Community Treatment Orders

The Mental Health Act 1983 [‘the 1983 Act’] was amended from the 3rd November 2008 by the Mental Health Act 2007 [‘the 2007 Act’] so as to introduce a new regime of Supervised Community Treatment for those with mental health disorders. Under this new regime those deemed by both their Responsible Clinician [‘RC’] and an Approved Mental Health Professional [‘AMHP’] to meet the criteria can be made the subject of a Community Treatment Order [‘CTO’] under s17A of the 1983 Act.

Whilst the 2007 Act did not abolish extended leave under s17 of the 1983 Act, the related Code of Practice, which professionals must have regard to when making decisions, requires that prior to granting leave under s17 for any period of 7 consecutive days or more, the RC must consider whether the patient would be better managed under a CTO.

The Criteria

In order to be considered for a CTO the patient must, firstly, be liable to be detained in hospital for the purposes of treatment. This will include those who are detained under section 3; 37 or 51(5); 47 or 48; 45A where the limitation direction has ceased to have effect and also those who are currently on extended leave from hospital under s17 of the 1983 Act. It does not include those held in hospital or elsewhere for the purposes of assessment. Nor will it allow for those previously managed by way of aftercare under supervision under s117 (2A) of the 1983 Act to be put under a CTO, despite the fact that this section was abolished by the 2007 Act.

In addition the RC will, prior to making the order, need to be satisfied that:

  • the patient is suffering from a mental disorder of a nature or degree which makes it appropriate for him to receive medical treatment; and
  • it is necessary for his health and safety or the protection of other persons that he should receive such treatment; and
  • subject to his being liable to be recalled to hospital, such treatment can be provided without his continuing to be detaining in hospital; and
  • it is necessary that the RC should be able to exercise the power to recall the patient to hospital for treatment; and
  • appropriate medical treatment is available to him.

As part of assessing whether the power to recall is necessary, the 1983 Act requires that the RC carries out a risk assessment to consider, in particular the risk of deterioration in the patient’s condition were he not be to detained in hospital. The purpose of this is to ascertain whether, in light of the patient’s own history of mental disorder and any other relevant factors, he is likely to comply with the CTO and any conditions attached to it. If he is not then the RC must conclude that a CTO would not be appropriate and can then go on to consider whether s17 leave should be granted instead.

If, however, the RC is satisfied that the patient would likely comply with the CTO and any conditions attached to it and is satisfied that the above criteria are met, the RC can only make the CTO if an AMHP has also set out in writing that he believes these criteria are met and that the making of the CTO is appropriate. There is no requirement that the AMHP must have previously been known to the patient or be involved with the patient’s case management, but where they disagree with the RC then the Code of Practice makes it clear that it is not appropriate for the RC to approach another AMHP for an alternative view.

Ultimately whether to place someone on a CTO is a decision for the RC and AMHP to make. The 1983 Act does not require that the patient explicitly consents to the making of the CTO; however the purpose behind the CTO is to rehabilitate the patient into the community. If the patient is resistant to treatment or any of the conditions attached to the CTO then that purpose is likely to fail. As such, the Code of Practice, at paragraph 25.14, sets out that the patient and, where appropriate their nearest relative, carers and anyone appointed under the Mental Capacity Act 2005 to make decisions on their behalf, will need to be consulted about any treatment to be given in the community and the terms of such an order. Both the RC and AMHP should be satisfied that the patient will be fully compliant with the proposed treatment regime and any conditions as, unless they are so reassured, it would call into question whether the conclusions of the risk assessment required by s17(6) of the 1983 Act were accurate.

Likewise, although the Tribunal can recommend that a person be considered for supervised community treatment, it will still be for the RC in conjunction with the AMHP to determine whether a CTO would be appropriate for the patient, having followed the usual assessment process.

The CTO must be made in writing and must comply with The Mental Health (Hospital, Guardianship, Community Treatment and Consent to Treatment) Regulations 2008 [SI: 2008 No. 1184]. Under these regulations the standard form (the CTO1) must be completed and submitted to the hospital managers responsible for the patient’s care.

