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The use of community treatment orders in competent patients is not justified

  • Giles Newton-Howes (a1) and Christopher James Ryan (a2)
Summary

Empirical evidence for the effectiveness of community treatment orders (CTOs) is at best mixed. We examine CTOs through the prism of human rights and discrimination, bearing the evidence in mind, and argue that a necessary condition for their use is that a person lacks decision-making capacity.

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Copyright
Corresponding author
Giles Newton-Howes, Department of Psychological Medicine, Otago University, PO Box 7343, Wellington, New Zealand 6242. Email: giles.newton-howes@otago.ac.nz
Footnotes
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Declaration of interest

C.J.R. gives occasional medicolegal opinions in which the appropriate application of community treatment orders are at issue.

Footnotes
References
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1 Gordon, SE, O'Brien, A. New Zealand's mental health legislation needs reform to avoid discrimination. NZ Med J 2014; 127: 5565.
2 Dale, E. Is supervised community treatment ethically justifiable? J Med Ethics 2010; 36: 271–4.
3 Dawson, J. Community treatment orders and human rights. Law Context 2008; 26: 148–59.
4 Ryan, CJ. One flu over the cuckoo's nest: comparing legislated coercive treatment for mental illness and other illness. J Bioeth Inq 2011; 8: 8793.
5 Burns, T, Rugkåsa, J, Molodynski, A, Dawson, J, Yeeles, K, Vazquez-Montes, M, et al. Community treatment orders for patients with psychosis (OCTET): a randomised controlled trial. Lancet 2013; 381: 1627–33.
6 Kisely, S, Hall, K. An updated meta-analysis of randomized controlled evidence for the effectiveness of community treatment orders. Can J Psychiatry 2014; 59: 561–4.
7 Milne, D, O'Brien, A, McKenna, B. Community treatment orders and competence to consent. Australas Psychiatry 2009; 17: 273–8.
8 Szmukler, G. Is there a place for community treatment orders after the OCTET study? Acta Psychiatr Scand 2015; 131: 330–2.
9 Callaghan, S, Ryan, CJ. An evolving revolution: evaluating Australia's compliance with the Convention on the Rights of Persons with Disabilities in mental health law. Univ NSW Law J 2016; 39: 596624.
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The British Journal of Psychiatry
  • ISSN: 0007-1250
  • EISSN: 1472-1465
  • URL: /core/journals/the-british-journal-of-psychiatry
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The use of community treatment orders in competent patients is not justified

  • Giles Newton-Howes (a1) and Christopher James Ryan (a2)
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eLetters

Response to Zinkler and De Sabbata

Christopher James Ryan, Clinical Associate Professor and Psychiatrist, University of Sydney and Westmead Hospital
Giles Newton-Howes, Senior Lecturer and Psychiatrist, University of Otago in Wellington and Te-Upoko-me-te-Whatu-o-Te-Ika Mental Health, Addictions and Intellectual Disability Servic
13 June 2017

Zinker and De Sabbata argue we did not go far enough when calling for the immediate cessation of the use of CTOs in people who competently refuse psychiatric treatment. They do so on the basis of the controversial interpretation of the Convention for the Rights of Persons with Disabilities (CRPD), adopted by the UN Committee charged with reviewing its implementation. This interpretation argues that the text of the CRPD demands that decisions made by individuals, who are unable to understand pertinent information or use and weigh it despite maximal support, should nonetheless be regarded as valid. Under this bizarre regime, a man with mania who walks naked through the high street to save the world should not have his modesty preserved and a woman who kills her baby believing it to be the devil should be prosecuted with the full force of the law.

The CRPD was created by international consensus. Like all such documents its language is often byzantine and opaque, but the Committee’s reading of the meaning of the text is extremely strained. It has been roundly criticised and largely ignored.(1-3) Part of the Committee’s argument, repeated by the Zinker and De Sabbatta, is that we cannot presume to be able to accurately assess the inner-workings of the human mind, but this blithely ignores that this is exactly what psychiatry, the law, and indeed all humans do all the time. Reports of hallucinations are equated to an experience of a person’s inner world. Deliberate affirmations made contrary to facts are adjudged to be lies. And heartfelt declarations of abiding love are accepted to form the basis of our most important relationships.

When individuals competently refuse treatment, we must respect their decision. However, when people make perilous decisions because they cannot understand or use the relevant information, we should first, do all we can to assist that understanding, but if that proves futile, a proxy-decision maker will be required, acting as far as possible so as to respect their rights, will and preferences.

References

1.Callaghan S, Ryan CJ. An evolving revolution: evaluating Australia's compliance with the Convention on the Rights of Persons with Disabilities in mental health law. University of New South Wales Law Journal. 2016; 39(2): 596-624.

2.Dawson J. A realistic approach to assessing mental health laws' compliance with the UNCRPD. International Journal of Law and Psychiatry. 2015; 40: 70-9.

3.Freeman MC, Kolappa K, de Almeida JMC, Kleinman A, Makhashvili N, Phakathi S, et al. Reversing hard won victories in the name of human rights: a critique of the General Comment on Article 12 of the UN Convention on the Rights of Persons with Disabilities. Lancet Psychiatry. 2015; 2(9): 844-50.

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Conflict of interest: C.J.R. gives occasional medicolegal opinions in which the appropriate application of community treatment orders are at issue.

