The Mental Health Act 1983 (as amended) provides for the detention of people with a mental disorder that warrants continued compulsory confinement (Winterwerp v The Netherlands (1979)).
To be compatible with the requirements of the European Convention on Human Rights (Council of Europe, 1950) the detention of the person must serve a dual function:
- A societal function by protecting the person or others from harm and
- A therapeutic function by ensuring the person receives an appropriate and individualised therapy or course of treatment. (Rooman v Belgium [2019])
The Mental Health Act 1983 does provide for the compulsory treatment of detained patients that is provided under the supervision of the responsible clinician (Mental Health Act 1983, section 63). Treatment is widely defined in the 1983 Act and goes beyond medical intervention to include:
‘Nursing, psychological intervention and specialist mental health habilitation, rehabilitation and care.’
Mental Health Act 1983, section 145(1)
The purpose of any treatment provided to a detained patient must be to:
‘Alleviate, or prevent a worsening of the disorder or one or more of its symptoms or manifestations’
Mental Health Act 1983, section 145(4)
Some treatments for mental disorder are subject to certificate requirements that confirm the person's consent or a second opinion doctor's approval or both (Mental Health Act 1983, sections 57, 58, 58A and Part 4A).
Appropriate treatment test
In Roonan v Belgium [2019] the European Court of Human Rights stressed that for the detention of a person for the treatment of their mental disorder to be compatible with the requirements of the right to liberty under Article 5(1) of the Convention, real therapeutic measures had to be available in the form of an individualised programme that took account of the specific details of the person's mental health.
This requirement is reflected in the Mental Health Act 1983 through the appropriate treatment test. In order to lawfully detain a person for treatment of their mental disorder or to subject that person to a community treatment order (CTO), appropriate treatment must be available for that person.
In the case of detention for treatment under section 3 of the Act the person must be:
- Suffering from a mental disorder of a nature or degree which makes it appropriate to receive medical treatment in a hospital; and
- It is necessary for the health or safety of the patient or for the protection of other persons that they should receive such treatment and it cannot be provided unless detained under this section; and
- Appropriate medical treatment is available. (Mental Health Act 1983, section 3(2))
A person cannot, therefore, be detained for treatment or made subject to a CTO unless treatment is actually available that is appropriate to the person's case, taking into account the nature and degree of the mental disorder and all other circumstances of the person's case (Mental Health Act 1983, section 3(4)).
In R v Mental Health Review Tribunal for South Thames Region Ex p. Smith [1998] the Court defined the degree of a mental disorder as the extent to which the symptoms and manifestations of the disorder were currently active, whereas the nature of the disorder focuses on the historical course of the disorder, its response to treatment and the person's past engagement with services. To be appropriate the treatment need not be the best or most comprehensive treatment, but it must be available in the hospital where the person in detained or in the community if the person is subject to a CTO (WH v Llanarth Court Hospital [2015]).
Available and appropriate
To meet the test the treatment for the person's mental disorder must be both available and appropriate.
In PM v Midlands Partnership NHSFT [2020] a woman appealed a decision not to discharge her from a CTO. She argued that she did not need medical treatment for her mental disorder and that continued treatment would not be available or appropriate as there was no certificate from a second opinion doctor authorising its continued use.
The Upper Tribunal held that while the absence of a second opinion certificate did not affect the appropriateness of the person's treatment it did affect the availability of that treatment. In practice, the treatment could not be available as it could not be lawfully administered without the certificate requirement being met. As appropriate treatment was no longer available, the responsible clinician removed the CTO without being instructed by the Upper Tribunal.
In SF v Avon and Wiltshire Mental health Partnership NHST [2023] a mother appealed against a tribunal's decision that appropriate medical treatment had been available to her daughter while she was detained on an acute psychiatric ward.
The daughter had autism spectrum disorder and complex post-traumatic stress disorder and had been detained for treatment. Her mother had applied for her discharge on the basis that appropriate medical treatment was not available at her current facility and so the statutory criteria for detention were not satisfied.
The hospital staff accepted that being on an acute psychiatric ward was not beneficial to her mental health as she needed psychosocial support, which was not available. However, they did not support discharge as they were worried that she might harm or even kill herself, or harm others if discharged.
The tribunal did not discharge the woman even though it accepted that the treatment was not tailored to her diagnosis, and that the essential psychosocial work was not available on the ward. However, it concluded that medical treatment for the purpose of preventing a worsening of the symptoms or manifestations of her disorder was available, appropriate and necessary.
The Upper Tribunal allowed the appeal as each of the first tribunal's findings as to the purpose of the interventions available related solely to concerns for the woman's physical health or for the physical safety of her and those attempting to care for her.
Restraint, whether physical, mechanical or chemical, could form part of a person's treatment plan, but it had to have the purpose of at least preventing a worsening of relevant symptoms or manifestations. In this case such an intervention was likely to exacerbate a neurodiverse patient's frustration and need for control and to increase their anxiety.
The Upper Tribunal further held that appropriate medical treatment could only mean treatment that was appropriate to the relevant patient's particular needs. It need not be the best or the most comprehensive treatment that could be provided. However, it could not be the case that treatment that was wholly inadequate for a patient's needs could satisfy that test. The tribunal had characterised the need for psychosocial intervention as essential. Essential meant that nothing else would do. If treatment that was essential was not available, it had to follow that the treatment that was available was not appropriate.
The Upper Tribunal found that the detention criteria were not met as treatment was not appropriate. Interventions that had the purpose merely of containing risk of physical harm could not amount to medical treatment. Medical treatment could not be appropriate if it was not tailored to the person's diagnosis, or where essential treatment was not available on the detaining ward.
Conclusion
The requirement for the availability of appropriate treatment as one of the criteria to be met in order to lawfully detain a person for the treatment of their mental disorder, or subject a person to a CTO, ensures a therapeutic purpose to the detention. People with a mental disorder cannot be detained or continue to be detained merely to minimise the risk to themselves or others and the appropriate treatment test provides an important safeguard against such detentions. Treatment tailored to the person's mental disorder must be available in the detaining hospital and it must be appropriate to the nature and degree of the mental disorder and the person's circumstances.
Although treatment need not be the best or most comprehensive, it must as a minimum alleviate or prevent a worsening of the person's mental disorder or its symptoms and manifestations. Where essential treatment is not available then other treatment cannot be said to be appropriate.
KEY POINTS
- The Mental Health Act 1983 (as amended) provides for the detention of people with a mental disorder
- Detention must have a therapeutic function by ensuring a person receives an appropriate and individualised course of treatment
- This is set out in the 1983 Act by the appropriate treatment requirement
- Treatment is not appropriate if it only seeks to contain a person's risky behaviours towards themselves or others
- Appropriate treatment would not be available if the certificate requirement for that treatment has not been met