Consent to Treatment under the Mental Health Act

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Mental Health Act - State sanctioned discrimination against people with mental disorder, discussed by Donald Tiong of Blavo & Co Solicitors

Consent to treatment

reduce the stigma and negative perceptions associated with mental disorder

Private member Bill, Mental Health (Discrimination) (No.2), championed by Gavin Barwell, a Conservative MP, has received its well deserved support from the Government. The first reading of the Bill at the House of Lords took place on 3 December 2012, and a second reading is scheduled to take place on 18 January 2013. The aim of the Bill is to reduce the stigma and negative perceptions associated with mental disorder. It would repeal the current s.141 of the Mental Health Act that prevent people with mental health conditions from serving as Members of Parliament, Members of the devolved legislatures, Jurors, or company directors. The above is certainly a positive step taken by the coalition government in recognition of the discrimination experienced and stigma attached to those with a mental disorder. Since 2011 the Liberal Democrats had championed several cross government strategies and campaigns in an effort to bridge the gap between the mental and physical health needs health needs. On 2 February 2011, the Liberal Democrat Leader, the Deputy PM Nick Clegg in his public statement said:“The evidence is clear: mental health needs to be addressed with the same urgency as physical health. We need to end the stigma attached to mental illness, to set an example by talking about the issue openly and candidly and ensure everyone can access the support and information they need. The strategy today shows how we will put people at the heart of everything we do, from a new focus on early intervention to increased funding for psychological therapy, so that everyone has a fair opportunity to get their lives back on track.”Care Services Minister, Paul Burstow said:“For too long mental health has been the poor relation in the NHS. Yet we know that good mental health and resilience are fundamental to our physical health our relationships, our education, our work and to achieving our potential.What this strategy does is ensure that modern, evidence-based therapies are available for all who need them. Working with others, the Government is determined to promote good mental health and wellbeing and challenge the stigma and discrimination that still affects so many people with mental health problems today. With one in four are likely to suffer from a mental health problem at some point in our lives, it’s not a question of them and us. Good mental health is everyone’s business.”Secretary of State for Health Andrew Lansley said: “Until now mental health has been in the shadow of physical health. This cross-governance strategy will finally place good mental health at the heart of everything we do.The six key aims of this strategy make clear our commitment to improving public health and wellbeing through improving mental health. For the first time, people of all ages with mental health problems will be able to receive personalised care to reflect their own needs across the country. The NHS will also no longer focus its attention on treatment alone – but will move toward early intervention and prevention to deliver outcomes for patients which are amongst the best in the world”.In addition to improving the mental health services; for the first time, the government had acknowledged the discrimination experienced by those with mental disorder and as a result, legislative framework such as Mental Health (Discrimination) (No.2) Bill is now before the House of Lord for its second reading. Any attempt to address the above issues is a positive step toward the right direction. However, the coalition effort is inadequate and unlikely to make a real impact to those with mental disorder. It is a superficial effort for political gain instead of addressing the true discrimination – one that has been sanctioned by the State – Mental Health Act (MHA). Being the primary legislation, majority of those with a mental disorder would at time or another fall within the ambit of the Act and therefore, I argue that the starting point to eliminate discrimination should start from reviewing this legislation, in particular the compulsory involuntary treatment provisions within the Act. The Act discriminates against people with mental disorder. The Act assumes that people with such disorders are not fully autonomous and that they are dangerous to others. Therefore, the Act reinforces damaging stereotypes of people with a mental disorder.There is no experience for the patient that is more humiliating than been forcibly restrained and medicated against his or her wishes. A competent patient with psychical illness may refuse treatment regardless of whether refusal may lead to death. However, for patients with a mental disorder, the Act allows involuntary treatment if the person is suffering from a ‘mental disorder of a nature or degree that makes it appropriate to receive medical treatment’; and, ‘treatment is necessary in the interests of the health or safety of the patient or for the protection of other persons’ (s.3 MHA).It follows from above criterion that the patient’s reasons for rejecting the treatment are not relevant for the purpose of the treatment under MHA. The relevant factors to be considered by perspective clinician/treatment teams are the presence of a treatable mental disorder and the risks the patient presented. In contrast to that competent patient with a physical illness, his/her refusal may be seriously detrimental to their health or safety, but it must be respected regardless. Their personal values are given the priority. Patients with a mental disorder are not given such privilege. I submit that the two set of legal principles are contradictory and discriminatory towards patient with mental disorder. The MHA simply assumes that the mental disorder entails mental incapacity or incompetence. Therefore, in determining the best interest of the patient as required by the Second Opinion Authorised Doctor (SOAD) in order to continue lawful compulsory treatment under the Act, a patient’s view has generally not been given sufficient weight. I have not seen any research studies which conclude that those with a mental disorder, even in the state of the relapse, lack the decision making capacity. The Act fails to respect mentally disordered patient’s autonomy by not affording legal presumption of capacity. It assumes mental disorder to entail incapacity and by imposing these prejudices in legislation which applies uniquely to those with mental disorder, it is not surprising that those suffering from a mental disorder would feel stigmatised and been prejudiced against. With reference to the criterion of ‘health and safety’ this risk may not have much or anything to do with patient’s capacity to make treatment decisions. I am by no mean arguing that protection of others is not important, if a patient lacks capacity and the treatment is in his best interest, the treatment in my view would be entirely justified because such a patient’s risk to others would be taken into account in a ‘best interests’ assessment.However, a competent mentally disordered patient who may present a risk to others unless medicated, his refusal should not be overridden. In recent years, the government had widened the definition of mental disorder and it includes those people with socially undesirable behaviours. An example of this is the ambitious State created diagnosis of Dangerous Severe Personality Disorder which until recently had been used to transfer some of the ‘dangerous prisoners’ from prison be treated under the MHA at psychiatric facilities. These patients can rightly refuse treatment for physical illness provided that they are competent to make such decision. However, the same patient, should he refuses treatment for his mental illness, his would be considered incompetent for the purpose of treatment under the MHA provided that the criterion under treatment provision of the Act is satisfied, and therefore liable to be forcibly treated. These one set of rules for the mentally disordered and another for the rest of medicine is inconsistent with the principles of health care ethics and outright discriminatory. It is with bitter disappointment that that our previous government did not take the opportunity in 2007 to make any significant real reform to the MHA. Let’s hope that the current coalition would take the brave and necessary step to properly overhaul the mental health services and the starting point is to recognize that 25 % of our population is currently been discriminated against, sanctioned by the State. For any more advice on a Mental Health Act section, or any other legal matter, contact Blavo & Co on 0207025 2020. Alternatively, visit

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John Blavo
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02070252020 2023
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