The Forensic Psychiatric Network of Observation and Documentation: At the Intersection of Review Board Hearings and Nursing Practice

Abstract

Forensic psychiatric nursing is a specialty at the junction of two well-researched intersecting systems with two mandates: criminal justice and health care. Nurses' involvement at one of the systems' points of juncture, review board (RB) hearings, has largely been left unexplored. At RB hearings, a panel of legal and healthcare professionals determines if persons unfit to stand trial (UST) or not criminally responsible on account of mental disorder (NCR) represent significant threats to the safety of the public and orders conditions aimed at keeping the community safe. The aim of this article is to present the results of a critical ethnography that explored how psychiatric and public safety discourses construct the identity of persons UST or NCR during RB hearings as well as nurses' contribution to such identity construction. The main finding is that the forensic psychiatric structure leverages nursing interventions and documentation as evidence of deviancy, so that persons UST or NCR can be objectified and produced as dangerous. Structures sustaining the forensic psychiatric system inscribe nursing care within a disciplinary scheme, rendering the care-and-custody dichotomy insufficient to explain the complex processes at play in forensic psychiatry. These findings have implications for the practice of nurses working in forensic psychiatric settings and for that of other nurses who practice on the medicolegal borderland.

In Canada, the forensic psychiatric system is composed of forensic psychiatric hospitals and provincial review boards (RBs). Forensic psychiatric hospitals are custodial institutions where, among other things (e.g., forensic assessments), persons unfit to stand trial (UST) or not criminally responsible on account of mental disorder (NCR) are detained/supervised for the proclaimed purposes of rehabilitation and community reintegration (^{Criminal Code [CC], 1985}). A person is found UST by a judge if they are “unable on account of mental disorder to conduct a defence at any stage of the proceedings before a verdict is rendered or to instruct counsel to do so” (^{CC, 1985}, s.2). A person is found NCR by a judge if they committed an act or omitted to commit an act “while suffering from a mental disorder that rendered [them] incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong” (^{CC, 1985}, s.16 [1]). The RBs are parajudiciary tribunals, composed of lawyers/judges, psychiatrists/psychologists, and members of the public, that determine, in regular hearings, whether persons UST/NCR represent “significant threats to the safety of the public” and, if so, establish detention and supervision modalities that must be imposed on persons UST/NCR to uphold public safety (^{CC, 1985}; ^{Wilson et al., 2015}). These detention/supervision modalities are inscribed in a public document entitled a disposition. The reasons for disposition, another public document, provides the RB's justification for the disposition ordered.

To make their decisions, RBs rely on an expert report typically prepared by the attending psychiatrists of persons UST/NCR on behalf of clinical care teams, including nurses, who observe and document the thoughts and behaviors of patients on a daily basis. The RBs are also guided by the ^{CC's (1985)} definition of “significant threat to the safety of the public” and the ^{Winko v. British Columbia (BC) (1999)} Supreme Court of Canada judgment. In this judgment, the Supreme Court of Canada explained that “significant threat to the safety of the public” is synonymous to “dangerousness” (para. 50) and that, for an RB to establish dangerousness, “the threat must [also] be ‘significant,’ both in the sense that there must be a real risk of physical or psychological harm occurring to individuals in the community and in the sense that this potential harm must be serious. A minuscule risk of a grave harm will not suffice” (^{Winko v. BC, 1999}, para. 57). Determining whether persons UST/NCR are dangerous thereby amounts to an assessment of risk conducted by a medical expert, where a variety of factors, both clinical and biographical, are collated to construct a narrative about an individual's potential to commit an act resulting in serious physical or psychological harm (^{Castel, 2011}). In a retrospective longitudinal analysis of RB decisions in the provinces of British Columbia, Ontario, and Québec between 2005 and 2008 (n = 6,743), ^{Crocker et al. (2015)} identified that RBs find persons NCR to be dangerous and in need of a disposition order in 81.3% (n = 1,262) of cases. In Ontario specifically, it is 90.4% of persons NCR who were found to be dangerous by RBs after hearings.

