Health and Social Care Act 2012
The following changes have not been made to the text on MHLO yet:
- Section 38 (Approval functions) inserts s12ZA (Agreement for exercise of approval function: England), s12ZB (Requirement to exercise approval functions: England), s12ZC (Provision of information for the purposes of section 12ZA or 12ZB),
- Section 39 (Discharge of patients) amends s23, s24, schedule 1, and makes consequential changes to other Acts.
- Section 40 (After-care) amends s117.
- Section 41 (Provision of pocket money for in-patients) amends s122.
- Section 42 (Transfers to and from special hospitals), subject to saving provisions, repeals s123, amends s68A and s138, and repeals part of another Act.
- Section 43 (Independent mental health advocates) amends s130A, s130C, and another Act.
- Section 44 (Patients’ correspondence) amends s134.
- Section 45 (Notification of hospitals having arrangements for special cases) amends s140 and another Act.
- Section 185 (Independent advocacy services) amends s134.
- Section 217 (Approval of courses for approved mental health professionals) inserts s114ZA, amends s114 and s114A
- Schedule 5 part 1 paras 24ff amend s19, s23, s32, s39, s134, s139, s145, and makes consequential amendments to other Acts.
- Schedule 5 part 2 para 50 amends s139.
Mental Health (Hospital, Guardianship and Treatment) (England) (Amendment) Regulations 2012 — These regulations amend the Mental Health (Hospital, Guardianship and Treatment) (England) Regulations 2008 by introducing a new form snappily entitled 'Form CTO12 - Regulation 28(1A) - Mental Health Act 1983 section 64C(4A) - certificate that community patient has capacity to consent (or if under 16 is competent to consent) to treatment and has done so (Part 4A consent certificate)'. This form will be for the Responsible Clinician to fill in, when the requirement for a SOAD certificate in these circumstances is removed by s299 Health and Social Care Act 2012. In force immediately after that section comes into force (on such day as the Secretary of State may by order appoint).
Explanatory notes to s299
Supervised community treatment
Section 299 – Certificate of consent of community patients to treatment
1517. This section amends the rules in the Mental Health Act 1983 (the 1983 Act) aboutthe treatment of patients on supervised community treatment. In particular, it changesthe circumstances in which their treatment has to be approved by a second opinionappointed doctor (SOAD), appointed (in England) by the CQC or (in Wales) by theHealthcare Inspectorate Wales on behalf of the Welsh Ministers. The effect of thechanges is that approval by a SOAD will not generally be necessary if the patient isconsenting to the treatment in question.
1518. Supervised community treatment was introduced into the 1983 Act by the MentalHealth Act 2007. Patients who have been detained in hospital for treatment for their mental disorder may be discharged by their responsible clinician from detention on tosupervised community treatment by means of a community treatment order, providedthe relevant criteria are met (see section 17A of the 1983 Act). While on a community treatment order, supervised community treatment patients (referred to in the Act as“community patients”) remain liable to recall to hospital for further treatment, if necessary.
1519. One of the criteria for putting patients on to supervised community treatment is that it isnecessary for their own health or safety, or for the protection of others, that they receive medical treatment for their mental disorder. However, supervised community treatmentpatients may not (in general) be treated against their will unless they are recalled tohospital by their responsible clinician.
1520. The rules on treating supervised community treatment patients for mental disorder(unless recalled to hospital) are set out in Part 4A of the 1983 Act. They differ depending on whether the patient has the capacity, or (in the case of a child under 16) thecompetence, to consent to the treatment. (For the purposes of these explanatory notes,“capacity” will be used to include competence.)
1521. In brief, patients who have the capacity to consent to treatment may not be treatedunless they do, in fact, consent. In addition, whether or not the patient has the capacity to consent, certain treatments could previously only be given if they had been approvedas appropriate by a SOAD. This is known as the “certificate requirement”, becauseapproval had to be given by the SOAD on a “Part 4A certificate” in a form set out in regulations by the Secretary of State in England, or by the Welsh Ministers in Wales.
1522. A SOAD’s Part 4A certificate was generally required for medication (after the patienthas been on supervised community treatment for one month) and for electro-convulsive therapy. In the 1983 Act, these are known respectively as “section 58 type treatment”and “section 58A type treatment”, after the sections of the Act which set out the ruleson when the treatments in question may be given to detained patients. In emergencies,certificates are not required where the treatment is immediately necessary.
