Compulsory Treatment Under the Mental Health Act and Issues About Consent

The Mental Helth Act provides for circumstances in which medical treatment for mental disorders may be given where the patient either refuses to give, or is incapable of giving, consent. The provisions for such compulsory treatment are set out in Part IV of the MHA. These powers do not apply to everyone who is detained under the MHA. Patients detained under Section 2 or 3 or under a hospital order are subject to the compulsory treatment provisions, but these provisions will not apply to those who are detained under the emergency powers of the MHA, such as a doctor’s holding power.

Capacity to Consent to Treatment

Every adult is presumed to have the capacity to decide whether or not to accept treatment even if the reasons for refusing are irrational or non-existent. The fact that a person suffers from mental disorder does not necessarily mean that he or she is incapable of giving or refusing consent to the treatment proposed.

Treatment Requiring Consent or Authorisation

Save for emergencies, medication administered for a period exceeding three months and electro-convulsive therapy (ECT) may only be given with the patient’s consent or if a Second Opinion Appointed Doctor (SOAD) has authorised such treatment.

The SOAD must consider whether, having regard to the likelihood of the treatment alleviating or preventing a deterioration of the patient’s condition, the treatment should be given.

Before deciding whether to authorise the treatment the SOAD must interview the patient, discuss the treatment with the doctor in charge of the patient’s treatment and consult two other people who are professionally concerned with the patient’s medical treatment. If the SOAD authorises the treatment, written reasons for this decision should be given to the patient unless such information is considered likely to cause serious harm to the physical or mental health of the patient or another person.

Treatment Requiring Consent and Authorisation of a Second Doctor

Invasive treatment such as psychosurgery may only be given with the patient’s consent and the authorisation of a doctor appointed by the MHAC. The doctor and two appointees of the MHAC who are not doctors, must be satisfied that the patient has consented to the treatment.

Urgent Treatment

In limited circumstances, for instance where the treatment is immediately necessary to alleviate serious suffering by the patient, such treatment may be given without the procedures set out above. However, irreversible or hazardous treatment can only take place without these procedures if immediately necessary to save the life of the patient.

Treatment Without Consent or Authorisation

Other treatments for mental disorder, which when the provisions of the MHA were being considered by Parliament were described as ‘general nursing and other general care’, can be provided without the person’s consent or the involvement of a second independent doctor.

Given that these treatments were considered to be non-controversial, no special safeguards were thought necessary. However, the courts have held that this provision of the MHA authorises treatment, such as feeding by naso-gastric tube, on the basis that such treatment was for the patient’s mental disorder. In the case of force feeding this was considered to be treatment ancillary to the treatment for the patient’s anorexia. The MHAC has recommended that naso-gastric feeding should only be given with the patient’s consent or, in the absence of consent, if authorised by a SOAD.

Treatment and the European Convention on Human Rights

The ECHR made clear in Winterwerp v Netherlands that Article 5(1)(e) does not provide a right to treatment appropriate to the detained person’s mental health needs. However, the Court has stressed that the detention of a person ‘as a mental health patient’ will only be lawful under Article 5(1)(e) if the person is detained in a hospital or other appropriate setting. In a more recent case Aerts v Belgium the ECHR found a violation of Article 5(1)(e) because that Mr Aerts received no treatment required by the condition that gave rise to his detention.

In the light of the Human Rights Act 1998 (HRA) the courts have confirmed that compulsory treatment may engage articles under the Convention, in particular, Article 3 (prohibition on torture, inhuman or degrading treatment or punishment) and Article 8 (right to private and family life). Accordingly, consideration of the particular circumstances of each case is required to ensure that the treatment is justified. Treatment should only be given in the absence of consent if the proposed treatment is in the patient’s best interests and has been convincingly shown to be medically necessary.

See also THE HUMAN RIGHTS ACT 1998