Briefing 2: supervised community treatment

Introduction
1. Making a community treatment order
    1.1 Who is involved?
    1.2 Relevant criteria
    1.3 Least restrictive?
    1.4 Risk of deterioration in patient's mental health
2. Conditions
3. Recall
4. Criticisms of SCT
    4.1 Danger of overuse
    4.2 Over-reliance on drug treatment
    4.3 Damage to therapeutic relationships
    4.4 Does supervised community treatment work and is it necessary?
    4.5 Services: the key to preventing readmission
5. Further information

Introduction
The Mental Health Act 2007 (MHA 2007) makes amendments to several pieces of existing legislation but the main changes it makes are to the Mental Health Act 1983 (MHA 1983) and the introduction of 'Deprivation of liberty safeguards' into the Mental Capacity Act 2005 (the MCA). The full text of the MHA 2007 can be viewed on the website of the Office of Public Sector Information (OPSI) at www.opsi.gov.uk/acts/acts2007/20070012.htm

The MHA 2007 makes provisions for supervised community treatment (SCT) through the introduction of new sections 17A to 17G into the MHA 1983. These sections effectively replace sections 25A to 25J, those concerning supervised discharge, which are removed from the Act by the MHA 2007. The new sections provide for a Community Treatment Order (CTO) to be imposed in certain circumstances and introduce the definition 'community patient' to refer to a person who is subject to a CTO. SCT is discussed in chapter 28 of the Draft revised Mental Health Act 1983 Code of Practice for England ("the draft Code for England") and chapter 26 of the draft Code for Wales.

This briefing outlines and critically examines SCT while a separate briefing provides an overview of the main changes that the MHA 2007 will make to the MHA 1983 - see Mind Legal briefings on the Mental Health Act 2007: Briefing 1. A third briefing on the MHA 2007 considers the changes made to the MCA - see Mind Legal briefings on the Mental Health Act 2007: Briefing 3.

Legal terms are used in this briefing as they appear in legislation. Some people find these terms inappropriate, even offensive, but they are used here for the sake of legal accuracy.

1. Making a community treatment order

1.1 Who is involved?
An application for a CTO will be made to the hospital managers by the responsible clinician with a supporting recommendation by an approved mental health practitioner (AMHP). Both draft Codes emphasise that the AMHP must reach an independent professional view on whether SCT should be used and that it "would not be appropriate" for the responsible clinician to approach another AMHP in the event that the first AMHP does not agree to SCT.

The draft Codes advocate wider consultation "at all stages of SCT" but highlight its importance when CTO is first considered. They each state that there should be consultation with the patient, who may wish to speak to and be supported by an Independent Mental Health. The draft Code for England states: "For SCT to be a viable option, the patient will need to be involved in these decisions and be prepared to accept and comply with the proposed treatment" (paragraph 28.50).

Other people who the draft Codes state should be consulted include:

• the nearest relative where this is reasonably practicable (unless the patient objects)
• any carers where this is reasonably practicable (unless the patient objects)
• anyone with authority to act on the patient's behalf
• the patient's GP
• the multidisciplinary team involved in the patient's care
• other relevant professionals.

Although the nearest relative may be consulted, she or he will have no power to object to the making of a CTO.

1.2 Relevant criteria
To be eligible for SCT, a patient must be liable to be detained under section 3 or subject to certain specified provisions under Part III MHA (namely a hospital order, a hospital direction or a transfer direction without restrictions). A new section 17A(4) provides that a CTO cannot be made unless the responsible clinician is of the opinion that the 'relevant criteria' are met and an AMHP states in writing that she or he agrees with this opinion and that it is appropriate to make a CTO. The relevant criteria, as set out in the new section 17A(5), are that:

• the patient is suffering from a mental disorder of a nature or degree which makes it appropriate for them to receive medical treatment
• it is necessary for the patient's health or safety or the protection of other persons that the patient should receive such treatment
• subject to their being liable to be recalled, such treatment can be provided without the patient continuing to be detained in a hospital
• it is necessary that the responsible clinician should be able to exercise the power to recall the patient to hospitals and
• appropriate medical treatment is available for the patient.

1.3 Least restrictive?
Both draft Codes state that in deciding whether SCT is the right option for a patient the responsible clinician and AMHP need to consider whether the objectives of SCT could be achieved safely and effectively in a less restrictive way. The draft Code for Wales states that "[c]areful consideration should be given to the most appropriate means of ensuring the delivery of effective patient care and supervision with the community". It highlights leave under section 17 of the MHA 1983 and also guardianship as possible alternatives to SCT. Guardianship is discussed in Mind rights guide 6.

