CTO legislation, criteria and the role of decision-making capacity

The use of CTOs is governed by the application of relevant legislation to place the individual on the CTO. There are two criteria that are generally used to determine the appropriateness of placing an individual on a CTO. There are two general criteria for which involuntary treatment may be implemented: one of which specifies the nature of the mental disorder and highlights the harms or risks, which the individual poses to their own health or safety, or to that of others; and the second and more specific criterion relates to the need for appropriate involuntary outpatient treatment and for adequate community services to be in place to meet the individuals’ needs (Dawson, Reference Dawson2006).

The most pressing ethical issue in the implementation of CTOs would appear to be the role played by competency or capacity principles. The application of principles of decision-making capacity should be paramount in clinicians’ thinking when assessing the suitability of the use of CTOs, in order for the preservation of patient dignity and autonomy. It is a consistent study finding that inpatients with a diagnosis of schizophrenia display a lack of decision-making capacity, with rates of 53% (Vollmann etal. Reference Vollmann, Bauer, Danker-Hopfe and Helmchen2003) and 52% (Grisso & Appelbaum, Reference Grisso and Appelbaum1995b) being reported. Impaired decision-making capacity places these individuals in a position where they are unable to make competent decisions about proposed treatment and provides justification for treatment without consent. However, it is noteworthy that England and Wales MHA (1983) legislation does not have an impaired decision-making criterion and is predominantly risk based (Lawton-Smith etal. Reference Lawton-Smith, Dawson and Burns2008). It has been further shown that only 45% of CTO patients in England and Wales lacked insight into their illness (Care Quality Commision, 2010), thus indicating that for a significant number of patients a lack of decision-making capacity may not be a central tenet of their involuntary community treatment. This stance has been suggested to increase the legal discrimination of individuals with mental disorders and to be irreconcilable with consistent ethical principles across medical law. It would appear to indicate that individuals with mental disorders, unlike individuals with sometimes life-threatening physical disorders, are still subject to a special form of preventive intervention on the basis of ‘risk of harm’, regardless of their capacity (Dawson and Szmukler, Reference Dawson and Szmukler2006).

The criteria for the duration of use of CTOs vary between jurisdictions, with some including the criterion that a CTO can only be utilised if a patient lacks competence to make treatment decisions (Appelbaum, Reference Appelbaum1994; Saks, Reference Saks2002), whereas others allow for the continued use of involuntary treatment as long as the patient remains on a CTO regime (Dawson, Reference Dawson2009). There are further distinctions made between least-restrictive CTOs, which aim to offer community treatment as a least-restrictive alternative to hospitalisation (Hiday, Reference Hiday2003), and preventative CTOs, which aim to implement measures intended to avoid predictable deterioration in a patient's mental state, resulting in dangerousness (Stefan, Reference Stefan1987). As previously described, CTOs in Scotland allow for the placement of such orders on individuals who are at the time residing in the community, unlike in England and Wales where the use of CTOs is restricted to those who are being discharged from hospital, following detention under a hospital treatment order.

The purpose and context of CTOs

The primary purpose of an involuntary treatment order is to allow for a prolonged period of treatment in order for a patient to have a period of sustained mental stability. Applying the principles of autonomy and competency to those on CTOs means that if a patient regains competency and refuses treatment, they then must be removed from an involuntary treatment order. However, this approach may neglect the many patients who should be considered suitable candidates for a CTO, with a history of repeated deteriorations in their mental states, often related to non-adherence with treatment programmes (Nelson etal. Reference Nelson, Maruish and Axler2000; Weiden etal. Reference Weiden, Kozma, Grogg and Locklear2004), leading to involuntary admissions, and that without a sustained treatment plan in the community their prospects of stabilising while not in hospital will be greatly diminished. Concerns have been raised about the use of CTOs in such patients with capacity and in the population of patients who may be considered for a CTO as a whole, because of the association with increased compulsion and the uncertainty regarding when an individual may be removed from a CTO (Lawton-Smith etal. Reference Lawton-Smith, Dawson and Burns2008). These are valid ethical issues that pit patient autonomy against professional paternalism, but that need to be countered by the implementation of CTOs within proper legal criteria, where professional accountability takes place, where patients have access to second opinions and tribunal reviews, and where there is no power of forced medication in the community. The patients who lack capacity or has impaired decision making, with a history of repeated treatment non-adherence leading to recurrence of illness and involuntary hospital admissions, is purported to benefit from the application of a CTO to enable their ongoing treatment to occur in the least-restrictive environment.

