Community treatment orders and capacity to consent

We welcome Newton-Howes & Ryan's plea for a more restrictive use of community treatment orders (CTOs). ¹ They have a heavy impact on patients' rights, are largely ineffective ² and are likely to damage the trust between patients and treatment teams, which is vital for sustained success in treatment. In this regard, the editorial rightly points out that the extensive use of CTOs is in contrast with the spirit and principles affirmed by the UN Convention on the Rights of Persons with Disabilities (CRPD). However, it still refers to the traditional binary distinction between capacity and incapacity, which has to be considered obsolete in light of the Convention.

The authors, citing the CRPD, exclude the use of CTOs for capacitous patients, admitting it for those who lack the capacity to decide on their treatment. However, it is precisely this distinction between capable and incapable individuals that the UN Committee on the Rights of Persons with Disabilities rejects as discriminatory. The Committee stresses how the traditional functional approach to capacity:

‘attempts to assess mental capacity and deny legal capacity accordingly. It is often based on whether a person can understand the nature and consequences of a decision and/or whether he or she can use or weigh the relevant information. This approach is flawed for two key reasons: (a) it is discriminatorily applied to people with disabilities; and (b) it presumes to be able to accurately assess the inner-workings of the human mind and, when the person does not pass the assessment, it then denies him or her a core human right-the right to equal recognition before the law. In all of those approaches, a person's disability and/or decision-making skills are taken as legitimate grounds for denying his or her legal capacity and lowering his or her status as a person before the law. Article 12 [of the CRPD] does not permit such discriminatory denial of legal capacity, but, rather, requires that support be provided in the exercise of legal capacity’. ³

As noted by Quinn, ⁴ the CRPD, in particular article 12, transfers the discourse concerning legal decision-making to a completely different context, in which the distinction between capacity and incapacity does not exist anymore. In this new landscape, the point is just how to put in place the right and less-invasive means of support for the person, independently of the category in which they might be pigeon-holed in consideration of their mental abilities. ⁵

Therefore, the discussion on CTOs needs to be approached from this new perspective. In this regard, we argue that compulsory treatment, whether of in-patients or out-patients, mentally capable or incapable individuals, physical or mental illness, if at all can only be used in exceptional cases when (i) there is uncertainty about the will and preferences of the person and (ii) significant other rights (e.g. the person's health) are at stake.

The occasion to experience a system similar to that proposed by the CRPD with regard to psychiatric care arose in Germany in relation to coercive treatment for in-patients. Here, there are no legal provisions on CTOs, but the regulation on involuntary treatment in hospitals was suspended for several months following court rulings in 2011 and 2012. Therefore, there was no rule allowing coercive psychiatric treatment for patients with and without legal capacity, except in cases of justified emergency. The data collected in this period show how this legal void created very different situations from ward to ward. In some structures it caused an increase in other forms of coercion (e.g. physical restraint), but in others it led to a more limited use of involuntary and restrictive measures. ⁶ When coercive treatment for in-patients was reintroduced in 2013, the narrow criteria provided by the new law led to a sharp reduction in the use of this measure. ⁷ The application, in the context of CTOs, of a similar approach to that developed in Germany with regard to coercive treatment may lead to a step forward in promoting a system which is more respectful of patients' rights in psychiatric practice.

In conclusion, we support the call for a far more restrictive use of coercive treatment and suggest that, in light of General Comment No. 1 on Article 12 of the CRPD, ³ this should apply to out-patients and in-patients.