CTO’s – Fit for Purpose?

Community Treatment Orders were introduced by the 2007 changes to the Mental Health Act 1983, and came into force in 2008.

The New Code of Practice states that 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.” (Para.29.5)

It goes on to suggest that CTO’s could be regarded as fulfilling the principles of  treating patients using the least restrictive option and maximising their independence.

CTO’s have been very popular since their inception in 2008. This could be at least partly due to the process being initiated and managed by psychiatrists rather than AMHP’s, unlike with admission to hospital under Sec.2, 3, or 4, where an AMHP, as a non-medical professional, leads the process and makes the final decision.

But CTO’s have also been very contentious. Critics regard them as being excessively controlling and interfering with patients’ human rights, while supporters regard them as a way of enabling patients with severe and enduring mental disorder to live as normal and fulfilled a life as possible outside hospital.

Both views have their merits. It is one thing to argue that it is unreasonable to enforce treatment on a person who is not in a hospital, but there is also a point in arguing that it has to be better that someone remains out of hospital as long as there is a framework to ensure treatment for their mental disorder.

For compulsory treatment in the community to be justifiable, it has to be shown not only that it results in fewer admissions to hospital, but that is can also demonstrate a better quality of life for the patients involved.

So has there been a reduction in the numbers of admissions since 2008? It appears not. The Health and Social Care Information Centre (HSCIC) publish annual statistics for patients formally detained under the MHA, and for people subject to CTO’s. The figures for 2013-14 came out at the end of October 2014.

The Report states that since 2008 the number of people subject to CTO’s as of 31st March 2014 has more than doubled, an increase of 206% or 3,610. Over the same period there has indeed been a reduction in the number of people detained under Sec.3 for treatment, which must be linked to the increase in CTO’s, as patients can be recalled to hospital and their CTO’s revoked without the need for a fresh assessment under the MHA.

However, over the same period, overall detentions in hospital under the MHA have increased by a third, so that in the period 2013-14 “the Act was used 53,176 times to detain patients in hospital for longer than 72 hours” (ie. Under Sec.2 or Sec.3).

So, while there has been a reduction of people detained in hospital under Sec.3, mainly as a result of the introduction of CTO’s, overall detentions have increased to record levels.

While it may be tempting to reach the conclusion that CTO’s have not fulfilled their function of reducing admissions to hospital, the reality is far more complex, as it is likely that the nationwide cutbacks in services for people with mental health problems over the same period have contributed to this rise in acute admissions.

The only significant research into the link between CTO’s and hospital admissions is the OCTET Trial, published in 2013.

The object of this research was to see if CTO’s reduced readmission. They monitored the samples (a total of 333, of whom 166 were discharged on CTO’s and the rest on extended Sec.17 leave) for 12 months. Their conclusion was that “the imposition of compulsory supervision does not reduce the rate of readmission of psychotic patients. We found no support in terms of any reduction in overall hospital admission to justify the significant curtailment of patients' personal liberty.”

While the conclusion seemed unequivocal, I had some considerable misgivings about the usefulness of this piece of research, not least because of the miniscule size of the sample, which I wrote about on this blog back in April 2013. It is clear that much more research needs to be done in this area.

So what about the effectiveness of CTO’s in improving the quality of life of patients?

Unfortunately, there is again very little research into this, and it would appear that there is none at all in the UK. However, other countries have equivalent powers, including Australia, New Zealand, the USA and Israel, and there has been a recent review of available research, Compulsory community and involuntary outpatient treatment for people with severe mental disorders, by Steve Kisley and Leslie Campbell, which was published in December 2014.

The research looked at three trials consisting of a total of 752 people. The report concluded: “Results from the trials showed overall [compulsory community treatment] was no more likely to result in better service use, social functioning, mental state or quality of life compared with standard 'voluntary' care.”

It did note that “people receiving CCT were less likely to be victims of violent or non-violent crime.”

There are some provisos to these findings. For a start, the authors considered that the quality of evidence for the main outcomes was low to medium grade. They also noted that “other than feelings of coercion or being controlled, there were no other negative outcomes”

None of the available research satisfactorily provides evidence one way or another for the efficacy or otherwise of compulsory community treatment. All that is certain is that there should be much more research if such a potentially contentious form of intervention is to continue to be used at the current levels.

How do you define “a place to which the public have access” under Sec.136?

The ambulance or the highway?

There has recently been an interesting discussion on the Masked AMHP Facebook Mental Health Forum concerning whether or not an ambulance could be considered to be “a place to which the public have access” within the meaning of Sec.136 MHA.

