The purpose of detention in a hospital under the Mental Health Act 1983, is for treatment. That should not be surprising because that is what hospitals are for. But it is not that simple. Why? What’s being treated? What are the objectives?

Mental disorder

I start off from ‘mental disorder’ because absent the existence of a mental disorder, there is no point considering treatment.

[For the avoidance of arbitrary inferences, the converse of any statement made in this post is not be taken as the author’s professional position. See also Fat Disclaimer (click) at the end of this post.]

Lay concepts

Ordinary people – and mental health professionals were once ordinary people – often think that criminals who have committed heinous crimes are ‘obviously sick‘ or ‘deranged‘ and ‘should be put in a mental institution‘. Some people also think that paedophiles should all be locked up in mental hospitals. Those labelled as ‘conspiracy theorists‘ have been called ‘mad‘ and said to be in need of ‘locking up’. I use the words that people often use to hit the issues head on. The latter are the sentiments often seen in tabloid newspapers and in social media circles. They are important because they can shape attitudes – even of professionals – and attitudes can shape beliefs and reasoning.

Professional & Legal concepts

S1 (2)In this Act—“mental disorder” means any disorder or disability of the mind; and “mentally disordered” shall be construed accordingly;

That’s as good as it gets. Suitably trained and qualified professionals, can decide what is ‘the mental disorder’.

Not everybody who has a mental disorder can or should be admitted to a hospital.

It is important to review first the criteria for Section 3 (which is shared with other similar grounds for detention).

S3(2) An application for admission for treatment may be made in respect of a patient on the grounds that—
(a) he is suffering from mental disorder of a nature or degree which makes it appropriate for him to receive medical treatment in a hospital; and
(b) F2 [repealed/deleted by MHA 2007]
(c) it is necessary for the health or safety of the patient or for the protection of other persons that he should receive such treatment and it cannot be provided unless he is detained under this section; and
(d) appropriate medical treatment is available for him.

We assume that the application has been accepted and ‘the patient’ has been admitted or is about to be admitted, in this exploration.  There are key words in the above such as ‘suffering’, ‘nature’, ‘degree’, ‘necessary’, ‘appropriate’ etc – and each of those words has been interpreted in volumes of case law that have passed through the courts. The point here, is that ‘treatment‘ of the mental disorder is subject to a whole lot of things. A true understanding of treatment requires in-depth knowledge of many legal concepts. It is not acceptable for mental health professionals (MHPs) to go, “I’m not a lawyer!” as is often heard. All MHPs are required to update their understanding of the law and apply it appropriately in their practice.

The words it cannot be provided unless he is detained under this section are easily overlooked.  That means in simpler language, that in the process of detention, alternatives to hospitalisation have to be considered very carefully. Hospitalisation for treatment therefore becomes a last and necessary option.

Treatment

Lay concepts

The general public tends to believe that treatment is mainly medication. Some have an idea that it can be about ‘talking therapies’. But images of needles, injections and ‘shock treatment’ live in the minds of many.

Professional & Legal concepts

All MHPs need to know by heart the legal definition of treatment.

S145
(1) “medical treatment” includes nursing, psychological intervention and specialist mental health habilitation, rehabilitation and care (but see also subsection (4) below)”.
..
(4)Any reference in this Act to medical treatment, in relation to mental disorder, shall be construed as a reference to medical treatment the purpose of which is to alleviate, or prevent a worsening of, the disorder or one or more of its symptoms or manifestations.”

Important in the above is that ‘medical treatment’ no longer means treatment by a medical doctor, and medication is not specified. The law changed with the MHA 2007 modifying the MHA 1983. Previously the RMO (registered medical officer) was a registered medical practitioner (with the GMC). After the modifications RMO became ‘Responsible Clinician’ (RC), and RCs could be anybody who was suitably qualified for the role. Yes – nurses, psychologists, occupational therapists, pharmacists etc could become RCs.

Psychiatric treatment with medications probably comes more into S145(4). Re-read it: ..medical treatment the purpose of which is to alleviate, or prevent a worsening of, the disorder or one or more of its symptoms or manifestations.  Symptoms or manifestations are what psychiatrists are involved in managing, with their medications – but S145(4) could also be about psychological treatments as well.