 

Planning for the CTO and setting conditions

The code of practice (pg. 25.16) expects that the patient and any other relevant person is consulted over the conditions that will be attached to the CTO and that a care co-ordinator is identified to prepare an appropriate care plan in consultation with a multi- disciplinary team and the patient’s GP.

However, ultimately it is for the RC and AMHP to determine what conditions to apply. They must do so by agreement and on the understanding that the conditions are necessary or appropriate to ensure the patient receives medical treatment and/or that the conditions will protect against risk of harm to the health and safety of the patient or the public generally. There can be no other justification for imposing a condition on the making of a CTO.

Section 17B(3) of the 1983 Act clearly states that two conditions must be attached to any CTO made, namely that the patient make himself available for medical examination when it is needed for consideration of extension of the patient’s CTO under section 20A and, if it is proposed to give a certificate under Part 4A certificate authorising the patient’s treatment in the community, to make themselves available for examination to enable the certificate to be given. Any other conditions attached to the CTO must relate directly to the patient’s circumstances; the RC must be satisfied that any condition is necessary or appropriate for one or more of the following purposes—

(a)   ensuring that the patient receives medical treatment;

(b)   preventing risk of harm to the patient’s health or safety;

(c)   protecting other persons.

 

There is an expectation that conditions will be kept to a minimum and seek to restrict the patient’s liberty as little as possible; they must also have a clear rationale behind them and be clearly expressed so that the patient is able to readily understand what is expected of them. The patient must also have access to any services necessary to ensure that they are able to comply with the conditions. That said the conditions themselves can be set quite widely determining where the patient is to live (though it should be noted that it does not give the RC power to sign a tenancy on the patient’s behalf), where and how they are to receive medical and psychological treatment, and preventing the patient from engaging in conduct or associating with individuals if doing so poses high risk of their mental health deteriorating.

The code of practice makes clear that the attachment of conditions should not unnecessarily encroach on the individual’s autonomy. This position is supported by the health minister’s statement to the House of Commons made when the 2007 bill was being debated.  Legal challenges that CTOs are in breach of the individual’s article 3 or 11 ECHR rights are unlikely to be successful because it should be easy to demonstrate that the order (including conditions) was necessary in a democratic society and made in accordance with the law. In addition the 2007 Act introduced a number of additional safeguards, discussed later, ensuring that individuals would have greater access to the tribunal system so that such measures would be independently scrutinised.

The government has advised that CTO conditions should not be set which would deprive an individual of their liberty within the meaning of Article 5 of the ECHR. Where the RC believes conditions should be imposed that amount to a breach of article 5 he or she could determine that extended leave under s.17 of the 1983 Act would be the more appropriate provision because where a patient is subject to s17 leave they are still subject to the original provision under which they were detained and can be returned to hospital without the need for further assessment. Alternatively the RC or responsible hospital managers could to apply to the Court of Protection, prior to the implementation of any such measures, to confirm that the conditions could be lawfully imposed as necessary, proportionate and in the best interest of the individual. Chapter 28 of the Code of Practice makes clear that the procedure as set out under the Mental Capacity Act 2005 (the Deprivation of Liberty Safeguards [‘DoLS’]) is still applicable to those subject to supervised community treatment where they are accommodated in a hospital or care home for either physical health needs or in a care home for mental health needs provided that any such regime is not in conflict with any of the conditions attached to the CTO by the RC.  However, where treatment is required in hospital for mental health needs and the person lacks capacity to consent then any detention should once again be made subject to the powers of the 1983 Act rather than the Mental Capacity Act DoLS procedure.

Once the RC and AMHP decide to make a CTO the patient remains subject to any conditions that are attached to the CTO for as long as that CTO remains in force. Again the Code of Practice requires the RC to notify the patient and any other relevant persons (including the multi-disciplinary team and GP who will be responsible for providing treatment in the community) of the conditions and the services which will be available for the patient in the community. The 1983 Act imposes a duty on hospital managers to take steps to ensure that patients understand what the CTO means for them and their rights to apply for discharge. This includes giving patients information both orally and in writing and must be done as soon as practicable after the patient goes onto supervised community treatment.

