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Treatment while under SCT is covered by new Part 4A

The treatment provisions relating to patients under Community Treatment Orders (Supervised Community Treatment) under s17A are found in new Part 4A (s64A to s64K).

Extract from Explanatory Notes

Section 34: Consent to treatment

123. Section 34 replaces section 56 of the 1983 Act which sets out the patients to whom Part 4 of that Act, which deals with consent to treatment, applies. In addition to detained patients, informal patients under 18 years of age will be subject to new section 58A of the 1983 Act (see section 27 above). A community patient is not subject to the provisions of Part 4 of the 1983 Act (except section 57 which applies to any patient) unless recalled to hospital for treatment.

124. On recall to hospital, a patient may be given treatment which would otherwise require a certificate under section 58 or 58A of the 1983 Act ("section 58-type treatment" and "section 58A-type treatment") on the basis of a certificate given by a SOAD under the new Part 4A of the 1983 Act (see section 35 below) if that certificate specifies the treatment as being appropriate in these circumstances. If the certificate does not specify any such treatment, then (if it is section 58-type or section 58A-type treatment) it cannot be given on recall unless or until its administration is permitted under Part 4 of the 1983 Act.

125. However, if a certificate covering section 58(1)(b) treatment was in place before the CTO was made, and covers the patient's current treatment needs, there is no need for a new section 58 certificate on recall. If the period from the time the patient first received medication is less than three months then a new certificate under section 58 will not be required until that three month period has elapsed.

126. If a patient's CTO is revoked, so that the patient is once again detained in hospital for treatment, treatment can be given on the basis of a Part 4A certificate only until a section 58 or section 58A certificate can be arranged.

127. A section 58 or section 58A certificate is not required in circumstances where:

  • discontinuing the treatment or the plan of treatment at that point would cause serious suffering to the patient as provided for under new section 62A(6);
  • the treatment is immediately necessary: immediately necessary treatment can be given under section 62 (which applies by virtue of the application of Part 4 of the Act);
  • in the case of administration of medicine, the patient is still within the period before which a certificate is required i.e. either one month has not elapsed from the time when the CTO was made or the three month period from when medication was first given to the patient, as provided for in section 58(1)(b) has not elapsed.

128. A Part 4A certificate will not provide authority to give section 58A type treatment to a patient who has capacity or competence to consent but who refuses consent when recalled or when the community treatment order is revoked. Section 35: Authority to treat

129. Section 35 introduces a new Part 4A into the 1983 Act to regulate the treatment of community patients whilst in the community i.e. when they are not recalled to hospital. New section 64B gives the authority to treat in the community adult patients who have the capacity to consent. Community patients aged 16 or over with capacity to consent to treatment can only be treated in the community if they do consent to their treatment.

130. Community patients aged 16 or over who lack the capacity to consent to treatment can be treated in the community provided that the treatment is authorised under new section 64D or, where relevant, a donee of a lasting power of attorney (an "attorney" or deputy appointed under the Mental Capacity Act 2005, or the Court of Protection, consents to treatment on their behalf. Section 64D also sets out that force cannot be used to administer treatment if the patient objects to that treatment. If the patient does not object to treatment, force is permitted and that may be in cases where, for example, the patient is suffering from tremor and physical force is needed as a practical measure to administer the treatment. The factors to be considered by a practitioner in determining whether a patient objects to treatment are outlined in new section 64J. If the treatment conflicts with a valid and applicable advance decision made under the MCA, it cannot be given to the patient.

131. Children aged under 16 can also be made subject to a CTO. As with adults who have capacity, treatment cannot be given to a child in the community who is competent to consent and does not consent to it. New section 64F provides the authority to treat a child who lacks competence in the community. Similar conditions must be met in order to treat a child lacking competence as for an adult who lacks capacity (although the conditions do not hinge on concepts in the MCA since powers under that Act cannot in general be exercised in relation to children under 16).

132. Only in emergencies can force be used to give treatment to patients who lack capacity or to children who lack competence against their objections. New section 64G sets out how and when treatment can be given in these situations. Force can be used to give treatment only if it is immediately necessary, needs to be given to prevent harm to the patient, and is a proportionate response to the likelihood of the patient suffering harm and to the seriousness of the harm. The emergency circumstances in which section 58A type treatment can be given to patients who lack capacity or children who lack competence are more limited than the circumstances in which other treatment can be given in emergencies.

133. All community patients receiving the type of treatment which falls under section 58 or 58A of the 1983 Act must have that treatment certified by a SOAD in accordance with the provisions of Part 4A. For treatment specified in section 58(1)(b), i.e. medication, a certificate is not required immediately, but must be in place after a certain period. This period is one month from when a patient leaves hospital or three months from when the medication was first given to the patient (whether that medication was given in the community or in hospital), whichever is later. The SOAD must certify in writing that it is appropriate for the treatment to be given.