The goal of this article is to present the results of a critical ethnography, which had for its objective to explore how nurses who work in forensic psychiatric environments (e.g., inpatient settings, outpatient settings, outreach) contribute to the construction of “dangerous” identities for persons UST/NCR during RB hearings. In doing so, this research contributes to a growing body of literature in forensic nursing aimed at understanding how law and the judiciary merge with psychiatry, how it takes effect at the bedside of patients, and how it permeates nurses' clinical practices.

Background and Problem Statement

The criminal justice system relies on the medicolegal expertise of psychiatry to identify, supervise, and discipline persons UST/NCR who represent significant threats to the safety of the public (^{Federman et al., 2009}; ^{Foucault, 1999}). The interconnected but philosophically divergent custodial and caring aims of the forensic psychiatric system highlighted in the literature (^{Dhaliwal et al., 2021}; ^{Holmes, 2002}; ^{Peternelj-Taylor, 2004}) create two areas of tension, evident in the RB hearing process, that need further exploration. First, persons UST/NCR are objectified by information contained in the medicolegal evidence presented during RB hearings. Objectification becomes a source of professional tension when it legitimizes targeted interventions aimed at protecting the safety of the public while concurrently guiding rehabilitation interventions (^{Domingue et al., 2020}). Second, there is a need to explore the use of personal health information (PHI) in the RB hearing process. Clinical information about persons UST/NCR is considered confidential when initially collected and documented. Transferring it from the clinical setting to the RB hearing renders it publicly available (see Figure 1).

FIGURE 1: Blurred confidentiality boundaries in public legal settings and confidential healthcare settings.

In Ontario, Canada, this process is facilitated by the articulation of two pieces of legislation, namely, the ^{CC (1985)} and the Mental Health Act (^{MHA, 1990}). The former establishes that RB hearings are generally public, and the latter stipulates:

The officer in charge of a psychiatric facility may collect, use, and disclose personal health information about a patient, with or without the patient's consent, for the purposes of…complying with Part XX.1 (Mental Disorder) of the Criminal Code (Canada) or an order or disposition made pursuant to that. (^{MHA, 1990}, s 35[2])

The PHI produced in hospital settings can thereby be used in a quasi-unregulated manner, for purposes beyond the provision of care—namely, for public safety and risk management—without the consent of persons UST/NCR. Such a dynamic creates professional tension for nurses working in forensic psychiatry, who must practice in custodial environments (^{Byrt et al., 2018}; ^{Jacob & Holmes, 2011}; ^{Mason et al., 2008}). In forensic psychiatric institutions, nurses are required to maintain closeness with their patients to foster the development of a therapeutic relationship (^{Jacob & Holmes, 2011}). However, they also bear the responsibility of security-related tasks that may represent a barrier to doing that, such as room searches, urine toxicology screens, and behavioral observation/documentation (^{Byrt et al., 2018}; ^{Mason et al., 2008}; ^{Perron & Holmes, 2011}). Of particular importance for forensic psychiatric nursing, the overlapping of these two responsibilities has effects that transcend the individual caring nurse–patient relationship: It serves a larger societal purpose rooted in public safety imperatives.

Methodological and Theoretical Considerations

Critical ethnography was used to explore how RBs operate, interact with healthcare professionals, and use PHI to make disposition orders. Critical ethnography allowed for the authors to gain an understanding of the power dynamics inherent to RB hearing processes and problematize their subjugating features (^{Soyini Madison, 2005}; ^{Thomas, 1993}).

Following Hammersley and Atkinson's (2007) principles of ethnography, data from a combination of sources including interviews with nurses working in a forensic psychiatric hospital that lasted approximately 30 minutes each (n = 6), observations of RB hearings (n = 27, 41 hours), and reasons for disposition (n = 18) were collected in the province of Ontario, Canada. Data collection was conducted simultaneously from these three sources.

Recruitment for nurse participants took place by email and in-person. Informed consent was obtained before interviews were conducted and recorded. An interview guide was developed using principals of critical ethnography to better understand the care nurses provided to persons UST or NCR before, during, and after RB hearings. Interviews were then transcribed verbatim to facilitate analysis.