There is scope under the 1983 Act for the RC acting under powers conferred by s17B(4) and (5) to vary or suspend any condition. Any change to the conditions must be in writing (again reg.6 of the 2008 Regulations requires that the RC complete and submit to the hospital managers form CTO2). It is not necessary for the RC to obtain the approval of an AMHP to do this.

The Effect of a Community Treatment Order

Once made the CTO remains in force initially for six months and can subsequently be extended for a further six months, then for further periods of one year at a time.

Before the CTO can be extended, the RC must examine the patient in the two months preceding the expiry date. The RC must make sure that one or more people who have been professionally concerned with the patient’s treatment are consulted, and that their views taken into account. If the CTO is to be extended a report must be completed by the RC and the AMHP and sent to the hospital managers. On receipt of the report, the hospital managers can exercise their right to discharge the patient under s23 MHA but if they chose not to the hospital managers have a duty to ensure the patient is informed that they have received a request to extend the CTO. Following any extension of CTO the patient and their nearest relative should be informed.

Section 17D of the 1983 Act makes clear that whilst a person is subject to a CTO the previous application for admission to hospital for treatment they were subject to does not lapse, nor can it be renewed under s20 of the 1983 Act. Instead the powers associated with the earlier admission are suspended. The power that permitted admission into hospital will therefore not expire for the duration of the CTO, but the patient is not liable to be detained under the earlier provision for the period he remains a community patient.

 

Recalling a community patient to hospital

An RC can, under powers conferred by s.17E of the 1983 Act, recall a community patient to hospital provided that they are satisfied that the community patient requires medical treatment in hospital for his mental disorder and there is a risk of harm to him or other persons is he were not treated in hospital.

This power can be exercised even where the individual is compliant with any conditions attached to the CTO. However there is also provision to recall where the patient has breached one or more of the compulsory conditions attached to the CTO even where this would not be to treat the patient but rather to enable an examination of the patient to ascertain whether the CTO should be renewed or allow a SOAD to give approval for treatment in the community under part 4A MHA. This sets out where treatment can be given in the community without capacitated consent.

It is worth noting that s17E does not give explicit power to recall the patient to hospital purely because of a breach of a non-compulsory condition. In such circumstances the RC would only have power to do so were they able to demonstrate that it was necessary to provide treatment in hospital for the mental disorder. It is for this reason that particular care needs to be given at the outset as to whether a CTO would be the appropriate mechanism for rehabilitation. The power to recall a community patient is limited whereas a person on extended leave under s17 of the 1983 Act can be detained at any time the RC or hospital managers deem it necessary. As such there is not the same level of compulsion under SCT as exists in relation to extended leave.

Before issuing any notification of a recall the RC should first consult with the hospital where it is proposed to detain the community patient as there is no obligation on the hospital to admit the patient purely because the recall notice has been issued.

In addition although there is a requirement under the 1983 Act that the community patient is notified of the recall, where the patient refuses to accept this or can not be found this can be served on their last known address. The hospital managers will then have lawful authority to detain the patient and, until they are so detained, he or she will be deemed AWOL.

The authority to detain a patient subject to a recall notice lasts for 72 hours from the time that they arrive at the hospital. The 2008 regs require the hospital managers to record the date and time of the patient’s detention on the CTO4 form. Where the patient is already in hospital, as a voluntary patient, the RC can still decide to recall them under s17E powers; the effect of this will be that the patient will then not be free to leave for the 72 hour period. During the 72 hours it is possible for the patient to be transferred to another hospital without the need to re-issue any notification (s.17F) but during this period the RC must determine whether to release the patient back into the community under the same CTO albeit, if necessary, with new or varied conditions, or to revoke the CTO. If the RC determines that it is necessary to revoke the CTO they must first determine that the patient meets the criteria for detention as set out in s3 of the 1983 Act and obtain the agreement of an AMHP that this is the case.

There is no authority under s17E-F 1983 Act to detain a community patient for longer than 72 hours and therefore, unless the CTO has been revoked in this time, the patient will have to be released from hospital.