1523. It is the rules about these certificates which are changed by this section.
1524. The section amends sections 64C and 64E of the 1983 Act so that, if the patient consentsto the treatment in question, the approved clinician in charge of the treatment willsatisfy the certificate requirement by issuing their own Part 4A certificate stating thatthe patient consents to the treatment and has the capacity to do so. This new approvedclinician’s Part 4A certificate is now sufficient to meet the certificate requirement solong as the patient continues to consent and has capacity to do so. But it is still possibleto meet the certificate requirement by means of a Part 4A SOAD certificate instead.
1525. This new rule does not apply to electro-convulsive therapy for patients under 18 (nor toany other treatments for such patients which are in future added to section 58A by orderof the Secretary of State in England, or the Welsh Ministers in Wales). That is because,unless it is an emergency, treatments covered by section 58A may not be given to anypatient under 18 (whether or not they are otherwise subject to the 1983 Act) withoutthe approval of a SOAD.
1526. The section also inserts a new section 64FA into the 1983 Act to make clear that asupervised community treatment patient who has consented to treatment may at anytime withdraw that consent. The new section also sets out what happens if a patient whohas consented to treatment subsequently loses the capacity to do so. In both cases, thepatient will be treated as having withdrawn consent to the treatment in question. This,in turn, means that any approved clinician’s Part 4A certificate relating to the treatmentwould no longer be valid, and a SOAD’s Part 4A certificate would be required instead.
1527. However, new section 64FA(5) provides that treatment may continue whilst a newcertificate is being sought, if the approved clinician thinks that stopping the treatmentwould cause serious suffering to the patient. This might allow treatment to continue inthe case of a patient who has lost capacity to consent, but it does not allow treatmentto continue against the wishes of a patient who still has capacity to consent, unless the patient were recalled to hospital. That is because there is no legal authority to give thetreatment even if a SOAD’s Part 4A certificate has been obtained.
1528. The section makes some further amendments to the 1983 Act to reflect the fact thatthere are now two different types of Part 4A certificate. It amends section 64H to enable the Secretary of State in England, and the Welsh Ministers in Wales, to set out differentforms for the different Part 4A certificates in regulations. It amends section 17B sothat the power in section 17E, to recall a supervised community treatment patient tohospital for examination with a view to a Part 4A certificate, will continue (as before)to apply only to a SOAD’s Part 4A certificate. It also amends section 61 to provide thatthe Care Quality Commission and the Welsh Ministers retain the power to withdraw aSOAD’s Part 4A SOAD certificate, but are not able to withdraw an approved clinician’scertificate.
1529. The rules on treating detained patients are in Part 4 of the 1983 Act. For the most part,detained patients may be given treatment for mental disorder without their consent, evenif they have capacity to refuse it (although this does not apply to electro-convulsivetherapy unless it is an emergency). However, sections 58 and 58A set out circumstancesin which detained patients may not be given medication or electro-convulsive therapy unless it has been approved by a SOAD on a certificate, or an approved clinician hasissued a certificate saying that the patient consents to the treatment (and has the capacityto do so).
1530. In general, supervised community treatment patients recalled to hospital are subject tothe same rules as detained patients, although section 62A provides that a new certificateunder section 58 or 58A is not required if the treatment has already been expresslyapproved by a SOAD on a Part 4A certificate.
1531. This section extends the exception in section 62A to approved clinicians’ Part 4Acertificates. In other words, a new certificate under section 58 or 58A is not requiredif the treatment in question is already covered by an approved clinician’s Part 4Acertificate, provided that the patient continues to consent to the treatment (and still hasthe capacity to do so).
1532. Section 62A also provides that, even if the treatment has not been expressly approvedby a SOAD’s Part 4A certificate, it may be continued while a new SOAD certificate issought, if the approved clinician in charge thinks stopping the treatment would causethe patient serious suffering. This section adds a new section 62A(6A) which extendsthat to include cases where (either before or during recall) the patient withdraws consentto treatment to which an approved clinician’s Part 4A certificate applies, or losescapacity to consent to it. As amended, section 62A will allow an approved clinician tocontinue giving medication to a patient who has withdrawn consent if they considerthat its discontinuance would cause serious suffering to the patient, but it does notallow electro-convulsive therapy to be given against such a patient’s will (because it isnot possible to obtain a SOAD certificate authorising electro-convulsive therapy for adetained patient who has capacity to consent, but is refusing to do so).1533. None of these changes affects the ability to give medication or electro-convulsivetherapy without a certificate in emergencies, where it is immediately necessary.