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Online forum | Latest topic on forum: Powers of Tribunal to discharge to lower security

Section 3: admission for treatment

Section 3 is the long-term civil section.

Admission

An AMHP (or, in theory, the NR) makes an application for admission, based on the recommendations of two medical practitioners. The initial period for which detention is authorised is six months, but it can be renewed by the RC (in conjunction with another professional) for a further six months, then for further periods of 12 months.

The criteria for admission are set out in s3(2):

(a) he is suffering from mental disorder of a nature or degree which makes it appropriate for him to receive medical treatment in a hospital; and

(b) [repealed]

(c) it is necessary for the health or safety of the patient or for the protection of other persons that he should receive such treatment and it cannot be provided unless he is detained under this section; and

(d) appropriate medical treatment is available for him.

Some of the same procedures apply as for s2: the need for two medical recommendations, and the approval requirements; the AMHP interview; conveyance within 14 days of the lats medical examination; five clear days between examinations; applicant to have personally seen patient within 14 days of application. See Section 2: admission for assessment.

The nearest relative involvement at this initial stage is different. Instead of just informing the NR, the AMHP must consult the person (if any) appearing to be the nearest relative before making the application - unless "such consultation is not reasonably practicable or would involve unreasonable delay" - and the s3 cannot go ahead if the NR objects (s11(4)). An objection perceived to be unreasonable could lead to displacement proceedings under s29.

The difference between the s2 and s3 criteria was considered (but not resolved) in MS v North East London Foundation Trust [2013] UKUT 92 (AAC)M. The judge stated that ‘[the criteria for] detention for assessment must, of necessity, be less exacting, since the need for treatment is not then known’. He continued: ‘That is not to say that the conditions for detention under section 2 are not demanding. Just that they are less demanding than for section 3. It would not be appropriate for me to try to define the differences between those sections. The language used is everyday language that merely has to be applied. But it has to be applied in a context that requires detention to be strictly justified.’ In a later case the judge stated that to be compatible with Article 5 ECHR, ss 2, 3 and 72 MHA 1983 have to be applied on the basis that for detention in hospital to be ‘warranted’ it has to be ‘necessary’ in the sense that the objective set out in the relevant statutory test cannot be achieved by less restrictive measures (AM v SLAM NHS Foundation Trust [2013] UKUT 365 (AAC)M).

The question of whether a patient ought to be detained under s2 or s3 is addressed in the Code of Practice, chapter 14.

The patient is subject to the Part 4 ‘Consent to Treatment’ provisions (see chapter 2).

Renewal

All long-term unrestricted sections, including section 3, need to be renewed periodically. The section initially authorises detention for up to six months; it is then renewed for a further six months, then for a further 12-month period at a time.

The section is renewed as soon as the RC makes the decision under s20, having followed the statutory procedure (including examining the patient within two months of the section ending and consulting another professional from a separate profession), although the hospital managers will review his decision. The new period of detention begins the day after the six-month (or 12-month) period expires.

See s20 for the renewal criteria and procedure, and also Code of Practice chapter 32. In relation to the second professional’s opinion, paragraph 32.9 states:

Unless there are exceptional circumstances, the decision of the identified second professional should be accepted, even if the responsible clinician does not agree with it, and documented in the patient’s notes including the reasons for the disagreement. If, in exceptional circumstances, it is decided that the agreement of a different second professional should be sought, this should be fully documented and the decision should be drawn to the attention of the hospital managers if, as a result, a renewal report is made.

The renewal papers should be checked for information and for lawfulness (e.g. whether the patient was examined during the two-month period).

Discharge

Routes to discharge
  • Mental Health Tribunal
  • Hospital managers’ hearing
  • Responsible Clinician
  • Nearest relative: subject to ‘dangerousness’ considerations (and if the NR is barred from discharging then he may apply to the MHT)
Tribunal eligibility
  • One application during first six-month period; once during subsequent six-month period; once during each annual period thereafter
  • Nearest relative: can apply following barring certificate
Types of discharge
  • Immediate, unconditional discharge
  • Delayed to future date (by Tribunal)
  • The patient may remain in hospital informally after being discharged from the MHA 1983
  • Community Treatment Order (by RC)
References
  • Discretionary reference by Secretary of State for Health and Social Care
  • Six-month reference by hospital managers
  • Three-year reference by hospital managers (one year if under 18)

When advising on timing of applications, bear in mind:

  • The relevant Tribunals Service target was for hearings to be listed within 8 weeks of receipt of the application (a hearing within 6 weeks is quite common).
  • It may be wise, particularly near the beginning of 12-month periods, to delay the application.
  • A withdrawn application is treated as never having been made (s77(2)).

