Alex RKThe issue facing the Upper Tribunal in SF v Avon and Wiltshire Mental Health Partnership [2023] UKUT 205 (AAC) was crisply delineated by UTJ Church thus:
- This appeal is about RB, a woman with a primary diagnosis of autism spectrum disorder and a secondary diagnosis of complex post-traumatic stress disorder. RB was at the relevant time detained in hospital for treatment under section 3 of the Mental Health Act 1983 (the “MHA”).
- An application was made to the First-tier Tribunal to review her section and it was the tribunal’s job to hear evidence and argument and to decide whether the criteria set out in section 72(1)(b) MHA were satisfied. If they were not, it had to discharge her section.
- The circumstances of this case are very distressing. By all accounts, RB was very unwell and unhappy. The witnesses from the clinical team accepted that RB needed psychosocial support, but this was not available in her current setting on an acute psychiatric ward at Fountain Way. They accepted that being on such a ward was “not beneficial” to RB’s mental health. However, the witnesses from the clinical team didn’t support RB’s discharge because they held justifiable worries that, were her section to be discharged, RB might harm (or even kill) herself, or harm others.
The First Tier Tribunal had identified that:
16. All the professional witnesses who gave evidence agreed that an acute psychiatric ward was not beneficial to [RB’s] mental health. This, however, was not the test we are required to apply. We fully accepted that the treatment provided to [RB] was not tailored to her diagnosis, and the essential psychosocial work was not available on this acute ward. We did, however, conclude that medical treatment for the purpose of preventing a worsening of the symptoms or manifestations of her disorder, is available, appropriate and necessary. In reaching this decision we reminded ourselves of the guidance provided in DL-H v Partnerships in Care & SoSJ [2014] AACR 16 and DL-H v Devon Partnership NHS Trust v SoSJ [sic] [2010] UKUT 102 (AAC). We decided that [RB’s] refusal to engage with most of the professionals and the limited therapies available on this ward did not negate the availability nor appropriateness of that treatment. […] The treatment available today was OT and art therapy. Intensive 1:1 observation sought to protect [RB] against significant acts of deliberate self-harm which might otherwise prove fatal. [RB’s] physical health was closely monitored because she restricted her diet. As recently as the last week she has been referred to the general ward following concerns regarding her deteriorating physical health. When appropriate, sedative medication had been administered with [sic] in the last week or so to protect [RB’s] own safety but also protect nursing staff from her outbursts. […] In relation to Ms Wall’s closing submissions, we decided that the current treatment did offer a therapeutic benefit to [RB] in the short term. The outcome was that [RB] had been prevented from harming herself (perhaps even fatally) and others around her were kept safe. [emphasis added]
UTJ Church noted that the underlined finding was a “striking” one (paragraph 26). He further noted that:
31. Each of the First-tier Tribunal’s findings as to the purpose of the interventions provided relates solely to concerns for RB’s physical health or for her physical safety and the physical safety of those attempting to care for her. The First-tier Tribunal acknowledged this in paragraph [16] of its decision with reasons.
33. The First-tier Tribunal didn’t need to be satisfied that the treatment available would “serve to treat the overarching autism long-term”, but it did need to be satisfied that the treatment available at least had the purpose to “alleviate, or prevent a worsening of, the disorder or one or more of its symptoms or manifestations” (section 145(4) MHA).
Critically, in relation to restraint, UTJ Church accepted that:
36. Restraint, whether physical, mechanical or chemical, can form a legitimate part of a patient’s treatment plan, but that doesn’t necessarily mean that it amounts to “medical treatment” in the MHA sense. To do so it must have the purpose of (at a minimum) preventing a worsening of relevant symptom or manifestation (in this case RB’s urge to harm herself or others). In the case of a neurodiverse patient such as RB such an outcome does not seem likely. Indeed, such an intervention is likely to exacerbate a neurodiverse patient’s frustration and need for control and to increase their anxiety.
This led him to make the following important observations:
38. If the requirement for appropriate medical treatment could be satisfied simply by confining someone with mental disorder in a way that prevents them from engaging in risky behaviour arising from a symptom or manifestation of their mental disorder, this would mean that all manner of interventions would amount to treatment in and of themselves, such as confinement in a soft room, sedation, and mechanical restraint, and nothing else would be required.
39. If such ‘treatment’ satisfied section 72(1)(iia) then there is no reason why it shouldn’t continue to do so for as long as the symptoms or manifestations persist. If such ‘treatment’ stands no real prospect of achieving any therapeutic purpose beyond preventing physical harm, then this could result in indefinite detention (subject to periodic review under sections 66, 68(2) and 68(6) MHA)).
