Scope of Section 63 Flashcards
Does restraint fall within the definition of medical treatment?
Yes, all types ranging from verbal to physical.
What is the authority for restraint in medical treatment?
Code of Practice (2015) - 26.69
What does CoP 26.69 state?
“Physical restraint refers to any direct physical contact where the intention to prevent, restrict, or subdue movement of the body of another person”.
What does CoP 26.70 state?
PRONE restraint is (soft-law) prohibited - unless cogent reasons - there must be no planned or intentional restraint in a prone position on any surface, not just the floor.
Where is ‘seclusion’ as medical treatment governed?
CoP - 26.103
What is seclusion referred to by 26.103?
‘supervised confinement and isolation of a patient, away from other P’s, in an area from which the P is prevented from leaving, where it is of IMMEDIATE NECESSITY for the purpose of the containment of severe behavioural disturbance which is likely to cause to harm others’.
What case challenged the legality of the use of seclusion due to lack of safeguards at Ashworth?
Munjaz v Mersey Care NHS Trust
Why is Munjaz (2005) important?
As the HoL said
(1) seclusion does amount to medical treatment
(2) the power to seclude is implied by the power to detain
(3) legal status of CoP - practitioners can depart from the Code, if there is cogent reason for doing so and should be documented.
What did Hague and Weldon (1992) find?
‘No such as a thing as a prison within a prison’
Following from Hague and Weldon - what did Steyn rule in Munjaz?
As Article 5 protects the right to liberty - once deprived of liberty you still have residual liberty. Steyn said that it was wrong to assume that residual liberty is not protected and that Hague and Weldon decision was a ‘set-back for a modern and just mental health law’.
What did the ECtHR rule in relation to seclusion?
Excessive seclusion could amount to a deprivation of residual liberty.
What is worrying about seclusion and restraint?
Any deprivation of liberty, residual or otherwise, requires a legal procedure, and there is no legal procedure in the MHA for seclusion or restraint.
How did the government respond to Munjaz?
Decided to build in a procedure in the MHA 2015 Code of Practice, and believe it is sufficient to meet the criticism by the ECtHR.
What does medical treatment for mental disorder mean?
It is an issue of causation regarded by judges.
What was the ruling of Re C?
His gangrenous leg was ‘wholly dissociated’ from SZ, therefore fell outside of Part 4. It was physical treatment which he had the capacity to refuse.
What was the ruling in Re JT in relation to defining issue of causation?
That medical treatment for mental disorder required patients co-operation.
What was the ruling in Re KB in relation to defining issue of causation?
The patient suffers from a mental illness and the treatment she is refusing is related to mental illness, NOT TO SOME UNCONNECTED PHYSICAL CONDITION.
What was the ruling in B v Croydon in relation to defining issue of causation?
Medical treatment for mental disorder is “ancillary to the core treatment”.
What was the ruling R v Collins & Ashworth, ex parte Brady? In relation to defining an of causation?
The Court said that Brady’s hunger strike was a manifestation/symptom of his personality disorder and therefore the nasogastro tube was treating his MHD under Part 4. He was forcibly fed via section 63, which does not require consent or SOAD because it is treatment for his mental disorder.
What was the ruling in Tameside and Glossop Acute Services Trust v CH?
It presented how flexible the term is for medical treatment for mental disorder. Without a CS, it would deteriorate her SZ. Therefore it was ruled that CS was a medical treatment for the disorder of SZ.
What did the Court say in Tamside and Glossop v CH?
in terms of the test, CS was not ‘entirely unconnected’ to SZ and that is how they brought it under section 63.
What was the ruling in St George’s NHS Trust v S?
“Any condition which is integral to the mental disorder”.
How was “medical treatment for mental disorder” summarised in GJ v Foundation Trust?
(1) A range of acts ancillary to the core treatment of the MD.
(2) Treatment for the symptoms of a MD.
(3) Treatment for the physical consequences of a MD.
What is the law trying to do in relation to health?
Attempting to separate mental health from physical health.
