Community treatment orders (CTOs) should be scrapped in most cases because they are overused, overly restrictive and used starkly disproportionately for black and ethnic minority people.
That was the headline recommendation from the parliamentary committee scrutinising the government’s plans to reform the Mental Health Act 1983 (MHA), in its report today.
The joint committee on the draft Mental Health Bill said it welcomed the legislation, with broad support for it in the evidence it received, but argued changes were needed to strengthen it, in particular to tackle “unacceptable and inexusable” racial inequalities in the operation of the MHA.
Get full summaries of the joint committee’s report and of the draft Mental Health Bill, courtesy of Community Care Inform legal editor Tim Spencer-Lane
This should include abolishing CTOs – used 11 times more frequently for black than white people – other than for criminal justice patients, it said. The committee also said ‘respect for racial equality’ should be among the governing principles of the reformed MHA and each health body should have a ‘responsible person’ for identifying and addressing racial disparities.
Committee’s key recommendations
Other recommendations from the committee included:
- Placing a duty on the government to draw up the MHA code of practice having regard to the principles of choice and autonomy, least restriction, therapeutic benefit, the person as an individual, as well as respect for racial equality.
- Creating a post of mental health commissioner to act as an independent voice for people who use mental health services.
- Placing duties on councils and NHS integrated care boards to ensure an adequate supply of community services for people with learning disabilities and autistic people to prevent their long-term detention.
- Applying the same criteria for detention for “part 3 patients” – those involved in the criminal justice system – as “part 2 patients” (those who are not so involved). Under the bill as planned, a higher bar for detention would be applied than at present for part 2 patients, but not part 3 patients.
- Strengthening protections against children being placed in inappropriate settings, such as adult wards or out of area.
- Giving patients the right to draw up statutory advance choice documents, setting out preferences for how they should be treated should they be detained in future, in order to increase patient choice.
“Our proposed changes are designed to strengthen the draft bill, to provide a voice speaking up for patients and driving ongoing reform and to mitigate potential unintended consequences,” the committee said in a summary of its report.
It called on the Department of Health and Social Care (DHSC) to introduce full legislation to reform the MHA in this parliamentary session, which ends in autumn this year.
CTO numbers far higher than expected
CTOs are designed to prevent readmissions to hospital by placing conditions on patients’ treatment in the community.
They allow responsible clinicians to discharge detained patients with the power to recall them, based on the risks of their condition deteriorating if they did not receive appropriate treatment in the community. Clinicians also place conditions on the person, designed to mitigate risks and promote treatment, with non-compliance with these taken into account in determining whether the person should be recalled.
At the time of their introduction, under the Mental Health Act 2007, the government estimated that about 10% of those detained for treatment under section 3 of the act would be subject to a CTO.
However, the committee pointed out that the numbers of people currently on a CTO – about 5,000 – was about the same as the number detained under section 3 in 2021-22 (4,553).
Also, they were used eleven times as frequently on black or black British patients as those from any white background in 2021-22, with this disproportionality increasing from eight times in 2018.
CTO reform proposals ‘insufficient’
The draft bill would tighten criteria for a CTO by ensuring they could only be used if there was a risk of “serious harm” to the health and safety of the patient or others, and consideration had been given to the “nature, degree and likelihood of the harm, and how soon it would occur”. There would also have to be a reasonable prospect that the CTO would have a therapeutic benefit for the patient.
However, the committee heard “several concerns” that these changes would not reduce the number of black people subject to a CTO and there was “significant research” that they did not reduce the number of readmissions.
It said there was not enough evidence to justify their continued use for part 2 patients and they should be scrapped for this group, who account for the vast majority of orders. But there was some evidence that they constituted a less restrictive alternative to detention for forensic patients, who make up a small minority of those on a CTO.
For this group, it said the bill should require a review of their ongoing use within three years of it becoming law and provide for CTOs’ abolition six months after this deadline, with the government able to reverse this should the review conclude they were worth retaining.
Mixed response to CTO abolition proposal
The National Survivor User Network, which represents people with lived experience of mental ill-health and user-led organisations, said the proposed abolition of CTOs under part 2 was “most welcome”.
However, it said that their retention under part 3 “does raise the issue of the widening gap between civil and forensic sections and unintended consequences these may have”.
Mental health charity Mind also backed the committee’s proposal but said it would “carry on pushing for this to also apply for the criminal justice system”.
The Royal College of Psychiatrists was more circumspect in its response to the idea, saying that it marked “a substantial change” from what was in the draft bill and the 2018 report of the Independent Review of the Mental Health Act, on which the legislation is based.
“RCPsych will have to consider the implications of this change and how their retention for Part III patients will work in practice,” said college president Dr Adrian James.
Backing for tougher action on racial inequalities
However, both the college and Mind welcomed the report’s call for tougher action on racial inequalities in the mental health system.
James said the college particularly welcomed the proposal to include respect for racial equality as a principle that the government would have to address through the code of practice.
He added: “The recommendation that statutory advance choice documents be included in the bill is very positive and will expand patient choice and autonomy and give patients from Black, Asian and other minoritised ethnic groups greater ability to input on how the care they receive works for them and their family.”
For Mind, chief executive Sarah Hughes said: “In its current form, the Mental Health Act has enabled shameful, racist treatment of people from minority ethnic backgrounds, particularly Black people, who are nearly five times more likely to be sectioned. The committee’s report proposes many positive interventions aimed at eradicating racism in mental health services, including the introduction of a responsible person to collect and monitor data on ethnicity.”
Commissioner ‘could help address systemic failings’
The charity also welcomed the idea of creating a mental health commissioner, particularly in the context of a recent “wave of whistleblowing stories raising the alarm on alleged abuse and neglect of people living on mental health wards around the country”.
Hughes added: “If properly funded and truly independent, the commissioner could act as a powerful advocate for patients’ rights. Mind has been calling for a national statutory inquiry into systemic failings of inpatient mental health services since September, and a dedicated commissioner should steer any future inquiry to make sure the voices of people with lived experience are amplified.”
The Association of Directors of Adult Social Services was also supportive of the commissioner idea.
President Sarah McClinton said: “We recognise the increase in mental ill health in our communities and welcome the committee’s report highlighting the need for a mental health commissioner and for increased transparency and support to prevent the need for compulsory admission (‘detention’) to hospitals and particularly to address the racial inequalities in the process.
“This is the case for everyone who is mentally unwell, including children and young people, and for people with learning disabilities and/or autism. This will require investment in both health and social care following a proper impact assessment.”
Government ‘taking action on unequal treatment’
In response to the report, a DHSC spokesperson said: “We welcome the committee’s support for the aims of the government’s draft Mental Health Bill to bring about long overdue mental health reform.
“We are taking action to address the unequal treatment of people from Black and other ethnic minority backgrounds with mental illness – including by tightening the criteria under which people can be detained and subject to community treatment orders.
“The government will now review the committee’s recommendations and respond in due course.”