Abstract
<p>A community treatment order is now a well-established feature of various common law jurisdictions in North America and Australasia, and in other countries. Its introduction into England and Wales was a central part of the government’s drawn out reform of the Mental Health Act 1983, and it attracted heated debate as part of the Parliamentary process, both in the exchanges between Parliamentarians and the evidence and briefings filed by interested parties. A CTO provision was introduced with a speedier gestation period in Scotland. But there is no single form of “community treatment order”; and there may also be different policy objectives. What is usually central is the desire to provide a regime for patients who are assessed as being able to function in the community so long as they accept medication but who may disengage from treatment and relapse to the extent that they require in-patient treatment: the description “revolving door” is often attached to such patients and was during the course of the debates.</p><p>The first question to be explored is whether what emerged in the Mental Health Act 2007 is much different from what already exists in relation to such patients: if it is and it allows community treatment which was previously not available, the further question is whether that is a good thing in light of the experience of other jurisdictions that have CTO regimes. If it is not, there are two further questions: firstly, why has something called a CTO been introduced if it does not amount to a change of substance; and secondly, is it a missed opportunity in light of the information from other jurisdictions – in other words, would a substantive change provide benefits which England and Wales is now missing?</p>
Highlights
A community treatment order is a well-established feature of various common law jurisdictions in North America and Australasia, and in other countries
Its introduction into England and Wales was a central part of the government’s drawn out reform of the Mental Health Act 19832, and it attracted heated debate as part of the Parliamentary process[3], both in the exchanges between Parliamentarians and the evidence and briefings filed by interested parties
The first question to be explored is whether what emerged in the Mental Health Act 2007 is much different from what already exists in relation to such patients: if it is and it allows community treatment which was previously not available, the further question is whether that is a good thing in light of the experience of other jurisdictions that have CTO regimes
Summary
(i) The Current Law Until the relevant portions of the Mental Health Act 2007 are brought into effect[5], the existing provisions in the Mental Health Act 1983 will govern. The criteria for the use of a CTO are that there be a mental disorder requiring treatment for the protection of the patient or others (and that appropriate treatment be available36), but that “such treatment can be provided without his continuing to be detained in a hospital” though with the additional point that it is necessary that the power of recall to hospital be available[37]. In assessing whether the latter test is met, the “responsible clinician”[38] must consider the risk of deterioration in the absence of detention in hospital[39]. It is a shuffling around of the deck of powers rather than the addition of new ones
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