The Mental Health Act 1983, part 4, sets out provisions and safeguards for the compulsory treatment of patients detained under the Act. At the centre of these provisions is section 63, which gives approved clinicians the authority to direct that treatment for mental disorders can be given without consent. The section states:
‘The consent of a patient shall not be required for any medical treatment given to him for the mental disorder from which he is suffering, [not being a form of treatment to which safeguards apply], if the treatment is given by or under the direction of the approved clinician in charge of the treatment.’
Mental Health Act 1983, section 63
The aim of the section was to allow for the non-contentious treatments for mental disorder to be given without consent, with safeguards in place to protect patients requiring more controversial interventions such as electroconvulsive therapy (ECT), psychosurgery and the prolonged use of mental health medication (Mental Health Act 1983, sections 57, 58 and 58A).
Section 63 of the Mental Health Act 1983 makes clear that treatment without consent must be for the person's mental disorder. This suggests that the 1983 Act cannot be used for treating a physical disorder. In the case of St George's Healthcare NHS Trust v S [1998] the Court of Appeal found that the detention of a woman who was 36 weeks pregnant and diagnosed with pre-eclampsia, to facilitate a Caesarean section, was unlawful.
The Court of Appeal held that, irrespective of the risks to her own life, an adult of sound mind had the right to refuse medical treatment. The Mental Health Act 1983 could not be used to bring about the detention of someone against her will simply because her thinking might seem unusual, irrational or contrary to public opinion, and a person detained under the 1983 Act retained the right to withhold consent to medical procedures unrelated to her mental condition.
Although the Court of Appeal found that recourse to detention under the 1983 Act was unlawful, it did hold that the right to refuse medical procedures was conditional on this being unrelated to the mental condition.
Treatment under the Mental Health Act 1983
The judgment in St George's Healthcare NHS Trust v S [1998] was based on the scope of medical treatment under the Mental health Act 1983 that includes nursing, psychological intervention and specialist mental health habilitation, rehabilitation and care …
‘… the purpose of which is to alleviate, or prevent a worsening of, the disorder or one or more of its symptoms or manifestations.’
Mental Health Act 1983, sections 145 (1) and (4)
The inclusion of the alleviation of both the symptoms and the manifestations (or signs) of a mental disorder allows the courts to look more holistically at the treatment that approved clinicians can direct to be given without consent, including that for physical symptoms, under the Mental Health Act 1983, section 63.
Treatment as a whole approach
In B v Croydon Health Authority [1995] B, who suffered from a psychopathic disorder, was detained under the Mental Health Act 1983. One of her symptoms was a compulsion to self-harm, which manifested as a refusal to eat. When her weight had fallen to a dangerous level, her approved clinician directed that she be fed by nasogastric tube. B argued that the health authority should not tube-feed her without her consent.
The court found that a mental disorder did at times manifest as physical injuries or ailments. Treatment under the Mental Health Act 1983, section 63, includes acts that prevent the patient from self-harming, so in the case of B tube-feeding constituted treatment for the purpose of the Mental Health Act 1983 and could be carried out lawfully without B's consent. More recently, in JK v A local health board [2019] the court declared that a responsible clinician had acted lawfully in directing the force-feeding of a man whose refusal to eat was found to be a manifestation of his mental disorder. In the case of JK the court also held that, while it was for approved clinicians to decide how to treat the person's mental disorder, they did have to show that the treatment was medically necessary – that is, the treatment was a therapeutic necessity and in the person's best interests (Herczegfalvy v Austria [1993]).
There are other situations where a mental disorder may manifest as a physical symptom or result in physical harm. This includes the aftermath of a suicide attempt where interventions for physical injuries would be considered treatment for a mental disorder and so could be given without consent under the direction of an approved clinician in accordance with the Mental health Act 1983.
While those judgments seem to be in line with the aim, under section 63, of making clear when it is lawful to direct that treatment can be given without consent, the courts have allowed increasingly more controversial treatment, including a Caesarean section, to be performed, without consent, under the provisions of the Mental health Act 1983, section 63.
In Tameside & Glossop Acute Services NHS Trust v CH [1996] a patient detained under the Mental Health Act 1983 with paranoid schizophrenia was at times incapable of making a balanced and rational decision about her treatment, including her maternity care. Tests indicated that unless labour was induced the fetus was likely to die in utero. The patient was wavering in her consent to the medical procedures.
The court held that it was in the best interests of the patient for her to give birth to a live child and achievement of a successful pregnancy was a necessary part of the treatment for her psychiatric condition. The proposed treatment was, therefore, within the broad interpretation of section 63 of the Act and so the patient's consent was not required. If clinically necessary, restraint to the extent reasonably required to achieve the birth of a healthy baby could also be used.
The interpretation of the treatment as a whole approach in mental health care to include a Caesarean section was severely criticised by clinicians and lawyers, particularly as the court found the woman to lack capacity to give consent, so allowing the court to authorise treatment by way of declaration, rather than resorting to the Mental health Act 1983 (Re MB (Caesarean Section) [1997]).
More recently the courts have again extended the scope of section 63 by declaring that giving a man dialysis without his consent was to be construed as treatment for his mental disorder, even though the renal failure could be linked to his diabetes.
In A Healthcare & B NHS Trust v CC (by his litigation friend, the Official Solicitor) [2020] two NHS trusts argued that dialysis could be provided without consent to a patient detained under the Mental Health Act 1983.
The patient suffered from psychotic depression and personality disorder. He also suffered from type 1 diabetes and renal failure, requiring dialysis three times a week. His non-compliance with dialysis included disconnecting himself from the machine and turning off the machine while it was running.
The court held that the reason the diabetes had resulted in kidney failure was because of self-neglect, which was a consequence of his mental disorder. If he was not mentally ill, he would care for himself in a way that would not have led to the need for dialysis. When he was mentally well, he agreed to the treatment. Dialysis could therefore be provided as treatment within the scope of the Mental Health Act 1983, section 63, and the patient's consent was not required.
This judgment appears to extend the scope of section 63 to any physical illness that is adversely affected by a person's mental disorder. There is not a direct link between the mental disorder and diabetes in this case. The renal failure was caused by the diabetes. Poor management due to the man's mental disorder was enough of a link for the court to rule that dialysis now fell within the scope of treatment without consent under the Mental Health Act 1983.
Conclusion
The courts have found that the treatment without consent provisions of the Mental health Act 1983 cannot be used to force a person to have treatment for a physical disorder that is unrelated to a mental disorder.
It is increasingly the case that, where an approved clinician can show a link between the person's mental disorder and a physical illness, however remote, the courts are prepared to allow the clinician to provide treatment for that physical illness without consent by adopting the treatment as a whole approach under the authority provided by the Mental Health Act 1983, section 63.
KEY POINTS
- Treatment without consent provisions of the Mental Health Act 1983 cannot be used to force a person to have treatment for a physical disorder unrelated to a mental disorder
- The aim of section 63 of the 1983 Act was to allow for non-contentious treatments for mental disorder to be given without consent
- Mental disorders do at times manifest as physical injuries or ailments and a treatment as a whole approach to mental disorder is adopted by the courts
- The courts have extended the scope of section 63 to include controversial treatments and physical treatments that are only remotely linked to the person's mental disorder