British Journal of Nursing - Using community treatment orders: key provisions

Abstract

Richard Griffith, Senior Lecturer in Health Law at Swansea University, continues his series on community mental health law with a review of community treatment orders under the Mental Health Act 1983

Community treatment orders (CTOs) were introduced into the Mental Health Act 1983 by the Mental Health Act 2007, with the aim of enabling eligible patients to be treated safely in the community rather than under detention in a hospital. A person subject to a CTO is referred to by the 1983 Act as a community patient and they are discharged but subject to recall to hospital (Mental Health Act 1983, section 17A). The key provisions are set out under the Mental Health Act 1983, sections 17A to 17G, with treatment provisions set out under sections 62A and part 4A.

Duty to consider a CTO

Testing of a detained patient's rehabilitation was traditionally undertaken using the extended leave provisions of section 17 of the Mental Health Act 1983. These provisions allow a responsible clinician to grant a detained patient leave of absence subject to such conditions as they consider necessary in the interests of the patient or the protection of others. The patient is not discharged and remains liable to be detained and subject to recall to hospital under section 17(4). Section 17 allows for the testing of rehabilitation under strict conditions and, as long as the patient remains detained under the 1983 Act, leave can be granted for an indefinite period by the responsible clinician.

Criticism of this ‘long leash’ control over detained patients led Parliament to introduce CTOs with a requirement that, before granting long-term leave (of more than 7 consecutive days), to patients detained for treatment, responsible clinicians must first consider a CTO instead. In discharging that duty, the responsible clinician must show that both options have been properly considered and place in the patient's record their decision and the reasons for the decision.

Eligibility

Where a responsible clinician decides to proceed with a CTO, they must issue an order in writing discharging the patient from hospital subject to them being liable to recall (Mental Health Act 1983 section 17A). The order cannot be made unless:

The responsible clinician is of the opinion that the eligibility requirements are met

An approved mental health professional (AMHP) states in writing that they agree with the responsible clinician's opinion and that it is appropriate to make the order.

Under the Mental Health Act 1983, section 17A(5), to be eligible the patient must be detained for treatment and the responsible clinician must be satisfied that:

The patient is suffering from a mental disorder of a nature or degree that makes it appropriate for him/her to receive medical treatment

It is necessary for his/her health or safety or for the protection of other persons that he/she should receive such treatment

Subject to his/her being liable to be recalled, such treatment can be provided without him/her continuing to be detained in a hospital

The responsible clinician should be able to exercise the power under section 17E(1) to recall the patient to hospital

Appropriate medical treatment is available.

In Bostridge v Oxleas NHS Foundation Trust [2014] a first-tier mental health tribunal ordered the discharge of a patient from detention for treatment subject to a CTO. However, the CTO was put in place only on the day of discharge and so was unlawful as the patient was no longer subject to detention and did not meet a key CTO eligibility requirement. The trust accepted that the patient's subsequent recall to hospital when his condition deteriorated was also unlawful.

As well as meeting the eligibility criteria, an AMHP must reach an independent view on the appropriateness of a CTO, including consideration of the patient's wider social circumstances, cultural issues, support networks and the likely impact that discharge will have on the patient's family, employment and educational circumstances. If the AMHP does not agree that a CTO should be made or agree with the conditions to which the CTO will be subject, then it cannot proceed. While AMHPs must agree to the initial CTO there is no requirement for an AMHP to approve a varying of conditions, recall to hospital or discharge from a CTO. The key justification for a CTO is that both the responsible clinician and the AMHP agree that the risk of harm arising from the patient's mental health problem is sufficiently serious to require that discharge is subject to the power to recall the patient to hospital for treatment.

The codes of practice argue that CTOs should proceed only where the responsible clinician assesses that there is a risk of deterioration in the person's mental health problem after discharge and that there is evidence that the CTO will benefit the patient by promoting concordance with treatment and recovery in the community but that a power of recall to hospital is necessary in the interests of the patient or protection of others (Department of Health (DH), 2015; Welsh Government, 2016).

Conditions

Responsible clinicians have the discretion to make the CTO subject to conditions that must be fulfilled by the patient. Although the conditions are at the discretion of the responsible clinician, both the responsible clinician and the AMHP must agree that the conditions specified in the CTO are 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 (Mental Health Act 1983, section 17B).

