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COMMUNITY TREATMENT ORDERS,INTERNATIONAL COMPARISONS. John Dawson,Faculty of Law,University of Otago,Dunedin New Zealand. New Zealand Law Foundation,International Research Fellow for 2002. Copyright John Dawson,Printed by Otago University Print 2005. ISBN 1 877139 83 1,Inquiries to,john dawson stonebow otago ac nz.
Funded by the,New Zealand Law Foundation,Acknowledgements. The author was the recipient of the inaugural,International Research Fellowship Te Karahipi. Rangahau a Taiao an annual Fellowship,generously awarded by the New Zealand Law. Foundation,The author is most grateful for the Foundation s. support and thanks its trustees and staff for their. assistance during the project particularly the,Director of the Foundation Lynda Hagen.
The author is also most grateful for the time and, assistance provided by all those interviewed during. this research in Australia Switzerland the United,Kingdom and Canada. Community Treatment Orders,International Comparisons. 1 Overview 1,The common issues 1, The major fault lines in the design of CommTO legislation 1. The empirical research 3,The context for the use of CommTOs 5.
The rate of use and the balance of advantage 6, 2 Introduction Community Treatment Order Regimes 8. The central legal questions 9,The methods followed and their limitations 10. The aims and limits of CommTOs 11, Major legal issues in the design of CommTO schemes 13. The criteria for a CommTO 13,Administration 14,Procedures 15. Powers of mental health professionals 15,Collateral legal issues 16.
Liability and immunity 16,The method for the comparative analysis 17. 3 New Zealand 18,The introduction of CommTOs in NZ 18. The administrative infrastructure 19,The criteria and the process 20. The consequences for the patient 21,Treatment plans 22. Reciprocal duties imposed on health professionals 23. The effect of NZ s accident compensation scheme 24. Other aspects of the NZ regime 25,The rate of use of CommTOs 25.
Clinicians views of the NZ regime 26,4 Victoria 29. Summary 29,The Australian context 29,The Victorian context 31. Mental health services 31,Services in Melbourne 33. The CommTO legislation 34,Criteria 34,Administration 35. The Mental Health Review Board 36,Procedures 37,Treatment plans 37.
The consequences for the patient 38,Residence requirements 40. The recall or revocation process 40,Diversion from the criminal courts 42. Reasons for use of CommTOs 42,Numbers of patients under CommTOs 43. The characteristics of CommTO patients 44,Recent legal issues 46. The frequency of review proceedings 47,Other debates 48.
Research on efficacy 49,Cooper s study 49, The published study of McDonnell and Bartholomew 50. The studies by Power and Muirhead 51,Power s study 51. Muirhead s Study 56,Discussion 58,5 New South Wales 62. Summary 62,The context in NSW 62,The CommTO legislation 64. Criteria 64,Administration and process 66,Treatment plans 67.
The diversion powers 68,The consequences for the patient 68. The recall process 69,Obligations of service providers 70. Community Care Orders 70,Numbers of patients under CommTOs 71. Breach practices 73,The characteristics of CommTO patients 74. Research on efficacy 75,Concerns about the Review Tribunal 77.
Discussion 78,6 Switzerland 80,Summary 80, The general structure of Swiss law in this field 80. European human rights law 81,Mental health services in Switzerland 82. Central aspects of civil mental health law 84,Tutelary or guardianship law 84. The mental health legislation 86,The law of consent to treatment 87. Outpatient treatment schemes in the cantons 89,Discussion 91.
7 Scotland England and Wales 93,Summary 93, The constitutional context for mental health law reform 94. The recent legal position concerning involuntary 95. outpatient treatment,The law in Scotland 96,The new CommTO regime for Scotland 98. Criteria 99,Administration 100,Care Plans 100, The duties imposed on health professionals and agencies 101. The breach or recall process 102,Discussion of the Scottish regime 103. CommTOs in England and Wales 105, The recent legal history of involuntary outpatient treatment 105.
for civil patients, The litigation in England concerning the leave regime 107. The supervised discharge scheme 108,The law reform process 110. The CommTO Proposals in the 111,Draft Mental Health Bill 2004 UK. The extent of the new community powers 113,The duties of service providers 114. Diversion to involuntary outpatient care 114, Discussion of the proposals for England and Wales 114.
8 Canada especially Ontario 116,Summary 116,The Canadian context 117. The constitutional environment 117,The structure of mental health services 119. The forensic system 120, The position of the Canadian Psychiatric Association 122. The law concerning involuntary outpatient 124,treatment in Canada. The constitutional position on consent 125,to psychiatric treatment.
Starson v Swayze 127,The Ontario CommTO legislation 129. Criteria 129,Procedures and enforcement mechanisms 129. Obligations of service providers 131,The debate about this scheme in Ontario 131. Early experiences with the Ontario scheme 132,Research on efficacy 135. Discussion 137,9 Conclusions 140,The common issues confronted 140.
The major fault lines in the design 142,of CommTO legislation. The role of competency or capacity principles 142,The substantially impaired capacity test 146. The precise powers to enforce treatment 148,in community settings. Treatment plans 152,Legal pitfalls to avoid 153,Other fault lines 154. Trends in the use of CommTO schemes 154,The varying rates at which CommTOs are used 159.
