Mental Health Act Consent to Treatment

To fulfill ‘informed consent’, the following conditions need to be met;

adequate information (nature, purpose and likely effects of treatment)
absence of duress (consent must be given freely, not obtained through undue pressure/ coercion)
capacity to consent i.e. the patient is able to understand the information given (purpose, risks, benefits, consequences of not taking treatment).

The law assumes that patients have the ‘capacity’ to consent to treatment unless they are incapable of any one of the following;
a) comprehending and retaining treatment information
b) believing such information
c) weighing up such information and arriving at a choice

Valid consent = patient is able to make a choice, which is informed, and consent can be withdrawn at any time.

Process involved;

explanation of medication purpose
explanation of likely side-effects, including long-term
information about alternative treatments

Consent to treatment rules apply to these Sections of the Mental Health Act 1983; 2, 3, 36, 37, 38, 47, 48

For urgent treatment the Mental Health Act (Section 62) permits treatment without consent to;

save the patients’ life
reduce serious suffering
prevent patients’ condition from getting much worse
prevent violent behaviour/danger to themselves or others

NB. This does not cover treatment for physical disorders

For the first 3 months of treatment with medication, it is the decision of the doctor that patients must take the drugs, whether they consent or not (Section 58).

After 3 months of medication, the doctor must get the consent of the patient for it to be continued;

If patient consents following an explanation, Form 38 is filled in by the doctor (Section 58(3) (a))

If patient does not consent or is too ill to consent, the Mental Health Act Commission arranges for independent doctor (the Second Opinion Appointed Doctor) to visit and make a decision if medication is needed*

IF ‘YES’, the SOAD completes the Form 39 (Section 58 (3)(b)), which includes description of type of medication he/she agrees is needed, to BNF doses.

*The SOAD speaks privately to the patient, the doctor, a nurse involved in the patients care AND one other person e.g. social worker, OT or PHARMACIST.

This ‘other person’ needs to fulfill these requirements;

Should be professionally qualified, (but if no such person is in contact with the patient then a person who has been ‘professionally concerned’ within the current treatment period should be interviewed)
Has been professionally concerned with the patients’ care
Has direct knowledge of the patient in their professional capacity’ i.e. has met the patient face to face at a ward round, private counselling session or similar forum.
Should be a regular member of the clinical team’ i.e a pharmacist providing ward cover should not be expected to fulfil this function
Should participate in discussions on the patients treatment i.e ward rounds

Any person whom the SOAD proposes to consult must consider whether he/she is sufficiently concerned professionally with the patients’ care to fulfil the function’. If not, or the person feels that someone else is better placed to fulfil the function, this should be made known to the RMO in good time.

What takes place;

A private discussion with the SOAD

The pharmacist should be able to comment on;

the proposed treatment
the ability of the patient to consent to it
other treatment options
the way the decision to treat was arrived at
progress of the case etc
implications of imposing treatment on a non-consenting patient
reasons for patients refusal of treatment
any other relevant information

All ‘consultees’ should ensure that they make a record of their consultation with the SOAD which is placed in the patients’ records (for a sample of records for Second opinions under the Mental Health Act, click the link).

Ref.MHA Code of Practice 16.31-16.34, personal communication with the MHAC, 2/99

Prepared by Angela Tettersell, PRH 3/99