Compulsion and the deteriorating patient eldergill

Legal and Ethical Special Interest Group Discussion Paper

THE FALLING SHADOW REPORT AND THE DETERIORATING PATIENT

This discussion paper considers the issue of whether the Mental Health Act 1983 allows an asymptomatic patient who becomes non-compliant with medication to be compulsorily admitted to hospital solely on the ground that her/his medical history suggests that s/he will relapse in the future. The issue was raised in the official report of the inquiry into the circumstances surrounding the death on 1 September 1993 of Georgina Robinson, an occupational therapist working at the Edith Morgan Centre at Torbay District General Hospital.1 She was fatally wounded by Andrew Robinson, a patient unrelated to her who was diagnosed as suffering from schizophrenia and detained there under section 3. A brief summary of his mental health care prior to this tragic event is set out in the Appendix to this paper.2 The Mental Health Act Commission's Legal and Ethical Special Interest Group, which has produced this discussion paper, would welcome readers' comments on the subject.

THE COMMITTEE OF INQUIRY

The Committee of Inquiry commissioned by the South Devon Health Care Trust comprised Sir Louis Blom-Cooper Q.C., Helen Hally (Directory of Nursing at the Riverside Mental Health Trust), and Elaine Murphy (Professor of Old Age Psychiatry at United Medical and Dental Schools, Guys Hospital). According to their report submitted on 30 November 1994, the inquiry had "uncovered a lengthy tail of ill-judged and misapplied care of a severely mentally ill young man by both management and those working in health care and Social Services. Quite apart from the failure of the Trust and its employees to observe the legal requirements for granting detained patients leave of absence from the hospital, the committee discovered a general disinclination on the part of professional workers to listen to desperate pleas from Andrew's parents, friends and supporters as they recounted his successive mental breakdowns." The Committee's main findings were that—

1. The fatal incident was inherently unpredictable.

2. For reasons connected with Andrew Robinson's unlawful absence from the Edith Morgan Centre, the homicidal attack was preventable.

3. There was a likelihood of some dangerous conduct by Andrew Robinson as a consequence of the removal of a previous restriction order by a mental health review tribunal.

4. A previous guardianship application could and should have been renewed.

5. There were deficiencies in the mode and manner of communication.

1The Falling Shadow: One Patient's Mental Health Care 1978–1993 (Duckworth, 1995). 2It is suggested that readers unfamiliar with the case read that summary before proceeding further.

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THE DETERIORATING PATIENT

The Committee of Inquiry accepted that mental health practitioners face a difficult medico-legal dilemma when deciding whether to detain a patient whose mental health is likely to deteriorate in the future. They constantly struggle to find the right balance between ensuring that necessary treatment is provided and maintaining a good therapeutic relationship with the patient. Although the Code of Practice includes guidance for them about matters which they should consider when a patient's health is at risk,3 it does not directly address the question of how severely disordered a person must be before the statutory grounds for detention are satisfied. As to this problem, a Department of Health report published in August 1993, "Legal powers on the care of mentally ill people in the community," stated that a patient could not be compulsorily admitted to hospital simply because her/his past medical history suggested that s/he would relapse in the future. Richard Jones, in the fourth edition of his Mental Health Act Manual, similarly expressed the opinion that an anticipated relapse in the patient's condition was not sufficient to meet the criteria for admission under section 3.4 Consequently, many psychiatrists appeared to believe that a patient could not be detained simply because his mental health was likely to deteriorate and it was normal practice to wait "for psychotic symptoms to ripen before resorting to the powers in the Mental Health Act." This view about when compulsion becomes possible underpinned the management of Andrew Robinson's case and the Committee of Inquiry considered it to be a misunderstanding of the law.

