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Consent to treatment provisions

The safeguards for detained patients in relation to compulsory treatment are the ‘Consent to Treatment’ provisions in Part 4 (and now Part 4A), which include oversight by the Care Quality Commission’s Second Opinion Appointed Doctor (SOAD) scheme.

Definitions

Mental disorder

See Definition of mental disorder.

Consent

Consent is considered in the Code of Practice, chapter 24, including the following:

34.24 Consent is the voluntary and continuing permission of a patient to be given a particular treatment, based on a sufficient knowledge of the purpose, nature, likely effects and risks of that treatment, including the likelihood of its success and any alternatives to it. Permission given under any unfair or undue pressure is not consent.

34.35 By definition, a person who lacks capacity is unable to consent or refuse treatment, even if they co-operate with the treatment or actively seek it.

Part 4

Patients to whom Part 4 applies

Section 57 applies to all patients, whether detained or not.

The remainder of Part 4 applies to patients subject to:

  • Civil detention: s2 and s3
  • s36, s38, s44, s51(5)
  • s37 and equivalent (s37/41, s45A, s47, s47/49, s48, s48/49 MHA; s5 CPIA)

But not to patients subject to:

  • s4 (until converted to s2)
  • s5(2) or s5(4)
  • s7 or s37 guardianship
  • s35 (remand to hospital for reports)
  • s135 or s136
  • ‘place of safety’ provisions in s37(4) or s45A(5)
  • conditional discharge (until recalled)
  • CTO (until recalled)

Section 58A applies to the above patients, plus all children under 18 (including children on a CTO who have been recalled).

Section 63: general position

When the Part 4 compulsory treatment provisions do not apply, it makes no difference if the patient is subject to the MHA or not. The Mental Capacity Act 2005 may apply instead or as well.

When Part 4 MHA does apply (s63):

The consent of a patient shall not be required for any medical treatment given to him for the mental disorder from which he is suffering … if the treatment is given by or under the direction of the approved clinician in charge of the treatment.

This is subject to ss57, 58 and s58A, which contain special safeguards for certain treatments. The most common one is s58: medication may be given for three months, after which a SOAD is required.

However, the special safeguards can be overridden in certain urgent circumstances or where discontinuance would cause serious suffering (s62).

Questions of capacity ought to be determined by reference to the principles in the Mental Capacity Act 2005. Often the capacity in question relates to understanding ‘the nature, purpose and likely effects’ of the treatment.

Section 57: treatment requiring consent and a second opinion

This section applies to the following forms of serious, rare treatment:

  • ‘any surgical operation for destroying brain tissue or for destroying the functioning of brain tissue’ (s57(1)) (‘neurosurgery’ or ‘psychosurgery’); and
  • ‘the surgical implantation of hormones for the purposes of reducing male sex drive’ (reg 27(1) Mental Health (Hospital, Guardianship and Treatment) (England) Regulations 2008).

It requires the following for treatment to be lawful:

  • The patient consents (s57(2)); and
  • The patient’s consent and capacity to consent is certified in writing by a SOAD and two other appointed people (s57(2)(a); and
  • The SOAD certifies in writing that it is appropriate for the treatment to be given (s57(2)(b)).

It applies to all patients whether subject to the MHA or not (s56(1)).

Section 58: treatment requiring consent or a second opinion

This section applies to the following treatment:

  • The administration of medication when three months have passed during the current detention since its first administration (s58(1)(b).
  • Note that it no longer applies to Electro-convulsive Therapy (ECT) (see s58A instead).

It requires that:

  • The patient consents, and the AC or SOAD has certified that he consents and has capacity to consent (s58(3)(a)); or
  • A SOAD certifies that it is appropriate for the treatment to be given despite either the patient (a) refusing to consent or (b) lacking capacity to consent.

It applies only to those patients listed at #Patients to whom Part 4 applies above.

Section 58A: electro-convulsive therapy

Section 58A section applies to ECT (s58A(1)(a)) and the administration of medicine as part of ECT (s58A(1)(b) MHA 1983; reg 27(3) Mental Health (Hospital, Guardianship and Treatment) (England) Regulations 2008)). Its additional safeguards were inserted by the Mental Health Act 2007.

Before the MHA 2007, ECT was governed by s58: a patient with capacity could be given ECT with consent; a patient lacking capacity, or a refusing capacitous patient, could be given ECT with SOAD approval. The change took effect on 3/11/08.

