Decision of the Upper Tribunal
(Administrative Appeals Chamber)
Save for the cover sheet, this decision may be made public (rule 14(7) of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI No 2698)). That sheet is not formally part of the decision and identifies the patient by name.
As the decision of the First-tier Tribunal (made on 11 February 2013 under reference MM/2012/17372) involved the making of an error in point of law, it is SET ASIDE under section 12(2)(a) and (b)(i) of the Tribunals, Courts and Enforcement Act 2007 and the case is REMITTED to the tribunal for rehearing by a differently constituted panel. 
Reasons for Decision
A.	The issue 
1.	The legal issue in this case is the relevance in law of a patient’s refusal to engage with therapy, especially for a patient with a personality disorder. I have decided that it is not decisive, although it is potentially a relevant factor that has to be taken into consideration. In practice, though, the patient may well continue to satisfy the conditions for detention despite refusing to engage. 
B.	The parties and the oral hearing
2.	Mr L-H is the appellant and patient in this case; he is detained by the hospital, which is a respondent. The other respondent is the Secretary of State for Justice. 
3.	I held an oral hearing on 24 September 2013. Ms Ulele Burnham of counsel represented Mr L-H. Ms Victoria Butler-Cole of counsel represented the hospital. Mr Paul Greatorex of counsel provided a written argument for the Secretary of State, on whose behalf Ms Tish Jennings attended as an observer. I am grateful to all three counsel for their arguments. The Secretary of State does not usually participate in appeals to the Upper Tribunal, but I said in my directions for the oral hearing that it would be helpful to have the Secretary of State’s view on the legal issue raised by the case. I am grateful that my invitation was accepted. 
C.	Background 
4.	I decided a previous appeal by Mr L-H in DL-H v Devonshire Partnership NHS Trust and the Secretary of State for Justice [2010] UKUT 102 (AAC). For convenience, I refer to this as DL-H v Devonshire. I deal with it in detail in section H.
5.	Mr L-H was born in 1996 and has been known to the mental health services since 2003. He has 61 convictions. Most were for theft, fraud and property offences, although some involved force or the risk to life. Two of his convictions were for arson. As a result of his conviction in 2006 for arson and burglary, he was made the subject of hospital and restriction orders under sections 37 and 41 of the Mental Health Act 1983. All statutory references in this decision are to that Act.
6.	In 2012, he was conditionally discharged following a tribunal hearing, but was recalled by the Secretary of State on 19 July 2012, about five weeks later. I have not seen the grounds for recall. The best that Ms Burnham could show me in the evidence was a reference to the possibility that he might be developing psychotic symptoms. The day after his recall, the Secretary of State referred his case to the First-tier Tribunal pursuant to section 75(1)(a). 
7.	The case came before the First-tier Tribunal for hearing on 6 November 2012. The responsible clinician proposed a conditional discharge, but Mr L-H opposed this on two grounds. First, he said that he wanted an absolute discharge and that a conditional discharge would be pointless as he would not submit to treatment. Second, the conditions that were proposed for the conditional discharge amounted to a continuing deprivation of liberty. The tribunal adjourned the hearing for further information about aftercare. 
8.	The hearing resumed on 29 January 2013. By then, Mr L-H was exhibiting almost daily outbursts of anger and hostility directed to both staff and fellow patients. These represented a significant escalation in violence and aggression. 
D.	The tribunal’s reasons in summary
9.	The tribunal accepted the opinion of the responsible clinician that Mr L-H was not psychotic but had Dissocial Personality Disorder. Mr L-H’s expert gave the opinion that the latter was a probable diagnosis. The tribunal decided that the nature and degree of the Disorder justified detention for treatment. That detention was necessary to protect both Mr L-H and others. Even Mr L-H’s expert gave the opinion that he was at moderate to high risk in the community. 
10.	Mr L-H does not accept that he has a personality disorder, but he has not challenged the tribunal’s finding on this appeal. 
E.	The legislation and the Code of Practice
11.	The relevant provisions of the Act are set out in Appendix A.
12.	The Secretary of State has issued a Code of Practice under section 118. Chapter 6 applies to appropriate treatment. Part of Chapter 35 applies to personality disorders. The relevant paragraphs are set out in Appendix B. I understand that the Secretary of State is currently reviewing the Code, but those paragraphs apply for the time being. 