The RB hearings and reasons for dispositions both constituted publicly available repositories of data. In accordance with Article 2.3 of the ^{Tri-Council Policy Statement (2014)}, collecting and analyzing data pertaining to RB documents and RB observations did not require informed consent to be obtained because persons participating in the RB hearings had no reasonable expectation of privacy (^{CC, 1985}). Nevertheless, the first author identified as a PhD student in nursing at the University of Ottawa conducting research on RB hearings, presented himself to the board members at the beginning of RB hearings. By identifying himself as such, it enabled the RB to exclude him from the hearing if it “consider[ed] [the lack of his presence at the hearing] to be in the best interest of the accused and not contrary to the public interest” (^{CC, 1985}, s. 672.5[6]). This also allowed for the person UST or NCR undergoing the hearing to question his presence. To limit disparities in information collected from one RB hearing to the next, an observation guide to extract information related to space, time, and interactions between actors was used. Research ethics board approval was obtained from the hospital where participant recruitment was conducted and from the first author's institution.

To understand the contexts in which the data were produced (^{Hammersley & Atkinson, 2007}) and to problematize the structures that allowed for their production (^{Krzyzanowski, 2011}), practices of reflexivity (^{Davies, 1999}) and ^{Fairclough's (1992)} discourse analysis framework were employed. Accordingly, we first analyzed the data from a production/consumption perspective; that is, we paid attention to when, how, why, and by whom our data (e.g., texts, description of events) were produced and were used. Second, we took a deep dive into the textual intricacies of our data to observe how structures produced truths. We then interpreted our findings using theories that consider concepts of empowerment, prestige, privilege, and power relations (^{Fairclough, 1992}; ^{Soyini Madison, 2005}). Specifically, we assembled a theoretical framework rooted in the work of ^{Foucault (1990}, ¹⁹⁹⁵, ²⁰⁰³, ²⁰⁰⁷), ^{Garfinkel (1956)}, and ^{Goffman (1961)}.

Foucault's analysis of power, biopower, and dangerousness allowed us to understand why and how the forensic psychiatric system produced dangerous identities for persons UST/NCR. Complementarily, Garfinkle's conceptualization of degradation ceremonies and Goffman's work on total institutions permitted a local level understanding of how RB hearings and the practices of nurses contributed to the production and reform of these identities. See ^{Domingue et al. (2020)} for a detailed version of the theoretical framework.

Results

Our results are presented in a three-pronged fashion. First, results from nurse interviews describe how nurses produce information about the behaviors of persons UST/NCR. They also show how this information is constructed in a way that is influenced by the RB and its dispositions. Second, findings from RB hearing observations show how PHI is used in legal settings to substantiate claims that persons UST/NCR are deviant. Finally, results from the analysis of reasons for disposition reveal how the RB marshals PHI to justify findings of dangerousness.

Nurse Interviews and the Production of Medicolegal Information

During the interviews, nurses explained that in anticipation of RB hearings, they participated in meetings, called “pre-RB conferences,” where clinical teams prepared how persons UST/NCR were going to be presented to RB members. Teams would analyze events/information that characterized the previous year, such as aggressive episodes, compliance with rules/treatment, medical procedures, family involvement, usage of as-needed medications, positive urine toxicology screens, and progression within the privilege level process. Clinical teams would also examine the mental health indicators of persons UST/NCR, including their mood level and psychotic episodes:

We look for incidents, whether they were good or bad. How many times they went out in the community […], if they had family involvement, if they had medical procedures we would write that down, whether it's the dentist or how many [as needed medications] they have had, how their mood level was or if they had psychotic episodes, we take those and all positives, like “patient had an increase in privileges,” […] and, any bad incident, like if they were aggressive or like a risk assessment. (Nurse Interview 6)

Although a variety of discussion items would be brought up by nurses during pre-RB conferences, participants described how they drew a particular focus on incidents that spoke to the character of persons UST/NCR: Emphasis was placed on identifying concrete examples suggesting deviancy, that is, on “incidents” and not on efforts made by persons UST/NCR to overcome these difficult events. This emphasis is akin to forms of “charting by exception” or, in this case, “reporting by exception,” where the exception corresponds to behavioral expectations of the nurse that are selectively presented during pre-RB conferences. In the rare occasions where participants disclosed reporting “good” incidents during pre-RB conferences, these typically related to how persons UST/NCR complied with rules, abstained from using drugs, or gained/used additional privileges. Intentions aside, such an emphasis on cumulated acts of deviancy brings us to question the clinical purpose of nursing observations.

