Jenny Oxton ILEX Peter Edwards Law – Head of MHT department
Risk is often one of the most contentious points during the sectioning process or at a Tribunal / managers hearing. So what is meant by ‘risk’ in respect of the statutory criteria?
In order to establish whether a person is properly detained under the MHA or subject to a CTO, the burden of proof, which is to the civil standard (balance of probabilities), is on the Responsible/Detaining Authority (RA) (as determined in R (on the application of N) v Mental Health Review Tribunal (Northern Region)(2005)) that is, that “it is necessary they are detained for their own health OR safety OR the protection of others” (any one of these or combination of them). When considering if a person is properly placed under a Guardianship Order under MHA the burden of proof is on the RA that it is “in the interests of the welfare of the patient, or for the protection of other persons”. When considering if a person is properly detained or subject to a CTO following an application by a Nearest Relative, the burden of proof is on the RA that the person, “if not detained, would act in a manner dangerous to other persons or themselves”.
This differs in an application from a Conditionally Discharge patient applying for an Absolute Discharge. The guidance for that is that the burden of proof is then on the patient, and risk is considered as outlined in R (on the application of SC) v Mental Health Review Tribunal and the Secretary of State (2005) when considering the application of a CD patient for AD, The Tribunal:
“will need to consider such matters as the nature, gravity and circumstances of the patients offence, the nature and gravity of his mental disorder, past, present and future, the risk and likelihood of the patient reoffending, the degree of harm to which the public may be exposed to if he reoffends, the risk and likelihood of a reoccurrence or exacerbation of any mental disorder, and the risk and likelihood of if his needing to be recalled in the future for any further treatment in hospital. The Tribunal will also need to consider the nature of any conditions previously imposed, whether by the Tribunal or the Secretary of State … the reasons why they were imposed and the extent to which it is desirable to continue, vary or add to them”.
In order to fully understand the meaning of each part of the criteria we need to look at the definitions of the same, which have been determined by case law.
Reid v Secretary of State for Scotland (1999) Lord Clyde said that the test is “one of necessity, not desirability”. Therefore without detention the risks would be present (and unacceptable).
DL-H v Devon Partnership Trust (2010) UKUT Judge Jacobs stated:
‘the legislation authorises detention by reference to the twin requirements of treatment and protection, moderated by the word ‘necessary’. That is a demanding test and provides ample protection for the patient without the need for any additional consideration of proportionality”.
Health – this applies to the patient’s mental and physical health.
Examples – deterioration or relapse of Mental Disorder, Self neglect, inability to manage physical health condition.
R v London and South West Region Mental Health Review Tribunal Ex p. Moyle (1999) Latham said:
“The correct analysis, in my judgement, is that the nature of the illness of a patient such as the applicant is that it is an illness which will relapse in the absence of medication. The question that then has to be asked is whether the nature of that illness is such as to make it appropriate for him to be liable to be detained in hospital for medical treatment. Whether it is appropriate or not will depend upon assessment of the probability that he will relapse in the near future if he were free in the community”.
CM v Derbyshire Healthcare NHS Foundation Trust (2011) UKUT emphasised the above point. It also states that detention is not lawful if its sole purpose is to address a patient’s drug taking and chaotic lifestyle.
R (on the application of H) v Mental Health Review Tribunal, North and North East Region (2001) considers detention of an asymptomatic patient, and thus has implications in terms of risk (relapse):
“The appropriate response should depend upon the result of weighing the interests of the patient against those of the public having regard to the particular facts. Continued detention can be justified if, but only if, it is a proportionate response having regard to the risks that would be involved in discharge”.
Smirek v Williams (2000) it can be appropriate for a patient to be liable to be detained in a hospital if the evidence is that, without being detained in hospital, the patient will not take the medication that is required to prevent a deterioration of a chronic mental illness.
Safety – this applies to whether the patient would be exposed to the risk of being harmed, either by their own acts or admissions or through the acts or omissions of others. Examples – deliberate self-harm or suicide, vulnerability to exploitation or retaliation from others due to presentation as a result of mental disorder.
Protection of Others – the risk or physical or emotional harm to others from the patient. Examples – patient assaulting/causing physical harm to others, causing harm by risk behaviour as a result of mental disorder.
R v North West London Mental Health Trust Ex p Stewart (1996) Harrison J said:
“The protection of ‘other persons’ does not necessarily mean the public at large because it could simply relate to an individual person or persons rather than the to the public at large, nor is there a requirement that such persons should be protected from ‘serious harm’”.
R (on the application of the Secretary of State for Home Department) v Mental Health Review Tribunal (2002) Lord Phillips stated:
“In determining whether it is appropriate to detain a patient in hospital, the interests of the patient have to be weighed against those of the public, and the Tribunal has to determine whether the detention is proportional to the risks involved. If it is not satisfied that it is a proportional response to those risks to detain the patient, the he must discharge”.
The risk must be as a result of the patients mental disorder.
R (on the application of LI) v Mental Health Review Tribunal (2004) states that the fact the patient could pose a risk to the public for reasons unconnected with his mental illness is not relevant to the Tribunals decision.
