COMPULSORY TREATMENT WITHIN THE MENTAL HEALTH ACT 1983: A LEGAL REVIEW
O. Chao and H. Pathmanandam
The Mental Health Act 1983 (MHA) gained Royal Assent on 9th May 1983. It deals with mentally disordered people and allows them to be compulsorily detained. Importantly it governs the treatment of non-consenting detained patients. Interpretation of the Act has been modified by case law and there are a number of examples of this in relation to compulsory treatment. Despite daily use of the MHA by psychiatrists for more than two decades, they may not always be aware of these developments. This article examines Part IV of the Act. It comments on important legal cases, limitations of the Act and concerns regarding the proposed amendments to the current Act.
In England and Wales the Mental Health Act 1983 (MHA) governs the treatment of non-consenting detained patients with mental illnesses. The importance of this is paramount, as without the MHA such treatment might constitute an assault. Inherently within the MHA are safeguards to prevent this. One such is the duty on the doctor to obtain valid consent from the patient. This requires the patient have capacity to make an informed decision. However, where patients do not have capacity, or in the case of emergencies, treatment may be justified under common law, where the doctrine of necessity applies and treatment is administered in the patient’s best interests.
Due to ongoing concerns surrounding existing mental health legislation, the current MHA is under review. The proposed amendments however have provoked considerable debate within the Royal College of Psychiatrists, other interested parties and both Houses of Parliament. Nevertheless it is important to realise over the years the interpretation of the MHA has been modified by case law. This is particularly true with regard to its powers pertaining to compulsory treatment. Psychiatrists may not always be aware of these developments. In this article we hope to highlight some of the important judicial decisions that have an impact on psychiatric practice.
PART IV OF THE MHA
The provisions for treatment without consent are contained within Part IV of the MHA; the individual sections will be now considered.
Section 57 is unusual as it applies to patients that need not be detained. Importantly it requires both consent and a second opinion. It specifically refers to surgical implantation of hormones to reduce the male sex drive and psychosurgery. The administration of hormones under the Act can only be justified for treatment for a mental disorder. Psychosurgery is rarely performed. For treatment to take place a number of steps must be taken. The Responsible Medical Officer (RMO) must be satisfied that the proposed treatment is appropriate, the patient has capacity and the patient consents to it. Thereafter the Mental Health Act Commission (MHAC) organises a three-person panel (including one doctor) to determine whether a patient is capable of consent, and then the doctor must decide if the treatment will alleviate the patient’s condition. Only seven requests were made between 2003-2005, one of which was refused (MHAC, 2005).
Section 58 exclusively applies to electroconvulsive therapy (ECT) and medication. It requires consent or a second opinion. Unlike section 57, it only pertains to detained patients.
Whilst ECT is a controversial therapy with a long history of negative press, it remains an invaluable treatment for certain patients. In those that are able to provide valid consent, the RMO has a duty to anticipate the number of required treatments, and to complete a Form 38. In patients who are incapacitated or do not give consent, a second opinion from a Second Opinion Appointed Doctor (SOAD) is needed for treatment to proceed, regardless of the length of detention.
Section 58 allows treatment without a second opinion for a period of three months after medication is first administered. It is mandatory that before this period has elapsed for the RMO to discuss the treatment plan with the patient to obtain consent. As for ECT, if consent is obtained a Form 38 is completed. If consent is not acquired, a second opinion must be sought. Medication can only be given once a SOAD has approved the treatment plan, having discussed it with the RMO and two other members of the multidisciplinary team, one of whom must be a nurse involved in the patient’s care. A Form 39 can then be signed authorising treatment.
The purpose of the SOAD is to protect the patient’s rights. Nevertheless, concerns have been raised as to how effective a safeguard this actually is. Recent figures reveal that during 2004-2005, following a second opinion, 80 per cent of RMO treatment plans were unchanged, and only 2.2 per cent showed significant changes (MHAC, 2005). This reflects the old standard of care as set by the Bolam test (Bolam v Friern Hospital Management Committee, 1957). However, recent challenges in the courts to second opinion authorisation have seen a move away from the principles set in Bolam towards the doctrine of best interests.
Section 62 states it is possible to administer treatment that is “immediately necessary”, with the caveat that it is not “irreversible or hazardous.” In practice it should be used under the direction of the RMO but in reality this does not always occur. It relates to ECT and medication. Concerns have been raised that without the requirement for a second opinion, the protection that is afforded within sections 57 and 58, is missing under section 62. In addition, there are no limitations to the number of treatments that can be given, and with particular reference to psychotropic medication there are no restrictions on what can be prescribed. Furthermore, the use of pro re nata (PRN) medication often falls within the remit of section 62 when its use is not anticipated or consented to. Ideally PRN medication should be considered during SOAD authorisations.
Treatment for a mental disorder that does not fall within the remit of sections 57 and 58 can be given without consent under section 63. Importantly, the definition of “medical treatment” as stated in section 145 of the MHA has been broadly interpreted as it “includes nursing and also includes care, habilitation and rehabilitation under medical supervision.” Obviously certain treatments advocated will require a degree of compliance from the patient. For instance, it is hard to see how most psychotherapy could be effective without the co-operation of the patient.
