Consent to medical treatment

Answers some of the common questions about consent to medical treatment and explains the options available.

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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 Civil admission to hospital and Mental health and the courts.

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 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. See 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 tosupervised 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, see 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 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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