1.4 Risk of deterioration in patient's mental health
The risk of deterioration in the patient's mental health is a key factor in deciding whether a CTO is appropriate and in assessing this risk the responsible clinician must consider the patient's history and "other relevant factors". But, according to paragraph 28.9 of the draft Code for England, SCT is not inevitable just because there is a risk of deterioration: "Conversely if the clinician considers there is little risk of deterioration, SCT can still be appropriate if necessary to address a risk of harm to the patient or to other people." Paragraph 26.13 of the draft Code for Wales offers similar guidance.

2. Conditions
Section 17B(1) states that a CTO shall specify conditions to which the patient is to be subject under the order. Under section 17B(3), a CTO must contain conditions specifying:

• that the patient make her or himself available for examination under section 20A (to see if the CTO needs to be extended); and
• that the patient make her or himself available for examination where it is proposed that a certificate for treatment be issued under Part 4A of the MHA 1983.

Section 17B(2) states that, subject to section 17B(3), the responsible clinician and approved mental health professional must agree that any condition is necessary or appropriate for:

• ensuring that the patient receives medical treatment;
• preventing risk of harm to the patient’s health or safety;
• protecting other persons

The draft Codes state that the conditions will depend on the patient’s individual circumstances but suggest that they might cover matters such as avoiding illegal drugs or alcohol. The draft Code for England states: "It might be appropriate to require a patient to try to avoid certain high risk situations known to place them at high risk of harm" (paragraph 28.19). The draft for Wales states: "There would need to be clear justification for any other conditions relating to behaviour, but it may be appropriate, for example, to require a patient to try to avoid certain situations if that is directly relevant to his/her health or safety or the protection of others" (paragraph 26.27).

There is no requirement in the amended MHA 1983 for the responsible clinician to explain to the patient any conditions to which the person will be subject, or the consequences of breaking them. However, the draft Codes state that the patient and "other relevant people" should be consulted about the conditions.

3. Recall
Section 17E provides a power for a community patient to be recalled to hospital by the responsible clinician. This will be possible where the clinician is of the opinion that the patient needs to receive treatment in hospital for his or her mental disorder and that there would be a risk of harm to the health or safety of the patient or to other persons if the patient were not recalled - section 17E(1). A responsible clinician will also be able to recall a community patient if the patient does not comply with a condition to make him or herself available for examination, imposed under section17B(3) - section 17E(2).

Section 17F(4) allows for the CTO to be revoked and the patient's section 3 (or Part III MHA 1983) status reinstated where the responsible clinician decides that a recalled community patient requires further treatment in hospital. This requires the support of an AMHP - section 17F(4)(b). Where there is no revocation of the CTO, the recalled patient can be detained for up to 72 hours and treated without their consent. The responsible clinician can release the patient at any point during the 72 hour period, following which the patient will remain subject to the CTO.

The draft Code for England states: "Particular attention should be paid to carers and relatives when they raise a concern that the patient is not complying with the conditions or their mental health appears to be deteriorating. The community team needs to give due weight to those concerns and any requests made by the carers or relatives in deciding what action to take. Carers and relatives are typically in much more constant contact with the patient than professionals, even under well-run care plans. Their concerns may prompt a review of how SCT is working for that patient and whether it might be necessary to recall the patient to hospital" (paragraph 28.32).

Both draft Codes highlight the principle of human rights law that any action taken where a breach of conditions is suspected or reported should be proportionate to the level of risk posed by the 'non-compliance'. In the case of a patient not keeping to a condition about treatment, for example, the risk arising from this might mean that immediate recall to hospital in needed. However, it could be that negotiation with the patient, carer or other interested parties resolves the issue and avoids the need for recall. The responsible clinician should consider each case on its merits and decide whether recall to hospital is justified in all the circumstances.

4. Criticisms of SCT

4.1 Danger of overuse
Mental health campaigners argue that with the introduction of CTOs will come a tendency for those in charge of discharge decisions to act defensively. The current blame culture and media climate are such that if a service user is discharged from detention only to require readmission in the near future, questions are likely to be asked as to why the responsible clinician did not use a CTO. Moreover, it is easier for the responsible clinician to force compliance than to put trust in a patient.

Mind is concerned that a 'circular argument' could develop about the effectiveness of a CTO. If a community patient's distress remains manageable, the professionals may well argue that the CTO is working and should be continued. The patient and his or her representative could at the same time argue that the CTO has achieved its outcome and should be discontinued. But at what point will a defensive clinician deem it to have become unnecessary for the health and safety of the patient to have the power of recall should the patient's condition deteriorate? The fear is that without the natural cap on hospital detention provided by the finite number of beds, CTOs will be used for too long, for too many people.

