Tribunals and tribulations

Simon Lawton-Smith

Simon Lawton-Smith argues that Scotland's experience of compulsory community treatment orders provides some useful pointers for the forthcoming Mental Health (Amendment) Act in England and Wales.

Publication:  Mental Health Today
Reference:  Mental Health Today, December 2006, pp 32-34

In recent years, a growing number of jurisdictions around the world have introduced powers to compel certain people with mental disorders living in the community to engage with mental health services and comply with treatment.

The primary objective of compulsory community treatment is to ensure that people with a serious mental disorder living in the community receive the treatment that is considered necessary for them. It is aimed primarily at ‘revolving door’ patients: users of mental health services who become ill, have to be admitted to hospital, recover and are discharged, but then fail to engage with services, stop taking their medication, relapse, and require further (and sometimes frequent) hospital admission.

It is also intended to reduce risk of harm, whether to the patient him or herself, or to others. A number of countries have passed compulsory community treatment laws as a result of a homicide or other act of violence committed by a patient who had defaulted on their medication regime.

Scotland is the first UK country to introduce powers of compulsory community treatment, through the Mental Health (Care and Treatment) (Scotland) Act 2003, which came into effect on 5 October 2005.

Under the Act, a mental health officer (MHO) can apply to the Mental Health Tribunal for either a hospital-based or community-based compulsory treatment order (CTO). The Tribunal can either place a person directly under a community-based CTO, or may make an application to convert an existing hospital-based CTO to a community-based CTO, if it is considered that the person no longer needs to be in hospital.

In the case of a community-based CTO, the Tribunal may set certain conditions, such as requiring the patient to receive treatment as instructed, attend certain community care services, reside in a particular place in the community, and allow visits to their home by people involved in their care and treatment. As a sanction, the community-based CTO includes the provision for a patient who does not attend for medical treatment to be taken to hospital for the purpose of receiving that treatment, and to be detained for up to six hours.

In England and Wales, the government had originally planned to introduce similar CTO powers through a Draft Mental Health Bill, published for consultation in 2004. However, following concerns expressed during the consultation, it decided to drop this Bill and instead introduce a shorter piece of legislation amending parts of the Mental Health Act 1983. This amending Bill will provide for clinician-authorised supervised community treatment (SCT) rather than Tribunal-authorised community-based CTOs, as in Scotland. The effect, however, is similar.

The research

Early in 2006 The King's Fund decided to review the initial impact of the new community-based CTO arrangements in Scotland in order to inform the debate surrounding compulsory community treatment in England and Wales. The aims of the research were:

  • to establish the number of people in Scotland subject to compulsory community treatment in the first six months of operation of the Scottish Act (ie, 5 October 2005 to 31 March 2006)
  • to analyse the various routes leading to compulsory community treatment
  • to explore the impact of the new arrangements on mental health staff
  • to assess the likely early impacts of introducing compulsory community treatment in England and Wales by drawing on Scotland’s experience of community-based CTOs.

It is important to note that the review did not examine the clinical effectiveness of community-based CTOs in Scotland, as it was thought that it was too early to make a judgement about this.

The review sought quantitative data on the use of community-based CTOs from the Mental Welfare Commission for Scotland and the Mental Health Tribunal for Scotland. Semi-structured interviews were carried out in May 2006 with 10 individuals involved in the implementation and monitoring of the compulsory CTO process. In addition, two telephone interviews were undertaken and written comments on the interview questions were received from four mental health staff in Glasgow and one service user group.

The review looked at published articles and other literature on the use of community-based treatment powers in other countries where they have been implemented. It supplemented this with a web-based search for articles, briefings and guidance on community-based CTOs in Scotland.

Not all the quantitative data can be considered complete, and so this data should be treated with some caution. In addition, although efforts were made to interview a representative range of professionals involved in the community-based CTO process in Scotland, the qualitative data obtained was limited by the small number of people interviewed, and so the views expressed cannot be regarded as wholly representative.