The rate of use in particular jurisdictions 162,The position in Australasia 163. 10 Implications for New Zealand Law 167,The structure of the NZ CommTO regime 167. Community treatment powers 168,Independent review procedures 170. Civil liability 172,The service environment 172,References 174. This is a comparative study of the law in several jurisdictions concerning involuntary. outpatient psychiatric treatment It is particularly a study of legislation that governs. the use of Community Treatment Orders CommTOs These orders authorise the. provision to unwilling patients of continuing medication for the treatment of a serious. mental condition after discharge from hospital Many of the central legal issues. concern the scope of the powers to confer on community mental health teams to. monitor the patient s condition enter private premises provide treatment without. consent and take the patient to a clinic or hospital for treatment The law in this area. is reviewed in Victoria New South Wales Switzerland the United Kingdom and. Canada with a view to assessing the adequacy of NZ s CommTO regime. The common issues, What this comparative study has revealed above all is the similarity of the issues.
facing the various jurisdictions They are facing, the ethical question whether an involuntary outpatient regime ought to be enacted. the constitutional question whether such a regime can be lawfully enacted in light. of contemporary human rights norms, political questions that go to the will of parliaments to enact such schemes. legal questions concerning the detailed design of the legislation and. empirical questions concerning the operation of established CommTO schemes. particularly questions about the categories of patient placed under the scheme the. services they receive the consequences of their treatment the frequency of the. scheme s use and the manner in which it interacts with other social systems like the. criminal justice system, The major fault lines in the design of CommTO legislation. The two issues of legal principle that seem to be most troubling across the. jurisdictions are the role of competency or capacity principles in the criteria. governing involuntary outpatient care and the precise powers to confer on clinicians. to enforce treatment in community settings, On the first point the conclusion will be reached that NZ should include capacity. principles within its mental health legislation although it should include them in. modified form It will be argued that a test of substantially diminished capacity to. consent to treatment for mental disorder should be added to the legal criteria. governing all involuntary intervention under NZ s mental health legislation This. would have the effect of harmonising to a significant degree the rules governing. consent to psychiatric treatment with the rules governing consent to other forms of. medical care, On the second point the conclusion will be reached that the administration of.
medication by force in a community setting outside a properly supervised clinic or. hospital should not be authorised by a CommTO regime Nor should the law confer. on community clinicians an overly broad power of entry into the residence of a. patient under a CommTO to avoid excessive violation of patients privacy Nor is it. necessary to confer an additional power on the courts to order an outpatient to reside. at a specified address, Subject to those conditions however NZ law should continue to encourage the use of. CommTOs particularly to avoid the unnecessary criminalisation of the mentally ill. The experience gained in Australasia in the last decade shows it is sufficient for the. adequate operation of a CommTO regime to provide in the law the following mix of. duties and powers, to place a duty on the patient to accept psychiatric treatment subject to the same. limits as govern treatment in hospital, to direct the patient to accept visits from health professionals and attend outpatient. appointments, to direct the kind or level of residence at which the patient must reside. to enter the patient s place of residence at reasonable times and for purposes directly. related to enforcement of the community treatment regime. to recall the patient swiftly to hospital and to transport them there. to obtain police assistance in that process, to provide treatment without consent in a hospital or in a clinic that is continuously.
staffed by properly qualified health professionals. In addition to clarify the precise scope of the authority conferred on health. professionals to treat patients in the community it might be useful to adopt the. following rule from NSW that medication may be administered without consent to a. patient under a CommTO if it is administered without the use of more force than. would be required if the person had consented, A number of further fault lines in the law have been identified from study of the. various jurisdictions legislation These include, whether use of CommTOs ought to be limited to patients with a history of prior. hospital admissions or whether patients on their first admission should also be. whether family members should be granted veto powers over the patient s treatment. in addition to consultation and information entitlements when they may have a. conflict of interest with the patient, the frequency and intensity of tribunal review procedures. the value of statutory treatment plans to be approved by a court or tribunal when. they may confuse lines of responsibility for the treatment of the patient. the tendency to impose strong statutory duties on health providers to furnish. treatment to involuntary patients when that may enhance providers liability. The empirical research, From the empirical evidence some clear trends were also found The use of. CommTO schemes often increases significantly after an initial bedding in period. particularly if a simultaneous reduction occurs in the number of hospital beds and. there is an associated build up of community mental health teams When the average. length of involuntary hospital stays falls below some critical length perhaps 2 3. weeks the use of CommTOs seems to jump significantly due to the early stage in. treatment at which many patients are then discharged The upward trends in the use. of CommTOs also suggest that increasing the availability of community resources. increases their use instead of decreasing the need for their use as some may suggest. Well embedded CommTO schemes usually focus on certain categories of patient. Male patients tend to outnumber females by a ratio of about 60 40 and most. involuntary outpatients are in the middle phase of their illness have a diagnosis of. schizophrenia several prior hospital admissions and a recent history of non. compliance with outpatient care A considerable proportion are found to have. concurrent problems with substance misuse and a significant minority have. experienced imprisonment or forensic care In most jurisdictions only a minority live. in group homes or supported accommodation most live alone in rented. accommodation or with their families Power s research in Melbourne in particular. suggests that CommTOs can be successfully targeted in practice on those patients. who are identified in the psychiatric literature as the primary candidates for. involuntary outpatient care, Although there are limitations in the evaluation studies of CommTO regimes the.
a COMMUNITY TREATMENT ORDERS INTERNATIONAL COMPARISONS John Dawson May 2005 Funded by the New Zealand Law Foundation

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