Abstract
In this second Five-Minute Focus on Law on mental health, we consider how the law deals with the treatment of those who are mentally disordered. Before doing so, it is important to note that it should not be assumed that a person who is mentally disordered under the Mental Health Act (MHA) 1983, as amended by the MHA 2007, 1 is necessarily incapable of making decisions about their health. Indeed, in one of the most widely known cases involving a patient who was mentally disordered – Re C (Adult: Refusal of Medical Treatment) [1994] – it was held that a person with paranoid schizophrenia did have the capacity to refuse to consent to his gangrenous leg being amputated. 2 It is thus important to distinguish between those who lack capacity and fall within the terms of the Mental Capacity Act (MCA) 2005 because they are unable to make decisions about and for themselves, and those who are mentally disordered within the MHA 1983 and may pose a risk to themselves and others even though they have decision-making capacity. Under the MHA 1983, competent mentally disordered patients have the same right to refuse medical treatment as all other competent patients, but the Act does allow those who fall within its parameters to be treated without their consent in specific circumstances.
Treating those who are mentally disordered and informally voluntarily admitted under the MHA 1983
The normal rules regarding consent to treatment apply to those with a mental disorder. If they are competent they can refuse medical treatment and if they are not, they may be treated in their best interests, in compliance with the provisions of the MCA 2005. 3
Treating those who are mentally disordered and formally involuntarily admitted under the MHA 1983
For those who have been formally admitted to the mental health system and are competent but do not consent to the treatment for their mental disorder, the normal rules for consent to treatment may not always apply. Rather, compulsory treatment may be possible, with such treatment based on ‘a rigid set of checks and balances with the patient's ultimate fate placed in the hands of the Mental Health Review Tribunal’. 4 However, some treatments may only be provided with the consent of the patient.
Treating without a patient's consent – section 63
Section 63 applies to treatment other than those covered in sections 57, 58 or 58A, and permits any other treatment for a mental disorder to be provided without the competent patient's consent and a second opinion, if ‘the treatment is given by or under the direction of the approved clinician in charge of the treatment’. Under section 63 a competent patient who has refused treatment can, nevertheless, receive ‘any medical treatment … for the mental disorder from which he is suffering’. This has been held by the courts to include force-feeding an anorexic patient or someone with a compulsion not to eat as a form of self-harm, 5 and performing a caesarean section as treatment for schizophrenia. 6 The Court of Appeal has stated that ‘[s]ection 63 … may apply to the treatment of any condition which is integral to the mental disorder … provided the treatment is given by or under the direction of the responsible medical officer’. 7 However, anyone detained under the Act ‘cannot be forced into medical procedures unconnected with her mental condition unless her capacity to consent to such treatment is diminished’. 8
Treatments to be provided only with the patient's consent and a second doctor's agreement – section 57
Under section 57 of the MHA 1983 psychosurgery and chemical castration can only be performed under certain circumstances. These treatments are rarely used in practice but the Act requires specific consent from the patient and written certification from a doctor who has been appointed to give a second opinion and two other people appointed for this purpose, not medical practitioners, that the patient is capable of understanding the nature, purpose and likely effects of the treatment in question and has consented to it. As a part of the process of certification, the appointed doctor must certify in writing that it is ‘appropriate’ for the treatment to be given and before doing so, the doctor must consult two other people, one of whom must be a nurse, who have been professionally involved in the patient's care.
Treatments to be provided with the patient's consent or with a second opinion from an independent doctor or providing ‘appropriate’ treatments – section 58
Where psychiatric medicines are to be administered for more than three months (for the first 3 months, treatment may be given without the patient's consent under section 63), then
The competent patient must consent, with a certificate from an appointed medical practitioner or the approved clinician in charge of the management of the treatment, that the patient is capable of understanding the nature, purpose and likely effects of the treatment in question and has consented to it; or
An appointed medical practitioner has certified in writing that either the patient is incapable of consenting or they are capable but have refused to consent but it is nevertheless ‘appropriate’ for the patient to be so treated. Before certifying, the practitioner must consult as in (b) above.