Findings

Findings from the review focused on the numbers of people placed on a community-based CTO, the Act’s impact on mental health staff, and the availability of resources.

The financial memorandum presented by the Scottish Executive in 2002 estimated that, at any one time, there might be about 200 people subject to community-based CTOs.

Numbers

The data (see Table 1) suggests that a total of 176 people were subject to community-based CTOs during the first six months of the Act’s use. A total of 144 community-based CTOs were authorised during that period, and 32 people previously under community care orders (CCOs) were deemed transferred to community-based CTOs on 5 October without recourse to the Tribunal.

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It was not possible to source data on the number of people who may have been discharged from a community-based CTO in the first six months of the Act’s use. However, allowing for a small number of discharges, the total number of people under a community-based CTO at 31 March 2006 can be estimated as about 160.

Although incomplete, a Mental Welfare Commission snapshot taken on 4 January 2006 indicated that 63 people had at that date been placed under a community-based CTO, either by the Tribunal or through transfer from a CCO.

Pathways

In the first three months of the new CTO arrangements, slightly more people were placed under community-based CTOs following an application to the Tribunal than through conversion of a hospital-based CTO. However, in the second quarter significantly more people were placed under a community-based CTO through conversion of a hospital-based CTO. This bears out the perceptions of the mental health staff interviewed that by far the most common pathway to a community-based CTO was via a hospital-based CTO.

Impact on professionals

Many of those interviewed talked about the complexity of the new arrangements and the additional burden of bureaucracy imposed by the application and Tribunal processes. One interviewee from a mental health charity linked a perceived shortfall in resources and the extra pressures caused by the Act:

'I think my main impression is complete overload. The sort of example I've had is this bit about if you have to attend a tribunal that means you might not be able to have your clinic. It’s a real practical difficulty and it’s been quite a challenge for MHOs too, because they’ve got a very much extended role. It's tended to be added on to existing workloads in local authorities. I think there’s a lot of professionals feeling quite punch-drunk.'

In particular, concern was expressed that, as a consequence of this pressure, staff had less time available for voluntary patients.

Despite this criticism of the process, there was unanimous agreement among interviewees that the new arrangements were an improvement over the previous ones in terms of fairness to the patient, the opportunity for many more patients to have their views taken into account, and the clarity of the criteria laid down under the Act for placing someone under compulsion. As one put it:

'There is more user and family involvement in the overall treatment package and the process for obtaining this, ie, tribunal services, named persons and advance statements, clients’ right to advocacy and legal representation. There is also more accountability and transparency from professionals involved in care.'

A number of interviewees suggested that many professionals were still learning about the Act and the new community-based CTOs. The service user group interviewed for this research thought patients, families and carers, perhaps not surprisingly, appeared to know relatively little about community-based CTOs unless they were personally involved in the process itself.

Resources

The financial memorandum accompanying the Bill4 estimated that the additional costs associated with the new legislation would amount to £23.1 million per annum, with one-off start-up costs of a further £9.25 million to be met before the end of 2007/08.

The total estimated costs to local authorities of £13 million included £2 million to improve the packages of care available to people subject to community-based CTOs, in order to meet the principle of reciprocity set out in the Act. In addition, it included £2.5 million for 45 new full-time-equivalent mental health officers. NHS Scotland costs also included an extra £2 million to ensure comprehensive support for patients in the community, and another £1.5 million for additional psychiatrist workload.

The Scottish Executive provided local authorities with additional funding amounting to £1.2 million in 2003/04, £12.5 million in 2004/05 and £13 million in 2005/06. Local authorities will continue to receive the additional annual £13 million, until otherwise announced, to meet the additional resource demands of the Act. Since the passing of the Bill, additional funds have also been distributed to NHS boards in Scotland, to be invested in implementing the Act. These amount to £0.95 million in 2003/04; £4.76 million in 2004/05; £5.08 million in 2006/07, and (provisionally, at the time of writing) £5 million in 2007/08.

