Mind rights guide 3: Consent to treatment

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Introduction
Part 1. Consent to treatment
Treatment for physical conditions and mental disorders
The need for consent
How much information should I be given about the treatment?
Can I be treated without giving consent to the treatment?
Part 2. Treatment without consent under the Mental Capacity Act 2005
What is the Mental Capacity Act 2005?
What does 'lacking capacity' mean?
Is there a test for mental capacity?
What if a person lacks the capacity to make a treatment decision?
Part 3. Treatment under the Mental Health Act 1983
What does the Mental Health Act 1983 say about consent to treatment?
What is treatment for mental disorder?
How long can treatment for mental disorder last?
What does the SOAD do?
What if I'm treated without my consent?
Does forced treatment violate my human rights?
Can I be forced to take medication when I am living in the community?
What about treatment which is not for mental disorder?
Part 4. Making plans
Lasting Powers of Attorney
Advance decisions
Can I be treated if I have made an LPA or an advance decision?
Legal definitions
Useful organisations
Further reading

Introduction

This booklet explains the rules on consent to medical treatment and outlines the situations when treatment can be given without a person's consent. It should be helpful to users of mental health services, their relatives and friends, as well as to service-providers working in the statutory and voluntary sectors. It is not, however, a substitute for a statement of the law or for legal advice.

Public funding (formerly known as 'legal aid') may be available to pay for professional advice from a solicitor. It is means-tested (it depends on your income and savings) for most purposes, but not for appeals to the Mental Health Review Tribunal, which are free. If you want advice from a solicitor who has knowledge of mental health law and issues, contact Mind, which has a directory of mental health solicitors. Alternatively, contact the Law Society for a list of solicitors suitably experienced to advise on the Mental Health Review Tribunal. All hospital wards should also hold a list of local mental health solicitors.

Community Legal Advice is a free and confidential service paid for by public funding, has a directory of legal information and advisers, who offer specialist help in different areas of law, including Mental Health Review Tribunal representation. (See Useful organisations.)

Legal terms, as they appear in the Mental Health Act 1983 (MHA), are printed in bold when they are used for the first time in this booklet (subsequently, they appear in ordinary type). Some people find these terms inappropriate, even offensive, but they are used here for the sake of legal accuracy. (Legal definitions appear below.) To keep this guide as straightforward as possible, we have kept technical terms to a minimum and have summarised the effects of the law and good practice, where appropriate. Where we use section numbers, they are from the MHA.

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Part 1. Consent to treatment

Treatment for physical conditions and mental disorders

The law on whether a person can be treated without giving consent is different, depending on whether the proposed treatment is for mental or physical health needs. Specifically, the laws in Part IV of the MHA on treating people without consent, only apply to treatment for mental disorder. They do not apply to the treatment of physical disorders unless it can reasonably be said that the physical disorder is a symptom or underlying cause of a mental disorder.

The need for consent

For one person to touch another without committing a criminal offence, she or he must have lawful justification. Consent is one such justification. This principle applies to medical treatment. Consent to a particular form of treatment allows that treatment to be given lawfully. Consent must usually be obtained before any treatment is given and can only be meaningful if a full explanation of the treatment has been given.

How much information should I be given about the treatment?

You should be given all the information you need to enable you to make a decision about giving consent to be treated. This includes what the treatment is, what it will achieve, any likely side effects, what will happen if the treatment is not given and what alternatives there are. Guidance issued to doctors says they should encourage you to ask questions and they should answer these fully.

Can I be treated without giving consent to the treatment?

Whether you are at home or in hospital, if you are an adult (aged 18 or over) and have the mental capacity needed to give consent to a form of medical treatment, you are generally entitled to refuse it and no undue pressure should be placed on you. However, the law does allow treatment to be given to an adult without consent where the adult lacks the mental capacity needed to give consent and where certain sections of the Mental Health Act 1983 (MHA) apply – see Parts 2 and 3 of this guide for details.

