The Supreme Court rules that CTOs cannot deprive people of their liberty.
In 2011, PJ was made subject to a Community Treatment Order (CTO) following inpatient detention under the Mental Health Act. The conditions of the CTO included requirements that:
PJ was assessed to have capacity to consent to his care arrangements. He applied to the First Tier Tribunal (Mental Health) and asked to be discharged because those conditions were so restrictive that they deprived him of his liberty.
PJ's case was appealed up through the ranks, ultimately ending up with the following questions before the Supreme Court:
Lady Hale, giving the chief judgment, concluded 'without hesitation' that CTO conditions cannot deprive a patient of their liberty. On the second question the court ruled that the tribunal does not have jurisdiction to consider the legality of conditions, though this may be a relevant in deciding whether to discharge. Where the tribunal does not discharge it may wish to adjourn the matter and 'explain to all concerned what the true legal effect of a CTO is.'
Mind has opposed CTOs since they were first mooted. In the last decade they have furthered the creep of coercive powers in the mental health system, even more than intended, and have proven ineffective in decreasing readmission rates or improving health outcomes. Our engagement work for the Mental Health Act Review highlighted how intrusive they are in people's lives. One individual described being on a CTO as 'a tag that nobody can see but you know it's around your mind'. This is why we intervened in this case and we are pleased with the judgment.
We have written a longer article for March's edition of the Legal Action Group magazine, which goes into more detail on the policy background and the steps that now need to be taken as a result of this judgment. Here is a brief summary on how to spot an unlawful CTO and what you can do about it.
There are three elements to a deprivation of liberty:
The objective test for a deprivation of liberty is whether a person is subject to continuous supervision and control and are not free to leave. Identifying conditions which amount to a deprivation of liberty will not always be straightforward. The overall impact of the CTO conditions, and how restrictive they are, will need to be considered when deciding whether they meet the objective test.
Whilst it's not possible to provide a list of conditions which will be unlawful, the following conditions could indicate a potential deprivation of liberty:
CTO conditions can be a deprivation of liberty, and therefore unlawful, even if:
If you believe that you are being deprived of your liberty by virtue of a CTO, there are a few things you can do:
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