Additional safeguards for ECT introduced in new s58A
Electroconvulsive therapy (ECT) is no longer covered by s58 but by the new s58A. This change takes place on 3/11/08 when the relevant provisions of the MHA 2007 come into force.
If the patient is "capable of understanding the nature, purpose and likely effects of the treatment" then ECT cannot be given without his consent. (Where a child consents, the treatment must be certified as "appropriate"). If the patient lacks capacity then ECT must be certified as "appropriate" and must not conflict with an advance decision (which the registered medical practitioner concerned is satisfied is valid and applicable) or with a decision made by a donee or deputy or by the Court of Protection. See s58A(2)-(5) for details.
The previous position, under s58, was that a patient with capacity could be given ECT with consent, and a patient lacking capacity could be given ECT if it was certified that "having regard to the likelihood of its alleviating or preventing a deterioration of his condition, the treatment should be given".
In emergency situations it can still be given under s62 but now only in two of the four situations mentioned in that section, namely for treatment:
- (a) which is immediately necessary to save the patient’s life; or
- (b) which (not being irreversible) is immediately necessary to prevent a serious deterioration of his condition.
Extract from Explanatory Notes
Section 27: Electro-convulsive therapy, etc
91. Section 27 inserts a new section 58A into the 1983 Act. That new section provides that ECT and any other treatment provided for by regulations made under subsection (1)(b), can only be given when the patient either gives consent, or is incapable of giving consent. This provision is subject to the provisions about emergency treatment in section 62 of the 1983 Act (as amended by section 28 of the 2007 Act). This is to ensure that a patient, including one who is not consenting, can still receive treatment in the urgent circumstances set out in section 62 if there is insufficient time to apply the requirements at section 58A.
92. Where a detained patient 18 years of age or older consents to treatment with ECT (or any other treatment provided for by regulations), that consent must be certified by either the AC in charge of the patient's treatment or a SOAD. Where a child patient under 18 years of age who is either a detained patient or an informal patient who is not subject to a CTO consents to such treatment, a SOAD must certify that consent and that it is appropriate for the treatment to be given.
93. Where a detained patient is incapable of consent, the SOAD must certify that the patient is not capable of understanding the nature, purpose and likely effects of the treatment and that it is appropriate for the patient to receive the treatment. Before doing so, the SOAD must first consult two other persons - one must be a nurse concerned with the patient's medical treatment and the second must be another person professionally concerned with the patient's medical treatment who is neither a nurse nor a doctor. The patient's RC (if they have one) and the person in charge of their treatment (if they are not the RC) are excluded from being a person the SOAD has a statutory duty to consult.
94. Where an informal child patient (who is not subject to a CTO) is incapable of consent and there is authority to treat such a patient, the SOAD must similarly certify that the patient is not capable of understanding the nature, purpose and likely effects of the treatment and that it is appropriate for the patient to receive the treatment. Before doing so, the SOAD must first consult two other persons - one must be a nurse concerned with the patient's medical treatment and the second must be another person professionally concerned with the patient's medical treatment who is neither a nurse nor a doctor. The person in charge of the patient's treatment is excluded from being a person the SOAD has a statutory duty to consult.
95. The SOAD is not able to give such a certificate if giving the treatment would conflict with:
- a valid and applicable advance decision of the patient not to receive the treatment as provided for by the Mental Capacity Act 2005, or
- a decision made by a deputy or donee as defined by the Mental Capacity Act 2005, where the deputy or donee has the authority to refuse such treatment on behalf of the patient, or
- an order of the Court of Protection.
96. Before making regulations regarding section 58A, the Secretary of State for England and the Welsh Ministers for Wales shall consult any such bodies as appear to them to be concerned.
Section 28: Section 27: supplemental
97. Section 28 of the 2007 Act amends section 62 of the 1983 Act (urgent treatment) so that, where the treatment is ECT, urgent treatment can only be given where it is immediately necessary to save life or to prevent a serious deterioration in the patient's condition. Where the treatment is another form of section 58A type treatment (to be determined by regulations under section 58A), the Secretary of State for England and the Welsh Ministers for Wales, may make regulations regarding which of the criteria in section 62(1) of the 1983 Act for urgent treatment are to apply to that treatment. Section 28 of the 2007 Act also makes consequential amendments to sections 58, 59, 60, 61, 62 and 63 of the 1983 Act, and to section 28 of the MCA, to take account of the new section 58A.
Commencement
| Date in force | Commencement order | MHA 2007 section | MHA 1983 sections affected |
|---|---|---|---|
| 3/11/08 | Mental Health Act 2007 (Commencement No.7 and Transitional Provisions) Order 2008 | 27 | New s58A |
| " | " | 28 | s58, s59, s60, s61, s62, s63, s64. [And MCA 2005 s28] |
Resources
Mental Health Act 2007 Explanatory Notes - pages 18-19
INFORMATION
- Representation
- Civil sections and CTOs
- Criminal sections
- Aftercare
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- Mandatory and discretionary references
- Nearest relative
- Legal Aid
- International law
- 16- or 17-year-old with capacity cannot be detained on basis of parental consent
- Abnormally aggressive or seriously irresponsible conduct is only a consideration for learning disability (not personality disorder)
- Additional safeguards for ECT introduced in new s58A
- Appropriate treatment test replaces treatability test and applies to all patients under long-term detention
- Approved Mental Health Professional replaces Approved Social Worker
- Automatic reference scheme under s68 changed
- Bournewood gap bridged by Deprivation of Liberty Safeguards inserted into MCA 2005
- Civil partners are treated as if married when determining nearest relative
- Conditionally-discharged hospital direction patients can be absolutely discharged by MHRT
- Domestic Violence Crime and Victims Act 2004 applies to unrestricted criminal patients
- Fundamental principles set out in Act and included in Code of Practice
- Higher penalties for offences under Act
- Hospital direction patients can no longer apply to Tribunal during first six months
- Hospital directions under s45A apply to any mental disorder
- Legal status of Code of Practice set out in Act
- Limitation to the exceptions to the duty to instruct IMCA
- Mental disorder no longer split into separate classifications
- Minor drafting error in MCA 2005 corrected
- New cross-border arrangements for leave and transfer
- New definition of medical treatment
- New Independent Mental Health Advocate scheme
- New procedure for renewal of detention
- New regulations on conflicts of interest
- New requirements for age-appropriate accommodation for children
- NHS Foundation Trusts discharge power problem remedied
- Organisation of Mental Health Review Tribunal changed
- Patient can apply to displace nearest relative, who can now be displaced on grounds of unsuitability
- Patients can be transferred between places of safety under s135 and s136
- Procedure for making of instruments by Welsh Ministers set out
- Reference to Local Health Boards inserted into Act
- Responsible Clinician/Approved Clinician replaces Responsible Medical Officer
- Restriction orders can no longer be time-limited
- SOAD certificate becomes invalid when patient loses or gains capacity
- Some exclusions to definition of mental disorder have been removed
- Supervised Community Treatment replaces Supervised Discharge
- Transitional provisions until full implementation of MHA 2007
- Treatment while under SCT is covered by new Part 4A
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