Upper Tribunal (Administrative Appeals Chamber)

Decision of the Upper Tribunal
(Administrative Appeals Chamber)

Save for the cover sheet, this decision may be made public (rule 14(7) of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI No 2698)). That sheet is not formally part of the decision and identifies the patient by name.

 

This decision is given under section 11 of the Tribunals, Courts and Enforcement Act 2007:

The decision of the First-tier Tribunal under reference MP/2011/23053, following a hearing on 21 November 2011 at Trengweath Hospital, did not involve the making of an error on a point of law.

 

Reasons for Decision

A.         Introduction

1.          Mr H was discharged from hospital on a community treatment order from 22 September 2011. On 4 October 2011, he applied to the First-tier Tribunal for his discharge from the order. The tribunal decided that he should not be discharged. I gave him permission to appeal to the Upper Tribunal and the submissions in those proceedings are now complete.

2.          I am grateful to both representatives for the quality for their arguments. Mostyn Evans of CVC Solicitors has represented Mr H. Bevan Brittan LLP has represented the Cornwall Partnership NHS Trust. It is unusual for an authority to participate in this way and I thank them for doing so. Authorities can only add value to the proceedings by participating.

B.         The issue and how it arises

3.          The issue is whether treatment given without Mr H’s consent is appropriate and available. I have decided that the issue of consent is outside the jurisdiction of the First-tier Tribunal.

4.          The issue arises in this way. Mr H has a diagnosis of paranoid psychosis. He was admitted to hospital under section 2 of the Mental Health Act 1983 on 25 November 2010. He was then detained under section 3 until he was discharged on the community treatment order. It was a condition of the order that he accepted medication as prescribed. That medication is given as a depot injection. When he attended for the injection, Mr H said that he did not consent to it. Nonetheless, he submitted to receive it without resistance. The First-tier Tribunal dealt with the issue of his consent to treatment by finding that ‘despite him saying that he did not consent his acts spoke louder than his words.’

C.         The Mental Health Act 1983

5.          The decision to detain Mr H for treatment was governed by section 3:

3 Admission for treatment.

(1) A patient may be admitted to a hospital and detained there for the period allowed by the following provisions of this Act in pursuance of an application (in this Act referred to as “an application for admission for treatment”) made in accordance with this section.

(2) An application for admission for treatment may be made in respect of a patient on the grounds that—

(a) he is suffering from mental disorder of a nature or degree which makes it appropriate for him to receive medical treatment in a hospital; and

…

(c) it is necessary for the health or safety of the patient or for the protection of other persons that he should receive such treatment and it cannot be provided unless he is detained under this section; and

(d) appropriate medical treatment is available for him.

(3) An application for admission for treatment shall be founded on the written recommendations in the prescribed form of two registered medical practitioners, including in each case a statement that in the opinion of the practitioner the conditions set out in subsection (2) above are complied with; and each such recommendation shall include—

(a) such particulars as may be prescribed of the grounds for that opinion so far as it relates to the conditions set out in paragraphs (a) and (d) of that subsection; and

(b) a statement of the reasons for that opinion so far as it relates to the conditions set out in paragraph (c) of that subsection, specifying whether other methods of dealing with the patient are available and, if so, why they are not appropriate.

(4) In this Act, references to appropriate medical treatment, in relation to a person suffering from mental disorder, are references to medical treatment which is appropriate in his case, taking into account the nature and degree of the mental disorder and all other circumstances of his case.

6.          The decision to make Mr H the subject of a community treatment order was governed by section 17A:

close

17A  Community treatment orders

(1) The responsible clinician may by order in writing discharge a detained patient from hospital subject to his being liable to recall in accordance with section 17E below.

(2) A detained patient is a patient who is liable to be detained in a hospital in pursuance of an application for admission for treatment.

(3) An order under subsection (1) above is referred to in this Act as a “community treatment order”.

(4) The responsible clinician may not make a community treatment order unless–

(a) in his opinion, the relevant criteria are met; and

(b) an approved mental health professional states in writing–

(i) that he agrees with that opinion; and

(ii) that it is appropriate to make the order–

(5) The relevant criteria are–

(a) the patient is suffering from mental disorder of a nature or degree which makes it appropriate for him to receive medical treatment;

(b) it is necessary for his health or safety or for the protection of other persons that he should receive such treatment;

(c) subject to his being liable to be recalled as mentioned in paragraph (d) below, such treatment can be provided without his continuing to be detained in a hospital;

(d) it is necessary that the responsible clinician should be able to exercise the power under section 17E(1) below to recall the patient to hospital; and

(e) appropriate medical treatment is available for him.

