CONSENT TO TREATMENT (Part IV) Introduction and Principles Introduction

Part IV of the Order is concerned with the treatment of people who experience a mental disorder, both with and without their consent. It describes the procedures and safeguards in relation to specific treatments for mental disorder.

Under existing common law within this jurisdiction, all mentally competent adults have an absolute right to give or withhold consent to any medical treatment. Consent to a particular form of treatment allows that treatment to be given lawfully. To give treatment without informed and continuing consent may constitute assault and trespass against the person.

The common law allows treatment to be given without consent if a person is considered to lack the capacity to consent to it. In these circumstances, treatment can be given if it is deemed to be in the person's best interests.

The common law, as it relates to consent to treatment, applies to all patients whether voluntary or detained, except where statute (e.g. Part IV of the Order) specifically overrides it. There may, however, be occasions when voluntary patients can be given treatment under the common law until the provisions of the Order are adhered to.

In certain circumstances patients are unable to provide consent for treatment of their mental illness or are unwilling to do so. For those patients who meet the criteria and are detained in hospital, the Mental Health (Northern Ireland) Order 1986 allows for treatment without consent with specific safeguards.

Being mentally disordered, as defined by the Order, does not automatically infer a lack of capacity to consent to or refuse treatment. However, the Order authorises certain treatments for mental disorder to detained patients, without consent and regardless of capacity, as long as the appropriate criteria and safeguards are met.

It should always be remembered that even when dealing with detained patients, good practice requires that the doctor and other professionals involved in the patient's care should always:

• Assess whether the person has the capacity to understand the nature of their illness and the potential effects of treatment;
• Where capacity exists, seek the patient's informed consent taking account of the patient's preferences;
• Review the treatment plan and consider alternative options if the patient refuses or withdraws consent;
• Seek the patient's consent where changes in treatment are proposed;
• Keep the patient's capacity and consent under review.

What principles should guide good practice? The 1992 Code of Practice contains a list of specific principles in relation to treatment. It states that all treatment should:

• Be primarily for the benefit of the patient. Where possible the patient's willing participation should be obtained. The main aims should be, so far as is possible, to improve health and reduce handicap, including social handicap;
• Protect the safety of the patient and other people. In the course of treatment or in the interests of safety, restriction of liberty may be necessary but should never be used as a punishment and should only be used as a last resort to the minimum extent necessary;
• Respect the patient's dignity and rights. No treatment should deprive a patient of food, shelter, water, warmth, a comfortable environment or confidentiality;
• Respect the patient's rights to privacy and freedom of choice. Forms of treatment, such as psychological treatment techniques, group therapy and behaviour modification programmes, which may intrude on the patient's normal right to privacy and freedom of action, should be carefully planned and conducted by experienced and appropriately trained staff and should be kept under review;
• Respect the patient's rights to information. Patients are entitled to information and an explanation about their condition, any treatment which is proposed, and their rights. This information should be conveyed at a suitable time and in a form which takes account of the patient's capacity to understand.

These principles apply to the treatment of mentally disordered patients whether or not they are in hospital. In hospital practice they apply to both voluntary and detained patients including those admitted under Part III of the Order.

Good Practice and Consent What does 'consent to treatment' mean? Consent to treatment is a patient's agreement for a health professional to provide a particular form of treatment. For consent to be valid, the patient must:

• Have received sufficient information to make that decision;
• Have the mental capacity to make it;
• Not be acting under duress.|

What does 'mental capacity' mean? Mental capacity relates to an individual's ability to make a particular decision. In England and Wales there is a statutory Mental Capacity Law that does not apply in Northern Ireland, but is guiding good practice.

Is there good practice guidance on consent to treatment? Good practice guidance is available for Northern Ireland.

Guide to Consent for Examination, Treatment or Care (2003). Department of Health, Social Services and Public Safety.
LINK TO Guide to Consent for Examination, Treatment or Care (2003)

Further information can be found in the Consent to Treatment Appendix.
LINK TO CONSENT TO TREATMENT APPENDIX

Definitions of Treatment aNd Medical Responsibilities What constitutes medical treatment for a mental disorder under the Order? The definition of medical treatment for mental disorder is very broad. It includes nursing care and physical treatments such as the administration of medication, all under the supervision of the responsible medical officer. It also embraces the range of activities aimed at alleviating or preventing a deterioration of a patient's mental disorder. This could include the use of specialised services provided by professional staff, including nurses, psychologists, occupational therapists and social workers. These services may aim to equip a patient with skills and abilities he has never had

Does the Order cover treatment for physical illness? In most cases the provisions apply only to the medical treatment of a mental disorder. They do not apply to treatment for a physical disorder except in situations where the treatment is directly related to the mental disorder, e.g. the compulsory feeding of a detained patient with severe anorexia nervosa, whose health is seriously threatened by food refusal, to allow treatment for the underlying mental disorder following steady weight gain.

