Medical Treatment Without Consent

Hello. Welcome to this data loss session relating to mental health. My name's Steph Barber on Dime, a retired solicitor from Law Hound Limited on I'm a former member off the Law society's accreditation scheme in relation to mental health law. In this session, we're going to look at when medical treatment can be carried out under the Mental Health Act without a person's consent. So what do we mean by medical treatments? Well, Section one for five off the Mental Health Act 1983 as amended or MH A as our refer to towels makes it clear that any reference to medical treatment in relation to a mental disorder is a reference to treatment where the purpose is to alleviate or prevent, ah, worsening off the mental disorder or warmer. More of its symptoms or manifestations on the MH A provides for treatment relating to mental disorder only so it doesn't apply to the treatment of physical disorders unless it can be reasonably said that the physical disorder is a symptom or a nun underlying cause off a mental disorder. And it's important that we consider the role of the approved condition when we're looking at the question of consent on the approved commission or A C is someone who's approved as being able to fulfill certain responsibilities under the MH A. On medical practitioners who are a seas are automatically treated as being approved under section 12 of the act as well in relation to second opinions on, for example, in England. To be an approved condition, you have to meet the criteria which are laid down. For example, you perhaps have to provide evidence to demonstrate that you have the relevant competence or are a specialist in psychiatry or included in a specialist register on the current criteria mean that the role can in fact be undertaken by someone who's not a qualified medical practitioner. So someone like, for example, a social worker, a nurse or on occupational therapist provided that they meet one or more of the agreed criteria on when looking at the question of consent, it's important to be clear about detained patients who, for these purposes means someone who is liable to be detained in a hospital under any section off. The act on that includes those who are not actually physically detained at the time, such as patients who are on leave of absence or even absent without leave, and this includes patients who are on CEOs or community treatment orders. WHO Bean recalled. The hospital on restricted patients who have bean conditionally discharged on subsequently, recalled the hospital. There are some exceptions to this and generally there people who are detained under sections off the act, which only apply for short terms off detention. So, for example, anyone detained under an emergency application of the Section four or holding powers under Section five would not be included as a detained patient for these purposes. Detained patients would also include those remanded to hospital for a report on the section 35 detained as a place of safety and the section 135 or 136 of the act, including those temporarily detained under sections 37 or 45 a pending admission to a named hospital. I would also exclude restricted patients who have been conditionally discharged unless they've Bean recalled on qualifying patients within the meaning of Section 22 who have remained in custody in accordance with section. There is some special considerations relating to CTO or community treatment order pay shins, which I'm not going to fully cover within the session. For example, compulsory treatment can't be given to a CDO patient who's not being recalled on who has the capacity or competence to consent or to refuse treatment on refuses the treatment unless it's one that's being given as immediately necessary as an emergency treatment. So please very mind that there may be exceptions relating to CDO patients, which you also need to consider. What about patients who lack capacity? Well, by definition, a person who lacks capacity is, of course, unable to either consent to or indeed refuse treatment even if they're cooperating with treatment or actively seeking it. And so there are safeguards in place. Some of those aged 16 or over the Mental Capacity Act 2005 or the M C A. Deals with their ability or abilities to make decisions that have legal consequences for themselves on. For those affected by that decision on under section two of the M C. A. A person is defined as lacking capacity if it the material time here's unable to make a decision for himself in relation to the matter because oven impairment or disturbance in the functioning off the mind or brain on the code details what is referred to as a diagnostic test on a functional test. At its most basic, a person would be unable to make a decision for themselves and so be unable to consent or refuse if they are unable to do any one of the following. Understand information which is relevant to the decision to be made or attain that information in their mind or use or way that information as part of the decision making process, or communicate that decision by any means. What so are ever. So, for example, talking sign language, etcetera on capacity does relate to specific matters and so can change over time on needs to be reassessed as appropriate on in respects of specific treatment. Decisions on determination of capacity is on a balance of probabilities and EMC, a principles included. The person must be assumed 1/2 capacity unless it's established that they lacked capacity not to be treated as unable to make a decision unless all practicable steps to help them to do so have been taken without success on the person is not to be treated as unable to make a decision merely because they make unwise decision on for patients aged under 16 the M C A doesn't apply to medical treatment or indeed their decisions. And Children who have