(6) In determining whether the criterion in subsection (5)(d) above is met, the responsible clinician shall, in particular, consider, having regard to the patient's history of mental disorder and any other relevant factors, what risk there would be of a deterioration of the patient's condition if he were not detained in a hospital (as a result, for example, of his refusing or neglecting to receive the medical treatment he requires for his mental disorder).

(7) In this Act–

“community patient” means a patient in respect of whom a community treatment order is in force;

“the community treatment order”, in relation to such a patient, means the community treatment order in force in respect of him; and

“the responsible hospital”, in relation to such a patient, means the hospital in which he was liable to be detained immediately before the community treatment order was made, subject to section 19A below.

7.          Part 4A deals with treatment of community patients, including the relevance of their consent. Section 64B provides:

64B  Adult community patients

…

(2) The treatment may not be given to the patient unless-

(a) there is authority to give it to him; and

(b) if it is section 58 type treatment or section 58A type treatment, the certificate requirement is met.

Section 64C(2) effectively defines authority to give treatment:

64C  Section 64B – supplemental

…

(2) There is authority to give treatment to a patient if-

(a) he has capacity to consent to it and does consent to it;

(b) a donee or deputy or the Court of Protection consent to it on his behalf; or

(c) giving it to him is authorised in accordance with section 64D or 64G below.

Section 64D provides for giving treatment without consent if need be and section 64G provides for giving emergency treatment.

8.          Mr H made his application to the First-tier Tribunal under section 66:

66 Applications to tribunals

(1) Where-

…

(ca)  a community treatment order is made in respect of a patient; …

an application may be made to the appropriate tribunal within the relevant period-

(i) by the patient (except in the cases mentioned in paragraphs (g) and (h) above …, and

(ii) in the cases mentioned in paragraphs (g) and (h) above, by his nearest relative.

(2) In subsection (1) above the ‘relevant period’ means-

…

(ca)  in the case mentioned in paragraph (ca) of that subsection, six months beginning with the day on which the community treatment order is made; …

9.          The tribunal’s powers on Mr H’s application were governed by section 72:

72 Powers of tribunals

(1) Where application is made to the appropriate tribunal by or in respect of a patient who is liable to be detained under this Act or is a community patient, the tribunal may in any case direct that the patient be discharged, and—

…

(c) the tribunal shall direct the discharge of a community patient if it is not satisfied–

(i) that he is then suffering from mental disorder or mental disorder of a nature or degree which makes it appropriate for him to receive medical treatment; or

(ii) that it is necessary for his health or safety or for the protection of other persons that he should receive such treatment; or

(iii) that it is necessary that the responsible clinician should be able to exercise the power under section 17E(1) above to recall the patient to hospital; or

(iv) that appropriate medical treatment is available for him; or

(v) in the case of an application by virtue of paragraph (g) of section 66(1) above, that the patient, if discharged, would be likely to act in a manner dangerous to other persons or to himself.

(1A)  In determining whether the criterion in subsection (1)(c)(iii) above is met, the tribunal shall, in particular, consider, having regard to the patient's history of mental disorder and any other relevant factors, what risk there would be of a deterioration of the patient's condition if he were to continue not to be detained in a hospital (as a result, for example, of his refusing or neglecting to receive the medical treatment he requires for his mental disorder).

…

D.        Analysis

10.       I have decided that the First-tier Tribunal does not have jurisdiction to deal with issues of consent to treatment. This is why.

11.       The Mental Health Act only applies in defined and restricted circumstances. It is controlled by three locks: mental disorder, protection, and treatment. All three locks must be secured before a person can be subject to the Act. If any of the locks is unfastened, the person is no longer subject to the Act. The tribunal is one of the key holders for those locks. If it opens any one of the locks, the patient must be discharged. This prevents the Act being used for pure containment.