Treatment for a physical disorder is covered by the common law. According to common law, consent (informed and free from the pressure of undue influence) must be obtained for all patients unless it can be shown that the patient lacks the capacity to consent. In these cases, a decision about treatment must be made in the person's best interests.

What is a responsible medical officer (RMO)? In relation to a patient detained in hospital under the Order, the responsible medical officer (RMO) is a medical practitioner, appointed for the purposes of Part II by RQIA, who is responsible for the assessment and treatment of the patient. The RMO is usually a consultant psychiatrist.

What is a Part II doctor? A Part II doctor is a medical practitioner, usually a consultant psychiatrist, appointed by the RQIA for the purposes of Part II of the Order. He may fulfill the role of responsible medical officer or give a second opinion on a patient under the care of another RMO.

What is a Part IV doctor? A Part IV doctor is an experienced consultant psychiatrist, appointed by the RQIA for the purposes of Part IV of the Order. Part IV doctors provide an independent medical opinion on whether it is appropriate for certain treatments to be given to individual patients.

Treatments and safeguards under Part IV of the Order Can medical treatment be given to a detained patient without his consent? Yes, in most cases, treatment can be given to a detained patient without his consent although the Order provides certain procedural safeguards for the following treatments as set out in Article 64:

1. The continued administration of medication past an initial period of 3 months;
2. Electroconvulsive therapy (ECT).

These treatments require either the consent of the patient or a second opinion from a Part II doctor for medication (or a Part IV doctor for ECT) if the patient is unable or unwilling to consent to treatment.

Psychosurgery and the surgical implantation of hormones for the purpose of reducing male sexual drive is seldom performed nowadays. The procedural safeguards relating to such treatments apply to all patients, voluntary and detained, and are outlined in the Order (Article 63), the 1992 Code of Practice and the 1986 Guide. These safeguards will not be discussed in any further detail in this Guideline.

Can other forms of treatment be given to a detained patient without his consent?

Yes, all other forms of treatment for mental disorder not involving those listed above (i.e. treatment falling within Article 63 or 64) can be given to the majority of detained patients without their consent or a second opinion (Article 69). This includes patients admitted for assessment under the Order but excludes those detained patients to whom the consent to treatment provisions do not apply (see question below). The treatment must be given by the responsible medical officer or under his direction.

The Order does not give any statutory authority to impose these treatments upon any other people, for example, voluntary patients or people subject to guardianship. If such treatments are necessary, the common law has to be relied upon for the authority to do so.

Can treatment be given to a detained patient without his consent during the assessment period? Yes, once a Form 7 has been completed, treatment for mental disorder (excluding treatments falling within Article 63 or 64) can be given to the majority of detained patients without consent or a second opinion (Article 69). This includes the administration of medication. Detained patients to whom the consent to treatment provisions do not apply are excluded (see question below). The treatment must be given by the responsible medical officer or under his direction.

Do the consent to treatment provisions apply to all detained patients? No, the following patients are specifically excluded from the consent to treatment provisions:

1. Inpatients detained for up to 48 hours on a doctor's report (Form 5) or for up to 6 hours under the nurses' holding power (Form 6);
2. Accused patients remanded to hospital for a report on their mental condition (Article 42);
3. Offenders admitted to hospital as a place of safety under a direction made by the court for up to 28 days following the making of a hospital order (Article 46 (4));
4. People suffering from or believed to be suffering from a mental disorder and removed to a place of safety by a warrant made under Article 129 or found in a public place and removed to a place of safety under Article 130 for up to 48 hours
5. A restricted patient who has been conditionally discharged under Article 48 (2), 78 or 79 and has not been recalled to hospital.

