The Department of Health has recently consulted on a new draft Code of Practice for the Mental Health Act. Professor Phil Fennell and Dr Lucy Series have written a response to the draft Code, raising concerns about its guidance concerning Electroconvulsive Therapy (ECT). The draft Code states at paragraph 13.51 that:
Currently, there is no requirement for an independent medical opinion about the appropriateness of ECT being given to a person who lacks capacity to consent to that treatment. Such treatment could in principle be given on the basis of section 5 of the MCA.’
Section 5 of the Mental Capacity Act 2005 (MCA) is commonly known as the ‘general defence’. It codified provisions under the common law doctrine of necessity that gave those performing acts of care and treatment the same protection against liability that they would have obtained had the person consented, provided they reasonably believed that the person lacked the ‘mental capacity’ to give or refuse consent to that treatment and that it is in their best interests. Section 6 of the MCA requires that if the act of care or treatment requires restraint or restrictions on liberty, then additional requirements of proportionality and necessity must also be met in order to rely upon the general defence. The general defence has no automatic ‘procedural safeguards’ designed to ensure any independent oversight of decisions made regarding a person’s mental capacity or best interests.
In their response to the consultation on the draft Code, Professor Fennell and Dr Series argue that this interpretation of the use of the MCA to deliver ECT is wrong as a matter of law and may violate the human rights of patients. You can read their submission in full here: Response to the Consultation on the Draft Mental Health Act Code.