The Committee's interpretation of the statutory conditions for detention

The inquiry team were surprised that the case of Devon County Council v Hawkins had not been cited in any of the leading textbooks.5 In that case, having found that the patient was likely to suffer further epileptic seizures if he ceased taking his medication, the court held that whether a person "suffers from" epilepsy depends on the prognosis of what will occur if anti-convulsant medication is withdrawn. The then Lord Chief Justice observed that it had been said with much force "that so long as it is necessary for a person to be under treatment for a disease or disability, then that person must be held to be suffering from that disease or disability. In my judgment that is in general right." By analogy, whether or not a person who has been receiving psychiatric treatment, but who presently shows no signs of mental disorder, still

3The Code of Practice states that those assessing the patient must consider:— (a) any evidence suggesting that the patient's mental health will deteriorate if he does not receive treatment; (b) the reliability of such evidence, which may include the known history of the individuals mental disorder; (c) the views of the patient and of any relatives or close friends, especially those living with the patient, about the likely course of his illness and the possibility of it improving; (d) the impact that any future deterioration or lack of improvement would have on relatives or close friends, especially those living with the patient, including an assessment of his ability and willingness to cope; (e) whether there are other methods of coping with the expected deterioration or lack of improvement. Code of Practice (Department of Health/ Welsh Office, 2nd Ed., 1993), para. 2.9. 4As to the meaning of the statutory phrase "suffering from," Jones had commented that, "An anticipated relapse based on the patient's medical history of mental disorder is not sufficient to meet this criterion." R. Jones, Mental Health Act Manual (Sweet & Maxwell, 4th ed., 1994), p.24. That writer has included a more detailed commentary about the deteriorating patient in the fifth edition of his textbook, published after the inquiry report was issued. See R. Jones, Mental Health Act Manual (Sweet & Maxwell, 5th ed., 1996), pp. 31–32. 5Devon County Council v Hawkins [1967] 2 Q.B. 26. Since the report's publication, the case has been included in subsequent editions of Hoggett's Mental Health Law and Jones' Mental Health Act Manual. See R. Jones, Mental Health Act Manual (note 2); B. Hoggett, Mental Health Law (Sweet & Maxwell, 4th ed., 1996).

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"suffers from" mental disorder depends on the likely effect of discontinuing treatment. And, as to the severity of any mental disorder still present, the fact that an illness is asymptomatic does not mean that it cannot have gradations of severity or, in the statutory language, gradations of a nature or degree which warrant detention. That being so, the inquiry team concluded that it was wrong to hold that the 1983 Act obliges practitioners to wait for a patient's psychosis "to ripen" before exercising their powers of detention. The present statute in fact allows a patient who becomes non-compliant to be admitted simply on the grounds that her/his medical history suggests that s/he will relapse in the future. Indeed, the domestic law has, for good reasons, long permitted such early intervention and the inquiry team quoted with approval the Lunacy Commissioners' interpretation of the conditions for certification under the Lunacy Act 1890: "If it is necessary to wait until the signs of disorder were so gross that they would be obvious to a lay Magistrate, then it would often be too late to institute effective treatment." The inquiry team were further of the opinion that the case law does not suggest that prompt re-intervention when a patient defaults on medication is contrary to Article 5 of the European Convention on Human Rights, which requires that a person detained on the ground that s/he is mentally disordered is "of unsound mind." However, each case turned on its own facts and the Committee of Inquiry stressed that they were not suggesting that every patient who defaults on medication should immediately be compulsorily admitted to hospital. Psychiatrists must act on evidence, not hunch or suspicion. In the absence of a very clear pattern of relapse, waiting to see whether psychotic symptoms emerge may be the only possible clinical approach. Furthermore, different patients require different indices of caution. Nevertheless, it is essential to discriminate between the legal and the clinical constraints. If the statutory powers should be used in such cases in an indiscriminate manner, there exist sufficient safeguards to protect patients, e.g. the right to apply to a mental health review tribunal.

Andrew Robinson's case

Applying these principles to Andrew Robinson's case, the inquiry team concluded that it was possible that prompt restoration of the guardianship regime might have sustained the previous dynamics of the relationship and restored his full co-operation when he refused half the prescribed dose in October 1992. Nevertheless, his history left no doubt that a relapse would occur when he refused further medication and by January 1993, when he refused the entire dose, the opportunity to retrieve the situation short of compulsory admission was probably lost. The history also demonstrated that, when psychotic, he became "chillingly violent" and aggressive and his index offence in 1978 was proof that he was capable of being extremely dangerous. Caution and early intervention were therefore essential and, when such a patient refused further medication, which on previous evidence would lead to relapse, there was "probably no legal impediment to his readmission to hospital at the point of loss of insight." More particularly, there was no legal need to await a significant deterioration in his health before taking action and a mental health practitioner would be justified in using the powers conferred by Part II. The Inquiry team also considered whether or not there should have been any breaks in the medication given to Andrew Robinson and whether or not there should have been any strategy which included reducing or continuing the medication. Because he posed a risk to others, and because of the harm to himself caused by further relapses, they concluded that every possible effort should have been made to ensure that his medication was continuous. The law in fact permitted this although the professional carers did not appreciate it at the time.

