Mental Health Bill [HL] - continued          House of Commons

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Consent to treatment: overview

97.     Part 4 of the 1983 Act deals with the medical treatment of patients, other than (for most purposes) patients subject to a community treatment order (CTO) who have not been recalled to hospital. See below for an explanation of CTOs.

98.     Section 57 provides that certain treatments may not be given to any patient for mental disorder (whether or not they are otherwise subject to the 1983 Act) unless the patient consents, a SOAD and two other people appointed by the Mental Health Act Commission have certified that the patient is capable of giving that consent (and has done so) and the SOAD has additionally certified that the treatment should be given. The treatments in question are any surgical operation for destroying brain tissue or its functioning (sometimes called "psychosurgery") and, by virtue of regulations under subsection (1)(b), surgical implantation of hormones for the purpose of reducing male sex drive (a procedure which is now effectively redundant).

99.     Section 58 provides that patients who are liable to be detained under the 1983 Act (subject to certain exclusions set out in section 56) may not, in general, be given certain treatments unless they consent and that consent is certified by their RMO (in future RC) or a SOAD, or alternatively unless a SOAD certifies that they either cannot or will not consent to the treatment, but that it should nonetheless be given. (Clause 34 applies section 58 also to patients who are subject to a CTO and who have been recalled to hospital (subject to certain exceptions).) Section 58 applies to medication once three months have passed since the patient was first given medication while detained - or in future subject to a CTO - under the Act. By virtue of regulations under subsection (1)(a) it also applies to ECT, without any initial period.

100.     Sections 57 and 58 are subject to:

  • section 59, which provides that consent or a certificate under either of those sections may relate to a plan of treatment instead of an individual treatment

  • section 60, which provides that a patient who withdraws consent to treatment or to all or any part of a plan of treatment, is to be treated from that point onwards as being someone who does not consent to the treatment(s) in question

  • section 61, which imposes requirements on RMOs to report to the Secretary of State (in practice MHAC) on treatment given on the basis of a SOAD certificate and permits the Secretary of State (MHAC) to withdraw such a certificate

  • section 62 which disapplies sections 57 and 58 where treatment is immediately necessary and meets certain criteria and in certain cases where the discontinuance of treatment would cause the patient serious suffering.

101.     Section 63 provides that patients liable to be detained (and not excluded by section 56) may be treated by or under the direction of their RMO (in future AC in charge of the treatment) without their consent, where the treatment concerned is not one to which section 57 or 58 applies.

Clauses 30 - 31: Consent to treatment

102.     Clause 30 introduces a new provision that provides that ECT and any other treatment provided for by regulations made under section 58 can only be given when the patient either gives consent, or he or she is incapable of giving consent. This provision is subject to the emergency provisions at section 62. This is to ensure that if a patient is not consenting, or is incapable of consent, he or she can still receive treatment in the urgent circumstances set out in section 62 if there is insufficient time to arrange for a SOAD.

103.     Where the patient consents, that consent must be certified by either the AC in charge of the patient's treatment or a SOAD.

104.     Where the patient is incapable of consent, the SOAD must certify that the patient is not capable of understanding the purpose, nature and likely effects of the treatment and that the SOAD agrees that it is appropriate for the patient to receive the treatment. Before doing so the SOAD must first consult two other persons, one must be a nurse concerned with the patient's medical treatment and the second must be another person professionally concerned with the patient's medical treatment who is neither a nurse nor a doctor nor the RC.

105.     The SOAD is not able to make such a certificate if to do so would conflict with:

  • an advance decision of the patient not to receive the treatment, which the SOAD is satisfied is valid and applies in the circumstances as they exist to that treatment, or

  • a decision made by a deputy or donee as defined by the MCA, where the deputy or donee has the authority to refuse such treatment on behalf of the patient, or

  • an order of the Court of Protection or any other court whose jurisdictions extends to such matters.

106.     Before making regulations regarding the proposed section 58A the Secretary of State for England and the Welsh Ministers for Wales shall consult any such bodies as appear to them to be concerned.