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Community Treatment Orders and Capacity to Consent

Martin Zinkler, Consultant Psychiatrist, Clinical Director, Kliniken Landkreis Heidenheim gGmbH Academic Teaching Hospital of Ulm University Department of Psychiatry, Psychotherapy and Psy
Kevin De Sabbata, Qualified lawyer and PhD candidate, Qualified lawyer and PhD candidate School of Law University of Leeds The Liberty Building Leeds, LS2 9JT, UK
04 June 2017

We welcome the authors’ plea for a more restrictive use of community treatment orders (CTOs) (1). They heavily impact on patients’ rights, are largely ineffective (2) and likely to damage the trust between patients and treatment teams, which is vital for a sustained success in treatment. In this regard, the editorial rightly points out that the extensive use of CTOs is in contrast with the spirit and principles affirmed by the UN Convention on the Rights of Persons with Disabilities (CRPD). However, it still refers to the traditional binary distinction between capacity and incapacity, which has also to be considered obsolete in light of the Convention.

The authors, citing the CRPD, exclude the use of CTOs for capacitous patients, admitting it for those who lack the capacity to decide on their treatment. However, it is precisely this distinction between capable and incapable individuals that the UN Committee on the Rights of Persons with Disabilities rejects as discriminatory. The Committee stresses how the traditional functional approach to capacity: “attempts to assess mental capacity and deny legal capacity accordingly. It is often based on whether a person can understand the nature and consequences of a decision and/or whether he or she can use or weigh the relevant information. This approach is flawed for two key reasons: (a) it is discriminatorily applied to people with disabilities; and (b) it presumes to be able to accurately assess the inner-workings of the human mind and, when the person does not pass the assessment, it then denies him or her a core human right — the right to equal recognition before the law. In all of those approaches, a person’s disability and/or decision-making skills are taken as legitimate grounds for denying his or her legal capacity and lowering his or her status as a person before the law. Article 12 [CRPD] does not permit such discriminatory denial of legal capacity, but, rather, requires that support be provided in the exercise of legal capacity” (3).

As noted by Quinn, the CRPD, in particular article 12, transfers the discourse concerning legal decision-making to a completely different context, in which the distinction between capacity and incapacity does not exist anymore (4). In this new landscape, the point is just how to put in place the right and less invasive means of support for the person, independently from the category in which he or she might be pigeon-holed in consideration of his or her mental abilities (5).

Therefore, also the discussion on CTOs needs to be approached from this new perspective. In this regard, we argue that compulsory treatment, whether in inpatients or outpatients, mentally capable or incapable individuals, physical or mental illness, if at all can only be used in exceptional cases when (1) there is uncertainty about the will and preferences of the person and (2) significant other rights (for example the person’s health) are at stake.

The occasion to experience a system similar to that proposed by the CRPD with regard to psychiatric care arose in Germany in relation to coercive treatment for inpatients. Here, there are no legal provisions on CTOs, but the regulation on involuntary treatment in hospitals was suspended for several months following court rulings in 2011 and 2012 . Therefore, there was no rule allowing coercive psychiatric treatment for patients with and without legal capacity, except in cases of justified emergency, The data collected in this period show how this legal void created very different situations from ward to ward. In some structures it caused an increase in other forms of coercion (e.g. physical restraint), but in others it led to a more limited use of involuntary and restrictive measures (6). When coercive treatment for inpatients was reintroduced in 2013, the narrow criteria provided by the new law led to a sharp reduction in the use of this measure (7). The application, in the context of CTOs, of a similar approach to that developed in Germany with regard to coercive treatment may lead to a step forward in promoting a system which is more respectful of patients’ rights in psychiatric practice.

In conclusion, we support the call for a far more restrictive use of coercive treatment and suggest that, in light of General Comment No. 1 on Article 12 of the CRPD this should apply to outpatients and inpatients.

1. Newton-Howes G, Ryan CJ. The use of community treatment orders in competent patients is not justified. Br J Psychiatry 2017; 210: 311-2.

2. Kisely SR, Campbell LA. Compulsory community and involuntary outpatient treatment for people with severe mental disorders. Cochrane Database of Systematic Reviews 2014; Issue 12. Art. No.: CD004408. DOI: 10.1002/14651858.CD004408.pub4.

3. Committee on the Rights of Persons with Disabilities (2014) General Comment No. 1. Article 12: Equal recognition before the law (CRPD/C/GC/1 eleventh session, 30 March–11 April). http://www.ohchr.org/EN/HRBodies/CRPD/Pages/GC.aspx (accessed on 31.05.2017).

4. Quinn G. Personhood and Legal Capacity. Perspectives on the Paradigm Shift of Article 12 CRPD. HPOD Conference, Harvard Law School, Cambridge Mass, 20th February 2010; 1. www.nuigalway.ie%2Fcdlp%2Fdocuments%2Fpublications%2FHarvard%2520Legal%2520Capacity%2520gq%2520draft%25202.doc&ei=kqVXVIPPGZeLaP3SguAP&usg=AFQjCNFaq5CVo50nWjY0vnAMvdKsRo3mGA&sig2=yPXGGjEC-KgpQH2EP2dc7Q&bvm=bv.78677474,d.d2s (accessed on 29.05.2017).

5. Richardson G. Mental Disabilities and the Law: From Substitute to Supported Decision-Making? Current Legal Problems 2012; 65: 333-354 doi:10.1093/clp/cus010.



6. Zinkler M. Germany without Coercive Treatment in Psychiatry—A 15 Month Real World Experience. Laws 2016; 5: 15. doi:10.3390/laws5010015.

7. Albus M, Brieger P, Schreiber W. Compulsory treatment with psychotropic

drugs—Effects of the 2013 legislation amendment on treatment in psychiatric hospitals in Bavaria. Recht & Psychiatrie 2015; 33: 193–7.

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Conflict of interest: None Declared

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