Documenting the Document: The Forensic Hospital Report and Its Knowledge Moves

Introduction

In March 2015, 21-year-old RJ took a sledgehammer to the interior of his parents’ residence before setting fire to his father's Mercedes Benz. ¹ The fire not only destroyed the vehicle but also spread to the home, causing an estimated $200,000 worth of damage. When police arrived, RJ's mother told them he came back to the house shortly after setting the fire and asked her if she could ‘turn this off’, pointing to his ears and indicating he was hearing voices. RJ was promptly arrested, at which time he gave a statement claiming the voices in his head told him to set the fire and destroy the home. ²

After being diagnosed with schizophrenia and substance use disorder (related to cannabis use), RJ was also found not criminally responsible on account of mental disorder (NCR) – or what only a few decades ago would have been classified as legally ‘insane’ – under section 16 of Canada's Criminal Code. As mandated by the Code, the special verdict of NCR meant RJ became subject to his province's review board, in this case the Ontario Review Board (ORB), which has jurisdiction over determining if persons found NCR should be indeterminately detained in a forensic hospital, conditionally discharged into the community (with whatever restrictions the hospital deems necessary), or discharged absolutely, meaning they re-enter society as legally free persons. The disposition RJ and every NCR person receives ostensibly hinges on the answer to the statutory question of whether they constitute a ‘significant threat to public safety’, defined broadly in case law and section 672.54 of the Code as ‘a risk of serious physical or psychological harm to members of the public – including any victim of or witness to the offence, or any person under the age of 18 years – resulting from conduct that is criminal in nature but not necessarily violent’. If they are not found to be a significant threat, by law they must receive an absolute discharge. If they are deemed to be a significant threat then they must receive either a detention order or a conditional discharge, whichever is least onerous while still providing adequate protection to the public. There is no equivalent of a warrant expiry when one is found NCR, and these persons therefore remain under the hospital and Board's control indefinitely or until they are no longer found to be a significant threat.

Three years after the index offence, RJ was still under a detention order, having been declared a significant threat to public safety at each of his yearly disposition hearings. At his 2018 hearing, the Board highlighted RJ's unwillingness to abstain from cannabis use and his alleged mental ‘decompensation’ as a result of said cannabis use as reasons why he remained a risk. As is the case at every review hearing for NCR persons in Ontario, the details of RJ's alleged decompensation and those of other events purported to be significant to the Board's assessment of risk were all outlined in a document titled the ‘Administrator's [of the forensic hospital] Report to the Ontario Review Board’ but referred to generically by the ORB as ‘the hospital report’.

Reading RJ's hospital report, hearing transcript, and other associated case materials, along with 25 additional ORB case files from 2018 (which included over 5000 pages of supplementary material), we were struck by the salience of the hospital report in the Board's decision-making processes. As we document below, the report appeared to be critical to the functioning and administration of the Board not only because of its content, but also because of its particular materiality, circulation, and temporal flexibility (parties could of course always add or subtract from the report, if needed). Drawing on insights from the fields of socio-legal studies, science and technology studies (STS), and the anthropology of documents, in this article we place our focus on the socio-legal object that is the forensic hospital report, analytically treating it as an active participant at RJ's ORB hearing. Using the tools provided by actor-network theory (ANT), we show how the report's materiality allows it to serve as a catalyst for certain knowledge translations (see, e.g. Callon, 1986; Latour, 1987), breaking down epistemic barriers by bringing together – or in the original spirit of the sociology of translation, ‘carrying across’ – different and often competing interests and ways of knowing, including those found in the criminal courts, scientific laboratories, psychiatric hospitals, and even on ‘the streets’ (e.g. Valverde, 2003), thus allowing them to pragmatically co-exist.