Sec.136 permits a police officer who “finds in a place to which the public have access a person who appears to him to be suffering from mental disorder and to be in immediate need of care or control… if he thinks it necessary to do so in the interests of that person or for the protection of other persons, remove that person to a place of safety”. The person then has to be assessed by an AMHP and a doctor to see if they need to be detained in hospital.

The question is, of course, what exactly constitutes “a place to which the public have access”?

The New Code of Practice (para16.18) says that this “includes places to which members of the public have open access, access if a payment is made, or access at certain times of the day. It does not include private premises, such as the person’s own place of residence or private homes belonging to others”.

Richard Jones suggests that this “probably includes: public highway, public access if payment is made, eg a cinema, public access at certain times of the day, eg a public house.”

The problem with all this is that there appears to be almost no case law at all specifically relating to what constitutes “a place to which the public have access” under Sec.136. As Insp Michael Brown observed:

‘"A place to which the public has access" isn't legally defined. "A public place" is defined - at least five or six different times, depending on whether you're reading the Public Order Act, the Highways Act, the Road Traffic Act, etc., etc., etc.’

These definitions, and other case law relating to various Acts of Parliament, may assist in providing guidance. I consider some of these in an earlier blog post on this subject. In particular, they examine issues such as whether or not a garden is a public place (yes if it’s a pub garden, no if it’s a private individual’s front garden, however small.) Insp. Michael Brown, on the excellent Mental Health Cop blog, also considers possibly relevant case law at greater length.

But there’s no mention at all anywhere of whether or not a motor vehicle can be regarded as a public or a private space.

The general consensus in the Forum discussion was initially that an ambulance, or indeed any other vehicle, could not be regarded as “a place to which the public have access.”

But I was not so sure.

I took the view that a vehicle (apart possibly from a residential caravan, which although ostensibly being a wheeled vehicle has the main purpose of providing living accommodation for an individual) could not be considered to be a “place” at all. On that basis, the important and defining factor was the location of this vehicle.

Inspector Michael Brown usefully enlarged upon this:

“If you were found sitting in your own car and all other criteria were met, the police could use s136. If you were the passenger in another vehicle that was stopped by the police and the other criteria satisfied, they could use s136. I don't see how being in a vehicle alters this consideration massively - you get few legal protections in a car or truck from police activity and those are usually connected to things like powers to search it.”

I would argue that a car is simply a means of moving from one place to another, as is a bicycle, a motor cycle or a pogo stick. Would someone on a bicycle on a public highway be regarded as not being in a place to which the public have access? I think not. The mere fact that a car, or an ambulance, or a bus, has doors which can be closed from inside does not make it a “place” immune from the police exercising their powers under Sec.136.

The discussion moved to considering whether a tent was “a place to which the public have access.” Again, several people regarded the interior of a tent as being a private space.

An anonymous commentator on my blog has said: “I was put on a Section 136 whilst I was asleep in a tent at a festival last summer. I woke up as the police grabbed my ankles to drag me out.”

The writer was understandably annoyed at this rude awakening, but I have to conclude that merely being surrounded by canvas does not make one immune from Sec.136. If that was the case, then your clothing could constitute such a “place”.

Again, it all comes down to location: if the tent is pitched in “a place to which the public have access”, then it is fair game. If, however, it is pitched in your back garden, or someone else’s back garden with permission, then you are not in “a place to which the public have access” and you will be safe from the attentions of the police -- unless they have a warrant under Sec.135.

Now there is some case law about what constitutes a “road”. Alun Griffith (Contractors) Ltd v Driver and Vehicle Licensing Agency [2009] EWHC 3132 (Admin), [2010] RTR 7) established that a grass verge on the edge of a road constitutes part of a public highway, and even if it is behind a crash barrier, it could still be regarded as “a place to which the public have access". So you can’t pitch your tent on the grass of a roundabout with impunity.

There are indeed places that would be universally regarded as “a place to which the public have access”, such as a street, a park, common land, a public house, an A&E department of a hospital, and there are places that would be regarded as private places, such as a private home, a private garden, a hospital ward, an office, etc.

There are also places which are more difficult to categorise, such as a communal area in a block of flats, or a residential barge or houseboat. But the overarching rule in this case is “location, location, location”.

I am confident that the police can happily continue to detain people under Sec.136 found in a tent, a bivouac, a car, a van, an ambulance, or a canoe, providing that object is in “a place to which the public have access”.

And the only thing stopping them would be a complaint to the courts resulting in case law that defines once and for all what actually constitutes “a place to which the public have access”.