Preparation for hearings

Access to hearings

Access to the Tribunal by patients is limited to once in a period of detention.

Access to the Hospital Managers is unrestricted. In practice few patients ‘appeal’ to the Managers.

Referrals have to be made to both bodies at varying interval according to the relevant section.

Legal Aid is automatically provided for Tribunals but is more restricted for Managers’ Panels. Where patients are not eligible for legal aid they should be offered the service of an advocate.

Upon renewal of ether section 3, 37, 47 and a CTO an automatic Associate Hospital Managers Hearing will be scheduled for the panel to review evidence to uphold the section.

Applying The Law

The flow chart below suggests how to approach making treatment decisions in practice.

Treatment on a CTO

Inpatient treatment

In circumstances where medication needs to be given in an emergency but no authority to treat is apparent, Section 62 powers can be used to prevent and deuteriation in mental health and/or loss of life.

Covert medication

The key points are as follows:

When consent is not needed?

There are a few exceptions when treatment may be able to go ahead without the person’s consent, even if they’re capable of giving their permission.

It may not be necessary to obtain consent if a person:

• Needs emergency treatment to save their life, but they’re incapacitated (for example, they’re unconscious) – the reasons why treatment was necessary should be fully explained once they have recovered
• Immediately needs an additional emergency procedure during an operation – there has to be a clear medical reason why it would be unsafe to wait to obtain consent
• With a severe mental health condition, such as schizophrenia, bipolar disorder or dementia, lacks the capacity to consent to the treatment of their mental health (under the Mental Health Act 1983) – in these cases, treatment for unrelated physical conditions still requires consent, which the patient may be able to provide, despite their mental illness
• Needs hospital treatment for a severe mental health condition, but self-harmed or attempted suicide while competent and is refusing treatment (under the Mental Health Act 1983) – the person’s nearest relative or an approved social worker must make an application for the person to be forcibly kept in hospital, and 2 doctors must assess the person’s condition
• Is a risk to public health as a result of rabies, cholera or tuberculosis (TB)
• Is severely ill and living in unhygienic conditions (under the National Assistance Act 1948) – a person who’s severely ill or infirm and living in unsanitary conditions can be taken to a place of care without their consent

You may wish to reflect on the following key points

• Does the patient have mental capacity to consent or refuse?
• Is the patient detained under the Mental Health Act? If yes then consent to treatment provisions applies. If not then the Mental Capacity Act will apply
• Why is it proposed to administer medication covertly and what medication is being considered for covert administration?
• Why is the patient refusing medication?
• Would the medication be necessary to save the patient’s life or to prevent deterioration in their health?
• Would the administration of the medication be in their best interests? Is there likelihood that the patient will recover capacity in the future and be able to make their own treatment decisions in the future? If so, would it be possible to delay the administration of the relevant medication?
• Has the patient made an advance decision, when competent to do so, that addresses the refusal of the relevant medication?

Consent to Treatment
Author: Nick Dorling, Trust Mental Health Law Training Officer

This video will demonstrate an overview of consent to treatment

It is important to note that

• All decisions must be lawful and informed by good professional practice
• Lawfulness necessarily includes compliance with the Human Rights Act 1998 (HRA) and Equality Act 2010.
• All five sets of principles are of equal importance, and should inform any decision made under the Act.
• The weight given to each principle in reaching a particular decision will need to be balanced in different ways according to the circumstances and nature of each particular decision.
• Any decision to depart from the directions of the policy and the Code of Practice must be justified and documented accordingly in the patient’s case notes.
• Staff should be aware that there is a statutory duty for these reasons to be cogent and appropriate in individual circumstances.