This is the fourth part of our series of briefings on Amending the Mental Health Act.

In the recent Queen’s speech, the government confirmed its intention to amend the Mental Health Act (“MHA”). A White Paper will be published to address the following:

  • A greater control for patients over their treatment
  • Making sure patients have a greater say in that care
  • Greater choice and autonomy including the ability to set out preferences for care and treatment in advance
  • Ensuring dignity and respect
  • Reforming the process for detention and providing greater support for patients to challenge detention
  • Making it easier for individuals with learning disabilities and autism to be discharged from hospital and improve how they are treated in law.

In this series of briefings we look at what amendments might be forthcoming.[1]

Reducing the use of CTOs

Community Treatment Orders (“CTOs”) were introduced by the 2007 amendments to the MHA. At the time, many psychiatrists were sceptical about taking responsibility for community patients, particularly against the backdrop of the Courts having recognised a form of virtual Community Treatment Order in the way they had interpreted the application of Section 17 leave to patients who were on long term leave.[2]

The 2007 amendments established a regime of CTOs whereby patients who met the relevant stated criteria could be cared for in the community subject to the CTO which gave a power of recall to hospital.

The concept of a CTO was intended to address the “classic revolving door” patient who was discharged from hospital, deteriorated and was returned to hospital before improving and again being discharged before recommencing the cycle. As set out in the Code of Practice:

“The purpose of a CTO is to allow suitable patients to be safely treated in the community rather than under detention in hospital, and to provide a way to help prevent relapse and any harm – to the patient or to others – that this might cause. It is intended to help patients to maintain stable mental health outside hospital and to promote recovery. The principle, in particular, of treating patients using the least restrictive option and maximising their independence; and purpose and effectiveness should always be considered when considering CTOs”.

CTOs have however been immensely “successful”. At the time of the 2007 amendments the government anticipated 10% of detained patients would be affected. During the passage of the 2007 amendment Act through Parliament an amendment that would have restricted the use of CTOs to patients who had already been detained more than once failed. The latest data suggests that there were about 5500 patients subject to a CTO in 2018, or around 30% of patients. It is suggested by some that patients actually find it helpful to have a framework imposed on them in the community, and for them to have something to follow. However, their use has been criticised. Some suggest CTOs are coercive, restrict patients’ personal liability and have detrimental impact on the patient’s therapeutic relationships. It is also suggested that CTOs do not reduce the severity of a patient’s symptoms nor the rate of readmission.

The review of the Mental Health Act chaired by Sir Simon Wessely which reported in December 2018 suggested that the use of CTOs should be reduced by tightening the criteria and limiting their use to a maximum of two years. The issues highlighted by the Queen’s speech in relation to giving patients greater choice and autonomy would suggest that the statutory basis of CTOs is likely to be reviewed and amended as part of any update to the Mental Health Act.