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.