Written and recorded by Steph Barber
Hello. Welcome to this data loss session relating to Mental Health Floor. My name's Steph Barber on I'm Returned Solicitor from Law Hound Limited. Andi I was formerly a member off the Law Society's accreditation scheme in relation to mental health work. In this session, we're going to be looking at the question of when most the patient consent to medical treatment under the Mental Health Act 1983. As amended, Onda primarily will be looking at patients who are aged 16 and over. So let's look at medical treatments has dealt with by the Mental Health Act 1983 as amended by the 2000 and seven act on Section 145 makes it clear that any reference to medical treatment in relation to mental disorder within the act is construed as a reference to mental treatment where the purpose is to alleviate or prevent a worse thing off the disorder or wall of more of its symptoms or manifestations. So what type of medical treatment are we talking about? Well, the Mental Health Act, or MH A, as are referred to it, 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 an underlying cause off that medical disorder. So what do we mean by consent to medical treatments? Well as its most basic, providing medical treatments could amount to a criminal offence, such as an assault on the patient. Consenting provides a lawful justification. So, assuming that the person has mental capacity and that needs to be examined separately, the starting point is that a person should consent before any treatment is administered. Unless an exception applies, we need you. Also consider that separately. So under the Mental Health Act, a doctor or health care professional needs to determine number one. Does the patient have the capacity to consent or refuse a particular form of medical treatment? Andi. If so, number two Does the patient actually consent? Onda consent must be a voluntary on continuing permission off a patient given for a particular treatment based on sufficient knowledge off the purpose. Nature lightly effects on the risk of that treatment, including the like the hold of its success and, of course, any alternatives to it on finally be capable off withdrawal. So Let's examine those elements separately. Firstly, ah, voluntary and continuing permission of a patient's. It's the duty of the person who's actually seeking consent to use reasonable care and skill when dealing with the patient's consent. If a patient propped rides permission under any unfair or Jew pressure, then that's obviously not going to amount to lawful consent. So, for example, whilst a patient could be advised about any legal powers to treat them if their consent was refused, that information should not be provided in an attempt to threaten or coerce the patient. And secondly, consent needs to be given for a particular treatment. So that means if the treatment changes, then the patient must consent. Those changes or the new treatments and thirdly, consent must be based on sufficient knowledge and information. Consent can only be meaningful if a full explanation of the treatment has been given on. That, of course, means that the patient must be given all of the information that they reasonably need to make a decision about giving their consent to be treated on. That should include the purpose, what the treatment is, the nature, what it will achieve any likely side effects and risks of that treatment on what will happen if the treatment is not given the likelihood of success on. Of course, what alternatives that are on the invitation must be individualized. It must relate to the particular individual patient, the particular treatment, onda relevant clinical knowledge and practice. At the time that the information was provided. Guidance issued to health care professionals in the Department of Health's code of practice regarding the Mental Health Act, which I'll refer to as the code, make it clear that they should. Rick called the information that they provide two patients on. In fact, the code makes it clear that patients should be encouraged to ask questions on health care. Professionals should answer those questions fully, frankly and truthfully So. For example, if a patient asks about risk, they should always be given an honest answer. The code also recognizes that, of course, sometimes there might be a compelling reason in the patient's interests for not disclosing certain information. However, it also makes it clear that a professional who chooses not to disclose information should be prepared to justify that decision on must keep a record of it detail ing their reasons for the decision and also professional who chooses not to answer our patients. Questions should make this clear to the patients so the patient knows exactly where they stand on. It's the duty of the person who's actually seeking the consent to use reasonable care and skill. Provide sufficient information prior to seeking consent on Fulfill a continuing obligation to provide the patient with efficient information about the proposed treat. Opens on the alternative to it as the treatment continues on consent must be capable off withdrawal at any time. Onda Healthcare Professional doctor must advise a patient that they are entitled withdraw their consent to treatment at any time. And that means that if a patient withdraws their consent or is considering doing so, then the patient must be provided with E. Relevant information on the information should include a clear explanation off the likely consequences of not receiving the treatment. Andi, if relevant, the circumstances in which the treatment might be given without their consent under the act, although, of course, as I mentioned earlier, that's not an attempt to coerce and shouldn't be used as anyway. A threat on the doctor's should also keep a written record off that information on the circumstances surrounding the giving off. Its let's examine one exception to consent that is capacity on. By definition, ah, person who lacks capacity is unable to consent or refuse treatment, even if they cooperate with treatment. Or indeed, if they actively seek it those aged 