Mental health law briefing 161 – CQC annual report highlights concerns over the use of CTOs

In November 2010, the Care Quality Commission (CQC) produced its first annual report on the operation of the Mental Health Act. The report discussed findings made by CQC’s Mental Health Act Commissioners and Second Opinion Appointed Doctors (SOADs) when visiting psychiatric wards throughout England during 2009/10.

A significant section of the report looked at the use of community treatment orders (CTOs), which in 2009/10 greatly exceeded the number anticipated. CQC raised some concerns about how CTOs are being used, and the extent to which patients are able to participate in planning the detail of their orders. This briefing highlights some of the concerns raised and offers guidance to providers on how they might be addressed.

Lack of communication

CQC identified that there is often little communication between the team responsible for the care of the patient in the hospital and the Community Mental Health Team responsible for aftercare. For example, CQC have been informed of patients being discharged from hospital on a CTO without the community team being aware that the patient has been discharged or a CTO made.

This has unsurprisingly led to problems in later care arrangements for CTO patients, who are liable to formal recall to hospital at any time. A hospitalbased consultant is often appointed as the responsible clinician for a CTO patient recalled to hospital, and then has to make important decisions about the patient (such as whether or not to revoke the CTO) with little or no prior knowledge of the patient concerned. A community clinician would obviously be better placed to undertake this role.

Hospital administrators should try to ensure that the approved mental health professional (AMHP) involved in decisions on a patient’s recall to hospital is, wherever possible, someone from the patient’s team, rather than a duty AMHP who may be unfamiliar with the patient.

Applications for CTOs

To make a CTO, the responsible clinician must complete a  statement on form CTO1, and the AMHP must then sign a
similar statement on the same form. Although the Act does not set a limit on the time that may pass between these two statements, CQC have warned that a significant lapse of time between the two professionals’ certification may call into question the legality of the subsequent order. [1]

It is therefore good practice to avoid such long periods between the two statements wherever possible. Alternatively, the responsible clinician could recertify his opinion at a time closer to when the AMHP will also certify the form.

Although neither the Act nor the Code of Practice require the AMHP actually to meet with the patient prior to certifying the CTO1 form, examples have been brought to light whereby the AMHP has merely looked at the medical file and clinician’s statement. CQC have said that, ideally, the AMHP who is consulted over starting or renewing a CTO should already be involved in the patient’s care and therefore well placed to take account of the patient’s wider social context.

AMHP background reports for CTOs 

When a patient is first admitted under detention, it is good practice for the AMHP making the application to leave an outline report for the  hospital, giving reasons for the application for admission and details of any practical matters about the patient’s circumstances that the hospital should know about.

CQC have stated that it is good practice for the AMHP to make a similar report when supporting the initiation, renewal or revocation of a CTO. Consideration should be given to whatever support networks the patient may have, the potential impact of the CTO on the patient’s family and employment issues.

Statutory Consultees for Second Opinions 

The Code of Practice gives apparently misleading advice over who may be a statutory consultee for a second opinion in relation to a patient subject to a CTO. CQC have confirmed that, for CTO patients, one consultee must not be a doctor, and neither may he be the approved Responsible Clinician or the clinician in charge of the patient’s treatment. CQC have stated that the Code should be amended to give correct advice as soon as the opportunity arises, as this has led to unnecessary confusion.

Recall to Hopsital and Patient Safety

The Act requires that the patient is served with a written notice of recall to hospital on form CTO3. The Code of Practice suggests that the notice should normally be handed to the patient personally (in which case it takes immediate effect), but should otherwise be delivered to the patient’s usual or last known address, where it is deemed to have been served on the second working day after posting. Even when the notice is delivered to a patient’s address (but not to that patient personally) the law requires that it is only deemed to have been served on the following day. This may leave a dangerous gap in the authority to convey a patient back to hospital when the need to recall is urgent.

CQC have also warned that a recall notice may trigger a dangerous reaction in a patient whose mental state is in crisis and therefore any period between receiving the recall notice and it being acted upon is a time of heightened danger.

CQC have drawn attention to the fact that, although the power to apply for a warrant to retake the patient under section 135(2) will not come into force until the notice has been deemed served, in the meantime it may be possible for authorities to apply for a warrant under the more general powers of section 135(1). This will enable the patient to be taken to a place of safety prior to the recall notice being put into effect.