sufficient understanding and intelligence to enable them to fully understand what's involved in the proposed treatment are considered to be competent to consent to it or Gillick competence. And there are certain specified types of treatment, which can be carried out without consent, although there are often other safeguards in place to ensure that they are in fact in the patient's best interests. So we have treatment under Section 57 off the act, which requires consent but also a second opinion. So it's not medical treatment that can really be carried out without consent. It all Section 57 relates to any surgical operation for destroying brain tissue or destroying functioning off the brain tissue. Andi. It does provide for any other treatment to be specified by the regulations, and so where a patient has capacity, Andi, it's a treatment to which Section 57 applies. The treatment can only be given if all three of the following requirements are met, firstly, that the patient consents the treatment on. Secondly, a second opinion appointed doctor or sewed certifies the patient has the capacity to consent to the treatment and has done so Onda. Thirdly, the sold also certifies that it's appropriate for that treatment to be given to the patients and the Department of Health Code of Practice to the Mental Health Act. Or the code makes it clear that, given their significance and sensitivity, particularly careful consideration must be applied to any decision to administer treatments, which Section 57 applies to. Hospitals proposing to offer those treatments are strongly encouraged to agree with the Care Quality commission or seek. You see the procedures that will be followed to implement the rick requirements of Section 57. And it's very clear that the professionals involved must personally satisfy themselves that the patient is capable of giving valid consent. Andi is actually willing to consent on. Also, the restrictions and procedures imposed by Section 57 should also be explained to the patients making it very plane. Their willingness to receive treatment doesn't necessarily mean the treatment will be given because, of course, it does rely on the sold section 58 treatments require consent, all a second opinion and section 58 includes medication given to a detained patient where the medication for mental disorder has been given for three months or more since First Administration. However, it does not include medication administered as part of the sea T because that's dealt with in Section 58 a. Instead. However, the act does provide for alternative treatments to also be included in Section 58. And when we're talking about the three month period, that period only applies once three months from the day on which any form of medication Fort mental disorder was first administered to the patient during the current period in which the patient is liable to be detained under the Act on DSO. For these purposes, thief three month period continues even if the section under which the patient is detained changes or if the patient has withdrawn Consent for treatments. Three month period also includes any time the patient to spend as a CTO on the period is broken. If apart to patient, that is, a civil patient who became subject compulsory measures under the act as a result of an application for detention or guardianship application by a nearest relative or approved mental health professional is discharged without becoming a CTO patient or if the patients placed on the guardianship or upon conditional discharge off restricted patients. So under Section 57 detained patients can't be given medication to it. Section 58 applies unless steep approved commission in charge of the treatment or a sewed certifies the patient has capacity to consent. In this done, sue or soda certifies that the treatment is appropriate, Andy, that the patient doesn't have the capacity to consent or the patient has the capacity to consent but has refused to do so. And under the code, professionals who are dealing with consent and treatments are very much advised to keep clear records off decisions and also discussions with the patient, including the capacity assessments. And then that Section 58 a certificate is issued, referred to as a section 58. Certificates on that certificate needs to clearly set out the specific forms of treatment which applies on list all the relevant drugs, including medication to be given as required either by name or clusters described in the B n F. Andi. If drugs are specified by class, the certificate should clearly state the number of drugs authorized in each class on whether any drugs within that class are specifically excluded. And Section 58 certificates need to clearly state the maximum dosage and route of administration for each of the drugs proposed. The code makes it plain that there should be systems in place to remind both the clinician in charge of medication on the patient at least four weeks before the expiry off the three month period. A warning system, if you like on that system, must be capable of dealing with the possibility that patient might become a CTO patient on may also have a CT 80 revoked during the three month period. Ah, patients moved between detention. CTO doesn't change the date on which the three month period expires and Section 58 a relates to E. C. T. On medication that's administered as part of the E. C T. And whilst at the moment Section 58 a is relating to a C T and medication administered as part of that, there is scope within the act to add on additional treatments, too. So unless it's an emergency within the Section 62 of the Act E, C, T. And medication administered as part of the E. C. T can only be given to a patient with capacity if they consent on def, either. The approved condition in charge of the treatments are sewed. A certified patient is capable of understanding