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Consent to treatment

People subject to Compulsory Treatment Orders (CTOs), and other longer term treatment orders, have specific safeguards in respect of their treatment.

This includes a maximum time limit of 2 months for the giving of medicines for the treatment of mental disorder without consent. Treatment for longer than this requires an independent opinion from a "designated medical practitioner". These safeguards would not be relevant to most of the people we saw as part of visits to people on short term detention certificates. Only those people who had been recalled to hospital from a community based CTO, or those for whom particular treatments, such as electroconvulsive therapy, or artificial nutrition for the treatment of anorexia, were being considered, would be subject to the safeguards provided.

For those few individuals we saw for whom part 16 of the Act was relevant, we found some evidence that the safeguards were not being wholly adhered to. Where our visitors identified specific concerns these were taken up with the care team and in particular the responsible medical officer (RMO).

"I am writing to the RMO as I have noted that there is no T3 in place, either in the patient's file or on our records" (patient on community-based CTO)

We are aware that since the Mental Health (Care & Treatment)(Scotland) Act 2003 came into place there has been little or no training on consent provisions. We think this may be why adherence to the requirements is so variable around the country.It is our view that NHS Boards should now look at the training needs of their staff in respect of this part of the Act.

Treatment certificates (Section 47(1) Adults with Incapacity Act)

Under the Adults with Incapacity Act Scotland 2000 subsection 47(1), when a doctor decides that an adult is incapable of making a decision about their medical treatment it is good practice to make an assessment and complete a certificate of incapacity and a treatment plan. Under subsection 47(4) of the Act, "medical treatment" includes any procedure or treatment designed to safeguard or promote physical or mental health.

Before completing the certificate of incapacity a doctor who wishes to treat an adult who lacks capacity in relation to their treatment should consider the views of any welfare attorney or guardian, and apply the general principles of the 2000 Act.

Presence of mental disorder in itself does not mean that a person lacks capacity in relation to all matters requiring consent. A person's capacity to make decisions can vary over time and in relation to the matters being considered, there is no automatic reason why a person subject to compulsory treatment should be assumed to lack capacity in relation to all treatment decisions regarding their physical and mental health.

We did, however, find a number of people in this monitoring programme who appeared to lack capacity in respect of consent to treatment for physical health problems and for whom there was no treatment certificate or treatment plan in place. We followed up with the doctor in these cases.

"Although MWC covert medication pathway completed no S47 certificate could be seen on file"

A copy of the pathway can be found in our Covert Medication guidance