16 or over the Mental Capacity Act 2005 or the emcee A deals with their ability or abilities to make decisions that might have legal consequences for themselves on door for others affected by that decision on the M. C. A. Is intended to both protect Andi. Empower people those who may not be capable of making their own decisions, particularly about their finances, healthcare and welfare. And Section two of the emcee A defines a person's lucking capacity if, at the material time he is unable to make a decision for himself in relations the matter because of an impairment off or disturbance in the functioning off the mind or brain. A lack of capacity can't be established merely by reference to a person's age or appearance or a condition of his or an aspect of his behavior, which might lead others to make unjustified assumptions about his capacity as the do H is code relations. The Mental Health Act. Details the Section two definition off the emcee A. Contains both a diagnostic test onda a functional test. The diagnostic test determines whether the individual has an impairment off or disturbance in the functioning off their mind or brain. On Subsection two makes it clear that it doesn't matter whether the impairment or disturbance is permanent or temporary. All, of course, if it is temporary, the decision makers should justify why that decision can't wait until the circumstances do. Change on the functional test determines whether the individual is unable to make the specific decision in question themselves because of the impairment or disturbance on the elements of the functional test are set out in Section three, subsection one of the M. C. A. The inability to make the decision must be because of the impairment or disturbance as opposed to some other cause on both of the tests. Must be satisfied for the individual to be deemed toe lack capacity to make the specific decision in question at the material time, and a person is unable to make a decision for themselves if they are unable to do any one or more of the following if they're unable to understand information which is relevant to the decision. Three made unable to retain that information in their minds, unable to use a way that information AST's part of the decision making process or unable to communicate that decision. And it doesn't matter where the communication is by talking sign language or indeed any other means capacity relates to specific matters and can change over time. So it needs to be reassessed as appropriate over a period of time and in respect of specific treatment decisions. And of course, it's vital that decision makers relating to capacity keep a record off the decision making on healthcare. Professionals are advised record any capacity assessment in the individuals care and treatment record on the record should show the outcome off the capacity test. The specific decision for which capacity was assessed, the salient points that the individual needs to understand and comprehend on the information that was actually presented to the individual in relation to the decision. The record also needs to show the steps taken to promote the individual's ability to decide themselves, including how the information was given in the most effective way to communicate with the individual on how the diagnostic test was assessed, on how the assessor reach their conclusions on also how the functional test was undertaken on again, how the assessor reached their conclusions on. Of course, determination off capacity is on the balance of probabilities, as we know from Section two, subsection four of the emcee A on the principles of the emcee a include that a person must be assumed to have capacity unless it's established that they actually lack capacity. They are not to be treated as un able to make a decision on lesson until or practicable steps to help them to do so have been taken without success on. Finally, they are not to be treated as unable to make a decision merely because it would be unwise. Decision ondas Reinforced by the code The following factors need to be considered when taking decisions out patients capacity under the emcee. A. Firstly, that mental disorder does not necessarily mean that a patient lacks capacity to give or refuse consent or indeed, to take any of a decision. Secondly, any assessment of an individual's capacity has to be made in relation to the particular decision being made. So a person may, for example, have the capacity to consent to or refuse one form of treatment, but not to another. Thirdly, capacity in an individual with mental disorder can vary over time on DSO should be assessed at the time. The decision in question actually needs to be taken, fourthly, where the patient's capacity fluctuates. In this way, consideration should be given if a decision is not urgently required to actually delay the decision making process until a patient has the capacity to make it for themselves. Fifth lee. No, everyone is equally capable of understanding the same explanation. That means explanation should be appropriate to the level of the patients assessed ability on finally, all assessments, often individuals capacity should be fully recorded. Andi, in the case of health pair care professionals within the patient's notes. And what about competence to consent to treatment of Children who are under 16? Well, the emcee A doesn't apply to medical sheep in for Children on the 16 Children who have sufficient understanding and intelligence to enable them to fully understand what is involved in a proposed treatment are considered to be competent or Gillick competent to consent to it. So it's very much based on the individual circumstances on ability to understand hand, an exception to the question of consent in relation to treatment or compulsory treatment relates to detained patients on Part four off the Mental Health Act applies to those detained patients. So what we mean by detained patients? Well for these purposes, detained patients mean those who are liable to be detained in hospital under any section off the act, including those who are not actually detained, such as patients