AM v South London & Maudsley NHS Foundation Trust and The Secretary of State for Health. 2013;

Ashingdane v United Kingdom. 1985;

B v Croydon Health Authority. 1995;

European Convention on Fundamental Human Rights and Freedoms.Rome: Council of Europe; 1950

An NHS Trust v Dr A. 2013;

An NHS Trust v Y. 2018;

Norfolk & Suffolk NHSFT v HJ. 2023;

St George's Healthcare NHS Trust v S. 1998;

Tameside & Glossop Acute Services NHS Trust v CH. 1996;

UF v X County Council. 2014;

Residual liberty and the detained mental health patient

07 March 2024
Volume 33 · Issue 5


Richard Griffith, Senior Lecturer in Health Law at Swansea University, considers the notion of residual liberty and the need for further authorisation when a detained patient is given treatment for a physical disorder under restraint

The purpose of the Mental Health Act 1983 is to make provision for the detention and compulsory treatment of a person's mental disorder where they are objecting to that admission or treatment (Tameside & Glossop Acute Services NHS Trust v CH [1996]).

Compulsory treatment of a detained patient under Part 4 of the Act has long adopted a ‘treatment as a whole’ approach that allows for the physical manifestations of a mental disorder to be treated under the compulsory provisions. In B v Croydon Health Authority [1995], the court held that tube-feeding a detained patient with a personality disorder who self-harmed by starving was treatment for a mental disorder that could be administered lawfully without the patient's consent.

The treatment as a whole approach does not include treatment for a physical condition unrelated to a person's mental disorder. In St George's Healthcare NHS Trust v S [1998] the Court of Appeal declared that detaining a woman under the 1983 Act in order to dispense with her refusal to consent to treatment for pre-eclampsia was unlawful. A person detained under the Act retained the right to withhold consent to medical procedures unrelated to their mental disorder.

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