subsequently court liaison services in New Zealand. Whilst forensic mental health services provide a comprehensive mental health service the focus of this thesis is the court liaison nurse role and therefore a brief outline of the FMHS is provided with in-depth focus on the Court liaison nurse role in the provision of mental health services to the criminal courts in New Zealand.
Responding to an increasing population of mentally disordered offenders
Traditionally in the New Zealand situation satisfactory health services were not available to mentally unwell persons who had contact with law enforcement services in some way (Chaplow, 2007). In the late 1980s, following a succession of significant incidents involving the high number of prison suicides and an attack in the community by an ex-psychiatric patient, the Government established a committee of inquiry resulting in the Report on Procedures Used in Certain Psychiatric Hospitals in Relation to Admission, Discharge or Release on Leave of Certain Classes of Patients (The Mason Report) (Mason, Ryan & Bennett, 1988). The Mason Report followed a number of reports relating to mental health services (Mason et al, 1988).
A series of recommendations regarding mental health service delivery in New Zealand came out of the Mason Report (Mason et al, 1988). Most significantly the responsibility for meeting the mental health needs of mentally ill offenders (or alleged offenders) sitting with the health sector was spelt out in this report (Mason et al, 1988) Subsequently the establishment of comprehensive regionalised forensic mental health services took place in the 1990s (MoH, 2001). Recommendations included that prison liaison, court liaison, and inpatient and outpatient services were set up to ensure that wherever the mentally disordered person is within the criminal justice system access to mental health care was available (Mason et al, 1988).
Therefore regional forensic mental health services provide varying levels of care within a range of settings, from secure inpatient services to outreach and follow-up in the community (MoH, 2001). Specialist forensic mental health services comprise of the full range of mental health professionals one would expect in a mental health service (Mason et al, 1988; Mullen & Ogloff, 2009). It follows that forensic mental health nursing takes place across this range of environments. These environments include inpatient mental health units of varying security levels, correctional facilities, police cells, court rooms and court cells, and in patients’ homes (Mason, 2002; Dale & Storey, 2004; Lyons, 2009, MoH, 2001).
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