These patients are in the same position as voluntary patients with regards to treatment. They can only be treated without their consent under common law provisions. However, provisions relating to treatments requiring consent and a second opinion apply to detained patients, voluntary patients and people who are subject to guardianship.

Treatment with medication When can medication be administered to a detained patient without his consent? Starting with completion of a Form 7, a patient admitted involuntarily may be administered medicine with or without his consent, for the purposes of ameliorating his mental disorder. Once a Form 10 has been completed, medication can be administered for up to a period of 3 months until further safeguards are introduced. This includes patients admitted for assessment under the Order but excludes those detained patients to whom the consent to treatment provisions do not apply as described in the section above.

This is to enable a treatment regime to be established so that both the doctor and patient can find out if a course of medication is having a beneficial effect. No formal documentation is required, however, an appropriate record should be entered into the clinical notes.

When does the 3 month period begin? The 3 month period does not run from the date of the start of the patient's detention, but begins from the first administration of any medication for his mental disorder after his detention. Safeguards apply whether that medication was given with the patient's consent, or by using the powers in the Order to give treatment without consent.

What safeguards are in place if the administration of medication is to continue beyond 3 months? There are special protections in place for all detained patients, particularly those who are unwilling or unable to give consent to treatment, if the administration of medication is to continue beyond 3 months.

For detained patients capable of giving consent to treatment:

The responsible medical officer (or a Part IV doctor) must validate the consent. The outcome of his assessment must be documented on a Form 22 and the Treatment Plan specified. A copy of the completed Form 22 must be sent immediately to RQIA while the original should be retained within the patient's records. LINK TO FORM 22

For detained patients unwilling or unable to give consent to treatment:

If the patient is either unable or unwilling to give such consent, the administration of that medicine may only be continued where the responsible medical officer approves the administration and refers the matter to another consultant psychiatrist for a second opinion. The proposed Treatment Plan should be recorded in the patient's records.

The responsible medical officer may obtain a second opinion from either a Part II doctor (or a Part IV doctor). The Part II doctor can be a doctor on the staff of the hospital in which the patient is detained but obviously cannot be the responsible medical officer for the patient.

The Part II doctor will examine the patient, discuss his case with relevant staff and consider the likelihood of the treatment alleviating or preventing a deterioration of the patient's condition. If he is satisfied that it will, then a Form 23 must be completed authorising the Treatment Plan specified. The doctor will also certify that the patient is either not capable of giving valid consent to the treatment or that he is unwilling to consent to the treatment. A copy of the completed Form 23 must be sent immediately to RQIA while the original should be retained within the patient's records. LINK TO FORM 23

Consent to treatment should be reassessed every time the detention is renewed and a Form 22 or Form 23 completed accordingly.

Treatment with ECT What conditions must be fulfilled before Electroconvulsive Therapy (ECT) can be administered? Electroconvulsive therapy (ECT) is a psychiatric treatment that is still clinically indicated in specific circumstances and for particular patients, though used less often than in the past. It is considered after a careful assessment and is administered following Good Practice Guidance from the Royal College of Psychiatrists. The ECT Handbook, The Royal College of Psychiatrists 2005
LINK TO The ECT Handbook, The Royal College of Psychiatrists 2005

In the case of a voluntary patient for whom a course of ECT is being considered, the consultant psychiatrist should seek valid consent to the procedure in the usual way. If the patient refuses to give his consent, then the treatment cannot be administered. The Order provides safeguards for detained patients for whom this treatment is being considered.

For detained patients capable of giving consent to treatment:

The responsible medical officer (or a Part IV doctor) must validate the consent. The outcome of his assessment must be documented on a Form 22 and the Treatment Plan specified. A copy of the completed Form 22 must be sent immediately to RQIA while the original should be retained within the patient's records.

This is not a substitute for documenting the essential elements of discussion with the patient in the process of gaining valid consent or for completing a standard consent form. The full Treatment Plan should also be documented in the patient's records.

For detained patients unwilling or unable to give consent to treatment:

If the patient is either unable or unwilling to give such consent, then the responsible medical officer should consider the appropriateness of treatment and the alternatives to it. If the responsible medical officer continues to believe that the patient requires a course of electroconvulsive therapy, he should contact RQIA to request a second opinion from a Part IV doctor. The responsible medical officer should document the proposed Treatment Plan in the patient's records.