and so has capacity and understands the nature purpose, unlikely effects of the treatment and actually consent to that treatment for a patient without capacity. Then the treatment can only be given. If it's sewed, certifies its appropriate on. It wouldn't conflict with an advance decision, which they're satisfied is valid or decision made by an attorney, a deputy or the court of protection on when you're looking at someone who is under 18. A sewed certificate by itself is not sufficient to authorize the treatment. Unless that person is detained, conditions should have the patient's own consent or some other legal authority, just as they would. If Section 58 a did not exist. An individual can be given urgent treatment under Section 62 off the mental health acts irrespective off consents. Andi. Even the safeguards within Section 57 58 58 a don't apply to urgent or emergency treatment effectively the safeguards in sections 57 or 58 a. Don't apply to treatment, which is immediately necessary to save the patient's life or to prevent a serious deterioration off their condition, provided the treatment doesn't have unfavorable physical or psychological consequences which can't be reversed. Section 57 58 also don't apply to treatment, which is to alleviate Syria's suffering by the patient's provided that that does not have unfavorable physical or psychological consequences which can't be reversed on don't entail significant physical has it on. Finally, safeguards in section 57 58 won't apply to treatment, which is immediately necessary to prevent the patient from behaving violently or being a danger to himself or others on the treatment represents the minimum interference necessary. Doesn't have any unfavorable physical or psychological consequences which can't be reversed on doesn't entail significant physical hazard. So if the treatment is urgent, Andi meets the criteria than the safeguards of section 57 58 won't apply. Similarly, if the treatments urgent, then the safeguards of Section 58 won't apply Andi. It won't apply to treatment, which is immediately necessary to save the patient's life or prevent a serious deterioration of their condition on the treatment doesn't have unfavorable physical or psychological consequences which can't be reversed. Ondas, the Dear H is code relation to the Mental Health Act. It is concerned then, these a strict tests and urgent treatment can continue for only as long as it remains immediately necessary if it's no longer immediately necessary than the normal requirements for certificates. Section 57 58 58 a will apply aunt Hospital managers should therefore monitor the use of the exceptions to this certificate requirements very carefully to ensure that that neither used inappropriately oh excessively on decide from the other provisions. Section 63 under Part four of the MH A, makes it plain that a detained patients consent is not required for any medical treatment given to them for mental disorder from which their suffering if the treatment is given by or under the direction off. The approved coalition in charge of the treatments. Unless it's a form of treatment to which sections 57 58 or 58 a apply to so effectively when you're dealing with the detained patient and the treatment is not a surgical warm or one which comes in the Section 57 or E. C. T, or administered and medications under a CT relating Teoh 58 a. Or the treatment has not been ongoing for three months under Section 58. The question off the patient's consent is not really taken into account because the medication can still be given irrespective of whether the patient consents or not. Having said that, the code does advise that even during the three month period, the patient's consent should still be sort wherever it's practicable. Onda records should be kept of the refusal of consent or any lack of capacity, etcetera and likewise, records need to be kept in relation to situations where consent is withdrawn on the code does offer conditions some guidance in relation to treatment, which is given to a detained patient without their consents. And whilst those reference to human rights etcetera, the code also makes it plain that giving treatment without consent might well be justified where it's in accordance with the law and the procedures off. In this case, the MH A, on its proportion to a legitimate aim in this case, reduction of risk post by ah person's mental disorder and or improvement off their own safety and health. And in cases where detained patients are given treatment without consent, collisions are advised under the code to ensure there's scrupulous adherence to the requirements of the legislation. A deer instead, good clinical practice Onda the necessity of seeking clinical guidance, senior clinical guidance or, indeed, legal advice if they have any concerns about a potential breach off a person's rights. Andi. It is, of course, possible that the courts, including the courts protection, may have the power to order that treatments must not be given irrespective of the patient's consent or otherwise. And of course, treatment plans are an essential aspect of treatment for mental disorder. These plans should detail the immediate and long term goals the patients and give clear indication of the treatments proposed on the methods off treatments they should form. Part of a coherent care plan under the C P A or its equivalent on be recorded in the patient's notes on would be, of course, regularly reviewed on the results of those reviews should also be recorded. And so when looking at treatments with or without the patient's consent, the treatment plan is an essential starting point to examine exactly how the treatment fits in with the overall plan that now brings this current mental health session to an end. Thank you very much for joining me, Steph Barber off this Data law mental health session.