Detention and treatmentcontinued:s145
Introduction
19.8Section 2 makes provision for detention for the purposes of assessment. The central statutory provision is section 3 of the MHA 1983, which makes provision for detention for hospital treatment as follows:
Admission for treatment
3(1) A patient may be admitted to a hospital and detained there for the period allowed by the following provisions of this Act in pursuance of an application (in this Act referred to as ‘an application for admission for treatment’) made in accordance with this section.
(2)An application for admission for treatment may be made in respect of a patient on the grounds that–
(a)he is suffering from mental disorder of a nature or degree which makes it appropriate for him to receive medical treatment in a hospital; and
(b)[…]
(c)it is necessary for the health or safety of the patient or for the protection of other persons that he should receive such treatment and it cannot be provided unless he is detained under this section ; and
(d)appropriate medical treatment is available for him.
(3)An application for admission for treatment shall be founded on the written recommendations in the prescribed form of two registered medical practitioners, including in each case a statement that in the opinion of the practitioner the conditions set out in subsection (2) above are complied with; and each such recommendation shall include–
(a)such particulars as may be prescribed of the grounds for that opinion so far as it relates to the conditions set out in paragraphs (a) and (d) of that subsection; and
(b)a statement of the reasons for that opinion so far as it relates to the conditions set out in paragraph (c) of that subsection, specifying whether other methods of dealing with the patient are available and, if so, why they are not appropriate.
(4)In this Act, references to appropriate medical treatment, in relation to a person suffering from mental disorder, are references to medical treatment which is appropriate in his case, taking into account the nature and degree of the mental disorder and all other circumstances of his case.
19.9Under section 3:
•the expression ‘nature or degree’ is disjunctive but it can be difficult to disentangle the two concepts;
1R v Mental Health Review Tribunal for the Thames Region ex p Smith (1999) 47 BMLR 104. •‘nature’ generally refers to the category of mental disorder which the patient suffers, whilst ‘degree’ generally refers to the current intensity of the symptoms;
2R v Mental Health Review Tribunal for the Thames Region ex p Smith (1999) 47 BMLR 104. •thus, where a patient is taking medication and is asymptomatic, their mental disorder will not be of a ‘
degree’ that warrants hospital treatment, but it could be of a ‘
nature’ that requires hospital treatment and detention for that purpose if, without hospital treatment and detention the patient is likely to cease taking medication, deteriorate and become a risk to himself or others;
3R v Mental Health Review Tribunal for the Thames Region ex p Smith (1999) 47 BMLR 104; R (H) v Mental Health Review Tribunal, North and East London Region [2001] EWCA Civ 415, [2001] MHLR 48. •the word ‘
necessary’ is, however, a strong one;
4R v Mental Health Review Tribunal for the Thames Region ex p Smith (1999) 47 BMLR 104; Reid v Secretary of State for Scotland [1999] 2 AC 512. •all the other relevant circumstances need to be considered, such as the patient’s age and gender, where they live, where their family and social contacts are, their cultural background, the medical and other services available to them in the community and any offending history;
•the need must be for treatment ‘
in a hospital’, which requires that there is a need for at least some initial ‘
in-patient’ treatment before a leave of absence is granted under section 17 of the Mental Health Act 1983, for example, on the basis of ongoing treatment ‘at’ hospital on an out-patient basis
5R v Barking, Havering and Brentwood Community Health NHS Trust ex p B [1999] 1 FLR 106, (1999) 2 CCLR 5; R (DR) v Mersey Care NHS Trust [2002] EWHC 1810 (Admin), [2002] MHLR 386.;
•section 3(2)(d) requires only that ‘appropriate’ medical treatment is available ie the treatment need not be such as to be likely to alleviate or prevent a deterioration in the patient’s condition;
•it is hard to imagine a case where ‘
appropriate’ medical treatment is not available, including for patients with a personality disorder: as noted above, ‘‘
medical treatment’ includes nursing, psychological intervention and specialist mental health habilitation, rehabilitation and care’ and ‘Any reference in this Act to medical treatment, in relation to mental disorder, shall be construed as a reference
to medical treatment the purpose of which is to alleviate, or prevent a worsening of, the disorder or one or more of its symptoms or manifestations’ (section 145).
