The Grounds Patients are Detained

Question 1

How is the ‘least restrictive requirement’ worded in section 2 of the legislation?

Answer 1

In admission for assessment - ‘nature of degree which warrants the detention of P’

Question 2

How is the ‘least restrictive requirement’ worded in section 3?

Answer 2

‘A nature of degree which makes it appropriate for him to receive medical treatment in hospital’.

Question 3

What does section 2 and 3 presuppose about treatment?

Answer 3

That if it can be administered outside the hospital setting, there is no justification for a hospital admission.

Question 4

How have courts dealt with the issue of P’s challenging their renewals after being on periods of leave?

Answer 4

That admission for treatment cannot be made or renewed if its sole purpose is to ensure compliance with a medical treatment regime while P is living in the community.

Question 5

Why is the Hallstrom judgement important?

Answer 5

Admission for treatment has no applicability to those whom it is intended to admit and detain for a purely nominal period which no necessary treatment will be given.

Question 6

What was the ruling in R v Barking?

Answer 6

Leave of absence can be integral to therapy and a P’s detention can be renewed when P’s are on leave

Question 7

What was the ruling R (DR) v Mersey Care NHS Trust?

Answer 7

There has been some sympathy with the need to exercise compulsory hospital powers to ensure compliance with medication regimes.

Question 8

What was the ruling in R (CS) v MHRT?

Answer 8

The court ruled that renewal of admission for treatment was appropriate in the case of a P who was permitted to live at home and attend ward rounds every 4 weeks.

Question 9

What is the second Winterwerp criteria?

Answer 9

“Of a nature or degree”

Question 10

What does of a nature or degree which makes it appropriate for him to receive medical treatment in hospital mean?

Answer 10

MHRT, ex p Smith; a tribunal held that the nature of the P’s illness justified detention. It was found that there was a continued need for caution because his mental state had been subject to marked fluctuations.

Question 11

What did Phil Fennel say?

Answer 11

If the P’s history indicates a strong likelihood of relapse, P’s should re-admitted to hospital before the relapse occurs. It is not necessary to wait for the P’s psychosis to ripen before he can be admitted to hospital under section.

Question 12

What did the Mental Health Act Commission consider in the situation of the relapsing patient?

Answer 12

There must be reliable evidence of a continuing unsoundness of mind, the nature of which warrants compulsory detention. The evidence should be sufficiently compelling.

Question 13

What was the ruling of BB v South London?

Answer 13

Tribunal incorrectly determined that the nature of the applicants disorder presented a risk of violence, even though there was little recent evidence of such a risk.

Question 14

What happened in CM v Derbyshire?

Answer 14

UT required evidence as to the risk posed by the nature of the disorder.

Question 15

What was the reasoning for quashing the tribunals refusal of discharge under CM?

Answer 15

The tribunals decision was set aside because they had not established that there would be a significant deterioration of the P’s condition in the near future. Assessments of future risk were speculative and longer-term.

Question 16

What was the ruling in Stojanovski?

Answer 16

The ECtHR upheld a violation of article 5 on the basis that the disorder was no longer of a nature of degree to warrant compulsory confinement.

Question 17

What case illuminates the interface between physical and mental health problems?

Answer 17

GJ v Foundation Hospital

Question 18

When should dangerousness be established?

Answer 18

determined by section 2 or 3

Question 19

Section 2 dangerousness threshold?

Answer 19

The patient ought to be detained in the interests of his own health or safety or with a view to the protection of other persons.

Question 20

Section 3 dangerousness threshold?

Answer 20

It is necessary for the health and safety of patient or for the protection of others that he should receive treatment/continue to receive treatment.

Question 21

What if a person no longer meets criteria for compulsory admission or section 20 renewal of detention?

Answer 21

She cannot continue to be detained and a tribunal must order her discharge.

Question 22

What did Hutchinson Reid v UK rule?

Answer 22

When a person poses a risk of harm, ECHR institutions have confirmed that continued detention is not unlawful, provided that they continue to suffer from a mental health problem.

Question 23

What does the protection of others mean?

Answer 23

Protecting others is considered a legitimate justification for the detention of people with mental health problems under our current MH legislation.

Question 24

Where is the notion of protection of others enshrined?

Answer 24

In the Code of Practice 4.7
Factors to consider is the nature of the risk to other people arising from P’s mental disorder and likelihood that harm will result and the severity of any potential harm.