The criteria for the Tribunal’s consideration are set out in s72(1)(b), and state that the Tribunal must discharge ‘if it is not satisfied’:

(i) that he is then suffering from mental disorder or from mental disorder of a nature or degree which makes it appropriate for him to be liable to be detained in a hospital for medical treatment; or
(ii) that it is necessary for the health or safety of the patient or for the protection of other persons that he should receive such treatment
(iia) that appropriate medical treatment is available for him.

For detention to continue, the tribunal must be satisfied of all three criteria. There is a further consideration relevant to learning disability cases which is set out below.

When a patient is discharged from s3 by the Tribunal it is a complete discharge, so that he is not subject to any liability to be recalled or subject to any conditions. Only the Responsible Clinician (with the agreement of an AMHP) can place the patient on a Community Treatment Order.

As with s2, the Tribunal also has a discretion to discharge in any event, leaving aside the criteria.

Nature or degree

The Code of Practice at paragraph 14.6 states 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 the disorder. Degree refers to the current manifestations of the patient’s disorder.

For instance, the disorder could just be of a ‘degree’ if the patient is currently unwell during his first presentation, or it could just be of a ‘nature’ where a patient with a long-standing disorder is currently asymptomatic.

In CM v Derbyshire Healthcare NHS Foundation Trust [2011] UKUT 129 (AAC)M [12] the Upper Tribunal restated previous authority as follows:

If the nature of a patient’s illness is such that it will relapse in the absence of medication, then whether the nature is such as to make it appropriate for him to be liable to be detained in hospital for medical treatment depends on an assessment of the probability that he will relapse in the near future if he were free in the community and on whether the evidence is that without being detained in hospital he will not take the medication.

This quotation must now be read in the context of the decision in LW v Cornwall Partnership NHS Trust [2018] UKUT 408 (AAC)M, which was a case primarily about “nature” in the context of discharge from a CTO. Having considered the statutory framework of CTOs and the legislative purposes behind them the Upper Tribunal concluded, primarily on that basis, that in cases where there is a risk of a relapse which might necessitate recall, how soon that such a relapse is likely to occur is a relevant consideration. However, other factors, including the risk to the patient and/or others if a relapse were to occur, may also be relevant, and there is no requirement for likely relapse to be “soon”, “in the near future” or within the permitted duration of a CTO. Addressing the claimants' arguments on the analogy between detention and CTO cases, the judge stated that while there are some parallels between the s3 regime and CTOs they are not such that the same principles necessarily apply to both, and (to the extent necessary to reach a view on the detention cases) neither of the previous judgments cited in the CM case provided an authoritative basis for the view that imminence of relapse is the only factor or need be in the near future.

The correct approach to a patient on “long leash” s17 leave will be added to the page about leave of absence [to do].

Learning disability exclusion

The disorder must be a mental disorder as defined in s1. For instance, if it is solely learning disability but not ‘associated with abnormally aggressive or seriously irresponsible conduct’ then it does not count as a disorder for the purposes of s3. This ‘learning disability exclusion’ does not apply to s2 (and in some other circumstances).

Appropriate treatment

The repealed sub-paragraph (b) above was the treatability test. This applied only to the previous psychopathic disorder and mental impairment classifications (not mental illness or serious mental impairment), which no longer exist. It required that ‘such treatment is likely to alleviate or prevent a deterioration of his condition’. It had to be considered by the Tribunal when considering discharge (Reid v Secretary of State for Scotland [1998] UKHL 43M).

It usually was relevant for criminal patients, as people only tended to be detained for psychopathic disorder after committing crimes.

It was removed, from 3/11/08, by the Mental Health Act 2007, which at the same time introduced sub-paragraph (d) as a replacement; with the removal of the classifications, the new test applies to mental disorder generally.

‘Appropriate medical treatment’ is further defined in s3(4) as:

medical treatment which is appropriate in his case, taking into account the nature and degree of the mental disorder and all other circumstances of his case.