Such conditions could include requiring the patient to:

Live where directed in the CTO

Attend clinics for assessment and treatment

Receive visits from the community mental health team

Attend community mental health programmes

Abstain from alcohol or drugs

Avoid high-risk situations.

Responsible clinicians have the power to vary or suspend conditions subject to consultation with the patient and anyone likely to be affected by the changes such as the patient's nearest relative, family or carers (Mental Health Act 1983, section 17B). The authority to vary and suspend conditions allows the responsible clinician to respond flexibly to the changing needs and care of the patient. Conditions can be varied to take account of improvements in the patient's condition, such as increasing the time between clinic appointments.

In addition to the discretionary conditions, all CTOs must be subject to two statutory conditions under section 17B(3), requiring the patient to:

Make themselves available for examination to enable the responsible clinician to decide whether to renew a CTO under section 20A of the Mental Health Act 1983

Make themselves available for examination by a second opinion advisory doctor who is able to certify that the treatment is appropriate either for the administration of medicines for mental disorder where three months have elapsed since they were first administered or if the treatment required is electroconvulsive therapy (Mental Health Act 1983, sections 58 and 58A).

Consultation

Although patients are not required to consent to a CTO, the codes of practice require that them be involved in decisions about what treatment is to be provided in the community and how and where that treatment will be given. The patient has the right to an independent mental health advocate to support them during the consultation process. The codes recommend that the responsible clinician consult with:

The nearest relative, who is a patient's statutory friend while detained. The nearest relative cannot object to a CTO but they are able to exercise their right to discharge the patient from a CTO under section 23(2)(c) of the Mental Health Act 1983 subject to a barring notice by the responsible clinician under section 25

Any carers, unless the patient objects or it is not reasonably practicable

The patient's multidisciplinary team

Anyone with authority to act on the patient's behalf

The patient's GP

Other relevant professionals (DH, 2015; Welsh Government, 2016).

Information for the patient

With the agreement of the AMHP and following consultation with the patient, nearest relative, family and carers, the responsible clinician can discharge the patient subject to a CTO. Once that decision is made, the responsible clinician is required to inform the patient both verbally and in writing of the decision to discharge subject to a CTO, giving reasons why this is necessary and explaining to what conditions the patient will be subject and what services will be available to the patient in the community (DH, 2015; Welsh Government 2016).

Duration and effect of a CTO

The effect of a CTO is to suspend the order detaining the patient for the treatment of their mental disorder in hospital, rather than it ceasing to have effect. The patient is discharged and not detained or liable to be detained (Mental Health Act 1983, section 17D).

A CTO has an initial duration of 6 months and can be extended for a further 6 months, and then a year at a time (Mental Health Act 1983, section 20A). A patient's CTO would end if under the Mental Health Act 1983:

The effective time period lapsed under section 20A(1)

The patient is discharged by the responsible clinician, hospital managers or nearest relative under section 23 or by a tribunal under section 72

The order is revoked in writing by the responsible clinician with the agreement of the AMHP following the patient's recall to hospital under section 17F

The original authority to detain the patient for treatment otherwise ceases to have effect.

The reasons for discharge should be explained to the patient and any aftercare services that the patient continues to require under the Mental Health Act 1983, section 117, will remain available (Griffith, 2018).

Conclusion

CTOs have been introduced to allow a patient detained in hospital for their mental health problem to be discharged into the community subject to recall from hospital for longer than a period of 7 days. CTOs can be used only by a responsible clinician, subject to agreement with an AMHP, where they are satisfied that a power to recall the patient to hospital is necessary.

The author's next article will discuss the care of patients subject to a CTO.

KEY POINTS

Community treatment orders (CTOs) were introduced with the aim of enabling eligible patients to be treated safely in the community rather than under detention in a hospital

To be eligible, the patient must be detained for treatment and the responsible clinician considers it necessary to have the power to recall the patient to hospital when discharged

Responsible clinicians must consider a community treatment order instead of a leave of absence that is more than 7 consecutive days' duration

Responsible clinicians have the discretion to make the CTO subject to conditions that the patient must fulfil