The "treatability test" stated that treatment for a patient must be "likely to alleviate or prevent a deterioration of his condition" (see s3); this applied as much to discharge as to admission (Reid v Secretary of State for Scotland (1998) UKHL 43).
The government want to be able to detain dangerous people in hospital even though there is no effective treatment for them. The Scottish Assembly passed a law to this effect, which was held to be compatible with the ECHR (see Hutchinson Reid v UK 50272/99 (2003) ECHR 94). For England & Wales, the solution has been to abolish the treatability test. This takes effect on 3/11/08 when the relevant provisions of the MHA 2007 come into force.
The test has effectively been replaced by an "appropriate treatment test" which requires that "appropriate medical treatment is available" for the patient.
The definition of "medical treatment" in s145 now is stated to refer to:
Before the treatment had to be "likely" to be effective, now that must be its "purpose" - so the new test in practice may be quite similar.
Section 4: Replacement of "treatability" and "care" tests with appropriate treatment test
30. Section 4 introduces a new "appropriate medical treatment test" into the criteria for detention under section 3 of the 1983 Act, related sections of Part 3 and the corresponding criteria for renewal and discharge. The effect is that these criteria cannot be met unless medical treatment is available to the patient in question which is appropriate taking account of the nature and degree of the patient's mental disorder and all other circumstances of the case.
31. The test requires that appropriate treatment is actually available for the patient. It is not enough that appropriate treatment exists in theory for the patient's condition. The words "nature or degree" in the appropriate treatment test are already used in the criteria for detention in the 1983 Act. Case law has established that "nature" refers to the particular mental disorder from which the patient is suffering, its chronicity, its prognosis, and the patient's previous response to receiving treatment for disorder. "Degree" refers to the current manifestation of the patient's disorder (R v Mental Health Review Tribunal for the South Thames Region ex p. Smith  C.O.D. 148).
32. The appropriate medical treatment test replaces the so-called "treatability" test. The treatability test requires the relevant decision-maker to determine whether medical treatment "is likely to alleviate or prevent deterioration in the patient's condition". Where that test forms part of the criteria for detention under a particular section, it applies at all stages to patients suffering from mental impairment or psychopathic disorder (ie to the initial decision to detain, and both renewal and discharge from detention). However, for patients suffering from mental illness or severe mental impairment it applies only when detention is being renewed under section 20(4) of the 1983 Act (or 21B) or when the MHRT is considering discharge in accordance with the criteria in section 72(1)(b). In both these cases there is an alternative test variously known as the "grave incapacity" or "care" test - which may be applied instead. Both the treatability test and this alternative test are abolished by this section and replaced by the appropriate medical treatment test. Because of the removal of categories of disorder by section 1 the appropriate medical treatment test applies equally to all mental disorders.
33. As an illustration, the effect of sections 1 and 4 and paragraph 2 of Schedule 1 on the criteria for applications for admission for treatment under section 3 of the 1983 Act is as follows:
[Not reproduced: s3(2)(a) has the four classifications struck out; s3(2)(b) (treatability test) is omitted; s3(2)(d) (appropriate medical treatment test) is inserted; s3(4) (re meaning of appropriate medical treatment) is inserted.]
Section 5: Further cases in which appropriate treatment test is to apply
34. Section 5 also adds the appropriate medical treatment test into three other sets of detention criteria in Part 3 of the 1983 Act. They are sections 36 (remand for treatment), 48 (transfer of unsentenced prisoners) and section 51(6) (hospital orders where it is impractical or inappropriate to bring a detainee before the court). These provisions do not at present apply to patients suffering from psychopathic disorder or mental impairment and so they do not include the so-called treatability test. As a result, the appropriate medical treatment test will be an additional requirement in these sections, rather than a replacement for an existing test.
Section 6: Appropriate treatment test in Part 4 of 1983 Act
35. Section 6 makes related amendments to what a registered medical practitioner appointed by the Mental Health Act Commission (a Second Opinion Appointed Doctor or SOAD) must certify when giving a certificate under section 57 (treatment requiring consent and a second opinion) and section 58 (treatment requiring consent or a second opinion) of the 1983 Act authorising the giving of certain types of medical treatment for mental disorder.
36. Those sections of the 1983 Act provide procedural safeguards for patients in relation to particular types of treatment. They are summarised in the introductory material to the notes on sections 27 to 31 below.
37. As sections 57 and 58 of the 1983 Act stand, a SOAD must certify that treatment should be given, "having regard to the likelihood of the treatment alleviating or preventing deterioration of the patient's condition". The effect of subsection (2) of this section of the 2007 Act is to require SOADs instead to certify that it is appropriate for the treatment to be given. Subsection (3) adds a new subsection to section 64 which explains what it means for treatment to be appropriate in this context. The wording is consistent with that used in the "appropriate medical treatment" test to be added to the criteria for detention under the 1983 Act by sections 4 and 5 above.
|Date in force||Commencement order||MHA 2007 section||MHA 1983 sections affected|
|3/11/08||Mental Health Act 2007 (Commencement No.7 and Transitional Provisions) Order 2008||4||s3, s20, s37, s45A, s47, s72, s73, s145|
|"||"||5||s36, s48, s51|
|"||"||6||s57, s58, s64|
|"||"||s55, sch 11||s3, s20, s72|
Table from Explanatory Notes, page 9.
|Provision||Currently applies to||Will apply in future to||Learning disability provision to apply in future||"Treatability" test applies now||Appropriate medical treatment test to apply in future|
|Civil Patients (Part 2 of the Act)|
|Admission for assessment for up to 28 days (section 2)||Mental disorder||Mental disorder||No||No||No|
|Admission for treatment (s3)||MI, MM, PD, SMM||Mental disorder||Yes||Yes||Yes|
|"Holding power" for patients already in hospital (s5)||Mental disorder||Mental disorder||No||No||No|
|Guardianship (s7)||MI, MM, PD, SMM||Mental disorder||Yes||No||No|
|Patients concerned in criminal proceedings (Part 3 of the Act)|
|Remand to hospital for report (s35)||MI, MM, PD, SMM||Mental disorder||Yes||No||Yes|
|Remand to hospital for treatment (s36)||MI, SMM||Mental disorder||Yes||No||Yes|
|Hospital order (s37)||MI, MM, PD, SMM||Mental disorder||Yes||Yes||Yes|
|Hospital order without conviction (s37(3) and 51(5))||MI, SMM||Mental disorder||Yes||No||Yes|
|Interim hospital order (s38)||MI, MM, PD, SMM||Mental disorder||Yes||No||Yes|
|Hospital and limitation directions (s45A)||PD||Mental disorder||Yes||Yes||Yes|
|Transfer direction - sentenced prisoner (s47)||MI, MM, PD, SMM||Mental disorder||Yes||Yes||Yes|
|Transfer direction - other (s48)||MI, SMM||Mental disorder||Yes||No||Yes|
Key: MI = mental illness, MM = mental impairment, PD = psychopathic disorder, SMM = severe mental impairment
Mental Health Act 2007 Explanatory Notes - pages 6-8