Alternative Treatments and Consent after the Human Rights Act

Originally published in February 2003

Section 63 of the Mental Health Act provides that the consent of a patient detained under certain sections of the Act (including section 3) is not required for medical treatment given by or under the direction of the patient's RMO. The treatment must be for the mental disorder from which he is suffering and must not be treatment falling within sections 57 and 58 of the Act (see below). However, consent should still be sought and the Code of Practice1 states that this is the personal responsibility of the patient's RMO.

Section 57 specifies certain treatments, namely psychosurgery and the surgical implantation of hormones for the reduction of male sexual drive, which require both the patient's consent and a second opinion. Section 58, provides that administration of medicine for the patient's mental disorder beyond an initial 3 month period (as well as treatment by ECT at any time) requires either the patient's consent, or a Second Opinion Approved Doctor (SOAD) appointed by the Mental Health Act Commission to certify that the patient either does not have the capacity to consent or does not consent but should be given the treatment anyway having regard to the likelihood of its alleviating or preventing the deterioration of the patient's condition.

It is the responsibility of the doctor proposing to treat a patient to determine their capacity to consent, as highlighted in paragraph 15.9 of the Code of Practice. However, as above, the statutory framework provides for treatment in either event. In addition, the common law provides that treatment of an incapable patient may be carried out in the patient's best interests under the common law doctrine of necessity. Even for treatment under S.63, this should also only be given if considered to be in the patient's best interests. In making this decision, the RMO should pay particular attention to any available alternatives, such as administering medication orally as opposed to by injection, and take the patient's wishes into consideration. This analysis should also be carried out by the SOAD under the S.58 procedure2 in assessing whether the treatment is likely to alleviate or prevent a deterioration in the patient's condition.

It is also necessary to consider whether treatment without consent would constitute a breach of the Human Rights Act 1998.

Article 3 of the Convention of Human Rights prohibits "inhuman and degrading treatment". This is an unqualified...