Section 62(1): the hard boundary between law and ethics

In a previous post I unpacked some of the key issues in Section 62(1). Appropriate study of this article will necessitate digestion of Fathoming Section 62 of the MHA 1983 – Investigative Psychiatry (April 2024). Understanding of this article depends on having a foundational understanding of Statute Law, what it means and the power of it. For the avoidance of doubt or arbitrary inference, I do not relish patients suffering or promote the suffering of patients in any related matter. The words ‘suffering’ is important in Section 62 as one of its four provisions [S62(1)c]. Law is not many health workers’ favourite topic, but it is the bread-and-butter business of forensic psychiatry. Most mental health workers are not as specifically trained in forensic psychiatry as forensic psychiatrists would be. This creates a knowledge and expertise gap.

Specificity of Section 62(1)

The particular words in S62(1) intend that S58 should not be bypassed easily or on a whim. See Fathoming Section 62 of the MHA 1983 – Investigative Psychiatry (April 2024).

S62(1)(a) which is immediately necessary to save the patient’s life; – the time frame is clear. It means action now; someone is about to die. Action is needed now to prevent death – not tomorrow.

The law does not say ‘when’ to act or how to know when to ‘prevent’: 62(1)(b)which (not being irreversible) is immediately necessary to prevent a serious deterioration of his condition; – The word prevent has a wide temporal span. Does it mean prevent now, over the next few minutes or hours – or perhaps tomorrow? Could S62(1)b be used to act now to prevent serious deterioration next week? Some will argue ‘yes’ and some will argue ‘no’.

The words ‘alleviate’ and ‘prevent’ do not indicate what time scale should considered. Not uncommonly some may give a depot injection now as immediately necessary to prevent deterioration in a month’s time.

CQC issue

Code of Practice

CQC guidance in its MHACOP (England & Wales) states

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.

25.41 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.

25.42 Hospital managers should monitor the use of these exceptions to the certificate requirements to ensure that they are not used inappropriately or excessively. They are advised to provide a form (or other method) by which the clinician in charge of the treatment in question can record details of:

• the proposed treatment
• why it is immediately necessity to give the treatment, and
• the length of time for which the treatment was given

The Welsh MHACOP (revised 2016) states the same at 26.36 to 25.38.

The CQC is serious about in 25.40. However, the delays in obtaining SOAD reviews caused by the CQC, means that Approved Clinicians have been forced to bend or break the law. As the latter has become a norm over the last 20 years, a majority of staff see no problem with continuing to do what is ‘traditional practice’.

SOAD delays

I am well aware from practice over the last 20-odd years that S62(1) has been widely and repeatedly misused. I have hard evidence that the CQC indirectly creates a situation that compels this to happen, by being unable to provide Second Opinion Approved Doctors quickly enough – the usual waiting time is weeks to months. Recent data obtained by me following a FOIA disclosure, shows what has been happening between 2021 and 2023.

Year	Average Waiting Time	Median Waiting time	Shortest waiting time	Longest waiting time
2021	15	11	1	154
2022	23	14	1	209
2023	23	14	1	204

Due to the waiting time, mental health staff (including psychiatrists) are left in a situation where patients are suffering. S62(1) by its particular wording and the specific exception it makes, is intended to be a short-term exception (as per use of the words “immediately necessary“). CQC guidance via the MHACOP reinforces the point of short-term use for the specific Statutory exception. But due to the CQC’s delays in providing SOADs the CQC is unable to enforce para 25.40 and 25.41 of their own guidance (and the same in their Welsh guidance), as evidence from the data.

If a national body responsible for quality of care is the root cause of a problem, it would be shooting themselves in the foot to champion breaches of their own guidance. What that means is that psychiatric services have been left to act on ethical and moral imperatives that breach the law. Whatever the root causes and how ever bad the situation is, in a democratic society the principle of Parliamentary Supremacy rules. Glutton’s for punishment may read on. Others can stop here to avoid further pain.

Parliamentary Supremacy v Moral Imperatives

The principle of Parliamentary Supremacy – also known as Parliamentary Sovereignty is a cornerstone of the UK’s constitutional framework. It establishes that laws enacted by Parliament are the highest form of law in the land. This principle means that statute law, as defined by Parliament, must be followed by all individuals and institutions, including health professionals. Learn more (click).

In the context of the Mental Health Act 1983, this principle is evident in the precise language used to define conditions for urgent treatment under Section 62(1). Terms such as “immediately necessary” and “serious” delineate clear legal boundaries within which mental health professionals must operate. It is not unusual to be told, “We are doctors – not lawyers“. Unfortunately, Lord Woolfe in 2001 warned the medical profession to prepare to lose any deference afforded by the legal profession. Whilst that did not mean that doctors needed to become lawyers, the message meant basically (my interpretation), ‘know the law and obey – we’re not going to be as forgiving in the future‘.