A welcome change to the Government's original plans for supervised community treatment was it's acceptance that any CTO imposed has to be preceded by an inpatient treatment order. The amended MHA 1983 will now contain a requirement in the criteria for a CTO that the patient is subject to section 3, 37, 51(5), 47 or 48 of the Act. However, this still allows for the making of a CTO regardless of whether the person has been detained before or how long he or she has been detained. In theory, a person could be detained under section 3 on one day and sent home under a CTO the next. During passage of what was to become the MHA 2007, the Mental Health Alliance argued that the criteria should be tightened to avoid the excessive use of CTOs. It spoke of supervised community treatment becoming a 'lobster pot' - easy to get into but very difficult to ever get discharged from.

4.2 Over-reliance on drug treatment
A further concern of mental health campaigners is that an increase in the use of compulsion in the community will be accompanied by an even greater reliance on chemical treatment. Mind suggests that CTOs will focus on drugs since this is the only treatment which can be enforced effectively and which is available readily and provides an "easy option" for over-stretched workers. Moreover, that the common way of administering medication to a community patient will be through a depot injection so that the types of drugs used will be the older atypical anti-psychotic medication which can have severe side effects. Mind argues that people will be effectively prevented from making their own evaluation of the costs and benefits of particular medication. It points out that stopping medication is often a rational decision which can lead to an improved quality of life and that people usually avoid complying with aspects of their care plan for legitimate reasons, such as the side effects of medication. According to Mind, someone deemed fit to live in the community should be trusted to make these sorts of decisions, with support, for themselves. The approach to working with such people should be based on gaining their trust; not on compelling them to take medication.

4.3 Damage to therapeutic relationships
There is a genuine fear that the use of CTOs will undermine the efforts of doctors, nurses and social workers to establish trusting and therapeutic relationships with service users. Many people consulted by Mind feel their relationships with professionals would be harmed by the increased threat of compulsion with those professionals being turned into "Mental Health Act police officers". Many fear that the new measures will increase their chances of being subject to compulsion if they disagree with the treatment recommended by their psychiatrist.

4.4 Does supervised community treatment work and is it necessary?
Much of the criticism of supervised community treatment centres on the lack of evidence that it is needed at all or that it even works. The Mental Health Alliance questioned the need for the introduction of costly new legislation to introduce compulsory care in the community when case law has established that doctors have a very wide power to treat detained patients while on leave under section 17 MHA 1983, and that people can effectively remain on section in the community indefinitely and be recalled back to hospital if they act inappropriately. The Alliance consistently pointed out that the Government did not produced any evidence from countries where CTOs are already used on it's effectiveness or on what does or does not work. For its part, Mind pointed to a literature review by the Cochrane Collaboration of Research on the use of community treatment orders in the USA, Australia, New Zealand, Israel and Scotland. This showed there was no evidence that compulsory community treatment is effective in any of the main outcome indices: health service use, readmission to hospital within a year, social functioning, likelihood of being arrested, mental state, quality of home, homelessness, or satisfaction with care. The research also found that 85 people would need to be made subject to compulsory community treatment to prevent one admission to hospital and 238 to prevent one arrest.

4.5 Services: the key to preventing readmission
Mental health campaigners argue that the main reason why people who have been discharged end up requiring readmission is that they have been unable to access the treatments they require. They believe that the solution is not to force people to use services which feel unattractive or irrelevant to their needs under a threat of readmission. Mind and the Mental Health Alliance believe that the resources being diverted to the introduction of supervised community treatment would be better focused on developing services such as early intervention services that would help prevent the need for readmission. They point to evidence from overseas which suggests that CTOs provide a contract tying community teams into providing services they should have provided anyway and argue that the use of a stigmatising section of the Mental Health Act should not be the way to make practitioners perform their roles effectively.

5. Futher information

This legal briefing provides a general overview of the supervised community treatment provisions expected to come into force in October 2008. It is no substitute for legal advice in respect of your specific circumstances.

For further information about the work of Mind's legal unit, please refer to our information sheet, Introduction to the Legal Unit. This is also available in hard copy (T: 020 8519 2122).

For more detailed advice on any of the issues discussed in this briefing you should take advice from a solicitor specialising in this area of the law. Details of where to seek specialist advice can be obtained from the Law Society (www.lawsociety.org.uk, T: 0870 606 2555) or from Community Legal Advice (www.communitylegaladvice.org.uk, T: 0845 345 4345). Alternatively, you could contact your local Law Centre or Citizen’s Advice Bureau, who may be able to help.

Keith Dawson
Legal Unit
Mind
Granta House
15-19 Broadway
London E15 4BQ

December 2007