Welfare – covers all factors that may affect the wellbeing of the patient (what is applicable to health and safety could be argued to be applicable to welfare).
Re; Whitbread (1999) it was concluded that the dangerousness test was satisfied in a case where there was a “very high probability that lasting psychological harm could be caused to others if the barring order were to be lifted “. This was in relation to a Managers decision, but could be applied to the Tribunal, and would also be arguable if it would apply to serious physical harm to others, or serious physical or psychological harm to the patient, including where caused by neglect.
We now know what has to be proved to the Tribunal in order to evidence and challenge the risk aspect of the legal criteria, so how is that addressed:
As stated above the burden of proof is on the Responsible Authority to provide evidence that the patient could present as a risk. This would be done by preparation of reports detailing the same and oral evidence given to the Tribunal.
How risk is challenged
In any Tribunal preparation is important – it is unwise to ask a question you do not already know the answer to as this can have a negative impact on your case. It is therefore important before the Tribunal to have detailed instructions from your client, and to have checked any background information/medical or criminal records/past and current risk assessment/any other relevant documentations. It is important to understand circumstances and nature of risk incidents.
When representing patients at the MHT risk is challenged by seeking to establish that the legal criteria is not met, applying the relevant criteria and case law as appropriate.
You would question what the RA feel the risks are, could or would be, why the RA feel that these risks are a result of the patients mental disorder, and whether they are current risks or based on past history.
You would question what evidence is there that these risks exist – i.e. exactly what has the patient done or said that proves that there is a risk (for example, you often get references in reports to inappropriate comments or disinhibited behaviour – exactly what is this and what makes it a risk behaviour? Or it is said that there is a risk to others because the patient makes threats to harm others – have they ever acted on these? Is there therefore a likelihood of physical harm?).
What evidence do the RA have that the risk is a valid one.
R (DJ) v MHRT; R (AN) v MHRT (2005) give guidance for hearsay evidence. It is often the case that past history will refer to ‘hearsay’ evidence. The Tribunal should not simply accept hearsay evidence, or at least give very little onus to it.
If it is a past risk you would seek to put forward, on your clients behalf, whether it can be said that risk has been reduced. You would challenge what the evidence is that this would become a risk in the future, and the likelihood of the same. You would question what treatment has been given to ameliorate that risk and what the outcome of that treatment was. You would question whether the circumstances or condition of the patient has now changed to the point that risk has now been sufficiently reduced.
A patient’s insight (along with their compliance and engagement) is often key to risk, so you would seek to establish what that was – and how that might impact on risk. Also what coping strategies or protective factors a patient may have.
If the risks are current you could question whether it is possible that the patients current detention is having an impact on risk. It can be that certain risks are not present in the community that are present in hospital.
You could question whether any conditions could be applied to discharge (either CTO or conditional – or potentially Guardianship Order or even DOLS) which would be sufficient to manage the risks. Chapter 1 of the Code of Practice to the MHA sets out the guiding principles of the MHA and that includes the Least restrictive option and maximising independence – is there a less restrictive alternative.
So once all the arguments are put forward, how does the Tribunal considers risk?
The Tribunal must listen to arguments from the RA and patient, and must be satisfied detention is necessary on the basis of the risks.
R (on the application of Munday) v Secretary of State for the Home Department (2009) Burnett J Said:
“although psychiatrists or other medical health professionals or social supervisors with their knowledge of a person might be in a position to express a view about risk, it is by its nature an exercise of evaluation which does not necessarily call for expert medical input”
R (on the application of N) v MHRT (2002) Gibbs J stated:
“It is submitted that there was a requirement on the Tribunal itself to quantify the risk in the face of Dr Gravett’s inability at this stage, to do so. I accept … that there may arise a stage at which the Tribunal must reasonably be required to quantify risk. It depends on context. If it is clear that all available evidence was there for it to consider but that the tribunal simply walked away from its responsibility and sat on the fence, then there would be justice in the criticism. I acknowledge also that where the medical evidence before it does not enable it to quantify the risk there must come, or may come, a point where continuous deferment of quantification is unreasonable … Here the context is one in which Dr Gravett is, in my judgment, clearly expressing the view that there is a substantial and unacceptable, if unquantifiable risk. There is a project for the treatment of the (patient), partially completed, one of the purposes of which is to define that risk more closely. There is, in my judgment, nothing wrong in principle in the psychiatrist, pending the outcome of that process, defining the possible range of risk widely. Nor, in my judgment, is there anything wrong in principle with the Tribunal accepting the psychiatrist’s view. It is, in my judgment, unreasonable in that context to say that the Tribunal should attempt the impossible and reach some kind of assessment of risk which would be in danger of amounting to purely arbitrary speculation”.
R (on the application of W) v Mental Health Review Tribunal (2004) when considering an application by the patient the Tribunal can take into account the ‘dangerousness’ criteria in respect of a nearest relative application consider for the purposes of using in discretionary power of discharge.
The Tribunal will then make a ruling on whether they feel that the risks are present or would be present if a person were to be discharged, and therefore whether it remains necessary for them to be detained.