If you are experiencing mental distress and are offered treatment, you need to be aware of any legal powers that could be used if you refuse. However, the powers must not be used as threats to coerce you into consenting and if you feel this is happening, seek independent legal advice and consider making a complaint. Discuss any concerns you have about treatment with your doctor, making sure he or she knows what it is about the treatment you object to. You can always ask for a second opinion to discuss the treatment proposed. Your own GP can arrange this, or your consultant psychiatrist if you have one.

If you are under 18, the law is complex and it is best to seek specialist legal advice. It may be that you can consent on your own behalf, but this does not necessarily mean you have the same right to refuse. Others, such as your parents, guardian, the local authority or the court, may be able to consent on your behalf.

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Part 2. Treatment without consent under the Mental Capacity Act 2005

What is the Mental Capacity Act 2005?

The Mental Capacity Act 2005 (MCA) contains the law that applies to anyone who lacks the mental capacity needed to make some or all of their own decisions. In certain circumstances, the MCA allows a decision to be taken by one person on behalf of another. It also allows individuals to plan ahead for a time when they might lose the capacity to make particular decisions. A person's capacity may be permanently affected (for example, if they have a form of dementia) or for a temporary period, perhaps because they are confused because of a short illness.

What does 'lacking capacity' mean?

The MCA says: "...a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain".

The phrase "in relation to a particular matter" highlights that the level of capacity needed by a person depends on the decision to be made. For example, a person probably needs less capacity to make a decision about everyday matters, such as what to eat, than to decide whether to accept medical treatment. Mental capacity must also be considered at a particular time (at "the material time"). This is very important for people who experience mental distress. People who hear distressing voices, for example, may feel able to make a certain decision when they are not hearing the voices but not when the voices are at their most distressing.

Is there a test for mental capacity?

The MCA states that a person is unable to make a decision if he or she is unable to do one or more of the following things:

• understand the information relevant to the decision
• retain the information for long enough to be able to make a decision
• use or weigh up the information as part of the process of making the decision
• communicate the decision by any possible method, such as talking, using sign language, squeezing someone's hand and so on.

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What if a person lacks the capacity to make a treatment decision?

If a person lacks capacity to make a decision about medical treatment, the person is unable to give valid consent.

The MCA allows people to plan for what should happen if they ever become unable to make certain decisions in the future. In particular, it allows people to make a Lasting Power of Attorney (LPA) or an advance decision (see 'Part 4: Making plans'). If a person has not made plans and becomes unable to make a particular decision, the MCA says that someone else may make that decision. This could a friend, a relative, an informal carer, a professional carer, a doctor, a social worker or a nurse, for example. The MCA also protects a person from legal liability if she or he takes actions and decisions in connection with the care or treatment of a person who lacks the mental capacity to deal with their own care or treatment.

The health professional in charge of the treatment makes the decisions about whether the individual can give consent. That professional should discuss any issues with others involved in the patient's care and with the patient's family and close friends. If it is decided that the patient lacks the capacity needed to give consent, the treatment can be given if it is deemed to be in the person's best interests. The MCA does not contain a definition of the term "best interests" but does set out a checklist of issues that should be considered by anyone taking an action or decision on behalf of someone else. Note: certain major treatments cannot be given without approval from the Court of Protection.

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Part 3. Treatment under the Mental Health Act 1983

What does the Mental Health Act 1983 say about consent to treatment?

Your consent to medical treatment should always be sought, but Part IV of the Mental Health Act 1983 (MHA) states that treatment for mental disorder can be given without consent if a person is detained under any of the following sections: 2, 3, 36, 37, 38, 45A, 47 or 48.

The 'emergency' sections of the MHA (for example, 4, 5 and 136) do not allow for treatment without consent. If you are detained under these sections, you have the same rights on consenting to treatment as if you were not detained. For details about detention in hospital, see Mind rights guides 1 and 5.

What is treatment for mental disorder?

The definition of medical treatment for mental disorder is very broad. It includes most treatment and care available on a psychiatric ward, such as nursing care and medication, and even physical restraint or force-feeding. This is because relieving the symptoms of the mental disorder can be seen as just as much a part of the treatment as relieving its underlying cause. For instance, forcibly feeding a detained patient who won't eat could be seen as treating a form of self-harm and a symptom of the their diagnosis (for example, borderline personality disorder or anorexia nervosa).

