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Lunacy, Liberty and Community Treatment Orders

To what extent are psychiatric patients, living in their own homes but subject to the legal conditions of Community Treatment Orders, at greater liberty than those unchained by Philipe Pinel and Samuel Tuke?

I invite you to consider two images. Firstly, Tony Robert-Fleury's 1887 painting, ‘Pinel Freeing the Insane,' depicting Parisian mad-doctor, Philippe Pinel releasing madwomen from their chains at the Salpêtrière, an event that took place in 1795.

Feminist historian, Elaine Showalter, describes Fleury's depicted women thus:

‘Some are crouched in melancholia, others crying out in hysterical fits, while one gratefully kiss the hand of Pinel.'

Fleury painted Pinel as a saviour; a doctor recognising madwomen's conduct as madness, yet bestowing freedom.  Pinel's unfettering is a divisive moment in the history of liberty and lunacy. Historian Andrew Scull says, of Fleury's painting, ‘a famous event though in fact a myth created decades later'.  Pinel's fellow Frenchman, Michel Foucault called it, ‘the gigantic moral imprisonment, that became known, ironically perhaps, as Pinel and Tuke's liberation of the mad.'

Next, please look at this graph. Note especially the lower, light-blue line, tracing the increase in patients detained under Community Treatment Orders (CTOs), since their insertion into the Mental Health Act 1983, by the Mental Health Act 2007 (the Act).  

CTOs are a legal device, compelling patients with mental disorders to accept psychiatric treatment, not in hospital, but at a defined address, usually their own homes. The commonest treatment prescribed to patients on CTOs is antipsychotic medication, which may be administered orally, or in a long acting form, administered by injection. Psychiatrist Tim Lambert and colleagues, investigating treatments administered to a cohort of patients on CTOs, note ‘proportionally more patients with a CTO are prescribed long acting antipsychotics rather than oral second generation antipsychotics.' Long acting antipsychotics are administered by injection, usually to patients' buttocks.

I draw attention to this graph and Fleury's painting, as I intend to present Foucault's critique of Pinel and his English counterpart, Samuel Tuke, and then apply Foucaldian analysis to the CTO, its historical context and current status, bringing fresh perspectives to community psychiatry in restrictive domestic conditions.

‘Liberty' is a semantic enclosure for an array of freedoms that task philosophers. It is not within the scope of this essay to explore them all. In On Liberty, John Stewart Mill wrote “the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not sufficient warrant.” This definition is at odds with the Act, in which patients with a mental disorder are liable to be detained ‘in the interests of his own health or safety or with a view to the protection of other persons.'

Michel Foucault's 1961 work, Madness and Civilisation, presents his thesis, a ‘prehistory' of psychiatry, criticising what he termed ‘The Great Confinement', claiming that in the 18th and 19th Centuries, prisons, workhouses and madhouses were established to deal with the ‘social inconvenience' of the mad.

Foucault suggests this occurred due to the breakdown of dialogue between ‘reason and unreason'. Before the Classical Age, he asserts, mad people had greater liberty, including the right to roam. In his view, reason dictated that ‘madness' be negated as ‘unreason.' This climate, he claimed, helped the psychiatric profession to claim great power in the late 18th and early 19th Centuries.

Foucault does not accept Pinel's status as a saviour-liberator of the mad. He notes a steep rise in those incarcerated in the Bicêtre under Pinel's medical directorship and asserts many were detained there while awaiting hearings for the Revolutionary Tribunal. He says of Pinel, ‘when he liberated the mad, they blended with the whole population of Bicêtre…abolishing the criteria that might have permitted a division.'

Showalter recounts that in England in 1790, a young Quaker woman, Hannah Mills, suffering from melancholy, was sent to the York Asylum. Members of the Religious Society of Friends who attempted to visit her were denied access. Mills died at the York Asylum in suspicious circumstances.

William Tuke founded the York Retreat as a direct result of Hannah Mills' death. In the name of ‘enlightened progress', he proposed, ‘moral treatment: kindness, reason and humanity.' Note though, this description is from Daniel Hacker Tuke, no relation to the Tukes of York, but son-in-law of John Connolly, one of moral treatment's greatest advocates.

At Tuke's Retreat, fresh air was important. Patients went on daily walks and were given occupations, including gardening and sewing. Tea-parties were hosted by the female superintendent. In 1845, the passing of the Lunacy and County Asylums Act meant Asylums were brought closer under medical inspection. Lisa Appignanesi notes that for the first time, ‘the mad were housed at the State's expense.'

