Time to abolish the psychiatric ASBO

Placing state-backed constraints on ex-mental patients is a flagrant violation of their autonomy.

In the field of mental health in the UK, one of the most striking manifestations of our risk-obsessed, threat-imagining mindset is the community treatment order (CTO), otherwise known as the psychiatric ASBO.

A product of the Mental Health Act 2007, a CTO allows professionals to impose certain conditions on patients once they leave hospital. This mainly involves ensuring that they continue to take their prescribed medication in the outside world. A failure to comply can mean a recall to hospital.

CTOs arose out of concerns that the public had been placed at risk by a worthy but misconceived policy to replace long-stay mental hospitals with ‘care in the community’ schemes. High-profile cases, where ex-patients had killed, exacerbated public anxiety. The most notable case was that of a ‘paranoid schizophrenic’, Christopher Clunis, who disengaged himself from local services, stopped taking his medication, and, in December 1992, stabbed Jonathan Zito to death at Finsbury Park Tube station in London.

While the dangers posed by ex-patients has been greatly exaggerated, tragedies like Zito’s were hugely influential in the framing of subsequent mental-health law and policy.

Cases of ex-patients discontinuing their prescribed medication are not uncommon. Psychiatric medication can lead to some severe and unpleasant side effects, such as tardive dyskinesia (symptoms similar to Parkinson’s disease), drowsiness, tremors, sexual problems and weight gain. Unsurprisingly, some patients exercised their then right to stop taking their medication as soon as it was possible. In addition, some patients, disputing that they had a mental illness, would paint themselves as victims of psychiatric oppression and stop co-operating with mental-health professionals as soon as it was possible.

Once professionals had the power to put people on CTOs, they made full use of them. For example, the government envisaged that between 350 and 450 CTOs would be issued in England and Wales in the first year that the powers came into force. The actual figures turned out to be somewhat higher. In the first five months in which professionals were able to issue them in 2008/9, 2,134 CTOs were issued in England alone. And the numbers have continued to rise. According to NHS figures cited in the Independent, the number of people placed on CTOs has risen steadily since they were first brought in. The latest statistics show that in 2012 there were 4,764 people subject to such orders – 473 more than in 2011. Such high numbers have led to the suspicion that CTOs are being used to cover the backs of professionals in case something goes wrong, rather than for the benefit of the patient.

Now, less than six years after their introduction, one of their most vociferous proponents, Professor Tom Burns, a consultant psychiatrist, has come to the conclusion that CTOs do not work. Burns and his colleagues compared two separate groups of psychiatric patients to determine whether there were any differences in hospital admissions. One hundred and sixty-six patients were placed on a CTO, which can initially last for up to six months and can be renewed at the end of this period. A comparison group of 167 participants was placed on hospital leave (under Section 17 of the Mental Health Act). This is intended to be only a very short-term measure, sometimes only lasting a matter of days.

To the researchers’ surprise, 36 per cent of patients in both groups were readmitted to hospital within one year. In addition, the study found there were no significant differences between the two groups in terms of the frequency and duration of admissions and that both sets of patients had similar social and medical outcomes. As Professor Burns said, ‘the evidence is staring us in the face that CTOs don’t work’ and their use ‘does not confer early patient benefits despite substantial curtailment of individual freedoms’. He now believes that there should be a moratorium on the use of CTOs for at least a year.

Having long argued against the introduction of CTOs, I am pleased that my opponents now agree that they entail an unnecessary restriction on individual liberty. However, my objection to them was never a solely utilitarian argument over how effective they would be. Even if Professor Burns’ research had found that CTOs reduced psychiatric readmission rates, I would still argue that their introduction was wrong. Mental-health law and associated power is exceedingly complex and hotly debated. For some radical libertarians, such as the late Thomas Szasz, a psychiatrist himself, any form of psychiatric coercion is akin to the Spanish Inquisition. Nevertheless, it is possible to be a defender of liberty and to acknowledge the need for some people to have their liberty restricted by the state and its proxies, in this case psychiatrists and social workers.

That paragon of liberalism, John Stuart Mill, recognised the need for psychiatric intervention in particular cases, too. After all, in addition to the harm principle, Mill states that his doctrine of individual freedom should apply only to human beings in the maturity of their faculties, which precludes children and others unable to take care of themselves. So, in cases, for example, where someone is severely psychotic, psychiatric coercion, constraint and intervention is not a violation of individual autonomy because the subject, at that point in time, is not autonomous in any moral sense.

However, while the case for psychiatric intervention can be justified at the point of hospital admission, it is not necessarily justified at the time of discharge. On admission, the patient may be in an acutely psychotic state, having lost touch with reality. However, at the time of discharge, this is rarely the case. At discharge the patient can be well, have full mental capacity, with greatly reduced psychotic symptoms, or even none at all.

Prior to the 2007 Act, it was acknowledged that at the point of discharge, the now ex-patient regained the status of an autonomous subject. In other words, he or she regained the rights of citizenship that most of us take for granted, including the right to refuse medical treatment even if doctors deem it to be in our best interest. Today, subject to a CTO, the patient does not return to full citizenship status but to a reduced social standing, neither full citizen nor patient but a diminished hybrid of the two - the ‘community patient’ (1).

So, by all means let’s stop the use of CTOs, but we should do it on the basis that people with mental capacity are autonomous individuals who are free to do as they wish, whether or not this goes against what others deem to be in their best interests.

Ken McLaughlin is a senior lecturer in social work at Manchester Metropolitan University, England. His most recent book, Surviving Identity: Vulnerability and the Psychology of Recognition, is published by Routledge. (Buy this book from Amazon (UK).)

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Footnotes and references

(1) For a discussion of ethics, mental health and CTOs see K McLaughlin and S Cordell . ‘Doing what’s best, but best for whom: Ethics and the mental health social worker’ in Carey, M. and Green, L. (eds.) Practical Social Work Ethics: Complex dilemmas within applied social care, published in June by Ashgate publishing