 

Effect of revocation of a CTO

The RC and AMHP can only determine that the CTO will be revoked where they are both satisfied that the patient meets the criteria for compulsory admission to hospital for treatment as set out in s.3 of the 1983 Act. If, following an assessment, both the RC and AMHP are satisfied that the criteria for admission under s3 of the 1983 Act are met, it is as if the CTO had never been made and the original authority for detaining the individual again becomes active.

The revocation must be in writing (reg.6(8) of the 2008 regs. requires completion of CTO5) and the form must be completed by both the RC and AMHP. It must be submitted as soon as practicable to the hospital managers where the person is to be detained and, if this is not the responsible hospital, the responsible hospital also.

The practical implications for hospitals currently detaining the individual but which were not named within the original application under s3 are dealt with by s.17G(4) of the 1983 Act. This allows the hospital where the patient is being held to be treated as if named within the original authorisation and at the time that the CTO was made.

In addition s.17G makes clear that hospital managers should use the date of the revocation as the date of admittance under s3 of the 1983 Act for the purposes of referral to the tribunal or for renewals under s20 of the 1983 Act.

 

Discharging the CTO

The patient will be automatically discharged from a CTO when it is not extended under s20 or if it is revoked under s17F(4) of the 1983 Act.

Alternatively the RC, nearest relative or hospital managers has authority under s23 of the 1983 Act to discharge a patient from CTO.

Where the nearest relative seeks to exercise their powers under s23 the discharge can be barred by the RC if, following the notification, the RC provides the managers with a report certifying that if the patient were to be discharged from the CTO they would be likely to act in a manner dangerous to other persons or to themselves.

The CTO and liability to detention will also be discharged automatically if the application for admission under s3 ceases to have effect or if the patient is received into guardianship (s.8(5) MHA 1983).

The patient also has the right to apply to the hospital managers for discharge or to the Tribunal, who could then determine to discharge under s72 of the 1983 Act.

 

The community patient’s right to challenge under SCT

The 2007 Act amended s.66 of the 1983 Act so as to offer any person subject to a CTO the opportunity to apply to the tribunal whenever a CTO is made, revoked or extended even where the extension is made and patient has been AWOL for more than 28 days.

The patient’s nearest relative may also apply to the Tribunal if they have applied to discharge the patient (under powers set out in s23 of the 1983 Act) but this has been barred by the RC.

Under section 68 of the 1983 Act hospital managers are now under a duty to refer to the Tribunal where the patient has been detained or subject to a CTO for 6 months and has not applied themselves, or has applied but has withdrawn their application; or if a period of 3 years has elapsed since an MHRT last considered an application, (in the case of someone under 18 the period of time is reduced to one year); or if a CTO is revoked under s.17F then the referral must be done as soon as possible.

 

The Tribunal can discharge a CTO or recommend that a detained person be discharged subject to a CTO, but can not vary or discharge the conditions attached to a CTO.

 

What issues should be considered by professionals when determining whether to make an individual subject to supervised community treatment and how does this relate to similar regimes for care in the community such as guardianship or extended leave of absence?

Chapter 28 of the 1983 Act Code of Practice provides guidance as to when a practitioner may chose to grant extended leave, apply for s.7 powers of guardianship or make the individual the subject of supervised community treatment. Essentially it is for the RC (where necessary, in consultation with an AMHP) to determine this on the basis of risk to the individual of their mental health breaking down and whether there is the need to compel them to undergo treatment within the community.

If the issue is primarily one of residence or of social welfare then it is likely that Guardianship will be more appropriate. Where there is an obvious or significant risk that the individual will require further compulsory in-patient treatment, or the period of leave is for a fixed or trial period then leave under s.17 is likely to be more appropriate.

In addition the RC must pay particular care to ensure that services deemed necessary to ensure compliance with any condition exist and are easily accessible for the individual. Where disputes arise between Local Social Services Authorities and/or the PCT responsible for commissioning any services that would be necessary to enable the CTO to be made should not be allowed to prevent a CTO being made if it is deemed appropriate to the patient’s circumstances.

How does the regime set out within the 1983 Act for provision of services within the community compare to provision by way of the Mental Capacity Act 2005 Deprivation of Liberty Safeguards?