107.     Clause 31 provides for consequential amendments to sections 58, 59, 60, 61, 62 and 63 to take account of the new section 58A.

CHAPTER 4 - SUPERVISED COMMUNITY TREATMENT

Overview

108.     The SCT provisions will allow some patients with a mental disorder to live in the community whilst still subject to powers under the 1983 Act. Patients subject to SCT remain under compulsion and liable to recall to hospital for treatment. Only those patients who have been detained in hospital for treatment will be eligible for SCT. In order for a patient to be placed on SCT, various criteria need to be met. An AMHP also needs to agree that SCT is appropriate. Patients who are on SCT will be made subject to conditions whilst living in the community. Conditions will depend on their individual and family circumstances. Conditions will form part of the patient's CTO which is made by the RC. Patients on SCT may be recalled to hospital for treatment should this become necessary. Afterwards they may then resume living in the community or, if they need to be treated as an in-patient again, their RC may revoke the CTO and the patient remains in hospital for the time being.

109.     SCT differs from after-care under supervision (ACUS) (as provided for by sections 25A to 25J of the 1983 Act). Under SCT a person must require medical treatment which cannot be provided unless that person is liable to recall to hospital, whereas the basic criterion for ACUS is that supervision is necessary to secure that the person receives after-care services and there is no liability for recall to hospital. SCT is different from leave (as provided for by section 17 of the 1983 Act), which remains suitable for a patient as a means of giving shorter term leave of absence from hospital, as part of the patient's overall management as a detained patient.

Clause 32: community treatment orders, etc

110.     Clause 32 introduces new sections 17A-17G of the 1983 Act which set out how CTOs are to be made, and how they will work.

111.     Under new section 17A, the RC may make a CTO in respect of a patient detained under section 3 or Part 3 (without restrictions) of the 1983 Act, if they are satisfied that the criteria for SCT (i.e. the relevant criteria) are met, and an AMHP agrees that a CTO is appropriate for that patient. The CTO, and the AMHP's agreement to it, will be in writing. If the RC is not a medical practitioner (i.e. a doctor), a doctor must additionally examine the patient and make a written recommendation in the prescribed form that the relevant criteria are met before a CTO can be made. The doctor must either be professionally concerned with the patient's treatment or an approved clinician. The requirement for a RC who is not a doctor to additionally obtain the written agreement of a doctor was inserted into the Bill by an amendment which the Government opposed in the House of Lords.

112.     The criteria that the patient must meet - in order to be suitable for SCT - are specified in section 17A(5). The criteria were changed by an amendment which the Government opposed in the House of Lords:

  • the patient must need medical treatment for their mental disorder for their own health or safety, or for the protection of others

  • for Part 2 (civil) patients only, the patient's ability to make decisions about the provision of medical treatment must be significantly impaired because of their mental disorder

  • it must be necessary for the protection of others from serious harm that the patient receives treatment

  • it must be possible for the patient to receive the treatment they need without having to be detained in hospital, provided that the patient can be recalled to hospital for treatment should this become necessary

  • the patient must, on at least one occasion prior to the present admission under section 3, have refused medical treatment and that refusal must have led to a significant relapse in their mental or physical condition justifying compulsory admission to hospital and also, during that admission, must have received compulsory medical treatment which alleviated or prevented a deterioration in their condition

  • appropriate medical treatment for the patient must be available whilst living in the community.

113.     Patients who are subject to a CTO are referred to in the legislation as community patients.

114.     Section 17B requires that CTOs specify conditions to which a community patient will be subject. An example of a condition that may be included is that the patient is to reside at a particular place. The RC and an AMHP must agree the conditions. The RC may vary the conditions, or suspend any of them.

115.     The conditions specified under section 17B (with the exception of section 17B(3)(d)) are not in themselves enforceable but, if a patient fails to comply with any condition, the RC may take that into account when considering if it is necessary to use the recall power (section 17B(6)). However, if the criteria for recall are met, the recall power may still be exercised even if the patient is complying with the conditions (section 17B(7)). A patient cannot be recalled unless the criteria for recall in section 17E are met.