Treating the nature and/or degree of mental disorder

Treating mental disorder is not very similar to treating physical illness. How? The contrasting situations below draw out the differences and difficulties:

1. Diagnoses are what clinicians decide. Not all – probably only a small percentage – know the diagnostic criteria; that’s my experience.
2. Diagnoses change rather quickly in psychiatry. I’ve seen ASD and EUPD cured in a flash by just removing the diagnosis.
3. Contrary to lay beliefs there are no scans or x-rays that clench diagnoses, or tell psychiatrists what’s wrong with the patient.
4. There are no fancy tests to say to what extent a patient is getting better. The issue is decided mainly by improvement in symptoms or patterns of behaviour.
5. Many patients have more than one mental disorder. The inter-relationship of mental disorders creates serious complexity.
6. Patients with physical illness are almost never locked up by ‘sections’ in hospitals for risk to others or the nature/degree of their physical health problems.
7. What differs is that you come into hospital voluntarily for a physical illness in most cases. The treatment you are offered is normally with your consent (with minor exceptions). *You can normally, refuse treatment and discharge yourself with or against medical advice.
8. If you recover from your illness, you are happy to be alive and you’re usually delighted to attend an outpatient clinic for follow up. Not so in psychiatry. If you get discharged especially after being sectioned, you usually do not want pills and follow up.
9. Physical illness is largely about one main aspect of the human being – the physical (obviously). Whilst there may be social and psychological hurdles in physical health care, in psychiatry psychosocial factors both precipitate and perpetuate illness.
10. Patients in mental health services often have poor insight, self-awareness and knowledge of diagnoses (and their symptoms).
11. Compliance with treatment is quite often poor (a statistical fact).
12. In medical practice outside of psychiatry, the doctor is definitely the authority on the treatment. You do not have 10 professionals wrestling with the brain-surgeon’s hands, giving instructions on what to cut or how deep to cut. But in psychiatry, the equivalent of that ridiculous scenario is often what’s happening.
13. In physical medicine, patients who do not get better or are worsening do not just get discharged. The obvious exception is the minority group under palliative care. But even in that domain, doctors do not just throw their arms up and throw the patient out of hospital. But in psychiatric care something of the sort happens with disturbing frequency: a) Patients are transferred to another unit swiftly or b) actually discharged. The latter has come up in evidence from homicide and suicide inquiries that few ordinary people and professionals read.

For the above reasons treating mental disorder(s), is not easy. [*The word ‘you’ above is a generalisation, based on long experience.]

What does it all mean?

This is where cognitive dissonance may set in. This is from S3 .. suffering from mental disorder of a nature or degree which makes it appropriate for him to receive medical treatment..  Paraphrasing the words in the Act into reality, it means that the mental disorder is pretty bad. Hence in practice the risk to mental health of that nature or degree, is the big issue. Poor compliance with treatment risks the mental condition(s) not being treated, and remaining ‘pretty bad’ or worsening.

Treatment could include medication though it is not specified as such in the MHA 1983. But S145(1), includes things like ‘care’. So, if a detained patient opts out of all offered interventions the hospital will simply provide treatment in the form of ‘care’. The patient will remain detained for a much longer period until risks are sufficiently improved to be discharged.

Refusing to be treated

Modern mental health treatments almost never involve just giving medications. It routinely involves other non-medication treatments such as psychoeducation, sleep hygiene and many other things. Patients who refuse to accept medication can be injected with antipsychotics as a carefully reserved option. But note there is no true injectable antidepressant and no injectable treatment for ADHD at this time.  Covert treatment is lawfully possible but difficult to carry out.

ECT (electroconvulsive treatment) can still be administered to severely depressed or psychotic patients – but that is very carefully regulated by the MHA 1983.

The treatment of personality disorders (PD) normally and ideally does not involve the use of medications. NICE has warned against that, especially for borderline personality disorders. Therefore the treatment of personality disorder is mainly through, psychological methods. But many patients with PD refuse to engage with psychological treatments or only do so partially to the extent that the treatment is ineffective or minimally effective.

Untreatable

The concept of ‘treatability’ was removed by the MHA 2007 (note 32)

The appropriate medical treatment test replaces the so-called “treatability” test. The treatability test requires the relevant decision-maker to determine whether medical treatment “is likely to alleviate or prevent deterioration in the patient’s condition”. Where that test forms part of the criteria for detention under a particular section, it applies at all stages to patients suffering from mental impairment or psychopathic disorder (ie to the initial decision to detain, and both renewal and discharge from detention)…. Both the treatability test and this alternative test are abolished by this section and replaced by the appropriate medical treatment test. Because of the removal of categories of disorder by section 1 the appropriate medical treatment test applies equally to all mental disorders.

Para 32 https://www.legislation.gov.uk/ukpga/2007/12/notes/division/6/1/1/5

All mental disorders are subject to treatment as defined in the Act once they meet certain thresholds (nature and degree) and risk-related matters. It is absolutely important to keep in mind the legal definition of treatment from S145(1) and S145(4). No patient detained in hospital is therefore untreatable according to the law, save by one rarely used exception under S51(3)b MHA.

It does not matter whether MHPs think or believe from their ethical standpoints, that a patient is untreatable. Why? Because Parliament has overruled all such ethical issues, as it can do.

