Mind rights guide 3: Consent to treatment

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.

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Introduction
Legal definitions

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?

Useful organisations
Further Reading

Introduction

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 to find a solicitor who has knowledge of mental health law and issues, contact Mind’s Legal Advice Service, Mindinfoline or the Law Society (see 'Useful organisations'). 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. (See ‘Useful organisations’.)

Legal terms, as they appear in the Mental Health Act 1983 (MHA) and the Mental Capacity Act 2005 (MCA), 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.

Legal definitions

Appropriate treatment – when in connection with the consent to treatment provisions of the Mental Health Act, means that the treatment is appropriate in the patient’s case, taking into account the nature and degree of the mental disorder from which he or she is suffering and all other circumstances of his or her case.

Approved clinician (AC) – a mental health professional approved to carry out certain duties under the Mental Health Act by the Secretary of State for Health (England) or by Welsh Ministers (Wales), and has the power to make decisions about a detained person’s treatment.

Care Quality Commission – health and social care regulator – protects the rights of people detained under the Mental Health Act.

Court of protection – has the power to make decisions with regard to someone’s capacity concerning financial matters and healthcare.

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, psychological intervention and specialist mental health habilitation, rehabilitation and care. Any reference in the Act to medical treatment for mental disorder refers to medical treatment with the purpose of alleviating, or preventing a worsening of, the disorder or one or more of its symptoms or manifestations (section 145).

Mental capacity – see below.

Mental disorder – ‘any disorder or disability of the mind’ (section 1).

Mental Health Act (MHA) 1983 – the main Act of Parliament governing patients’ rights in psychiatric services. This has been amended by the Mental Health Act 2007.

Responsible Clinician (RC) – the approved clinician (see above) with overall responsibility for a person’s care and treatment in hospital.

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

Supervised community treatment – introduced by the MHA 2007, it allows a person who has been detained under certain sections of the MHA to be discharged back into the community under a Community Treatment Order, while complying with certain conditions.

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, he or she 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.

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.

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 be 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 he or she 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.

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 their diagnosis (for example, borderline personality disorder or anorexia nervosa).

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

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 58A says it cannot be given, although if he or she is not capable of understanding its nature, purpose and likely effects, and a SOAD agrees that it is appropriate for the treatment to be given, it can be given without consent. However, if the patient has previously made a valid advance decision (see below) refusing ECT which is applicable to the treatment in question, then the ECT cannot be given, even if he or she does not understand its nature, purpose and likely effects at the time that the treatment is being proposed. Also ECT cannot be given if this would conflict with a decision of an attorney appointed under a Lasting Power of Attorney, a deputy appointed by the Court of Protection, or by the Court itself. Under section 58A, the same rules apply to treatment which forms part of treatment with ECT, such as anaesthetics and muscle relaxants. (Emergency treatment with ECT can still be given under section 62 of the Act without consent even if the patient is capable of understanding the treatment.)
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 appropriate for the treatment to be given. This also applies to informal (voluntary) patients.

What does the SOAD do?

The SOAD will assess you and discuss your health with your Responsible Clinician (RC) or Approved Clinician (AC), 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 RC (or AC) must provide the SOAD with a specific treatment plan, including the details of any proposed medication or, if the situation is one where ECT is allowed to be given under the Act, the number of 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 RC (or AC) proposes.

What if I'm treated without my consent?

You should make it clear to your RC (or AC) 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 Care Quality Commission (CQC), since it will receive regular reports from your RC (or AC) about your health. You can ask the CQC 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 community treatment in the community under a Community Treatment Order (CTO). You may, however, be recalled to hospital if you have broken any conditions of your CTO, and you may be compelled to take medication there. For further information on the effects of supervised community treatment, consult Mind rights guide 6: community care and aftercare. Even if you are not subject to compulsion under any sections of the Mental Health Act, you may decide you have little choice about continuing to take your medication. For example, if you are still on section but your RC (or AC) 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 RC (or AC) 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 Secretary of State for Justice 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.

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 Advice Service. (See Useful organisations.)

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. A person can state in their advance decision 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 the Office of the Public Guardian or Mind’s Legal Advice Service. 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 “life-sustaining 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, generally, to be 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, but they are not legally binding when MHA powers apply. The exception is with ECT which the professionals wish to give you following your detention under the Mental Health Act. If you have already made a valid and applicable advance decision refusing ECT, or a donee (attorney) under a Lasting Power of Attorney, a court-appointed deputy, or a Court has refused ECT on your behalf, then the ECT cannot be given to you.

Useful organisations

Mind’s Legal Advice Service
PO Box 277, Manchester, M60 3XN
tel. 0845 225 9393 (Monday to Friday, 9am to 5pm)
email: legal@mind.org.uk

Care Quality Commission
(England only)
tel. 03000 61 61 61 web: www.cqc.org.uk
The Care Quality Commission regulates and improves the quality of health and social care and looks after the interests of people detained under the Mental Health Act

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.communitylegaladvice.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

Healthcare Inspectorate Wales
Bevan House, Caerphilly Business Park, Van Road, Caerphilly CF83 3ED
tel. 029 2092 8850 web: www.hiw.org.uk
Ensures the rights and proper care of those detained under the Mental Health Act in Wales

The Law Society
tel. 020 7242 1222
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

Office of the Public Guardian
Po Box 15118, Birmingham B16 6GX
tel. 0300 456 0300
web: www.publicguardian.gov.uk
Supports and promotes decision making for those who lack capacity or would like to plan for their future

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)
c/o 18 Buelah View, Leeds LS6 2LA
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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