The use of CTOs has to be guided by clear and focused criteria for their implementation. This is necessary in order to ensure that the boundaries for their use are clearly defined. Further, it seeks to ensure that there is no unnecessary coercion utilised in the treatment of patients who could be managed in the community without a CTO, with the provision of increased resources and properly implemented care plans agreed between clinicians, patients and family members. This is an important consideration, which is relevant to the establishment and provision of effective CTO regimes in which the principle of reciprocity would dictate that the restriction on individuals’ civil liberties is matched by the provision of appropriate and comprehensive services.

Research evidence

A major area of concern regarding the use of CTOs is in relation to their effectiveness. The evidence for their use is patchy and conflicting, with most studies having been conducted in jurisdictions where CTOs have been in place for a number of years (USA, Canada and Australasia). Research relating to the use of CTOs tends to primarily focus on their clinical effectiveness or on the views and attitudes of patients and staff that have been involved with CTOs. There have been only two randomised controlled trials (RCTs) of CTOs, conducted over 10 years ago in the United States (Macpherson etal. Reference Macpherson, Molodynski, Freeth, Uppal, Steer, Buckle and Jones2010). The New York study (Steadman etal. Reference Steadman, Gounis, Dennis, Hopper, Roche, Swartz and Robbins2001), which has been criticised for methodological issues, found no significant difference in outcomes, including number of hospitalisations and arrests, between those placed under involuntary treatment orders and those who were treated as voluntary patients. The North Carolina study (Swartz etal. Reference Swartz, Swanson, Wagner, Burns, Hiday and Borum1999) was more robust in its construction, but did not find significant differences in hospital readmissions rates between those who were treated with a CTO, following discharge from hospital, and those who were randomly assigned to the control group with a removal of their CTO. It was on secondary analysis that influential findings were demonstrated, which suggested that those who received sustained CTOs (>180 days) and regular clinical contact (>3 times/month) had 57% fewer readmissions to hospital. In those who had received a CTO for at least 6 months, the prevalence of violence towards others was also reduced when compared with those who were on a CTO for <6 months and for those in the control group (Swanson etal. Reference Swanson, Swartz, Borum, Hiday, Wagner and Burns2000). The study authors concluded that the use of CTOs could be supported when there is reciprocal community programmes established to provide sustained and intensive treatment to patients on CTOs (Swartz etal. Reference Swartz, Swanson, Wagner, Burns, Hiday and Borum1999). A 2005 Cochrane review (Kisely etal. Reference Kisely, Campbell and Preston2005) concluded that there was no strong evidence to support the use of CTOs, and on the basis of a review of the aforementioned RCTs it was suggested that 85 people would need to receive a CTO to avoid one hospital admission and that 238 people would need to receive a CTO in order to avoid arrest. These findings were supported by systematic reviews (Dawson, Reference Dawson2002; Churchill, Reference Churchill2005), which reiterated the lack of a consistent evidence base supporting the use of CTOs and also acknowledged the difficulties in conducting RCTs in this area.

Despite the lack of robust evidence from empirical quantitative research, there are qualitative studies indicating benefits to the use of CTOs. It was shown in one study that patients found that CTOs provided more structure to their lives and were viewed as a secure aid to their transition from a chaotic to a more stable way of life (O'Reilly etal. Reference O'Reilly, Keegan, Corring, Shrikhande and Natarajan2006). A study that explored perceptions of involuntary outpatient commitment of individuals with severe and persistent mental illness found that 82% of participants believed that, under mandated outpatient treatment, they would be more likely to attend appointments, remain out of hospital and comply with medication (Borum etal. Reference Borum, Swartz, Riley, Swanson, Hiday and Wagner1999). Two further studies highlighted the view of service users that CTOs were useful in accessing inpatient services (Brophy & Ring, Reference Brophy and Ring2004) and avoiding inpatient admission (Gibbs etal. Reference Gibbs, Dawson, Ansley and Mullen2005). A UK survey (Crawford etal. Reference Crawford, Gibbon, Ellis and Waters2004) suggested that CTOs may offer an opportunity to deliver non-consensual treatment to patients in a more acceptable form, with 60% of those surveyed indicating that they would prefer compulsory treatment to be delivered in the community. This result must be considered in light of the finding that the number of detained patients in England has increased year on year since the introduction of CTOs (17 503 detained in hospital and 4764 on a CTO, March 2012), with a 6% recorded increase in the number of detained patients between 2011 and 2012 (NHS Information Centre, 2012). In England and Wales, it was initially estimated that 2% of potentially eligible patients (about 200) would become subject to CTOs in the first year of their use, rising to 10% (about 2250) after 5 years (Department of Health, 2006). The initial projection was far exceeded after only 5 months, with over 2100 CTOs being completed in England alone by the end of March 2009 (NHS Information Centre, For Health & Social Care 2009). These figures are consistent with there being a significant number of patients, who are currently on CTOs, who would have previously been in the community without compulsory measures in place. If patients were asked about their preference for compulsory treatment or non-compulsory treatment in the community, then the survey findings of Crawford etal. (Reference Crawford, Gibbon, Ellis and Waters2004) may have been different.