116.     Section 17C specifies the duration of a CTO. A patient's CTO will end either if the period of the CTO runs out and the CTO is not extended, or the patient is discharged from the powers of the 1983 Act. It will also end if the RC revokes the CTO following the patient's recall to hospital under section 17F or, for Part 3 patients, if the CTO they were placed on was time-specific and runs out.

117.     Section 17D sets out the effect of a CTO on certain other provisions of the 1983 Act. The application for admission for treatment under which the patient was detained remains in force, but the hospital managers' authority to detain the patient under section 6(2) is suspended whilst the patient remains a community patient. The authority to detain the patient will not expire while it is suspended. However, when a patient's CTO ends, the patient will be discharged absolutely from SCT. Should an application for admission for treatment still remain in force, this will also end.

118.     Section 17D(2)(b) provides that where the 1983 Act mentions patients who are "detained" or "liable to be detained", this does not include community patients. Where it is intended that a provision should apply to community patients, the 1983 Act is being amended to make this clear. In addition, references in other legislation to patients who are detained, or liable to be detained, do not include community patients.

119.     Section 17E provides that a community patient may be recalled to hospital if the RC decides that the patient needs to receive treatment for his or her mental disorder in a hospital and that, without this treatment, there would be a risk of harm to the patient's health or safety, or to other people. The recall notice will trigger the hospital managers' authority to re-detain the patient (section 17E(6)). A community patient may be recalled even if the patient is in hospital at the time. This could happen, for example, if the patient goes to hospital but then refuses the treatment that the RC considers is needed, and the patient, or someone else, would be at risk if the patient does not receive that treatment.

120.     Under section 17E(2), there is also a power to recall a patient to hospital if the patient fails to comply with a condition under section 17B(3)(d) that specifies that patients must make themselves available for examination. This allows the RC to examine a patient to assess whether a patient's CTO should be renewed and also allows a SOAD to examine the patient in order to meet the certificate requirement in sections 64B and 64E (see below).

121.     Section 17F sets out the powers which apply to a patient who is recalled to hospital under section 17E. If the RC decides that the patient meets the 1983 Act's criteria for detention in hospital (set out in section 3(2)), the RC may, subject to an AMHP's agreement that it is appropriate, revoke the patient's CTO under section 17F(4). If the RC is not a doctor, a doctor must additionally examine the patient and make a written recommendation in the prescribed form that the criteria are met (section 17F(5)). An RC who is not a doctor is obliged to comply with the requirement to seek the opinion of a doctor but not to agree with that opinion in the event that it does not conclude that the criteria for detention are met. The doctor must either be professionally concerned with the patient's treatment or an approved clinician. This latter requirement was inserted into the Bill by an amendment which the Government opposed in the House of Lords.

122.     The RC can only recall a patient for a maximum of 72 hours without revoking the CTO. Therefore, the RC may release a recalled patient from detention at any time within the first 72 hours, provided the CTO has not been otherwise revoked. On release, the patient continues to remain subject to the CTO.

123.     Section 17G provides that when a CTO is revoked (so that the patient is no longer a community patient), the authority to detain the patient under section 6(2) applies (unless the patient is a Part 3 patient), exactly as if the patient had never been a community patient. In addition, all the 1983 Act's provisions apply to the patient as they did when the patient was first admitted to hospital for treatment before the CTO was made (unless the 1983 Act provides otherwise).

124.     Clause 32 also inserts new sections 20A and 20B which set out how long CTOs will last, and how they can be extended. A new CTO will initially last for 6 months from the date when the order was made. The order can then be extended for a further 6 months and, following that, it can be extended repeatedly for periods of one year at a time. For a CTO to be renewed under section 20A, the RC must examine the patient and furnish a report to the hospital managers confirming that the conditions, as set out in section 20A(6), are met.

125.     The RC must also have the agreement in writing of an AMHP before the report required under section 20A can be furnished. And if the RC is not a doctor, the RC must ensure that the patient is examined by a doctor and the CTO cannot then be made unless the doctor agrees the relevant criteria for the CTO are still met. The doctor must either be professionally concerned with the patient's treatment or an approved clinician. These requirements were inserted into the Bill by an amendment which the Government opposed in the House of Lords.

