Q: Who is the "person" in
s.122B(3) MHA ?
Section 122B(3) of the Mental Health (CAT)Act 1992 reads:
(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.
What follows is a basic break down of the essential components of the subsection:
Firstly, the words 'A person' are very wide. Who is this person, or who are these persons? When taken literally it could be construed as only one person, as it expressly states 'A person.' Why has Parliament chosen not to list them? Was this a deliberate move to ensure the widest possible protection from liability?Surely, the persons should have been listed in order to provide clarity.
The person , or persons, must be 'treating' the patient. The word 'treating' or 'treatment' is not defined in the MHA. However, it must be treatment only for 'mental disorder', as defined in section 2 of the MHA and in extensive case law.
The subsection only applies to section 58 ( section 11 further assessment and treatment for 5 days; and section 13 further assessment and treatment for 14 days) and to section 59 ( community treatment orders ; inpatient, s.30/ outpatient, s.29 ). Note, section 122B(3), above, does not apply to section 60 (E.C.T.). So force can only be used to treat a patient to whom either section 58 or section 59 applies.
Force 'may' be used to treat the patient. Here, there is a statutory discretion. Section 122B(3) does not state that force must be used. 'A person' must exercise this discretion and arrive at a decision as to whether force should be used or not. The Guidelines to The Mental Health Act 1992, 2000, give some guidance as to what factors should be taken into account ( see p.58).
Section 122B(3) states the degree of force which may be used is '... such force as is reasonably necessary in the circumstances.' As stated elsewhere on this blog, that phrase is likely to be read down to read 'reasonable force'. The Corrections Act 2004 states '... use any physical force (and no more) that is reasonably necessary in the circumstances' (see s.103 (1)(b)). Note, how it reads '(and no more)' ? Does this provide any extra protection for the individual? If the degree or standard of force in section 122B(3) of the MHA is breached that 'person' or persons may be held criminally liable as authorized under section 62 of the Crimes Act 1961 (excessive force). Section 23 (5) of the New Zealand Bill of Rights Act 1990 should also be borne in mind, it reads; ' Everyone deprived of liberty shall be treated with humanity and with respect for the inherent dignity of the person'. Case law involving this can be found in Adams on Criminal Law Brookers, 3rd edn. 2001, at p. 1101.
What are the 'circumstances' as stated in s.122B(3) MHA? There is no clear definition, as the circumstances could be almost anything. Keep in mind that there needs to be no emergency before the powers arising under s.122B(3) are invoked. The word 'emergency' does not appear in the subsection. Was this an oversight by Parliament, or was it deliberate ? Force may be used at any time to treat a patient for mental disorder, provided section 58 or section 59 applies to that patient. This is a very wide discretion, too wide. Why has Parliament buried such a controversial subsection in the back of the Mental Health (CAT)Act, and moreover in the middle of section 122B? Section 122B(3) is so obscure it could easily be missed by the reader.
Another problem is that it is referential, in that it throws the reader out to sections 58 and 59. Section 58 further refers the reader to sections 11 and 13 respectively. This is centrifugence, or scatter. It becomes like a maze. Arguably , this was intentional to confuse people. Parliament should have amended section 58 and section 59 and expressly stated that force may be used. The reader must locate the relevant sections and connect them up, and read them together in their context. Do you think section 122B(3) MHA should be confined to emergencies, even though it does not expressly state this, how will the Courts interpret the subsection?
The subsection should never have been enacted into law. It is vague, and confers a wide discretion to use force. Certainty in the law is essential. Furthermore, it lists no specific criteria to be taken into account in the exercise of the discretion to use force. At the time of writing ( 16 October , 2006) there appears to be no case law on the subsection. This seems incredible, as s.122B was inserted on 1 April 2000 by section 68 of the Mental Health (CAT) Amendment Act 1999 (1999 No 140) . Section 3 of the amendment Act of 2003 inserted the words 'section 58 or' into s.122B(3) on 22 October 2003. Thereby extending the application of section 122B(3) to not only section 59, but also section 58. An attempt will be made to expose the problems with section 122B(3) MHA in the following fact pattern (fictional):
Hypothetical Fact Pattern:
Carol is held under section 58 of the MHA. She has been refusing to comply with medication for a few weeks. There is no emergency situation. Staff decide to use force under section 122B(3) MHA to treat Carol. Carol only becomes agitated when staff try to restrain her in order to administer an intramuscular injection. A psychiatric nurse restrains and injects Carol. Carol's responsible clinician restrains Carol. A social worker who was involved in Carol's treatment also assists and restrains Carol. A visitor, who just happened to be visiting on the ward, rushes to assistance and restrains Carol. The visitor is told to leave , but he insists on restraining Carol.