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Hypothetical scenario

A T2 form was updated on a Friday evening before 5PM, but procyclidine was accidentally omitted when it was rewritten. The patient prescribed PRN procyclidine before the T2 was rewritten. The patient developed EPSE around 10PM on Friday night and sought PRN procyclidine. An exceptionally diligent newly qualified nurse (RMN) discovered that procyclidine was not on the T2. He – the nurse – contacted the duty doctor who was a first on-call trainee doctor. The consultant on-call was then contacted and decided to authorise PRN procyclidine under S62(1). The relevant S62 form was completed on the EPMA. Neither doctor saw nor examined the patient. The patient was therefore not assessed for the severity of EPSE (as per ‘serious suffering’) nor whether the medication was ‘immediately necessary‘. No such documentation was made. The above scenarios will have happened hundreds if not thousands of times across England & Wales over the last 25 years. The automatic filling of forms and poor documentation, has become the norm. PRN administration of a S62 medication, will have been essentially delegated to nurses – which is well outside of the exception made by S62 to S58.

True scenario

There is a true situation where on one occasion the on-call consultant was called by nurse to prescribe PRN procyclidine. The consultant attended, carried out an appropriate physical examination, took a history, and reviewed the medical records. The patient was on a T3 (non-consenting) that did not include procyclidine. The on-call consultant documented clinical findings that there was less than serious suffering and PRN medication was not immediately necessary. No procyclidine was prescribed. Nurses on the ward remonstrated loudly. The consultant calmly explained the law and said that if it was less than serious suffering for such a patient, then Parliament directs that the medication cannot be prescribed. The consultant then experienced a confrontational response in an office (away from the patient), “So you’re saying patients like that should be left to suffer?!” The response was, “That is what Parliament has decided in the circumstances, so yes.” The outcome was that the consultant was disciplined and referred to the GMC, accused of saying, “Let her suffer.” That consultant was me.

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Conflict of wills

Health workers may experience distress where Parliament says ‘for serious suffering’ and the patient is ‘less that seriously suffering’. Parliament is not present to see a patient’s suffering. Health workers have natural ethical duties to alleviate many degrees of suffering; not just to wait on ‘serious suffering‘, before taking action. The General Medical Council states in para 23 of GMP: “[..]..being alert to signs of pain or distress, and taking steps to alleviate pain and distress whether or not a cure may be possible.“

But Parliament if it had a single voice would say ( these words by inference), “You shall not override S58 unless your actions are immediately necessary to prevent serious suffering.” Parliament’s will therefore trumps the GMC. This means there will naturally be a conflict of ‘wills’ i.e. Parliament vs a professional charged with alleviating suffering. A frustrated approved clinician in charge – surrounded by other frustrated staff – might respond, “Good – Let Parliament, manage the case then, and we all watch the patient suffering less than seriously.” Of course, the latter sort of conversation will never happen because it is hypothetical and overstated only to delineate the point on conflict of wills.

Conclusions

The boundary between these legal mandates and moral imperatives is often a challenging landscape for health professionals to navigate. Ethical principles in healthcare dictate that doctors should alleviate suffering and promote patient well-being, creating a moral imperative that sometimes conflicts with strict legal requirements. Of salience is that Section 62(1) specifies that treatment without consent can only occur if it meets the criteria of immediacy , necessity, and seriousness (in order to make and exception to S58). Mental health professionals may feel ethically compelled to intervene even in cases that do not meet these criteria. This ethical drive to relieve all forms of patient suffering – and certainly ‘less than serious suffering’, prevent suicidal behaviour, save lives, and limit violent conduct, can lead to tensions and dilemmas in the struggle to reconcile moral duties with the legal constraints imposed by Parliament.

The supremacy of Parliament means that the legal constraints cannot be overridden by individual or group-ethical beliefs. To learn more (click this). In layperson’s language, “You may know the law to be an ass, but you had better obey!” To doctors the General Medical Council, is there to make you pay if you do not follow the law – and so will the courts.

At the heart of the United Kingdom’s constitutional framework lies the principle of Parliamentary Sovereignty, which emerged from centuries of political and legal evolution, particularly following the struggles between the monarchy and Parliament during the 17th century, culminating in the Glorious Revolution of 1688 and the Bill of Rights of 1689. This doctrine asserts that Parliament, consisting of the House of Commons, the House of Lords, and the Monarch, holds supreme authority to make and unmake laws, with no other body, including the judiciary, able to override or invalidate its statutes. Even laws that appear absurd or irrational, such as the “Hogging Act” of 1610, which required certain individuals to provide lodging for swine, must be followed until they are repealed or amended. The principle is reinforced by judicial precedents like De Keyser’s Royal Hotel Ltd v. Westminster City Council (1920), which confirmed that courts must apply parliamentary laws without questioning their validity. While Parliament can legislate on any subject matter and alter fundamental rights and freedoms, it operates within a democratic framework where elected representatives are accountable to their constituents. Extensive scrutiny and debate, along with public pressure, help ensure responsible lawmaking. Although international factors, such as the UK’s former membership in the European Union, have introduced some constraints, Parliament retains the final say in lawmaking. This underscores the importance of the democratic process in ensuring that Parliament acts in the best interests of the nation, when it exercises its absolute legislative power.

The bottom line is that the NHS nor individuals working in the NHS, can override the will of Parliament on grounds of ethics, morality or professional regulatory principle.

REFERENCES

Yadav R, Zigmond AS. Mental Health Act 1983: use of urgent treatment in clinical practice. The Psychiatrist. 2013;37(5):156-159. doi:10.1192/pb.bp.112.038414]