I’ve just had a hearing at which the patient was discharged, but the tribunal decided that the test in s72(1)(b)(ii) (“it is necessary for the health of safety of the patient or for the protection of other persons that he should receive such treatment”) was met. The tribunal read “such treatment” as just meaning “treatment”, whether in or out of hospital, and whether detained or not. This is an understandable reading for someone who’s never seen the Mental Health Act before.
In Richard Jones’s commentary on the necessity test in s3 he says: “The necessity must relate to both compulsion and treatment.” But to be fair to my tribunal, the s3 test has additional wording (“… and it cannot be provided unless he is detained under this section”) which is absent from s72. There isn’t the same ambiguity with s2, since the equivalent of the necessity test is that “he ought to be so detained” (s2) or “his detention as aforesaid is justified” (s72). Lady Simler talks about the s3 wording in Re RM (Application for Judicial Review (Northern Ireland)) (2024) UKSC 7, and concludes that “it will only ever be appropriate to compulsorily detain in hospital if it is necessary to do so”. The hospital managers take a different approach, first asking whether “treatment in a hospital” is appropriate, then whether “continued detention for medical treatment” is necessary (Code para 38.17).
Anyway, maybe we have been reading too much into “such treatment” all along. We should first ask whether the treatment is necessary (because of the risks) and available. On that basis we can then evaluate whether it’s “appropriate for him to be liable to be detained in a hospital” for that treatment, bearing in mind that appropriate in the detention context is synonymous with necessary.
It’s an interesting angle although I do wonder what, if any, difference it would have.
It would be closer to how a plain reading of s.72(1)(c) operates. That’s confusing to me - S3 is more closely analogous to S2 so you’d think s.72(1)(a) and (b) should be the most similar.
Doesn’t “such treatment” mirror the treatment referred to in s.72(1)(b)(i) - that is, treatment which “makes it appropriate for him to be liable to be detained in a hospital”? So the necessity of receiving that treatment is tied to that treatment being administered in hospital? It’s clunky but it is 1980s drafting, after all.
Interestingly, this has been tightened up in the new MHA 2025 into two separate criteria, so there’s clearly some ambiguity!
S.20(4) MHA 2025 (on which S.72 addresses):
(a) the patient is suffering from psychiatric disorder of a nature or degree which makes
it appropriate for the patient to receive medical treatment in a hospital,
(b) serious harm may be caused to the health or safety of the patient or of another
person unless the patient receives medical treatment,
(c) it is necessary, given the nature, degree and likelihood of the harm, for the patient to
receive medical treatment,
(d) the necessary treatment cannot be provided unless the patient continues to be
liable to be detained
Your point about “such treatment” is how I’ve always tried to explain it:
I was just trying to find a way for my wayward tribunal to have been correct, and ended up quite liking it!
And, yes, it’s funny that we’re belatedly discussing this just before it all gets changed anyway. The 1959 Act wording was clearer (check out s25 and s123). The tribunal just had to consider mental disorder (no nature/degree mentioned) and necessity (health/safety/others), and the necessity test was explicitly about whether “the patient should continue to be liable to be detained”. (Nature and degree were mentioned in s25 and I guess added to the discharge criteria partly because of Winterwerp’s “kind or degree”.)
I always just confidently state when I am reciting the statutory criteria- ‘of course ‘such treatment’ here means treatment as a detained patient not treatment per se’ It seems self evident that this must be the case and I have never been challenged on it but Jonathan’s post very usefully sets out the issues.