Our series covers:

• Assessment and admission
• Nominated Person
• Inpatient issues Part I - treatment
• Inpatient issues Part II - RCs, IMHAs, complaints, discharge
• Community issues Part I - CTOs
• Community issues Part II - conditional discharge, guardianship and aftercare

In this briefing, we will be focusing on the changes the Bill is proposing in relation to Community Treatment Orders (CTOs).

CTOs - summary of key changes

The role of the CTO has been controversial and much-debated during the MHA reform process. Concerns that have been raised have included that: they are being used far more than originally envisaged/intended; there is insufficient evidence of their benefit; and that there is a disproportionate use for black and ethic minority patients (which led to the Joint Committee recommending they be abolished for Part 2 patients - see para 68 Joint Committee Report 2022-2023).

However, there is also plenty of anecdotal evidence of the value of CTOs for certain patients. Indeed, one of the issues flagged in the CQC's 'Special review of mental health services at Nottinghamshire Healthcare NHS Foundation Trust (Part 2)' was the failure to consider the use of a CTO.

We outline the key changes, and our thoughts on their potential impact, in more detail below.

Criteria

What changes is the Bill proposing?

The Bill will introduce a number of changes to the CTO criteria for Part 2 (s.3) patients in line with changes proposed to s.3, so that:

• Since a patient cannot be placed on a s.3 on the basis of autism and/or a learning disability, then a CTO will also not be available for such Part 2 patients

• The criteria are revised so that a patient can only be discharged onto a CTO where:

"(a) the patient is suffering from psychiatric disorder of a nature or degree which makes it appropriate for the patient to receive medical treatment,

(b) serious harm may be caused to the health or safety of the patient or of another person unless the patient receives medical treatment,

(c) it is necessary, given the nature, degree and likelihood of the harm, for the patient to receive medical treatment,

(d) subject to the patient being liable to be recalled as mentioned in paragraph (e), the necessary treatment can be provided without the patient being detained in a hospital,

(e) it is necessary that the responsible clinician should be able to exercise the power under section 17E(1) to recall the patient to hospital, and

(f) appropriate medical treatment is available for the patient.”

• For non-restricted Part 3 patients, a CTO will still be available where the patient is suffering from a 'relevant disorder' which includes autism and/or a learning disability which has 'serious behavioural consequences'

Our thoughts

The changes to the CTO criteria reflect the changes to s.3 criteria. It remains to be seen how the 'serious harm' amendment impacts in practice on the availability and use of the CTO. The distinction between the criteria for Part 2 and Part 3 is likely to cause some confusion, which will be further exacerbated by the different time periods for detention and Tribunals following revocation, as considered below.

Community consultant role

What changes is the Bill proposing?

The role of the community consultant (CC) is introduced. The CC will be the Approved Clinician with responsibility for the CTO in the community (who may also be the Responsible Clinician/RC).

Where the RC is not the CC, then they will have to get the agreement of the CC (and the AMHP) to the CTO and to any conditions initially imposed on it.

The RC (unless also the CC) will have to consult with the CC prior to any extension of the CTO and before discharge of the CTO. There will also be a requirement to consult with the CC before varying/suspending a condition, recall or revocation, unless this would cause unreasonable delay.

Our thoughts

One of the issues frequently raised in relation to the effectiveness (or otherwise) of the CTO, is the need for there to be consultation and agreement with the community team since, usually, the RC at the point of discharge onto a CTO will be the inpatient RC, with the community consultant (who will be the CC under the changes) becoming RC once the patient has been discharged. These changes will require that to take place, at least in relation to discharge onto the CTO. In practice, the impact of the new role is likely to be limited to the initial discharge onto a CTO and possibly for recall and/or revocation, since the remainder of the time it is likely that the CC will also be the RC.

Conditions

What changes is the Bill proposing?

Whilst no limits as such are imposed on conditions by the Bill, any conditions must be necessary to ensure that the patient receives treatment and/or to prevent risks to their health or safety and/or protect others.

Conditions will initially need to be agreed with the AMHP and the CC and cannot subsequently be varied/suspended by the RC without consultation with the CC, unless this would involve unreasonable delay.

The Tribunal will have a new power to recommend that the RC reconsiders a condition.

Our thoughts

The agreement of conditions with the CC and the power to the Tribunal to recommend conditions will hopefully ensure that decision-making around conditions is robust.

Nominated Person role

What changes is the Bill proposing?

The new NP role, replacing the Nearest Relative (NR), will have:

• The right to be consulted by the RC before the patient is discharged onto a CTO (unless this would be not reasonably practicable/involve unreasonable delay)

• The right to object to the CTO, which would prevent discharge onto a CTO unless the RC can certify that the patient should be discharged and, if discharged without a CTO, the patient would be likely to act in a manner dangerous to themselves or others

• The right to be consulted by the AMHP before the CTO is extended (unless this would be not reasonably practicable/involve unreasonable delay)

Our thoughts

This is an extension of the existing NR rights. In reality, where the NP objects to the CTO it may be difficult for the RC to conclude the ‘dangerousness test’ is met.

Treatment

The Part 4A provisions are ‘tidied’ to some degree, but remain largely the same.

Tribunal

What changes is the Bill proposing?

As noted above, the Tribunal will have new powers to make recommendations about conditions.

A CTO patient must have a referral by Hospital Managers after 6 months, 12 months and yearly thereafter.

The automatic referral to a Tribunal on revocation is removed. However, a fresh period is triggered, so that they will need to be referred at 3 months, 12 months then yearly thereafter.

Different time periods apply to Part 3 patients.

Our thoughts

The automatic referral has given rise to complications in practice, particularly where a patient moves rapidly between a CTO and s.3, so removal of the automatic referral will assist in those situations.

What next?

Whilst, of course, changes may still be made (and there is some tidying up to do) as the Bill proceeds through the parliamentary process, it seems likely that there will not be any major changes.

Although implementation (which will be phased in) is not likely to commence until 2027 - with the Code, new regulations and forms to be drafted in 2026 - there will be lots of work to do preparing for these changes and services should begin their strategic planning now.

We will continue to keep you updated on developments and, as the Bill moves towards implementation, can assist by advising on drafting and implementing policies and processes that are compliant with legislative change and will withstand regulatory scrutiny. We can also provide training on all aspects of the Mental Health Act and the impact of the proposed changes to ensure that staff understand the scale and implications of what is being proposed.