ABSTRACT
One of the most problematic issues faced by those dealing with, and legislating for, mentally disordered offenders concerns the circumstances in which compulsory treatment for mental disorder can be imposed on mentally disordered offenders. The starting point is that medical treatment per se requires the consent of the person to whom it is given; where that person cannot give consent, perhaps because they were unconscious or suffering from dementia, treatment was given under the common law doctrine of necessity, provided that treatment was in the patient’s best interests. The treatment of those lacking decision-making capacity, for whatever reason, is now subject to the Mental Capacity Act 2005, which has broadly codifi ed the previous common law position. For those suffering from mental disorder treatment could, and still can, be imposed for mental disorder without consent if the person is detained as a patient subject to the MHA 1983. But that treatment has to take place in hospital. Even the introduction of community treatment orders by the MHA 2007 still necessitates that patients who do not consent to treatment, for example in the form of depot injections,1 must be returned to a hospital or clinic for the administration of that treatment. However, it is not possible to impose treatment against the capacitous wishes of a detained prisoner:2 hence the need for legal provisions that allow the transfer of prisoners to hospital for treatment (and for their return to prison on the completion, successful or otherwise, of that treatment). As Baroness Hale (2007) has pointed out, for patients, detention is a means to an end; for prisoners, detention can be an end in itself, albeit that there may be opportunities for rehabilitation. So even if the standards of care were comparable between the two institutional settings, itself a contentious matter, the nature of the care that can be
provided and the ambience in which it occurs will differ between hospitals and prisons (see Birmingham et al, 2006). And the ECHR here provides only very limited protection; not only does the doctrine of medical necessity set the threshold very high before a breach of Article 3 can be established, but even where conditions fall below what would be ethically acceptable in, for example, the psychiatric wing of a prison, breach will still not necessarily be established.3