Despite this commitment, as at May 2006, when the research interviews were undertaken, there appeared to be little or no awareness among frontline staff of any increase in resources. The mental health professionals felt that the extra work involved in applying for a community-based CTO and in providing the services required under care plans was simply adding to an already heavy workload. This problem was said to be compounded by a shortage of mental health officers. The application process was said now to take longer, and Tribunal hearings to authorise compulsory treatment were felt to take up much more time than the hearings in Sheriff’s courts under the previous legislation.

The care plans for people subject to community-based CTOs appeared to include a full range of services. However, it was not yet clear whether these services were actually being delivered.

Conclusions

Emerging from this review of Scotland’s early experiences of introducing community-based CTOs are a number of points that are significant for both the Scottish Executive and Scottish statutory mental health agencies and the Department of Health in London, with respect to England and Wales.

Key points for Scotland

Despite being criticised as being burdensome, the new community-based CTO arrangements have generally been welcomed in Scotland. There is no evidence of any significant increase in the use of compulsion, or that the arrangements are failing or being abused. That there were about 160 people living in the community under a community-based CTO at 31 March 2006 indicates that the process appears to be working.

Mental health staff appreciate the powers that the new community-based CTO provides but have serious reservations about the administrative process. However, as the Act becomes more entrenched and better understood, and as the Tribunal system overcomes some initial teething problems, these problems faced by staff should lessen.

At the time of the research interviews, there was a widespread impression that no new resources had been made available to expand service provision for people on a community-based CTO. This suggests that the Scottish Executive, NHS bodies and local authorities need to provide clearer information about where the extra money earmarked for implementing the Act has been spent.

At this stage, the picture in Scotland appears to be one of cautious optimism. The process, despite some early difficulties, is largely working, and the new community-based CTO arrangements seem to be reasonably well understood, and applied only to those for whom they were intended, as a genuine alternative to being detained in hospital.

However, this optimism is tempered by the burden of increased bureaucracy and workloads on mental health staff, who see little or no sign of extra resources, and a concern that, by absorbing the lion’s share of resources, community-based CTOs may result in fewer services available for other people with mental health needs. It also remains to be seen whether community-based CTOs are bringing the hoped-for improvement in patient outcomes – an issue the research did not cover.

Lessons for England and Wales

There are a number of lessons from Scotland that may be relevant to supervised community treatment (SCT) in England and Wales.

The widespread acceptance of community-based CTOs in Scotland is the result of the orders being seen as fairer for the patient and applying only to a very specific population of 'revolving door' patients. If SCT is to be accepted in England and Wales, then the legislation and code of practice will need to ensure that the powers transparently bolster patient rights and are limited to this group of patients.

The Department of Health should make clear, well before implementation, its transitional arrangements for people who are to be automatically transferred from existing orders to the new SCT order, and ensure that the staff involved fully understand the process and what the orders require of them and the patient.

In order for new SCT arrangements to be used appropriately and effectively, it will be necessary to allay professionals’ concerns about the possibility of an increased burden of bureaucracy, while ensuring fairness to all parties and building in all necessary safeguards for patients

Commissioners of community mental health services in England and Wales will need to be aware that, as with community-based CTOs in Scotland, the introduction of SCTs is likely to mean higher levels of services required in the community. They should plan and commission services to ensure that service providers have adequate resources to implement fully SCT patients’ care plans, while in no way reducing the level of services available to other people with mental health needs.

It will be important to ensure that any extra central government or local authority funding allocated for the implementation of the SCT arrangements is clearly seen to be spent for that purpose.

Before any new powers come into effect in England and Wales, resources and time need to be made available so that all staff involved with SCT can be trained in the new powers, with regard both to their own and others’ roles and responsibilities.

In drafting new legislation and revising the Code of Practice, the Department of Health should consider how the reported advantages of the new Scottish Act, such as the guiding principles being written into the Act and the inclusion of advance statements and patients' right to advocacy can be used to underpin the proposed SCT arrangements for England and Wales.