Under section 58A electroconvulsive therapy (ECT) can only be given if:
The competent patient consents; or
If the patient is incapable of consenting, it is appropriate for it to be administered (following (2) above), and the patient did not refuse it in a valid and applicable advance decision; or
A child under 18 has consented to it and is certified as able to understand the nature and effects of the treatment.
A competent patient can withdraw their consent at any time during the course of these treatments, 9 and the clinician in charge of the treatment must report this and the patient's condition to the Secretary of State. 10 Additionally, the power to treat patients who lack capacity under the MCA 2005 does not apply if the patient is detained under the MHA 1983. Thus, the best interests checklist in section 4 of the MCA with its emphasis on the patient's wishes and feelings does not apply. Rather, a doctor has to believe that it is ‘appropriate’ to give long-term medication for mental disorder or for ECT to be performed on patients without capacity. ‘Appropriateness’ is not defined in the 1983 Act, but will be assessed by a doctor other than the responsible physician, under section 58(3)(b). Importantly, appointed medical practitioners are under a duty to provide reasons for their decisions. 11
Treating without a patient's consent in an emergency – section 62
Under section 62, all treatments covered by sections 57 and 58 (including ECT) can be provided without the patient's consent, even if the patient actually refuses it, or a second opinion where it is:
‘Immediately necessary to save the patient's life’; Reversible treatment which is ‘immediately necessary to prevent a serious deterioration of his condition’; Reversible or non-hazardous treatment which is ‘immediately necessary to alleviate serious suffering by the patient’; or Reversible or non-hazardous treatment which 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’ – section 62(1).
Treatment in the community – sections 17A–G
When a patient with a mental disorder is discharged after being detained under the MHA 1983, a community treatment order can be imposed under section 17A of the Act. This allows patients who do not need to remain in hospital to return to the community, but there is a power to recall them to the hospital in certain situations. Their release from hospital is thereby conditional. The responsible clinician and an approved mental health professional must agree to issue this order,
12
and the order can be made if:
The patient has a mental disorder ‘of a nature or degree which makes it appropriate’ for them to receive treatment; It is ‘necessary’ for their health or safety or to protect others for the patient to receive treatment; That treatment can be provided outside of a hospital; The responsible clinician retains the power of recalling the patient to hospital; and The treatment is available for the patient.
13
In deciding whether to make this order, the responsible clinician should consider, among other things, the risk of deterioration in the patient's condition if they were not detained in hospital. 14 The community treatment order should specify the conditions the patient is subject to, and these must be ‘necessary or appropriate’ for the purpose of ensuring that the patient receives medical treatment, preventing risk of harm to the patient's health or safety, and/or protecting others. 15
A community treatment order lasts for six months, but can be extended for one year at a time. 16 Importantly, responsibility for the patient remains with the hospital that discharged the patient. 17 A patient can be recalled if the responsible clinician is of the opinion that (a) the patient requires treatment for their mental disorder in hospital and (b) there would be a risk of harm to the health or safety of the patient or others if the patient was not recalled for treatment, 18 or if the patient does not comply with a condition specified in the order. 19 Once recalled the patient can be detained for up to 72 hours, after which time she must be discharged and continue to be subject to a community treatment order or, if she refuses to comply with a condition in the order or continue to refuse treatment, the order can be revoked and the patient detained within hospital again.
Guardianship
Compulsory powers can also be exercised over patients in the community by appointing a guardian under section 7 of the MHA 1983, and an approved mental health professional or the patient's nearest relative can apply for guardianship. The patient must be over 16, two medical practitioners must certify that the patient is suffering from a mental disorder of a nature or degree that warrants being received into guardianship, and this is necessary ‘in the interests of the welfare of the patient’ or to protect others. The aim is to ensure that the patient has a safe and secure environment and not to provide treatment for the disorder. The nearest relative can veto a guardianship application but that relative can be replaced if, for example, the approved mental health professional thinks that the relative is unreasonably using their right to veto.
