Community treatment orders: current practice with regard to the Human Rights Act

We were struck by the potential legal implications surrounding the discretionary conditions of a community treatment order, in particular social conditions such as conditions on driving, restricted family visits and checking mail, which are authoritarian in their approach. Lepping & Malik rightly pointed out that these conditions raise ethical issues. ¹

Article 5(4) of the European Convention on Human Rights (ECHR) sets out that persons detained unlawfully should be able to secure their release by petition to an independent court of law. The power of mental health review tribunals to order discharge from community treatment orders appears to meet this requirement. However, the tribunal does not have the power to vary the conditions of a community treatment order, and the patient does not have the right to appeal these. ² Severe restrictions which effectively amount to a deprivation of liberty would almost certainly be challengeable on human rights grounds with regard to a breach of Article 8 ‘Rights to a private and family life’. ³ In many countries where community treatment orders are used, the conditions are authorised by the judicial system as opposed to the UK where the responsible clinician instigates the conditions.

We would like to highlight that responsible clinicians should consider both Article 5 and 8 of the Human Rights Act when setting conditions for the community treatment order as in our opinion this remains a likely area for a potential judicial review.