Acta Psychiatr Scand 2015: 131: 330–332 All rights reserved DOI: 10.1111/acps.12376
© 2014 John Wiley & Sons A/S. Published by John Wiley & Sons Ltd ACTA PSYCHIATRICA SCANDINAVICA
Commentary
Is there a place for community treatment orders after the OCTET study? The OCTET study, a large randomised controlled trial in England involving 336 patients, found that a community treatment order (CTO), a form of involuntary out-patient treatment, failed to demonstrate any benefit over the following year in terms of readmissions, time in hospital, in global clinical outcomes (as assessed by the Brief Psychiatric Rating Scale or Global Assessment of Functioning) or any of a wider range of clinical and social outcomes (1, 2). The findings from this study are consistent with the essentially negative findings from the two previous randomised controlled trials of involuntary out-patient commitment, both conducted in the USA (granted that the one in New York was significantly flawed, while the one in North Carolina produced a positive result only in a post hoc analysis) (3, 4). They are also consistent with the argument that the differences between outcomes for patients on CTOs compared to controls in non-randomised studies, or the positive effects in before versus after studies, can be explained by the better services offered to the patients when placed on CTOs (5). Of course, it is possible to criticise the OCTET study. The most serious problem concerns potential participant selection bias. Although 336 patients are a very large number for a study of this type, it represents a fairly small proportion of patients who were placed on CTOs during the period of recruitment to the study. Around 4000 new CTOs are issued each year in England, although not all of these would have been eligible for the OCTET study as its scope was geographically constrained. Nevertheless, there were many patients placed on CTOs whose consultants did not wish to enter them into consideration for the trial, perhaps because of factors that led them to believe, perhaps correctly, that the outcome would be better. Against this, the fact that there was not an inkling of difference between the groups in the OCTET study speaks in favour of the overall validity of the results – in the English context, at least. The authors of the OCTET study conclude that restrictions on patient liberties associated with CTOs cannot be justified unless accompanied by a 330
rigorous assessment of their potential costs and benefits. Should we stop using CTOs – or is there another option?
So what should we do now? Two options can be proposed in response to these negative findings. The first is to conclude that one should no longer use this treatment order. There is no evidence base to support its value, while there are important ‘costs’ that are borne by the patient under such an order, including an infringement of the person’s liberty from the threat of hospitalisation if the stipulated conditions are not complied with, and an intrusion on the patient’s private life. There is also the stigma and humiliation attached to a compulsory order. However, there may be a second option. This follows from a very different way of construing the basic principles justifying involuntary treatment, but one that might perhaps leave CTOs a useful role in assisting treatment for some patients. On the basis of these different principles, the outcome that is sought is one that is specifically the patient’s. The argument that CTOs should no longer be used might be qualified if these principles were to be adopted. The criteria for a CTO under the Mental Health Act 1983 (MHA; amended in 2007) require that the patient first be on an in-patient treatment order (s3), and then that the patient is suffering from a ‘mental disorder’ of a nature or degree which makes it appropriate for them to receive medical treatment (i.e. a ‘status’ requirement); it is necessary for the patient’s health or safety or the protection of other persons that the patient should receive such treatment (i.e. a ‘risk’ requirement); and, subject to their being liable to be recalled, such treatment can be provided without the patient continuing to be detained in a hospital. Construing the place of CTOs differently
Some colleagues and I have argued that conventional mental health legislation, based on such
Commentary status and risk criteria, discriminates unfairly against persons with mental illness (6). We advocate that patients with a ‘mental disorder’ should fall under the same legal regime as those with a ‘physical disorder’. This would mean that the patient’s ‘autonomy’ or right to self-determination would deserve equal respect. Patients with a ‘physical disorder’ are able to reject the offer of treatment, even if the consequences of doing so are grave. In most jurisdictions with well-developed law such a refusal can only be over-ridden if the patient lacks ‘decision-making capacity’ (i.e. a ‘functional’ test), and the treatment is judged to be in the ‘best interests’ of the patient. The Mental Capacity Act 2005 provides the legal framework in England and Wales. In contrast, under the MHA patients with a ‘mental disorder’ can be treated involuntarily if they suffer from a ‘mental disorder’, a status, and there is a sufficient risk to their health or safety or to other persons. The ability of the person to make a decision for themselves, or an obligation on the clinician to determine what is in patient’s ‘best interests’, do not require consideration. By failing to accord equal respect to the patient’s autonomy, we maintain current legislation discriminates unfairly against those with a mental disorder. We have thus proposed an entirely different set of criteria for involuntary treatment for those with ‘mental disorders’, being essentially those governing involuntary treatment in the rest of medicine. Thus, the legislation