So there are four persons involved in this hypothetical. However, who is the 'person' for the purposes of section 122B(3) MHA? The essential components of the subsection must be met before a member of the staff can be considered a 'person' as per the subsection.
1. The psychiatric nurse is 'treating' Carol, and using reasonable force to do so. They fit the requirements of s.122B(3) MHA.
2. Carol's responsible clinician is not treating Carol per se, but rather restraining Carol. However , the clinician is of course involved in the treatment of Carol, but not at this specific time. This view is a very narrow view. A Court would probably assume the clinician was 'treating' Carol for the purpose of s.122B(3) MHA. However, the writer believes the subsection should be strictly construed to exclude all others who are not 'treating' the patient at the specific time, that is, when the power under the subsection is invoked.
3. The social worker was involved in Carol's treatment a few months ago, but is no longer involved. She is not 'treating' Carol in the strict sense, but instead restraining her. Is she 'A person' for the purposes of s.122B(3) ? This is a difficult one. Surely, it would be straining the wording of the subsection to include the social worker. It is difficult to predict how a Court would view this one. Perhaps she would be covered by the subsection.
4. The visitor, who just happens to be on the ward, has no connection with the treatment of Carol. He is not treating her. He has no authority in relation to Carol whatsoever. Therefore he is outside of the scope of the subsection. If, in the unlikely event, he were to be charged with assault against Carol, he may rely in the common law defence of necessity.
It is submitted that the word 'person' in s.122B(3) of the Mental Health (CAT)Act 1992 should be confined only to those persons who are actually treating the patient at that time, and no others. This not only affords some protection for the bolidy integrity of the person it also relects section 6 NZBORA. That section states that where a word is capable of two or more meanings, the meaning most in line with a right or freedom in the NZBORA, for instance (right to refuse treatment in section 11) must be preferred to the exclusion of any other ( see operative sections 4, 5, & 6 NZBORA).
Note on Guidelines to the Mental Health (C.A.T.)Act 1992, 2000
The Guidelines to the Mental Health (Compulsory Assessment and Treatment) Act 1992, April 2000, state;
'Before force is used it is strongly recommended that the use of de-escalation skills should always be considered, and if clinically approprite used.' (at p. 58).
The above recommendation applies to section 122B(3) and is a strong recommendation. However, it is only a non -binding 'recommendation' that de-escalation skills should always be 'considered'. Whether these de-escalation skills are actually used before force is used on a patient is a matter of clinical judgment. Once again, the Guidelines allow a clinical decision to be made. It is not mandatory for persons treating a patient to use de-escalation skills 'before' they use force to treat.
The Guidelines at page 72, give further factors to be taken into account in relation to the use of force in the 'circumstances'. However, the circumstances given in 4.2 to 4.5 deal with taking, detention (4.2) transportation (4.3) force to take /or detain a patient or proposed patient (4.4) and force to gain entry to property (4.5). As such, they are not relevant to using force to treat a patient.
The Guidleines are promulgated under section 130(a) of the Mental Health (C.A.T.)Act 1992. The Guidelines are obviously not legislation, nor subordinate legislation. It is difficult to determine their precise legal status. Basically, they seem to be a set of guidleines issued from time to time dealing, inter alia, with the purpose and procedures of the Mental Health (C.A.T.)Act 1992.
For the 'weight' to be given guidlines made under the Mental Health (C.A.T.)Act 1992 see the United Kingdom House of Lords decision R v Ashworth Hospital Authority [2005] UKHL 58. When considering the Secretary of State's Code of Practice issued under the Mental Health Act 1983 (UK), in particular seclusion, Lord Bingham of Cornhill noted that whilst such a code provides guidance, not instruction, the guidance should be given 'great weight'. The Code (under UK Act) is not instruction, however it provides much more than advice which the addressee is free to follow or not as they choose. A hospital should consider the guidance with significant care and should only depart from it if it has strong reasons for doing so ( Lord Bingham at para.[21]).
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.
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