F.	The Secretary of State’s argument
13.	It is appropriate to begin with the Secretary of State’s argument as it challenges my previous decision. I will try to extract the essence of Mr Greatorex’s argument from its detail.
	The test is no longer treatability
14.	He begins by pointing to a change in the legislation. 
15.	Originally, section 72(2)(a) provided that the tribunal had to ‘have regard to the likelihood of medical treatment alleviating or preventing a deterioration of the patient’s condition’. Even under that test, the courts had said that lack of co-operation could not negate treatability: R v Canons Mental Health Review Tribunal ex parte A [1995] QB 60 at 81 and R (DK) v Secretary of State for the Home Department [2010] EWHC 82 at [7]. In the latter, Collins J said that lack of co-operation could not be held against a patient if it was a symptom of a disorder, but it might be otherwise if it was a deliberate choice. 
16.	This test was replaced by the Mental Health Act 2007. Section 72(1)(b)(iia) now provides that there must be ‘appropriate medical treatment … available’. 
17.	I accept that the legislation has changed as Mr Greatorex argues.
	The patient does not have a veto
18.	He next argues in detail that ‘treatment that is otherwise available and appropriate does not cease to be so merely because the patient refuses to engage or cooperate with it.’ I accept that that is the effect of the legislation as properly interpreted. It is consistent with the Code. I deal with both the law and the Code in section G.
	My decision in DL-H v Devonshire reintroduced the treatability test and gave the patient a veto
19.	Mr Greatorex argues that my decision was wrong on two counts. First, because it has reintroduced the treatability test, which was removed by the 2007 amendments. Second, because it has given a patient a veto, which was not allowed even under the treatability test. I reject both of those arguments and explain why in section H.
The purpose of the legislation
20.	Mr Greatorex concludes by referring to the purpose of the legislation:
Finally, it must be kept in mind that the context for these provisions is one of compulsory detention and treatment and it would be wrong to interpret or apply them in a way which reverses or undermines this and effectively makes them dependent upon patient cooperation. 
I accept that the legislation provides for detention and that a patient veto would undermine that function. But it provides for detention only when the statutory conditions are me, as paragraph 6.17 of the Code says. The issue is the extent and manner in which a patient’s attitude may be relevant in applying those conditions. The law provides for containment through the criminal law. It would be wrong to subvert the mental health legislation into operating as a non-criminal form of compulsory detention beyond the proper reach of the statutory conditions. 
	A subliminal message? 
21.	I formed the impression that there might be a subliminal message running through Mr Greatorex’s argument. This may be my invention, but I detected a possible message that a patient’s attitude to treatment is always irrelevant. I am sorry if that was not what was intended. If it was intended, I reject it. The position is more complicated. 
G.	Analysis of the legislation
22.	The previous test depended on a prediction of the likelihood of treatment having a particular effect. That test has been replaced by the available appropriate treatment test. This does not require an assessment of the likelihood that treatment will have a particular effect, as paragraph 6.4 of the Code says. But that does not mean that potential outcome is irrelevant. The provisions are more complex in their structure and more complicated in their application, and the Code is more subtle in its contents than that. They allow for the possibility that a patient who refuses to engage may have to be discharged, as I will now explain. 
23.	There are three requirements that must be met. There must be (i) medical treatment that is both (ii) available and (iii) appropriate. 
	Medical treatment
24.	The treatment planned for the patient must fall within the definition of ‘medical treatment’ in section 145. This is a question of fact. Whether treatment falls within the definition depends on the nature of what is planned and its purpose. And purpose is defined in terms of the intended impact. The definition does not include the previous predictive element, but that will no doubt be a factor that a responsible clinician will take into account in deciding whether to recommend particular treatment. Would a responsible clinician ever propose treatment the purpose of which could never be achieved? And if so, would that treatment be appropriate? This does not mean that the patient has a veto. The patient’s attitude may be susceptible to change, whatever the patient believes. And the definition of medication treatment is so broad that it may not be difficult to identify something that will, at the least, prevent a worsening. However, the minimal nature and effect of that treatment may be relevant to the issue of appropriateness. 
	Availability
25.	This is also a question of fact. The hospital must be able to provide the treatment, whether from its own resources or brought in from outside. 
