Ethical issues in the use of electronic monitoring (Global Positioning System ‘tracking’ technology) in forensic mental health settings – A four principles approach

Ethical objections to EM

As well as concerns specific to use of EM in psychiatric settings, there are several ethical objections to the general use of EM. These primarily focus on concerns about privacy, autonomy and disproportionate punishment, with references to an ‘Orwellian society’, where people's lives are subject to totalitarian control and widespread surveillance, and where the line between incarceration and freedom is blurred.^32,33 Critics argue that EM shifts the burden of responsibility onto families and communities ³⁴ and may exacerbate social inequalities by negatively affecting those who lack the resources to comply with requirements, that is, stable housing or access to electricity.^35,36 Furthermore, the collection, storage, and use of personal data is repeatedly highlighted as a concern,^37,38 undermining personal privacy and resulting in a form of ‘digital incarceration’. ³⁹ These factors are all especially relevant to forensic populations, whose privacy and autonomy are already subject to extensive restrictions and monitoring. Similarly, concerns surrounding capacity in specific populations, including dementia,^40–42 are also applicable to forensic patients, who have disproportionate rates of cognitive impairment and early onset memory problems.^43–45

1. Autonomy

Autonomy refers to an individual's right to make rational decisions and choices, capturing the moral requirement that each person should be allowed to exercise his or her capacity for self-determination. ⁵³ It is the basis for informed consent, truth-telling, and confidentiality. In conflict with autonomy are the concepts of coercion and the nature of consent in psychiatry. These are complex issues, especially in secure forensic settings, where patients are legally obliged to stay. Coercive measures include formal coercion, such as actions limiting freedom of movement, as well as informal coercion through manipulation of a patient's decisions. ⁵⁴ Determining what counts as coercion in psychiatry and if or when it is ever justifiable has been discussed extensively elsewhere. ⁵⁵ Although, on the surface, coercion may be perceived straightforwardly as the antithesis of autonomy, there is a more subtle tension here, which lies in determining whether short-term restrictions on autonomy are ethically justified when they are framed as a pathway to greater long-term autonomy.

Considering coercion in the context of EM, professionals in favour of utilising EM in forensic psychiatry argue that (with the exception of high-risk patients requiring emergency hospital or court transfer) no patient is forced to wear a monitoring device without informed consent, therefore making it a justifiable intervention. The forensic unit that first implemented EM sought informed consent (both verbal and written) prior to any patient wearing a monitoring device for standard leave from hospital. ⁵⁶ The decision to grant leave is made through careful clinical risk appraisal, with subsequent approval required from the Ministry of Justice in many cases. Consequentially, at baseline, patients have little autonomy in relation to decisions about leave. However, given the above study found that the use of EM resulted in more leave being given, it is arguable that EM could provide a means to enhance patients’ autonomy around decisions related to leave, as well as enabling greater freedom of movement. For many forensic patients, the alternative to EM, especially in the earlier stages of time in hospital, is escorted versus unescorted leave, or no leave at all, and therefore arguably a greater infringement on autonomy than use of EM.

Many have questioned the meaningfulness of consent to being monitored by EM. The key question may be framed as ‘Is abiding by the recommendations of the clinical team, in the knowledge that leave could be jeopardised by not doing so, true consent, or simply a form of coercion?’. If the latter is the case, EM would in reality be predominantly coercive, even if technically ‘consented’ to in a formal way. It also has the potential to jeopardise the therapeutic alliance by undermining the clinical team's trust in a patient to respect agreed parameters of leave, to reinforce paranoia and delusions about surveillance (see below), and to reduce an individual's sense of agency.

It is important to acknowledge that patients’ decisions are undoubtedly influenced by wanting to progress towards leave and ultimately discharge. Clinicians need to be aware that for many patients, there will likely be a degree of assent, whether this applies to taking medication, engaging in psychological therapies, or wearing a monitoring device. Assent is a further complex concept in applied ethics, and has been discussed extensively elsewhere. ⁵⁷ In short, assent refers to an individual's broad agreement to engage in a particular process or procedure. It is often used in situations where the individual does not have the legal capacity to provide fully informed consent. In relation to EM, it may be that the term assent is more appropriate to the patient decision-making process, and this should be factored in to weighed decisions about the ethical basis of EM.