By treating the hospital report as an active player within the ORB's network, we are able to document the report's own ‘knowledge moves’ – moves or actions that make certain claims, decisions, and concepts within the ORB possible (see Valverde, 2005, 2007). Indeed, our core argument is that the Board's ability to claim a given person is a significant threat depends in large part on the productive interplay between the textual content of the report and its material form and presence within a particular network. Going a step further, however, our main contribution is in showing how that interplay also helps to make possible the very ‘thing’ the hospital report and the human actors engaging with it are meant to presuppose: the significantly threatening individual.

We begin the paper by discussing our methods and access, as well as the ORB's mandate generally. We then describe both the analytical and empirical justification for focusing predominantly on the materiality of the hospital report (and socio-legal objects more broadly), before describing the report's actual content, which we argue renders it a ‘hybrid’ object (see, e.g. Valverde et al., 2005). Finally, we document some of the hospital report's knowledge moves, or again, those conditions of knowledge-possibilities created by the interplay between the report's particular context, content and material form.

Method and Access

The 26 ORB case files we reviewed were obtained through access requests to the Ontario Court of Appeal, as any appeal of a review board's disposition is heard and decided by that province's court of appeal. Thus, unless there is a publication ban, all legal exhibits and documents tendered at the requisite Board hearing become part of the public record (since criminal matters in Canada are public, and the appeal of an NCR disposition is still technically, albeit curiously, considered a criminal matter). The individual case files we documented typically included but were not limited to: verbatim hearing transcripts; medical reports; letters of correspondence between the legal parties, hospitals, and doctors; letters from the NCR person to various staff members or parties; hospital reports to the ORB; the Board's official reasons for their decisions; and the court of appeal decision. All 54 Ontario NCR cases where a disposition was appealed and decided in 2018 were located, and the first 26 cases were examined.

The files were reviewed separately by the authors and iteratively coded over 1 year due to their size and depth of content. It of course must be said that these cases may not be representative of all NCR persons by the very nature of having been appealed. Yet our purpose is precisely not to make generalizable claims about the entire ORB process or the process of legal knowledge production writ large (as if there was such a thing). Instead, we endeavour to highlight, using the ORB and the case of RJ as a contextual example, the theoretical insights gained by socio-legal scholars interested in legal knowledges by taking seriously the roles played by the materiality of objects in legal decisions, roles that are expressly contingent on the specific network of the specific case in which one is asking ‘how do “they” know …’ (e.g. ‘… that RJ is a significant threat to public safety’)?

In that light, RJ's case was chosen by virtue of it being relatively ordinary within our sample, at least qualitatively. Still, we recognize that the forensic hospital report might have different effects even in similar ORB cases, hence why we follow Mariana Valverde (2007) in focusing primarily on the knowledge processes of a single case within a single ‘legal complex’, rather than asking broad questions about ‘law’. What we hope is broadly generalizable, though, is the theoretical toolkit and methodological framing we employ, especially the analytical importance of accounting for the materiality of things and texts when examining the conditions of possibility of legal knowledges and decisions.

The Analytical Toolkit: Documents as ‘Actors’

One of ANT's key insights is to break down, or ‘bracket’ (Riles, 1998, 1999), the human versus non-human and the natural versus social divide that has been a hallmark of modern Western science and culture, albeit a mistaken one (see Latour, 1993). ANT therefore calls on researchers to view non-human entities as potential actors with agential powers (e.g. Callon, 1986; Latour, 1987, 2005), even if we choose to view those powers as simply analytically useful as opposed to ontologically real. We have little interest here in the quasi-philosophical debates over whether objects ‘actually’ have agency. Like Valverde (2007), we prefer to use ANT pragmatically, as a tool to help us think through the conditions of possibility behind certain medico-legal decisions, including how actual people (or institutions (or networks)) lay claim to knowledge. Whether or not we attribute agency to objects, objects do obviously allow, encourage, demand or even forbid humans to say and do certain things. At its most basic, then, what our use of ANT provides is a way of empirically accounting for the possibilities and prohibitions that an object presents within a given actor-network, and how it might constrain or make possible various knowledges and claims regardless of who, or what, we attribute those claims to in the end (see also Cloatre, 2008).