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COMMENTARY

The Committee of Inquiry's findings and recommendations (the lessons which they considered to be generally applicable) very much turned on their interpretation of the facts of Andrew Robinson's case. The Mental Health Act Commission's Legal and Ethical Special Interest Group makes the following comments in relation to the analysis set out in the report—

1. Good practice relies on good morale and a feeling amongst practitioners that they will be supported if they act reasonably given the circumstances known to exist at the time when a decision is taken. It is not just to criticise them when decisions properly made have unfortunate, even catastrophic, consequences.

2. Risk cannot be avoided. Every decision about the need, or the continuing need, to detain a person in hospital involves the assumption of a risk. If an individual is not detained, or a tribunal releases a patient who has been detained, the individuals taking that decision risk catastrophe and, if the patient then commits suicide or a serious offence against a third party, public criticism. Yet, however careful the assessment of the nature and extent of the risks involved, it is inevitable that some patients will later take their own lives or, more rarely, commit a serious offence outside hospital. These events also happen in hospitals, as in Andrew Robinson's case. The occurrence of such tragedies does not per se demonstrate any error of judgement on the part of those who decided that supervising the individual outside hospital did not involve assuming an unacceptable risk. Even a very low risk, such as winning the lottery, from time to time becomes an actuality.

3. The group accepts that the incident which occurred was inherently unpredictable. However, on the published evidence, it does not also accept that, simply because Andrew Robinson obtained a knife whilst absent without leave, which became "the" knife a week later, the death was necessarily preventable. As a matter of pure logic, it may just as well be said that the incident was preventable in that it would not have occurred had no section 3 application been made, in which case he would not have been in hospital at the relevant time. The patient's previous absence from hospital and his possession of a knife were neither sufficient nor necessary causes of the professional's death, as distinct from the mode of death.6

4. It is noteworthy that the death occurred in hospital and during a period when the patient was liable to be detained in hospital under the Act. Any suggestion that it would or might not have occurred, and by implication that some other equally serious incident would also not have occurred, had a section 3 application been made some months earlier can only be pure speculation.

6The fact that Andrew Robinson was absent without leave, and obtained a knife whilst so absent, was a contributory cause in a particular causal sequence. However, an outcome "often occurs as a result of a whole chain of events which are best regarded together as an effective causal complex. None of the various causes in the sequence may be essential even though, colloquially, they are regarded as the primary cause. A different set of causal factors could have the same end result and the choice of any one particular causal factor in this complex may be arbitrary." G.W. Bradley, Disease, Diagnosis and Decisions (John Wiley & Sons, 1993), p.39.

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5. While insight and co-operation may become progressively harder to restore following each relapse, the clinical picture is most often profoundly coloured, and sometimes decisively shaped, by factors specific to the individual and his environment. Variability is the law of life and no two individuals react alike and behave alike under the abnormal conditions which we know as disease.7 Each case must be judged by mental health professionals according to what they know of that individual. It is again pure speculation to imply that Andrew Robinson's case would necessarily have had a materially different outcome if treatment had been resumed at an earlier stage.

6. Notwithstanding this observation, the group accepts that early intervention following a withdrawal from treatment is often desirable. However, it also accepts that such an approach carries its own peculiar risks, in that the patient may refuse further contact with the psychiatric services once that admission is over. The consequence of an early intervention policy aimed at ensuring continuity of medication and treatment is then that the patient subsequently receives neither medication nor supervision — in which case, the policy is self-defeating. All that can be done is to balance the competing risks as judiciously as possible, in the knowledge that the decision will necessarily be based on an incomplete knowledge of all those factors which may affect the outcome.