Confidentiality is another factor related to autonomy, and concerns about patient confidentiality in the context of EM have been highlighted. Following the introduction of GPS technology in healthcare, Michael et al. ⁵⁸ raised important questions about the ownership of the data collected, for which no clear legislation exists, and the potential breach in patient confidentiality through the involvement of private sector companies. In forensic settings, there remains a lack of transparency about who has access to the data, how long the data is retained, and the extent it might be used for purposes beyond its original intention, such as by the CJS or third-party sharing. ⁵⁹ Further, any forensic psychiatric patients who have spent years in institutional settings may understandably have limited technological literacy^60,61 and thus may not fully understand the implications of the collection of EM data. Taken together, these concerns emphasise the importance of clear and effective communication with patients about the implications of data collection using EM.

2. Beneficence

Beneficence refers to the obligation of clinicians to act for the benefit of their patients. Under this principle, decisions made in relation to patient care must always be made in the patient's best interests. This becomes complicated in forensic psychiatry, where there is an inherent conflict between the best interests of the patient and public protection.^62,63 Considering this conflict in the context of EM, it is important to establish the rationale for its use and who it benefits. As with many interventions in forensic services, there is a risk that the balance between patient benefit and public protection becomes lost. In the CJS, given that EM primarily serves as an alternative to incarceration, a punitive component to its use may be acceptable. Conversely, in forensic services, while protection of the public is a key consideration, the ostensible primary justification of EM is that it serves to enhance clinical progression and aid rehabilitation. In the study where EM was first introduced in a forensic setting, though preliminary in design, there was a reduction in episodes of leave violation with the use of EM. ⁶⁴ This was only statistically significant for the second follow-up period, which the authors suggested was likely due to the scarcity of LV incidents and/or growing proficiency of clinical staff in targeting those patients most likely to benefit from EM. ⁶⁵ Further studies, ideally prospectively designed, are required to establish clearer links between EM and its impact on leave.

A particular concern about EM is that it may become a tool at the disposal of forensic practitioners prone to overstepping the boundaries between clinician and ‘enforcer’. In such instances, there is a risk that EM would be unjustifiably used, or used for too long, in patients where therapeutic relationships are suboptimal, or where there are unjustified concerns about the nature of, or extent of risk, based on clinician and system biases. There is a distinct lack of validated tools to assess risks of granting leave in forensic services, and so there is a danger of a given patient being ‘doubly punished’ by both restricted access to leave, and subsequently restricted access to leave without EM. In contrast, proponents may again argue that EM may abate clinician concerns in relation to leave. This may expedite leave in those who are generally the most at risk of violating leave or inappropriate behaviour while on leave.

Opponents of the use of EM have also raised concerns about its long-term impact. Simpson and Penney ⁶⁶ argue that EM simply delays reoffending as opposed to aiding rehabilitation. However, important distinctions between reoffending and rehabilitation need to be considered. Firstly, concerns about offending following a period of EM – after which a sense of false reassurance could take hold among clinicians – are valid. But, given that leave is broadly seen as having therapeutic benefits, it is also feasible that the risk of such offending would indeed be reduced at this stage, in which case EM would be seen to be a good example of ‘positive risk-taking’, with patient benefit. In contrast, if rates of offending transpire to be similar with or without the use of EM, this would have both ethical and cost implications for services. Secondly, it may be that EM has a positive impact in reducing offending, but no impact on clinical progress, in which case there is a still a net overall gain for both the patient and the service. Contrarily, it is also possible that EM may have a negative impact on wider clinical progress, for example, causing a deterioration in psychotic features in a patient who was not in fact ready to obtain leave. Reasons for this possible outcome are discussed further in section 3.

Further well-conducted research projects are required to clarify the impact of EM on offending and clinical trajectories, ideally over longer follow-up periods. In samples of prisoners, many of whom have similar clinical profiles to forensic inpatients, a meta-analysis of 18 studies demonstrated that the overall effect of EM on recidivism was favourable for certain offenders (sex offenders), at certain points in the criminal justice process (post-trial as an alternative to prison), and in combination with other conditions (such as geographical restrictions) and therapeutic components. ⁶⁷ This emphasises the importance of a granular approach to examining these issues. It may be that there are positive effects of EM only in certain subgroups of patients, or only in specific circumstances, highlighting the importance of considering well-informed, individualised approaches in relation to EM.

3. Non-maleficence

In contrast to beneficence, which calls for physicians to actively seek good for their patients and promote their welfare, non-maleficence simply refers to the avoidance of harm. This requires clinicians to weigh up the advantages with the potential disadvantages of all interventions and treatments. The complexity in forensic psychiatry lies in: (a) whose judgement of the harm suffered should be prioritised – a violent patient may view the use of sedating drugs as unjustified, whereas staff would think the opposite – and (b) whose claim to protection is more important, which is to say that of the patient or the public. In the context of granting leave, for example, by not facilitating leave (where deemed appropriate following careful risk assessment) and therefore accelerating a patient's recovery, this could be viewed as detrimental to the patient and the clinical team failing to adhere to the principle of non-maleficence. However, it also raises the unavoidable question of whether it would be justified and the principle be upheld if the rationale for not permitting leave was one of public protection – that is, non-maleficence towards the public. In the context of a risk-averse culture, with genuine concerns about risk occasionally heightened by tragic outcomes, external pressures may unduly weigh decision-making in this direction.