The relatively few contemporary socio-legal studies that engage with ANT typically do so with respect to complex technoscientific artefacts, such as rape kits (Quinlan, 2017; Shelby, 2020), forensic DNA evidence (Kruse, 2016), or Sentencing Information Systems (Hutton, 2012). These studies tend to share the goal of uncovering the contingencies behind the creation of their complex objects of interest, and how these processes come to be taken for granted – or what STS scholars might call ‘black boxed’ (e.g. Latour, 1987) – despite them being fundamentally (and again, the more courageous might say ontologically) the product of messy and conditional actor-network relations. In line with these studies, we also stress the importance of accounting for the typically invisibilized processes related to how even mundane objects, like documents and reports, are assembled, specifically how a myriad of actors with different goals, interests and agendas come together to create what appears to the ORB as the coherent and united hospital report. However, these studies often focus solely on the contingencies in the creation of their objects, and not on the possibilities which that process and the object itself create. What we show here is that by opening the black box, the equally contingent nature of an object's or document's social effects can also be exposed.

As a result of this analytical framework, as well as our object of focus, we merge the tools of ANT with theoretical insights from the anthropology of documents (see, e.g. Hull, 2012; Riles, 2006). In a review of ethnographic studies on bureaucratic documents, Hull (2012) shows how much of this scholarship treats documents as ‘mediators’ that, in the words of Bruno Latour, ‘transform, translate, distort and modify the meaning or the elements they are supposed to carry’ (Latour, 2005: 39, as quoted in Hull, 2012: 253). Documents therefore not only serve ‘as neutral purveyors of discourse’ but also mediate ‘the significance of the signs inscribed on them and their relations with the objects they refer to’ (Hull, 2012: 253).

Admittedly, Quinlan (2020) does place analytical focus on ‘texts’ in her study of the socio-political construction of the rape kit backlog in the United States, and Arboleda and Valverde (2021) examine the numerals 1 through 6 in their analysis of the Columbian estrato system, showing how those numbers in that context ‘acquired a life of [their] own’ (p. 686), including, similar to our study, how the meanings of the numbers transformed as they travelled amongst and between different institutions. Additionally, Cloatre (2008) views the pharmaceutical patent as an actor, shifting the focus of analysis from the patent holder to the patent itself. However, these authors mostly emphasize the productive role of the meanings embedded within the content of their texts and numbers and patents, rather than the role of the physical material via which the content travels. While the content of a text is of course critical to any analysis of its role in knowledge production, ANT shows us how the material form – or medium or vessel or container – of the content also conditions its possible effects.

Thus, our contribution is not only to show how the material form a document takes is crucial to the more self-contained processes of discursive mediation. Rather, we also show how a document's content, materiality and contingent construction work together to help other actors bring new objects and concepts into existence, which in turn allows them to make certain decisions. Instead of focusing on either the content of the document or its material form, by examining both, together and at the same time and in their given context, we show how their interplay makes possible the production of entirely new things and concepts and knowledges. In this way, the forensic hospital report can be said to help ‘produce the world that it purports to describe’ (Best and Walters, 2013), or in the context of the ORB, it can be said to help produce the significantly threatening individual it was created to confirm.

The Ontario Review Board

In Ontario, Canada, review boards tasked with determining an NCR person's disposition must be comprised of at least five members. They have to include two psychiatrists (if only one psychiatrist is present, a psychologist or other mental health practitioner can also serve), a federal judge or lawyer with 10 years’ experience (who usually serves as the Chairperson and runs the proceedings), and a public member. At each annual hearing, Board members typically hear testimony about the NCR person's past year and progress from the person's attending psychiatrist (appointed by the associated forensic hospital) and receive disposition recommendations from lawyers on behalf of the NCR person, the forensic hospital and the provincial attorney general (represented by a Crown prosecutor).

