Court considers case of ‘untreatable’ man

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