The advice within the 1983 Act Code of Practice is that neither CTO conditions nor guardianship should normally be used to effect a deprivation of liberty.

Where the RC is considering using powers set out within DoLS procedure to deprive a person of their liberty s/he will need to carefully consider whether the additional powers and protection afforded to professionals, carers and those subject to such restrictions under the 1983 Act that are offered in comparison with the DoLS procedure would amount to a cogent reason for ignoring the advice in the Code.

Under changes made by the 2007 Act there is now explicit authority within the 1983 Act in relation to those subject to a guardianship order, to convey them to a specified place of residence and to return them if AWOL. That will obviate the need for a DoLS authorisation if the means of conveyance even amounts to a deprivation of liberty. In most cases the manner of conveyance will amount to mere restriction of liberty and if the person lacks capacity by reason of their mental disorder the MCA would give sufficient authority under Best Interests in any event.

Similarly those on s.17 extended leave can be called back to hospital at any time and detained. There is far less compulsion in respect of those subject to supervised community treatment, but it is still possible to require an immediate recall to hospital if they fail to comply with either of the compulsory conditions or because the RC believes they require medical treatment in hospital and there would be a risk to the patient’s or another’s health and safety were they not returned to hospital. In all three cases the RC, responsible hospital mangers or an AMHP can require the assistance of the police or any other named individual to facilitate such a return. There is no such power or expectation that the police will assist under the DoLS procedures.

In addition to these new powers, those subject to supervised community treatment, extended leave and guardianship continue to enjoy significant protection already set out within the 1983 Act such as the safeguards set out in s57 and s58 of the 1983 Act regarding provision of certain medical treatments where the patient lacks capacity to consent or is unwilling to do so. In addition the 1983 Act provides a requirement to consult the nearest relative before imposing any regime. The nearest relative also has significant powers regarding applications to discharge the patient and make a referral to the Tribunal all aimed at offering a layer of protection that does not automatically exist within the DoLS regime. Under the DoLS procedure the nearest relative has no role to play. The nearest equivalent is a relevant person’s representative [‘RPR’]. The supervisory body must appoint a RPR where a deprivation of liberty will be authorised, but not otherwise. Where appointed the RPR will have access to information and can request a review, make a complaint and, if necessary, obtain assistance from an Independent Mental Capacity Advocate and apply to the Court of Protection on behalf of the person subject to DoLS. However given that an application to the Court of Protection is likely to be far more complex, both in terms of cost and procedure, that a referral to the Tribunal it could be argued that this does not offer the same level of independent scrutiny as is available under the 1983 Act to the nearest relative.

Arguably those subject to the 1983 Act, and particularly guardianship, benefit from a more robust system of review. For example, a Local Social Services Authority must arrange for a patient under guardianship to be visited every 3 months, and once a year by a s.12 Doctor, whereas provisions for those subject to the DoLS procedure are only required to be reviewed at a minimum of once a year.

Finally, services provided to those still subject to the 1983 Act but living within the community will be provided for free, either because they remain technically hospital patients under s17 or, where they are subject to a CTO or guardianship, will qualify for free aftercare by way of s.117 of the 1983 Act. This is the case even when services are primarily to meet social care needs. Provision under the Mental Capacity Act 2005 is determined by the commissioning body. Therefore where the need is primarily to meet social care this will be subject to the usual rules on charging applicable to residential care.

In April 2009 the Department of Health confirmed that SOADs had been asked to approve over 1600 treatment plans for those on CTOs within the first 6 months of their implementation. This was far greater use of the power than was initially anticipated and as a result practitioners were reporting that difficulties in obtaining sufficient numbers of SOADs to approve part 4A treatment in the community meant that individuals were either remaining detained in hospital where it may not be necessary or were being placed on a CTO without the RC having the ability to make swift changes to their treatment regime unless there was an emergency. The Department of Health responded to these criticisms by seeking to appoint more SOAD and reiterating that the power to provide treatment in the community under Part 4A did not require SOAD approval where it was an emergency.

 

 

 

 

 

 

 

 

 

 

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