The current position is as follows (where capacity is shorthand for the question of whether the patient is ‘capable of understanding the nature, purpose and likely effects of the treatment’):

  • If a capacitous adult consents, the AC in charge of treatment or a SOAD must certify that he has capacity and consents (s58A(3)).
  • If a capacitous child (under 18) consents, a SOAD must certify that he has capacity and consents, and that it is appropriate for the treatment to be given (s58A(4)). This applies even to informal children (s58A(7)).
  • If a patient lacks capacity a SOAD must certify that he lacks capacity, and that it is appropriate for the treatment to be given, and that the treatment would not conflict with an advance decision or decision of a donee, deputy or Court of Protection (s58A(5)).

In emergency situations ECT in the absence of the safeguards under s62, but only in two of the four situations mentioned in that section, namely for treatment:

  • which is immediately necessary to save the patient’s life; or
  • which (not being irreversible) is immediately necessary to prevent a serious deterioration of his condition.

Section 62: urgent treatment

The four possible types of urgent treatment are treatment (s62(1)):

(a) which is immediately necessary to save the patient’s life; or

(b) which (not being irreversible) is immediately necessary to prevent a serious deterioration of his condition; or

(c) which (not being irreversible or hazardous) is immediately necessary to alleviate serious suffering by the patient; or

(d) which (not being irreversible or hazardous) is immediately necessary and represents the minimum interference necessary to prevent the patient from behaving violently or being a danger to himself or to others.

If any of (a)-(d) apply then the safeguards in s57 and s58 are disapplied. If either (a) or (b) apply then the safeguards in s58A are disapplied.

If an existing authority to treat expires (e.g. the patient ceases to consent or loses capacity, or while waiting for a SOAD for medication at the three-month point) then treatment can continue if the AC ‘considers that the discontinuance of the treatment or of treatment under the plan would cause serious suffering to the patient’ (s62(2)).

Part 4A

The ‘Consent to Treatment’ provisions which apply during the CTO are found in Part 4A (s64A-K).

For details, see

  • Reference Guide chapter 24 (Medical treatment of Supervised Community Treatment patients (Part 4A))
  • Code of Practice chapters 24 (Medical treatment) and 25 (Treatments subject to special rules and procedures).
  • Mental Health Act Manual.

Overview of Part 4A

Part 4A was inserted by the MHA 2007 with effect from 3/11/08 to govern the administration of treatment to those subject to Community Treatment Orders. The provisions are notoriously complicated. The Part is entitled ‘Treatment of Community Patients Not Recalled to Hospital’ and its sections are as follows:

  • s64A - Meaning of ‘relevant treatment’
  • s64B - Adult community patients
  • s64C - Section 64B: supplemental
  • s64D - Adult community patients lacking capacity
  • s64E - Child community patients
  • s64F - Child community patients lacking competence
  • s64G - Emergency treatment for patients lacking capacity or competence
  • s64H - Certificates: supplementary provisions
  • s64I - Liability for negligence
  • s64J - Factors to be considered in determining whether patient objects to treatment
  • s64K - Interpretation of Part 4A

Adults

The provisions for adults apply to those who are 16 or above. There are two prerequisites for treatment to be given: ‘authority’ and (for medication or ECT) a ‘certificate requirement’ (s64B(2)).

There is ‘authority’ if there is any of the following (s64C(1)):

  • Consent from a capacitous patient.
  • Consent from a donee, deputy or Court of Protection.
  • Authority under s64D (adults lacking capacity). This requires that the clinician (1) has taken reasonable steps are taken to establish whether the patient (P) has capacity; (2) reasonably believes P lacks capacity; (3) has no reason to believe P objects or has reason to believe P objects but there is no need to use force; (4) he is the AC in charge of treatment, or treatment is given under that clinician’s direction; (5) treatment does not conflict with an advance decision or decision of a done, deputy or Court of Protection.
  • Authority under s64G (emergency). This requires that (1) the clinician reasonably believes that P lacks capacity or competence; (2) treatment is immediately necessary (as defined); (3) if it is necessary to use force then either treatment is to prevent harm to the patient or force is a proportionate response to the likelihood of the patient suffering harm and to the seriousness of that harm.

The ‘certificate requirement’ is met where:

  • A SOAD certifies that it is appropriate for treatment to be given, and that any conditions his certificate specifies are met (s64C(4)); or
  • The AC in charge of the treatment has certified in writing that the patient has capacity to consent to the treatment and has consented to it (s64C(4A) with effect from 1/6/12 – except for ECT for under 18s (s64C(4B)).