In preparation for pre-RB conferences, participants mentioned they wrote a nursing note summarizing the person's progression for the previous year. This piece of documentation is described as a tool to convey the “nursing perspective” to RB members via the hospital psychiatrists:

You can hear some of what's been used in your [nursing] report explained by the psychiatrist while they're being cross examined [during RB hearings], for example the number of incidences [sic], a severe problem with their hygiene, interpersonal conflict with other co-patients on the unit . . . […] and that's what we want, right? (Nurse Interview 5)

It's kind of nice to see when something that you put into your [nursing] report is said at the hearing, but usually it's the number of incidences [sic] that the nurse went through and counted out. (Nurse Interview 5)

Although some nurses felt a sense of professional validation when hearing their bedside knowledge be reappropriated during RB hearings, others felt uncomfortable with this idea of having their work used beyond the context of care:

[RB hearings] can be kind of an ugly thing to sit through, it's our documentation, the lawyers using those to basically fight with each other over points of disagreements. We're the ones recording incidents, we're usually the ones witnessing them, so those will be used by someone, say fighting for a more restrictive disposition, they'll use what we recorded as a means to getting them [persons UST/NCR] less rights I suppose, so that's usually not what we hope will happen with our documentation (chuckle). (Nurse Interview 3)

Although it is not clear what the participants' “hopes” were with regard to the use of nursing documentation, by referring to their experience as “ugly,” they expressed their dissatisfaction with the way this documentation is instrumentalized in unanticipated contexts. The participant's reflection is a testament to the professional and ethical incongruence of having nursing documentation produced in a context of care be used to make arguments about the dangerousness of persons UST/NCR.

RB Hearing Observations and the Construction of Deviant Individuals

Information produced by nurses was observed being used during RB hearings to explain the degree to which persons UST/NCR should be considered “deviant” or “normal” and potentially dangerous. Deviancy and normalcy as concepts were not observed as static but rather as dynamic indicators of persons UST/NCR and seemed to exist on a continuum (see Figure 2). As part of this continuum, normalcy is an asymptote: It is a target that can never be reached. A person's level of normalcy equates to their lack of deviancy. Figuratively, the role of parties during RB hearings was to present evidence indicating where persons UST/NCR were to be positioned on this continuum, and the RB's role was to situate on this continuum a threshold identifying the cutoff point for “dangerousness.”

FIGURE 2: Normalcy/deviancy continuum.

If persons UST/NCR were situated on the deviant side of the threshold, RBs produced dispositions to protect the public from them. If they were situated on its normalcy side, that is if the deviancy level of their thoughts and behaviors was considered tolerable to members of the RB (as a representation of society's collective), persons UST/NCR were discharged from the RB. Attributes of deviancy revolved mainly around three key themes: criminal deviancy, mental status, and rule breaking.

Criminal Deviancy

Everything in the life and biography of persons UST/NCR could be subjected to RB enquiries and used to anchor their deviant identities. For example, during an RB hearing, a chair sought to understand why alleged sexual assault charges against a person NCR had not been included in the hospital report, despite being listed in the Canadian Police Information Centre (CPIC):

The chair, comparing p. 4 of the hospital report and the CPIC submitted as exhibit no. 2 confirmed with the psychiatrist that the report did not take into account the alleged sexual assaults of nieces and nephews. The psychiatrist said “no sir.” The chair said “yes, OK, I get it.” (RB Observation 21)

By introducing alleged sexual assaults—crimes that were not tested/proven in court—as a potential piece of evidence, the chair rendered them true. In effect, to emphasize the person's deviant character, the crown attorney used these alleged charges during his final submission to suggest the person remained a significant threat to the safety of the public despite them having been found NCR for a relatively “minor” index offense (indecent exposure): “The Crown summarizes that although the index offence is minor, other offences in the 80s are violent referring to the alleged sexual assaults” (RB Observation 21).

