Use of Force flow chart diagram
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Mental Health (Compulsory Assessment and Treatment) Act 1992
Part 10: Enforcement . . .
122B Use of force
. . .
(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.
. . .
Section 122B(3) is referential, in that it throws the reader out to sections 58 and 59. Those sections further refer the reader to sections 11 and 13 respectively. It becomes like a maze. A cynic would argue this was intentional to confuse the reader. Parliament should have amended section 58 and section 59 and expressly stated that force may be used. Instead, 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, section 122B(3) lists no specific criteria to be taken into account in the exercise of the discretion to use force (see further the post entitled; who is the "person" in section 122B(3) & Note on Guidelines to the Mental Health (C.A.T.)Act1992).
At the time of writing ( 16 October , 2006) there appears to be no case law on the subsection. This seems incredible as it has been on the statute books since 1999 . The amendment Act of 2003 inserted the words 'section 58 or' into section 122B(3) - thereby extending the application of section 122B(3) to not only section 59, but also section 58. Thus, use of force can now be used also during the assessment periods, which are sections 11 and 13. The material aspects of these sections are reproduced in the flow chart diagram above.
Mental Health (Compulsory Assessment and Treatment) Act 1992
Part 10: Enforcement . . .
122B Use of force
. . .
(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.
. . .
Section 122B(3) is referential, in that it throws the reader out to sections 58 and 59. Those sections further refer the reader to sections 11 and 13 respectively. It becomes like a maze. A cynic would argue this was intentional to confuse the reader. Parliament should have amended section 58 and section 59 and expressly stated that force may be used. Instead, 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, section 122B(3) lists no specific criteria to be taken into account in the exercise of the discretion to use force (see further the post entitled; who is the "person" in section 122B(3) & Note on Guidelines to the Mental Health (C.A.T.)Act1992).
At the time of writing ( 16 October , 2006) there appears to be no case law on the subsection. This seems incredible as it has been on the statute books since 1999 . The amendment Act of 2003 inserted the words 'section 58 or' into section 122B(3) - thereby extending the application of section 122B(3) to not only section 59, but also section 58. Thus, use of force can now be used also during the assessment periods, which are sections 11 and 13. The material aspects of these sections are reproduced in the flow chart diagram above.
The above use of force chart has be corrected:
Section 60 of the MHA has been added. Note that the legislature has not expressly included s.60 into the text of s.122B(3)(the use of force subsection). However, if a patient were subject to either s.58 or s. 59, the procedure outlined in s.60, would be relevant if ECT were proposed as treatment.
The procedure in s.60 (ECT) applies to both sections 58 and 59. If the treatment (ECT) is considered to be " in the interests of the patient" (see s.60(b)), then ECT can be administed. Can force be used to administer ECT ? It seems that it can be, as the text of s.60 expressly refers to both ss.58 and 59. And, as stated, the discretion to use force in s.122B(3) applies to a patient held under either section 58 or section 59. Section 60 (ECT) also appears in Part 5 of the MHA. Part 5 is headed "Compulsory treatment".
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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