The certificate requirement does not apply in any of the following cases:

  • The treatment is given under s64G (emergency) (s64B(3)(a)).
  • The treatment is immediately necessary (as defined in s64C(5)-(8)) and there is consent from a capacitous patient or a donee or deputy or the Court of Protection (s64B(3)(b)).
  • The administration of medication during the first month of the CTO (s64B(4)) or during the first three of months of its administration under a Part 4 certificate.

Children

The separate provisions for child community provisions are found in ss64E-64G and apply to those who have not yet reached 16 years of age. Again, the two prerequisites are ‘authority and the ‘certificate requirement’ (64E(2)).

There is authority if (s64E(6)) there is:

  • Consent from a competent child.
  • Authority under s64F (children lacking competence). This has the same requirements as s64D (adults lacking capacity) with ‘capacity’ replaced by ‘competence’.
  • Authority under s64G (emergency) as described above.

The certificate requirement is the same as for adults (s64E(7)).

The certificate requirement does not apply in the following cases:

  • (As with adults) treatment is given under s64G (emergency) (s64E(3)(a)).
  • The treatment is immediately necessary and there is consent from a competent patient (s64E(3)(b)).
  • (As with adults) the administration of medication during the first month of the CTO (s64B(4)) or during the first three of months of its administration under a Part 4 certificate.

Treatment following recall or revocation

A community patient can be recalled for up to 72 hours (s17E) during which the CTO may be revoked (s17F). Treatment for such patients is governed by Part 4 as applied by s62A. Jones describes this as a ‘complex section’ and it is worth reading in the original.

If a Part 4 certificate was in existence before the CTO then this still is valid; however, following Code of Practice para 25.85, it is good practice to obtain a fresh certificate.

The three-month period for medication (following which the s58 safeguards apply) continues to run during the CTO (s62A(2)).

There is no requirement for a Part 4 certificate for s58 treatment (medication) if (s62(3)):

  • the Part 4A certificate requirement is met* (under s64C or s64E); or
  • no Part 4A certificate would have been required had the patient not been recalled, i.e. it is less than a month since the CTO began (s64B(4), s64E(4)).

There is no requirement for a Part 4 certificate for s58A treatment (ECT) if there is authority to treat, and the certificate requirement is met,* for the purposes of s64C or s64E (s62A(4)).

* For the certificate requirement to be met for these purposes:

  • the Part 4A certificate must (if given by a SOAD rather than the AC in charge of the treatment) expressly provide for the treatment to be given on recall (s62A(5)(a)); or
  • if the regulatory authority has ordered under s64H(5) that treatment cease, treatment can only be continued within the terms of s64H(8) (i.e. discontinuance pending compliance with the relevant safeguards would cause serious suffering) (s62A(5)(b)).

The two requirement above do not preclude the continuation of treatment pending compliance with s58 or s58A if discontinuance would cause serious suffering (s62A(6)).

When a patient has been revoked, the ability to continue treatment during what would have been the first month of the CTO (see above) only applies pending compliance with s58 (s62A(7)).

The urgent treatment provisions in s62 apply.

Other compulsory treatment considerations

As described above, the requirements of Part 4 or Part 4A must be met.

In addition:

  • The treatment must not breach the European Convention on Human Rights. Article 3 (prohibition of torture) requires that treatment be a ‘medical necessity’ and not reach a ‘minimum level of severity’; Article 8 (right to respect for private and family life) requires that treatment must be ‘in accordance with the law’ and proportionate (Herczegfalvy v Austria (application no 10533/83) (1993) 15 EHRR 437, R (N) v Dr M [2002] EWHC 1911 (Admin)M; Article 8(2)).
  • The treatment must also be in the patient’s best interests (R (B) v Dr SS [2006] EWCA Civ 28M). Normally the legal term ‘best interests’ only applies to incapacitous patients but here it applies to all patients (R (PS) v Dr G [2003] EWHC 2335 (Admin)M).

It is possible to seek judicial review of a decision to impose compulsory treatment but no such challenge has been successful. Where the real issue is whether the patient should be detained, the appropriate forum is the Mental Health Tribunal. The Tribunal is not the proper forum for consideration of consent to treatment issues (SH v Cornwall Partnership NHS Trust [2012] UKUT 290 (AAC)M, [2012] MHLO 143).

As compulsory treatment is possible automatically as a result of detention, it has been argued that the consent to treatment provisions may breach the ECHR (see X v Finland 34806/04 [2012] ECHR 1371M, [2012] MHLO 128).

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