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Appropriate Treatment Test: How effective has this been in practice? (3 May 2010)

The Mental Health Act 1983 included a provision in section 3(2) (b) that ‘treatment must be likely to alleviate or prevent a deterioration of his condition’. This provision was repealed when the Mental Health Act was amended in 2007 and was replaced with the appropriate medical treatment test contained in section 3(2)(d) which states that in order to detain someone for the purpose of treatment ‘appropriate medical treatment is to be available for him’. Some have argued that the new test is not largely different from the old test. Others argue that the new test is now more widely applicable whilst critics argue that the new test is so imprecise that it lends itself open to misuse by professionals. The key issue is whether there is in fact any difference between the tests and whether this new test is beneficial to mental health patients.

Under the 1983 Act, the treatability test applied when professionals were seeking to detain patients under section 3 of the Act if they were suffering from mental impairment or psychopathic disorder as defined under section 1. This also applied to the decision to renew the section and to discharge from section. For those patients suffering from mental illness or severe mental impairment the treatability test only applied when their section was to be renewed or for the consideration of the mental health tribunal under section 72(1) (b).

In practical terms it meant that patients could only be detained in hospital if the treatment they were to be provided with would be likely to have some form of therapeutic benefit by alleviating or preventing a deterioration of their condition. If it could not be foreseen that it would have this likely effect then the patient could not be detained. This presented difficulties for psychiatrists as it is not always possible to predict whether treatment will be likely to have an effect as all patients are different and experience their illnesses in their own unique manner. It has been argued that this was in fact a positive thing about the old test as it provided reassurance that no one would be detained and given treatment against their will unless the treatment would be likely to provide them with a health benefit. Indeed Lord Elton when introducing the original 1983 Bill said that the key thing from this bill is the requirement that ‘people should not be admitted to detention for treatment in hospital if their condition is not treatable’ therefore providing a safeguard for patients who would otherwise be detained and not receive any beneficial treatment. On the other hand critics of the old test have argued that the test was faulty as it meant that many patients were excluded from being provided with treatment in particular those with personality disorders for whom there did not appear to be any likely treatment.

The new test seeks to address this key problem by broadening the scope of applicability. Although appropriate medical treatment is not specifically defined in section 3, section 145(4) states that the medical treatment must have as its purpose to alleviate or prevent the worsening of the disorder, symptoms or manifestations. This is different to the treatability test which required the treatment to be likely to have an effect whereas now it must only be the purpose of the treatment. The application is further broadened by section 145(1) where treatment is defined as including nursing, psychological intervention and specialist mental health habilitation, rehabilitation and care. As stated in R (on the application of Munjaz v Mersey Care NHS Trust by Lord Hope, treatment includes anything ranging from a cure to containment. Further in Reid v Secretary of State for Scotland it was stated that treatment is sufficient if it alleviates or prevents a deterioration of the symptoms alone; treatment does not need to have any affect on the mental disorder itself. In this case anger management was seen as sufficient treatment for a psychopathic pattient as evidence showed that this treatment did help to alleviate the symptoms of his disorder. This indicates that it is now sufficient for medical treatment to only treat symptoms which could be perceived as risk behaviour rather than treating the illness itself which lends weight to the argument that under the new test treatment is simply a way of containing someone to control their risk behaviour.

This broad application can be viewed as a positive and negative step. On a positive note section 3(4) requires the treatment to be considered in context by also considering the nature and degree of the mental disorder and all other circumstances; this ensures a patient focused approach and is the ‘appropriate’ part of the test. Furthermore the abolition of the categories of mental disorders from section 1 of the Act means that the test applies to all patients regardless of their diagnosis. By allowing a borad definition of treatment it means that treatment such as psychology, which under the old test may not have been likely to have an effect, can now be considered as treatment for those with personality disorders. Indeed the Code of Practice paragraph 6.16 states that sometimes ‘treatment can be appropriate even if it is just nursing and specialist day care under the supervision of a responsible clinician in a safe and therapeutic environment’ and further at paragraph 35.11: ‘people with personality disorders may take time to engage and develop motivation but they can have other treatment such as nursing and specialist care to manage their risks which can be consider appropriate medical treatment’; under the treatability test this would not have been permitted.

Critics of the broad nature of the new test argue that the new definition is vague and as such provides professionals with too much discretion in deciding when to use their powers. It is arguably now very difficult to decide not to detain someone as according to the Code of Practice paragraph 6.6: ‘even if particular mental disorders are likely to persist or get worse despite treatment there may well be a range of interventions which would represent appropriate medical treatment. Never assume that disorders are untreatable.’ This means that the majority of patients will be seen to be suitable for inpatient treatment even though no effect is likely to be achieved. See Code of Practice paragraph 6.4. Critics have stated that this is merely a preventative measure without medical benefit and Lord Carlise has argued that treatment must have some effect beyond stopping reoffending. The recent case of MD v Nottinghamshire Health Care NHS Trust reiterated this idea that the new test is very broad and at paragraph 14 states that ‘treatment is not defined according to its affect.’ This case highlighted the importance of the need to assess both aspects of the test i.e. that treatment must be available and appropriate considering all the circumstances. They accepted that a situation may arise where treatment may be available but not appropriate or vice versa and that this must be borne in mind at all times.

The problem for some is that if treatment is not supposed to have any benefit to the patient then why enforce it on them. It is criticised as a way of preventing people from offending or harming others without actually helping them and allows people who could cope in the community to be brought into the system for no real reason. Arguably the test is unethical as it can be seen as merely a form of preventative detention keeping someone in hospital merely to control the risks they may pose and not really to give them any beneficial treatment. On the other hand many people do reap benefits from the other treatments on offer such as nursing and professional care by learning how to cope with their illness and the effects it has on their daily lives. The new test allows treatment whose purpose is to alleviate some as