proposed would be generic, applicable to any person, in any setting, who has impaired decision-making ability, from any cause. As mentioned above, there would be two requirements for involuntary treatment (as well as a set of protections including appeals and monitoring following its initiation). The first is a loss of decisionmaking capability (DMC). The second is that in the event of a loss of DMC, treatment should be in the person’s ‘best interests’ (BI). By BI, we mean in this case what the patient would have chosen in relation to treatment under the prevailing circumstances if capacity had been retained (or giving effect to the person’s will and preferences, ones reflected in the person’s enduring commitments and values determining their significant life choices) (7). Such a determination would require the support and involvement of people who know the patient well. On this account, a CTO could be justified if it were used only during a period of impaired DMC and if it were in the patient’s BI. The perspective is that of the patient and aims at a best possible interpretation of the patient’s preferences. If there were
an ‘advance statement’, formulated when the patient had recovered from a previous illness episode and now has DMC, this would provide strong evidence of these. This might constitute a type of ‘Ulysses contract’: the patient, while having DMC, expresses a preference for a treatment at some time in the future when it is anticipated that DMC will be lost, and he or she agrees that an element of compulsion would be warranted under an agreed set of foreseeable circumstances. In the absence of a clear preference of this kind, one would attempt to answer the question: would the person have supported the use of this form of compulsion if their DMC had been retained? The type of outcome sought in this case might be quite different to the more ‘objective’ outcomes that are sought in a trial, such as the OCTET study. Readmissions are generally undesired by most patients, but perhaps some may value other outcomes more highly, such as taking medication on a self-regulated, intermittent basis because of undesired side-effects. Another patient may prefer a period under a CTO to a longer in-patient stay, the order serving as an incentive or control to continue treatment, recognising from previous experience that this is likely to falter. It is the patient’s perspective that is important. The CTO would only be applicable if DMC were impaired, and rescinded when it is stably restored. Thus, it can be argued that a CTO could be justified on this account. How often such situations will arise is at this time impossible to tell. These have not been the criteria used to date. The numbers are likely to be small, perhaps very small. However, smaller numbers might prove to be an advantage, especially if they involve more personalised care-planning that leads to better outcomes. Smaller numbers might also mean stronger ‘teeth’ for a CTO. It might mean, for example that despite huge bed pressures, an admission can be arranged for a patient who fails to observe the BI supporting conditions mandated by the CTO, even though they do not reach the level of illness disturbance normally required for in-patient care. Clinicians may not readily engage with the DMC/BI approach as it requires a major change in the way they generally think about compulsion. There will remain the possibility that decisions will be taken that are unjustifiably ‘paternalistic’. The construal of compulsion that is being advanced here is at variance with existing mental health law. Under current legislation in England and Wales, for example a mental health tribunal that reviews CTOs is not required to consider DMC or BI and 331
Commentary so would not act as a safeguard for the patient under the principles suggested here. Unless the law were changed, it would be up to clinicians to follow the principles outlined above. A second problem relates to a major motivation for the introduction of CTOs in the first place – restoring public confidence in ‘safe’ mental health services. Will a clinician whose patient commits a serious violent act be considered culpable if the patient were not on a CTO when there might have been a case under the current MHA for one to have been instituted? There is no evidence that a CTO reduces the risk of serious violence, but politicians and the media in a risk-averse society may be deaf to such facts. If the principles outlined above were to be adopted, practitioners would need the support of their professional organisations and their codes of ethics. G. Szmukler Institute of Psychiatry, King’s College London, London, UK E-mail: [email protected]
332
References 1. Burns T, Rugkasa J, Molodynski A et al. Community treatment orders for patients with psychosis (OCTET): a randomised controlled trial. Lancet 2013;381:1627–1633. 2. Rugkasa J, Molodynski A, Yeeles K, Vasquez-Montes M, Visser C, Burns T. Community treatment orders. Clinical and social outcomes, and a sub-group analysis from the OCTET RCT. Acta Psychiatr Scand 2015;131:321–329. 3. Swartz MS, Swanson JW, Wagner HR, Burns BJ, Hiday VA, Borum R. Can involuntary outpatient commitment reduce hospital recidivism?: findings from a randomized trial with severely mentally ill individuals. Am J Psychiatry 1999;156:1968–1975. 4. Steadman HJ, Gounis K, Dennis D et al. Assessing the New York City involuntary outpatient commitment pilot program. Psychiatr Serv 2001;52:330–336. 5. Churchill R, Owen G, Singh S, Hotopf M. International experiences of using community treatment orders. London: Department of Health, 2007. 6. Dawson J, Szmukler G. Fusion of mental health and incapacity legislation. Br J Psychiatry 2006;188:504–509. 7. Szmukler G, Daw R, Callard F. Mental health law and the UN Convention on the Rights of Persons with Disabilities. Int J Law Psychiatry 2014;37:245–252.