12.       Mr H was detained for treatment under section 3. The locks were represented by section 3(2)(a), (c) and (d). He was made the subject of a community treatment order under section 17A. The locks were then represented by section 17A(5)(a), (b) and (e). Those paragraphs mirror section 3(2)(a), (c) and (d). The tribunal’s powers on his application were set out in section 72. The locks were then represented by section 72(1)(c)(i), (ii) and (iv). Those subparagraphs mirror both section 3(2)(a), (b) and (c) and section 17A(5)(a), (b) and (e). And, as a statutory tribunal constituted under section 3(1) of the Tribunals, Courts and Enforcement Act 2007, the First-tier Tribunal has only the powers conferred on it. The same locks apply at each stage that the issue arises whether a person should be, or remain, subject to the Act.

13.       These provisions, and the continuity between them, have two consequences. First, the First-tier Tribunal only has jurisdiction to deal with consent to treatment if it relates to one of those three locks. Mr Evans has recognised that by arguing that lack of consent prevents treatment being appropriate and available. Second, if consent is relevant to the treatment lock under section 72, they must be relevant to that lock under sections 3 and 17A as well. Any other result would be both anomalous. But the issue of consent cannot arise under section 3, because treatment can only be authorised once the person is made subject to the Act. Consent relates to delivery of the treatment and cannot arise until that treatment has been identified and classified as both appropriate and available. And that, by definition, only happens once the treatment lock has been applied.

14.       Even under sections 17A and 72, consent cannot be part of the treatment lock. The delivery of treatment, and the related issue of consent, is practically and conceptually distinct from the issue whether it is appropriate and available. Treatment may be appropriate, whether or not the patient consents. And it may be available, whether or not the patient is willing to receive it. Appropriateness and availability are issues that arise prior to the decision whether to give the treatment. It is only at that later stage that the patient’s consent arises. The Act distinguishes, and provides separately for, detention or recall and treatment. Part IV deals with consent to treatment. Some of the provisions apply to community patients. There is also specific provision for consent in respect of adult community patients in sections 64B, 64C, 64D and 64G, which I have referred to above.

15.       This distinction is reflected in the language and structure of the Act. For the treatment lock to apply, treatment must be appropriate and available. That indicates that it must be both suitable for, and at the disposal of, patients. Treatment, including treatment without consent, is dealt with in separate provisions, which use different language. The Act refers to giving treatment, which focuses on the delivery of treatment that is available and appropriate. And it is not linked into those concepts by, for example, deeming that treatment is available despite being administered without consent. The powers of the First-tier Tribunal mirror the three locks, but not the provisions for treatment. Judicial oversight by the First-tier Tribunal is limited to the issue whether the person should be subject to the Act. The treatment of patients under the Act is subject to judicial oversight by the courts, but not by the First-tier Tribunal.

16.       The result is that the tribunal has the right to order the release of the patient, but no more. It does not have power to order that the patient be recalled to hospital. Nor does it have any power to direct the responsible authority to take any steps in respect of the patient’s treatment, including steps to allow it to give treatment without consent. Those would be surprising limitations on the tribunal’s powers, if it had jurisdiction to deal with issues of consent. The tribunal can make recommendations about treatment (as under section 72(3A)(a)), but they are powers only. It has no right to impose that recommendation on the clinical staff.

17.       The Authority has cited what I said in DL-H v Devon Partnership NHS Trust [2010] UKUT 102 (AAC), referring to:

the danger that a patient for whom no appropriate treatment is available may be contained for public safety rather than detained for treatment. The solution lies in the tribunal’s duty to ensure that the conditions for continued detention are satisfied. The tribunal must investigate behind assertions, generalisations and standard phrases. By focusing on specific questions, it will ensure that it makes an individualised assessment for the particular patient.

It is not necessary to rely on that passage. What I said there applies to treatment that can only be given with the engagement of the patient. Counselling and psychological therapies are examples. I was making the point that tribunals had to ensure that there was some form of treatment available to a patient who was refusing to engage. My comments do not apply to treatment by medication, which can be administered without consent and co-operation, if need be.

E.         Consent

18.       I have read the parties’ submissions on consent and spent some time thinking about them. I have decided to resist the temptation to set out my conclusions on the ground that they are outside my jurisdiction. It is sufficient to say that my decision does not leave patients who do not consent without protection. There is ample protection for them under the Act. It is just that the judicial oversight of those provisions is not vested in the First-tier Tribunal.

 

Signed on original on 6 August 2012

Edward Jacobs Upper Tribunal Judge