Consent to treatment

Adult patients who have entered hospital voluntarily or who are voluntarily receiving outpatient treatment can only be given medical treatment, including psychiatric treatment, if they consent to it (capacity is a complex issue in the law, and is discussed elsewhere (1718>). In the absence of such consent, treatment may only be given: (1) in circumstances of necessity; (2) where the patient, by virtue of his or her mental condition, is incapable of consenting, but who has not previously stated his or her objection to treatment in such circumstances; and (3) where the patient is admitted for compulsory treatment under the legislation.

The principle of necessity justifies treatment where the patient is unable to give consent or to make a valid refusal and where the pressing nature of the circumstances makes it impossible to invoke powers under the mental health legislation. It would be legal, therefore, for a doctor to take steps to sedate a patient who requires immediate sedation in order to prevent harm to self or others. Nurses have a similar common law power to take such steps as are necessary to restrain a patient. Any necessity-based intervention, however, must involve the minimum use of force and must not persist beyond the point at which other expedients, including legislatively sanctioned compulsory measures, become feasible. It has been emphasized by a Scottish court that necessity powers should not be resorted to in the place of the procedures for non-consensual treatment which have been put in place by mental health legislation. (!9.)

There are certain patients who lack the capacity to give a valid consent to hospital treatment for a mental illness but who do not resist either being in hospital or receiving treatment. Such patients may be admitted to hospital as informal, voluntary patients and may therefore not be subject to the regime established for compulsorily detained patients. This means that they will also be denied some of the protection afforded to detained patients. The legality of this was questioned in the case of R. v. Bournewood Community and Mental Health NHS Trust, ex parte L,(29 in which an attempt was made to have the hospital treatment of such a patient declared illegal. On appeal to the House of Lords it was held that the hospitalization of such patients did not constitute wrongful detention, the court clearly being concerned at the demands that would be made on the system if it became necessary formally to detain all such incompetent but compliant patients.

Patients who are involuntarily detained for treatment may, under Section 63 of the 1983 Act, be given treatment for their mental illness in the absence of consent on their part. There are restrictions, discussed below, in the period for which such treatment may be given before there must be independent medical review, and there are restrictions, also, on certain forms of hazardous or irreversible treatment.

Mental health legislation typically sets out time limits in respect of the period for which a patient may be detained involuntarily. An emergency admission under Section 4 of the 1983 Act allows a patient to be detained in hospital for up to 72 hours, but gives no powers for treatment to be imposed. It is possible, however, once the patient is admitted to hospital to resort to a longer-term admission. Only one medical opinion is needed for such an emergency admission, but it is considered desirable that the doctor furnishing the opinion should have known the patient prior to the making of the application. Longer-term admission can be made under either Section 2 (which gives authority for admission for assessment for a period of 28 days) or Section 3 (which requires two medical opinions and which requires a greater degree of specification in respect of the justification for compulsory admission). A Section 3 order lasts for 6 months, after which it may be renewed for a further period of 6 months and then for periods of 1 year at a time.

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