Case digest

Section 63, The Mental Health Act 1983 authorises a patient to be treated for any mental disorder from which he was suffering
R (on the application of B) v Ashworth Hospital Authority
[2005] UKHL 20 HL 17/3/2005

The patient had been convicted of manslaughter and detained under a hospital order with a restriction order of indefinite duration under the Mental Health Act 1983. He was classified as suffering from schizophrenia and admitted into hospital. Eventually, having concluded that the patient’s mental illness was being successfully controlled by medication, the hospital transferred him to a ward to address traits of personality disorder. He was not reclassified to show both mental illness and psychopathic disorder. The patient did not like the new regime and argued that he should not have been transferred to a ward for patients with psychopathic disorder and so commenced judicial review proceedings seeking an order to quash the decision to place him on the ward, a declaration that the placement was unlawful, and a declaration that his treatment for personality-disordered behaviour was unlawful.

The main issue was whether a patient detained for treatment under the 1983 Act could be treated under s.63 against his will, for any mental disorder from which he was suffering or only for the particular form of mental disorder from which he was classified as suffering, for which he was detained.

HELD:

The Act’s definition of mental disorder encompassed not only each of the four specific forms of disorder (mental illness, severe mental impairment, psychopathic disorder or mental impairment), which might be relevant under the Act, but the broader concepts of ‘arrested or incomplete development of mind’ and ‘any other disorder or disability of the mind’. Section 63 of the 1983 Act provides: “63. The consent of a patient shall not be required for any medical treatment given to him for the mental disorder from which he is suffering, not being treatment falling within section 57 or 58 above, if the treatment is given by or under the direction of the responsible medical officer.”

The natural and ordinary meaning of the words of s.63 are that the patient may be treated without consent for any mental disorder from which he was suffering and any ancillary treatment. If it had been intended to limit s.63 to treatment for the specific form of mental disorder under which the patient was detained, then the section would have read “for the form of mental disorder from which he is suffering”.

S.63 has wide application and it would be surprising if the same words had different meanings depending on which part of the Act the patient was detained under. Statutory history indicates that classification and reclassification relates to the criteria for admission and continued liability for detention, rather than for treatment. Additionally, as a restricted patient can only be reclassified after a Mental Health Review Tribunal hearing, it reinforces the conclusion that classification has no bearing on treatment. The time taken to gather the necessary reports and evidence and to arrange a hearing could be considerable and it was unlikely that parliament intended that the patient could not be treated without his consent in the meantime, particularly as the patient might find ways of delaying the tribunal hearing.

Psychiatry is not an exact science and it is not easy to disentangle which features of a patient’s presentation stem from the mental disorder and which stem from his underlying personality traits. The psychiatrist’s aim was to treat the whole patient. The patient’s mental illness had been stabilised with medication, and the aim was to address the underlying features of his personality, which were getting in the way of his transfer back to a less restrictive setting.

Once the state had taken away a person’s liberty and detained him in a hospital with the view to medical treatment, the state should be able to provide him with the treatment he needed. As such, s.63 authorises a patient to be treated for any mental disorder from which he suffers, irrespective of whether this fell within the form of disorder from which he was classified as suffering justifying his detention.

Needs and resources for services under s.2 Chronically Sick and Disabled Person’s Act 1970
R (on the application of S) (by his litigation friend) v Wandsworth London Borough Council (2005)
[2005] EWCA Civ 302 The Times, April 5, 2005

Although this is a case that deals with the relationship between the Children Act 1989 and the Chronically Sick and Disabled Act 1970 Act (the 1970 Act), it is relevant to adult services. This case raised questions about the duties that arise under s2 of the 1970 Act and the relevance of resources in the duty to meet assessed needs.

Mrs Spinks brought the case as litigation friend on behalf of her two severely disabled sons. One was aged 13 and the other 17. Mr and Mrs Spinks looked after the boys at home with the help of carers. The home needed alterations to enable the boys to be cared for safely. The parents argued that the local authority was under a statutory duty to provide and pay for the alterations. The local authority contended that whether it owed a duty depended on whether the parents could reasonably be expected to pay for the alterations themselves. The local authority had asked the parents to provide details of their means, which they refused to do, and commenced judicial review proceedings to determine whether the local authority was entitled to take their means into account when deciding whether or not to pay for the alterations. The local authority submitted that if it paid for the alterations it would have a statutory right to recover from the parents all or part of the costs incurred. The High Court judge held that the local authority could do so and Mrs Spinks appealed.

HELD:

Where a local authority provided services in accordance with obligations imposed by s.2 of the 1970 Act by exercising functions under s.17 of the Children Act 1989, the provision of those services was subject to such rights to charge as were conferred by s.29 (recoupment of the cost of providing services) of the 1989 Act. The right to charge Mr and Mrs Spinks could only arise in respect of the son who was under the age of 16.
R v Gloucestershire CC ex p Barry (1997) 2 WLR 446 was applied in that the local authority could have regard to its own resources when assessing whether there were needs of a disabled person that it was necessary to meet. As a general proposition, a local authority could reasonably expect that parents, who could afford the expense, would make any alterations to their home that were necessary for the care of their disabled children, if there was no alternative source of providing them. It was also reasonable to anticipate that some parents with means would not do so if they believed that would result in the local authority making the alterations for them. Having regard to those considerations, the judge was right to hold that a local authority could properly decline to be satisfied that it was ‘necessary’ to provide services to meet the needs of disabled children until it had been demonstrated that, having regard to their means, it was not reasonable to expect their parents to provide them. The court refused to answer the question of what action a local authority might be obliged to take if the parents did not meet those needs. The case confirms yet again that the person’s resources are relevant after needs have been assessed and not beforehand. Resources are relevant as to whether it is necessary for the local authority to make arrangements.

Case digest compiled by Caroline Bielanska TEP, solicitor and independent consultant. E-mail caroline.bielanska@ntlworld.com