A study that looked at the preferences of four stakeholder groups (patients being treated for schizophrenia, family members, clinicians and members of the public) concerning CTOs for individuals with schizophrenia concluded that the stakeholders were willing to accept the use of outpatient commitment to gain improved outcomes for people with schizophrenia (Swartz etal. Reference Swartz, Swanson, Wagner, Hannon, Burns and Shumway2003). The opinions of family members were specifically sought in one qualitative study in which they reported improvements for the service user and better family relationships in relation to the use of CTOs (Mullen etal. Reference Mullen, Gibbs and Dawson2006). Of 124 individuals under a CTO in Scotland, 60% reported that they believed that the CTO had been beneficial for them, with only 15% reporting that they found it to be of no benefit (Mental Welfare Commission, 2011).

Although some patients find CTOs acceptable as an alternative for detention in hospital, there is clear variation within groups, with some experiencing CTOs as being a threat to personal autonomy and their self-presentation. This has been highlighted in studies where service users describe the coercion that they experience when placed on a CTO regime (O'Reilly etal. Reference O'Reilly, Keegan, Corring, Shrikhande and Natarajan2006; Swartz etal. Reference Swartz and Swanson2009; Schwartz etal. Reference Schwartz, O'Brien, Morel, Armstrong, Fleming and Moore2010) and the perceived stigma (Schwartz etal. Reference Schwartz, O'Brien, Morel, Armstrong, Fleming and Moore2010), owing to their experiences of being labelled and considering themselves to be under surveillance. However, these findings are in contrast with outcomes from a study of an outpatient commitment scheme in New York, which suggests that coercion and perceived stigma are not greater among those on CTOs than those receiving similar levels of care in the community (Phelan etal. Reference Phelan, Sinkewicz, Castille, Huz, Muenzenmaier and Link2010).

CTOs have been generally more positively accepted by clinicians. Surveys that looked to ascertain the views of psychiatrists working in systems with CTOs have reported that 79% (Romans etal. Reference Romans, Dawson, Mullen and Gibbs2004), 62% (O Reilly etal. Reference O Reilly, Keegan and Elias2000) and 60% (Manning etal. Reference Manning, Molodynski, Rugkåsa, Dawson and Burns2011) of psychiatrists express a preference for working in such systems. One of the likely reasons for the more positive response of clinicians towards CTOs is that, with the permitted engagement of the patient and with time, there may be a recovery of insight and the development of a more meaningful therapeutic relationship. The lack of insight into illness is often an inherent component to psychotic relapses and a significant factor leading to involuntary admissions (McEvoy etal. Reference McEvoy, Apperson, Appelbaum, Ortlip, Brecosky, Hammill, Geller and Roth1989; David etal. Reference David, Buchanan, Reed and Almeida1992). The use of CTOs allows for the establishment of a structured treatment programme, which enables a patient's condition to be stabilised for a sustained period. It is under such conditions that an insight is likely to evolve, and the use of CTOs allows for the continuity of treatment in contrast with the common picture of a history of intermittent and crisis-driven pattern of care (Dawson & Mullen, Reference Dawson and Mullen2008). This would certainly be the ideal outcome with the use of CTOs; however, recent experience in England would indicate that CTOs have a 25% revocation rate (Care Quality Commission MHA Quality Report, 2012).