The guardian has certain powers under section 8 of the MHA 1983, including the power to decide where the patient lives and ensuring that they attend hospital for treatment. A patient cannot, however, be compelled to receive treatment and there are no sanctions available to the guardian if they are unable to exercise their powers. Thus, ‘guardianship powers are effective only where the patient is relatively compliant, when the order is, in practice, probably unnecessary’. 20
Review and discharge
Once a patient is formally detained under the MHA 1983 their condition must continue to justify that detention. The responsible clinician thus has a duty to consider whether the conditions which supported the original detention continue, and under Article 5(4) of the European Convention on Human Rights and the Human Rights Act 1998, there must be a formal mechanism via which the lawfulness of the continued detention can be reviewed or challenged at reasonable intervals.
Review
If a patient is detained under section 2 of the MHA 1983 their detention can only last for 28 days after which they must be formally detained under section 3 of the Act or discharged. Patients detained under section 3 must have their case referred to the Mental Health Review Tribunal by the hospital managers after six months and, after that time, every three years. 21 If a patient has been compulsorily admitted to hospital under sections 2 or 3 they have a right to request the Tribunal to consider whether they should be discharged. 22 It is for those arguing against the patient's discharge to prove that the patient meets the criteria for detention, and the Tribunal is not concerned with the lawfulness of the original detention but whether, on the balance of probabilities, the grounds for detention exist at the time of the hearing. 23 For continued detention to be justified the patient must be suffering from a mental disorder of a nature or degree which requires detention in hospital. 24 Thus, it is justifiable to continue to detain a patient who is suffering from a disorder whose nature generally warrants detention even if the degree of it does not. 25
Discharge
If the Tribunal decides that the patient does not need to be detained any longer it must order their discharge, and the Tribunal must give reasons for its decision. The discharge can be deferred while certain arrangements, such as for the patient's care or accommodation, are made. The decision to discharge must be complied with unless it can be shown that there was information not known by the Tribunal which would have been likely to have been considered significant by them. Any re-sectioning following such a Tribunal decision should be accompanied by a medical recommendation which identifies the new information, 26 because ‘[r]e-sectioning … must not be used to trump tribunal decisions with which the [approved mental health practitioner] disagrees’. 27
Additionally, once the patient's clinician believes that detention is no longer necessary, the patient must be discharged. This does not necessarily mean that the patient receives no further supervision because a community treatment order may be imposed, as discussed above.
Key changes introduced by the MHA 2007
Community treatment orders; Restrictions on the use of ECT in section 58A of the MHA 1983 as amended; A ‘responsible clinician’, not a psychiatrist, who is responsible for patient care,
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and ‘approved mental health professionals’ who can be appointed by local authorities to undertake the work of social workers under the MHA 1983.
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The Act thus gives greater powers to mental health professionals who can carry out some of the roles previously limited to psychiatrists; Mandatory inclusion of principles within the Code of Practice to inform decisions as to admitting or treating a patient under the Act.
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As a Code its legal status is that of guidance,
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although it should only be departed from if there are cogent reasons for doing so.
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This is a notable difference to the MCA 2005 as within this Act itself there is a set of statutory principles which must be complied with, such as the presumption of capacity and the ‘least restrictive alternative’ principle.
33
Nevertheless, the ‘guiding principles’ of the 1983 Act as amended are (a) purpose, (b) least restrictive alternative, (c) respect, (d) participation, (e) effectiveness, efficiency and equity;
34
Establishment of a Patient Advisory Service to provide information and legal representation, and Independent Mental Health Advocates to help ‘qualifying patients’.
35
Summary points
Patients who are mentally disordered under the MHA 1983 may still have capacity to consent to or refuse treatment. The MCA 2005 may thus apply;
Those who have been formally involuntarily admitted under MHA 1983 may be treated compulsorily. The MCA's requirement that treatment be in accordance with the best interests checklist does not apply;
Patients may be required to undergo treatment in the community as a condition of their release from the hospital;
A guardian may be appointed on application by a registered health professional or the patient's nearest relative;
Patients formally detained under MHA 1983 must have their cases periodically reviewed, and if appropriate they must be discharged.