How Appropriate Does “Appropriate Treatment” Need To Be?

Related Sector: Health & Social Care

Introduction

The recent decision in SF v Avon and Wiltshire Mental Health Partnership NHS Trust and RB [2023] UKUT 205 (AAC) has introduced fresh insight to what has previously been an, usually, accepted element of mental health admissions and Mental Health Tribunal (MHT) hearings.

The requirement for “appropriate treatment” to be available for anyone detained in hospital under any section that is capable of lasting longer than 28 days was introduced into the Mental Health Act (MHA) (1983) by the Mental Health Act (2007) and has been part of the psychiatric legal landscape ever since. Until recently, “appropriate treatment” has simply meant nursing care. Consequently, solicitors have rarely attempted to argue for a client’s discharge under section 72 on the sole basis that “appropriate treatment” is not available. In fact, the arguments of those who did were often rebuffed by Tribunal panels. This held true even for patients detained in hospital with conditions requiring psychological treatment where no such treatment was available.

The decision by Upper Tribunal Judge Church in SF v Avon and Wiltshire revolves around a First-tier Tribunal decision made on 18^th November 2021. By the time the case came to be heard by Judge Church, the patient (RB) had long been discharged from hospital and she played no part in the proceedings. The case remained “live”, however, because the issues raised in it were of importance, not just to the parties involved, but to the wider mental health community.

Following the decision, a much more robust approach should now be taken. Both hospitals and Tribunals must be clear on whether generic “treatment” is available, but also whether the proposed treatment is “appropriate” for the individual patient.

The facts of the case

RB is a woman with a primary diagnosis of autism spectrum disorder and a secondary diagnosis of a complex post-traumatic stress disorder. She was detained under section 3 of the MHA (1983), on an acute ward that had no autism specialism. She was  unhappy and unwell on admission and these symptoms became more pronounced  on the ward. Seeing this, and feeling the treatment offered was only going to make her daughter worse, RB’s mother and Nearest Relative, SF, gave the hospital notice of her intention to discharge RB under section 23. RB’s Responsible Clinician (RC) issued a barring certificate and SF applied for a Tribunal under s66(1)(g) MHA (1983).

At the First-tier Tribunal, the clinical team accepted that RB’s detention on the acute ward was “not beneficial” to her mental health.  They argued, however, that if RB was discharged, she may well harm (or possibly kill) herself and harm others.  The RC expressed particular concern over RB’s recent “significant and severe escalation in the incidents of deliberate self-harm” whilst on the ward. They argued that these incidents were managed and prevented from escalating further by ward staff. They also argued that RB was receiving medical treatment which, although less than ideal, with “essential” psychosocial support not being available, did comprise occupational therapy (OT) and art therapy, as well as the usual level of nursing care. Discharge planning was taking place but had run into a brick-wall as RB refused to participate in the discussions.

Despite the difficulties outlined above, the First-tier Tribunal decided not to discharge RB on the basis she needed a considerable level of interventions to protect her physical health and safety, as well as the safety of those trying to care for her. It was feared that, were she discharged from section, she would leave hospital immediately and attempt to harm herself. It is also of note that RB chose not to attend the Tribunal hearing.

The Appeal

SF disagreed with the Tribunal’s rationale for their decision and sought permission to appeal. This was granted and the appeal hearing itself took place in April 2023.

SF submitted that for RB to be lawfully deprived of her liberty for the purpose of treatment, that treatment must be “appropriate” to her needs. Containment to protect physical health, OT and art therapy and discharge planning were not, she argued, appropriate to the needs RB had at the time of the first hearing.

In his written reasons for allowing SF’s appeal, Judge Church addressed all three of the reasons the First-tier tribunal gave for not discharging RB and each of them should give practitioners pause for thought.

Containment

Section145(4) of the MHA (1983) defines medical treatment in relation to mental disorder as:

“Medical treatment the purpose of which is to alleviate, or prevent a worsening of, the disorder of one or more of its symptoms or manifestations.”

The self-harming and violent behaviour SF demonstrated on the ward were, in the eyes of Judge Church, symptoms and manifestations of a disorder. The question he had to address, however, was whether the interventions provided alleviated or prevented a worsening of them. He concluded that they did not – essentially, containment on the ward only allowed for them (and any deterioration) to be monitored by hospital staff.

The Judge went on to say that restraint for neuro-diverse patients was, as the MHA Code also states, likely to exacerbate the condition and frustrate the patient. Any medical treatment must have a realistic prospect of achieving a therapeutic benefit for the patient. The need for the therapeutic benefit is vital as, if this is absent, it may well result in many people being detained indefinitely. This, Judge Church felt, was not the intention of Parliament when they voted the MHA into being.

OT and Art Therapy

In many cases both OT and art therapy are capable of amounting to medical treatment. In RF’s case, however, the Judge considered whether they were “appropriate” treatment for anxiety, depression, rigid thinking, and challenging behaviour which, as the First-tier Tribunal stated - were, the “off shoots” of RB’s condition.

The arguments in this area do not appear to have been thoroughly covered in the initial hearing. Therefore, Judge Church concluded that it was insufficiently clear from the First-tier Tribunal’s decision as to what the OT and art therapy were intended to achieve. It may well be that these were offered simply because they were available.

Discharge Planning

Discharge planning can be part of  treatment but if, as was the case here, it has reached a stasis, without anything being in place, it is difficult to see how it can be said to be “available”.

Other Comments

The Judge observed that the available treatment does not need to be the best or even the most comprehensive. However, it must serve a purpose for the patient. For it to be “appropriate”, it must demonstrably either alleviate or prevent a worsening of the condition, or one or more of its symptoms or manifestations.

It was agreed that, to recover, RB required psychosocial support. This was described as “essential” in the Tribunal findings but it was not available at the hospital RB was in. If something is “essential”, Judge Church postulated, it means that nothing else will do. If nothing else will do, anything else which is on offer is not, without the essential treatment, appropriate.

Analysis

This finding goes some considerable way towards focusing the minds of Tribunals, RCs and, even, Approved Mental Health Professionals. It also provides vital guidance as to the correct approach when balancing a patient’s human rights position.

Article 5(1)(e) of the European Convention on Human Rights allows for someone to be deprived of their liberty and security of person if they are of “unsound mind” (mentally disordered) and if the deprivation is in accordance with a procedure prescribed by law.  This procedure must pay much greater attention than previously thought, to whether the treatment proposed to help alleviate or prevent a worsening of that “unsound mind” is, in fact “appropriate” to the needs presented.

It follows, as was observed in Rooman v Belgium [2019] ECHR 105, that any treatment should be a real therapeutic measure in the form of an individualised, well thought out programme. In addition, the programme must consider the specific details of the patient’s mental health, with a view to, where possible, preparing them for their future reintegration into society.

Considered, personalised, care is something that should be delivered to all hospital patients and the decision in this case goes some considerable way towards emphasising this point to psychiatric hospitals and those connected with them.

Author: Max Duddles

This article was first published on the 23 November 2023