What are the boundaries set by statute and/or case law in the definition of “medical treatment for mental disorder”? I am aware that the term can be interpreted very widely, but I think there must be some limitation on what can be included within the definition given in s 145.
In particular I am asking whether a form of “treatment” can be classified as “medical” if it could be “administered” by people who have no medical training or qualifications. For example, personal care (feeding, washing, dressing) is usually part of nursing care in hospitals but is also commonly provided by family carers at home and by care home staff. Personal care might be seen as “alleviating a symptom of a mental disorder” if the disorder (eg dementia) prevents the patient from being able to carrying out self-care. So could a person be detained in hospital under the Mental Health Act solely to provide them with personal care, as an alternative to providing social care at home or transferring them to a care home? Does the fact that it is provided by “specialist nurses” instead of non-professional people make it “medical”?
Also I would like to know whether there is a distinction between “core” and “ancillary” medical treatment. This distinction appears to be made in B v Croydon Health Authority [1995] Fam 133. However the Code of Practice makes no mention of “core” treatment while it does refer to “ancillary” treatment.
Is this issue related to the purpose of the Act being “treatment/therapy” rather than “containment”?
Subsection (1) of section 7 amends the definition of medical treatment in section 145(1) to read:
“medical treatment” includes nursing, psychological intervention and specialist mental health habilitation, rehabilitation and care (but see also subsection (4) below)”.
Accordingly, the definition covers medical treatment in its normal sense as well as the other forms of treatment mentioned. Practical examples of psychological interventions include cognitive therapy, behaviour therapy and counselling. “Habilitation” and “rehabilitation” are used in practice to describe the use of specialised services provided by professional staff, including nurses, psychologists, therapists and social workers, which are designed to improve or modify patients’ physical and mental abilities and social functioning. Such services can, for example, include helping patients learn to eat by themselves or to communicate for the first time, or preparing them for a return to normal community living. The distinction between habilitation and rehabilitation depends in practice on the extent of patients’ existing abilities – “rehabilitation” is appropriate only where the patients are relearning skills or abilities they have had before.
Your second part of the question appears to ask the question is detention in hospital necessary for the provision of medical treatments, which could be available to the person also outside the Act? Lots of people with dementia receive treatment, and do not require the Act to provide this.
Yes. I think my second paragraph acknowledges that ‘treatment’ (ie personal care) is available without using the Act.
My question is whether the tribunal has the discretion to authorise such ‘treatment’ under the Act, on the basis that the nursing available in hospital has the status of ‘specialist dementia nursing’ and the RC claims that the patient requires ‘specialist dementia nursing’ although in practice this is no different from the ‘nursing’ which is available in the community and the patient is not resisting personal care in the community.
Indeed, each of the criteria in section 72(1)(b) hinges on medical treatment: (i) requires there to be mental disorder that makes liability to detention for medical treatment appropriate, (ii) is about the necessity of receiving that treatment, and (iia) is about the availability of the treatment that is necessary.
I would concentrate on the fact that detention is not “appropriate” (S.72(1)(b)(i)) if treatment could take place in the community (AM v SLAM - the test is one of “necessity”), and the risks of not receiving that treatment in hospital (S.72(1)(b)(ii)). In these circumstances I would almost certainly concede appropriate treatment and focus on the other criteria.
I found the following in MHA Manual by R Jones, 21st edition, at p 634:
1-1423 MEDICAL TREATMENT (s 145)
… Cases on the definition prior to amendment by the 2007 Act confirmed that the mere fact of being cared for or nursed is sufficient to constitute medical treatment - the amendment requires the care to be of a specialist nature…
In Re Ian Brady 11 December 2013 at para 207 … in the opinion of the [FTT] whilst ‘specialist care’ may include ‘nursing’ it must also include other actions. … Conversely ‘nursing’ does not necessarily encompass ‘specialist care.’