Does anyone know whether there has been a challenge to the CTO statutory criteria on the basis that the patient only needs to have a Mental disorder of a nature and degree making it appropriate for him to need medical treatment rather than appropriate for him to be subject to CTO in order to receive medical treatment? (I.e anyone on meds has a mental disorder of a nature and degree requiring treatment so how would anyone on meds ever successfully challenge on this ground?) The second branch also only requires treatment rather than treatment under CTO.
I have always gone for liability to recall instead because of this but wonder if it could be argued that it implicitly refers to medical treatment under CTO not medical treatment per se.
I have always taken the same approach as you, as I also think that the nature/degree/health/safety/others wording only applies to medical treatment. If you’re arguing for the patient to continue treatment you realistically have to concede those criteria (and appropriate medical treatment), and focus on the need for the recall power. The same factual points may be relevant.
It could be argued that the criteria apply to medical treatment “while under a CTO” - it may be what was intended by the draughtsman and I think most people think this is what it does mean - but there has been no published case on this point.
I was thinking about this again recently. What seems to happen is that the tribunal addresses the necessity criterion in s72(1)(c)(ii) in the same way as it would for detention cases, where “such treatment” refers back to the previous criterion which is about treatment while detained in hospital – even though for CTOs the previous criterion is only about “treatment”.
But I can’t think of a way to challenge it in any individual case – is there much difference between these two approaches?
- The tribunal addresses the risk factors in relation either to “what would happen if the CTO were discharged?” or “is treatment on a CTO necessary?” (the background being that without the CTO the patient would stop the medication).
- The tribunal reads the section literally and addresses the risk factors purely in relation to whether treatment is necessary.
It seems to amount to the same thing, the first approach just being unnecessarily convoluted.
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I think in the majority of cases I’ve had the Tribunal interpret it to mean any medical treatment, not just treatment being provided under the auspices of a CTO. In a case where a patient has insight and my client accepts the need for treatment, I’ve always conceded the other criteria and focussed on the necessity of recall. Although at times that has tripped me up where Judges take alternative views (e.g. I had indicated I wasn’t contesting the risk criteria then was criticised when I asked a question about risks justifying the necessity of recall).
I’m honestly not sure it makes any difference as the necessity of recall incorporates the risk criteria of the CTO continuing or not. At best, the Tribunal finds that neither are met (and that might technically be wrong in law on their findings but you’re not going to appeal a win!), and at worst the Tribunal finds that both are met but s72(1)(c)(ii) is a much lower threshold than s72(1)(c)(iii) so there’s no remit to appeal unless you’re appealing both.
I reckon you’d need the edge case of all edge cases to even consider appealing on the wording, and I’m not convinced it would make a difference in the decision. It’s a fun little thought experiment though.
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