Consent To Treatment (Mental Capacity and Mental Health Legislation)

Under normal circumstances clinicians explain diagnosis and treatment options to patients and allow the patient to make a fully informed decision on what they feel is appropriate for them. There will be occasions when the patient disagrees or refuses the proposed treatment, and under these circumstances the clinician needs to understand the relevant legal framework surrounding any subsequent actions.

The Mental Capacity Act (2005)¹ formalises the area assessing whether the patient is mentally capable of making the decision, and the Mental Health Act (2007)² describes the very limited circumstances when a patient can be forced to be hospitalised for assessment and/or treatment against their wishes.

• A patient's capacity to make decisions should be assumed to be present (don't make assumptions that the patient is unable - based on diagnosis, appearance or behaviour etc.).
• The patients ability to make decisions should be optimised before concluding they are incapable - ensure they have adequate time, repeat information as necessary, and use any appropriate communication aids available -interpreters, sign language etc..
• Patients are allowed to make unwise decisions - the clinicians have to demonstrate the patient is incapable of processing the information and making the decision, before acting against their wishes.
• Decisions subsequently made on behalf of patients "without capacity" always need to be in the patient's best interest, and also need to be the least restrictive on their basic rights and freedoms.³

See Mental Capacity Act

These circumstances are explained in article: The Mental Health Act - Compulsory hospitalisation.

Some additional notes relevant to consent

The Consent to Treatment Provisions are dealt with in Part 4 of the Mental Health Act, which applies to:

• Treatments for mental disorder
• All formal patients except those who are detained under sections 4, 5, 35, 135 and 136. The act does not apply to those people subject to Guardianship or Supervised Discharge, who have the right to refuse treatment, except in emergencies.

Where a person has been deemed to have given their consent to treatment under Section 57 or Section 58, the person can withdraw that consent at any time. The treatment must then stop and the appropriate procedures followed, unless discontinuing treatment would cause "serious suffering" to the patient, in which case the treatment can be continued.

The 1983 Mental Health Act has been amended by the Mental Health Act 2007, which is expected to become fully implemented by the end of 2008.²

Section 57: Treatment requiring consent and a second opinion

• Some treatments are deemed so potentially hazardous that someone cannot automatically be given them even if they do consent.
• Three people (one doctor and two others who cannot be doctors) have to certify that the person concerned is capable of understanding the nature, purpose and likely effects of the treatment and has consented to it.
• These three people are appointed by the Mental Health Act Commission. The treatments which fall into this category are:
  • Any surgical operation for destroying brain tissue or for destroying the functioning of brain tissue.
  • The surgical implantation of hormones for the purposes of reducing the male sex drive.

Section 58: Treatment which requires consent or a second opinion

• Applies to people who are detained under certain Sections without their consent, or in cases where the person is not able to give their informed consent to that treatment.
• The treatments which fall under Section 58 requirements are:
  • Medication for the person's mental disorder: if 3 months have gone by since the person first had the treatment during their current period of detention under the Act. In the first 3 months the treatment can be given without consent, and without the Section 58 requirements being necessary. The 3-month period starts when medication for the mental disorder is first given.
  • Electroconvulsive therapy.
• If the person is capable of understanding the nature, purpose and likely effects of the treatment and consents to it, the Responsible Medical Officer (RMO) has to certify in writing that understanding and consent are present.
• If the person concerned is capable of understanding the nature, purpose and likely effects of the treatment and does not consent to it, or is not capable of understanding the nature, purpose and likely effects of the treatment and therefore cannot consent to it, then a doctor is appointed by the Mental Health Act Commission to give a second opinion.
• The appointed doctor must consult two people who have been professionally involved in the patient's medical treatment, one of whom must be a nurse and the other can be neither a doctor nor a nurse.
• The certificates must state the plan of treatment in precise terms, e.g. a range of doses of medication or number of treatments of ECT. If the plan of treatment is to be changed, new certificates are required.
• The provisions of Section 58 do not prevent treatment being given in an emergency, as set out in Section 62.

Section 62: Urgent treatment

The requirements of Section 57 and Section 58 do not have to be followed when urgent treatment is required:

• To save the patient's life.
• To prevent a serious deterioration in the patient's condition, so long as the treatment is not irreversible.
• To alleviate serious suffering so long as the treatment is neither irreversible nor hazardous.
• To prevent the patient from behaving violently or being a danger to self or others so long as the treatment is neither irreversible nor hazardous, and represents the minimum interference necessary.

Section 37: Hospital Orders made by the Courts

• This Section allows a Court to send a person to hospital for treatment, or to make the person subject to Guardianship, when the outcome might otherwise have been a prison sentence. The Order is instead of imprisonment, a fine or probation.
• The person concerned:
  • Will have been convicted by a Magistrates Court or Crown Court of an offence which could be punished with imprisonment (except in the case of murder, where the Court has to impose a sentence of life imprisonment in all cases).
  • May not have been convicted, but may be before a Magistrates Court charged with an offence which could lead to imprisonment if the person were convicted. Without convicting the accused person, the Court can make a Hospital Order under Section 37 if the person has mental illness or severe mental impairment.
• The initial period is 6 months, beginning on the date of the Order. The Order can be renewed under Section 20 for 6 months and then annually.
• The Court has to be satisfied:
  • That the person has at least one of the four types of mental disorder, on the basis of evidence supplied by two doctors (with both doctors agreeing on at least one of the types), and
  • That the nature and degree of the mental disorder makes it appropriate for the person to be detained in hospital for medical treatment (that the treatment is likely to alleviate or prevent a deterioration of the person's condition in the case of psychopathic disorder or mental impairment), and
  • That making a Section 37 Order is most suitable way of dealing with the person and that a specific hospital is willing and able to admit the person within 28 days.

Section 61: Review of treatment

• Where a plan of treatment is being carried out under Section 57, or under Section 58 without consent, the Responsible Medical Officer has to provide a report to the Mental Health Act Commission if the period of detention is renewed under Section 20.
• The Commission may demand a report at any other time if it wishes.
• The Commission can cancel the certificate under which treatment is being given.
• In the case of people subject to Restriction Orders a report on the treatment being given has to be provided for the Commission:
  • Six months after the restriction order or direction is made, and
  • At times when the RMO reports to the Home Office on the person's current condition.