The supervised community treatment order is the latest legislative tool aimed at tackling 'revolving door' patients. But does it go too far? Mark Gould hears the pros and cons
'I can't understand it. Offered a choice between prison and probation, I know which one I would choose.'
So says former health minister Lord Warner on concerns over supervised community treatment orders (SCTOs), one of the most contentious elements of the Mental Health Bill. Scrutiny of the bill, which in its latest incarnation is proposed as an amendment of the 1983 Mental Health Act, began last month in the House of Lords.
Never before used in English mental health law, the SCTO is designed to tackle the 'revolving door' problem of detained patients who leave hospital, stop taking their medication, and are eventually re-hospitalised.
National director for mental health Professor Louis Appleby believes people who may be eligible for SCTOs are often already in the system and that the orders will reduce the social exclusion associated with long periods of detention, so speeding patient recovery. The measures will apply to people who have been initially detained in hospital under section 3 or a similar part of the 1983 Act. After treatment they could then be released back into the community with a suitable treatment and after-care package.
But opponents say the threshold for an SCTO is too low. The Department of Health estimates the average lifespan of an order at nine months, but there are concerns that someone with a poor history of compliance could be on one for life, leading to an increase in the numbers of people being treated under compulsion. Patients who do not comply will be returned to hospital where they will face forcible treatment anyway.
Department of Health impact assessments indicate that the bill will only need a relative handful of additional new staff, mainly nurses and psychologists, to implement. The expected investment is not massive. In 2008-09, the first full year of operation, costs are put at£22m, rising to a 'steady-state' figure of£24m a year by 2014.
Although long expected, the NHS is only now considering the practicalities of implementation. Thoughts were focused last December with the release of a national implementation plan developed by the national care services improvement partnership and the National Institute for Mental Health in England. Published by East Midlands CSIP, it followed consultation with service users, carers, staff, trusts, local authorities and voluntary groups.
The plan sets out what strategic health authorities, mental health trusts, primary care trusts, ambulance services, local authorities and the police should be doing to prepare for the act.
SHAs will be charged with ensuring all mental health and social care organisations in their area develop local action plans and work together to ensure a co-ordinated approach to the introduction of the amendments. They will also lead work to ensure all organisations have the staff in place to carry out their responsibilities under the amended legislation.
Given the hostility towards elements of the bill and the possibility of amendment in Parliament, the guidance warns managers to review the document 'at key milestones in the legislative process to ensure it continues to relate directly to the provisions of the legislation when it is eventually enacted'.
For Sandy Taylor, Department of Health Mental Health Bill implementation group chair and acting chief executive of Coventry and Warwickshire Partnership trust, the biggest issue is ensuring the workforce is willing to take on new responsibilities and organising those effectively. 'The approved mental health professional role is completely new for nurses, occupational therapists and psychologists. People are already demonstrating their willingness to take on new roles and more community work. We will be working closely with CSIP and NIMHE on identifying training needs and when we get a clearer picture of the bill we can get on with implementing it,' he says.
He admits that the fears of carers, patients and campaign groups have affected workers. 'The workforce has day-to-day contact with carers and patients and are aware of the concerns. It does have an impact on them. They will think the bill might have shortcomings, but it reflects contemporary practice - we need flexible roles.'
Mr Taylor wants workers to explain the motives to patients and carers. 'These changes are not being done with sinister motives. We have been trying to modernise mental health law since 1998.'
Estimates of how much new work measures such as SCTOs will bring are uncertain. The DoH's impact assessment calculates that a situation that led to a 5 per cent increase in detentions post legislation would put costs up to£37.5m a year, or£22.7m with a 5 per cent decrease in detentions.
King's Fund senior fellow in mental health Simon Lawton-Smith has analysed the first six months of community treatment orders imposed in Scotland since their introduction in 2003. He believes the numbers that can be expected in England and Wales are unclear.
'It could be that 8,000-13,000 people will be under SCTO, but that is not the same thing as saying there will be additional people in the system. It could be that there would be 10,000 additional people on SCTOs in the community, but also 10,000 fewer people in hospital under compulsion,' he says.
Terms of compulsion
Mr Lawton-Smith says it is the terms under which someone is compelled to have treatment that remain problematic for campaigners.
'Many people would have no problem with being in the community rather than hospital, but it's a question of how the legislation is drafted, as the new threshold for detention is lower. The old act says treatment under detention should improve symptoms and reduce the level of illness.'
He adds that the bill specifies 'appropriate treatment' because the government wants the power to detain people previously seen as untreatable. 'Opponents say you shouldn't use mental health law for public safety reasons; rather you need new criminal justice law.'
He is also worried that the orders will sour relationships between patients and health professionals, if clinicians err on the side of caution when faced with a patient with a history of poor compliance.
'Some clinicians say people have to be made to take medications, but we think this is discriminatory against people with mental health problems - you wouldn't compel a diabetic to take their medication, no matter how vital it is.'
The King's Fund is in favour of SCTOs taking on some of the elements used in Scotland, where they are made if they are identified as having 'therapeutic benefit', including an impaired judgement clause that takes account of a patient's capacity to make decisions. Orders are policed by a three-man independent tribunal.
But Professor Appleby is against a Scottish model. 'I don't agree with the capacity test. That would put people at greater risk [of not being treated]. We already have a quite clearly defined number of people who will be affected,' he says.
Mental Health Act Commission policy adviser Mat Kinton says developing a fully functioning national network of crisis resolution teams would have more effect on keeping numbers of detained patients down.
He is also concerned about the implications of people who are not medically qualified, such as social workers and psychologists, taking on the role of responsible clinician.
'This is an ethical and technical issue. Article 5 of the European Convention on Human Rights requires that detention for psychiatric treatment is based upon objective medical evidence and nothing should undermine this.'