Question 25

What was the ruling in R v Sec of State, ex parte IH?

Answer 25

HoL declined to rule that the IH was detained in breach of article 5(1). But said to note that the risk of harm IH presented was remote and hypothetical.

Question 26

Give examples of professional disagreement as to when P presents a risk of harm to others?

Answer 26

Glover-thomas; Bartlett; Quinlivan

Question 27

What was the ruling in X v Ministry of Justice?

Answer 27

Decision to refuse leave was based on the serious nature of the index offence and the likely response of the victims to the crime.

Question 28

What does the Code of Practice 14.9 enshrine?

Answer 28

Factors to be considered in deciding whether P’s should be detained for their own health or safety

Question 29

What evidence is needed for compulsion?

Answer 29

If there is objective evidence that P’s health will deteriorate without hospitalisation, there is a justification for compulsion, even if P does not want to go into hospital and receive treatment.

Question 30

What study revealed that compulsory power of the MHA 1983 can have a negative impact on the P’s long-term outcome?

Answer 30

Ramsey et al shown that P’s with anorexia nervosa who were sectioned under the Act did less well than those P’s who were not sectioned. Using compulsion can damage P and doctor relationship.

Question 31

What case discussed the treatability requirement?

Answer 31

R v Canons Park MHRT

Question 32

What case illuminates that the Court could be confusing treatability with control?

Answer 32

Munjaz - both seclusion and sedation have been considered medical treatment for P’s disorder
R v Riverside - restraint as an appropriate precursor to treatment

Question 33

What was the ruling in R (W) v Rampton?

Answer 33

P said psychopathic disorder was untreatable therefore renewal of detention was unlawful - but court said that though treatment had not shown much benefit in the past - there was some hope that things might change in the future.

Question 34

What was the ruling in R (B) v Sec of State?

Answer 34

Sex offender, hospital to prison on basis MD being untreatable. Before end of his sentence, he was recalled to hospital. The court said that the recall to hospital was not unlawful - he was being controlled and cared for in hospital.

Question 35

What did the 2007 amendments do to treatability?

Answer 35

Replaced it with appropriate medical treatment test for longer term detentions

Question 36

What is a requirement for ALL patients detained for treatment/renewed?

Answer 36

“appropriate medical treatment must be available”.

Question 37

What did the Explanatory Notes say about available treatment?

Answer 37

“requires that appropriate treatment is actually available for the P. it is not enough that appropriate treatment exists in theory for the P’s condition”.

Question 38

How did Earl Howe criticise MHA 2007?

Answer 38

“appropriate is a classic weasel word”. and “there is nothing in the Bill to say that detention must be necessary in the circumstances, nothing about a P;s health needs being significant, and nothing about the effects of the MD being serious”.

Question 39

What did the Government accept (amendment) at the Eleventh Hour?

Answer 39

The definition of medical treatment in section 145 being “any reference in this Act to medical treatment, in relation to MD shall be construed as a reference to medical treatment the purpose of which is to alleviate, or prevent the worsening of, the disorder or one or more of its symptoms or manifestations”.

Question 40

What was the ruling in R (DK) v Sec of State?

Answer 40

“The detention in a mental hospital cannot be justified on the basis purely that the individual is a danger, whether to the public or himself. It can only be justified if there is treatment available which might alleviate”.

Question 41

What evidence must be available to justify a finding that appropriate treatment is available?

Answer 41

SP v Sec of State - Justice Secretary was entitled to draw inferences from reports and that the inferences here was clearly that such treatment was available.

Question 42

What was the ruling in MD v Nottinghamshire?

Answer 42

The treatment for a personality disorder was long term and might only amount to nursing or specialist day to day care” which could suffice as “appropriate positive psychotherapeutic treatment available”. Satisfied the legal test.

Question 43

What was the ruling in DL-H v Devon?

Answer 43

Have guidance on how to interpret appropriate treatment:
(A) treatment available and appropriate does not cease to be merely so because the P refuses to engage
(B) A P’s refusal to engage with therapy is not decisive
(C) Although 145 is wide, common thread: its purpose must be to confer some benefit on the P, if only to the extent of preventing the P’s condition from getting worse.

Question 44

What was the ruling in WH v Partnerships in Care?

Answer 44

“The key lies in section 145(4), which makes it clear that the purpose of treatment must be to benefit the P… it is likely to constitute appropriate treatment even though the outcome of such treatment may have little or no beneficial effect on the P”.