6DL-H v Devon Partnerships NHS Trust [2010] UKHT 102 (AAC), [2010] MHLR 162. 19.10Applications for admission for treatment (as well as for assessment or for a guardianship application) must be made in accordance with the provisions of sections 11–14 of the MHA 1983:
•applications are made to the managers of the hospital where admission is sought and a place is available (section 11(2)) and the managers scrutinise whether the application is lawful;
•applications may be made by a ‘nearest relative’ (see para
19.25 below) or an approved mental health professional (‘AMHP’), providing that the applicant has personally seen the patient within the 14 days before the date of the application (section 11(1) and (5));
•before or within a reasonable time after applying for the admission of a patient for assessment the AMHP must take such steps as are practical to inform the person, if any, appearing to be the nearest relative of the application and of the nearest relative’s power to order the patient’s discharge (section 11(3));
•an AMHP must not apply for the admission of a patient for treatment if the nearest relative objects or (unless it is not reasonably practicable or would involve unreasonable delay) the AMHP has not undertaken proper consultation (ideally directly) with the person, if any, appearing to be the nearest relative of the patient (section 11(4));
•the consultation can and should involve the AMHP disclosing confidential medical information to the nearest relative, sufficient to enable the nearest relative properly to consider the exercise of their powers;
7R (S) v Plymouth CC [2002] EWCA Civ 388, (2002) 5 CCLR 251; GD v Edgware Community Hospital and Barnet LBC [2008] EWHC 3572 (Admin), [2008] MHLR 282. •there are medical recommendations signed by two registered medical practitioners, or a joint recommendation signed by two registered medical practitioners (section 12);
•providing that the registered medical practitioners have personally examined with the patient, either at the same time or within five days of each other (section 12 (1)); and
•providing that at least one of the registered medical practitioners has been approved for the purposes of section 12 of the MHA 1983 by the Secretary of State and, if that practitioner does not have previous experience of the patient, the other recommendation is made, if practicable, by a practitioner who has (section 12(2)); and
•providing neither the AMHP or the registered medical practitioners have a ‘conflict of interest’, as defined in section 12A and The Mental Health (Conflicts of Interest)(England) Regulations 2008, or the Welsh equivalent (section 12(3)): and
•prescribed forms are used, as required by the Mental Health (Hospital, Guardianship and Treatment (England) Regulations 2008
8SI No 1184.and regulation 33 of the Mental Health (Hospital, Guardianship, Community Treatment and Consent to Treatment) (Wales) Regulations 2008.
9SI No 2439. A period of detention will be unlawful if, inter alia:
•the AMHP or doctors have not personally seen the patient;
10R v Managers of South Western Hospital ex p M [1994] 1 All ER 161; R (M) v The Managers, Queen Mary’s Hospital [2008] EWCA Civ 1112, [2008] MHLR 306. •the AMHP has failed to take reasonably practicable steps properly to consult with the nearest relative;
11GD v Edgware Community Hospital and Barnet LBC [2008] EWHC 3572 (Admin), [2008] MHLR 282. •the AMHP has made the application despite objection by the nearest relative.
12TTM v Hackney LBC [2011] EWCA Civ 4. It is implicit in the statutory scheme that a further application may not be made after a tribunal has directed that the patient be discharged, unless the AMHP has formed the reasonable and bona fide opinion that he has information, not known by the tribunal, that puts a significantly different complexion on the case (there is no need for there to have been a change of circumstances).
13R v East London and the City Mental Health Trust ex p von Brandenburg [2003] UKHL 58, [2004] 2 AC 280.If professionals consider that a tribunal decision to direct discharge is wrong, their remedy was to apply for a judicial review and a stay of the tribunal’s decision but now would be to appeal to the Upper Tribunal and apply for a stay.
14R (H) v Ashworth Hospital Authority [2002] EWCA Civ 923, [2003] 1 WLR 127.