Community Treatment Orders: Implications of the drafting of the Mental Health Act 2007 for emergency detention of Community Patients

Introduction

The Community Treatment Order (CTO) was introduced by section 32 Mental Health Act 2007 (MHA 2007) and the relevant sections were implemented in November 2008. The CTO replaced the previous ‘supervised discharge order,’ which was introduced by the Mental Health (patients in the community) Act 1995. ¹ The MHA 2007 also introduced or amended a number of roles within the mental health multidisciplinary team. This includes the change from a ‘Responsible Medical Officer’ to a ‘Responsible Clinician,’ and the opening of this role to other mental health professionals, and the similar development of the Approved Social Worker into potentially multidisciplinary Approved Mental Health Professionals (AMHPs).

Despite initial reservations among mental health professionals, ² the CTO appears to be an increasingly popular tool in the psychiatrist's armoury, with the number of patients subject to CTOs increasing year on year. The Care Quality Commission reports the number of people subject to the provisions of the Mental Health Act 1983 (as amended) (MHA 1983) increased by 5% between March 2010 and March 2011; the number of people subject to CTOs increased by 29.1% in the same period. ³

This rise in the number of CTOs is likely driven, among other factors, by the overarching principle that those receiving treatment without consent should be subject to as few restrictions on their liberty as possible. ⁴ Although there is academic debate as to what constitutes the least restrictive option, ⁵ it could be argued that the availability of CTOs, at least in principle, allows mental health professionals greater flexibility in tailoring patients' treatment to their clinical needs.

There is, however, a mismatch between the drafting of the CTO regime and clinical practice. This is best shown by a hypothetical patient who, having deteriorated while on a CTO, is readmitted informally to hospital. This paper aims to demonstrate that, while the CTO is a useful tool, there is a potentially dangerous lacuna in the drafting which amended the MHA 1983.

Ordinary course of events

In the normal course of events, on admission to psychiatric services patients are assessed by the junior psychiatry doctor on duty. Typically, if a patient who merited admission would not consent to be admitted informally, the duty doctor would arrange for them to be assessed by an AMHP and two doctors approved for the purpose under section 12 MHA 1983 (one of which may be the duty doctor) and an application would be made under sections 2 or 3 of the MHA 1983 to detain the patient. Such an application would allow the Hospital Managers to detain the patient.

Patients admitted informally receive treatment on a voluntary basis, and are free to leave hospital. Where an informal patient elects to leave hospital they are first risk-assessed by a doctor (the ‘nominated deputy’ if the Responsible Clinician is not available). If there is likely to be a delay in the doctor arriving to perform the assessment patients can be detained under section 5(4) MHA 1983 by nursing staff for a maximum of 6 hours, until a doctor is available to make an assessment.

If, on assessment, the doctor feels that a patient presents a risk to himself or others, an application can be made under section 5(2) MHA 1983 authorising the managers to detain that patient for 72 hours (s6(2) MHA 1983) pending assessment by an AMHP and two section 12 approved doctors. If the patient's mental state merits further detention at that stage, an application will be made under either section 2 or 3 MHA 1983 (as appropriate) to detain the patient for a longer period.

Community patient

The situation is slightly different for Community Patients. The key differences can be demonstrated by a hypothetical patient, Mr B. This patient was admitted for treatment under section 3 MHA 1983 and is liable to be detained pursuant to section 6(2) MHA 1983 for in-patient treatment. Once his mental state is sufficiently improved Mr B could, at the discretion of his Responsible Clinician, be discharged on a CTO. Depending on Mr B's clinical presentation, and with the agreement of an AMHP, the CTO could be made subject to conditions. Any such conditions must be necessary to ensure that Mr B receives medical treatment; prevent risk of harm to Mr B; or prevent risk of harm to others. Should the responsible clinician believe that community treatment had ceased to be appropriate, and it was necessary for Mr B to be treated as an inpatient (for instance if Mr B breached any of his CTO conditions or was showing signs of deterioration in his mental state), he could be recalled to hospital (s17B(6) MHA 1983).

Once on the CTO Mr B would be classified as a Community Patient and the Hospital Managers' authority to detain under the original recommendation would be suspended. Apart from the possibility of recall under s17E(1) MHA 1983, and any CTO conditions, Mr B would be free to leave the hospital.

Mr B's CTO would run for an initial period of 6 months, but the Responsible Clinician could discharge him from the CTO sooner if the clinical picture improved. The CTO would also come to an end if Mr B's underlying section 3 application expired. If Mr B's mental health deteriorated, he could be recalled by the Responsible Clinician (s17E MHA 1983). Recall is possible even if he had already been admitted to hospital informally, and has the effect of restoring the Hospital Managers’ power to detain Mr B. Under the MHA 1983, detention is by the managers of the hospital ‘to which admission is sought.’ Once recalled, the responsible clinician has 72 hours to revoke the CTO which would put Mr B in the position he would have been in if the CTO had never been used. Once recalled, Mr B can be treated involuntarily in the same way as any compulsory inpatient.

The problem

The drafting of the MHA 2007 allowed for patients on CTOs to be admitted to hospital without the CTO being recalled or revoked. This is clear from the drafting of section 17E(4) which allows a Community Patient to be recalled even if they are already in hospital. Once admitted informally, the Responsible Clinician would make a decision as to the need to revoke the CTO based on the circumstances and their assessment. As emphasised by the Code of Practice ⁴ patients should be subject to as little restriction as possible. It is thus not uncommon in the authors' experience for Community Patients to be admitted informally, and to remain in hospital without being formally recalled.