Detaining CTO Patients

Patients subject to CTOs are frequently treated as informal patients, either because they have asked for admission or because they have agreed to remain in hospital on an informal basis following a recall. Although these arrangements are in the spirit of using the least restrictive means practicable for patients, and should arguably be encouraged, procedural problems may arise if a CTO patient wants to leave the ward and nursing staff or clinicians feel that this should be prevented. This is because patients subject to a CTO are excluded from the scope of holding powers under section 5 of the Act.

Patients subject to a CTO can be “recalled” under section 17E of the Act notwithstanding the fact that they are already in hospital. However, the recall of a CTO patient can only be undertaken by the Responsible Clinician. The Responsible Clinician is unlikely to be as readily available as the range of people who can use section 5 holding powers.

It is important that staff do not purport to hold a CTO patient under section 5 powers, as they would have no lawful authority for their action. In practical terms, staff who recognise a genuine need to prevent a patient from leaving a ward in such circumstances may have to resort to common law powers of restraint or detention until the power to recall can be exercised. [2]

This should not however create a reluctance to offer informal admission to CTO patients where it would be appropriate, or to put pressure on the AMHP to support revocation of the CTO where this is not really necessary, as this itself may potentially be unlawful.

Consent to Treatment and CTO Patients

In almost all cases, CTOs are used to try to ensure a patient’s compliance with psychiatric medication after discharge from hospital. However, the patient placed on a CTO cannot be compelled to take medication to which he or she refuses consent, at least while he or she remains in the community and is not recalled to hospital. Therefore, if a patient chooses not to comply with medication whilst in the community, medication may only be forcibly given if recalled to hospital.

It is also important to remember that legal authority to treat a CTO patient in the community ultimately comes from the patient’s valid consent to that treatment, or from the Mental Capacity Act 2005, if the patient is incapable of giving such consent. In either case, there must also be a SOAD certificate in place after the initial period. This means that, for a CTO patient, the certificate issued by the SOAD under Part 4A of the Act is necessary but is not sufficient lawful authority to compel treatment without consent on a capacious patient while the patient remains in the community.

Consent to Treatment and CTO Patients

In almost all cases, CTOs are used to try to ensure a patient’s compliance with psychiatric medication after discharge from hospital. However, the patient placed on a CTO cannot be compelled to take medication to which he or she refuses consent, at least while he or she remains in the community and is not recalled to hospital. Therefore, if a patient chooses not to comply with medication whilst in the community, medication may only be forcibly given if recalled to hospital.

It is also important to remember that legal authority to treat a CTO patient in the community ultimately comes from the patient’s valid consent to that treatment, or from the Mental Capacity Act 2005, if the patient is incapable of giving such consent. In either case, there must also be a SOAD certificate in place after the initial period. This means that, for a CTO patient, the certificate issued by the SOAD under Part 4A of the Act is necessary but is not sufficient lawful authority to compel treatment without consent on a capacious patient while the patient remains in the community.

Patient Involvement as a Key to Successful CTO Interventions

CQC have discovered that those patients who are positive about their experience under a CTO are those that feel supported by, and involved in, their Care Plans. They have therefore encouraged patient involvement in Care Planning, to ensure that patients do not view the CTO as simply a mechanism to enforce compliance with medication.

Patients are more likely to show a willingness to cooperate with their Care Teams if they are provided with appropriate support, which might include:

  • Giving CTO patients access to an out of hours telephone number so that they can contact professionals in a crisis. 
  • Informing families and carers whether respite care is available and who to contact about this.
  • Giving patients a contact within Occupational Therapy Services and providing them with daytime activities as part of their care package.
  • Informing patients of advocacy services available to them. 
  • Offering patients appropriate support with regard to their medication e.g. informing them who to contact if they experience any side effects of their mediation.

Footnotes
[1] In one case in January 2010, the initial doctor’s statement had been completed 7 months before the AMHP had certified the CTO1 form. CQC held that such a lapse of time was not acceptable.
[2] See RadcliffesLeBrasseur Mental Health Law Briefing 153


Disclaimer

This briefing is for guidance purposes only. RadcliffesLeBrasseur accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.

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