7. The group further accepts that each case turns on its own facts; that psychiatrists must act on evidence, not hunch or suspicion; that, in the absence of a very clear pattern of relapse, waiting to see whether psychotic symptoms emerge may be the only possible approach; and that different patients require different indices of caution. More particularly, it also accepts that Andrew Robinson's history constituted strong evidence that a cessation of medication was soon followed by relapse, that relapse led to psychosis, and that, when psychotic, he had a proven capacity for extremely dangerous behaviour. Caution and early intervention were therefore indicated even though he had been compliant and successfully treated outside hospital between 1989 and 1992.

8. If the phrase "psychosis" was used by the Committee of Inquiry to indicate the presence of hallucinations, delusions, or severely abnormal behaviour, the subsequent debates about "ripening psychoses" are mere puff, revolving around nothing more substantial than an imprecise analogy.8 For, while an apple which has not ripened is still an apple, a psychosis without evidence of psychotic phenomena is not a psychosis. It is to be remembered that the inquiry team began by referring to "the now-discredited approach of ophthalmologists advising patients to wait for their cataracts 'to ripen' before seeking a lens replacement." They then referred to the fact that psychiatrists often similarly waited — unnecessarily and unadvisedly — "for a patient's psychosis to ripen"

7Sir W. Osler, Medical education in Counsels and Ideals (Houghton Mifflin, 2nd ed., 1921). 8The term "psychotic" is retained in the ICD-10 classification "to indicate the presence of hallucinations, delusions, or a limited number of severe abnormalities of behaviour, such as gross excitement and overactivity, marked psychomotor retardation, and catatonic behaviour." Classification of Mental and Behavioural Disorders: Clinical Descriptions and Diagnostic Guidelines (World Health Organisation, 1992), pp.3–4. The term "psychosis" was devised by Feuchtersleben in 1845 as a common term for a variety of mental and personality disorders. Subsequently, it acquired a range of meanings, being used inter alia to describe certain classes of mental disorder such as the schizophrenias ("the psychoses").

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before taking steps to have him admitted to hospital. Since, in the first situation, the patient does actually have a cataract, the analogy misleadingly suggests that the individual in the second situation has a psychosis, albeit one that has not ripened. Furthermore, this unripened psychosis justifies immediate intervention.

9. If the Committee of Inquiry were using the term "psychosis" simply as a descriptive term to indicate people still diagnosed as suffering from a serious mental illness such as schizophrenia ("the psychoses"), the issue may be more accurately formulated without any reference to ripening psychoses. It is simply whether a patient diagnosed as suffering from a serious mental illness may be compulsorily readmitted to hospital even though there are presently no signs that his thinking, mood or behaviour is abnormal.

10. Taking this to be the issue, it is one thing to say (as the Lunacy Commissioners did) that it is not necessary to wait until the signs of disorder are so gross that they would be obvious to a lay Magistrate, because it would often then be too late to institute effective treatment, another to say that a person can be detained even though there are no signs of disorder. Again, there is a lack of precision in the Committee of Inquiry's use of language. This laxity is unfortunate because it tends to result in a lack of clarity, whereas the logic of terminology should be exploited to reinforce the conceptual framework.

11. As to the legal constraints, the group is of the opinion that the Committee of Inquiry was unduly selective in its references to the existing case law. Although, in exceptional cases, the admission criteria may be satisfied even though the patient is virtually asymptomatic, the "unsoundness of mind, whose presence is essential to justify a compulsory order, manifestly means more than mental illness which qualifies a person to be a voluntary patient ... in ordinary language "certifiable" is perhaps more likely to be used to express the same idea."9

12. The fact that a person taking anti-convulsant medication may still be liable to have further seizures, particularly if he ceases taking prescribed medication, has no direct bearing on the issue of whether the 1983 Act, properly interpreted, allows professionals to compel an asymptomatic patient to take uncomfortable mind altering drugs for an indefinite period. Furthermore, whether it is necessary for the patient's health or safety or to protect others that he receives in-patient treatment raises issues different from those which determine whether a person with epilepsy should be permitted to drive. While the risk of someone with epilepsy having a fit whilst driving is very low but the danger to himself and others if that happens is extremely high, the risk that a person diagnosed as having schizophrenia may relapse if he ceases medication is often very high but it is not necessarily clear that either s/he or others will be endangered by this.

9Buxton v. Jayne [1960] 2 All E.R. 688 at 697, per Devlin L.J.

