Order of the day

Community treatment orders (CTOs) entered the field of possible disposals for those who fulfil the criteria for detention under the Mental Health Act 1983 (MHA) by way of the 2007 Act. The new section 17A MHA permits a responsible clinician (RC) to discharge a patient detained for treatment from hospital with conditions attached, subject to recall. A patient made subject to a CTO will have his liability to detention suspended (section 17D(b)(2)(b)). However, a CTO may not be made unless the RC considers that 'the relevant criteria' are met (section 17A(4)(a)). If he finds that they are, the CTO must also be approved in writing by an approved mental health professional (AMHP: section 17A4)(b)).

The relevant criteria for the making of a CTO are set out in section 17A(5) MHA. The first two criteria essentially mirror the criteria for admission to hospital in sections 3(2)(a) and (c) MHA (save for the need for the treatment to take place in a hospital). Thus, the patient must be suffering from mental disorder of a nature or degree which makes it appropriate for him to receive medical treatment, which must be necessary for his health or safety or for the protection of other persons. Pursuant to section 17A(5)(c) MHA, it must be possible for a patient's necessary treatment to be provided in the absence of hospital detention, provided that he is liable to recall. As with the criteria for admission for treatment under section 3(2)(d) MHA, appropriate medical treatment must be available for the patient (section 17A(5)(e) MHA).

Assessing the risks

The final mandatory criterion for the making of a CTO is that it must be 'necessary that the responsible clinician should be able to exercise the power under section 17E(1) below to recall the patient to hospital' (section 17A(5)(d) MHA). How might this be decided? Section 17A(6) MHA provides that an RC must 'in particular' consider 'what risk there would be of a deterioration of the patient's condition if he were not detained in a hospital (as a result, for example, of his refusing or neglecting to receive the medical treatment he requires for his mental disorder)'. Thus, only where risk of relapse is sufficiently high will a power of recall be 'necessary' and a CTO appropriate.

Further, the RC 'must be satisfied that the risk of harm arising from the patient's disorder is sufficiently serious to justify the power to recall the patient to hospital for treatment'. Presumably this risk must relate to when the patient's mental disorder is relapsing, since a current significant risk of harm would make the patient sectionable. This interpretation is reinforced by the RC's need to have regard to 'the patient's history of mental disorder and any other relevant factors' when deciding whether the power of recall is necessary (section 17A(6)).

No additional assistance is found within the Act as to what other factors might be relevant. The Code of Practice to the MHA, however, envisages that recall may be required either as a result of relapse, or through a change in the patient's behaviour or circumstances giving rise to increased risk. Hansard adds that that in all likelihood they would relate to the patient's current mental health. Thus, such factors 'might include the degree of recovery of symptoms, any suicidal ideas or feelings of hopelessness, which will be important predictors of likely risk. In addition, a patient's insight and attitude to their treatment, and the protective circumstances into which a patient would be discharged, might be relevant.' The recall power is 'intended to provide a means to respond to evidence of relapse or high-risk behaviour relating to mental disorder before the situation becomes critical and leads to the patient or other people being harmed'.

'Necesssary or appropriate' conditions

It is mandatory for a CTO to have conditions attached to it (section 17B(1) and (3) MHA), one of which must be a requirement to submit to a medical examination for the purposes of possible renewal or SOAD certificate authorising treatment (section17B(3) MHA).

Conditions in the RC's view must be 'necessary or appropriate' (section 17B(2)). Any conditions must be for at least one of three purposes specified in section 17B(2) '“ namely, to ensure medical treatment is received, to prevent risk of harm to the patient's health or safety, or to protect others. An RC may add further conditions to fulfil one of the three specified purposes, and not for any other reason. It will be noted that the prevention of 'risk' purpose is unrealistic; risk may only be reduced by conditions, not prevented.

The code states that a CTO 'may be used only if it would not be possible to achieve the desired objectives for the patient's care and treatment without it'. However, a patient on a CTO may fail to comply with conditions directed at the desired objectives. The 'key factor' in a decision as to a patient's suitability for a CTO is 'whether the patient can safely be treated for mental disorder in the community only if the responsible clinician can exercise the power to recall the patient to hospital for treatment if that becomes necessary'.