The attending psychiatrist (always) and the NCR person (sometimes) are usually the only persons who ‘testify’ at the hearings, and although these are technically meant to be informal proceedings, taking place in the hospital's boardroom or ORB's offices, they remain steeped in criminal legal procedure and symbolism. The Board does make a point of trying not to refer to the NCR person as ‘the accused’ during hearings (with the occasional slip); however, they are still referred to as the accused in all official documents, itself a curious convention considering a finding of NCR is itself a verdict, and thus an NCR person is no longer accused of anything. The person testifying is also called a witness, can only answer questions being asked of her or him by counsel or Board members, and is even subject to cross-examination. The testimony of these witnesses (but again, usually only the attending psychiatrist) along with the printed hospital report typically comprise the entirety of evidence from which the Board must render its decision. Somewhat tautologically, the attending psychiatrist almost exclusively testifies to what is already written in the hospital report, often quoting the report directly when answering questions.

At RJ's ORB hearing in 2018, the decision that he was a significant threat was reached by the Board unanimously, despite RJ not committing any acts of physical violence in his three years under the Board's supervision, either while in hospital or in public when allowed out by the hospital. The detention order was based on a recent alleged psychotic relapse lasting about a month, which manifested in a belief that a previous assault against his father (which took place prior to the index offence) was justified because RJ heard his father say he ‘would like to sleep with [RJ's] girlfriend’ and that co-patients and staff could presently read his mind. During this time, he also threatened to hit his father with a belt after an argument but did not physically assault him.

The key question at the hearing appeared to be whether RJ's recent psychotic episode was caused by his refusal to abstain from cannabis, a violation of his detention order and the theory put forward by the hospital and Crown counsel (and the one the Board eventually agreed with). This debate formed the crux upon which the Board's judgement hinged, as the defence attempted to show that RJ's mental state could remain stable even when he used cannabis, since abstention from cannabis was the one disposition condition RJ refused to accept; had he accepted and abided by this condition he would have ostensibly been granted a conditional discharge. The hospital, however, sought to causally equate his use of cannabis with a propensity for mental decompensation (i.e. the inability to cope with stressors, leading to a relapse of his schizophrenic symptoms), and by extension imply that he was a significant threat to public safety because he was prone to decompensate.

In the rest of this article, we empirically document the hospital report's role in these ‘knowledge games’, specifically how the hospital (and Board) successfully translated the statutory significant threat question into a question about RJ's cannabis use and mental state.

The Hospital Report and Hybridity

In this section we show how the forensic hospital report includes a smorgasbord of claims and knowledges that arise out of, and may only be possible within, certain epistemic cultures (Knorr Cetina, 2007). In some files, we even see the hospital report refer to and analyze recent case law on who qualifies as a significant threat when justifying its position that the NCR person would no longer meet the legal threshold required to detain them, much to the chagrin of the board members who argued significant threat was also a medical determination. In short, here we recognize and account for the fact that the report itself is networked. Despite it appearing as a uniform, internally consistent document, this is only the result of it being black boxed. We argue the report is actually the result of the ‘summing up of interactions through various kinds of devices, inscriptions, forms etc, into a very local, very practical, very tiny locus’ (Latour, 1999: 16), a locus that allows it to appear as a homogenous, uncontroversial and uncontested document once it reaches the ORB's members.

Immediately exposing itself as a document of hybridity, the title page of RJ's hospital report includes – among basic identifying details such as RJ's name, date of birth, and ORB file number – a list of the ‘Index Offence[s]’ for which he was found NCR, which is situated directly above his ‘Current Diagnosis’ of schizophrenia and cannabis use disorder. In the bottom corner of every page is RJ's Medical Record Number and Contact Serial Number, which can be used by other hospitals to access his complete medical history.