The late medical historian, Roy Porter, described Tuke's methods as re-humanising the mad, whose chains had deprived them of humanity,  ‘moral treatment aimed to revive the dormant humanity of the mad, by treating them as endowed with normal emotions, capable of excitation and training.'

Foucault believed there was untold political motivation: ‘Tuke's work was carried along by the readjustment of English social welfare legislation.' Foucault stressed sinister dimensions of moral therapy, in its potential for political abuses of psychiatry. Foucault did not consider it civilised to remove physical chains, only for them to be replaced by psychological manipulation, including being forced to work, when a person might not feel well enough to.

Andrew Scull, Professor of Sociology and Science Studies, takes issue with Foucault's romanticisation of the Middle Ages:

‘Notions of the mad roaming free in the countryside must be considered alongside facts that they were beaten, chained-up or left to die.'

Intercultural psychologist, David Ingleby, defends Foucault's critique of Pinel and Tuke, despite acknowledging its flaws, arguing, ‘“Madness and Civilisation” started his wider work of asserting the link between knowledge and power.'

Influenced by Tuke's work at the York Retreat, psychiatrist John Connolly became an advocate of moral treatment. When, in June 1893 he became head of the Hanwell Asylum, he was already renowned for prohibiting restraint. Connoly's son-in-law, psychiatrist Henry Maudsley, wrote Connolly had made non-restraint, ‘a world known success.'  Hanwell became the first large metropolitan asylum not to use mechanical restrains.  Appiganeisi's conclusion is that during the asylum era, ‘control of the mad moves inward.'

Contemporary Mental Health Law

A CTO is an option for patients detained under Section 3 of the Act and unrestricted criminal patients. This essay is concerned only with patients detained under Section 3 and not with unrestricted criminal patients. Section 3 is a detention order for assessment and treatment, lasting up to six months, at the end of which it can be renewed.

In order for an inpatient, detained under Section 3, to be discharged from hospital on a CTO, the following criteria must be met:

(a) the patient is suffering from mental disorder of a nature or degree which makes it appropriate for him to receive medical treatment;

(b) it is necessary for his health or safety or for the protection of other persons that he should receive such treatment;

(c) subject to his being liable to be recalled, such treatment can be provided without his continuing to be detained in a hospital;

(d) it is necessary that the responsible clinician should be able to exercise the power to recall the patient to hospital; and

(e) appropriate medical treatment is available for him.

Although the Act has undergone reforms, the core legal framework for detention of those with a ‘mental disorder' has been described by emeritus professor of psychiatry and society at Kings College London, George Szmuckler, as ‘fundamentally unchanged since the late 18th century.'

I agree with Szmukler. The 1774 Act for the Regulation of Private Madhouses was the first Act of Parliament preventing wrongful incarceration of people deemed sane. It laid down that ‘madhouse keepers could only accept a paying patient on the signed certificate of a medical man.' The current Act requires two such signatures.

In 1774, the onus was on proving sanity, if an individual committed was to regain their liberty:

‘For the individual named insane, it was sanity that became impossible to prove. The law might want to protect the individual's liberty…lost when he or she was declared insane.'

Under the current Act, patients liable to detention can appeal to a tribunal, in an attempt to regain their liberty. Psychiatrist Paul Gosney and colleagues examined the outcomes of patients appealing to the tribunal and found that tribunals discharged just, ‘4.1% of those who appealed'. Gosney's findings reflect ‘2015-16 national data, where 4.3% of appeals resulted in absolute discharge.'

Although CTOs are used internationally, in seventy-five jurisdictions, they were not introduced into the Mental Health Act in England and Wales until 2007. The answers to why CTOs were introduced in the 2007 Mental Health Act reforms, lie with John Connoly and his legacy, and with Margaret Thatcher.

To ease pressure on Hanwell, a new asylum was built under Connoly's steer, at Colney Hatch, on Friern Barnet Road:

‘Colney Hatch symbolized madness to the Victorians…to Dr Andrew Wynter, editor of the British Medical Journal, it presented, “the appearance of a town,” with wards and corridors so extensive that they were like “streets inhabited by distinct classes.”'

In the 1930s, Colney Hatch became known as Colney Mental Hospital and then, in 1959, as Friern Barnet Hospital. In 1981, as part of a policy of introducing free-market competition into public sector spending, the Thatcher government's ‘The Care in the Community' green paper recommended closure of long-stay mental hospitals.

In 1989, despite public protests, Friern Barnet Hospital was closed and sold to Comer Homes, a property developer who converted it into luxury housing. Comer Homes promotional material describes the former hospital,

‘Elegance and exquisite proportion of its heritage with the convenience and comfort expected in the modern age. Everything you would expect from a residence of this class is exactly where it should be – with sheer quality and meticulous attention to detail completing the picture.'