The irony is that the use of recall will prevent the patient being treated 'safely' in the community. The code suggests that 'a tendency to fail to follow a treatment plan or to discontinue medication in the community, making relapse more likely, may suggest a risk justifying use of SCT' (supervised community treatment).

Any escape?

Thus, depending upon a patient's current symptomatology and insight, in addition to their mental health history and their home circumstances, recall might be said to be 'necessary'. Yet, those factors which go to the degree of risk of deterioration will in practice dictate the conditions attached to a CTO. Assuming that the conditions are complied with, it is difficult to reconcile an ongoing need for a power of recall. Thus, in reality recall is 'necessary' because there is a risk either that a patient will not comply with the attached conditions, or that those conditions will prove insufficient or inappropriate. The power of recall acts as a sword of Damocles to ensure that a conditionally discharged patient complies.

It might be thought that, since the existence of conditions in themselves cannot reduce the risk of a patient's deterioration to a manageable level, there being no guarantee of compliance, a power of recall will be required for the majority of patients leaving hospital.

Furthermore, applying the section 17 A criteria strictly, how might a patient discharged onto a CTO ever escape from its clutches? If a patient remains well on a CTO, an RC is likely to consider its continuation necessary to maintain that stability. Yet, it is plain that the continuation of a CTO in perpetuity is not envisaged by the code, which states that a 'patient who no longer satisfies all the criteria for SCT must be discharged without delay'. Further, 'if the patient's health has improved a particular condition may no longer be relevant or necessary' and should be varied by the RC.

When should recall be used upon a CTO patient?

The code clarifies that '[r]ecall to hospital may need to be considered if it is no longer safe and appropriate for the patient to remain in the community'. Frequently, recall 'may mean that SCT is no longer appropriate'. Presumably, revocation will lead to re-detention in hospital. Nonetheless, the code emphasises that if there is concern about a patient's mental state, any action taken should be 'proportionate to the level of risk', and a patient first should be given the opportunity to comply with the condition. Thus, failure to comply with a condition does not lead to an automatic recall. However, an RC may recall a patient to hospital pre-emptively even where his mental health is currently stable 'if the patient fails to comply with a condition specified' (section 17E(2)).

Similarly, even though a patient may be compliant, he may be recalled if he requires medical treatment in hospital (section 17E(1)(a)), and 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 to hospital for that purpose' (section 17E(1)(b)). Although the code states that '[o]nly if the breach of a condition results in an increased risk of harm to the patient or to anyone else will recall be justified', recall in such circumstances appears to be discretionary even where that 'the risk cannot be managed'.

Alternatives to recall suggested in the code are monitoring or voluntary admission. In reality, it is submitted that where it is believed that risk is no longer manageable in the community, it is inconceivable that a CTO patient would not be recalled.

Unnecessary recall

Section 72(1)(c)(iii) MHA requires a tribunal to discharge a CTO if is not satisfied that it is 'necessary that the responsible clinician should be able to exercise the power under section 17E(1) to recall the patient to hospital'. So, how should a tribunal decide that the power of recall was unnecessary? Some assistance is provided in section 72(1A) MHA, which states, '[i]n determining whether the criterion in subsection (1)(c)(iii) above is met, the tribunal shall, in particular, consider, having regard to the patient's history of mental disorder and any other relevant factors, what risk there would be of a deterioration of the patient's condition if he were to continue not to be detained in a hospital (as a result, for example, of his refusing or neglecting to receive the medical treatment he requires for his mental disorder)'.

This mirrors section 17A(6), save for the addition of the words 'continue not to be'. The addition of these words makes it plain that the patient's progress on the CTO will be considered by a tribunal. Again, its success ensures its continuance.

A stringent test

This article has demonstrated the circularity of the CTO provisions, and the difficulties a patient is likely to have in seeking to have it lifted. Yet, it should be noted that even if the criteria for making a CTO are met, it is not mandatory for a patient to be discharged onto a CTO. Further, the code states that '[a] risk that the patient's condition will deteriorate is a significant consideration, but does not necessarily mean that the patient should be discharged onto SCT'. Where a CTO is made, however, it is submitted that the test of 'necessity' in section 17B(2) MHA should be stringent, and not one of mere 'desirability'.