The question has arisen as to whether this section of the MHA sanctions treatment for any mental disorder diagnosed or whether it should be specific to the mental disorder under which the patient has been classified. Significantly the Court of Appeal in R (B) v Ashworth held a patient could only be treated under section 63 for the condition under which he had been classified (R (B) v Ashworth, 2003). Fortunately, this ruling was subsequently overturned in the House of Lords (R v Ashworth Hospital Authority and another ex parte B, 2005).
In interpreting section 63, other medical treatments, especially when not for mental disorders per se, have lead to controversy. In B v Croydon Health Authority, it was held that force-feeding came within the definition of medical treatment as stated in section 145 of the MHA (B v Croydon Health Authority, 1995). This followed the House of Lords in Bland accepting that artificial nutrition and hydration was a medical treatment (Airedale NHS Trust v. Bland, 1993). It must be noted that the courts have also sensibly interpreted that the treatment of symptoms as well as the underlying cause fall within the remit of section 63.
Section 63 has been used to justify a Caesarean section on a detained patient to prevent deterioration in her mental state. However, in St George’s Healthcare NHS Trust v S the Court of Appeal held that a patient detained under the MHA could not be forced to have medical treatment unconnected to the mental disorder. If incapacitated treatment can be given under common law in the best interest of the patient (St George’s Healthcare NHS Trust v S, 1999).
More recently the issue of seclusion has been considered. Its legal justification under section 63 had been set by the Court of Appeal in the case of Munjaz (Regina (Munjaz) v Mersey Care NHS Trust and others; Regina (S) v Airedale NHS Trust and other, 2003). Interestingly, the patient was permitted to challenge the guidelines issued by his detaining authority, which deviated from those set in the Code of Practice (Department of Health and Welsh Office, 1999), but not the decision to seclude him. Initially his appeal was upheld thus elevating the Code to near statutory status. However, the House of Lords overturned this ruling in 2005, relegating the standing of the Code to mere guidance (R v Ashworth Hospital Authority (now Mersey Care National Health Service Trust) ex parte Munjaz, 2005). Therefore, it is not legally binding and can be departed from for “cogent reasons,” i.e. a justifiable explanation is provided.
The MHA provides the statutory framework whereby patients can be treated without their consent, even if they have capacity. However, the safeguards inherent within sections 57 and 58, which offer some protection of a patient’s rights, are absent in sections 62 and 63. This, together with recent case law expanding the available treatments permissible under the Act, has led to the position whereby contentious treatments such as force-feeding can be administered, resulting in an increasing number of challenges within the courts.
Perhaps the main limitation of Part IV of the MHA is that it only applies to those liable to be detained. A significant proportion of patients who are admitted to hospital are informal. There are many vulnerable patients who may not resist admission to hospital and once there may be persuaded or cajoled into having treatment. As there would be no statutory obligation such treatment would not be subject to any review of its use or need at any time.
It is clear that any new mental health legislation should identify and deal with these concerns. One solution may be to extend the role of the SOAD to include those treatments that are within the remit of sections 62 and 63. Nevertheless, this is unlikely to be viable given the resources available.
Whilst it is doubtful that there will be widespread changes to the practice of compulsory treatment for detained patients, the proposed amendments to the current Act are likely to further restrict the autonomy of patients. One of the most contentious issues suggested include the abolition of the ‘treatability’ test, which may result in patients being detained under the MHA without any obvious health benefit. The introduction of Supervised Community Treatment is also controversial. It will allow patients that have previously been detained and subsequently discharged, who then refuse treatment in the community, to be recalled to hospital.
The proposed amendments appear to focus on a perceived risk to the public as opposed to safeguarding patients’ rights. Yet, it should be remembered that any new legislation must now be compatible with the Human Rights Act 1998, which should afford some protection to patients.
Declaration of interest
Airedale NHS Trust v. Bland  AC 789
B v Croydon Health Authority  Fam 133
Bolam v Friern Hospital Management Committee  1 WLR 582
Mental Health Act 1983 Code of Practice, Department of Health and Welsh Office, 1999, London, The Stationary Office
Mental Health Act Commission, In Place of Fear? Eleventh Biennial Report 2003-2005, London TSO 2005, p 243
R v Ashworth Hospital Authority and another ex parte B  UKHL 20
R v Ashworth Hospital Authority (now Mersey Care National Health Service Trust) ex parte Munjaz  UKHL 58.
R (B) v Ashworth  EWCA Civ 547,  4 All ER 319, 74 BMLR 58
Regina (Munjaz) v Mersey Care NHS Trust and others; Regina (S) v Airedale NHS Trust and others.  EWCA Civ 1036, CA.
St George’s Healthcare NHS Trust v S  Fam 26,  3 All ER 673,  3 WLR 936,  2 FLR 728, 44 BMLR 160,  Fam Law 526
Specialist Registrar in Forensic Psychiatry
North London Forensic Service
Camlet 3, Chase Farm Hospital Site
Enfield EN2 8JL
Specialist Registrar in General Adult and Old Age Psychiatry
Central and North West London NHS Foundation Trust
Park Royal Centre for Mental Health
London NW10 7NS
Copyright © Priory Lodge Education Limited 2007
First Published August 2007