126.      A patient may be recalled to hospital for the purpose of examining the patient to determine whether the CTO should be renewed.

Clause 33: relationship with leave of absence

127.     Clause 33 makes provision in respect of the relationship of SCT with other powers in the 1983 Act concerning leave of absence. It amends the provisions in the Act which authorise leave of absence from hospital (section 17). Before granting longer term leave of over 7 consecutive days (or where leave is extended so the total leave granted exceeds 7 consecutive days), a RC must consider whether SCT is the more appropriate way of managing the patient in the community.

Clause 34: consent to treatment

128.     Clause 34 replaces section 56 of the 1983 Act which sets out the patients to whom Part 4 of the Act, which deals with consent to treatment, applies. A community patient will not be subject to Part 4 unless recalled to hospital.

129.     On recall, a patient may be treated on the basis of the Part 4A certificate if that certificate specifies treatment as being appropriate in these circumstances. If the certificate does not specify any such treatment, then (if it is section 58-type treatment) it cannot be given on recall without the patient's consent, unless or until its administration is permitted under Part 4. However, if a section 58 certificate was in place before the CTO was made, and covers the patient's current treatment needs, there is no need for new section 58 certificate.

130.     A section 58 certificate is not required in circumstances where:

  • discontinuing the treatment or the plan of treatment at that point would cause serious suffering to the patient as provided for under new section 62A(5)

  • the treatment is immediately necessary: immediately necessary treatment can be given under section 62 of the 1983 Act

  • in the case of medication regulated by section 58(1)(b) the patient is still within the period described above (i.e. either one month has not elapsed from the time when the CTO was made or the three month period from when treatment was first given to the patient has not elapsed).

131.     It is not necessary to meet the certificate requirement before treatment can be given in emergencies to a patient in the community where that patient consents to treatment or, for patients who lack capacity, where an attorney, deputy or the Court of Protection consents to it on the patient's behalf.

Clause 35: authority to treat

132.     Clause 35 introduces a new Part 4A into the 1983 Act to regulate the treatment of community patients whilst in the community i.e. when they are not recalled to hospital. Community patients aged 16 or over with capacity can only be treated in the community if they consent to that treatment. New section 64B gives the authority to treat adult patients who have the capacity to consent in the community only.

133.     Community patients aged 16 or over who lack the capacity to consent to treatment in the community can be treated in the community if a donee of lasting power of attorney (an "attorney") or deputy or the Court of Protection consents to treatment on their behalf and there is authority to give treatment under new section 64D (eg where the patient does not object to treatment). If the treatment conflicts with an advance decision or a decision made by an attorney or deputy or the Court of Protection it also cannot be given to the patient.

134.     Children aged under 16 can also be made subject to a CTO. As with adults who have capacity, treatment cannot be given to a child in the community who is competent to consent and does not consent to it. New section 64F provides the authority to treat a child who lacks competence in the community. Similar conditions must be met in order to treat a child lacking competence as for an adult who lacks capacity.

135.     In emergencies, force can be used to give treatment to patients who lack capacity or to children who lack competence. New section 64G sets out how and when treatment can be given in these situations. Force can be used to give treatment only if it is immediately necessary, prevents harm to the patient and is a proportionate response to the likelihood of the patient suffering harm and to the seriousness of the harm. In other circumstances force may be used to treat a patient who has not been recalled to hospital if the patient does not object. The factors to be considered by a practitioner in determining whether a patient objects to treatment are outlined in new section 64J.

136.     All community patients receiving the type of treatment which falls under section 58 of the 1983 Act must have that treatment certified by a SOAD in accordance with the provisions of Part 4A. For treatment specified in section 58(1)(b) (i.e. medication) a certificate does not have to be in place immediately for a community patient, but must be in place after a certain period. This period is one month from when a patient leaves hospital or three months from when the medication was first given to the patient (whether that medication was given in the community or in hospital), whichever is later. The SOAD must certify in writing that it is appropriate for the treatment to be given.

