Consent to treatment and mental health
Authors: A. Parsons
Journal: Journal of the Royal Society of Medicine (2003)

Dr Agell (March 2003 JRSM1) highlights the misuse of the Mental Health Act as a means of authorizing treatment for physical conditions. His letter reflects my own experience, as a lawyer specializing in mental health issues, of the need for greater education in the law of consent. This is one of the areas on which we are most often asked to advise or provide training. With that in mind, I offer here a summary of the law of consent as it affects psychiatric patients.

Part IV of the Mental Health Act sets out the provisions relating to treatment of detained patients and gives procedures and safeguards in relation to specific groups of treatment for mental disorder. It does not apply to other types of treatment. Treatment for physical disorders and for mental disorders in patients who do not come within Part IV of the Act are covered by the common law; the Mental Health Act has no application in such cases. According to common law, consent (informed and free from the pressure of undue influence) must be obtained for all treatment for all patients unless it can be shown that the patient lacks the capacity to consent or the Act applies.

What are the relevant sections of the Mental Health Act 1983, Part IV?

Section 63 provides that the consent of a person is not required for any medical treatment given to him for the mental disorder from which he is suffering (not being treatment falling under Section 57 or Section 58) if the treatment is given to him by or under the direction of the Responsible Medical Officer. The section only applies to formally detained patients. To fall within the ambit of Section 63 the treatment must be:



Medical treatmentSection 145 defines this very widely. The definition includes nursing and care, habilitation and rehabilitation under medical supervision. Although it does not specifically refer to surgical treatment this is not expressly excluded


In respect of a patient with a mental disorder as defined in the Act


Treatment given to the patient for the mental disorder


Given under the direction of the Responsible Medical Officer.






It has been held that Section 63 covers treatment of the symptoms of mental disorder and therefore includes, for example, the force-feeding of a patient with anorexia nervosa.

Section 57 provides for certain psychiatric treatments which can only be given with the patient's consent and with authorization from a second-opinion doctor. Examples are psychosurgery and the surgical implantation of hormones for the purpose of reducing male sex drive.

Section 58 likewise provides for certain psychiatric treatments to be given but in this case requires consent or authorization from a second opinion doctor in the absence of consent. This covers treatment such as electroconvulsive therapy and also the administration of medicine for mental disorder if 3 months have elapsed since the first time the medicine was given during the period of detention.

Section 62 provides that the procedural restrictions in Sections 57 and 58 do not apply to any treatment for mental disorder which comes within the remit of sections 57 and 58:



Which is immediately necessary to save the patient's life; or


Which (not being irreversible) is immediately necessary to prevent a serious deterioration of his condition; or


Which (not being irreversible or hazardous) is immediately necessary to alleviate serious suffering by the patient; or


Which (not being irreversible or hazardous) is immediately necessary and represents the minimum interference necessary to prevent the patient from behaving violently or being a danger to himself or to others.






The safeguards provided in Sections 57 and 58 therefore do not apply to certain categories of urgent treatment for mental disorder which can accordingly be given to the patient without his consent.

Treatment without consent for other types of treatment for mental disorders can be administered by virtue of the power given to the patient's Responsible Medical Officer by Section 63. However, treatment for physical conditions of either capable patients who refuse to consent or incapable patients cannot be undertaken under the Mental Health Act, and the detention of patients simply for that purported purpose would almost certainly be unlawful.

In summary, Part IV of the Act allows treatment of detained patients for mental disorder without the patient's consent as set out in Sections 57, 58, 62 and 63. Where the Act does not apply and for treatment for physical disorders the common law principles apply.

A patient not falling within Part IV of the Act who is capable of giving consent is entitled to refuse treatment. A patient not falling within Part IV of the Act who is incapable of giving consent can be given treatment but only if it is in the patient's best interests and of urgent necessity to save the patient's life or to ensure improvement or prevent deterioration in physical or mental health. The treatment must be in accordance with good practice accepted by a proper body of medical opinion. Section 63 does not permit treatment simply for physical disorders and such treatment cannot be given without consent unless justification can be found under common law.

In cases of doubt as to capacity where the Act does not apply the doctor should not hesitate to apply to the Court for a declaration that treatment may be given. Reference should be made to the guidelines handed down by the Court of Appeal in Ex Parte S2 as to the approach to be taken in these sort of cases.