Psychiatric injustice? The therapeutic presumption of behaviour management in mental health law

Publication Date01 Dec 2005
AuthorKirsty Keywood
The Journal of Adult Protection Volume 7 Issue 4 • December 2005 © Pavilion Publishing (Brighton) Limited 25
key words
mental health law
patient treatment
behaviour management
There are a great many people
with mental health problems receiving
treatments that are aimed primarily at
managing aggressive or challenging
behaviours by means of sedation,
seclusion or restraint. The
management of these behaviours is
frequently justified under Part IV of
, which
permits treatments – without consent
if necessary – for a person’s mental
disorder.Alternatively, the behaviours
have been managed at common law
on the basis that the patient is
incapable of giving a legally effective
consent to behaviour management
and the interventions are considered
to be in the person’s best interests.
This article considers the management
of difficult behaviours in adults with
mental health problems.This issue is
particularly timely as there have been
a considerable number of legal
challenges in this area in recent years.
This article reviews the practical
contexts in which behaviour
management, which here covers
sedation, seclusion and restraint, is
used with adults with mental health
problems and explores the legal
justifications for these interventions.
Although the justification for the
management of challenging
behaviours is frequently asserted (or,
more likely,presumed) to be
therapeutic, a review of the research
literature and recent case law casts
doubt on the credibility of this
therapeutic justification.
The legal justifications for intervention
The Mental Health Act 1983 authorises the treatment of mental
disorder for those people with mental health problems who
are detained under the Act. In order for such interventions to
be lawful, they must by given under the direction of the
patient’s responsible medical officer and constitute treatment
for the patient’s disorder (section 63). Where the behaviour
management is taking place more than three months since
treatment was first given under the Act, and is administered in
the form of medication, additional safeguards (consisting of
patient consent or approval by a second opinion appointed
doctor) must be complied with (section 58). Although the
legislation refers to ‘treatment’ for mental disorder, the courts
have adopted a sufficiently broad interpretation of treatment
to embrace acts and interventions that are ‘ancillary’ to the
primary therapeutic objective (B v Croydon District Health
Authority, 1995).
Of the behaviour management interventions discussed in
this article, the practice of restraint has attracted perhaps the
greatest degree of judicial attention. This may well be due to
the fact that the use of restraint was seen as a necessary
component of, or at least precursor to, the lawful
administration of beneficial medical treatment. In 1994, for
example, the High Court confirmed that adult patients may be
lawfully restrained in order for medical interventions
authorised by the Mental Health Act to occur (F v Riverside
Psychiatric injustice? The
therapeutic presumption of
behaviour management in
mental health law Kirsty Keywood
Senior Lecturer in Law, University of Manchester
Research paper

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