The law relating to consent to receiving NMD is different depending whether you are being treated in Wales or in Scotland (there are no NMD treatment centres in England).
The law in England and Wales
In England and Wales NMD is covered by section 57 of the Mental Health Act, which applies to all voluntary patients and everyone who is currently detained under section.
This law says that you can only be given NMD if all three of the following statements are true:
- You consent (agree) to the treatment.
- A second opinion appointed doctor (SOAD) and two other people appointed by the Care Quality Commission in England, or the Healthcare Inspectorate Wales, certify that:
- you have the capacity to consent, AND
- you do consent.
- The SOAD also certifies that it is appropriate for you to receive this treatment.
Could it ever be performed without my consent?
No. In England and Wales, NMD cannot be performed without your consent, even if you lack the capacity to consent. The Mental Capacity Act may not be used to authorise a treatment which comes under section 57 of the Mental Health Act.
For more information about mental health law in England and Wales, see our legal pages on consent to treatment, sectioning, the Mental Health Act and the Mental Capacity Act.
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The law in Scotland
Procedures performed in Scotland, including NMD, come under the provisions of the Mental Health (Care and Treatment) (Scotland) Act 2003. They are overseen by the Mental Welfare Commission for Scotland, which provides independent clinical assessments for all patients.
In Scotland, NMD can only be carried out if all the following are true:
- A designated medical practitioner, appointed by the Mental Welfare Commission, has given an independent opinion that it will be beneficial for you.
- Two lay people appointed by the Commission have certified whether or not you are capable of consenting.
- If you are capable of consenting, you do give your consent; OR if you are not capable of consenting, you do not object to the treatment.
Could it ever be performed without my consent?
Yes. In Scotland NMD can be performed if you lack the capacity to consent, but only if both the following are true:
- You do not object to the treatment.
- The Court of Session (the Supreme Court in Scotland) has made an order declaring that NMD may be lawfully given.
For more information on mental health law in Scotland, see the Mental Welfare Commission for Scotland website.
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This information was published in May 2015. We will revise it in 2018.
