R (SH) v Mental Health Review Tribunal 2007 EWHC 884 (Admin)

SH killed his wife and was convicted of manslaughter.  Having been diagnosed with schizophrenia SH was made subject to a hospital order and a restriction order under s37/41 Mental Health Act 1983.  As a patient found guilty of a criminal offence this meant that he became subject to Part IV of the Act and was capable of being conditionally discharged by a Mental Health Review Tribunal (MHRT).  The MHRT ordered SH’s conditional discharge.  One of the conditions of his discharge was that he should continue to take medication prescribed by his RMO in the form of a depot injection.  SH was discharged to a hostel where he complied with the conditions of his discharge. SH later applied for an absolute discharge.  The MHRT rejected that application and refused to vary the condition requiring him to take depot medication as prescribed by his RMO.  SH appealed against this decision to the High Court.  He argued that as a patient with the requisite mental capacity he had the same rights as a member of public to decline medication and it followed that the condition requiring him to take the medication was invalid.  SH did not wish to cease taking his medication but merely to be free of a condition requiring him to take medication so that he could show his willingness to take medication which would enable him to demonstrate that he would comply with his clinical team without legal compulsion.  The High Court noted that the same legal issue arose in imposing such a condition in the first place therefore the Court’s decision was equally relevant to the initial imposition of conditions.

The court rejected SH’s claim and held that the condition in question was not invalid.  However it did confirm that a conditionally discharged patient could not be forced to take medication.  The court reminded itself of the general legal principle that a person with the necessary understanding can decide for himself whether to consent to medical treatment including whether to take medication.  Re T (Adult Refusal of Treatment) In this respect the rights of a conditionally discharged patient are no different to the rights of any other member of the public.  SH’s status as a conditionally discharged patient meant that his refusal to consent to treatment or take medication could not be overridden in the same way as a patient detained in hospital under Part IV of the Act.  A patient in SH’s position cannot therefore be compelled to comply with a condition requiring him to take medication as a condition of a conditional discharge.  Such a condition must be subject to a capacitated patient’s general right to refuse medication.  This did not assist SH who had always maintained that he would continue to take his medication.  Therefore, because he had indicated that he would willingly take his medication, there was no infringement of SH’s absolute right to choose and the MHRT was justified in imposing the condition.

In relation to recalling a patient, the court pointed out that a mere refusal to comply with the conditions should not automatically lead to the Home Secretary exercising his power to recall a patient to hospital.   Non-compliance with a specific condition did not mean that a patient could be recalled to hospital.  The Home Secretary would only be entitled to recall a patient where the deterioration in the patient’s condition was such that it was likely to put his or the health and safety of others, at risk.  R (MM) v Home Secretary applied.

Comment

The implications of this decision means that conditionally discharged patients should on each occasion that they receive medication have an absolute right to choose whether to consent to it or not, provided that they have the required capacity to communicate an informed choice.  The treating doctor or nurse on each occasion must satisfy him or herself that this is real and valid consent.  Where it is obvious that a conditionally discharged patient would exercise his right to refuse to take medication, such a condition would be pointless and should not be imposed.  In such circumstances this may lead the MHRT to conclude that a patient should not be discharged.

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