Legal Updates

In SW London and St George's Mental Health NHS Trust v 'W', the high court was asked to consider whether a prisoner with a 'psychopathic' personality disorder was treatable so that he could be detained under the Mental Health Act 1983 ("MHA").

W was days away from completing a prison sentence for violent offences and due for release. All the doctors he had seen felt he had a high risk of reoffending, but that any treatment of his core disorder was unlikely to have any positive benefit for him, and therefore he did not come within the definition for detention and treatment under the MHA, and could not be transferred to hospital.

However, doctors decided to recommend his transfer to hospital in any event on the basis that a "staged discharge" would assist him. In essence, he would not be released into the community immediately, but would gradually be reintroduced to independent living over a period of time. The hospital was concerned as to whether this would constitute "medical treatment" under the terms of the MHA, and sought a declaration from the court to clarify the issue.

At the time of the hearing W had been detained in hospital for about six weeks. The "staged discharge" plan had broken down because of W's lack of co-operation and, although there was some prospect of him benefiting from treatment in the future, nothing was currently in place.

Mr Justice Crane decided that as the "staged discharge" plan also contained medical supervision and nursing care then it was possible to constitute medical treatment even if no treatment of the core disorder was possible. In addition, the judge held that even though the staged discharge plan had broken down, W's detention had not become unlawful if there was a prospect of treatment on the horizon (although this had to be kept under careful review).

Comment: The new Mental Health Bill has provision for those with personality disorders, who are dangerous, to be detained even if they will not benefit from medical treatment.

This case is important as it confirms that, even without the new bill, the benefit to a person of medical treatment (currently required by the MHA) can be of an extremely limited kind. There is a strong argument that, in fact, W was (and is) subject to preventive detention to keep him away from the general public, and the case will be heard soon by the court of appeal.

Approved social workers and others, in the meantime, need to be aware of the potential scope of the term "medical treatment" in the MHA, and may want to seek legal advice (as the NHS trust did in this case) before deciding whether a person is "treatable" or not.

Stephen Cragg
Doughty Street Chambers