The Mental Health Act 1983 [hereafter MHA] provides many powers to detain patients for treatment in hospital. Many amendments were made in 2007. The legislation is complex – necessarily so – and aims to protect the welfare of patients who are detained and who are within its reach in the community. It is an intricate balance of the power and restraint by Parliament.
Table of Contents
- Section 62(1): Providing Exceptions
- This is fictitious and hypothetical for illustrative purposes only.
- Clinical Presentation:
- Procedure and irregularities
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The powers and restraint on use of power are delegated to organisations and to individuals with certain specific qualifications.
Sections 57 and 58 of the MHA1983 create rigorous safeguards for specific treatments to ensure that these treatments are administered in a manner that respects the rights and welfare of patients, particularly those who are detained under the Act.
This is a complex and convoluted piece of law that requires time and careful study. This article, in aiming to cut through a thicket of legalese, may contain some inaccuracies. Detailed study of many surrounding sections of the MHA 1983 and study of the Mental Health Act Code of Practice will be required for the fullest understanding.
The full stringency of S57 is here, and S58 is here. They are not easy reading.
Section 58 is very large with many amendments and insertions from other laws. S58(A) for example is very large and covers how ECT (electroconvulsive therapy) is regulated. This article will not extend into 58(A). S62(2) will be explored. But first I focus on S62(1).
Section 57 applies to particularly serious or invasive treatments, such as neurosurgery for mental disorder, which require both the patient’s informed consent and a second opinion from an independent doctor [SOAD] before they can proceed. This section ensures that such serious treatments are only carried out when absolutely necessary and with full patient awareness and agreement.
Neurosurgery is very rare for mental disorder(s). I can safely not dwell on this piece of law. No such case came to my attention in 33 years of practice.
Section 58 of the Mental Health Act 1983 deals with the administration of treatment for mental disorder to detained patients, particularly focusing on medication given beyond a three-month period.
- Consent Requirement: Treatment cannot be given unless the patient has consented to it, and the clinician legally in charge has certified that the patient has consented to the treatment and has the capacity to understand its nature, purpose, and likely effects.
- Second Opinion Needed: If the patient does not consent, treatment may still be given if a Second Opinion Appointed Doctor (SOAD) from the CQC has certified that the treatment is appropriate.
- Role of SOAD: The SOAD provides a safeguard by independently verifying that the treatment proposed is reasonable for the patient’s condition. This includes confirming that non-consensual treatment is clinically justifiable.
[But SOAD and CQC as terms are not mentioned as such in the Act. Instead S58(3)b reads, “ a registered medical practitioner appointed as aforesaid (not being the [F4] responsible clinician or the approved clinician in charge of the treatment in question]) has certified in writing that the patient is not capable of understanding the nature, purpose and likely effects of that treatment or [F5] being so capable] has not consented to it but that [F6] it is appropriate for the treatment to be given.” The law is written in strange ways and is often explained by other means, such as the Code of Practice to the MHA 1983, which is not itself ‘the law’.]
The narrow windows of exception intrudes in at S57(2) and S58(1)b from S62 to operate in very limited circumstances. Putting this into lay language, S57 and S58 are saying ‘You can only treat if you meet a raft of our [i.e. Parliament’s] requirements, so do not mess about. We mean business! But we will allow some tiny exceptions under S62 in the way we specify. Get it right.‘
Section 62 offers exceptions to the strict requirements of S58, in urgent situations where adhering to legal protocols (such as obtaining informed consent or a second opinion) would not be feasible without causing serious risk to the patient or others. Essentially, Section 62 allows for immediate treatment under specific circumstances that justify bypassing the usual safeguards.
The specific exceptions are spelt out in S62(1):
62 Urgent treatment.
(1) Sections 57 and 58 above shall not apply to any treatment—
(a)which is immediately necessary to save the patient’s life;
(b)which (not being irreversible) is immediately necessary to prevent a serious deterioration of his condition; or
(c)which (not being irreversible or hazardous) is immediately necessary to alleviate serious suffering by the patient; or
(d)which (not being irreversible or hazardous) is immediately necessary and represents the minimum interference necessary to prevent the patient from behaving violently or being a danger to himself or to others.
Leaping off the page should be the words ‘immediately necessary‘. The context of the two words can only be truly appreciated by understanding how serious S57 and S58 are. In other words, S57 and S58 are the big protections, and S62 slices in to allow for immediate action, when necessary, in specific circumstances. Immediately necessary means within a very short amount of time.