‘Medical treatment’ is defined broadly in s145(1):

‘medical treatment’ includes nursing, psychological intervention and specialist mental health habilitation, rehabilitation and care

A therapeutic-benefit rule, similar to the old treatability test, is introduced by s145(4), which was inserted by the Mental Health Act 2007:

Any reference in this Act to medical treatment, in relation to mental disorder, shall be construed as a reference to medical treatment the purpose of which is to alleviate, or prevent a worsening of, the disorder or one or more of its symptoms or manifestations.

The appropriate treatment test relates only to the treatment that a patient is receiving at the detaining hospital, so in WH v Partnerships in Care [2015] UKUT 695 (AAC)M, [2015] MHLO 132 the tribunal erred in law by considering the test met because appropriate treatment was available elsewhere.

In PM v Midlands Partnership NHS Foundation Trust [2020] UKUT 69 (AAC)M the Upper Tribunal decided that 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.

Given the broad definition of treatment, including the ‘milieu therapy’ of being on a ward, it is hard to imagine a case where the ‘appropriate treatment’ test would not be met (see MD v Nottinghamshire Health Care NHS Trust [2010] UKUT 59 (AAC)M, DL-H v Devon Partnership NHS Trust [2010] UKUT 102 (AAC)M and MD v Mersey Care NHS Trust [2013] UKUT 127 (AAC)M). Refusal to engage is not decisive but is potentially a relevant factor that has to be taken into consideration (DL-H v Partnerships in Care [2013] UKUT 500 (AAC)M).

In MD v Mersey Care NHS Trust [2013] UKUT 127 (AAC)M, [2013] MHLO 32 the Upper Tribunal stated that risk is not necessarily relevant to the issue whether appropriate treatment is available for a patient, but it can be: the treatment that is appropriate for a particular patient is determined by the patient’s medical condition and the risk a patient presents is a consequence or feature of that condition; risk is as relevant to treatment as any other feature of the disorder.

Dangerousness

In some situations where the nearest relative has applied to the tribunal, the more stringent ‘dangerousness’ criterion must be considered by the tribunal. See Nearest relative.

Discretion

In unrestricted cases, while the Tribunal must discharge if the statutory criteria are not met, it ‘may in any case direct that the patient be discharged’ (s72(1)). The Tribunal will only consider exercising this discretion after finding that treatment while detained is justified and warranted (s2 cases) or appropriate and necessary (s3 cases). It rarely does.

Deferred discharge

The Tribunal may defer discharge until a future date, for example when time is needed to finalise after-care arrangements. To avoid confusion, a time of day should be specified.

This should not be confused with ‘deferred conditional discharge’ in restricted cases (where the deferral is not to a specified date, but is until the conditions can be satisfied). The only possibility in restricted cases is to defer until conditions are satisfied. The only possibility in unrestricted cases is to defer to a future date.

There are no statutory criteria for the exercise of this power.

Discharge happens on the date specified, regardless of any intervening events. The tribunal has no power to reconvene.

In a case where the availability of suitable after-care services is a pre-requisite for the discharge criteria to be met, but the Tribunal is in any doubt as to its availability, the Tribunal should adjourn rather than defer discharge to a future date. (R (H) v Ashworth Hospital Authority [2002] EWCA Civ 923M, [68]).

It is lawful to grant a delayed discharge of a patient in the anticipation that he will be made subject to the Deprivation of Liberty Safeguards on the date of discharge (DN v Northumberland Tyne and Wear NHS Foundation Trust [2011] UKUT 327 (AAC)M). By definition, this only applies to patients who lack the capacity to make the relevant decisions.

The tribunal should not defer discharge to “wait and see” how the patient progresses during the deferral period: the criteria for discharge must be met on the day.

In addition, for s3, it should be noted that discharge can be delayed in all cases, even ‘dangerousness’ cases where the nearest relative is applicant (R (B) v MHRT [2003] EWHC 815 (Admin)M).

The Upper Tribunal has (probably wrongly) stated that the date of a deferred discharge cannot exceed the date of the order authorising detention (JMcG v Devon Partnership NHS Trust [2017] UKUT 348 (AAC)M). This was only obiter and seems to have been based on the false premise that a deferred discharge beyond the date on which the authority for the patient’s detention expires would have the effect of extending the period of detention.