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OPINION

With regard to the primary issue of whether a patient may lawfully admitted to hospital under Part II despite the absence of any signs of mental disorder, the Mental Health Act Commission's Legal and Ethical Special Interest Group is of the following opinion—

1. A person who has suffered from schizophrenia, mania or depression and whose symptoms are merely controlled by medication still "suffers from" mental illness specifically and mental disorder generally.10 Furthermore, the fact that a person is in remission, and there are no longer any symptoms or signs of mental disorder, is not proof that the underlying disorder is not of a severe nature. In this the group agrees with the main conclusion reached by the Committee of Inquiry.

2. In the case of admission under section 2, it does not suffice that two medical practitioners are of the opinion that the individual is presently suffering from mental disorder notwithstanding the absence of any symptoms or signs of mental disorder. Any disorder present must be of a nature or degree which warrants his detention in hospital for assessment. It must also be the case that he ought to be detained for assessment in the interests of his own health or safety or with a view to the protection of other persons.

3. The present degree of mental disorder being nil, it follows that the individual cannot be detained for assessment in hospital unless the nature of his disorder warrants this.

4. The nature of a person's disorder is revealed by its history and, if the historical evidence is particularly compelling, the law would permit early intervention. Nevertheless, the right to liberty is highly prized by English law. The "unsoundness of mind, whose presence is essential to justify a compulsory order, manifestly means more than mental illness which qualifies a person to be a voluntary patient ... in ordinary language "certifiable" is perhaps more likely to be used to express the same idea."11

5. That being so, and given the present absence of any symptoms and signs of unsoundness of mind, there must be reliable evidence of a continuing unsoundness of mind the nature of which warrants compulsory detention for assessment. That evidence would need to be sufficiently compelling that it could properly be said that the individual "ought to be" deprived of his liberty in the interests of his own health or safety or with a view to protecting others.

10Whether that person's symptoms are merely being controlled by medication or whether there has been an improvement in the underlying condition may, of course, be difficult to determine. 11Buxton v. Jayne [1960] 2 All E.R. 688 at 697, per Devlin L.J. "The term 'mental illness' is not defined. Its interpretation is a matter for medical judgment, but it is expected that when it is qualified by the words 'of a nature or degree which warrants the detention of the patient in hospital for medical treatment' ... it will be taken as equivalent to the phrase 'a person of unsound mind' which has been in use hitherto in connection with compulsory detention ... When it is not qualified by these limiting words, however, the term ... carries its normal (much wider) meaning." Mental Health Act 1959: Memorandum on Parts I, IV to VII and IX, (D.H.S.S., 1960), para. 40.

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6. At the very least, there would need to be reliable evidence (a) that the patient's symptoms are merely being controlled by the residual effect of the medication which he has recently ceased taking; (b) that he therefore continues to suffer from mental disorder; (c) that the natural course (i.e. the nature) of that disorder is that relapse inevitably follows the discontinuation of medication; (d) that his health or safety, or other persons, are significantly at risk when the manifestations of his disorder are not controlled; and (e) that these risks justify depriving him of his general right to liberty, including his freedom to refuse medical advice and treatment.

7. In addition, it is probably the case that there must be some evidence that the patient's mental health has begun to deteriorate. That is, there must be some evidence of an abnormality of mental functioning which enables a doctor to reach an opinion on evidence, rather than pure conjecture, that this familiar chain of events is once more in motion.12 Only if there is evidence of the continuing existence of a disorder which has this nature, and which is developing along its natural course, could one be justified in concluding that future events will follow the previous pattern if not checked, so that deprivation of liberty is justified. Certainly, the Commission would need clear statutory or judicial authority before it accepted that Parliament intended that persons whose mental functioning was not abnormal could be detained in a hospital for treatment. Holding otherwise would mean that persons whose mental functioning is not presently abnormal may be denied their liberty and compelled to accept treatment.13

8. The group therefore further concludes that detention under section 2 also requires reliable evidence (f) of abnormality of mental functioning of a kind known to be associated with the underlying disorder when it is not controlled by medication. There does not need to be evidence that the patient is psychotic in the sense that hallucinations, delusions, or severely abnormal behaviour is apparent provided that it is clear that the disorder is beginning to manifest itself in the familiar way (see footnote 7).