137.     The SOAD may specify within the certificate that certain treatment can be given to the patient only if certain conditions are satisfied: so, for example, the SOAD can specify that a particular antipsychotic and dosage can only be given if the patient has the capacity to consent to it in the community and does consent to it. The SOAD can also specify whether and if so what treatments can be given to the patient on recall to hospital and the circumstances in which the treatment can be given. For example, the SOAD can specify, if appropriate, that an antipsychotic can be given to the patient on recall without the patient's consent.

138.     The following table summarises when patients can be treated in the community and the safeguards that are in place for the review of section 58-type treatment:

Patients 16 and over with capacity to consent AND patients under 16 with competencePatients 16 and over without capacity to consentPatients under 16 without competence to consent
SCT patient in the community
PART 4A regulates treatment

Patient must consent to treatment

Authority to treat patient under s64B (adults) or s64E(children)

For s58 type treatment there must be a SOAD certificate in place: for medication this must be within a certain period 2

But certificate requirement need not be complied with where treatment is immediately necessary

Can treat if an attorney or deputy or the Court of Protection consents under s64B

Can treat a patient under s64D provided patient does not object to treatment or it is not necessary to use force (unless the treatment conflicts with decision of an attorney, deputy or Court of Protection or advanced decision)

Can be treated in emergencies with force but only if it is immediately necessary and the use of force is proportionate under s64G

For s58 type treatment there must be a SOAD certificate in place: for medication this must be within a certain period

But it is not necessary to comply with the certificate requirement where treatment is immediately necessary or under section s64G

Can treat a patient under s64E provided patient does not object to treatment or it is not necessary to use force

Can be treated in emergencies with force but only if it is proportionate under s64F

For s58 type treatment there must be a SOAD certificate in place: for medication, this must be within a certain period

But it is not necessary to comply with the certificate requirement where treatment is immediately necessary or under section s64G


2 The certain period is one month from when a patient leaves hospital or three months from when the medication was first given to the patient (whether that medication was given in the community or in hospital), whichever is later.

SCT patient on recall to hospital or where SCT is revoked
PART 4 regulates treatment
Section 58 type treatment can be given without consent under s62A where:

SOAD certificate is in place certifying that it is appropriate to give the treatment (s62A 3(a))*
or

For medication regulated by s58 (1) (b) the patient is still within the certain period (s62A 3 (b))
or

Discontinuing the treatment or plan of treatment would cause serious suffering to the patient under s62A (5)
or
Treatment is immediately necessary under s62
Or if none of the above is satisfied a new s58 certificate is required to treat the patient.
* where an SCT patient's CTO is revoked, relevant treatment can be given if the Part 4A certificate requirement is met, but only pending compliance with s58.

Section 58 type treatment can be given without consent under s62A where:

SOAD certificate is in place certifying that it is appropriate to give the treatment (s62A 3(a))*
or

For medication, regulated by s58 (1) (b), the patient is still within the certain period (s62A3(b))
or

Discontinuing the treatment or plan of treatment would cause serious suffering to the patient under s62A(5)
or
Treatment is immediately necessary under s62
Or if none of the above is satisfied a new s58 certificate is required to treat the patient.
* where an SCT patient's CTO is revoked, relevant treatment can be given if the Part 4A certificate requirement is met, but only pending compliance with s58.

Section 58 type treatment can be given without consent under s62A where:

SOAD certificate is in place certifying that it is appropriate to give the treatment (s62A3(a))*
or

For medication, regulated by s58 (1) (b)the patient is still within the certain period (s62A3(b))
or

Discontinuing the treatment or plan of treatment would cause serious suffering to the patient under s62A (5)
or
Treatment is immediately necessary under s62
Or if none of the above is satisfied a new s58 certificate is required to treat the patient.
* where an SCT patient's CTO is revoked, relevant treatment can be given if the Part 4A certificate requirement is met, but only pending compliance with s58.

 
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Prepared: 23 March 2007