Long before Community Treatment Orders (CTO) came into force concerns were raised over possible infringements of human rights, in particular where conditions imposed as part of any CTO might be too restrictive. At the extreme end of the spectrum there will be cases where a patient under a CTO is or needs to be managed in circumstances amounting to a deprivation of liberty. The question is whether this is lawful and, if not, what can be done?
The Code of Practice to the Mental Health Act (Code) at paragraph 25.34 suggests that the discretionary conditions imposed under a CTO might cover matters such as where and when the patient is to receive treatment in the community, where the patient is to live and avoidance of known risks, all of which could theoretically create a form of detention in the community.
Whatever the requirements of the Mental Health Act, there is an overarching human rights dimension. Article 5 of the European Convention requires any such detention to be in accordance with a procedure prescribed by law and with speedy access to a Court. Article 8 protects the patient’s right to privacy and family life, which can only be interfered with in accordance with what is necessary in a democratic society, such as to maintain public safety. Any conditions imposed as part of a CTO will be subject to these Articles.
If a patient freely consents to being deprived of his or her liberty, Articles 5 and 8 do not engage. Paragraphs 25.41-44 of the Code suggest that the patient’s agreement should be obtained before a condition is set and that it is bad practice to vary any condition without consulting the AMHP. The implication here is that that the implementation of conditions should be consensual rather than coercive.
Even where conditions imposed do amount to a deprivation, there is a strong case for saying that they are unenforceable. A patient can breach a discretionary condition with impunity as he can only be recalled if the recall criteria are met. Since the patient’s freedom is not therefore being curtailed neither Articles 5 nor 8 have effect.
However, even if these Articles do engage, the regime allowing variation of conditions will not necessarily fall foul of Convention obligations. A key concern is that the Responsible Clinician can vary conditions without any checks or balances. Arguably, this may be in breach of Article 5 in that although it involves a procedure prescribed by law, it potentially enables an arbitrary deprivation of liberty with no safeguard to protect the patient. In HL –v- UK, the European Court criticised the absence of procedural rules where a patient was detained under the common law doctrine of necessity without any protection. But in so far as variation of conditions amounts to a procedure, it is prescribed by law. In the same way, the Deprivation of Liberty Safeguards procedure is prescribed by law but contains no real safeguards, and an Authorisation must be imposed if two assessors make positive assessments and recommend one. The procedure for imposing conditions on a community patient is just as likely to satisfy the requirement to be prescribed by law.
Nor can it realistically be argued that patients will lack speedy access to a Court. Whereas a patient under a Deprivation of Liberty Authorisation can seek help from the Court of Protection, this currently entails significant delays; a patient under a CTO can seek redress against punitive conditions from the Administrative Court, which can usually deal with urgent cases within a matter of days.
Although it does not say so in terms, the Code appears to frown on the use of conditions to impose a deprivation of liberty requiring them to restrict the patient’s liberty as little as possible without actually forbidding detention (see paragraph 25.33). The Code of course is only guidance, and may be departed from with good reason. As such, in exceptional cases where a community deprivation of liberty is the only means of protecting patient and public, this may be sufficiently good reason to justify departing from the Code.
By way of comparison there are strong arguments to suggest that Guardianship permits a deprivation of liberty. It is, of course, true that the Code of Practice to the Mental Capacity Act specifically forbids this; it is also true that the statutory provisions for imposition of Guardianship do not in terms authorise detention. Furthermore, domestic Courts have been quick to quash the exercise of powers to impose non-derogating control orders of terrorist suspects which lead to a deprivation of liberty where those powers do not specifically confer such a right to do so. Yet in the case of a Community Treatment Order, the detaining power under s.3 is only held in abeyance. The patient does therefore remain liable to be detained, even though for the currency of the CTO, the Managers cannot exercise the power to do so.
The argument as to whether conditions can lawfully impose a deprivation of liberty is yet to be resolved. There will be cases where capable patients can only realistically be managed in the community in circumstances which amount to detention. Back in 1998, the then Home Secretary criticised psychiatrists for failing to modernise their practices. Of course, it will be said that a bad workman always blames his tools, but clinicians will find themselves having to decide on the freedom of a capable community patient only to discover that the law does not give clear protection, either to them or their patients. Care providers will need to consider carefully whether they can secure the patient’s agreement to the measures imposed, they will need a contingency plan to deal with the possible need to seek formal detention or guardianship. Ultimately, if there really is no alternative, a deprivation of liberty may be lawful but those making the decision will need to consider carefully if the care regime can be modified to become restriction rather than detention. While that is easier to write than to do it would probably be right to exercise caution in favour of the patient, if only to satisfy the first rule of risk management, which is that where there is an interesting legal precedent at stake, it is usually more cost-effective for another organisation to establish it.