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									                            CONSENT TO TREATMENT
·      Sections 56-64 of the Act

·      The Memorandum

·      The Code of Practice

·      Mental Health Act Manual, Richard Jones

The following rules covering treatment for detained patients DO NOT refer to:

Leave of Absence

A patient who is on authorised leave of absence is still “liable to be detained” and
therefore remains subject to the consent to treatment provisions.

General Rules

As a general rule, excluding Electro-convulsive Therapy (ECT) and special treatment,
patients on long-term detention orders (including Section 2) can be treated for mental
disorder for three months with or without their consent. This means treatment for
mental disorder only.

After three months a Form 38 must be completed by the RMO if the patient consents
to the treatment to be administered. If the patient does not consent or is unable to give
consent to treatment, the Mental Health Act Commission (MHAC) must be contacted
for a second opinion. If treatment is to continue, a Form 39 must be completed by the
Commission doctor.

Completion of Forms 38 & 39

       Only a RMO (or Part IV doctor) can complete Form 38. Only a MHAC doctor
       can complete Form39.
       The Mental Health Act Commission prefer the class of drug and its BNF code
       to be stated (anti-psychotic drugs 4.2.1, anti-psychotic depot injections 4.2.2,
       anti-manic drugs 4.2.3) as opposed to specific drug names.
       The number of drugs, the route and the dosage range (within BNF range)
       should be given.

MHAC Doctor / Second Opinion Approved Doctor

The MHAC doctor is required to speak to the following people who are involved with
the patient’s care in the hospital:

1.      A qualified nurse
2.      A doctor (preferably the patient’s RMO)
3.      Another professional who has been concerned with the patient’s treatment
(e.g. O/T, psychologist, social worker etc)
The MHAC doctor will require:

1.     The case notes

2.     A copy of Section papers

3.     The Treatment Plan

4.     A blank Form 39

Time Limits

If a period of three weeks or more occurs between a Form 39 being completed and the
treatment being administered, it is good practice to request a new second opinion.

NB     When calculating the three-month treatment period for patients detained under
Section 2 followed by Section 3, the 28 days under Section 2 count as part of the
three-month period.

Change of Treatment

If the RMO wishes to change the treatment prescribed, the patient’s consent must be
If the patient consents, the RMO must complete Form 38. Where the patient is
incapable of giving consent, or refuses to consent, the MHAC must be contacted.

Nurses and the Administration of Medication

The following is based on the Mental Health Act Commission, Practice Note 2
“Nurses, the administration of medicine for mental disorder and the Mental Health
Nurses administering medication to detained patients who are subject to the
provisions of Section 58 of the Act must ensure they are legally entitled to administer
that medication by ensuring all necessary legal requirements have been met, that is
Form 38 or 39 is completed. A copy should be kept with the medicine card and
reference should be made to it at the time of administering any medication for mental

The nurse should:

1.     Check the medicine card for date of entry of prescription and dosage.

2.       Ensure that if within the three-month period the time has not been exceeded. If
it is beyond the three-month period then a valid Form 38 or 39 must be present.
Blood Samples

Under the Act “treatment for mental disorder” does not explicitly include the taking
of blood samples. This can cause many problems, especially with the use of
Clozapine. In this case a patient detained under Section 3 who is not consenting could
be given Clozapine (a treatment for mental disorder) against their will but not the
blood tests which are required for this treatment. The Mental Health Act Commission
in June 1993 issued a Practice Note (number 1) on this problem. It states:

Any authoritative interpretation of the law can be given only by the Courts. In the
absence of any judicial decision, the Commission’s view of any interpretation can at
best only be informed opinion and must not be treated as, or substituted for
professional legal advice.
Having considered the legal, pharmacological and medical advice received, the
Commission concludes that the administration of medical treatment under Part IV of
the Mental Health Act includes such measures as are necessary and appropriate to
ensure that the medicine is administered efficaciously and safely in accordance with
good medical practice.

In the case of ECT this will generally include taking blood samples by venepuncture
to evaluate the patient’s physical state prior to treatment, including the estimation of
pseudo-cholinesterase. In lithium prophylaxis this will include venepuncture to secure
samples for the estimation of serum lithium concentrations and an evaluation of the
patient’s thyroid status following the recommendations and guidance in the British
National Formulary. With regard to Clozapine treatment, this will include strict
haematological monitoring by the Clozaril Patient Monitoring Service as required by
the product licence.

Not withstanding the authority to administer medical treatment in the absence of the
patient’s consent provided by Part IV of the Mental Health Act 1983, it is a matter for
the individual judgement of the responsible medical officer in conjunction with the
clinical team to determine whether this authority should be exercised in an individual
This is an interim opinion and subject to further guidance should the issue of
undertaking venepuncture as an element in the administration of treatment to a non-
consenting patient under Part IV of the Mental Health Act become the subject of
judicial review.

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