At Conroys Solicitors LLP, we often have clients who are subject to Community Treatment Orders and we have represented many who wish to challenge this Order. But how ethical is the regime of Community Treatment Orders? And can it really be said to be compatible with fundamental Human Rights?

What is a Community Treatment Order?

Patients can be placed on a Community Treatment Order (‘CTO’) after being detained under the Mental Health Act 1983 (this does not apply to those detained under s2 or restricted patients).

CTOs were introduced as a ‘middle ground’ to allow patients who still have some risk factors to be discharged from hospital but to continue to be monitored by psychiatric services. They allow a patient to live in the community subject to certain conditions.

Common conditions include: to accept medication (for example, take a monthly injection) and to meet with members of the care team to allow monitoring of a patient’s mental health. This blog focuses mainly on the requirement to accept medication or treatment.

CTOs are often used as part of a longer term discharge plan with the idea that patients can continue to improve in the community. They were intended to be a “least restrictive option” to allow more patients to live in the community instead of hospital; however, the risk is that they are used to coerce patients to accept medication in a way that breaches their rights.

Concerns have been expressed from the beginning. When debating the proposals in 2007, Lord Patel said “They could even become part of the normal discharge process for detained patients generally, as a kind of safety net for risk-averse mental health service staff and managers. If this happens, Parliament…will have increased massively the legal coercion of psychiatric patients generally.”

CTOs and Human Rights: Article 8

By imposing certain conditions on a patient, CTOs interfere with a patient’s right to their private life. In the UK, this is mainly governed by Article 8 of the European Convention on Human Rights (‘Art 8’).

Interferences with Art 8 rights can be justified if they are:

  • a)In accordance with the law; and
  • b)Necessary in a democratic society.

Art 8: in accordance with the law

The power to place patients on a CTO is found in s17A of the Mental Health Act 1983. The conditions for a CTO are clear. It is generally considered that CTOs are “in accordance with the law”.

Art 8: Necessary in a democratic society

To be “necessary in a democratic society”, CTOs must be:

  • in the interest of national security, public safety or the economic well-being of the country;
  • for the prevention of disorder of crime, for the protection of health or morals or for the protection of the rights and freedoms of others.

As with most interventions under the Mental Health Act 1983, the aim of CTOs is to protect the patient’s own health and safety or to protect the health and safety of others.

Do CTOs achieve their aim?

There does not seem to be any significant research supporting the effectiveness of CTOs. A study in 2013 found that “CTOS did not reduce the length of time patients stayed in hospital, the severity of their symptoms, or how they coped in society”. A literature review published in 2016 concluded “[t]here is no evidence of patient benefit from current CTO outcome studies. This casts doubt over the usefulness and ethics of CTOs.”

If CTOs are not effective in protecting the health or safety of patients, or in reducing the amount of time patients spend in hospital, can the interference with patients’ private lives really be justified?

Are CTOs proportional?

Even if CTOs were considered to achieve their aim, there are those who argue that the interference with patient’s private lives is disproportionate to any good that is done.

Proportionality is a fundamental principle of Human Rights law. This means that, if the same goal can be achieved in a way that would cause less interference in rights, the interference cannot be justified.

Patients on CTOs are often required to meet with members of the psychiatric services whom they may distrust or even fear. They ‘consent’ to intrusive treatments such as weekly injections because they are scared that refusal will lead to detention in hospital.

Especially considering the seeming ineffectiveness of the CTO scheme, can it really be said that such interferences with a patient’s right to a private life are proportionate? There are those campaigning to demonstrate that the answer to this is a resounding ‘No’.

CTOs and Human Rights: what the courts say

The issue of compatibility with Human Rights has only been examined by UK courts and by the European Court of Human Rights to a limited degree. (Please see previous blog posts on why these issues are not considered by Mental Health Tribunals).

So far, the courts have generally found that CTOs do not breach Art 8 rights. In fact, in L v Sweden and Grare v France the Art 8 claims did not even get to the European Court as the Commission found the claims to be “manifestly unfounded” because any interference with the patients’ private lives was considered justified.

CTOs and consent

CTO patients with capacity cannot be given treatment without their consent. However, can a patient be said to have fully consent if they only accept the medication on threat of being recalled to hospital? Conroys Solicitors LLP has had clients who expressly object to their treatment but ‘consent’ to it because they do not wish to return to hospital.

The Mental Health Act Code of Practice itself states (at 14.17) that the “threat of detention must not be used to coerce a patient to consent to…treatment (and is likely to invalidate any apparent consent)”.

In the case of SSJ v MM; Welsh Ministers v PJ [2017] a patient was found to be unable to freely consent to a conditional discharge that deprived him of his liberty when the alternative was detention in hospital. Similarly, how can a patient on a CTO freely consent to treatment with the threat of recall to hospital hanging over their head?

Where are we now?

Since their introduction in 2008 there have been concerns regarding the use of CTOs. The fear is that they will be used, not to give more patients the ability to live out of hospital, but to increase the number of patients in the community subject to unwanted restrictions and monitoring.

Despite these fears, the courts have so far accepted them as a lawful interference with patients’ rights. CTOs continue to be used in care planning for patients who have been detained in hospital and the need for recall to hospital continues to be confirmed by Mental Health Tribunals.

Enduring concerns exist over the lack of evidence; the ethics of coercion; and the overall balancing act between the need to treat patients for the health and safety of themselves and others, and the protection of their human rights. It is questioned whether the use of CTOs can continue giving the rising doubts as to their compatibility with fundamental human rights.