9. Subject to judicial supervision and guidance, the group concludes that, provided a medical practitioner is of the opinion that conditions (a) to (f) exist, s/he may lawfully complete a section 2 medical recommendation. The underlying purpose would no doubt be to assess the current situation, and in particular the risk to others, in the light of the recent, familiar, deterioration in the patient's mental health. That is not to say that there is a duty to give a recommendation in those circumstances or that it would be negligent not to do so. The Act allows mental health professionals a considerable discretion in terms of how best to help the patient and how best to manage the situation facing them.

10. If two medical recommendations are forthcoming in such a case, the focus shifts to the prospective applicant, who will usually be the approved social worker

12As to this, it is worth noting that the main purpose of the supervision register is to record warning signs and other practical information about the identified risks in the particular case. 13The group again draws attention to what the Lunacy Commissioners actually said, which is that it is not necessary to wait until the signs of disorder are so gross that they would be obvious to a lay person, i.e. by implication, there must be some signs of disordered mental functioning.

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asked to assess the appropriateness of compulsory admission. It is that professional's business, rather than the doctors, "to see that the statutory powers are not used unless the circumstances warrant it."14 That being so, an approved social worker must, before making any application, "satisfy himself that detention in a hospital is in all the circumstances of the case the most appropriate way of providing the care and medical treatment of which the patient stands in need."15 More particularly, such a person is only ever under a duty to make an application if satisfied that such an application ought to be made and of the opinion that it is necessary or proper for the application to be made by her/him.16

11. Again, it would, we suggest, be lawful to make a section 2 application provided that conditions (a) to (f) exist but, equally, it would be lawful not to do so if the social worker was not satisfied that such an application ought to be made and was not of the opinion that detention in a hospital was the most appropriate way of providing any care and medical treatment of which the patient stood in need.

12. To this extent, the group agree with the Committee of Inquiry that the legal and clinical constraints must be distinguished. Although there may be no legal reason why an application may not be made, the professionals may properly conclude that such an application is not appropriate, because of the need to maintain a relationship with the patient and to continue attempts to establish a framework for her/his care in the community.

13. Turning to admissions under section 3, the considerations are similar to those applicable in assessment cases. It again does not suffice that two medical practitioners are of the opinion that the individual is presently suffering from mental illness notwithstanding the absence of any symptoms or signs. That mental illness must be of a nature or degree which makes it appropriate for him to receive medical treatment in a hospital. Furthermore, it must be the case that it is necessary for the individual's health or safety, or for the protection of others, that s/he should receive in-patient treatment, which cannot be provided unless s/he is detained under section 3.

14. A section 3 medical recommendation must set out the grounds for the doctor's opinion that these statutory conditions are satisfied. More particularly, it must also state the reasons for the doctor's opinion, firstly, that it is necessary for the patient's health or safety, or to protect others, that s/he should receive medical treatment in a hospital and, secondly, that such treatment cannot be provided unless s/he is detained under the section. That statement must specify whether other methods of dealing with the patient are available and, if so, why they are not appropriate.

15. The present degree of mental disorder being nil, it follows that in-patient treatment could only be appropriate if the nature of the patient's mental illness makes this appropriate. As already noted, the nature of a person's mental illness is revealed by its history and, if the historical evidence is particularly compelling, the law would permit early intervention.

14Buxton v. Jayne [1960] 1 W.L.R. 783, per Devlin L.J. 15Mental Health Act 1983, s.13(2). 16Mental Health Act 1983, s.13(1).

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16. However, the use of the word "necessary" in the section 3 admission criteria indicates that nothing short of in-patient treatment will adequately safeguard the patient's health or safety, or protect others, and that in-patient treatment cannot be provided except by recourse to section 3. This is a stronger test than that which applies under section 2 and the group is of the opinion that, where a person is detained on the ground that the nature but not the degree of his disorder requires this, detention for a short defined period of assessment will usually be more appropriate.

17. In Andrew Robinson's case he was "highly co-operative" during his period under guardianship which ended in July 1992 and, following that "successful period of treatment," his doctor was struck on 25 January 1993 by how well he seemed. He noted that Andrew showed some insight into his condition and that he accepted the need to be under the care of a consultant psychiatrist. That being the doctor's opinion, it is difficult to see how he could properly have completed a medical recommendation at that time. The more so since the recommendation would have had to specify his reasons for considering that in-patient treatment was necessary and he could hardly recite that he was struck by how well the patient seemed.

