Suchergebnisse

A community treatment order is now a well-established feature of various common law jurisdictions in North America and Australasia, and in other countries. Its introduction into England and Wales was a central part of the government's drawn out reform of the Mental Health Act 1983, and it attracted heated debate as part of the Parliamentary process, both in the exchanges between Parliamentarians and the evidence and briefings filed by interested parties. A CTO provision was introduced with a speedier gestation period in Scotland. But there is no single form of "community treatment order"; and there may also be different policy objectives. What is usually central is the desire to provide a regime for patients who are assessed as being able to function in the community so long as they accept medication but who may disengage from treatment and relapse to the extent that they require in-patient treatment: the description "revolving door" is often attached to such patients and was during the course of the debates.The first question to be explored is whether what emerged in the Mental Health Act 2007 is much different from what already exists in relation to such patients: if it is and it allows community treatment which was previously not available, the further question is whether that is a good thing in light of the experience of other jurisdictions that have CTO regimes. If it is not, there are two further questions: firstly, why has something called a CTO been introduced if it does not amount to a change of substance; and secondly, is it a missed opportunity in light of the information from other jurisdictions – in other words, would a substantive change provide benefits which England and Wales is now missing?

The proposal by Szmukler and others for a law that fuses mental health law and mental capacity law in England and Wales, both in the context of civil admissions to hospital based on the mental disorder of the patient and the making of orders by the criminal courts, can be summarised in the following quotes from their paper. They suggest:"a legal regime that … relies squarely on the incapacity of the person to make necessary treatment decisions as the primary justification for intervention in their life."By intervention is meant both detention and treatment under compulsion: so, rather than separate criteria for detention (based on the risk of harm) and treatment (based on capacity, at least in part), there would be a single incapacity test "that specifies the conditions for both treatment under compulsion and treatment under circumstances amounting to a 'deprivation of liberty'."What is meant by 'incapacity'? It is an "inability to understand, recall, process, use or weigh relevant information; inability to communicate a decision; or inability to reach a decision that is sufficiently stable for it to be followed."There would be a requirement that there be no less restrictive option available than intervention; for emergency situations, there would also be a safeguard for intervention based on a reasonable belief as to a lack of capacity.

The context in which the Szmukler et al proposal is put forward is the several reviews in the different jurisdictions in the United Kingdom and in Ireland, which have led to capacity becoming a central feature in relation to civil detention in Scotland and in Ireland, and which may well lead to it becoming a central feature in Northern Ireland, though efforts to achieve the same in England and Wales were rejected. For forensic patients, however, capacity is not prominent, and the proposal made goes further than recent legislative amendments and debates have contemplated. These are set out in the order in which they occurred: the Richardson Committee review of the English statute, then the amendments in Scotland, followed by those in Ireland (which pre-dated those in Scotland but came into effect later); next was the action that was eventually taken in relation to the English statute, and finally there are the proposals as to what to do in Northern Ireland. The latter is the only one that comes close to the proposals of Szmukler and others, which they acknowledge in their paper.

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