This is in keeping with marketing for other former asylums, over seventy of which were reviewed by psychiatrists Robert Chaplin and Steve Peters:

‘Former mental hospital buildings appear to be undergoing a metamorphosis from containing the most disadvantaged and least-valued members of society to providing homes with character at a high market price.'

Porter provided contemporaneous commentary of the effects of asylum closures, ‘Controversy rages, within and beyond the profession, about the success (or failure) of deinstitutionalisation and community care, leading to calls (from both the profession and the public) to bring back the traditional asylum as a safe haven for the insane.'

Scull describes the community care that took place after closure of the asylums in Britain a, ‘dismal and depressing experience.'  His economic detail is bleak: ‘£300 million was spent on the mentally ill receiving institutional treatment, a mere £6.5 million was spent on “care in the community.”'

Foucalt's criticisms of Tuke apply equally to Thatcher:

‘Tuke's enterprise fits neatly into the great legal reorganisation of assistance in the late eighteenth century, a series of measures that allowed the bourgeoisie state to invest, for it's own requirements, private welfare.'

The 1795 repeal of the Settlement Act meant responsibility of the mad moved from parish to private enterprise. Thatcher's closure of the mental hospitals, and ‘care in the community' policy parallels this. The failure of ‘care in the community' for those with schizophrenia, especially those for whom lack of insight, and therefore poor compliance with medication, is a cardinal feature of their condition, led to so-called ‘revolving door patients.'

These are patients who typically have long admissions as patients detained under the Act, followed by a cycle of non-compliance with psychotropic medication, relapse and readmission under the Act, usually quite quickly after discharge.  

CTOs were introduced to prevent so-called ‘revolving door patients'. Their increasing use in countries including Australia, New Zealand, Canada, Scotland, Sweden, Denmark, Norway and Switzerland has been described as the ‘preferred clinical and policy solution for addressing non-adherence with treatment on the part of patients with severe mental illness who, in the era of deinstitutionalization, are largely treated in the community.'

CTOs are a predictable consequence of deinstitutionalisation. If Thatcher's administration had not closed asylums and sold so many to property developers, we would arguably not need CTOs.

The language used to describe CTOs,  care in the ‘least restrictive environment' evokes Mortimer Granville's review of English asylums, influenced by Tuke's Retreat: ‘…housing, feeding, clothing, domestic regime. These very matters are the drugs and curative agents of the physician who undertakes to treat mental disease.'

Yet, Foucault described the Retreat as dreadful place: ‘Fear appears as the essential character of the asylum…Fear at the Retreat was a much deeper affair…a mediating link between reason and madness…Madness was no longer to strike fear in people's heart…it was itself to be afraid, helplessly, irrevocably afraid.'

In Madness and Civilisation, Foucault argued it is better to have someone chained, than pretend they are free, while keeping them under surveillance. Under a CTO, psychiatrists are arguably coercing patients to accept injectable antipsychotic treatment in their own homes. This exploits power imbalance, occurring against the omnipresent threat of ‘recall' and re-incarceration if a patient does not comply with medical prescriptions. Foucault said of the social power imbalance, ‘the chains that hindered the exercise of his free will were removed, but only so he could be stripped of that will itself, which was transferred to and alienated in the doctors' will.'

Psychiatric patient, Paul Chapman, from Brigg in Lincolnshire, shares these views. Chapman was made subject to a CTO shortly after his marriage in 2009. Chapman had twenty-five previous admissions to hospital with psychosis and described being stripped of his will under the conditions of the CTO:

‘Instead of them being concerned out of care and compassion for the problem I was having, there was reason for them to be responsible and have authority over me…I had to be seen by my specialist care worker once a fortnight and there was a lockdown on medication – there was no messing with my medication. It was the mental health equivalent of having a tag. If I became unwell again or stopped taking my medication – like re-offending – I would have gone straight back into hospital.'

Lambert and colleagues' work found that  ‘of 26% of patients given a CTO, 47% were prescribed a long acting antipsychotic medication and 53% were prescribed an oral antipsychotic only. The odds of having a CTO with an LAI are 3.2 times those of having a CTO with an oral anti- psychotic.'

