SF v Avon & Wiltshire Mental Health Partnership NHS Trust & Anor

For detention for treatment, appropriate medical treatment must be appropriate to the individual patient’s needs and have a therapeutic purpose. Measures intended only to contain physical risk, such as observation, sedation or restraint, do not alone satisfy the requirement. The treatment need not be the best or most comprehensive available, but it cannot be wholly inadequate to the patient’s needs.

Where a tribunal finds that essential treatment is unavailable and that the available treatment is not tailored to the patient’s diagnosis, it cannot nevertheless find that appropriate medical treatment is available under section 72(1)(b)(iia) of the Mental Health Act 1983. The tribunal must direct discharge if any statutory criterion is not satisfied.

RB, who had autism spectrum disorder and complex post-traumatic stress disorder, was detained for treatment under section 3 of the Mental Health Act 1983 on an acute psychiatric ward. Her nearest relative applied to the First-tier Tribunal for discharge, contending that appropriate medical treatment was unavailable. She also sought an adjournment for information about prospective aftercare.

The First-tier Tribunal refused both applications. It found that essential psychosocial treatment was unavailable on the ward and that the treatment provided was not tailored to RB’s diagnosis. It nevertheless held that occupational therapy, art therapy, observation, physical-health monitoring, sedation and discharge planning constituted appropriate medical treatment.

The Upper Tribunal considered whether those findings could satisfy section 72(1)(b)(iia). RB had been discharged by the time of the appeal, but the issue remained material to any future liability to detention.

1. Appeal allowed. The First-tier Tribunal made a material error of law by finding that appropriate medical treatment was available. It should have concluded that the statutory criterion in section 72(1)(b)(iia) of the Mental Health Act 1983 was not met and that discharge was required.

2. The inclusive definition of medical treatment in section 145(1), construed purposively under section 145(4), requires treatment intended to alleviate, or prevent worsening of, the disorder or one of its symptoms or manifestations. Treatment must be assessed by reference to the particular patient’s disorder, symptoms and needs.

3. Observation, monitoring, sedation or restraint may be part of a treatment plan. However, they do not constitute medical treatment merely because they prevent physical harm. They must have the requisite therapeutic purpose. A construction allowing detention solely to contain risk and maintain physical safety would frustrate the treatment-focused statutory scheme and could permit unjustified stasis in detention.

4. The available occupational therapy, art therapy and discharge planning could in principle amount to medical treatment. The First-tier Tribunal, however, made insufficient findings about their therapeutic purpose and their relationship to RB’s particular needs. Its decisive findings were that essential psychosocial work was unavailable and that treatment was not tailored to RB’s diagnosis. Treatment described as essential is not merely ideal or desirable; if it is unavailable, the remaining treatment cannot by itself be appropriate.

5. The Upper Tribunal did not determine the separate adjournment ground. On the findings properly made, the First-tier Tribunal had no option but to order discharge. Although the appeal succeeded, RB had already been discharged. The Upper Tribunal therefore exercised its discretion under section 12(2) of the Tribunals, Courts and Enforcement Act 2007 not to set aside the First-tier Tribunal decision.

• Upper Tribunal (Administrative Appeals Chamber): allowed the appeal from the First-tier Tribunal and identified a material error of law, but did not set aside the decision because RB had already been discharged.
• First-tier Tribunal (Health, Education and Social Care Chamber): on 18 November 2021, case reference MN/2021/14771, refused the nearest relative’s applications for discharge and an adjournment and upheld RB’s detention.
• Permission: the First-tier Tribunal refused permission to appeal on 4 January 2022. The Upper Tribunal subsequently granted permission.