The substantive portion of RJ's hospital report begins by describing the circumstances of the events for which he was found NCR, although it is unclear exactly where the details of these descriptions came from. It then proceeds to describe his entire ‘social history’, beginning with the caveat that because RJ was a ‘poor historian’, often providing ‘contradictory facts’ (e.g. surrounding alleged instances of past parental abuse), this history is ‘primarily from his parent's perspective’ and from what the hospital could obtain from healthcare records. Without acknowledging how or why this information might be relevant to the Board's or even the hospital's assessment of risk, this social history includes details about his family's emigration to Canada as refugees, his parents’ current employment status, details of his mother's pregnancy (e.g. ‘she had been in the hospital on bed rest for the majority of her pregnancy’), any traumatic incidents (including when RJ's grandmother accidentally spilled boiling water on him when he was 13-month-old, with the added detail that ‘For a year after the incident, his mother took him to the church daily for a nun to care for the burns’), his entire school and romantic history, and history of substance use. This is followed by his criminal record and complete psychiatric history. The report then includes all the observations from previous years’ hospital reports that were drafted for his past ORB hearings.

Somewhat surprising given current work on actuarial risk assessments and the ‘new penology’ (see, e.g. Feeley and Simon, 1992; Hannah-Moffat, 2019) is the apparent lack of deference given to actuarial risk assessment methods in RJ's case and our ORB files generally. Although the results of actuarial assessments were included at some point in every hospital report we reviewed (but not in every reporting year, and they were not mentioned at each hearing), they were always far overshadowed by clinical notes, including summaries and verbatim excerpts from the daily logs of nurses and staff members at the hospital, and detailed descriptions of ‘notable incidents’. What is notable or significant, however, is of course determined from the viewpoint of the hospital, or more accurately, the specific but often unknown author(s?) of that section who decides what is relevant from the immense record of notes accumulated each year. Of particular interest, RJ's 2018 report highlights that despite him being granted the ‘privilege’ of living in the community for part of the year, he was brought back into the hospital three times, all ‘as a result of a breach of his ORB disposition secondary to marijuana use’. More generally, RJ's report focuses extensively on his inability ‘to discontinue his marijuana use’ and those (failed) attempts to minimize ‘the long-term implications of continued [marijuana] use on his mental well-being’.

As mentioned, each report ends with the treatment team's disposition recommendation to the ORB. That this recommendation appears last is not insignificant, since, as we discuss below, it allows the report to read as a continuous and self-contained narrative culminating in what should now be the obvious opinion that RJ remains a threatening individual. These opinions are then always immediately followed by multiple signatures from the attending psychiatrist and various hospital officials.

Since the judgement of risk made by the ORB is based on many different types of knowledges produced by a multitude of actor-networks, the key claim that closes out RJ's report, as well as every other report we reviewed (as there was not a single appeal initiated by the Crown) – that the NCR person ‘continues to meet the threshold for significant threat to the safety of the public’ – should be viewed as a hybrid claim, rather than, say, a strictly medical or legal, or even medico-legal claim (Latour, 1993; Valverde, 2003). ³ As Hull (2012) notes in the context of documents generally, in our case certain signs and symbols within the hospital report, such as the ever-present hospital logo and RJ's medical reference number, mediate the messages behind the ostensibly discrete facts contained within it. For starters, this helps render all claims in the report appear as if they have the force and validity attributed to expert medical knowledges. The statement that ‘RJ's cannabis use causes decompensation’ obviously means something very different (possibly nothing) if written on a blank page instead of within a mass of sheets bound under the hospital's logo and the heading ‘Notable Incidents’, or even if it simply came out of the mouth of a lawyer or psychiatrist at the actual hearing.

Indeed, being able to call forth and reference a claim backed by ‘the hospital’, as if that institution and the people within it were a singular entity (see, e.g. Law, 2004), simply by citing a page number or quoting the report is but one important knowledge move sanctioned by our document, moves which we can now begin to describe in detail.