Mental Status

Identity parameters relating to the mental status of persons UST/NCR were also used to illustrate deviancy during RB hearings:

[The psychiatrist said that] during the pre-RB case conference, the patient disclosed delusional thoughts to the whole team: he killed and executed many people […]. He disclosed that he had supernatural powers to knock everyone off the planet and that he will inherit trillions of dollars. […] The psychiatrist said the team's concern is the patient's delusional thoughts are consistent with his mental state at the time of the offence. The psychiatrist said the team would continue to encourage the patient to share his thoughts. […] The psychiatrist said that he told the patient he would need to disclose everything to the [review] board. (RB Observation 21)

By disclosing his delusional thoughts to the clinical team, the patient provided the team with evidence to prove his deviancy. Although in this case the psychiatrist informed the person that he would share the disclosed delusional information with the RB, it is worth questioning the extent to which nurses who continuously assess the mental statuses of their patients inform persons UST/NCR about the potential ramifications of such assessments and of disclosures made during the assessment process.

Breaking the Rules

The ways in which persons UST/NCR broke rules were adduced at RB hearings as demonstrations of deviancy. These included rule violations relating to RB dispositions, hospital rules, and other rules established by nurses.

For example, during an RB hearing, it was explained that staff were “quick to point out” occasions where a patient deemed NCR returned late from passes. The psychiatrist explained that, almost in a targeted way, staff monitored the behavior of this patient to identify and document any deviations:

The psychiatrist said the patient hadn't violated his conditions. He hadn't had bad or suspicious behaviours. The patient provides a detailed itinerary when he goes into town with his scooter. He added that when the itinerary needs to be clarified, the patient calls in. The psychiatrist explained that the “staff is split about him.” The psychiatrist said that some staff don't like him and are quick to point out what he does wrong. (RB Observation 7)

Despite using the word “staff” to designate employees who penalize the patient, we know from our interviews that these staff members are nurses. By choosing what shortcomings to point out and document (or not) about persons UST/NCR, nurses only render certain behaviors visible/true, thereby providing evidence or, lack thereof, to substantiate claims of deviancy.

Reasons for Disposition and the Production of Dangerous Individuals

The PHI produced by nurses and used during RB hearings to establish deviancy was inscribed in the reasons for disposition to justify the dangerousness of persons UST/NCR. Although this use of nurse-produced information was apparent on numerous occasions in the reasons for disposition, there was no explicit mention of nurses within them.

In the case of an Indigenous man found UST on charges of mischief under $5,000, break and enter, and failure to comply with undertaking, information produced by nurses during mental status assessments (e.g., perceptual disturbances, insight) was used to justify that his intellectual and cognitive disability rendered him psychiatrically deviant. This information was subsequently leveraged in the reasons for disposition to explain his dangerousness:

The Board agrees […] that [the person UST] remains a significant threat to the safety of the public. His clinical picture has contributions from both a psychosis of unknown certain etiology as well as profound developmental difficulties expressed primarily as cognitive delay. While there have been no violent or aggressive incidents in the year under review […], he occasionally reports continuing auditory hallucinations. Of greater concern is his lack of insight into the effect that his continued drug use has on psychosis. (Reasons for Disposition 3).

Similarly, in the case of a White woman found NCR on various assault charges, information related to various incidents (i.e., elopement attempt, aggression and violence, restraint, and general rule breaking) was used in the reasons for disposition to provide a chronological component to her dangerousness:

A significant incident occurred in [month] when [while] attempting to leave the [hospital], [the person NCR] assaulted a nurse who suffered a broken arm in the incident. She had also pushed a nurse and punched her in the face. She required pharmacological restraint at the time. In [month], [the person] again required pharmacological restraint and locked seclusion because of significant behavioural problems. (Reasons for Disposition 12)

Although these incidents were stand-alone events, likely observed and documented by nurses, their association with one another, and with the index offense within the reasons for disposition, reaffirmed and formalized the person NCR as being dangerous.

