When is Available Treatment Appropriate?

Many patients who come before the First-tier Tribunal (Mental Health) will have illnesses which are treatable with medication and, inevitably, treatment is therefore almost always going to be both appropriate and available. There are, however, a cohort of patients who’s mainstay of treatment is not medication, such as those with autism spectrum conditions, learning disabilities or personality disorders and the availability of appropriate treatment is less clear. Treatment (such as nursing care, occupational therapy, psychology et cetera) is often referred to as being available, but there is no real analysis as to how those forms of treatment “alleviate, or prevent a worsening of, the disorder or one or more of its symptoms or manifestations” and are therefore appropriate.  

SF v Avon and Wiltshire Mental Health Partnership NHS Trust and RB [2023] UKUT 205 (AAC) concerned RB who was a young woman with an autism spectrum condition. The First-tier Tribunal found that the following appropriate treatment was available for RB:

1. Occupational therapy;
2. Art therapy;
3. Intensive 1:1 observation;
4. Close monitoring of RB’s physical health;
5. Administration of sedative medication; and
6. Discharge planning.

On appeal to the Upper Tribunal, Judge Church found that the interventions aimed at preventing RB harming herself or others (i.e. the 1:1 observations, the close monitoring of her physical health and sedative medication) did not necessarily amount to treatment as it wasn’t preventing a worsening of relevant symptom or manifestation (in this case RB’s urge to harm herself or others) it was merely containing the harm. Judge Church also noted that such interventions would be likely to exacerbate a neurodiverse patient’s frustration. Judge Church concluded (at paragraph [42]) that “where the only treatment available is provided for the purpose of maintaining physical safety, without treating the mental disorder itself, would be to frustrate parliament’s statutory purpose”.

Judge Church then went on to address the other forms of treatment which had been identified by the First-tier Tribunal as being available and appropriate (i.e. occupational therapy, art therapy and discharge planning). He stated (at paragraph [46]) that “it is insufficiently clear to me from the First-tier Tribunal’s reasons what… the OT and art therapy were intended to achieve and how that related to RB’s needs in the context of her mental disorder, its symptoms and its manifestations”. He also said (at paragraph [48]) that “if discharge planning had reached stasis then it is difficult to see how it can be said to have been “available””.

Of particular note, Judge Church said (at paragraph [53]) that his interpretation of appropriate treatment was consistent with Rooman v Belgium [2019] ECHR 105 and cited the need for an individualised programme for a patient “with a view to preparing him or her for possible future reintegration into society”.

Ultimately, Judge Church concluded (at paragraph [54])  that “the First-tier Tribunal erred in law in deciding that ‘appropriate medical treatment’ was available to RB at Fountain Way because its decision was based on two misunderstandings: a. that interventions which had the purpose merely of containing risk of physical harm, were capable of amounting to ‘medical treatment’; and b. that medical treatment may be ‘appropriate’ even where it is “not tailored to [the patient’s] diagnosis”, and where treatment that is “essential” is not available”.

Judge Church’s decision is welcome and perhaps gives some hope to patients that are stuck in hospital. It is not enough that patients have access to treatment - it mustn’t simply be aimed at containing risk, it must be tailored and it must prepare them for life in the community. It’s also hoped that there will be more development in this area of mental health law which, until now, was nearly impossible to challenge.