Mental health law briefing 194 – Appropriate unit and appropriate treatment?
Since the introduction of the appropriate treatment test by the amendments made in 2007 to the Mental Health Act, there have not been many cases that have significantly turned on the application of that new appropriate treatment test. However, a recent case has suggested how the test might apply in at least one situation where this may be relevant.
DD sought permission under Section 139 of the Mental Health Act 1983, for permission to bring proceedings against the Local Authority for the failure of two AMHPs to discharge their duties under the Act. DD had been convicted of assault and sentenced to prison. Whilst there, he attacked a visiting psychiatrist and an AMHP applied for his detention under Section 2, in a facility called the Hutton Unit. DD was duly admitted there and at the end of the 28 day Section 2 assessment period, a different AMHP undertook a further assessment and applied for DD’s detention there under Section 3.
DD was unhappy with the Hutton Unit and brought a claim alleging that the regime there was not suitable for him, given his mental condition, and that this was thus not appropriate treatment.
DD alleged that the two AMHPs owed a duty to him (for which the Local Authority was responsible), to consider, when assessing him, not only whether he should be detained but also the suitability of the hospital at which that detention was to take place. He alleged that the failure to do so breached his rights under Articles 3 and 8 of the Human Rights Act 1988.
The Court allowed the claim to proceed. It was held that the scope of the duty of an AMHP was a question of some importance and although, on a permission hearing, the detail of this could not be properly tested, the threshold required to meet Section 139 was low. Accordingly, it was at least arguable, based on previous case law, that there was a duty of the kind suggested by DD, namely that an AMHP had a duty to satisfy himself that it was appropriate for the patient to be detained and that the AMHP should apply his independent judgment to bear on the question of which hospital and regime of care would be appropriate for the patient.
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Mental Capacity Act
The latest CQC Report on the Deprivation of Liberty Safeguards suggests there is still widespread lack of understanding of the Mental Capacity Act. This is something that CQC look at closely, and if you would like training for your staff, RadcliffesLeBrasseur can come to your unit to provide this.
This briefing is for guidance purposes only. RadcliffesLeBrasseur accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.