Scope of Section 63

Question 1

Does restraint fall within the definition of medical treatment?

Answer 1

Yes, all types ranging from verbal to physical.

Question 2

What is the authority for restraint in medical treatment?

Answer 2

Code of Practice (2015) - 26.69

Question 3

What does CoP 26.69 state?

Answer 3

“Physical restraint refers to any direct physical contact where the intention to prevent, restrict, or subdue movement of the body of another person”.

Question 4

What does CoP 26.70 state?

Answer 4

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.

Question 5

Where is ‘seclusion’ as medical treatment governed?

Answer 5

CoP - 26.103

Question 6

What is seclusion referred to by 26.103?

Answer 6

‘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’.

Question 7

What case challenged the legality of the use of seclusion due to lack of safeguards at Ashworth?

Answer 7

Munjaz v Mersey Care NHS Trust

Question 8

Why is Munjaz (2005) important?

Answer 8

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.

Question 9

What did Hague and Weldon (1992) find?

Answer 9

‘No such as a thing as a prison within a prison’

Question 10

Following from Hague and Weldon - what did Steyn rule in Munjaz?

Answer 10

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’.

Question 11

What did the ECtHR rule in relation to seclusion?

Answer 11

Excessive seclusion could amount to a deprivation of residual liberty.

Question 12

What is worrying about seclusion and restraint?

Answer 12

Any deprivation of liberty, residual or otherwise, requires a legal procedure, and there is no legal procedure in the MHA for seclusion or restraint.

Question 13

How did the government respond to Munjaz?

Answer 13

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.

Question 14

What does medical treatment for mental disorder mean?

Answer 14

It is an issue of causation regarded by judges.

Question 15

What was the ruling of Re C?

Answer 15

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.

Question 16

What was the ruling in Re JT in relation to defining issue of causation?

Answer 16

That medical treatment for mental disorder required patients co-operation.

Question 17

What was the ruling in Re KB in relation to defining issue of causation?

Answer 17

The patient suffers from a mental illness and the treatment she is refusing is related to mental illness, NOT TO SOME UNCONNECTED PHYSICAL CONDITION.

Question 18

What was the ruling in B v Croydon in relation to defining issue of causation?

Answer 18

Medical treatment for mental disorder is “ancillary to the core treatment”.

Question 19

What was the ruling R v Collins & Ashworth, ex parte Brady? In relation to defining an of causation?

Answer 19

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.

Question 20

What was the ruling in Tameside and Glossop Acute Services Trust v CH?

Answer 20

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.

Question 21

What did the Court say in Tamside and Glossop v CH?

Answer 21

in terms of the test, CS was not ‘entirely unconnected’ to SZ and that is how they brought it under section 63.

Question 22

What was the ruling in St George’s NHS Trust v S?

Answer 22

“Any condition which is integral to the mental disorder”.

Question 23

How was “medical treatment for mental disorder” summarised in GJ v Foundation Trust?

Answer 23

(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.

Question 24

What is the law trying to do in relation to health?

Answer 24

Attempting to separate mental health from physical health.

Question 25

What does the CoP in 16.6 MHA state in relation to medical treatment?

Answer 25

“Medical treatment includes treatment of physical health problems only to the extent that such treatment is part of, or ancillary to, treatment for mental disorder.”

Question 26

What example of medical treatment for mental disorder does CoP 16.6 give?

Answer 26

Treating wounds that are self inflicted as a result of MD would fall within Part 4.

Question 27

Explain the casual link between treatment and disorder.

Answer 27

If there is no proposed treatment for the core mental disorder, it will not be lawful to detain a patient to treat the physical consequences of his disorder. (ST GEORGE’S v S - misused the MHA to save the baby - no proposed treatment for her depression).

Question 28

What did GJ emphasise in casual links?

Answer 28

That treatment for physical disorder will not be treatment for MD where the physical disorder is unconnected with the MD, unless such treatment is likely to directly affect the MD.

Question 29

What was the reaction of the MHA CoP after GJ?

Answer 29

ESSENTIALLY STRESSES CASUAL LINK, TREATMENT MUST BE PART OF OR ANCILLARY TO…

24. 4 - the act defines medical treatment for MD as medical treatment which is for the purpose of alleviating or preventing a worsening of a MD or one or more of its symptoms or manifestations
25. 5 - this includes treatment of physical health problems only to the extent that such treatment is part of, or ancillary to, treatment for mental disorder.

Question 30

What is the code trying to do?

Answer 30

Limit the breadth of section 63.

Question 31

Why is the code trying to limit the breadth of s.63?

Answer 31

Because in cases like Thamside; St George’s - s.63 has been so broadly interpreted.

Question 32

What is the hindrance to CoP’s attempt of limiting breadth of s.63?

Answer 32

Munjaz highlighted that the Code can be departed from if there is ‘cogent reasons for doing so’.

Question 33

What did Grubb comment on s.63?

Answer 33

The worry of s.63 being abused - ‘it was not parliaments intention to licence the treatment of physical conditions which are not a cause or symptom of the mental disorder’.

Question 34

What can be seen when comparing Lewisham Case with s.63?

Answer 34

There are no safeguards under s.63, unlike Common law.