134. The SOAD may specify within the certificate that certain treatment can be given to the patient only if certain conditions are satisfied: so, for example, the SOAD could specify that a particular antipsychotic and dosage can only be given in the community if the patient retains capacity to consent to it. The SOAD can also specify whether and if so what treatments can be given to the patient on recall to hospital and the circumstances in which the treatment can be given. For example, the SOAD can specify, if appropriate, that an antipsychotic can be given to the patient on recall without the patient's consent.

135. Under new section 64B, it is not necessary to meet the certificate requirement before treatment can be given in emergencies to a patient in the community where that patient consents to treatment or, for patients who lack capacity, where an attorney, deputy or the Court of Protection consents to it on the patient's behalf.

136. The following table summarises when patients can be treated in the community and the safeguards that are in place for the review of section 58-type and section 58A type treatment:

Patients 16 and over with capacity to consent AND patients under 16 with competence Patients 16 and over without capacity to consent Patients under 16 without competence to consent
SCT patient in the community

PART 4A regulates treatment

  • Patient must consent to treatment
  • Authority to treat patient under s64B (adults) or s64E (children)
  • For s58 or s58A type treatment there must be a SOAD certificate in place before treatment can be given[1]
  • But certificate requirement need not be complied with where treatment is immediately necessary
  • Can treat if an attorney or deputy or the Court of Protection consents under s64B
  • Can treat a patient under s64D provided patient does not object to treatment or it is not necessary to use force (unless treatment conflicts with decision of an attorney, deputy or Court of Protection or advance decision)
  • Can be treated in emergencies with force but only if it is immediately necessary and the use of force is proportionate under s64G
  • For s58 or s58A type treatment there must be a SOAD certificate in place before treatment can be given[1]
  • But it is not necessary to comply with the certificate requirement where treatment is immediately necessary under s64G
  • Can treat a patient under s64E provided patient does not object to treatment or if it is not necessary to use force
  • Can be treated in emergencies with force but only if it is proportionate under s64F
  • For s58 or s58A type treatment there must be a SOAD certificate in place before treatment can be given[1]
  • But it is not necessary to comply with the certificate requirement where treatment is immediately necessary or under section s64G
SCT patient on recall to hospital or where SCT is revoked Section 58 or 58A[2] type treatment can be given under s62A where:
  • SOAD certificate is in place certifying that it is appropriate to give the treatment[3]

or

  • For medication regulated by s58(1)(b) the patient is still with th eperiod before which a certificate is required[1]

or

  • Discontinuing the treatment or plan of treatment would cause serious suffering to the patient under s62A(5)

or

  • Treatment is immediately necessary under s62

If none of the above is satisfied s58 or s58A requirements must be met

Section 58 or 58A type treatment can be given under s62A where:
  • SOAD certificate is in place certifying that it is appropriate to give the treatment[3]

or

  • For medication regulated by s58(1)(b) the patient is still with the period before which a certificate is required[1]

or

  • Discontinuing the treatment or plan of treatment would cause serious suffering to the patient under s62A(5)

or

  • Treatment is immediately necessary under s62

If none of the above is satisfied s58 or s58A requirements must be met

Section 58 or 58A type treatment can be given under s62A where:
  • SOAD certificate is in place certifying that it is appropriate to give the treatment[3]

or

  • For medication regulated by s58(1)(b) the patient is still with the period before which a certificate is required[1]

or

  • Discontinuing the treatment or plan of treatment would cause serious suffering to the patient under s62A(5)

or

  • Treatment is immediately necessary under s62

If none of the above is satisfied s58 or s58A requirements must be met

  1. 1.0 1.1 1.2 1.3 1.4 1.5 For medication (s58(1)(b)) a SOAD certificate must be in place one month from when a patient leaves hospital or three months form when the medication was first given to the patient.
  2. Unlike section 58 treatment, section 58A treatment cannot be given under section 62A to patients with capacity or competence to consent if they do not consent to that treatment.
  3. 3.0 3.1 3.2 Where an SCT patient's CTO is revoked, treatment can be given if the Part 4A certificate requirement is met, but only pending compliance with s58 or s58A

Related change

Commencement

Date in forceCommencement orderMHA 2007 sectionMHA 1983 sections affected
1/4/08 Mental Health Act 2007 (Commencement No. 4) Order 2008 35 (partially, for the purposes only of making regulations) New s64H
" " 35 (partially) New s64H(9)
3/11/08 Mental Health Act 2007 (Commencement No.7 and Transitional Provisions) Order 2008 34 s56, s61, s62A
" " 35 s64A, s64B, s64C, s64D, s64E, s64F, s64G, s64H, s64I, s64J, s64K, s119, s121. [Also MCA 2005 s28 and MCA 2005 s37

Resources

Mental Health Act 2007 Explanatory Notes - pages 20-28

All pages in this "Changes made by MHA 2007" category...