Documenting our Document's Knowledge Moves

Focusing on the case of RJ, in this section we empirically outline some of the specific knowledge moves hospital reports both perform and enable, moves that we argue are crucial to the contingent constitution of the significantly threatening individual in each case. Like Valverde's (2007) analysis of the knowledge moves of appellate courts, we stress the moves outlined here are not exhaustive, nor are they necessarily mutually exclusive; certain knowledge moves may beget or depend on the possibility of other moves/actors. However, here we wish to highlight the moves we think are most likely to be taken for granted by those interested in the processes of legal knowledge production and decision making, predominantly the ones arising from the particular material (rather than purely discursive) qualities of our socio-legal objects of interest.

Conclusion

Through our pragmatic application of ANT, we see that the forensic hospital report serves as an important player in the ORB's knowledge games, actively facilitating translations between the various parties to the risk assessment hearing. If, as ANT posits, knowledges and facts (and even power) are produced via the stabilization of networks of actors – for as Annemarie Mol (2002) reminds us, ‘To be is to be related’ (p. 54, emphasis in original), and as Foucault (1990) told us long ago, power is ‘strictly relational’ (p. 95), exercised between actors rather than by actors – then we should also be attuned to how objects contribute to the processes of stabilization, even if we simply wish to ask ‘how does this human, in this case, claim to know x?’

As we hope to have shown, forensic hospital reports are not merely documents that contain discrete facts and observations that are then applied and interpreted by human actors. Rather, its material presence also contributes to manufacturing the very concept of the threatening individual that its discrete facts are assumed to be presuppose. More practically, then, these documents have serious effects on the legal status of NCR persons through their ability to allow the Board to claim they are a significant threat to public safety based on facts that were never necessarily significant nor threatening.

Of course, the ORB's network also includes many other documents and objects not explicitly discussed here, including those from other jurisdictions such as civil statutes and public health acts/forms (see Shaw et al., 2023), which may themselves influence the creation of the forensic hospital report and the risk-knowledges we claim it helps produce (hence the importance of the network). However, at our level of analysis, it is clear that without the particular construction of the hospital report, certain claims and decisions rendered by the all-powerful Ontario Review Board may not have been possible.

Although we stressed the potentialities of the physical ‘ink and paper’ report, since that was the form the report took in our case files, we recognize that different knowledge moves would likely be elicited if the document were to change to a new material form (e.g. if it remained solely as an electronic document, viewed and transported digitally). The materially contingent nature of knowledge production we highlight here would again be consistent with the observations of Van Oorschot (2014), who found that judges struggled to ‘see their cases’ when the filing system of their court changed from paper to digital. The judges’ knack for constructing the case out of the mass of physical documents at their disposal had always relied on more traditional processes of ‘material mediation’, such as highlighting and annotating via pen and paper – processes that could no longer be completed in the same way when documents started coming across their computer screens as opposed to their literal desks. The effect was a different conceptualization of the case altogether.

In RJ's hearing, we see a similarly contingent construction via the hospital report: the content of the report and its material form work together to mediate each other as well as the significantly threatening individual already presumed to be ‘out there’. Thus, we believe scholars interested in analyzing legal decisions and knowledges, and in particular their conditions of possibility, should be attuned to the productive interplay between the discrete claims and facts existing within knowledge networks, and the specific materiality of the socio-legal objects and actors that not only carry them, but through that process also help to produce the very facts and things they carry. In particular, we foresee opportunities to merge this analytical framework with other programmes related to risk assessment, such as the new penology and the purported rise of actuarial methods within legal complexes. If nothing else, even a pragmatic use of ANT can help expose if and when we fall into the trap of assuming that some conception of risk is pre-given, instead reminding us that predictive tools and their related objects do not simply tell us if someone is a risk, but that they also help to bring the risky individual into existence.