Bed-blockers

I have actually seen these words used to refer to detained patients in professional reports. It is a pejorative term, that probably is discriminatory. Certainly, it is offensive and unprofessional. The term points to detained patients who do not engage in treatment and are clinically extremely difficult to treat. Those patients remain in hospital for a very long time without significant improvements.

MHPs in significant numbers from my experience, tend to believe it is wrong to keep those patients in beds that they see as being ‘blocked’. Those sorts of MHPs often ask or say rhetorically, “You can’t keep him/her locked up forever – can you?” I really want to deal with that issue because it comes up regularly even if not uttered in exactly the same words. MHPs come with certain ideas and expectations about ‘treatment’, based on their training and professional backgrounds. They all want to see fruits of theirs and their colleagues’ ‘therapeutic efforts’. It is quite frustrating – often not disclosed – when patients do not get better, or even get worse. I suggest that the captioned words are driven by such frustrations. Is discharging a patient who is not getting better or worsening the thing to do?

The Responsible Clinician is locking up no one! The detaining authority doing the ‘locking up’, is the Trust or other private sector hospital. The RC has a power of discharge or to renew a ‘section’ where detention is still warranted. The renewal of the section is a form of recommendation to the detaining authority, who can choose not to accept it. In practice the renewal happens almost automatically.

Health services have been seen by me to like avoiding Section 41 (and other types of restricted patients). The reason for that – which will never be admitted openly by services – is that those patients are seen as ‘bed blockers’. How? Restricted patients can only be discharged if allowed by the Mental Health Casework Section of the Ministry of Justice, or by direction of a Mental Health Tribunal. Tribunals are quite cautious in discharging restricted patients.  What it means in practice for health service managers, is that the Government controls your bed but doesn’t pay extra for it.

The issue of ‘bed-blocking’ should be a non-issue. Purchasers normally purchase beds in blocks and finance usually makes budgeting decisions in the knowledge up to ~30% of beds won’t be filled. But it also depends on whether one is talking about a public sector ‘bed’ or a private sector bed.  Strangely – but not surprisingly – private sector hospitals are more delighted to have S41 (restricted cases). This is the author’s experience. Basically – it is guaranteed cash because somebody has to pay, and private sector profit margins work differently to public sector.

Inappropriate grounds for discharge

I have seen detained patients discharged because their risk in hospital to self or others is perceived to be greater than if said patients were in the community. This is not a lawful ground for discharge. It is nowhere in the MHA 1983. Hospital environments are inherently more stressful than the average of community settings. Therefore it can be expected that the average patient will probably become more disturbed in hospital after admission. If that sort of reasoning was allowed to prevail, then ‘nobody’ would be admitted to hospital. Well, Parliament does not care about the logic of an individual MHP. MHPs need to care about the logic or even absurdity of Parliament and do what Parliament says. Parliament can be as absurd as it likes – and that is the law.

Case example: Ms X has a personality disorder complicated by autistic spectrum disorder (ASD) and ADHD. The combination of the latter accounts for degrees of self-harm, violence and destruction of property, seen in hospital. The latter continues to recur intermittently and is severe. Treatment attempts for the PD has been partial and limited. ASD and ADHD are untreated. Ms X has consistently refused medication for ADHD.  It is clear that the collection of disturbed behaviours is much less in the community. Should she therefore be discharged?

By contrast with the above in ‘physical medicine’, if you’re admitted for a bad attack of angina and it grows worse, ending up with a full-on myocardial infarction – does that mean the hospital was bad, caused you stress and precipitated your heart attack? Does it mean you should never have come to hospital in the first place? What if you die? Should the hospital be sued? know it is not the best contrast. But the issues are broadly the same:

1. Admission for a degree of illness requiring hospitalisation.
2. Increased stress and risks in a hospital.
3. Worsening condition or even death.

There may be an expectation among MHPs that patients will get better because of hospitalisation. MHPs also need to consider the reality that some patients get worse – just like in physical health care.

At the point of admission risks and mental health would cross a certain threshold in the MHA 1983 recommendations and the application. If patients deteriorate over the months that follow – what does that mean? The simplest form of reasoning is that admission made the patient worse.

Risk is often attributable to features of mental disorder. A short-lived improvement in risk profile can lead to a situation where the primary risk-generating factor is not treated. Risk may emerge in the community more quickly if mental disorder is not properly treated in hospital.