UTJ Church was satisfied Parliament could not have intended that the kind of “stasis” described should be permitted (paragraph 41):
If it was intended that detention for the sole purpose of ensuring physical safety were to be permitted then there was no need for section 72(1) MHA to make any reference to medical treatment at all. Rather, it could have said that the tribunal shall direct the discharge of a patient liable to be detained otherwise than under section 2 if it is not satisfied:
a. that he is then suffering from mental disorder or from mental disorder of a nature or degree which makes it appropriate for him to be liable to be detained, and
b. that it is necessary for the health or safety of the patient or for the protection of other persons that he should be detained, and
c. (in the case of an application by virtue of paragraph (g) of section 66(1) MHA, that the patient, if released, would be likely to act in a manner dangerous to other persons or to himself.
42. The fact that section 3 is headed “Admission for treatment”, and the fact that the purpose of treatment runs through all but the last of the criteria in section 72(1), indicates that to interpret the provisions as permitting detention where the only treatment available is provided for the purpose of maintaining physical safety, without treating the mental disorder itself, would be to frustrate parliament’s statutory purpose.
Nor did UTJ Church consider that OT, art therapy and discharge planning satisfied the necessary s.72 criteria. In relation to the latter, and in an observation with wider resonance, he noted “[w]hile the First-tier Tribunal reached the conclusion that discharge planning was “part of the treatment” it is by no means clear what was actually being done by way of preparing for RB’s discharge. If discharge planning had reached stasis then it is difficult to see how it can be said to have been ‘available’.”
Drawing the threads together, therefore, UTJ Church identified that:
50. ‘Appropriate medical treatment’ can only mean treatment that is appropriate to the relevant patient’s particular needs. While it is accepted that to satisfy the requirement in section 72(1)(b)(iia) the treatment available need not be the best or the most comprehensive treatment that could be provided, but it cannot be the case that treatment that is wholly inadequate for a patient’s needs can satisfy that test.
51. This case is unusual in that the First-tier Tribunal reached a clear finding of what treatment RB required (psychosocial support) and an equally clear finding that such treatment was not available at the hospital in which she was detained. Importantly, the First-tier Tribunal characterised that treatment as ‘essential’. ‘Essential’ does not mean ‘ideal’, or ‘desirable’ or ‘the most appropriate’. It means that nothing else will do. If treatment that was ‘essential’ was not available, it must follow that the treatment that was available was not, by itself, ‘appropriate’.
UTJ Church made clear that he considered that his interpretation of “appropriate medical treatment” was compatible with the decision of in Rooman v Belgium [2019] ECHR 105, in which the Grand Chamber of the European Court of Human Rights had recalibrated the approach to be taken in the context of mental health detention, and that, in consequence,
54. […] the First-Tier Tribunal erred in law in deciding that ‘appropriate medical treatment’ was available to RB at Fountain Way because its decision was based on two misunderstandings:
1. at interventions which had the purpose merely of containing risk of physical harm, were capable of amounting to ‘medical treatment’; and
2. that medical treatment may be ‘appropriate’ even where it is “not tailored to [the patient’s] diagnosis”, and where treatment that is “essential” is not available.
UTJ Church did not rule on the second ground of appeal, in relation to the FTT’s refusal to adjourn the application, although he noted that “[g]iven its obvious discomfort about the unsatisfactory nature of the situation, it is perhaps surprising that it didn’t take the opportunity to agree to the adjournment application to explore whether the risks to RB’s safety could be managed more appropriately in the community with appropriate aftercare. Had it not reached the firm findings that it did (about what was ‘essential’ treatment and what was available in hospital) such a decision would have been open to it. Indeed, it would have been entitled to adjourn of its own motion to seek such information” (paragraph 56).
Comment
Although based on specific facts, the observations of UTJ Church about appropriate treatment (informed as they were by the approach taken by the ECtHR in Rooman) are both of wider application and considerable significance, in particular – but not exclusively – in the context of neurodiverse patients. SF’s circumstances bear strong resemblances to many who are ‘stuck’ in hospital, and the decision should (at a minimum) make it much more difficult to assert that they meet the criteria for detention under the MHA 1983. Difficult questions may arise at that point as to whether (if they lack capacity to consent to their residence care arrangements) they could be deprived of their liberty under the DoLS framework, or whether the Rooman tightening of the approach would also make it equally inappropriate to rely upon DoLS in such circumstances, but the decision of UTJ Church is to be welcomed for its very clear and crisp delineation of the fact that many conventional assumptions about the breadth of the definition of mental disorder are simply wrong.
The irony of this decision being handed down at the point when The Times reports that the process to amend the Mental Health Act may be about to come to a grinding halt will not be lost on many.
