By omitting a definition of ‘risk’, the MHA leaves the issue of interpreting it to mental health professionals. It follows that what amounts to an actionable risk is a matter of fact. This raises another problem: what evidence will be probative of risk? The Act and its accompanying Code of Practice say very little on this point.
The courts are not typically concerned with whether a decision is right or wrong;224
they will only intervene where it is unlawful.225
In medical cases judges have been particularly
224
R v Somerset County Council, ex parte Fewings [1995] 1 All ER 513, per Laws LJ at 515.
225
150 reluctant to presume any competence in the clinical domain. In R (on the application of Khela) v Brandon Mental Health Unit,226
Thornton J said that the court was not able to second-guess clinicians because ‘there is currently no remedy available that enables the court to order that the diagnosis of a doctor should be changed and corrected.’227
This judicial respect for the limits of professional competences makes sense: judges are simply not qualified to say whether a doctor’s decision is right or wrong. For that reason, they tend to defer to clinical opinion. This is particularly true in the tort of negligence, in which the standard of care a doctor must discharge when treating his patients is that of the ordinary skilled man (or woman) exercising and professing to have that special skill.228
The same standard applies equally to psychiatrists.229
This means that the court will judge a doctor’s actions against his own professional standards. If a doctor (or psychiatrist) falls beneath the standard of care, the court will find that he is in breach of his duty. Otherwise, judges are not prepared to evaluate the merits of clinical decisions.230
A similar theme is evident in the courts’ pronouncements on decision-making under the MHA. To a certain extent, this arm’s length approach is a product of the legislation. The
226 [2010] EWHC 3313 (Admin) 227 Ibid, at para.6. 228
See Bolam v Friern Hospital Management Committee [1957] 1 WLR 582, per McNair J at 586; Whitehouse v Jordan [1981] 1 All ER 267, HL; Maynard v West Midlands Regional Health Authority [1985] 1 All ER 635, HL; Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital [1985] AC 871, HL.
229
G v Central and North West London Mental Health Authority [2007] EWHC 3086 (QB).
230
Although see also Bolitho v City and Hackney Health Authority [1998] AC 232, HL, in which the House of Lords said that the courts will apply the Bolam standard, except in circumstances where the practices of a responsible body of medical opinion defy logic. The Court of Appeal applied Bolitho’s case to psychiatric practices in Dunn v South Tyneside Health Care NHS Trust [2003] EWCA Civ 878.
151 MHA insulates mental health professionals from any civil or criminal proceedings in respect of acts they purport to do in pursuance of the legislation, unless such acts are done in bad faith or without reasonable care.231 Even then, a patient cannot bring civil proceedings
against any person in any court in respect of any such act without the leave of the High Court.232 According to Lord Bingham in Seal v Chief Constable of South Wales Police,233 these
provisions were introduced with the obvious object of giving mental health professionals greater protection from litigation than they had enjoyed in the past.234
The courts are therefore even less likely to reconsider doctors’ decisions under the MHA than they might be in other areas of medical practice. Even when they do hear such cases, judges are reluctant to review practitioners’ decisions. In Savage’s case, Lord Rodger explained that ‘the level of risk for any particular patient [can] be expected to vary with fluctuations in his or her medical condition… Such decisions involve clinical judgement. Different doctors may have different views’.235
His Lordship plainly took the view that the courts are in no position to decide how people with a mental disorder should be treated under the MHA. Similarly, in R v North West Thames Mental Health Review Tribunal, ex parte Cooper,236
Rose J said that the courts would be reluctant to interfere with the decision of the MHRT unless there was a
231
MHA, s.139(1).
232
MHA, s.139(2). Although it seems that the threshold is quite low: DD v Durham County Council [2013] EWCA Civ 96.
233
[2007] UKHL 37.
234
The ECtHR later confirmed that this requirement to seek leave was compatible with the right to a fair trial under Article 6(1) ECHR (Seal v United Kingdom [2010] ECHR 50330/07).
235
Savage’s case, per Lord Rodger at para.50.
236
152 basis for a challenge on a well-known line, e.g., the decision was unreasonable.237
While their decisions can lead to the deprivation of patients’ liberty, it seems that mental health practitioners may deploy the MHA’s compulsory powers with only a low level of oversight by the courts.
The upshot of this is that that there is no universal calculus of risk against which judges can gauge the decisions of mental health practitioners.238 In fact, the courts refuse to specify
the ingredients that might justify a decision-maker’s conclusion that a patient poses a risk.239
This gives them a wide discretion under the MHA; decision-makers can recast almost anything to do with the patient’s disorder, characteristics or circumstances as evidence of risk. Yet, is there a limit to this discretion?