To bring this home, think about if someone has collapsed and was unconscious. The attention they need is like ASAP – and you do what’s necessary to save life. So too in mental health patients who are detained, the Act sees 4 main situations where immediate and necessary action needs to happen fast.
The MHA Code of Practice states at 25.40, “These are strict tests. It is not enough for there to be an urgent need for treatment or that the clinicians involved believe the treatment is necessary or beneficial.”
Section 62(1): Providing Exceptions
Patient Background:
This is fictitious and hypothetical for illustrative purposes only.
- Patient: A 40-year-old male inpatient 4 months into detention under Section 3 diagnosed with schizophrenia.
- Medication: Recently started on a typical antipsychotic medication, which was approved by a SOAD because the patient was incapable of consenting (i.e.lacking capacity for treatment with two oral antipsychotic mediction). The T3 certificate approved 2 antipsychotics for the purpose of a cross-tapering as first was not effective.
- Current Situation: The patient tolerated the first antipsychotic with only mild extrapyramidal side-effects – and therefore did not require antimuscarinics. The second antipsychotic was started in a cross tappering regime. The patient experiences severe extrapyramidal side-effects on day 3 of treatment; notably acute dystonia and rigidity of other muscles, which includes painful and prolonged muscle contractions. This was an unexpected reaction to a small dose of the second antipsychotic. Some patients can be very sensitive to some medicaitons and there is no way to predict these reactions.
Clinical Presentation:
- Observational Findings: The patient exhibits abnormal postures, such as twisted neck, awkwardly bent arm and is struggling to move. He appears to be confused and in distress, frequently grimacing or showing signs of discomfort.
- Physical Examination Findings: Upon examination, the patient has sustained muscle contractions of the neck that are painful and involuntary. Severe cogwheel rigidity of upper and lower limb muscles are elicited. The patient could barely walk. The symptoms are acute and require immediate attention to alleviate suffering. Importantly the suffering is serious. The examination reveals no other explanation. Blood tests 2 days ago showed no abnormality. Nothing suggestive of neuroleptic malignant syndrome. No other health risks are found.
Application of Section 62(1)(c):
Justification for Immediate Treatment under Section 62(1)(c):
- Non-irreversible and non-hazardous: The treatment with anticholinergics is neither irreversible nor inherently hazardous but is crucial for rapid relief of serious side-effects.
- Necessity to alleviate serious suffering: The patient’s severe discomfort and the risk of complications from unmanaged side-effects justify the urgent administration of anticholinergics. Waiting for a SOAD’s visit and certification under usual circumstances would prolong the patient’s suffering and could lead to additional health risks. The treatment is of immediate necessity.
Intervention included:
- The second antipsychotic being stopped but that would take probably days to wash out.
- Administration of anticholinergic drugs such as procyclidine which is normally expected to be rapidly effective in alleviating symptoms of acute dystonia and other extrapyramidal side-effects. Procyclidine can be administered orally or intravenously depending on the severity of the symptoms.
Summary of Immediate Action:
The decision was made to promptly alleviate the patient’s severe suffering, aligning with the provisions of Section 62(1)(c). Documentation of the symptoms, the decision-making process, and the administered treatment is meticulously recorded to ensure transparency and compliance with the Mental Health Act’s requirements. The Responsible Clinican issued a S62(1) certificate. This is not a statutory form. It is usually created by health care organisations quoting S62(1) and with parts to include other details.
This example illustrates how Section 62(1)(c) provides a legal framework for clinicians to act swiftly in situations where delay in treatment could result in significant distress or health deterioration, ensuring that the patient’s immediate health needs are met effectively and ethically within the constraints of the law.
Subsequent action
The clinician above, in charge of the treatment, sends a request to the CQC for a SOAD.
Practical implications of Section 62 exceptions
- Emergency Response: Section 62 enables medical professionals to respond swiftly in situations where delaying treatment to fulfill the requirements of Sections 57 and 58 would likely result in serious harm or other serious adverse consequences. But S62 is about immediacy of response, which really means ‘more than urgent’.
- Balancing Act: The provision of Section 62 essentially balances the need for immediate and potentially lifesaving interventions with the overarching principles of the Mental Health Act that prioritise patient consent and oversight. It acknowledges that while safeguards are crucial, the primary concern must sometimes swiftly shift to the immediate health needs of the patient in a crisis.