Herein lies the problem. Sections 5(2) and 5(4) MHA 1983 do not apply to ‘Community Patients.’ Although such a patient has been assessed as requiring admission, and is occupying a hospital bed under the care of the inpatient unit, due to his being subject to a CTO he remains, for the purposes of the MHA 1983, a ‘Community Patient’ as defined in section 5(6). This section specifically excludes Community Patients from the definition of an in-patient, and potentially leaves the on-call doctor (inevitably a junior member of staff) without the authority to detain the patient.

By way of example, let us assume that, unable to cope in the community, Mr B is admitted informally. Should his mental health be such that he constitutes a risk to himself or others, it is likely that the Responsible Clinician would recall him formally in order to prevent him from discharging himself. If this was not initially considered justified, Mr B would be allowed to remain as an informal inpatient. If Mr B's mental health then deteriorated to the point where inpatient detention was justified the Responsible Clinician could recall Mr B or revoke the CTO.

However, if such deterioration happened at night or at the weekend, the Responsible Clinician is unlikely to be in the hospital. Without the ability to use section 5(2), it is unclear what authority the on-call doctor would have to detain Mr B pending the arrival of the Responsible Clinician. This also applies in the interim period between Mr B's first presentation at the Accident and Emergency department and his assessment by the Responsible Clinician.

Potential options

The MHA seems to expect that a Community Patient can only be detained by the Responsible Clinician. Thus the identity of this doctor bears scrutiny. The Act defines the Responsible Clinician as the approved clinician with overall responsibility for that patient's care. Approved in this context means approved for the purpose by the Secretary of State. In practical terms this is usually the consultant in charge of the patient's care.

NHS consultants routinely share responsibility across the hospital on an on-call basis. The Code of Practice states the Hospital Manager's protocols should ‘ensure that cover arrangements are in place when the Responsible Clinician is not available (e.g. during nonworking hours, annual leave etc).’ ⁶ It is not, however, clear from the wording of the Act that the definition of Responsible Clinician includes the on-call consultant from time to time. If section 34(1) is construed strictly, the patient's own consultant would be the only person able to authorise detention – potentially creating a difficult situation if that consultant was out of contact. A wide reading of section 34(1) would include the on-call consultant from time to time and would more closely reflect the clinical reality. However, even if this was the case, it is routine practice for the on-call consultant to be non-resident, leaving a period of time before they could reach the ward.

The CTO regime does include provision for emergency treatment at section 64G MHA 1983. Pursuant to this section, certain treatments can be given if a doctor reasonably believes that the patient lacks capacity, the treatment is immediately necessary and, if force is to be used, that there is a risk of harm to the patient or to others. Furthermore, treatment under this section does not need to be given by the Responsible Clinician. Such treatment must be for the patient's mental illness and not a type of treatment listed in the Act as requiring a second opinion. This section potentially gives clinicians an implied power to detain Community Patients prior to recall while such treatments are given, but it is unclear whether restraint or sedation alone would constitute a treatment for the patient's mental illness. Setting aside the legal question, it is also possible that forcible treatment by an unknown clinician may affect the patient's future engagement with mental health services. It is also notable that patients detained in this way would not enjoy the same procedural safeguards as under other sections of the Act, in terms of clear time limits, senior clinical review, and access to the Mental Health Tribunal.

A potential alternative is the use of emergency detention under section 4(2), but this requires either the agreement of an AMHP or the patients ‘nearest relative’ (as defined in the Act). If an AHMP was available, an assessment directly under section 2 could be made. This would require two registered medical practitioners and results in up to 28 days detention. In any case, there will be a period between the on-call junior doctor seeing the patient and the second doctor (and AMHP) arriving, during which there is no authority to detain the patient. This leaves the hospital open to a potential legal challenge for wrongful imprisonment in the meantime, and so presents many of the same problems as recall under the CTO.

Given the potential seriousness of committing battery or wrongfully detaining patients, medical staff are understandably reluctant to rely on common law defences such as necessity, even though they may be available in this situation. On a practical level, this problem could be avoided by routinely recalling Community Patients when they are admitted, although this then requires the Responsible Clinician to revoke or reinstate the CTO within a period of 72 hours. Assuming the CTO is revoked, patients would need to have leave from the ward authorised by their Responsible Clinician and, at their eventual discharge, a decision would have to be made as whether or not to discharge under a new CTO. Since the patient would no longer be free to leave, even if his mental health improved, this would not constitute the least restrictive option. Given the personal and professional risks to staff of unlawfully detaining a patient (or indeed allowing a potentially dangerous patient to leave), this approach is likely to find favour among the mental health professionals faced with making these decisions, but the prospect of automatic recall may deter patients from seeking help early. Given the importance of early intervention for relapsing patients, such a policy may pose a risk to both the patients' mental health and the therapeutic relationship in the longer term. This would inevitably increase the chance of harm to the patient or those around them.

A better solution would be a minor amendment to the Mental Health Act. Depending on the will of Parliament, this could clarify the definition of Responsible Clinician to include the senior clinician in charge from time to time, or remove the restriction on using section 5(2) MHA 1983 by repealing the references to Community Patients. Such an amendment would put Community Patients on an equal footing with other informal admissions, and would allow the on-call doctor to authorise detention pending a formal decision by the Responsible Clinician. Such an amendment would appear to overcome the problems attendant on the other options proposed above.

Statutes

Mental Health Act 1983; Mental Health (Patients in the Community) Act 1995; Mental Health Act 2007.

Contributors

Dr Julie Wood drafted and revised the paper, and is guarantor. Dr Robin Wood drafted and revised the paper. Dr Jan Falkowski revised the drafted paper. Josh Butler revised the drafted paper regarding legal content.