Recommendations

In unrestricted cases (s2, s3, s37 etc), where it does not discharge, the Tribunal has a statutory power under s72(3) to:

(a) with a view to facilitating his discharge on a future date, recommend that he be granted leave of absence or transferred to another hospital or into guardianship; and
(b) further consider his case in the event of any such recommendation not being complied with.

The recommendations must be ‘with a view to facilitating his discharge on a future date’, although the Tribunal could make other recommendations on a non-statutory basis, or make comments.

The Tribunal should set a date when they will consider reconvening: at that stage, write to the Tribunal setting out your client’s position. (It is unlikely that the tribunal will reconvene during a section 2 case.)

In addition (except in s2 cases) if the Tribunal thinks that a Community Treatment Order (CTO) ‘might’ be appropriate the tribunal are not required to discharge the patient but (by s72(3A)):

(a) may recommend that the responsible clinician consider whether to make a community treatment order; and
(b) may (but need not) further consider the patient’s case if the responsible clinician does not make an order.

The Tribunal can make a CTO recommendation not only if it considers that the criteria (for release on a CTO) might be satisfied but also in order to trigger consideration of future steps that could be taken to move the patient towards eventual release (RN v Curo Care [2011] UKUT 263 (AAC)M).

In MP v Mersey Care NHS Trust [2011] UKUT 107 (AAC)M the Tribunal granted a discharge, deferred for six weeks, but also invited the care team to consider whether to implement a CTO. A CTO was made during the six-week period. The Upper Tribunal held that where the panel find any of the statutory criteria not met, there is no power under s72(3A) to recommend a CTO (rather, there is a positive duty to discharge) and that the invitation was not worded as a proper recommendation in any event. Therefore the result was that the CTO ended when the deferred discharge took effect (see s17C).

In MS v North East London Foundation Trust [2013] UKUT 92 (AAC)M it was stated that a tribunal’s failure to give reasons for its refusal of a request for a statutory recommendation is an error of law – but it is the sort of error that does not justify setting aside a tribunal’s decision (instead, the tribunal should review its decision and amend its reasons by adding the necessary explanation).

The following comments were made in RB v Nottinghamshire Healthcare NHS Trust [2011] UKUT 73 (AAC)M (which was an unsuccessful challenge to the Tribunal’s decision not to reconvene following non-implementation of a transfer recommendation)

12. The power to make statutory recommendations is discretionary for the tribunal, but it must be exercised, like all a tribunal’s discretions, judicially. And once begun, it must be followed through fairly. It is obviously designed to assist in identifying the best way forward for the patient. But it operates by moral pressure and moral authority, not by order. The tribunal must be mindful of that limitation when deciding whether to make a recommendation in the first place. If it does so, it must carry the process through judicially, although the exercise of its powers will be tempered by the reality that it has no power to coerce.

16. I make no criticism of the tribunal’s original decision to make a recommendation. I am sure it was made for the best of reasons and I have no information on the thinking that led to it. The experience of this case may, though, provide a useful lesson for the future. It is surely undesirable to give a patient false hope. The first question is whether to make a recommendation at all. The more obvious the recommendation, the more likely it is that the authority will consider it anyway. So recommendations are likely to be made in those cases where the authority has not considered the possibility or would be unlikely to do so. If the tribunal does make a recommendation, it has to take account of the tenuous nature of its control. This makes it essential to consider very carefully the timescale and the directions that the tribunal might give in order (i) to apply its moral pressure on the authority and (ii) to be fully informed by the time it has to decide whether to reconvene. It may, for example, be appropriate for the tribunal to direct that a progress report be provided shortly before a specified date so that it can decide if there is any practical purpose in reconvening. Finally, the tribunal has to decide whether to reconvene. In making that decision, it has to decide what practical value this would serve. It has no power to enforce the recommendation and is not reconvening for that purpose. It has the power to embarrass the authority into explaining its thinking or, possibly, into compliance. But it has to make a judgment on what it can practically achieve, if anything. That is where the issue of proportionality comes in. It may be that that is what the tribunal had in mind in its reference to proportionality.

It is possible to seek informal, non-statutory recommendations (or even just statements or comments to assist in relation to treatment or care) in unrestricted cases, but this type of recommendation is considered in more detail in the context of restricted cases.

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