	Appropriateness
26.	The proposed treatment must be appropriate. This is a matter of judgment. Section 3(4) is relevant. It provides that appropriateness must be determined by an individual assessment in respect of the patient, taking account of all the circumstances of the patient’s case. The fact that the patient has expressed unwillingness to engage is not decisive. It may just be a tactic to secure discharge and, even if it is genuine, it may be possible to change the patient’s attitude. The patient’s attitude is, though, one of the circumstances of the case that the tribunal must take in account. See also the questions I posed in paragraph 24.
	The Code
27.	Standing back from the detail, the Code recognises the problems of engagement, especially for patients with personality disorders. But it allows for the possibility that a patient who is  non-compliant may have to be released and that the patient’s attitude may be a contributory factor in that decision. 
28.	I will refer briefly to the paragraphs mentioned by Mr Greatorex. They are all set out in Appendix B and they are consistent with my analysis. 
29.	Paragraph 6.4 distinguishes between purpose and likelihood. This is clear from the contrasting language of the current and previous provisions. 
30.	Paragraph 6.6 emphasises the breadth of the definition of medical treatment. This is also clear from the statutory language.
31.	Paragraph 6.12 says that the treatment need not address every aspect of the patient’s condition. This is consistent with the broad definition of treatment. It means that a patient who is not engaging may nonetheless benefit from some form of treatment for some aspects of his disorder. 
32.	Paragraphs 6.7 to 6.9 say that the treatment must be appropriate for the patient’s individual circumstances. This is what the law says. 
33.	Paragraph 6.18 makes the point that a patient’s indication of unwillingness is not decisive. I accept that, as I have said. It may be that the patient is not genuinely unwilling and will engage if not discharged. And a sincere patient’s attitude may be changed. 
34.	Paragraph 6.19 makes the point treatment can potentially remain appropriate even if the patient is not willing to engage. Again, I accept that. But it does not say that it will remain appropriate for ever and in all circumstances. It says that the patient’s attitude may be relevant and cautiously recognises that treatment may not remain appropriate.
35.	Paragraphs 35.8 to 35.15 deal with personality disorder. They recognise that it can be difficult to achieve the long-term engagement that is necessary and that other forms of treatment may be available in the meantime. I accept that.
H.	DL-H v Devonshire 
36.	This is the decision I gave on Mr L-H’s previous appeal. I there set out guidance to tribunals on how to deal with an argument that there would be no treatment available to a patient with a personality disorder who would not engage:
33.	This presents a danger for tribunals. It arises from the way that medical treatment is defined in section 145. That definition is sufficiently broad to include attempts by nursing staff to encourage the patient to engage by taking what the NICE Guidance calls ‘a positive and rewarding approach [which] is more likely to be successful than a punitive approach in engaging and retaining people in treatment.’ This is not difficult to satisfy. That produces the danger that a patient for whom no appropriate treatment is available may be contained for public safety rather than detained for treatment. The solution lies in the tribunal’s duty to ensure that the conditions for continued detention are satisfied. The tribunal must investigate behind assertions, generalisations and standard phrases. By focusing on specific questions, it will ensure that it makes an individualised assessment for the particular patient. What precisely is the treatment that can be provided? What discernible benefit may it have on this patient? Is that benefit related to the patient’s mental disorder or to some unrelated problem? Is the patient truly resistant to engagement? The tribunal’s reasons then need only reflect what it did in the inquisitorial and decision-making stages. 
37.	Mr Greatorex argued that this was an impermissible gloss on the provisions of the Act that reintroduced a test of treatability, which had been removed by amendment under the Mental Health Act 2007, effectively giving a patient a veto. I take ‘gloss’ to mean that I have read a meaning into the legislation that it does not properly bear. I do not accept Mr Greatorex’s arguments. Neither Ms Burnham nor Ms Butler-Cole agreed with them. They both argued that I was merely setting out questions that arose under the terms of section 72 in order to assist and encourage tribunals to find facts with the precision required. 