Discussion

From the moment persons UST/NCR are arrested to the moment they obtain their discharge from the RB, their deviant behaviors are observed, documented, and compiled in various legal and medical records. As they progress through the system, a broad and permanent corpus of information about them is created and relied upon, year after year, during RB hearings to establish their dangerousness and need for reform (see Figure 3). Indeed, without this network of observation and documentation, the deviant behaviors of persons UST/NCR would be invisible and inexistent.

FIGURE 3: Forensic psychiatric network of observation and documentation.

Criminal responsibility assessments ordered by judges give forensic psychiatric hospitals the authority to research the lives of individuals to provide explanations for the circumstances in which their crimes were committed (^{CC, 1985}; ^{MHA, 1990}). This investigative work involves conducting in-depth psychiatric interviews with those patients and collecting collateral information from their family, friends, and associates and culminates in the production of expert psychiatrist reports. On this topic, ^{Foucault (1995)} wrote:

As the biography of the criminal duplicates in penal practice the analysis of circumstances used in gauging the crime, so one sees penal discourse and psychiatric discourse crossing each other's frontiers; and there, at their point of junction, is formed the notion of “dangerous” individual, which makes it possible to draw up a network of causality in terms of an entire biography and to present a verdict of punishment-correction. (p. 252)

Such biographical work allows for the entire lives of criminals to be “linked [to their crimes] by a whole bundle of complex threads (instincts, drives, tendencies, characters)” (^{Foucault, 1995}, p. 253). Conceptually, this introduces an interesting and important development; it establishes deviancy—and, arguably, dangerousness—not only after a crime has been committed but also before it is committed. This development is the reason why it is possible, and perhaps necessary, for the forensic psychiatric structure to (re)interpret and (re)connect biographical events in a manner that leads up to a “logical” conclusion of overall dangerousness.

To prevent the possible recurrence of dangerous acts, the deviancies of persons UST/NCR become subject to the gaze of the forensic psychiatric system. Indeed, our findings suggest that all thoughts and behaviors of persons UST/NCR are carefully observed, analyzed, and documented in clinical records as identity parameters and as potential precursors or indicators for dangerous acts. Much like ^{Goffman (1961)} suggested, the purpose of the clinical record and of the clinical work in forensic psychiatry appears to be aimed at

…show[ing] the ways in which the patient is “sick” and the reasons why it was right to commit him and is right currently to keep him committed; and this is done by extracting from his whole life course a list of those incidents that have or might have had “symptomatic” significance. (pp. 153–154)

“Sickness” and “symptomatic significance” being intimately linked with dangerousness in forensic psychiatry, the content of documents produced as part of the forensic psychiatric network of observation and documentation is therefore associated with the need to justify why persons UST/NCR are dangerous and why they need to be detained and supervised. To produce such a justification, the forensic psychiatric hospital introduces various sets of rules and rituals that allow for the deviancies of these persons to materialize and be inscribed within the medicolegal record. Consequently, day after day, the biography of persons UST/NCR is (re)written and consolidated within a scheme that considers every rule transgression, regardless of how trifling it may be—such as returning a few minutes late from a pass—as a demonstration of deviancy, as a potential for dangerousness, and as a reason for further supervision and detention.

From a nursing perspective, this dynamic raises questions regarding the purpose and confidentiality of nursing interventions and documentation in forensic psychiatry. Similar to ^{Martin and Street's (2003)} and ^{Perron's (2012)} findings, our results show that by documenting patients' transgressions of institutional rules, nurses produce evidence about the deviancies of persons UST/NCR. The work of nurses working in the forensic psychiatric hospital was described and observed as being oriented toward the requirements of the RB, namely, risk identification and risk management, thus relegating to second-rank clinical interventions aimed at fostering recovery, rehabilitation, and community reintegration. In such a context, there seems to be a convergence of the RB's mandate of keeping the public safe with the responsibilities of nurses at providing care to persons UST/NCR, which causes confusion with regard to the purpose of clinical interventions and to nurses' professional accountabilities and responsibilities in relation to RB decisions.

