In my last blog I looked at S.2 and S.3 of the Mental Health Act. When an AMHP is considering use of S.3 of the Mental Health Act, which allows detention in hospital for treatment, two medical practitioners have to provide medical recommendations. These will be completed on Form 7 (joint medical recommendation) or Form 8 (single medical recommendation).
However, it is not enough merely for the doctors to say that the patient needs medical treatment in hospital. The wording of the medical recommendation forms states:
We are also of the opinion that, taking into account the nature and degree of the mental disorder from which the patient is suffering and all the other circumstances of the case, appropriate medical treatment is available to the patient at the following hospital (or one of the following hospitals)
The doctors then have to state the hospital or hospitals where this appropriate medical treatment is available.
The Code of Practice makes it clear that it is a requirement of the Act for the doctors to state this. The code goes on the say:
Preferably, they should know in advance of making the recommendation the name of the hospital to which the patient is to be admitted. If that is not possible, their recommendation may state that appropriate medical treatment will be available if the patient is admitted to one or more specific hospitals (or units within a hospital). (para14.76)
Chapter 23 of the Code goes into some detail relating to what “appropriate medical treatment” means.
It points out:
The appropriate medical treatment test must be applied to ensure that no one
is detained (or remains detained) for treatment... unless medical treatment for their mental disorder is both appropriate and available.(para23.8)
It goes on to state clearly that:
In order to be deemed appropriate, medical treatment must be for the purpose of alleviating or preventing a worsening of the patient’s mental disorder or its symptoms or manifestations. It must also be appropriate, having taken account of the nature and degree of the patient’s mental disorder and all their particular circumstances, including cultural, ethnic and religious or belief considerations. (para23.9)
The appropriate medical treatment test requires a judgement about whether an appropriate treatment or package of treatment for mental disorder is available for the individual in question. It is not consistent with the least ‘restrictive option and maximising independence’ and ‘purpose and effectiveness’ guiding principles’ to detain someone for treatment that is not actually available or may not become available until some future point in time.(para23.10)
Until the MHA 1983 was revised and amended by the MHA 2007, doctors only had to say that medical treatment was required. It was an important change for them to have to think about what sort of medical treatment was required for the specific patient, as well as where that treatment was actually able to be given.
It is clear that, in order to comply with the Human Rights Act, a detained patient should be able to be given the treatment they need, otherwise they could be incarcerated indefinitely, while receiving no treatment at all.
I recall many years ago attending a Mental Health Tribunal for a patient who had been diagnosed with a personality disorder. He had been detained under S.3 and placed in a hospital where the appropriate treatment that he was deemed to require was available. This consisted of psychological therapy.
The patient appealed on the grounds that, although the treatment was available, the patient did not wish to have that treatment, and since psychological therapy cannot be administered against the will of the patient, he ought to be discharged.
The Tribunal found this to be a compelling argument, and discharged him.
More recently, I found myself in an invidious position regarding the detention of a patient with treatment resistant depression.
The patient was in the community, but well known to services, and had been receiving home treatment without any alleviation of their symptoms. She had in the past been treated in hospital with ECT, which had been very effective, and she had made a full recovery. The doctors therefore concluded that the treatment she required was ECT, and named several hospitals in the Trust area where treatment was available.
A bed was found in one of these hospitals, so I completed my application for S.3 with the consent of the nearest relative, and arranged for her to be conveyed to the hospital. The NR was in full agreement that she required ECT, and accepted reluctantly that she could not stay at home for this.
This is where it all unraveled.
The section papers were accepted by the hospital, and she was duly admitted. However, as I was about to leave, I was informed by the ward manager that ECT was not actually available in the hospital. All patients requiring ECT had to go to one hospital in the area that administered ECT, but as all the available slots were taken by existing patients, she would have to go on a waiting list, and it could be several months before she would be able to have this treatment.
Para23.4 of the Code makes it clear that this situation was not consistent with the guiding principles of the Act. While I had acted in good faith (and it is not the role of the AMHP to question what treatment might be required) I had been placed in a position in which I had acted otherwise than in the best interests of the patient. Had I known that ECT was not available, I would not have made an application for detention, but since the section papers had been received, I had no power to withdraw my application.
What constitutes “appropriate medical treatment”?
Back in 2013, the Moors Murderer Ian Brady appealed to a Tribunal against his detention in Ashworth Special Hospital. I wrote in detail about it here.
A Tribunal is required to ensure that appropriate medical treatment is available to the patient in question. Among Brady’s arguments was the contention that appropriate medical treatment was not in fact available for him.
The Tribunal accepted that treatment would not include the use of medication, and that “Mr Brady is very unlikely to take part in any psychological treatment.” They therefore considered at length the definition of “treatment”.
The Tribunal concluded that the nursing care he was receiving, which included building a therapeutic relationship, and acting to minimise conflict within the hospital, did indeed constitute “treatment”, and that Brady was receiving some benefit from this, whether he thought so or not.