PM v Midlands Partnership NHS Foundation Trust  UKUT 69 (AAC)
Lawfulness and availability of treatment The tribunal had been wrong to find that appropriate medical treatment was "available" for a CTO patient for whom the lack of a SOAD certificate meant that two days after the hearing her treatment could not lawfully be given (unless she were to be recalled to hospital and the administration of her depot were to become immediately necessary). This was the case even though the treatment could have been given on the hearing date: the tribunal should look at the whole course of treatment, not merely a snapshot.
Judicial summary from Gov.uk website
Mental Health – s.72(1)(c)(iv) – When Appropriate Medical Treatment is Available - considers the relevance of legal impediments to administering medical treatment to the issue of whether medical treatment can be said to be “appropriate” and “available”. Gives guidance on the meaning of “appropriate”, “available” and “medical treatment”.
Thanks are due to John Lancaster of GHP Legal (solicitor for the patient) for supplying the judgment, and for writing the detailed summary below. (The judgment appeared on BAILII on 7/4/20.)
In brief, PM was subject to a CTO. She was prescribed a depot medication, which she was refusing. The tribunal was held on Thursday 15 August 2019. At the date of the tribunal, the depot did not need to be approved by a SOAD. However, by the tortuous application of section 58 MHA, it would need to authorized by a SOAD by Saturday 17 August 2019. Although the community RC had promptly made a referral for a SOAD in July 2019, there was no indication of when one would assess PM, the tribunal noting that ‘it is well known there is a heavy backlog of SOAD referrals’.
By section 72(c)(iv) the tribunal shall direct the discharge of a community patient if it is not satisfied that appropriate medical treatment is available to him.
The Upper Tribunal determined that the lack of SOAD approval meant that, whist the tribunal might decide the medical treatment proposed was appropriate (para 9.7 – 9.12), it was not open to the tribunal to find that it was available (para 10). The fact that, at the precise moment of the tribunal, SOAD approval was not necessary, rather than 2 days later, was not fatal to the argument – one should not use a ‘snapshot’ approach (para 10.13 – 10.15).
Upper Tribunal Judge Church determined that the tribunal erred in law and its errors were material. However, since PM had ceased to be subject to section 3 or CTO since 18 November 2019, he declined to set aside the tribunal decision (because that would serve no purpose).
Although the decision relates to appropriate medical treatment for a client under CTO, it seems to me to be entirely relevant to:
- The test at section 3(2)(d) of the availability of appropriate medical treatment, which UT Judge Church refers to at paragraph 9.1 of the decision;
- Consequently the obligation on the RC to discharge under section 23;
- The test at section 20(4)(d) of the availability of appropriate medical treatment on renewal of section;
- The test at section 72(b)(iia) of the availability of appropriate medical treatment for an unrestricted patient (other than under section 2) e.g. section 3, section 37 etc.; and
- The test under section 73(1)(a) of the availability of appropriate medical treatment for a restricted patient e.g. section 37/41.