18. However, by 18 February 1993, Andrew Robinson appeared to be more agitated, with a paranoid flavour to the content of his speech, and to have lost the earlier insight. He had failed to keep his out-patient appointment and there had been police reports that he had been following a boy. Later still, on 3 March, he sent a letter which indicated that he was preoccupied with killing again whilst, on 12 March, a doctor found that he was "evidently deteriorating." The situation on 18 February was therefore that the patient's history was strong evidence (a) that the nature of his disorder was such that a cessation of medication was soon followed by relapse; (b) that relapse led to psychosis; and (c) that, when psychotic, he had a proven capacity for extremely dangerous behaviour. In addition, (d) there was evidence that he was relapsing, i.e. there was evidence of an abnormality of mind and that the familiar chain or pattern of events was in motion.

19. The group's opinion is therefore that it would have been lawful at this point for a medical practitioner to complete a recommendation on the basis that the nature of his disorder warranted his detention in hospital for assessment and that he ought to be detained with a view to the protection of others. That is not to say that it was negligent not to do so for the Act allows professionals a discretion and they might properly have thought that the situation was retrievable. For the reasons given, the group is not persuaded that it would have been lawful to have detained him in October 1992, simply because he refused half his prescribed medication, or on 3 January 1993, when he refused his depot injection in its entirety.

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APPENDIX

In October 1976, at the age of 19, Andrew Robinson commenced an economics degree at a university in Lancashire. He became pre-occupied with his nose and referred himself to a surgeon in London during the winter vacation, undergoing plastic surgery. He did not return to that university in the new year. In October 1977, he went to read French at a university in Wales. After two weeks there he met Miss B, with whom he had a brief relationship and became obsessed. His deteriorating mental health culminated in an overdose of aspirin and paracetamol and an admission to a local psychiatric unit. On his return to the university at the beginning of the second term, Mr. Robinson underwent psychotherapy with a clinical psychologist. However, his depression and fixation on Miss B continued. He cut his wrists and sought, and obtained, further plastic surgery on his nose. At this stage, the diagnosis was of a personality disorder and there were no obvious symptoms of psychosis. On 3 June 1978, Mr. Robinson took a shotgun from a fellow student's room and was found hiding in a toilet by the gun's owner. He ran off, was followed, loaded the shotgun, fired it once, and then ran to Miss B's room. He pushed her into the room and placed the gun against her forehead. Another student arrived on the scene, a struggle ensued, and shots were fired at the wall. The gun was wrenched from his possession and he then grasped Miss B by the neck. Following his arrest, he told the police that he had gone to Miss B's room "not fully certain of my intentions but with thought of seriously hurting her and killing myself." Mr. Robinson subsequently pleaded guilty to counts of possessing a firearm with intent to endanger life and assault occasioning actual bodily harm. The court was of the opinion that his illness and potential dangerousness were likely to be long lasting, and it directed his admission to Broadmoor Hospital in pursuance of a hospital order and a restriction order without limit of time. At Broadmoor, it was reported that Mr. Robinson's "psychotic illness markedly improved with neuroleptic medication although by no means in full remission. He was admitted as a 'non-violent' person, remained non-violent throughout and he was discharged non-violent." His psychiatrist considered his condition could be controlled provided that he remained on injectable medication in the community, although the possibility of relapse had to be considered. Just under three years after his admission to Broadmoor, Mr. Robinson was transferred to the care of Exe Vale/Wonford Hospital in Exeter. The following year, he was discharged to his parents' home, near Tavistock, and variously lived with his family, friends or in bed and breakfast accommodation between 1983 and 1985. During this period the psychiatrist in charge of his case considered that he generally remained well. However, his family and other professionals at various times expressed some concern for his mental health and behaviour. He also started to complain about the side effects of medication and his consultants were finally persuaded to stop all medications.