38.	It would be wrong to gloss legislation. But the Upper Tribunal has two functions that are relevant to what I said in the passage quoted in paragraph  36. This tribunal has to interpret the legislation and it may consider it appropriate to give guidance to the First-tier Tribunal on how to exercise its fact-finding role in respect of that legislation. What I did was to give guidance to tribunal to ensure that they applied the statutory provisions correctly and appropriately. My remarks were intended to encourage the tribunal to be precise in its fact-finding. That is always desirable, but it is especially so when (i) a patient is arguing that there is no available treatment and (ii) the definition of treatment is so wide. It is important for tribunals to ensure that patients are not detained without the authority of the Act. Precision of fact-finding focused on the terms of the definition and the particular treatment that the hospital says is available will help to ensure that patients are only detained in accordance with the legislation. I will take each of my questions and show how they contribute to that end.
39.	What precisely is the treatment that can be provided? This requires the tribunal to make a finding on the particular treatment that is available rather than resorting to general statements. It ensures that the tribunal makes particularised and individualised findings in respect of the particular patient. That is what the legislation requires; it is consistent with the Code.
40.	What discernible benefit may it have on this patient? This complements the previous question. Although section 145 defines treatment widely, there is a common thread that runs through all the elements: its purpose must be to confer some benefit on the patient, if only to the extent of preventing the patient’s condition getting worse. And the answer must relate to the individual patient, not to patients generally. This does not reintroduce the treatability test. It merely restates what section 145 says. It concentrates on what can be attained, not on what will or may be attained. I refer back to the questions I posed in paragraph 24.
41.	Is that benefit related to the patient’s mental disorder or to some unrelated problem? This question is concerned with the relationship between the treatment and the patient’s disorder. The treatment must be available for the disorder. It is not permissible to detain a patient who has both a personality disorder and diabetes in order to treat the latter but not the former. That is what the statute provides. This would not be appropriate medical treatment for section 72(1)(b)(iia); nor would it be appropriate to detain a patient in these circumstances for section 72(1)(b)(i). 
42.	Is the patient truly resistant to engagement? This addresses the patient’s argument directly. The tribunal may find, despite assertions to the contrary, that the patient is prepared to engage. Or it may find, again despite assertions to the contrary, that the patient may yet be brought to engage. In either case, this finding will remove one element of the patient’s argument, although it is still necessary to decide whether there is some form of treatment that would be available and appropriate. If the tribunal finds that the patient is not prepared to engage and will never be brought to engage, that will not necessarily be decisive. This is because the definition of treatment is so broad that it includes much that does not require the patient’s engagement in formal therapy. 
43.	I do not say that the tribunal must set out the answers to those questions in every case. That will depend on the issues raised before the tribunal and on the evidence. Nor do I say that those are the only questions that may be relevant. Ms Burnham referred to academic literature suggesting that other questions might be relevant. What other questions arise will again depend on the issues raised and the evidence. They might include: What would be the purpose of the proposed treatment? Is it actually available? Will it produce a significantly better outcome than the present position? Does it have adverse effects that outweigh its benefits?
I.	Section 50
44.	Before leaving Mr Greatorex’s argument, I want to mention his reference to section 50. This deals with a transfer back to prison when the conditions for detention under the Act are no longer met. It refers to there being no effective treatment in the hospital. This is not the occasion to decide on the significance of that word, which is not used in section 72. I merely record Ms Burnham’s point that it would be surprising if the criteria for discharge from detention in hospital depended on the destination of the patient. 
J.	The tribunal’s reasoning
45.	Against that background, I now come to the tribunal’s reasoning and to Ms Burnham’s argument. I am able to deal with this briefly, as it does no raise any issue that will be relevant in later cases. I do not accept all of Ms Burnham’s criticisms of a careful and detailed decision. But I do accept that the tribunal’s reasons are inadequate in one respect. 
46.	Mr L-H was conditionally discharged following the decision of a previous tribunal. He was able to function in the community for five weeks before being recalled. The only evidence of the reason for the recall was that he appeared to be developing psychotic symptoms. There was no suggestion at the time of the hearing that he was showing such symptoms. By the time of the hearing in January 2013, there had been a significant change in Mr L-H’s condition. He was recalled in July 2012 and the deterioration was not apparent in November 2012. There is no evidence to link that deterioration to his condition at the time of recall. It seems that something happened sometime after the recall. As Ms Burnham argued, that raised the question of why this change had occurred. The tribunal decided that, as a result of Mr L-H’s ‘recent extreme behaviour’, a reassessment of his case was required and that ‘attention will now have to be focussed of necessity on treatment and not on discharge.’ The tribunal does not seem to have asked itself whether the change that occurred after recall might not have been a response to detention rather than a manifestation of his mental disorder. That was relevant in two ways. It was relevant to whether the nature or degree of his disorder made detention for treatment appropriate under section 72(1)(b)(i). It was also relevant to whether the treatment that was available was appropriate under section 72(1)(b)(iia). The tribunal’s decision is wrong in law for not showing in its reasons how it dealt with those possibilities.

