Judge: Upper Tribunal (AAC) (Upper Tribunal Judge Church)
Citation:  UKUT 69 (AAC)
Whilst detained under MHA s.3 with schizoaffective disorder, PM commenced long-acting depot anti-psychotic medication (Aripiprazole at a dose of 300mgs, to be administered monthly). She received two doses, the first on 17 May 2019 and the second on 21 June 2019, with the plan that she should continue on the depot on the third Friday of each month. On 5 July 2019 she was discharged onto a community treatment order (‘CTO’) and, to continue the treatment, a second opinion appointed doctor (‘SOAD’) was required to certify it as appropriate within 3 months of it first being administered; that is, 17 August 2019. The request for a SOAD was made on 15 July 2019 but, owing to a SOAD backlog, such certification would not be made within the statutory deadline.
The tribunal hearing took place on 15 August 2019 where the patient argued that appropriate medical treatment was not available because the depot would be unlawful in two days’ time and that, accordingly, PM should be discharged from the CTO. This was rejected by the tribunal which upheld the CTO and this decision was appealed to the Upper Tribunal. The main issue was “whether the lawfulness of administering medication to a Part 4A patient is relevant to a tribunal’s assessment of whether the medical treatment proposed by the responsible authority was appropriate and available, or whether such a consideration, like consent, is something that comes into play only at the later stage of deciding whether to give the treatment” (paragraph 9.4).
At first instance, the tribunal had held that the lack of a SOAD opinion was not relevant to appropriateness of medical treatment. The Upper Tribunal held that the SOAD’s opinion “may, but will not always, be relevant to the issue of appropriateness” and it depends on the facts (paragraph 9.10). If, for example, a SOAD refused to certify, that would likely be evidence for the tribunal to consider when determining appropriateness.
In the absence of precedent as to the meaning of ‘available’, the judge considered the following dictionary definition to be the most suitable in the context of the MHA: “capable of being employed with advantage or turned to account; hence, capable of being made use of, at one’s disposal, within one’s reach.” So, having determined that treatment is clinically appropriate, a tribunal must also be satisfied “that the treatment proposed is one that can be provided should consent be forthcoming”.
The fact that, at the precise moment of the tribunal, SOAD approval was not necessary for another 2 days was not fatal to the argument: the tribunal should not use a ‘snapshot’ approach but instead look at the whole course of treatment, past, present and future (paragraphs 10.13–10.15). In conclusion:
Accordingly, the tribunal erred in law but, as PM had already been discharged from the CTO before the Upper Tribunal’s decision, the first instance decision need not be set aside.
This is a significant decision in the context of the MHA. Appropriate medical treatment is not available if it requires SOAD-certification and has not been so certified. This of course does not mean that a patient would be denied treatment they require as, for example, there may still be a nurse available to administer the depot. But what it does mean is that the patient would not be on the CTO to receive it. The Coronavirus Act 2020 provides a means to not require SOAD certification if getting a second opinion would be impractical or involve undesirable delay. However, that amendment has not yet been implemented.
The linking of legal impediments with the concept of availability may be relevant in relation to other aspects of the MHA. The appropriate medical treatment being available requirement is present in many other aspects of the MHA, so the linking of legal impediments with the concept of availability may have a broader application. The Code already states that “medical treatment must actually be available to the patient. It is not sufficient that appropriate treatment could theoretically be provided” (paragraph 23.14). Introducing the legality of such treatment into the equation, at least insofar as non-compliance with the treatment safeguards are concerned, may therefore give rise to further legal arguments in this area.