Q It makes you feel better than not having the medication, right?
A I don't know about that because to be totally honest with you, I can't notice a difference; to be quite honest I can't notice a difference.
27 There is no doubt that Mr S needs anti-psychotic medication. The fundamental issue is whether that must be pursuant to a community treatment order, or whether he can be left to take it voluntarily; and if under a community treatment order, whether it must be by way of depot injection.
Does a mental health facility have an appropriate treatment plan (s 53(3)(b))?
28 The matters so far mentioned show that Risperdal Consta is effective and beneficial treatment for Mr S, with minimal side effects (less than the oral alternative). It was not suggested that the hospital was not a declared mental health facility (or part of one), nor that it was incapable of administering the treatment plan; indeed the last several years since a community treatment order was first made in respect of Mr S demonstrates that capability.
29 I am therefore satisfied that the treatment plan for Mr S under the community treatment order is an appropriate one, and is capable of implementation by the hospital (and/or the Area Health Service), as it has been in the past. It follows that I am satisfied of the matters referred to in s 53(3)(b).
Is Mr S likely to relapse if the order is not granted (s 53(3A))?
30 Although - because Mr S has been the subject of a community treatment order within the last 12 months - neither was the tribunal nor am I required to make a determination that he has a previous history of refusing to accept appropriate treatment, it is a precondition to making a community treatment order that the tribunal, and now the court, be satisfied that he is likely to continue in or to relapse into an active phase of mental illness if the order is not granted. The medical evidence - particularly that of Dr Diana - explains that if Mr S were to cease to take medication, his condition would deteriorate, not necessarily immediately but after perhaps four to six weeks. Thought disorder would increase, and he would likely experience an increased incidence of auditory hallucinations and persecutory delusions, with a consequent impact on his independence. The medical evidence also suggests that it would take him many months of treatment to recover from any such deterioration to the condition which he has presently reached. Resolution of this issue is therefore primarily informed by an evaluation of whether Mr S would be compliant with a regime for medication other than pursuant to the order. This requires consideration both of the situation that there be no order at all, and of that that there be a "less restrictive" order, in circumstances where, in his oral evidence, Mr S assured me that, if afforded the opportunity of taking oral medication rather than IMI depot medication, he would definitely take it.
31 Like many schizophrenics, Mr S has limited insight into his illness, with the result that at times he has not accepted that he suffers from schizophrenia (propounding on occasion that he suffers from bi-polar illness), and has sometimes disputed that he needs anti-psychotic medication. The history summarised above indicates that when he has not been under the compulsion of a community treatment order he has at times in the past become non-compliant with prescribed medication.
32 Mr S conceded that there were occasions in the past, when he was on oral medication, that he missed taking medication for a couple of days, but not that he had ceased taking it for weeks or months. Following the expiry of the previous community treatment order in April 2007, he remained voluntarily on depot injections, and then changed to oral medication, on which he remained about a year. The side effects of the medication initially prescribed were, in respect of his sexual function, unacceptable to him and he was changed to another, but his general practitioner (probably at Mr S's request) reduced the dose, to a sub-therapeutic level, with a concomitant decline in his mental state and function. Mr S maintained that, at the time of his subsequent deterioration in April 2008, he was then taking his medication, but that "life pressures" impacted on him in a manner which caused the deterioration; this explanation was not disproved. Indeed, during the last week before the hearing of the appeal, his condition deteriorated somewhat with a number of life events, although he remained on medication in accordance with the community treatment order. Mr S also denied having asserted that he did not need medication, would not take it, and wanted to see what would happen if ceased medication completely. Nonetheless, having regard to the whole of his history, and to the typical reluctance of schizophrenics to remain on their medication, I am satisfied that unless he is under a legal obligation to take medication, it is likely that sooner or later he will become non-compliant and subsequently relapse into an active phase of mental illness.
33 However, it does not follow that he would not comply with a "less restrictive" community treatment order, such as one that required him to take oral medication and submit to regular review. Despite his limited insight into his illness, Mr S has substantially complied with the community treatment order since it was made. Indeed, a number of features of the evidence point to him as being compliant with legal obligations, particularly when the consequences of non-compliance have been explained to him.
34 Moreover, if IMI medications were ceased and not replaced with oral medication, signs of deterioration would likely appear in six to eight weeks. If he was on oral medication, depending on the dose, deterioration might become apparent in a few weeks. The significance of this is that if he is under regular review, non-compliance with medication would become apparent at a sufficiently early stage that there could be an intervention.
