The law relating to consent to receiving NMD is different depending on 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 four 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.
- The SOAD has consulted with two other professionals concerned with your treatment, one of which must be a nurse.
Your consent must be given free from undue pressure and with sufficient knowledge of the purpose, likelihood of success, risks and alternatives of the 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.
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 whether or not NMD can be carried out depends on whether you have the mental capacity to consent to it.
If you have capacity to consent, and do:
- A designated medical practitioner and two lay people, appointed by the Mental Welfare Commission, have confirmed that you are capable of consenting to the treatment, and do consent.
- The medical practitioner must also confirm that it will be beneficial for you.
If you don’t have capacity to consent:
- A designated medical practitioner and two lay people, appointed by the Mental Welfare Commission, have confirmed that you are not capable of consenting to the treatment but you do not object to it.
- The medical practitioner must also confirm that it is in your best interests to have the treatment.
- The Court of Session (the Supreme Court in Scotland) has made an order authorising the treatment.
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.
How do I decide whether to have NMD?
Deciding whether or not to have NMD can be really difficult. It is important to think what the risks and benefits are for you of having the treatment.
If NMD is recommended, you (or someone you trust or an advocate) might want to ask your doctor:
- What is the reason for suggesting NMD?
- How could NMD help me?
- Could it make me feel worse afterwards?
- What are the risks and side effects?
- Have I been offered every other available treatment?
- What treatment will I be offered in addition to, and after, NMD?
- What will happen when I go into hospital and how long will I have to stay?
- How long will it take me to recover and see an improvement after the surgery?
This information was published in February 2018. We will revise it in 2021.