Capacity-based mental health legislation and its impact on clinical practice: 2) treatment in hospital

Abstract

In this paper, the second of two, we consider the capacity of those assessed with respect to their ability to consent to admission to also consent to their treatment with medication. The results of our assessment of capacity to consent to admission are described in our first paper along with the policy background to the study. In comparison to admission decisions, for treatment decisions there is an extensive body of literature and case law that provides guidance on the key principles. In English law (i.e. the law in England and Wales) the wishes of a competent adult offered treatment for a physical disorder must be respected. However, with treatment for a mental disorder the decision of a competent person to withhold consent can still be lawfully overridden using mental health legislation if the health or safety of the person concerned is at risk, or if it is necessary for the protection of others. At present for those detained under the Mental Health Act 1983 capacity has only to be considered in two situations. First, when psychosurgery or the surgical implantation of hormones to reduce male sexual drive is proposed (section 57 of the MHA), and secondly, when treatment for a physical disorder is required. However, treatment for a mental disorder has been increasingly widely defined, for example, to include forced feeding.