Lawfulness of conditions of residence


Continuing the discussion from CTO & s117 responsibility:

I thought “residing at a particular place/ address” cannot be a CTO condition and only DoLS can cover residing ar condition……

A residence condition should normally be fine. CTO conditions can’t be used to deprive people of liberty. But a residence condition by itself doesnt do that. It just means the person has to live at a particular place.

Only if there were purported extra requirements like not going out unescorted without permission would it be likely to tip over into impermissible DoL territory.

In any case, a residence condition in a CTO cannot be directly enforced - there’s no power to make the person go back if they choose to leave.

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Richard, I have been undertaking CTO MHA Assessments for all of the 17 years since they were brought in and I have never once ever come across an RC putting a residence condition on a CTO form. That is because residence is not one of the conditions allowable with a CTO. Residence conditions are for s.7 Guardianships. RCs should never put a residence condition on a CTO form.

Neil - I’ve never been a practitioner, so I don’t dispute what you say about the lack of residence conditions in practice (though I am a bit surprised). But it is definitely possible, in principle, to include a residence condition in a CTO (they are mentioned specifically in para 29.32 of the (English) MHA Code of Practice, for example). I agree such a condition wouldn’t have the same legal effect as one imposed under guardianship - or indeed much legal effect at all. But that’s true of all CTO conditions apart from the two mandatory ones.

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Residence conditions are not uncommon in my experience. They seem a bit pointless given their unenforceability but I suspect are purposely used as ‘soft power’ at times.

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The first paragraph of Care Quality Commission, ‘Mental Health Act community treatments orders (CTO) - focused visits report’ (1/11/22) is:

Introduced as part of the Mental Health Act (MHA) in 2007, community treatment orders (CTOs) enable people detained under the MHA to be discharged into the community providing they meet certain conditions. This may include, for example, living in a certain place, attending appointments with mental health professionals, or not taking drugs and drinking alcohol. If they don’t comply, they may be recalled to hospital under the MHA.

The word “may” is doing a lot of heavy lifting, but from the introduction and from the following comments in their section on “Discretionary CTO conditions” it seems that they are not averse to residence conditions per se:

Elsewhere, we found 2 CTO1 forms containing a discretionary condition that the patient must reside at a specified residential home. It appeared that these patients might lack capacity to agree to living at the home for the purposes of receiving care and treatment for mental disorder. We advised the trust to review these cases for potential deprivation of liberty.

We found 20 CTOs with a discretionary condition that the patient must reside at a specified address. The therapeutic purpose of this condition was not addressed in the patient’s care plan and we could not readily find justification for the restriction in the patient’s progress notes. We also found 5 CTOs with a condition that the patient must live wherever the clinical team decided. We took the view that this type of condition did not strongly show a clear purpose or have regard to the principle of the least restrictive option and maximising independence.

You make a good point Daniel. And I appreciate Richard Rook’s point too. The thing about CTOs is that the MHA Wessely Review in 2019 and the Parliamentary Scrutiny Committee (PSC) 6 months ago, both noted what you stated about “soft power” and also noted that CTOs were not just “soft power”! The PSC recommended to the government that CTOs be removed from the new MHA. AS a member of the National AMHP Leads Steering Group and someone who delivers Race Equality Training, I really do understand why that recommendation has been made.

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Thank you Jonathan for sharing that.

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