Treatment for mental disorder also encompasses treatment that could not be given without your co-operation, such as talking treatments.

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How long can treatment for mental disorder last?

Treatment given compulsorily (without your consent) under the MHA can generally be given for as long as you are detained under section. (If you want to challenge your continued detention in hospital, see Mind rights guide 4: discharge from hospital.)

There are three exceptions:

• If psychiatric drugs have been given to a detained patient for three months without consent, section 58 MHA says an independent doctor must consider whether the patient should continue to receive them or not. This doctor is sent by the Mental Health Act Commission (MHAC) and is called a Second Opinion Appointed Doctor (SOAD).
• If a patient does not consent to electroconvulsive therapy (ECT), section 58 says it cannot be given until a SOAD has been appointed to consider whether the treatment should be given, or not. However, in emergencies, section 62 allows for ECT to be given before the SOAD arrives.
• In rare situations where a doctor proposes some form of psychosurgery (lobotomy, leucotomy or implants), section 57 MHA states that the treatment cannot be given without your informed consent and a second opinion that it is in your best interests. This also applies to informal (voluntary) patients.

What does the SOAD do?

The SOAD will assess you and discuss your health with your Responsible Medical Officer (RMO), with a nurse involved in your care and with another professional involved in your care who is not medically trained, such as an occupational therapist or social worker.

Your RMO must provide the SOAD with a specific treatment plan, including the details of any proposed medication or ECT sessions. The SOAD will decide whether you are able to consent or not, and whether the treatment should be given. They will then record this decision on a special 'certificate'. If the treatment is medication, the certificate will permit treatment to be given to you for as long as you are detained under section. For ECT, a limited number of treatment sessions will be specified, and when this number is reached, the SOAD must return to make a fresh assessment. Although the second opinion must be independent, research shows the SOAD is likely to agree with what your RMO proposes.

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What if I'm treated without my consent?

You should make it clear to your RMO that you object to the proposed treatment, and explain your reasons. You might consider using the hospital complaints procedure. The ward staff should help you to do this or to contact an independent adviser, such as the community health council, (in Wales only), Citizens Advice Bureau, an advocacy project or a solicitor. In England, it may be useful to contact your Patient Advice and Liaison Service (PALS), which may be able to refer you to your nearest Independent Complaints Advocacy Service (ICAS). (See Useful organisations and Further reading, for information about getting an advocate who can speak for you, and about other sources of help.) You can also write to the Mental Health Act Commission (MHAC), since it will receive regular reports from your RMO about your health. You can ask the MHAC to send the SOAD back to see you. If it does this, it is likely to be the SOAD you saw previously.

Since the legal force of a certificate for medication runs whilst you are detained, you should obtain legal advice about seeking discharge from the section under which you are detained. Consult Mind rights guide 4: discharge from hospital for further information.

Does forced treatment violate my human rights?

Forced treatment potentially violates a person's right to respect for his or her private life under Article 8 of the European Convention on Human Rights. However, this right is not an absolute one and treatment which your doctor says is 'therapeutically necessary' will not violate Article 8, unless you can show that the harm to you from receiving the treatment significantly outweighs the benefit the psychiatrist claims you will get from it. This is normally very difficult.

Can I be forced to take medication when I am living in the community?

You cannot be compelled to take medication in the community. This is the case even if you are subject to supervised discharge from hospital. However, you may decide you have little choice about continuing to take your medication. For example, if you are still on section but your RMO has given you leave from the ward under section 17 MHA, they can revoke it at any time and require you to stay on the ward. Your RMO should not do this simply because you stop taking medication, but stopping may lead to a review of your health and a consideration of whether leave should continue. Similarly, if you have been conditionally discharged from hospital and are subject to supervision in the community, the Home Secretary may review your case, and has the power to recall you to hospital, if you are becoming a risk because you cease taking medication.

