The dilemma
I was once asked by a frustrated healthcare professional how a mental health practitioner is expected to evidence to the court that a schizophrenic is unable to care for himself so that a warrant can be obtained to take the latter to a place of safety for an assessment under the Mental Health Act. The professional argued that once such an individual is shown to be “floridly psychotic” (never mind what that means) then of itself, his condition is proof that he is unable to care for himself. In addition, mental health professionals often argue that a refusal by the subject to take medication is sufficient evidence of their inability to care for themself.
My argument in a nutshell
The difficulty is that the lay magistrate is not a psychiatrist; neither is the legal adviser or the district judge. Indeed, even where a magistrate is a psychiatrist, s/he will not hear the s135(1)(b) application as a medic. Moreover, if a schizophrenic is floridly psychotic, there should surely be objective evidence of his inability to care for himself that extends beyond his refusal to take his medication – for if the magistracy is able to find s135(1)(b) satisfied by virtue of an individual’s pre-existing mental health condition it should likewise, surely, convict any offender by virtue of a his existing criminal convictions. The rule of law requires, I suggest, that decisions are based on objective evidence; why should the s135(1)(b) exercise be any different; why should the mental health practitioner be given a pass on this legal process. Perhaps, I make an unfair comparison but my concerns over this area of law has led me to explore two issues: the extent to which the enquiring court under s135(1)(b) requires objective evidence of an individual’s inability to care for himself. Secondly, the extent to which the refusal to take medication is sufficient evidence that a subject of a warrant is unable to care for himself.
I will argue that as autonomous individuals, we all have the right to refuse medication - including subjects of a mental health warrant application. I will also argue that unlike the High Courts, the magistracy has no power - inherent or otherwise - to compel an adult to take their medication and no such powers exist in s135(1)(b) to issue a warrant on the basis of a refusal to take medication.
The law
According to s135(1(b) of the mental Health Act 1983 a justice of the peace may issue a warrant
if appears to a justice of the peace, on information on oath laid by an approved mental health professional, that there is reasonable cause to suspect that a person believed to be suffering from mental disorder— […]
(b)being unable to care for himself, is living alone in any such place.
The language is archaic but reveals the approved mental health practitioner must satisfy the magistrate of three elements in order to obtain a warrant under this provision: that the subject is believed to be suffering from a mental disorder; that s/he is living alone and that the subject is unable to care for himself.
The law in practice
Meeting the first two limbs of the test is often easy enough and indeed, the third limb can be easy too where the facts reveal an individual who is reported to have one or more evidence of living in squalid conditions. This squalid condition, I have observed, can range from not washing themselves to faeces being sprayed on the walls of the home; indeed, it is a question of fact which will differ from case to case. However, the difficulty often arises where the only evidence offered to the magistrate to satisfy the third limb is the subject’s refusal to take his/her medication. The question then arises as to what the magistrate should make of this especially in the light of accompanying disturbing narrative of the difficulties the subject’s behaviour is causing his neighbours, any friends and families – usually indicative of crimes best reported to the police. The mental health professionals often look to their text by Richard Jones (Mental Health Act Manual, 1–1367) who asserts that a refusal to take medication is sufficient to meet the third limb. However I disagree with this position because to the extent that it is accepted that we all are autonomous individuals who can choose whether to take medication – and it is accepted that those believed to be suffering from mental disorder are likewise autonomous beings, the refusal to take medication cannot and should not be evidence of an inability to care for oneself.
Autonomy, Article 8 and the refusal to take medication
Peter Conrad has in the 1980s argued that one of the reasons for self-regulations of medications is to exercise control over one’s disorder (1987 The Hastings Center Report at page 17) and under many circumstances a sign of self-regulation is where the patient takes more responsibility for their lives and treatment. Indeed, most individuals would have encountered one or more situations where we have refused to take medications because we do not like the side effects; why should those believed to be suffering not be afforded the same choice. Crucially, the High Court recognises that compelling medication to be administered does interfere with an individual’s Article 8 rights. However they will only entertain such an interference where the interference is permissible within the terms of Article 8(2) , in that it is prescribed in domestic law, pursues a legitimate aim, is necessary and proportionate (A Local Authority v M, T 2018). Unlike the High Courts, magistrates do not have jurisdiction in our domestic law to authorise such interference with a subject’s family life. Whilst I accept that there are situations with violent subjects which may require the assistance of police officers to facilitate an assessment of the former, the law is not explicit that s135(1)(b) should, without more, be used for such purposes ; neither is that same law explicit that magistrates have inherent powers to compel administration of medication to the unwilling. Therefore, the first part of the three-limb test of Article 8(2) is not satisfied – it is not prescribed in domestic law. Therefore, I will argue that authorising a warrant solely on the basis the subject is not taking his/her medication is an exercise of power the magistracy does not have. I will further argue that an accompanying narrative of troubling criminal behaviour is still insufficient evidence of an ability to care for self because alleged criminal behaviours are best dealt with by the police who can likewise use their powers under s136 MHA if an assessment is required – perhaps more should be done to enlighten the police of s136 rather than a continued misuse of a s135(1)(b). In my view, s135(1)(b) as it currently stands calls for evidence, separate from the mental disorder itself, that indicates the subject is unable to care for themselves and although this will differ on a case-by-case basis it should not be sufficient to simply show that the subject is refusing medication or that the subject is schizophrenic as otherwise it opens the floodgates to an abuse of power unforeseen by Parliament.
Conclusions
To be sure, there is a need for clarity in this provision and I will go so far as to say that there are clear issues and gaps within the application of s135(1)(b) but it should not be for the magistracy to plug them; it is for Parliament to consider what it wants to achieve under s135(1)(b) and offer clarity to the magistracy and mental health practitioners. If it is the case that Parliament wishes to grant powers to the magistracy to call for the assessment of those believed to be suffering from a mental disorder and refusing to take their medication, then it should state so explicitly.
By Annette Kalu
Legal Adviser, HMCTS
Associate Lecturer, Birkbeck, University of London
(Views expressed are my own)