Problems (deeper contrast)

But there is a problem.  Some look to S145(4) Any reference in this Act to medical treatment, in relation to mental disorder, shall be construed as a reference to medical treatment the purpose of which is to alleviate, or prevent a worsening of, the disorder or one or more of its symptoms or manifestations…– as a way to discharge the patient. The defective logic works like this, “Well, we’ve had this patient for over a year now. He’s far worse off than when he came in. We’ve tried everything. We’re not alleviating, or preventing worsening of his condition. His symptoms and behaviour are twice as bad. We’re doing more harm than good. Confinement is making him worse. He would be less dangerous in the community. He should be discharged.” Why is this defective logic? The thought process misses the words ‘purpose of which‘. Nothing in those words means that the patient has to improve or get better. The purpose of the treatment is to make the patient better but it may not as in point 13 above.  If confinement is making the patient worse, that is not a criterion for discharge and it shouldn’t be forced to become a criterion.

I always compare with ‘physical medical practice’ e.g.

A patient is admitted for unbearable abdominal pain. That turns out to be appendicitis, which at operation normally is not complicated. The inflamed appendix is in need of surgical excision. But due to the position of the appendix in this case laparoscopic surgery is not appropriate. All goes well at surgery. The minor laparotomy is closed. A couple hours later – whilst still in hospital recovering, there is a serious bout of pain and fever. Examination leads to an opinion that sutures at the site of excision of the appendix have come apart. There is now roaring peritonitis. Patient is rushed to theatre and has a major laparotomy – and it is “a mess in there” – as the surgeons might say. I was training to be a surgeon so I know their sort of language. After 2 hours of working on the problem, it is sorted. Abdomen is closed and the patient returns to the ward, but has to stay at least 3 days more as an inpatient. In that time he catches MRSA and wound infection. The whole episode of treatment takes 2 weeks.

I could give several more scenarios like the above from my experience in surgery – in case I’m accused of picking a bad example. The point above is that the purpose of treatment for the appendicitis is clear – to ‘cure the patient’. Most times a simple appendectomy goes well. In more complicated kinds of surgery on the bowel, surgeons expect more things to go wrong.

The more complicated the case in medical practice, the more that can go wrong. One does not need to be a doctor to see that. Likewise if you’re a surgeon operating on an elderly patient, with poorly controlled diabetes, obesity (BMI >30), a history of strokes, smokes heavily and is on medication for COPD – you very well know to expect trouble ahead and you take numerous precautions. But even if you do, you can’t predict that operating on such a patient with all that, is going to go just fine. Furthermore – if such a patient recovers in hospital from the surgery in good time, what happens next when they get home? Thankfully surgeons do not have to worry much about that, but psychiatrists have to.

So why should there be major differences in the treatment of mental disorders? Admission for a first episode of severe psychosis, is usually treated quite efficiently and a patient may be expected stay less than 3 weeks in hospital. But the scenario is quite different if you have a patient admitted with a 4th episode of psychosis in a mixed affective state, that wasn’t controlled by two conventional antipsychotics (sequentially) – and the patient has PTSD, ADHD, uses cannabis like no tomorrow, and has suffered brain damage due to an early history of a dependence on a range of illicit substances.

The profound issue

Medical  (and related professional) practice comes from a position where ‘treatment’ means ‘making the patient better’. Doctors, nurses and other MHPs like to make patients better. That’s what they entered the profession to do.

Making patients better is in the definition of treatment in S145. It is great when patients use the treatments offered and get better. But there much deeper issues because quite a proportion of psychiatric patients do not engage well with treatment.

The worst-case scenario in mental health services, is when the patient is totally untreatable from professional perspectives. In those cases, ‘nothing seems to work’ after many months or years despite trying every known intervention or protocol. This is the equivalent of ‘terminal illness’ or ‘palliative care’. The law says that ‘care’ is the treatment. What that means is that issues like ‘safe containment‘ become the treatment. That’s not where Mental Health Professionals like to be. They feel very uncomfortable, and a sense of futility and despair may set in.

Yes – in physical medicine, some palliative cases are sent home. But with psychiatric patients, there are far bigger issues e.g. risk of suicide, homicide, grievous bodily harm, property destruction – in the worst cases. As explored above, not because the patient is failing to progress or worsening means that they are to be discharged.

A psychiatrist or RC who discharges a patient from detention, on some grounds that are not within proper application of the law, is courting disaster.

Concluding remarks

1. Treating mental disorder is more difficult in some ways than treating physical disorder.
2. Treatment as defined in the MHA 1983 has to be considered very carefully for detained patients.
3. Patients who do not improve at all for whatever reasons, still receive treatment because even basic nursing care falls into the definition of ‘treatment’ under the MHA 1983.
4. The main objectives of treatment for detained patients is outlined in S145(4).
5. Ultimately once the treatment objectives reduce risk to mental health, risk to self and risk to others to sufficient degrees, discharge is achievable.
6. Patients ought not to be discharged simply because their risks are better in the community compared to in-patient treatment.
7. All aspects of treatment relevant to criteria for detention need to be considered and weighed in the balance before discharge.
8. Incomplete treatment in hospital can lead to risk emerging more quickly in the community after discharge.

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