Reading CQC’s depressingly predictable report on the services in Nottingham I see they have chosen to disinter the old topic of s2 vs s3. They include this statement
Detaining individuals under section 3 provides additional powers under the MHA including discharge onto a community treatment order (CTO).
Does anyone have any idea what they mean by ‘additional powers’?
Nick I think they mean additional duties under S 117 plus being able to transfer someone on to a CTO.
Jonathan.
I presumed they meant the CTO thing, even if only that. I suspect they cling to the idea that CTOs help the revolving door patients to prevent the cycle of crisis - admission - recovery - relapse - crisis - repeat.
But they did seem to suggest depot injections could be given under s3 as if to suggest they can’t under s2 and most comment since the report indicates that’s not true at all even if it would be unusual with a patient still under assessment.
Agree the claim is mysterious beyond the point about the CTO.
It would be nice to tbink that CQC had s.117 duties in mind as Jonathan suggests. However, I have read the report twice and cannot find a single reference to s.117 or aftercare duties, even though it mentions the statutory guidance on discharge from mental health inpatient settings which has a whole appendix on s.117. Does this mean that Mr Calocane had a s.117 plan but CQC didn’t think it worth mentioning- in which case, why not? Or that he didn’t have a s.117 plan and CQC didn’t notice the omission? Or that they wrongly believed the s.117 duty lapsed when he was readmitted under s.2? Does anyone know?
As to the mysterious additional powers under s.3, I have to agree that this amounts to the option of a CTO, which might have been helpful or maybe not.
It’s a shame that these legal points weren’t picked up before the report was published as they detract from an otherwise important piece of work.
As far as I can work out after 31 years as an ASW/AMHP, there are no extra powers with section 3. It lasts longer than section 2 and you can put someone on a CTO after it but I can’t think of anything else.
I wonder if the CQC Review team had anyone with legal expertise, let alone an AMHP who would know the realities of risk management in the community under the Human Rights Act 1998, where forced treatment with medication of someone in the community is outlawed!
Whilst the CQC comments could be seen as being accurate in risk management terms, CTOs do not ensure patients in the community under them are automatically seen and monitored. Patients can still go off the radar. And when the team want to recall them they sometimes cannot find them. Even if they do find them and issue the recall notice the state of the mental health system is such that the wait for a bed can be over two weeks on occasions, so what level of extra protection is that? Yes, better than leaving the person in the community with no follow up true, but not guaranteed to prevent deaths occurring.
There are many psychiatrists in England and Wales who believe CTOs should be scrapped because they don’t really work. The Octet Report is a reference for this.
What troubles me is that the parents and families of the victims seem to think that people can be forced to take medication in the community, which is not possible due to the Human Rights Act 1998.
The BBC news item unfortunately repeats the legsl errors in the CQC report. Breach of a CTO condition of treatment does not automatically lead to recall. Mr Calocane could possibly have been treated without his consent in the community on a CTO- it’s not banned outright, and has been authorised for depot by the Court of Protection- but only if he lacked capacity to consent to it (see provisions in ss.64A ff). And if he were strenuously resistant it would be very difficult to justify anyway, both morally and physically, and would indeed raise human rights issues. Plus the practical problems with operating the CTO that Neil has highlighted.
It’s unfortunate that these misunderstandings by the CQC inspectors have been repeated by the BBC. If anyone is in a position to write them a comment it might be worth doing.
100% agree with you
From memory, the OCTET trial only involved patients for whom the RC couldn’t decide whether a CTO would be better or worse than s17 leave.
Hi Simon, I was trying to find the caselaw about the Court authorised Depot recently but couldn’t find it! Can you remind me of the case please? (not that it sounded appropriate in this case)
Hi Chris, I am aware of two cases about depot medication for incapacitated objecting CTO patients being authorised by the Court of Protection under s.64B(3)(b)(ii) MHA. They aren’t officially reported but are described in the 39 Essex Chambers Mental Capacity |Report (as was) of October 2018. The patients are known as AB & RC. The discussion of the cases, and the wider situation regarding treatment of objecting CTO patients lacking capacity, is here: 39 Essex Chambers, 'Mental Capacity Report' (issue 89, October 2018) - Mental Health Law Online.
If Mr Calocane had been put on a CTO & deemed to lack capacity regarding depot medication, and if it was seen as being ‘immediately necessary’ under s.64C(5), then it could have been authorised for him by the CoP, despite his own objections, and he could hve been restrained for the purpose. However, there are a lot of ‘ifs’ there, and Neil has described some of the practical problems. So as already discussed, the value of a CTO in his case is not at all clear.
Thank you Simon.