When PHI compiled by nurses is used outside the hospital environment, such as during public RB hearings or within public reasons for disposition, it cancels the rights of persons UST/NCR to confidentiality and violates their dignity (^{Gustafsson et al., 2014}). This places them in a subjugated position where, under the public's gaze, any allegations of infractions made against them or their families (not proven in court) can be discussed, inscribed within legal documents, and considered “true.” Such a rupture in confidentiality expands the conversation about public safety to new actors. By giving the public access to meticulously selected, filtered, and decontextualized information about persons UST/NCR and their families, which is acquired and produced by specialized professionals in privileged and confidential clinical situations (i.e., therapeutic relationships), the forensic psychiatric system invites the public to passively participate in the construction of deviance and dangerousness. It is worth questioning who benefits from this legalized breach of confidentiality. Does it serve persons UST/NCR? Does it serve public safety? Perhaps it allows the forensic psychiatric system, and its processes, to present themselves as procedurally just and transparent (^{Livingston et al., 2016}), despite its real-life harmful implications for persons UST/NCR, their families, and the clinical personnel.

Implications for Clinical Forensic Nursing Practice

The clinical practice of nurses is generally based on health-related considerations. When applied to forensic psychiatric settings, however, the pertinence of these considerations becomes less evident. The practice of nurses in forensic psychiatric settings (e.g., observation, documentation) contributes to keeping persons UST/NCR in a state of permanent visibility, which subsequently allows for members of the RB to consider all aspects of their lives when determining if they represent a significant threat to the safety of the public.

Nurses do not directly control the way in which the law is written or the way that forensic psychiatric institutions regulate how PHI can be transposed from clinical to legal settings. However, they have discretion and autonomy with respect to how they apply and comply with regulations such as the documentation of “deviancies” or “rule-breaking” events (^{Lipsky, 2010}). Although being leery of making recommendations that would replicate a certain order of discourse, the results from our study nevertheless bring into question certain taken-for-granted practices and create opportunities for reflection and change.

We see a need to further define how clinical observations and associated documentation practices are structured in forensic psychiatry and be mindful of their effects in delocalized contexts for patients. Nurses, as healthcare professionals, have an ethical responsibility to engage in critical reflections about the way clinical information is transferred from confidential care environments to public legal settings without the consent of their patients, even if this is allowed by law. Forensic psychiatric hospitals should provide space for nurses to have these discussions and lean on their expertise to shape policy around clinical practice, medical documentation, and use of PHI outside hospital settings. Although these suggestions would not change the objectifying processes inherent in the forensic psychiatric system, they might destabilize the functioning of the “forensic psychiatric network of observation and documentation” by altering the narrative about persons UST/NCR and forensic psychiatric nursing.

Conclusion

In this article, we presented the results of a critical ethnography in the domain of forensic psychiatry, which revealed that the practice of nurses was vital for the efficient execution of the forensic psychiatric system's aim of maintaining public safety. Specifically, these results helped us to understand how the forensic psychiatric system is sustained by the work of nurses. By focusing our enquiry on how the identities of nurses and persons UST/NCR were constructed within this system, we observed an intricate array of medicolegal practices that serve to reproduce the dangerousness of patients, which we named the “forensic psychiatric network of observation and documentation.” By providing care and documenting it within the clinical record, and by participating in various interprofessional meetings, nurses produce PHI about persons UST/NCR. Our findings suggest that this clinical information is subsequently cited within hospital reports as factors of risk, relied upon during RB hearing to show social and moral deviancy as well as the need for reform, and presented in the reasons for disposition as a means of establishing dangerousness. The clinical information is further used as the justification, within reasons for disposition, for legitimizing the application of disciplinary measures such as the prolonged surveillance and detention. Far from being constrained by the custodial forensic psychiatric system, nursing care is an integral part of a disciplinary machine that keeps persons UST/NCR under the supervisory gaze of the RB and forensic psychiatric hospitals. In this context, custodial imperatives, such as the detention/supervision of persons UST/NCR, merge with, and are sustained by, nursing caring processes, including behavioral observation, mental status evaluation, and clinical documentation. The care-and-custody debate, frequently depicted as a dichotomy in the scientific literature on forensic nursing, is thus insufficient to explain the complex processes at play in forensic psychiatric nursing.