Family lawyer organisation, Resolution, has issued two joint notes to assist family lawyers in England and Wales ahead of the end of the Brexit transition/implementation period at 11 pm on 31 December...
(Queen's Bench Division, His Honour Judge Platts, sitting as a High Court judge, 17 February 2012)
The 55-year-old man had a long history of mental illness and was detained under s 136 of the Mental Health Act 1983 and taken to a clinic in Dorset where he was admitted under s 2. His continued detention was subsequently authorised under s 3.
While in the clinic he suffered a serious head injury as a result of the admitted negligence of the defendants. He remained detained pursuant to s 3 at a low-secure but locked unit. He now claimed that he did not require that level of security and he sought damages for the ongoing cost of future care and treatment at whichever institution it was in his best interests to attend.
The defendant trusts did not accept that the man should move from the current placement which was provided by the NHS and funded by the primary care trust. They raised an objection in principle that it was not open to a person detained under the Mental Health Act 1983 to pay for his or her own care and treatment.
The judge found, as a preliminary issue, that a person detained under a provision of the Mental Health Act 1983 was not as a matter of public policy, or otherwise, prevented from paying for his or her own treatment or care.
It was not the case that a patient, by paying for his or her own treatment or care, gained the ability or right to choose the treatment. That would be inconsistent with the statutory scheme. The right to make a decision was and remained with the detaining authority by virtue of the statutory provisions so long as the patient remained detained. There was, however, no difficulty with the patient providing money to facilitate a placement or treatment which was deemed appropriate by the detaining authority.
There was a prospect of a patient who funded his or her own placement being more likely to challenge the nature of the care and treatment and expectations of a positive outcome may be higher but those expectations had to be managed carefully. So long as the patient remained subject to detention then he or she had to accept the treatment and placements as directed by the detaining authority. There was no reason why those practical difficulties should deprive the patient of the right to choose to pay if he or she wished.