Medical Treatment Authorised under Part IV of the Mental Health Act 1983
| Author | Michael Butler |
| Pages | 81-93 |
Chapter 9
Medical Treatment Authorised under Part IV of the Mental Health Act 1983
9.1 INTRODUCTION
Following admission to hospital, the authority to treat the mental disorder of a patient detained under the MHA 1983 generally comes from Part IV, and any treatment must therefore be in accordance with its provisions. In outline, Part IV provides the general authority to treat a patient without his consent, identifies certain types of treatment in respect of which special safeguards must apply, and identifies circumstances in which those special safeguards can be temporarily overlooked. Each of these aspects of the provisions in Part IV is considered in this chapter.
9.2 PATIENTS TO WHOM PART IV OF THE MENTAL HEALTH ACT 1983 APPLIES
Section 56 of the MHA 1983 identifies the patients to whom Part IV applies. Virtually all patients detained under the Act (whether under the civil or criminal detaining sections) are subject to its provisions. The small category of detained patients who are not, are those detained under the Act’s short-term sections, that is sections 4, 5, 35, 37(4), 45A(5), 135 and 136 (section 56(3)). Any such patients may not be treated under the authority of the Act and may only, therefore, be treated with their consent or, if they lack capacity, in accordance with the MCA 2005.
It should be noted that there is a very small category of voluntary or informal patients to whom Part IV of the MHA 1983 also applies. This category consists of patients receiving certain types of treatment for mental disorder which are serious enough to merit special safeguards even though the patient consents and is not detained under the Act. It includes patients receiving neurosurgery or
82 A Practitioner’s Guide to Mental Health Law
surgical implantation of hormones (section 57), and patients aged under 18 receiving electroconvulsive therapy (ECT) treatment (section 58A). Even though the patient is not detained under the Act, any treatment must be in accordance with the relevant provisions of Part IV.
9.3 TREATMENT UNDER THE MENTAL CAPACITY ACT 2005
Before looking at the provisions concerning treatment under the MHA 1983, it is worth briefly considering the alternative possibility of treatment under the MCA 2005.
9.3.1 Use of the Mental Capacity Act 2005 where patients are not detained under the Mental Health Act 1983
A patient who is 16 or older and is admitted to hospital on an informal basis (that is, he is not detained under the MHA 1983), but who lacks the capacity to consent to treatment, may be treated for any mental disorder under the MCA 2005. Decisions regarding treatment would need to be taken in accordance with the general principles set out in Chapter 22. Where a patient requires treatment for mental disorder, however, clinicians should avoid treating under the MCA 2005 when treatment under the MHA 1983 would be more appropriate. Treatment for mental disorder may be authorised under either Act, and the MHA 1983 should only be used where it is necessary, but, as a general rule, if a patient meets the criteria for detention under the MHA 1983 and is objecting to any treatment for the mental disorder, then the MHA 1983 should be used, not the MCA 2005 (GJ v Foundation Trust [2009] EWHC 2972 (Fam)).
9.3.2 Use of the Mental Capacity Act 2005 where patients are detained under the Mental Health Act 1983
The MCA 2005 may not be used to authorise treatment for mental disorder where the patient’s treatment is already regulated by the MHA 1983 (section 28(1) of the MCA 2005). Generally speaking, this means that the MCA 2005 may not be used to treat the mental disorder of a patient who is already detained under the MHA 1983; authority for treatment should come from the MHA 1983 itself. As already seen, however (para 9.2), there are certain patients detained under the MHA 1983 to whom Part IV does not apply and whose treatment is not therefore regulated by that Act. These patients may receive treatment for their mental disorder under the MCA 2005 even though detained under the MHA 1983.
The provisions in Part IV of the MHA 1983 only apply to treatment for mental disorder and, therefore, the MCA 2005 may be used to authorise other types of treatment for a detained patient, for example treatment for a physical disorder.
9.4 THE EUROPEAN CONVENTION ON HUMAN RIGHTS AND TREATMENT UNDER THE MENTAL HEALTH ACT 1983
Whatever treatment may be authorised under Part IV of the MHA 1983, the clinician who administers it must bear in mind that he is performing a role as a public body and is taking actions which are subject to the provisions of the ECHR.
As already noted (see para 2.7), Article 3 of the ECHR provides that, ‘no one shall be subjected to torture or to inhuman or degrading treatment or punishment’, and it has been held in various cases, for example, Herczegfalvy v Austria (Application No 10533/83) [1992] ECHR 83, that the compulsory administration of treatment to a detained patient could conceivably constitute inhuman or degrading treatment for these purposes. In the Herczegfalvy case, the treatment complained of was the forcible administering of food and neuroleptics while the patient was isolated and handcuffed to a security bed. The ECtHR ruled that, as a matter of principle, treatment which is therapeutically necessary cannot be regarded as inhuman or degrading. The court also ruled, however, that therapeutic necessity must have been ‘convincingly shown to exist’. On the facts, although the court was worried, in particular, by the length of time over which the treatment was applied, it concluded that the evidence before it was not sufficient to disprove the argument from the Austrian government that it was justified by medical necessity.
In R (on the application of N) v Doctor ‘M’ and others [2002] EWCA Civ 1789, the Court of Appeal held that whether therapeutic necessity had been ‘convincingly shown to exist’ depended on a number of factors (at [19]):
including (a) how certain is it that the patient does suffer from a treatable mental disorder; (b) how serious a disorder is it; (c) how serious a...
To continue reading
Request your trial