Signed on original
on 4 October 2013

Corrected on 16 October 2013	Edward Jacobs
Upper Tribunal Judge	

Appendix A
The Legislation

Section 3(4) defines ‘appropriate medical treatment’:
3	Admission for treatment
…
(4)	In this Act, references to appropriate medical treatment, in relation to a person suffering from mental disorder, are references to medical treatment which is appropriate in his case, taking into account the nature and degree of the mental disorder and all other circumstances of his case.
Section 50 deals with the transfer of prisoners back to prison from hospital.
50	Further provisions as to prisoners under sentence
(1)	Where a transfer direction and a restriction direction have been given in respect of a person serving a sentence of imprisonment and before his release date the Secretary of State is notified by the responsible clinician, any other approved clinician or the appropriate tribunal that that person no longer requires treatment in hospital for mental disorder or that no effective treatment for his disorder can be given in the hospital to which he has been removed, the Secretary of State may— 
(a)	by warrant direct that he be remitted to any prison or other institution in which he might have been detained if he had not been removed to hospital, there to be dealt with as if he had not been so removed; or
(b)	exercise any power of releasing him on licence or discharging him under supervision which would have been exercisable if he had been remitted to such a prison or institution as aforesaid,
and on his arrival in the prison or other institution or, as the case may be, his release or discharge as aforesaid, the transfer direction and the restriction direction shall cease to have effect.
…
Sections 72 and 73 contain the tribunal’s powers on the Secretary of State’s reference under section 75(1)(a):
72	Powers of tribunals
(1)	Where application is made to the appropriate tribunal by or in respect of a patient who is liable to be detained under this Act or is a community patient, the tribunal may in any case direct that the patient be discharged, and— 
…
(b)	the tribunal shall direct the discharge of a patient liable to be detained otherwise than under section 2 above if it is not satisfied— 
(i)	that he is then suffering from mental disorder or from mental disorder of a nature or degree which makes it appropriate for him to be liable to be detained in a hospital for medical treatment; or 
(ii)	that it is necessary for the health of safety of the patient or for the protection of other persons that he should receive such treatment; or
(iia)	that appropriate medical treatment is available for him; … 
73	Power to discharge restricted patients
(1)	Where an application to the appropriate tribunal is made by a restricted patient who is subject to a restriction order, or where the case of such a patient is referred to the appropriate tribunal, the tribunal shall direct the absolute discharge of the patient if— 
(a)	the tribunal is not satisfied as to the matters mentioned in paragraph (b)(i), (ii) or (iia) of section 72(1) above; and
(b)	the tribunal is satisfied that it is not appropriate for the patient to remain liable to be recalled to hospital for further treatment. 
(2)	Where in the case of any such patient as is mentioned in subsection (1) above—
(a)	paragraph (a) of that subsection applies; but
(b)	paragraph (b) of that subsection does not apply,
the tribunal shall direct the conditional discharge of the patient.
(3)	Where a patient is absolutely discharged under this section he shall thereupon cease to be liable to be detained by virtue of the relevant hospital order, and the restriction order shall cease to have effect accordingly.
(4)	Where a patient is conditionally discharged under this section—
(a)	he may be recalled by the Secretary of State under subsection (3) of section 42 above as if he had been conditionally discharged under subsection (2) of that section; and
(b)	the patient shall comply with such conditions (if any) as may be imposed at the time of discharge by the tribunal or at any subsequent time by the Secretary of State.
(5)	The Secretary of State may from time to time vary any condition imposed (whether by the tribunal or by him) under subsection (4) above.
(6)	Where a restriction order in respect of a patient ceases to have effect after he has been conditionally discharged under this section the patient shall, unless previously recalled, be deemed to be absolutely discharged on the date when the order ceases to have effect and shall cease to be liable to be detained by virtue of the relevant hospital order.