If you are discharged from section, you do not have to take medication. However, if concern is then expressed about your health or safety, the authorities might organise an assessment to decide whether you should be readmitted to hospital, and possibly detained under the MHA. For further details, see Mind rights guide 1: civil admission to hospital.

What about treatment which is not for mental disorder?

Many people who have been given a mental health diagnosis still have the capacity to make all of their own treatment decisions and this includes people detained under the MHA. Patients detained under the MHA can still be treated against their will, regardless of their capacity. However, a detained person who retains capacity to make treatment decisions cannot be treated for physical problems without consent. A physical problem can only be treated without consent if the person lacks capacity and treatment is deemed to be in their best interests.

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Part 4. Making plans

Lasting Powers of Attorney

A Lasting Power of Attorney (LPA) allows the person making it (the donor) to give power to someone else (the attorney) to make decisions on their behalf. There are two types:

• A property and affairs LPA covers issues such as managing a bank account and buying or selling a home. This type of LPA may allow the attorney(s) to make decisions whether or not the donor has lost capacity to make them.
• A personal welfare LPA covers issues such as social care and medical treatment. Under this type, the attorney(s) can only make decisions once the donor lacks the capacity needed to make those decisions.

Certain rules must be complied with for an LPA to be valid. Further information can be obtained from the Office of the Public Guardian (OPG) or Mind's Legal Unit. (See Useful organisations.)

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Advance decisions

An advance decision (formerly known as an 'advance directive') enables a person to control what medical treatment they receive when they no longer have the capacity to make decisions about that treatment. It involves a person stating what types of treatment he or she does not want to be given if they ever lose capacity. Advance decisions are legally binding and must be followed by doctors and other health professionals, as long as they meet certain conditions.

It was possible to make an advance decision before the Mental Capacity Act came fully into force on 1 October 2007, but the MCA introduced rules that must be followed for an advance decision to be valid and applicable. Anyone who made an advance decision before the MCA rules came into force, should check that it complies with the current rules.

Further information about advance decisions and about the rules for making one, can be obtained from Office of the Public Guardian or Mind's Legal Unit. However, three particular issues should be considered:

• A person cannot demand a particular treatment in an advance decision; it can only cover the types of treatments the person would wish not to be given.
• An advance decision must be in writing and witnessed if, in the view of the person providing health care, it applies to "lifesustaining treatment". There are no formalities for making advance decisions that do not apply to life-sustaining treatment, but it is probably better for people to write their decision down on paper.
• Where it is valid, an advance decision only comes into effect once the person concerned has lost capacity in relation to the decision(s) it covers.

Can I be treated if I have made an LPA or an advance decision?

LPAs and advance decisions do not allow people to refuse to be detained ("sectioned") or treated without their consent under the MHA. This means that you could be detained under the MHA even if you have lost capacity to decide whether to be admitted to hospital and you have an attorney who says that you should not be admitted. Similarly, if you have made an advance decision stating that you do not wish to be admitted to hospital if your mental distress becomes so severe that you lose capacity to consent to admission, you can still be detained. Once you are detained, you can be given treatment for mental disorder even if you have an attorney who decides that you should not be given that treatment or if you have made an advance decision stating that you do not want that treatment. The views of your attorney or those set out in your advance decision should be taken into account by the professional treating you. However, they are not legally binding when MHA powers apply.

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Legal definitions

European Convention on Human Rights – fundamental legal principles, which must
be applied to any situation involving public authorities, such as the NHS or social services.

Hospital – for the purposes of this booklet, this includes a private hospital and any
accommodation provided by a local authority and used as a hospital.

Medical treatment for mental disorder – includes nursing and also includes care,

habilitation and rehabilitation under medical supervision' (section 145).

Mental capacity – see above.

Mental disorder – 'mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind' (section 1). There are four forms:

• mental illness, which is not defined
• mental impairment, which means 'a state of arrested or incomplete development of mind (not amounting to severe mental impairment) which includes significant impairment of intelligence and social functioning and is associated with abnormally aggressive or seriously irresponsible conduct on the part of the person concerned'
• severe mental impairment, which means 'a state of arrested or incomplete development of mind, which includes severe impairment of intelligence and social functioning and is associated with abnormally aggressive or seriously irresponsible conduct on the part of the person concerned'
• psychopathic disorder, which means 'a persistent disorder or disability of mind (whether or not including significant impairment of intelligence), which results in abnormally aggressive or irresponsible conduct on the part of the person concerned'.