Chapman alludes to coercion to ensure adherence to medication and refers to threats of recall to hospital. Patients like him may have valid reasons for refusing injectable antipsychotic treatment. The risperidone patient information leaflet, intended to be given to patients in the UK before injection, tells them they may experience: significant weight gain, diabetes, breast swelling, including in men, lactation in both sexes, heavy menstrual periods, fatigue severe enough to prevent driving or machinery operation,  involuntary movement, serious reduction in white blood cells (impeding the body's defence against infection), painful erections and can cause a condition called neuroleptic malignant syndrome, which can prove fatal.

Removing liberty is infantilising, reminiscent of Foucault's description of the Retreat: ‘Madness was childhood and at the Retreat, the alienated might be treated as minors.'

In Madness and Civilisation, Foucault describes ‘Stultifera Navis', the Ship of Fools. Using his analogy, compelling patients to treatment in their own homes smashes up their ship, replacing it with with a flotilla of lone yachtsmen. The collective identity of the asylum is lost, the mad isolated. Patient support groups and solidarity found on inpatient units, destroyed by Thatcherite ‘care in the community'.

Perhaps the most damning critique of CTOs comes from a National Institute of Health Research funded investigation. The Oxford Community Treatment Order Evaluation Trial (OCTET) is a randomised controlled trial of CTOs.  It compared two groups of patients with psychosis, aged between 18 and 65, the first group on CTOs with a group on Section 17 leave, to test the hypothesis that CTOs reduce admissions.

Section 17 leave is a prescribed period of time that a patient detained under the Act can spend away from detention on an inpatient ward and can include overnight leave. OCTET found at 12 months, despite significant differences in length of initial compulsory outpatient treatment (a median 183 days on CTOs but just eight days on Section 17) the numbers of patients readmitted did not differ between these two groups.

The conclusion was: 'Compulsory supervision does not reduce the rate of readmission of psychotic patients. We found no support in terms of any reduction in overall hospital admission to justify the significant curtailment of patients' personal liberty'.

When these results were published in the Lancet, they led to headlines, ‘Psychiatric ASBOs were an error,' equating CTOs as analogous to Antisocial Behaviour Orders. Shami Chakrabarti, former Director of Human Rights campaign group, Liberty, is critical of Anti Social Behaviour Orders as they dispense with the keystone of criminal law, the presumption of innocence, ‘From a punitive summary justice point of view, the beauty of the ASBO process is the ability to catch the offender for walking on the cracks in the pavement without ever having to prove to the proper criminal standard the original sin of criminal damage…'


Months after calling the 2017 snap election that proved damaging to her credibility, Prime Minister Theresa May addressed the Conservative Party conference, evoking Thatcherite reforms:

‘So we are building on our record of giving mental and physical health parity in law by investing more in mental health than ever before…the existing Mental Health legislation passed more three decades ago is leading to shortfalls in services and is open to misuse…I have asked Professor Sir Simon Wessely to undertake an independent review of the Mental Health Act, so that we can tackle the longstanding injustices of discrimination in our mental health system once and for all.'

Twenty years have passed since Hanauske-Abel examined papers from the Nuremberg Doctors' Trial and identified predisposing factors for psychiatric abuses in totalitarian regimes:

Failure to acknowledge abuses of psychiatry

Scientific progress

Economic pressures

Legal decisions

Political interference

We cannot be said to have a totalitarian regime; our parliamentary system has different parties. However, all factors identified by Hanauske-Abel are at play. Foucault might comment that The Secretary of State, through the Act, demands submission of individuals on Community Treatment Orders to requirements of the State.

Answers to my opening question, on what liberties patients enjoy, depends partly on whether legal criteria or Foucaldian analysis are applied. Legal criteria, by definition, are objective and cool, derived from the classical tradition. Foucauldian analysis is subjective and emotional, a romantic perspective. The arguments in this essay, can be seen as an example of the classical-romantic distinction first described by Goethe, who said, ‘Classisch ist das Gesunde, Romantisch das Kranke,' which I translate as, ‘the classic view is the healthy one, the romantic perspective is diseased.'

While I acknowledge the classical-romantic distinction, I don't subscribe to Goethe's attributions of health and disease to each category. Both views are necessary, both perspectives can be healthy. Patients liable to a CTO have some liberties in common with those of unchained asylum patients. These include liberty of thought and liberty of discussion. Patients on CTOs are able to discuss their own liberty at an appeal to the Mental Health Tribunal, although are unlikely to regain it. Given that CTO conditions include a defined address for patients, their liberty of action is less than that of those freed by Pinel and Tuke. Neither are they at liberty from adverse effects of depot medication. Given the numbers of patients on CTOs who are compelled to have injectable antipsychotic treatment, I conclude they have only have the surface appearance of liberty, compared with patients unchained by Pinel and Tuke, who were not significantly chemically confined.  

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