(7)	A tribunal may defer a direction for the conditional discharge of a patient until such arrangements as appear to the tribunal to be necessary for that purpose have been made to its satisfaction; and where by virtue of any such deferment no direction has been given on an application or reference before the time when the patient's case comes before the tribunal on a subsequent application or reference, the previous application or reference shall be treated as one on which no direction under this section can be given.
(8)	This section is without prejudice to section 42 above.
‘Mental disorder’ is defined by section 1(2) as ‘any disorder or disability of the mind’. ‘Medical treatment’ is defined in section 145:
145	Interpretation
(1)	In this Act, unless the context otherwise requires-
…
“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.

Appendix B
Code of Practice

CHAPTER 6
The appropriate medical treatment test
6.1	This chapter gives guidance on the application of the appropriate medical treatment test in the criteria for detention and supervised community treatment (SCT) under the Act. 
Purpose of medical treatment for mental disorder 
6.2	For the purposes of the Act, medical treatment also includes nursing, psychological intervention and specialist mental health habilitation, rehabilitation and care. Habilitation means equipping someone with skills and abilities they have never had, whereas rehabilitation means helping them recover skills and abilities they have lost. 
6.3	In the Act, medical treatment for mental disorder means medical treatment which is for the purpose of alleviating, or preventing a worsening of, a mental disorder or one or more of its symptoms or manifestations. 
6.4	Purpose is not the same as likelihood. Medical treatment may be for the purpose of alleviating, or preventing a worsening of, a mental disorder even though it cannot be shown in advance that any particular effect is likely to be achieved. 
6.5	Symptoms and manifestations include the way a disorder is experienced by the individual concerned and the way in which the disorder manifests itself in the person’s thoughts, emotions, communication, behaviour and actions. But it should be remembered that not every thought or emotion, or every aspect of the behaviour, of a patient suffering from a mental disorder will be a manifestation of that disorder. 
6.6	Even if particular mental disorders are likely to persist or get worse despite treatment, there may well be a range of interventions which would represent appropriate medical treatment. It should never be assumed that any disorders, or any patients, are inherently or inevitably untreatable. Nor should it be assumed that likely difficulties in achieving long-term and sustainable change in a person’s underlying disorder make medical treatment to help manage their condition and the behaviours arising from it either inappropriate or unnecessary. 
Appropriate medical treatment test 
6.7	The purpose of the appropriate medical treatment test is to ensure that no-one is detained (or remains detained) for treatment, or is an SCT patient, unless they are actually to be offered medical treatment for their mental disorder. 
6.8	This medical treatment must be appropriate, taking into account the nature and degree of the person’s mental disorder and all their particular circumstances, including cultural, ethnic and religious considerations. By definition, it must be treatment which is for the purpose of alleviating or preventing a worsening of the patient’s mental disorder or its symptoms or manifestations. 
6.9	The appropriate medical treatment test requires a judgement about whether an appropriate package of treatment for mental disorder is available for the individual in question. Where the appropriate medical treatment test forms part of the criteria for detention, the medical treatment in question is treatment for mental disorder in the hospital in which the patient is to be detained. Where it is part of the criteria for SCT it refers to the treatment for mental disorder that the person will be offered while on SCT. 
Applying the appropriate medical treatment test 
6.10	The test requires a judgement about whether, when looked at in the round, appropriate medical treatment is available to the patient, given: 
•	the nature and degree of the patient’s mental disorder; and 
•	all the other circumstances of the patient’s case. 
In other words, both the clinical appropriateness of the treatment and its appropriateness more generally must be considered. 
6.11	The other circumstances of a patient’s case might include factors such as: 
•	the patient’s physical health – how this might impact on the effectiveness of the available medical treatment for the patient’s mental disorder and the impact that the treatment might have in return; 
•	any physical disabilities the patient has; 
•	the patient’s culture and ethnicity; 
•	the patient’s age; 
•	the patient’s gender, gender identity and sexual orientation;
•	the location of the available treatment; 
•	the implications of the treatment for the patient’s family and social relationships, including their role as a parent; 
•	its implications for the patient’s education or work; and 
•	the consequences for the patient, and other people, if the patient does not receive the treatment available. (For mentally disordered offenders about to be sentenced for an offence, the consequence will sometimes be a prison sentence.) 
