The basic principle in mental hospitals for detained persons and those admitted for assessment under s2 is that s63 provides that the consent of a patient shall not be required for any medical treatment given to him for the mental disorder from which he is suffering if the treatment is given by or under the direction of the responsible medical officer.
The first legal question one should always ask therefore is whether the proposed treatment is treatment for the mental disorder, or for some other symptom not causally related to the mental disorder (see Re C (1994) involving the issue of amputation of a gangrenous limb). If it is unrelated, then the ordinary common law principle that consent is required for any form of intervention which would otherwise be an assault or trespass, from a mentally capacitated patient at least, applies as normal. The common law of necessity, which justifies treatment in certain circumstances, also applies where it has not been subsumed by statute – in particular, in relation to the treatment of anyone admitted under s131 as a so-called voluntary patient, even if they were only passively acquiescent, or passively acquiescent through sedation!
For the very most serious forms of treatment, the basic principle for all those patients to whom this part of the Act applies, is a requirement of capacitated consent, and a second medical opinion confirming that consent, and independently justifying the treatment. The basic requirement of consent for particularly serious forms of medical treatment in s57 applies also to any patient who is not liable to be detained under this Act – ie voluntary patients under s131 who still have capacity. There is no provision for a right to give these forms of treatment to mentally incapacitated clients, but the doctrine of necessity may work here at common law in less than urgent cases.
For some relatively invasive forms of treatment, it is possible to go ahead without consent, but only where either the client is certified by a suitably qualified doctor as incapacitated, or secondly, where despite refusal of consent, there is a certificate from a suitably qualified doctor that the treatment is needed in any event.
However, to both these general rules about serious forms of treatment, there is an exception in all cases for immediately necessary life-saving interventions or preventative action regarding harm to self, others, etc.
Treatment requiring consent and a second opinion:
S57 Mental Health Act applies to the following forms of medical treatment for mental disorder:-
(b) such other forms of treatment as may be specified for the purposes of this section by regulations made by the Secretary of State (the surgical implantation of hormones for the purpose of reducing male sex drive)
The rule in the section is that subject to s62 – urgent cases, a patient shall not be given any form of treatment to which this section applies unless s/he has consented to it and:-
and
(b) the registered medical practitioner referred to in paragraph (a) above has certified in writing that, having regard to the likelihood of the treatment alleviating or preventing a deterioration of the patient’s condition, the treatment should be given.
Before giving a certificate under subsection (2)(b) above the registered medical practitioner concerned shall consult two other persons who have been professionally concerned with the patient’s medical treatment, and of those persons one shall be a nurse and the other shall be neither a nurse nor a registered medical practitioner.
Treatment merely requiring consent or a second opinion where the client lacks capacity to consent or refuses consent:
S58 Mental Health Act covers treatment which can be given with consent, but also without it, in two situations: cases of incapacitated patients, so long as there is a second opinion as to the person’s incapacity, and cases of refusal, where a second opinion has been obtained that the treatment should be given anyway.
The rule applies to the following forms of medical treatment for mental disorder:-
(b) the administration of medicine to a patient by any means (not being a form of treatment already specified under paragraph (a) above or section 57 above) at any time during a period for which he is liable to be detained, as a patient to whom this Part of this Act, applies, if three months or more have elapsed since the first occasion in that period, when medicine was administered to him by any means for his mental disorder.
ie this prevents the imposition of medication on someone for more than three months at a time without their consent, unless a second opinion is obtained.
As stated this s58 rule is that (subject to s62 – urgent cases) a patient shall not be given any form of treatment to which this section applies unless:-
or
(b) a registered medical practitioner appointed as aforesaid (not being the responsible medical officer) has certified in writing that the patient is not capable of understanding the nature, purpose and likely effects of that treatment, or has not consented to it, but that, having regard to the likelihood of its alleviating or preventing a deterioration of his condition, the treatment should be given.
Before giving a certificate under subsection (3)(b) above the registered medical practitioner concerned shall consult two other persons who have been professionally concerned with the patient’s medical treatment, and of those persons one shall be a nurse and the other shall be neither a nurse nor a registered medical practitioner.
The exception for urgent treatment
Ss 57 and 58 requiring consent do not apply to any treatment:-
(b) which not being irreversible is immediately necessary to prevent a serious deterioration of his condition; or
(c) which not being irreversible or hazardous is immediately necessary to alleviate serious suffering by the patient; or
(d) which not being irreversible or hazardous is immediately necessary and represents the minimum interference necessary to prevent the patient from behaving violently or being a danger to himself or to others.
Patients not covered by any of the above sections
The part of the Mental Health Act which makes rules about when consent to treatment is required and when it is not, applies to all patients liable to be detained under the Act except:
in-patients detained for 72 hours on a report by their doctor (s5(2)) or for up to six hours under the nurse’s holding power (s5(4));
accused persons remanded to hospital for a report on their mental condition (s35);
offenders admitted to hospital as a place of safety under a direction made by the court for a period of up to 28 days following the making of a hospital order (s37(4));
persons suffering or believed to be suffering from mental disorder removed to a place of safety by a warrant made under s135 or found in a place to which the public have access and removed to a place of safety under s136 for up to 72 hours.
a patient who has been conditionally discharged under s42(2), 73 or 74 and has not been recalled to hospital.
Thus for all these people, there is no right to treat without consent, save under the doctrine of necessity, and there is no opportunity whatsoever to treat without consent under s58, someone who has capacity to consent but has not done so.
There is of course the possibility that any of the above categories of person might validly give their consent voluntarily to treatment for mental disorder or even the more serious forms of treatment for which a second opinion would be required if the person was subject to this part of the Act, including s58. If consent were given, then any form of treatment would be lawful.
There is also the doctrine of necessity which applies to all medical professionals.