Community Treatment Orders – for whose benefit?

The introduction of the Mental Health Act 2007 in November 2008, brought about significant changes to the Mental Health Act 1983.

Of those changes, the key and arguably most significant change was to the provision of mental health treatment in the community.

The Act introduced a new form of community order referred to as Supervised Community Treatment Orders (SCT) or more commonly CTO’s.

Prior to the 2007 Act, it had been a central feature of mental health treatment in the community, that once discharged into the community, a patient could not be compelled to comply with treatment, save in the case of forensic patients discharged conditionally from hospital.

Compliance with treatment in the community was voluntary and a patient was legitimately entitled to refuse treatment in the community. In the absence of a patient becoming detainable under the Mental Health Act, a patient could not be forced to comply with medication in the community.

Supervised Community Treatment Orders alters this position. It now provides those providing mental health services with the authority to enforce medication and other forms of treatment in the community.

The significance of this change to the liberty of patients in the community should not be underestimated. A patient can now be compelled to comply with medication or other forms of treatment once released into the community, regardless of their wishes and should they not comply with conditions under which they have been released from hospital they can be re-admitted to hospital.

This places non-forensic patients on a similar footing with requirements already in force with mentally disordered offenders convicted of serious offences and placed under restricted hospital orders and who have been released into the community under a conditional discharge.

Whilst the full effectiveness of this order has yet to tested with time, it already has had a major impact upon patient care in the community.

The move towards compulsory treatment in the community is one that has been introduced in a number of countries including New Zealand, Australia, Canada, Israel, amongst others.

The Government argued during the Bill’s passage through Parliament, that for suitable patients, SCT met the need for a framework for treatment and safe management in the community, instead of detention in hospital. This so-called modern approach was said to “strike a balance between a individual’s autonomy and protection of the patient and the public. (Hansard, HL Vol.687, cols.656,657)

Whilst this approach appears reasonable, the Government prior to the Bill’s publication, commissioned a literature review of research available in those countries that used different forms of SCT.

It should be noted that the resulting report concluded that there was very little conclusive evidence to demonstrate SCT’s to be either effective or ineffective.

It must therefore be questioned whether; SCT’s were introduced mainly for enforcing treatment in the community with the threat of readmission to hospital rather than for its actual effectiveness in treating patients in the community.

Whilst it is acknowledged that some patients stop complying with medication and treatment upon leaving hospital, which that this can result in relapse and readmission to hospital, the so called “revolving door patient”, the readiness of clinicians to use CTO has been surprising.

Although discharge under CTO’s is by no means automatic, it had been anticipated by the government that approximately 450 patients would be released on CTO’s in the first 12 months of its being in operation. However that figure had been severely underestimated and the figure now stands in excess of 2000 within that same time period.

In the long term there must be a danger that we shall drift into CTO’s being the norm rather than the exception upon patients being discharged from hospital.

There is considerable prejudice amongst the general populace regarding the risk those suffering from mental disorders are perceived to pose. The shift from a patient being self determining regarding accepting treatment, towards imposed treatment of those suffering from mental disorders, whether detained in hospital or not, reinforces this perceived view and further reduces the human rights of those deemed to be suffering from mental health disorders.

Article 5 (1)(e) of the ECHR place those deemed to be of unsound mind and detained under a procedure prescribed by law outside of the protections against deprivation of liberty and the case of L v Sweden, App.No.10801.84 reinforces this in terms of CTO’s.

That case held that if a CTO was made in the interests of the patient’s health or to protect the rights and freedoms of others (note the emphasis on the rights and freedoms of others and its clear implication that those suffering from mental disorders pose risks to others), there would be no interference with the patient’s rights under Art.8 of the ECHR, provided that the making of the order is necessary in a democratic society and is done in accordance with the law.

Similarly, Richard Jones in his Mental Health Act Manual (11th Edition) voices the opinion that similar considerations would apply to Art.11, which provides for a right “to freedom of association with others”.

SCT’s therefore further peels away the rights of those suffering from mental disorders under the guise of the protection of others.

It should be asked however, which group as a whole cause more harm to others in society, those deemed to be suffering from mental disorders or those ‘normal’ members of society without any form of mental disorder?

The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. The law may have changed since this article was published. Readers should not act on the basis of the information included and should take appropriate professional advice upon their own particular circumstances.