who are on the leave of absence or absent without leave. So this includes patients on CEOs, community treatment orders who have Bean recalled to hospital on restricted patients who have bean conditionally discharged on, then recalled the hospital. Andi Section 63 under Part four of the Mental Health Act, makes it clear that it detained person's consent is not required for any treatment given to him for the medical disorder from which he's suffering. If the treatment is given by or under the direct action off the approved finish in in charge off the treatment unless it's a form of treatment to which sections 57 58 or 58 a apply. And so we're looking at all treatment, with the exception off specific treatments like E. C. T. Etcetera, which need to be considered separately. However, case law has shown us that Section 63 of the MH A can be interpreted quite widely when considering what treat men's can be turned is treating a patient before the mental disorder from which he's suffering. But we do know that treatment must be given under the direction off on approved permission. Who is in charge off the patient's treatments on the approved commission is a person who has approved is being able to fulfill certain responsibilities under the MH A medical practitioners who are approved clinicians under the act or automatically treated as being approved under section 12 as well. And so following changes to the act provided that they fulfill the criteria. The role can be undertaken by those who are not qualified medical doctors of such so, for example, social workers, nurses, occupational therapists on psychologists might be eligible to become approved. Clinicians exceptions to when a patient's consent is required for treatment includes second opinion on and urgent treatments. Onda, unless it's an emergency or urgent as defined by Section 62 off the act which should Big Zarin separately. Section 57 58 58 a. Contains special guidance for certain types of treatments. Section 57 deals with treatment which requires consent from the patient ONDA a second opinion and that is any surgical operation for destroying brain tissue or for destroying the function off the brain tissue on any other forms of treatment which might be subsequently specified and added on to the regulations. And at the moment, this currently means neurosurgery for mental disorder and surgical implantation off hormones to reduce the male sex drive. And so it means that even if the patient has capacity and consent to that type of treatment, there should be a second opinion appointed Dr Off, referred to as a sewed who should agree with the clinical opinion to go ahead with the treatments on following amendments by the 2000 and seven act, sewed need to certify that it's appropriate for the treatment to be given, and this means that the treatment must be appropriate in the patient's case. Taking into account the nature and degree of the mental disorder from which he's suffering on all of the circumstances off the case. Onda. Also, the treatment must be for the purpose of which is to alleviate or prevent a worsening of the disorder, or one or more of its symptoms or manifestations. Section 58 requires the patient's consent or a second opinion on that includes treatments specified by the secretary of state but also includes treatments. Medication given to a detained patient where the medication is being given for three months or more since the first administration. So it currently means medication after an initial three month period except medication administered as part of the E C T. So unless the patient consents, a second opinion will be required on then the section 58 a, which currently relates to E. C. T. On medication administered as part of that A. C T and irrespective of whether the patient is detained or not. Easy T on the associative medication can only be given if it's an emergency under Section 62 which are considered later if the patient consent to it, and if either the approved clinician in charge of the treatment or sowed has certified that the patient is capable of understanding the nature purpose, unlikely effects of the treatment and consents to it, or whether patient doesn't have capacity to consent. Then the treatment can only be given. Episode certifies there isn't the capacity Andi Thesis et and associating medication is appropriate on wouldn't conflict with an advanced decision, which the registered medical practitioners satisfied is valid or decision made by an attorney, a deputy or the quarter protection. A patient's consent is not required where the tree movement is urgent or emergency as defined under Section 62 Andi effectively even the safe cards in Section 57 Section 58 don't apply to treatment, which is immediately necessary to either save the patient's life or prevent a serious deterioration of his condition On the treatment. Doesn't have unfavorable physical all psychological consequences which can't be reversed or alleviate Syria's suffering by the patient. Onda Again. The treatment doesn't have the unfavourable physical or psychological consequences which can't be reversed on dozens entail significant physical hazard or it's to prevent the patient from behaving violently or being a danger to himself or others. On the particular treatment represents the minimum interference necessary and does not have unfavorable physical or psychological consequences. Andi doesn't entail significant physical hazard on even the safeguards in Section 58 a don't apply to treatment, which is immediately necessary to save the patient's life or prevent a serious deterioration of his condition on the treatment does not have unfavorable physical or psychological consequences which cannot be reversed. And finally, of course, it is possible that the courts, including the court protection, may have the power to order that medical treatment must not be given on DSO override any patient's consent. That now brings this current mental health session to an end. Thank you very much for joining me, Steph Barber on this Data Law mental health session.
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