Concerns have also been raised about the impact on the service user of wearing an EM device. These include symptom exacerbation, especially as delusions about surveillance are common amongst this population. ⁶⁸ In a study focused on the mental health impacts of EM of migrants, those monitored described the feeling of being constantly watched and perceived as a ‘dangerous’ person in public spaces. ⁶⁹ Careful monitoring of any impact of EM on clinical symptoms, especially in those with psychotic disorders, is likely to be an important factor in judicious use. Another major concern is the risk of increasing stigma. Stigma is already a significant problem for those engaged in forensic psychiatric services. ⁷⁰ It leads to anger and alienation ⁷¹ and has been shown to negatively impact treatment and recovery, ⁷² in addition to overall care quality. ⁷³ Use of EM in forensic patients results in patients potentially being subjected to two highly stigmatised labels; namely, mental illness and, due to the public understanding of electronic bracelets, that of a criminal history. ⁷⁴ Therefore, visibility of any devices used is an important factor to consider. Electronic wrist bracelets, widely adopted by the public for exercise or health-related monitoring, are currently being trialled in some prisons, and their better wearability may resolve the issues discussed above. ⁷⁵ Slimmer, lighter devices may be preferable, but would need to be designed according to security requirements and are likely to have cost implications. Studies assessing patient's experiences of wearing different EM devices whilst on leave would enable clinicians to better understand the implications of EM in relation to stigma and patient discomfort.

4. Justice

Justice refers to the fair and equitable treatment of individuals. In clinical settings, the relevant categories include, but are not limited to, distributive justice – the fair distribution of healthcare resources; rights-based justice – respect for people's rights and prohibition of discrimination; and legal justice – adhering to the law.

In the majority of medical specialities, justice is most often discussed in the context of resource allocation and access to healthcare. In forensic psychiatry, however, dilemmas arise in balancing competing claims to justice of patients, staff members, and the public when making clinical decisions. ⁷⁶ Patients may perceive that an injustice is being done to them by being made subject to compulsory and/or coercive treatment, while staff may argue for justice in the form of protection from serious assaults, and members of the public may argue for justice in reduction of risk of wider offending. The challenge for the forensic psychiatrist lies in establishing whose claim for justice to prioritise, given their duty to third parties. Forensic psychiatrists have emphasised the role of justice in guiding ethical decision making, stating it to be the broadest and fairest principle for both patients and society.^77–79

In the context of EM, the principle of justice would require that:

EM should be applied without discrimination for race, gender, socioeconomic status, or psychiatric disorder.

With respect to (a), concerns have been voiced about the negative impact it may have on Black and Minority Ethnic groups, who are both overrepresented and have higher rates of being subject to restrictive practice.^80,81 If EM were to be disproportionately applied to these groups, it would risk compounding these factors. Furthermore, as monitoring devices have typically been designed for men, healthcare professionals need to be conscious of the fact that women may be affected differently. ⁸² In the offender population, a study that analysed the experience of EM by sex found that, in comparison to men, women were less supported, and their relationships were negatively affected. ⁸³ In another qualitative study exploring women's experiences of EM, devices were seen as particularly embarrassing to wear because they signified ‘male punishment’ and portrayed them as more serious offenders than they believed themselves to be. ⁸⁴ Although women represent a minority in both forensic services and the CJS (about 6%–10%), ⁸⁵ future studies should consider how experiences may vary by sex.

The fact that EM is neither legally regulated nor widespread in forensic services in the UK creates several challenges in relation to points (b) and (c) above. Exploring differences even between Medium Secure Units (MSUs) that have implemented EM (personal correspondence), there was a lack of any standardised process for making decisions, meaning that use of EM risks being subject to the ‘postcode lottery’ effect. A non-standardised approach risks inconsistencies and disparities in the use of EM, allowing prejudices and inaccurate impressions about risk unfairly influencing decisions. It also risks use of EM as a ‘blanket’ measure that loses sight of its role in safety and rehabilitation. Concerns about the inappropriate and/or unnecessary use, given the absence of guidelines, have been raised by staff in a service evaluation. ⁸⁶ At the same time, there must be scope for decisions to be made as part of individualised care plans. Applying a decision-making tool that is too rigid risks limiting more targeted and effective use of EM as an intervention.