RQIA will arrange for a Part IV doctor to examine the patient, discuss his case with relevant staff and consider the likelihood of the treatment alleviating or preventing a deterioration of the patient's condition. If he is satisfied that it will, then a Form 23 must be completed authorising the Treatment Plan specified. The Part IV doctor will also certify that the patient is either not capable of giving valid consent to the treatment or that he is unwilling to consent to the treatment. A copy of the completed Form 23 must be sent immediately to RQIA while the original should be retained within the patient's records.

Urgent Treatments Under what circumstances can treatment be administered to a patient in advance of the safeguards being fulfilled? Treatment requiring consent and/or a second opinion (i.e. treatments falling under Article 63 and 64) may be administered without the patient's consent, in the absence of a Form 23, to a patient unable or unwilling to give consent in certain circumstances:

Criteria for urgent treatment (Article 68)

Any treatment may be given which is:

• Immediately necessary to save the patient's life (it must be noted that treatments for mental disorder will seldom come into this category); or
• Not irreversible and is immediately necessary to prevent a serious deterioration in the patient's condition (a treatment is considered to be irreversible if it has unfavourable irreversible physical or psychological consequences); or
• Not irreversible or hazardous and is immediately necessary to prevent serious suffering by the patient (a treatment is considered to be hazardous if it entails significant physical hazard); or
• Not irreversible or hazardous, is immediately necessary and represents the minimum interference necessary to prevent the patient behaving violently or being a danger to himself or others.

Urgent treatment must cease as soon as the crisis that led to its being given has been successfully resolved. The responsible medical officer should notify RQIA immediately, explaining the circumstances and nature of the treatment provided. Further treatment can only continue if the safeguards can be complied with.

Can ECT ever be administered under the 'Urgent Treatment' provisions? Yes, in exceptional circumstances, one treatment with ECT can be administered to a detained patient who is unwilling or unable to consent to treatment, while awaiting a second opinion by a Part IV doctor.

These exceptional circumstances include the situation where a Part IV doctor cannot attend in time for the next ECT session or for some reason RQIA cannot be contacted, e.g. a weekend or bank holiday, and a patient requires urgent treatment to prevent further deterioration or as a life-saving measure.

The responsible medical officer should immediately notify RQIA, explaining which indication(s) for urgent treatment applied and why treatment was administered prior to a second opinion being provided.

A Part IV doctor appointed by RQIA will attend as soon as possible to provide the second opinion.

The Order does not state that ECT is to be regarded as either irreversible or hazardous. The potential hazard of treatment will vary substantially among patients and must be estimated by the clinical assessment of the potential risks in the context of the patient's general health and balanced against the risk of not receiving ECT.

Withdrawal of Consent to Treatment

Can a detained patient withdraw his consent to treatment? Yes, a detained patient is entitled to change his mind and withdraw his consent to treatment at any time. This means that for any course of treatment extending over time, steps must be taken by professionals to assure themselves that a patient continues to consent.

Those treatments not falling within Article 63 or 64 may continue without the patient's consent, as long as this is given by the responsible medical officer or under his direction.

If a patient withdraws consent to Electroconvulsive therapy (ECT) or the continued administration of medication past an initial period of 3 months, the responsible medical officer must stop the treatment, unless the circumstances are such that it can be given as urgent treatment. The remainder of the treatment must then be considered as a separate treatment.

If the patient continues to refuse treatment or is unable to give valid consent, then the responsible medical officer should consider the appropriateness of further treatment and the alternatives to it.

If further Electroconvulsive therapy is deemed necessary, then the responsible medical officer should contact RQIA to request a second opinion from a Part IV doctor.

If the continued administration of medication past an initial period of 3 months is deemed necessary, then the responsible medical officer may obtain a second opinion from either a Part II doctor or a Part IV doctor.

Can a course or plan of treatment be continued if the patient has withdrawn his consent or if RQIA has given notice invalidating a certificate of consent?

Yes, if the responsible medical officer considers that discontinuing the treatment abruptly would cause serious suffering to the patient, then a course or plan of treatment may continue in these circumstances. In all such cases treatment may be continued only until the provisions of Articles 63 or 64 (as the case may be) can be complied with. Treatment must cease as soon as its cessation will no longer cause serious suffering.

Where urgent treatment is administered or treatment is continued under the circumstances outlined above, the responsible medical officer should notify RQIA immediately, explaining the circumstances and nature of the treatment provided.