Mental Health Act (MHA) 1983 – the main Act of Parliament governing patients' rights in psychiatric services.

Mental Health Act Commission (MHAC) – the government agency responsible for the welfare of detained patients.

Mental Health Review Tribunal (the tribunal) – an independent panel, which decides if a patient should remain subject to detention under the Mental Health Act 1983.

Responsible Medical Officer (RMO) – the doctor responsible for the care of a detained patient.

Second Opinion Appointed Doctor (SOAD) – an independent doctor who may
authorise treatment under the Mental Health Act 1983.

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Useful organisations

Citizens Advice Bureaux (CABx)
web: www.citizensadvice.org.uk or www.adviceguide.org.uk
Provides free, confidential and independent advice from over 3,000 locations, including GP surgeries, hospitals and prisons. See their website or the phone book for your local office

Community Legal Advice
tel: 0845 345 4 345
web: www.clsdirect.org.uk 
A free and confidential service to help people with legal problems. See website for
the CLS Legal Adviser Directory to find a legal adviser in your area

The Law Society
tel: 0870 606 6575
web: www.lawsociety.org.uk
Publishes a list of solicitors who specialise in mental health law who can represent you at a Mental Health Review Tribunal and Managers' Review

Mental Health Act Commission
tel: 0115 943 7100
web: www.mhac.org.uk
A statutory government body that exists to ensure that patients detained under the MHA are properly detained, aware of their rights and are properly cared for by the hospital

Office of the Public Guardian
Archway Tower, 2 Junction Road, London N19 5SZ
tel: 0845 330 2900
web: www.publicguardian.gov.uk

Revolving Doors
tel: 020 7253 4038
web: www.revolving-doors.co.uk
A charity for people with mental health problems in contact with the criminal justice
system

UK Advocacy Network (UKAN)
Volserve House, 14–18 West Bar Green, Sheffield S1 2DA
email: office@u-kan.co.uk
web: www.u-kan.co.uk
Coordinating group for user-led patients' councils, advocacy projects and mental health forums. Can assist you to locate a local advocacy service

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Further reading

Drugs used in the treatment of mental health disorders: FAQs (fourth edition) S. Bazire (Academic Publishing Services 2004)
How to cope with hospital admission (Mind 2004)
Legal rights and mental health: the Mind manual (Mind 2008)
Making sense of antipsychotics (major tranquillisers) (Mind 2007)
Making sense of electroconvulsive therapy (ECT)  (Mind 2008)
Making sense of lithium (Mind 2004)
Making sense of sleeping pills and minor tranquillisers (Mind 2007)
The Mental Health Act 1983: an outline guide (Mind 2006)
The Mind guide to advocacy (Mind 2006)
Mind rights guide 1: civil admission to hospital (Mind 2007)
Mind rights guide 2: mental health and the police (Mind 2006)
Mind rights guide 4: discharge from hospital (Mind 2007)
Mind rights guide 5: mental health and the courts (Mind 2007)
Understanding anxiety (Mind 2008)
Understanding bipolar disorder (manic depression) (Mind 2006)
Understanding borderline personality disorder (Mind 2007)
Understanding depression (Mind 2007)
Understanding personality disorders (Mind 2007)
Understanding schizophrenia (Mind 2008)
Understanding talking treatments (Mind 2005)

Mind legal briefings (found on Mind's website only)
Overview and Key Provisions of the Mental Capacity Act 2005
Financial Decisions under the Mental Capacity Act 2005
Structures and Safeguards under the Mental Capacity Act 2005

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This booklet was originally written by Rhys Davies. This edition was revised by Keith Dawson

First published by Mind 1995
Revised edition © Mind 2008
ISBN 9781903567241
No reproduction without permission