Prof. John Dawson1
1Faculty of Law, University of Otago, Dunedin, New Zealand
Clinicians sometimes consider imposing stringent ‘residence’ conditions on patients put on Community Treatment Orders under the Mental Health Act. Can such controls over patients’ living conditions be lawfully imposed? Could staff insist that a patient under a CTO remain – effectively – under ‘house arrest’, or under an ‘18-hour curfew’, or impose a condition that a patient not leave a community residence ‘without permission of staff’? Conditions of this kind might promote the safety of the patient or others, and might even be considered a less restrictive alternative to continuing, secure, inpatient care. But they also impose significant limits on patients’ liberty, under what is supposed to be a ‘community’ treatment order regime.
Obviously, the lawfulness of such measures depends in part on whether imposing restrictions of this kind is expressly authorised by the legislation. But much also depends on matters of interpretation, especially when the power to impose such conditions on patients’ community care is expressed, in the law, in broad or vague terms. What, then, is the correct interpretive approach?
Particular attention will be paid to judicial decisions on these matters in New Zealand and England.
John Dawson is a professor of law at the University of Otago in New Zealand. He has researched mental health laws since the 1980s and studied their operation in several countries. His work mainly concerns the use of Community Treatment Orders (CTOs). He has an LLD for publications in this field. He was the legal member of the OCTET team that conducted a randomized controlled trial of the English CTO regime (The Lancet, 2013). He recently contributed chapters on these matters to Care of the Mentally Disordered Offender in the Community (OUP, 2017); Coercion in Community Mental Health Care: International Perspectives (OUP, 2016); and Mental Health Law and Policy in Canada (LexisNexis, Toronto, 2016).