Copyright of Acta Psychiatrica Scandinavica is the property of Wiley-Blackwell and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use.
© 2014 John Wiley & Sons A/S. Published by John Wiley & Sons Ltd ACTA PSYCHIATRICA SCANDINAVICA
Commentary
Is there a place for community treatment orders after the OCTET study? The OCTET study, a large randomised controlled trial in England involving 336 patients, found that a community treatment order (CTO), a form of involuntary out-patient treatment, failed to demonstrate any benefit over the following year in terms of readmissions, time in hospital, in global clinical outcomes (as assessed by the Brief Psychiatric Rating Scale or Global Assessment of Functioning) or any of a wider range of clinical and social outcomes (1, 2). The findings from this study are consistent with the essentially negative findings from the two previous randomised controlled trials of involuntary out-patient commitment, both conducted in the USA (granted that the one in New York was significantly flawed, while the one in North Carolina produced a positive result only in a post hoc analysis) (3, 4). They are also consistent with the argument that the differences between outcomes for patients on CTOs compared to controls in non-randomised studies, or the positive effects in before versus after studies, can be explained by the better services offered to the patients when placed on CTOs (5). Of course, it is possible to criticise the OCTET study. The most serious problem concerns potential participant selection bias. Although 336 patients are a very large number for a study of this type, it represents a fairly small proportion of patients who were placed on CTOs during the period of recruitment to the study. Around 4000 new CTOs are issued each year in England, although not all of these would have been eligible for the OCTET study as its scope was geographically constrained. Nevertheless, there were many patients placed on CTOs whose consultants did not wish to enter them into consideration for the trial, perhaps because of factors that led them to believe, perhaps correctly, that the outcome would be better. Against this, the fact that there was not an inkling of difference between the groups in the OCTET study speaks in favour of the overall validity of the results – in the English context, at least. The authors of the OCTET study conclude that restrictions on patient liberties associated with CTOs cannot be justified unless accompanied by a 330
rigorous assessment of their potential costs and benefits. Should we stop using CTOs – or is there another option?
So what should we do now? Two options can be proposed in response to these negative findings. The first is to conclude that one should no longer use this treatment order. There is no evidence base to support its value, while there are important ‘costs’ that are borne by the patient under such an order, including an infringement of the person’s liberty from the threat of hospitalisation if the stipulated conditions are not complied with, and an intrusion on the patient’s private life. There is also the stigma and humiliation attached to a compulsory order. However, there may be a second option. This follows from a very different way of construing the basic principles justifying involuntary treatment, but one that might perhaps leave CTOs a useful role in assisting treatment for some patients. On the basis of these different principles, the outcome that is sought is one that is specifically the patient’s. The argument that CTOs should no longer be used might be qualified if these principles were to be adopted. The criteria for a CTO under the Mental Health Act 1983 (MHA; amended in 2007) require that the patient first be on an in-patient treatment order (s3), and then that the patient is suffering from a ‘mental disorder’ of a nature or degree which makes it appropriate for them to receive medical treatment (i.e. a ‘status’ requirement); it is necessary for the patient’s health or safety or the protection of other persons that the patient should receive such treatment (i.e. a ‘risk’ requirement); and, subject to their being liable to be recalled, such treatment can be provided without the patient continuing to be detained in a hospital. Construing the place of CTOs differently
Some colleagues and I have argued that conventional mental health legislation, based on such
Commentary status and risk criteria, discriminates unfairly against persons with mental illness (6). We advocate that patients with a ‘mental disorder’ should fall under the same legal regime as those with a ‘physical disorder’. This would mean that the patient’s ‘autonomy’ or right to self-determination would deserve equal respect. Patients with a ‘physical disorder’ are able to reject the offer of treatment, even if the consequences of doing so are grave. In most jurisdictions with well-developed law such a refusal can only be over-ridden if the patient lacks ‘decision-making capacity’ (i.e. a ‘functional’ test), and the treatment is judged to be in the ‘best interests’ of the patient. The Mental Capacity Act 2005 provides the legal framework in England and Wales. In contrast, under the MHA patients with a ‘mental disorder’ can be treated involuntarily if they suffer from a ‘mental disorder’, a status, and there is a sufficient risk to their health or safety or to other persons. The ability of the person to make a decision for themselves, or an obligation on the clinician to determine what is in patient’s ‘best interests’, do not require consideration. By failing to accord equal respect to the patient’s autonomy, we maintain current legislation discriminates unfairly against those with a mental disorder. We have thus proposed an entirely different set of criteria for involuntary treatment for those with ‘mental disorders’, being essentially those governing involuntary treatment in the rest of medicine. Thus, the legislation proposed would be generic, applicable to any person, in any setting, who has impaired decision-making ability, from any cause. As mentioned above, there would be two requirements for involuntary treatment (as well as a set of protections including appeals and monitoring following its initiation). The first is a loss of decisionmaking capability (DMC). The second is that in the event of a loss of DMC, treatment should be in the person’s ‘best interests’ (BI). By BI, we mean in this case what the patient would have chosen in relation to treatment under the prevailing circumstances if capacity had been retained (or giving effect to the person’s will and preferences, ones reflected in the person’s enduring commitments and values determining their significant life choices) (7). Such a determination would require the support and involvement of people who know the patient well. On this account, a CTO could be justified if it were used only during a period of impaired DMC and if it were in the patient’s BI. The perspective is that of the patient and aims at a best possible interpretation of the patient’s preferences. If there were
an ‘advance statement’, formulated when the patient had recovered from a previous illness episode and now has DMC, this would provide strong evidence of these. This might constitute a type of ‘Ulysses contract’: the patient, while having DMC, expresses a preference for a treatment at some time in the future when it is anticipated that DMC will be lost, and he or she agrees that an element of compulsion would be warranted under an agreed set of foreseeable circumstances. In the absence of a clear preference of this kind, one would attempt to answer the question: would the person have supported the use of this form of compulsion if their DMC had been retained? The type of outcome sought in this case might be quite different to the more ‘objective’ outcomes that are sought in a trial, such as the OCTET study. Readmissions are generally undesired by most patients, but perhaps some may value other outcomes more highly, such as taking medication on a self-regulated, intermittent basis because of undesired side-effects. Another patient may prefer a period under a CTO to a longer in-patient stay, the order serving as an incentive or control to continue treatment, recognising from previous experience that this is likely to falter. It is the patient’s perspective that is important. The CTO would only be applicable if DMC were impaired, and rescinded when it is stably restored. Thus, it can be argued that a CTO could be justified on this account. How often such situations will arise is at this time impossible to tell. These have not been the criteria used to date. The numbers are likely to be small, perhaps very small. However, smaller numbers might prove to be an advantage, especially if they involve more personalised care-planning that leads to better outcomes. Smaller numbers might also mean stronger ‘teeth’ for a CTO. It might mean, for example that despite huge bed pressures, an admission can be arranged for a patient who fails to observe the BI supporting conditions mandated by the CTO, even though they do not reach the level of illness disturbance normally required for in-patient care. Clinicians may not readily engage with the DMC/BI approach as it requires a major change in the way they generally think about compulsion. There will remain the possibility that decisions will be taken that are unjustifiably ‘paternalistic’. The construal of compulsion that is being advanced here is at variance with existing mental health law. Under current legislation in England and Wales, for example a mental health tribunal that reviews CTOs is not required to consider DMC or BI and 331
Commentary so would not act as a safeguard for the patient under the principles suggested here. Unless the law were changed, it would be up to clinicians to follow the principles outlined above. A second problem relates to a major motivation for the introduction of CTOs in the first place – restoring public confidence in ‘safe’ mental health services. Will a clinician whose patient commits a serious violent act be considered culpable if the patient were not on a CTO when there might have been a case under the current MHA for one to have been instituted? There is no evidence that a CTO reduces the risk of serious violence, but politicians and the media in a risk-averse society may be deaf to such facts. If the principles outlined above were to be adopted, practitioners would need the support of their professional organisations and their codes of ethics. G. Szmukler Institute of Psychiatry, King’s College London, London, UK E-mail: [email protected]
332
References 1. Burns T, Rugkasa J, Molodynski A et al. Community treatment orders for patients with psychosis (OCTET): a randomised controlled trial. Lancet 2013;381:1627–1633. 2. Rugkasa J, Molodynski A, Yeeles K, Vasquez-Montes M, Visser C, Burns T. Community treatment orders. Clinical and social outcomes, and a sub-group analysis from the OCTET RCT. Acta Psychiatr Scand 2015;131:321–329. 3. Swartz MS, Swanson JW, Wagner HR, Burns BJ, Hiday VA, Borum R. Can involuntary outpatient commitment reduce hospital recidivism?: findings from a randomized trial with severely mentally ill individuals. Am J Psychiatry 1999;156:1968–1975. 4. Steadman HJ, Gounis K, Dennis D et al. Assessing the New York City involuntary outpatient commitment pilot program. Psychiatr Serv 2001;52:330–336. 5. Churchill R, Owen G, Singh S, Hotopf M. International experiences of using community treatment orders. London: Department of Health, 2007. 6. Dawson J, Szmukler G. Fusion of mental health and incapacity legislation. Br J Psychiatry 2006;188:504–509. 7. Szmukler G, Daw R, Callard F. Mental health law and the UN Convention on the Rights of Persons with Disabilities. Int J Law Psychiatry 2014;37:245–252.
Copyright of Acta Psychiatrica Scandinavica is the property of Wiley-Blackwell and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use.