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In April 1986, Mr. Robinson was detained under section 3 at the Moorham Hospital in South Devon. In September 1986, a Mental Health Review Tribunal discharged the hospital and restriction orders. This was in accordance with his supervising psychiatrist's recommendation but against the advice of both the Home Secretary and his supervising social worker.17

During 1987 and 1988, Mr. Robinson lived at various establishments in the community punctuated by a number of formal and informal admissions to the Edith Morgan Centre. He was also arrested on three occasions and, on another occasion, a landlady found a gun in his room. In 1989, he was transferred to the Butler Clinic Regional Secure Unit in Devon and then, in November of that year, discharged back into the community following the making of a guardianship application under section 7. He was required by his guardian to reside at a specified address and to attend a Day Centre and weekly meetings with his community psychiatric nurse. A contract was drawn up in an attempt to ensure compliance with these requirements. In the event, Mr. Robinson was "highly co-operative" and a "successful period of treatment" ensued even though he realised that the guardian had no power to compel him to receive prescribed medication. His desire to co-operate caused him to accept medication, because he did not want to "fall out" with those caring for him. The guardianship was eventually discharged in July 1992, some eleven months before Georgina Robinson's death, because both the patient's responsible medical officer and social worker were of the opinion that its continuance would not confer any further benefit. In September 1992, Mr. Robinson moved into his own flat in Torquay. In October, the doctor seeing him, Dr. W., who was not section 12 approved, was aware that he was refusing half his full depot injection.18 On 4 January 1993, the patient then declined his depot injection entirely. On 25 January 1993, Dr. W. saw the patient and

"was struck by how well he seemed. The meeting was clearly amicable. Andrew even showed some insight into his condition. He accepted the need to be seen to be under the care of a consultant psychiatrist, and appeared to be ready to meet his new psychiatrist, Dr. M, three weeks later."

However, by the time that Dr. W saw him next, on 18 February 1993, there had been reports from the Sidmouth police that Andrew had been following a boy there. He had failed to keep his appointment with Dr. M. two days earlier. Dr. W. went to Andrew's flat in Torquay when he appeared to him more agitated, with a paranoid flavour to the content of his speech; he appeared to have lost the earlier insight. He became angry and accusatory when he was asked about his missed appointment with Dr. M., and demanded that his visitors leave. Dr. W. thought that, in

17The inquiry team noted that the tribunal's decision meant that the Secretary of State no longer had a power to recall him to hospital if he defaulted on taking medication in the community. It was of the opinion that, had the restrictions remained in force, firmer action would have been taken (by the Secretary of State) when he later refused medication as an out-patient. 18The inquiry team were of the opinion that it was possible that prompt restoration of the guardianship might have sustained the previous dynamics of the relationship, and with it restored his full co-operation, when he began to refuse half of the dose in October 1992: "We certainly think that this should have been tried, given its previous success. But with passing time it became less likely that it would ... Certainly by January 1993, when he refused the entire dose, the opportunity to retrieve the situation short of compulsory admission was probably lost." The Falling Shadow: One Patient's Mental Health Care 1978–1993 (Duckworth, 1995), pp.162–163.

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the absence of psychotic features, it would be difficult to justify compulsory admission ... Dr. M. ... felt ... that Andrew should be given time to 'cool off.'

Andrew Robinson's father, by now back from South Africa ... wrote ... on 8 March saying that, since ceasing to take medication, his son was again very unwell, that he feared a disaster, and that it was like 'waiting for a time bomb to go off.'

On 12 March, after some strange letters had been received, Andrew was seen by Dr. M., who found him 'evidently deteriorating.' Dr. M. was aware of a letter sent on 3 March by Andrew indicating that he was preoccupied with killing again. This did not produce the resolve to 'section' him."19

Mr. Robinson remained living in the community until June 1993, when he was admitted under section 4 to the Edith Morgan Centre. This was his seventh admission to that hospital. A section 3 application was subsequently made. On 25 August 1993, whilst apparently absent without leave, he purchased a Prestige kitchen knife with which he fatally wounded Georgina Robinson a week later. He was convicted in March 1994 of manslaughter on the ground of diminished responsibility and is now again detained in a special hospital.

19The Falling Shadow: One Patient's Mental Health Care 1978–1993 (Duckworth, 1995), pp.155–156.

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Compulsion and the deteriorating patient eldergill

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Transcript of Compulsion and the deteriorating patient eldergill