- Duration: S62(1) is not for ‘as long as necessary‘. The law does not say that, and we are not allowed to introduce meanings that Parliament did not intend. If ‘as long as necessary’ was the meaning, then there would be little need for S57 and S58. Delays in providing a SOAD are administrative matters for the CQC. The CQC cannot lawfully effect a rewriting of the law laid down by Parliament.
Procedure and irregularities
On implementing S62(1) the clinician in charge of treatment sends a request to the CQC for a SOAD. From direct experience over the last 5 years, the SOAD takes about 6 weeks to engage. Based purely on tradition, psychiatrists around the country have filled out S62(1) forms to cover the long waiting period, seemingly oblivious to the Statutory contexts of S62(1).
Common sense – if not logic – would dictate that it cannot be ‘immediately necessary‘ for say 6 weeks, in the context of the exception to S58. Recall that The MHA Code of Practice created by the CQC – at 25.40 states, “These are strict tests. It is not enough for there to be an urgent need for treatment or that the clinicians involved believe the treatment is necessary or beneficial.”
Evaluating the use of Section 62(2) under current National circumstances
Sections 60 and 61(3) above shall not preclude the continuation of any treatment or of treatment under any plan pending compliance with section 57 [F2, 58 or 58A] above if the [F3] approved clinician in charge of the treatment] considers that the discontinuance of the treatment or of treatment under the plan would cause serious suffering to the patient.
Text of S62(2)
Key Considerations for Using Section 62(2)
- Criteria for Application: While Section 62(2) does not use the term “immediately necessary,” it is still essential to apply it judiciously. The provision is designed to prevent serious suffering by allowing the continuation of treatment pending the arrangement of a SOAD or other compliance measures. It is meant to bridge temporary gaps rather than serve as a long-term solution to systemic delays.
- Avoiding Misuse: To avoid potential misuse or overreliance on this section, it is crucial to establish clear criteria for what constitutes “serious suffering.” This could include clinical indicators of potential rapid deterioration or significant distress that might result from treatment interruption.
- Documentation: Thorough documentation of each use of Section 62(2) is critical. Records should detail the clinical rationale for the decision, including an assessment of the likely consequences of discontinuing medication and a plan for obtaining the necessary approvals or reviews as soon as feasible.
- Review and Oversight: Implementing regular reviews of decisions made under Section 62(2) can help ensure that they are used appropriately and in line with the intent of the law. These reviews could be conducted internally or by an independent body to maintain objectivity and transparency.
Legal and Clinical Justification: Given the national shortage of SOADs and the ensuing delays, using Section 62(2) can be justified legally and clinically if discontinuing medication would lead to serious suffering. It’s important to ensure that every use of Section 62(2) is well-documented and supported by a clear clinical rationale, detailing why the continued treatment is necessary to prevent serious suffering and the efforts made to comply with the law as soon as feasible.
Interim Measures: While using Section 62(2) addresses immediate needs, it is also beneficial to document these decisions as part of a broader effort to highlight systemic issues. This documentation can be valuable for advocacy efforts aimed at systemic change, even if direct influence over CQC or funding for legal action is limited.
Section 62(2) of the Mental Health Act 1983 offers a potentially helpful legal pathway for continuing treatment when a discontinuation would likely cause serious suffering to the patient, and it notably lacks the “immediately necessary” criteria found in other parts of Section 62. This makes it a more flexible tool for managing ongoing treatment under certain conditions.
CQC Guidance
In the Mental Health Act Code of Practice the following paragraphs are highly important and create “strict rules” on use of S62(1)
- 25.40 states, “These are strict tests. It is not enough for there to be an urgent need for treatment or that the clinicians involved believe the treatment is necessary or beneficial.”
- 25.41 states, “Urgent treatment under these sections can continue only for as long as it remains immediately necessary. If it is no longer immediately necessary, the normal requirements for certificates apply. Although certificates are not required where treatment is immediately necessary, the other requirements of parts 4 and 4A of the Act still apply. The treatment is not necessarily allowed just because no certificate is required.“
Takeaway points
- The will of Parliament is supreme above all policies and local laws in the UK, save where overruled by a higher court of Constitutional authority that the UK by treaty gives power to.
- S62 including both subsections is highly specific in the words used to create exceptions to S57 and S58.
- The CQC provide strict guidance on the use of S62(1) at 25.40 and 25.41 in its Mental Health Act Code of Practice.
- Pragmatics and ethics have no power whatsoever to overrule the will of Parliament, even when Parliament creates a law that is absurd.
