The purpose of the Mental Health Act 1983 is to make provision for the detention and compulsory treatment of a person's mental disorder where they are objecting to that admission or treatment (Tameside & Glossop Acute Services NHS Trust v CH [1996]).
Compulsory treatment of a detained patient under Part 4 of the Act has long adopted a ‘treatment as a whole’ approach that allows for the physical manifestations of a mental disorder to be treated under the compulsory provisions. In B v Croydon Health Authority [1995], the court held that tube-feeding a detained patient with a personality disorder who self-harmed by starving was treatment for a mental disorder that could be administered lawfully without the patient's consent.
The treatment as a whole approach does not include treatment for a physical condition unrelated to a person's mental disorder. In St George's Healthcare NHS Trust v S [1998] the Court of Appeal declared that detaining a woman under the 1983 Act in order to dispense with her refusal to consent to treatment for pre-eclampsia was unlawful. A person detained under the Act retained the right to withhold consent to medical procedures unrelated to their mental disorder.
Treatment under the Mental Capacity Act 2005
In AM v South London & Maudsley NHS Foundation Trust and The Secretary of State for Health [2013], Justice Charles held that the Mental Capacity Act 2005 could be used to treat a physical condition affecting a person detained under the Mental Health Act 1983, where that person lacked capacity to consent to the treatment.
Section 4 of the Mental Capacity Act 2005 requires that the treatment must be in the person's best interests. Nurses providing the treatment must apply the principles under section 1 (5) and (6), requiring them to act in the person's best interests and in a way that is the least restrictive of the person's rights and freedoms (UF v X County Council [2014]).
Residual liberty
Article 5 of the European Convention on Human Rights (Council of Europe 1950) guarantees that:
- Everyone has the right to liberty and security
- A person can only be deprived of their liberty in defined cases and in accordance with a procedure set out in law.
Article 5(1)(e) of the European Convention allows for the lawful detention of persons with a mental disorder if it is in accordance with the provisions of the Mental Health Act 1983.
In Ashingdane v United Kingdom [1985], the European Court of Human Rights held that, although lawfully detained, mental health patients retained a measure of residual liberty and a detained person's Article 5 right can be breached by a further, unauthorised deprivation of liberty.
An NHS Trust v Dr A [2013] concerned the case of an Iranian doctor who was on hunger strike in protest at the refusal of asylum status and the removal of his passport by the UK Border Agency. He was detained under the Mental Health Act 1983, diagnosed with a delusional disorder and judged to lack capacity. To keep him alive it would be necessary to feed him via a nasogastric tube against his will. The court accepted that the artificial nutrition and hydration was not treatment for his mental disorder and could not be administered under the Mental Health Act 1983. The court held that nasogastric feeding was in Dr A's best interests, and used its inherent jurisdiction to authorise any deprivation of liberty that might arise from forcible feeding, even though the patient was detained under the Mental Health Act 1983.
Is authorisation for a further deprivation of liberty necessary?
In An NHS Trust v Dr A [2013], Justice Baker held that the meaning of treatment under the Mental Health Act 1983 should not be construed beyond what was properly aimed at alleviating the mental disorder or its symptoms and manifestations. Justice Baker further held that there was a need to identify a clear dividing line between what is and is not treatment for a mental disorder and, where this is not possible, to seek court approval for the treatment.
The facts of the Dr A case related to the forcible administration of artificial nutrition and hydration to save a life, where the court's approval is necessary in the face of objection by the patient or other person concerned with the case (An NHS Trust v Y [2018]).
Is court approval necessary for less critical forms of treatment?
The notion of residual liberty and the need for further authorisation of restrictions that amount to a deprivation of liberty was recently considered by the High Court in Norfolk & Suffolk NHSFT v HJ [2023]. In that case, the court was required to determine the lawfulness of restraining a detained mental health patient in order to treat her for chronic constipation.
The woman's behaviour was challenging, and included verbally and physically attacking staff and patients. She needed medication and enemas every 2–3 days, but was resistant to the treatment. The process required five people to restrain her for the few minutes needed to administer an enema. The constipation was a physical condition not caused by the patient's mental disorders, so treatment fell outside the scope of that not requiring consent under the 1983 Act. It was agreed that she lacked capacity to consent to medical treatment.
The Trust's view had been that the enema treatment was depriving the woman of her liberty and required a court order to authorise it in accordance with the decision in An NHS Trust v Dr A [2013]
In the woman's case, the High Court held that it was lawful to administer the enemas and that this would only be in exceptional circumstances, where a person already deprived of their liberty would be further deprived of their residual liberty. This is because Article 5 of the European Convention is concerned with preventing arbitrary detention rather than with the suitability of treatment (Ashingdane v United Kingdom [1985]).
For there to be a deprivation of residual liberty, an unacceptable element of arbitrariness in the actions taken would have to arise. The proper and lawful exercise of clinical judgment by nurses in administering treatment to a detained person would not amount to a deprivation of residual liberty because there was no element of arbitrariness in the nurses' actions.
If a person lacking capacity was restrained to enable treatment to be administered for a physical health condition, the tests for the lawfulness of that restraint were set out in section 6 of the 2005 Act. For restraint to be lawful, the nurse:
- Must reasonably believe that restraint is necessary to prevent harm to the person
- The restraint must be proportionate to the likelihood of harm and the seriousness of that harm.
If those conditions are satisfied, there would be no breach of the patient's rights.
Lawfulness of treatment and the duty of care
In the Norfolk & Suffolk NHSFT v HJ [2023] case the lawfulness of forcible treatment was underpinned by the Trust's duty to discharge a duty of care to the woman.
While she was in hospital, nurses were legally obliged to provide her with appropriate treatment to meet her physical and psychological needs. The Trust discharged that duty by administering treatment, including enemas, and there was nothing arbitrary about this or the restraint. On the contrary, there was a carefully thought-out plan designed to meet the patient's needs in a lawful and proportionate manner. Acts taken by nurses to discharge that duty were not capable of amounting to a further deprivation of the woman's residual liberty.
Conclusion
Although the residual liberty of detained mental health patients is recognised by the European Court of Human Rights, a breach of that residual liberty will only arise in exceptional cases where the actions of nurses would be considered arbitrary or where the court requires that objections to certain treatment, such as artificial nutrition and hydration, must come before the court for a decision.
In most cases, restraining a detained mental health patient who lacks capacity, in order to administer treatment for a physical condition, will not give rise to a further deprivation of residual liberty, because the actions of nurses are founded on clinical judgement and a carefully considered treatment plan under the provisions of the Mental Capacity Act 2005 and the duty of care owed to the patient.
A patient cannot be further deprived of their liberty as a result of actions that nurses are required to take in order to discharge their duty under the Mental Capacity Act 2005 and a duty of care to the patient.
KEY POINTS
- Although lawfully detained, mental health patients retain a measure of residual liberty and a detained person's Article 5 right can be breached by a further, unauthorised deprivation of liberty
- Only in exceptional circumstances, where a person is already deprived of their liberty, would they be further deprived of their residual liberty
- The proper and lawful exercise of clinical judgement by nurses in administering treatment to a detained person would not amount to a deprivation of their residual liberty
- Actions taken by nurses to discharge their duty of care to a patient do not amount to a further deprivation of residual liberty