35 Although Dr Diana and the case worker Mr Roper expressed the view that Mr S was not likely to be compliant with oral medication, I am unpersuaded that this is so, if he is under a legal obligation to take the medication. His history is one of compliance with treatment orders when there is a legal obligation. Even when there was not, and when he was on oral medication in 2007 - 2008, he continued to take that medication, albeit at a sub-therapeutic level after his GP reduced it. In my view, if under a legal obligation to take oral medication and submit to regular review, it is likely that he will comply, and that any non-compliance would be detected at an early enough stage to permit intervention before serious relapse.
36 It follows that while I am satisfied that, unless he is under a legal obligation to take medication, it is likely that sooner or later Mr S will become non-compliant and subsequently relapse into an active phase of mental illness, I am not satisfied that such a relapse is likely if a "less restrictive" order, permitting oral as an alternative to IMI medication and providing for regular review, were in place.
Is the order the least restrictive alternative consistent with safe and effective care (s 53(3)(a))?
37 While Mr S's preferred position is that there be no community treatment order at all, his alternative position was that he should be permitted a trial of oral medication in lieu of IMI depot medication.
38 The same medication (Risperdal) - or an alternative anti-psychotic - can be administered orally by daily doses, rather than fortnightly by injection, producing the same effects. There is nothing to suggest that oral medication is any less effective as a treatment, apart from questions of compliance. For reasons already explained, I am unpersuaded that Mr S would be non-compliant with an oral regime if under the compulsion of a community treatment order. Regular supervision would permit early detection of any deterioration so as to permit prompt intervention to avoid serious relapse. Indeed, on many occasions over the years, when he has been in a state of mental distress, Mr S has brought himself to the attention of the community health team. When something goes awry, he realises there is a problem, even if he cannot articulate it. When he has had relapses, he has frequently self-presented in a community setting or to the emergency department.
39 That is not to say that oral medication is necessarily the optimal treatment for him. On his own evidence, he appears to experience fewer adverse side effects with the IMI depot medication than with oral medication, and there is impressive evidence that the IMI depot medication works well for him. If the question for me were the medical one of which course of treatment is best suited to his circumstances, I have little doubt that I would conclude that it was fortnightly IMI depot injections of Risperdal Consta.
40 But that is not the legal question: to uphold the community treatment order, I must be satisfied that no other care of a less restrictive kind consistent with safe and effective care is appropriate and reasonably available, and that Mr S would benefit from the order as the least restrictive alternative consistent with safe and effective care. "Appropriate and reasonably available" treatment does not connote the very best treatment. So long as the alternative is appropriate and reasonably available and is consistent with safe and effective care, it matters not that it may not be the most desirable course of treatment. In my view, a treatment plan that afforded Mr S the option of oral or IMI depot medication - together with regular (say monthly) supervision and review in a mental health facility to monitor his condition, welfare and compliance - is appropriate (though perhaps not optimal) and reasonably available, would be a less restrictive alternative to one providing only for IMI depot medication, and would be consistent with safe and effective care.
41 It follows that I am not satisfied that the particular community treatment order that was made is the least restrictive alternative consistent with safe and effective care.
Conclusion
42 For the foregoing reasons, on 16 December 2009 I announced my conclusions as follows.
43 There is no doubt that Mr S needs anti-psychotic medication. I am satisfied that the treatment plan for Mr S under the community treatment order is an appropriate one, and is capable of implementation by the hospital (and/or the Area Health Service), and thus of the matters referred to in s 53(3)(b). I am also satisfied that unless he is under a legal obligation to take medication, it is likely that sooner or later he will become non-compliant and subsequently relapse into an active phase of mental illness. However, I am not satisfied that such a relapse is likely if a "less restrictive" order, permitting oral as an alternative to IMI medication and providing for regular review, were in place. In my view, a treatment plan that afforded Mr S the option of oral or IMI depot medication - together with regular (say monthly) supervision and review in a mental health facility to monitor his condition, welfare and compliance - is appropriate (though perhaps not optimal) and reasonably available, would be a less restrictive alternative to one providing only for IMI depot medication, and would be consistent with safe and effective care. It follows that I am not satisfied that the particular community treatment order that was made is the least restrictive alternative consistent with safe and effective care.
44 Accordingly, while I am satisfied that a community treatment order is appropriate, I am not satisfied that the order made by the tribunal is the least restrictive alternative consistent with safe and effective care. No alternative treatment plan, for an order of the type which I would consider appropriate, was before the tribunal, nor is one before me. In those circumstances I do not think that I can substitute such an order, there being no relevant treatment plan. I must allow the appeal, and leave it to the Area Health Service to make a further application to the tribunal supported by such a treatment plan.
45 I therefore allowed the appeal, and made the following orders: