MENTAL HEALTH (COMPULSORY ASSESSMENT AND TREATMENT) ACT 1992PART 10 - ENFORCEMENT AND OFFENCES
122B.Use of force—
(1)A person exercising a power specified in subsection (2) may, if he or she is exercising the power in an emergency, use such force as is reasonably necessary in the circumstances.
(2)The powers are—
(a)A power to take or retake a person, proposed patient, or patient in any of sections 32(1), 38(4)(d), 40(2), 41(4), 41(5), 41(6), 50(4), 51(3), 53, 109(1), 109(4), 110C(2), 111(2), or 113A:
(b)A power to detain a person, proposed patient, or patient in any of sections 41(3), 41(4), 41(5), 109(4), 110C(2), 111(2), or 113:
(c)A power to enter premises in either of sections 41(2) or 110C(1).
(3)A person treating a patient to whom [[section 58 or]] section 59 applies may use such force as is reasonably necessary in the circumstances.
(4)If force has been used under this section,—
(a)The circumstances in which the force was used must be recorded as soon as practicable; and
(b)A copy of the record must be given to the Director of Area Mental Health Services as soon as practicable.
A word of caution regarding interpretation of s.122B(3) of the MHA:
Throughout this blog it has been stated that medical staff have a discretion to use reasonable force, pursuant to s.122B(3) of the MHA, to treat a patient held under either section 58 or section 59. It has been further stated that this discretion is not limited to emergency situations. However, upon reflection, this interpretation may have been wrong. It may have been over- stating the matter. This is because a patient must first be detained, before reasonable force is used to treat them. Detention is always prior to treatment.
Arguably, an “emergency”(see s.122B(1) MHA) is first required before the power to use force to detain a patient (s.122B(2)(b)) and the discretion to use reasonable force to treat that patient (s.122B(3)) can be invoked.
That having been said: surely it would have been easy enough for Parliament to expressly state that the discretion found in s.122B(3) is restricted to “emergency” situations only. Why was this not stated in s.122B(1)? Still, there are sounds reasons for restricting s.122B(3) to emergencies, as this interpretation accords more with the usual bodily integrity arguments and also the Bill of Rights Act.