Ethical considerations

There are a wide variety of ethical arguments in relation to the use of CTOs. Liberal theory has the idea of individual freedom enshrined at the heart of its philosophical structure. Liberalism would support a rights-based approach, indicating that the rights of the individual patient are paramount and that the freedom from interference is a central tenet of the rights of an individual. This supports the position of an individual in the society who has the right to make lawful decisions about all areas of their life, without undue interference from the state, and is one of the strongest arguments against the use of coercion in medical treatment and the use of CTOs (Munetz etal. Reference Munetz, Galon and Frese2003). These principles are expanded in the doctrine of informed consent, in which capacity is presumed and which must be voluntary, knowing and competent (Appelbaum etal. Reference Appelbaum, Lidz and Meisel1987; Munetz etal. Reference Munetz, Galon and Frese2003). The impaired decision-making capacity of patients with severe mental illness has been demonstrated in acutely ill-hospitalised patients with schizophrenia (Grisso & Appelbaum, Reference Grisso and Appelbaum1995a), and whereas some patients will regain decision-making capacity after a period of treatment, there are others who will remain incapacitated. It is these individuals, who lack capacity, for whom CTOs would be most appropriately used. The purpose of a CTO in these patients, who display a persistent lack of capacity, would be to restore their decision-making capacity with a sustained period of treatment, under the principle of reciprocity.

A lack of insight, which is inherent to schizophrenia for many patients, would place the patient in a position where the rights-based approach would appear to give way to the notion of beneficence (Munetz etal. Reference Munetz, Galon and Frese2003). This would argue that a system should be in place to ensure that a patient can get the treatment that they require, even if they do not consent. It could be argued that the use of CTOs provides such a mechanism and aids in preventing the patient from becoming a victim of their own illness, owing to a repeating pattern of illness relapse, deterioration in social functioning and residual cognitive impairment (Heaton etal. Reference Heaton, Gladsjo, Palmer, Kuck, Marcotte and Jeste2001; Irani etal. Reference Irani, Kalkstein, Moberg and Moberg2011). The use of a beneficence approach holds the patients’ best interests as a central tenet in deciding the most appropriate treatment programme for them to allow for the restoration of their decision-making capacity. The consideration of beneficence in the context of CTOs is particularly relevant in those who are incapacitous; however, the use of involuntary treatment in those who retain capacity could be interpreted as discrimination of patients with mental illness when compared with capacitous patients with physical health disorders (Dawson & Szmukler, Reference Dawson and Szmukler2006; Lawton-Smith etal. Reference Lawton-Smith, Dawson and Burns2008).

The use of CTOs as a form of involuntary commitment would be inappropriate if they are used purely for purposes of convenience for mental health staff or as an alternative to adequate community services to support an individual's treatment plan in the community. A utilitarian approach to the issue of CTOs would require there to be an objective assessment of overall interest and for there to be an equitable choice to optimise good results for all the concerned parties (Munetz etal. Reference Munetz, Galon and Frese2003). In this context, the use of CTOs is supported when they are appropriately used to achieve a lasting period of treatment and remission for those patients with a history of frequent relapses and re-hospitalisation owing to treatment non-adherence. This utilitarian approach is an acceptable alternative to an exclusively rights-based versus beneficent position. This can be further highlighted when considering those patients, who because of extended periods of active symptoms of mental illness, have significantly impaired social functioning (e.g. homelessness) and who display cognitive disorganisation as a consequence of untreated periods of illness. Many studies have highlighted high prevalence rates of schizophrenia among the homeless (Koegel etal. Reference Koegel, Burnam and Farr1988; Munoz etal. Reference Munoz, Vazquez, Koegel, Sanz and Burnam1998). The significance of these findings is further highlighted by the demonstration that people with schizophrenia who are homeless can be left without adequate treatment for a decade or more (Girgis & Spence, Reference Girgis and Spence2003), as a result of their failure to adhere to the community-based model of treatment. It has been demonstrated that cognitive dysfunction more than the symptoms of psychosis in schizophrenia can be a predictor of social dysfunction (Collins etal. Reference Collins, Remington, Coulter and Birkett1996; Green, Reference Green1996), as this results in increased difficulties for the patient with reintegration into society and thereby has an impact on policies of inclusiveness (Spence etal. Reference Spence, Stevens and Parks2004). The use of antipsychotic treatment in the treatment of schizophrenia has been shown to improve an individual's function on cognitive measures over time (Keefe etal. Reference Keefe, Bilder, Davis, Harvey, Palmer, Gold, Meltzer, Green, Capuano, Stroup, McEvoy, Swartz, Rosenheck, Perkins, Davis, Hsiao and Lieberman2007; Irani etal. Reference Irani, Kalkstein, Moberg and Moberg2011), and psychotherapeutic approaches such as cognitive remediation techniques have been shown to benefit cognition in patients with schizophrenia (McGurk etal. Reference McGurk, Twamley, Sitzer, McHugo and Mueser2007). The ability to sustain a patient on a treatment programme with CTOs would aspire to aid this process of cognitive improvement because of the consistent treatment that individuals would receive, leading to likely improvements in their social functioning. However, as previously noted, there are no RCTs supporting the use of CTOs through a reduction in readmission rates (Kisely etal. Reference Kisely, Campbell and Preston2011). The clinician who adopts a utilitarian approach to the use of CTOs must remain aware of the conflict that such a philosophy may have with a person-centred psychiatry model. It is based on the views of the majority, and as such there exists a risk that it poses to the excluded, stigmatised minorities, such as those with mental disorders (Fulford etal. Reference Fulford, Christodoulou and Stein2011).