6.12	Medical treatment need not be the most appropriate treatment that could ideally be made available. Nor does it need to address every aspect of the person’s disorder. But the medical treatment available at any time must be an appropriate response to the patient’s condition and situation. 
6.13	Medical treatment must actually be available to the patient. It is not sufficient that appropriate treatment could theoretically be provided. 
6.14	What is appropriate will vary greatly between patients. It will depend, in part, on what might reasonably be expected to be achieved given the nature and degree of the patient’s disorder. 
6.15	Medical treatment which aims merely to prevent a disorder worsening is unlikely, in general, to be appropriate in cases where normal treatment approaches would aim (and be expected) to alleviate the patient’s condition significantly. For some patients with persistent mental disorders, however, management of the undesirable effects of their disorder may be all that can realistically be hoped for. 
6.16	Appropriate medical treatment does not have to involve medication or individual or group psychological therapy – although it very often will. There may be patients whose particular circumstances mean that treatment may be appropriate even though it consists only of nursing and specialist day-to-day care under the clinical supervision of an approved clinician, in a safe and secure therapeutic environment with a structured regime. 
6.17	Simply detaining someone – even in a hospital – does not constitute medical treatment. 
6.18	A patient’s attitude towards the proposed treatment may be relevant in determining whether the appropriate medical treatment test is met. But an indication of unwillingness to co-operate with treatment generally, or with a specific aspect of treatment, does not make such treatment inappropriate. 
6.19	In particular, psychological therapies and other forms of medical treatments which, to be effective, require the patient’s co-operation are not automatically inappropriate simply because a patient does not currently wish to engage with them. Such treatments can potentially remain appropriate and available as long as it continues to be clinically suitable to offer them and they would be provided if the patient agreed to engage. 
6.20	People called on to make a judgement about whether the appropriate medical treatment test is met do not have to be satisfied that appropriate treatment will be available for the whole course of the patient’s detention or SCT. What is appropriate may change over time, as the patient’s condition changes or clinicians obtain a greater understanding of the patient’s case. But they must satisfy themselves that appropriate medical treatment is available for the time being, given the patient’s condition and circumstances as they are currently understood.
CHAPTER 35
People with personality disorders
This chapter deals with issues of particular relevance to people with a personality disorder. 
…
Appropriate medical treatment 
35.8	What constitutes appropriate medical treatment for a particular patient with a personality disorder will depend very much on their individual circumstances. First and foremost, that calls for a clinical judgement by the clinicians responsible for their assessment or treatment. 
35.9	A proposed care plan will not, of course, meet the Act’s definition of appropriate medical treatment unless it is for the purpose of alleviating or preventing a worsening of the patient’s mental disorder, its symptoms or manifestations (see chapter 6). 
35.10 Generally, treatment approaches for personality disorders need to be relatively intense and long term, structured and coherent. Sustainable long-term change is more likely to be achieved with the voluntary engagement of the patient. 
35.11 People with personality disorders may take time to engage and develop motivation for such longer-term treatment. But even patients who are not engaged in that kind of treatment may need other forms of treatment, including nurse and specialist care, to manage the continuing risks posed by their disorders, and this may constitute appropriate medical treatment. 
35.12 In the majority of cases, the primary model of intervention for personality disorders is rooted in a psycho-social model. 
35.13 Patients who have been detained may often need to continue treatment in a community setting on discharge. Where there are continuing risks that cannot otherwise be managed safely, supervised community treatment, guardianship or (for restricted patients) conditional discharge may provide a framework within which such patients can continue their treatment in the community. 
35.14 In deciding whether treatment under the Act can be delivered safely in the community, account should be taken of: 
•	where the specific model of treatment intervention can be delivered most effectively and safely; 
•	if management of personal and social relationships is a factor in the intervention, how the appropriate day-to-day support and monitoring of the patient’s social as well as psychological needs can be provided; 
•	to what degree the psycho-social model of intervention requires the active participation of the patient for an effective and safe outcome; 
•	the degree to which the patient has the ability to take part in a psycho-social intervention that protects their own and others’ safety; 
•	the degree to which 24-hour access to support will be required; and 
•	the need for the intervention plan to be supervised by a professional who is appropriately qualified in the model of intervention and in risk assessment and management in the community. 
35.15 In the case of personality disordered offenders who may already have received long-term treatment programmes within secure or prison settings, treatment in the community may well still be required while they resettle in the community.