Perhaps the most serious challenge to a rights-based argument against CTOs can be derived from communitarian ethics. Communitarian thinking would propose that ethical decision making should be based on the promotion of the communal good and cooperation (Munetz etal. Reference Munetz, Galon and Frese2003). The communitarian philosophical standpoint would be opposed to the liberal viewpoint of neutrality (which presumes that institutions should not impose or presuppose any conception of the ‘good life’ on others). In challenging this point, and the liberal position of defending the right to non-interference, the communitarian would highlight the need to infringe on an individual's right to refuse treatment. This would be necessary in order to improve the outcomes for the individual who presents as a revolving-door patient and is faced with episodic crisis admissions to hospital. It is the need to challenge this right to non-interference, which would be justified in providing patients with an opportunity to be safe and to remain in treatment programmes, such as CTO regimes, designed to enhance their remission from illness.

The paternalistic approach that is inherent to the application of CTOs is supported when the CTOs are utilised for patients who lack insight into their illness and when these individuals are at risk of causing harm to their own interests as a result of their illness, most significantly with respect to their ability to exercise their rights fully. Individuals with a mental disorder, who are considered to be a risk for the safety of others, are also treated under CTOs through paternalism, and indeed it is arguably this risk criterion that has driven a large amount of CTO legislation worldwide, as exemplified by Kendra's Law in New York state (Appelbaum, Reference Appelbaum2005), Brian's Law in Ontario, Canada, and Laura's Law in California, USA (Russell, Reference Russell2011). The overemphasis on the risk criterion as a prerequisite for CTOs (Fistein etal. Reference Fistein, Holland, Clare and Gunn2009) might also foster a strong public perception of mentally ill individuals as being generally unpredictable or dangerous, thus contributing to their stigmatisation (Wahl, Reference Wahl1995) and an increased risk of discrimination (Fistein etal. Reference Fistein, Holland, Clare and Gunn2009).

The paternalistic approach would highlight the need for the individual to demonstrate an increased autonomy and to prevent a persisting or further deterioration in their condition. These conditions are all appropriate goals in the treatment of individuals with severe mental illness, and their potential achievement through the use of CTOs would occur in the least-restrictive alternative and environment for that individual. These should be guiding principles in the appropriate implementation of a CTO regime and in deciding the treatment and management of such individuals (Atkinson & Garner, Reference Atkinson and Garner2002). The management of patients on CTOs allows for their treatment plan to be established in the community rather than the hospital and allows for involuntary treatment to no longer be indelibly linked to confinement within hospitals (Lawton-Smith etal. Reference Lawton-Smith, Dawson and Burns2008). This approach supports the individual in remaining well and in remission from illness while living at home, through the use of regular medication, frequent contact with members of the community mental health team and the inclusion of housing, social and vocational support to the care plan, thus ensuring a more dignified and humane approach to their treatment.

The beneficent, communitarian and the more utilitarian approach would tend to support the use of CTOs, but only if CTOs were actually shown to benefit individuals. These ethical considerations become less pertinent to the argument, while there remains a lack of evidence-based data to support their effectiveness, be it in terms of hospital readmissions or levels of ongoing engagement in community treatment programmes.