Report on the Review of the Mental Health (Scotland) Act 1984

Chapter 10

TREATMENTS AND INTERVENTIONS REQUIRING PARTICULAR SAFEGUARDS

The current position

1. Although any treatment under compulsion is potentially controversial, some treatments create particular concern. The current Mental Health Act specifies additional safeguards in relation to a number of treatments for mental disorder.

2. Section 98 provides that certain forms of treatment can only be given to a detained patient if the patient has consented, or the treatment is approved by a doctor appointed by the Mental Welfare Commission. It states that this applies to the administration of medication for mental disorder to a detained patient, if three months have elapsed since the first period when medication was given while the patient was detained. The provisions also apply to ECT given at any time while the patient is subject to detention⁸³. However, it is possible to administer ECT to a detained patient in an emergency⁸⁴.

3. Section 97 imposes more stringent safeguards for treatments which raise particularly serious issues. It applies to any surgical operation for destroying brain tissue or for destroying the functioning of brain tissue, where this is carried out as a treatment for mental disorder. (Such treatments are commonly referred to as psychosurgery or neurosurgery for mental disorder.) Regulations also apply this section to the surgical implantation of hormones to reduce male sex drive⁸⁵. Both such treatments are extremely rare. In 1998-9, the Mental Welfare Commission assessed seven people for psychosurgery, of whom two were detained. The Commission has no records of hormonal implants being carried out in recent years.

4. The treatments covered by s97 require both the consent of the patient, and the approval of a doctor authorised by the Mental Welfare Commission. In addition, two other people, not being doctors, also authorised by the Commission, must certify consent. In practice, the Commission maintains a pool of medical and non-medical Commissioners who provide the necessary three people for such assessments.

5. Section 47 of the Adults with Incapacity (Scotland) Act 2000 also makes provision for exceptional treatments. The general authority under the Act to treat adult patients who are unable to grant consent will not apply to these treatments, and regulations will set out the safeguards which should apply. We understand that the intention is that neurosurgery for mental disorder, ECT and sterilisation would be amongst the treatments which would be so specified, but that a final decision on the treatments and safeguards has been deferred, pending the report of this Committee.

6. There are also special non-statutory arrangements in place for patients who are not detained, in relation to psychosurgery. These followed the report of a working party in 1996⁸⁶. This recommended that the law in Scotland be changed, so that the protection set out in s97 be extended to informal patients, as is the case in England. In the meantime, it has been agreed with the only hospital in Scotland which carries out this procedure that all patients will be assessed by the Mental Welfare Commission under arrangements similar to s97.

What makes treatments 'special'?

7. It is difficult to define precisely what it is about certain treatments that means that they require particular safeguards. Two of the factors most frequently mentioned in evidence to us were treatments that were hazardous or irreversible. These are also the factors mentioned in s102 of the 1984 Act, as matters to be taken into account in weighing up which treatments may be given without consent where it is immediately necessary. We agree that both are important. However, neither is straightforward.

8. The risks of a particular treatment may vary from patient to patient. There are also different kinds of risk, and differences in the degree to which the level of risk is known. An established treatment may have a well-known possible side effect, while the risk in relation to a new treatment may be a less quantifiable risk of unforeseen consequences.

9. So far as irreversibility is concerned, this may relate to the intervention itself, or to potential side effects. The risks that a negative outcome may be irreversible may vary.

10. It is also apparent that these are not the only factors which concern service users. ECT is a treatment which remains controversial, but there is evidence that the risks attached to it are no greater than apply to some other treatments for mental disorder, which do not excite similar controversy.

11. We have concluded that it is impossible to devise a checklist which can be applied mechanistically to determine what treatments should be regarded as special. However, we do not wish simply to set out a list of treatments, without further justification. Such a list risks being arbitrary. It is also likely to become out of date quickly: both because new treatments have been introduced, and because the problems associated with current treatments may change as technology improves or new evidence emerges.

12. We therefore propose that the Act itself should specify certain treatments which are, and are likely to continue to remain, controversial or which raise particularly serious issues. It should also make provision for regulations to add to, or amend, the list of specified treatments. We discuss below ways in which the list might be kept up to date. We believe it would assist in this process if the Act were to set out the general factors which should be borne in mind when considering whether a treatment should attract special safeguards.

13. Of course, it must be acknowledged that severe mental illness is itself both distressing and can be life threatening, and that many of the currently accepted treatments will have some of these attributes. We do not propose that a treatment should necessarily be treated as special, simply because it has one or more of the above attributes. They are general factors to be taken into account. In general, the safeguards which we propose have sought to balance the need for effective treatment with respect for the rights of patients.

The safeguards for special treatments

14. There are a number of possible safeguards which could be created, ranging from simply mentioning treatment in the Code of Practice, to requiring approval by a Court. In general, we feel that the current provisions of sections 97 and 98 remain broadly appropriate.

15. Within that framework, we deal below with a number of particular treatments.

Treatments which should require consent and a second opinion (present s97)

Neurosurgery for mental disorder

16. Neurosurgery for mental disorder attracts concern, despite the rarity of the procedure. To some degree, this concern is caused by the association in the public mind with out of date procedures such as lobotomy. Current procedures are much more limited and carefully targeted. Furthermore, under the current arrangements, they are only carried out on individuals with extremely severe conditions, where all other options have been tried. Such patients are often totally incapacitated by their illness, and the procedure may be the only hope of them regaining some degree of normal functioning.

17. Nevertheless, we agree that any operation to destroy brain tissue, where this is not for treatment of a physical illness, requires stringent safeguards. We believe that the current provisions in s97 are appropriate and should be retained. We also believe that the same safeguards should be extended to informal patients by statute, rather than by the current voluntary arrangement.

18. There is, however, the problem of patients who could not be treated under the s97 procedure because they are not capable of giving consent. We strongly believe that no-one should have psychosurgery imposed on them against their will. However, it is the case that some people may be so affected by their illness that, although not objecting to the treatment, their ability to give a fully valid consent is compromised. Unless some special arrangement is made, such patients could never be treated by this means, even if it were their last hope of recovery.

19. We do not think it would be wise to make provision which could prevent such people from ever receiving this treatment. On the other hand, the concerns which arise in relation to undertaking such a treatment on a patient without consent are such that we believe that additional safeguards are required, for the very rare case which might arise.

20. We note that the Report of the Working Party on Neurosurgery made a number of recommendations concerning good practice. These include the carrying out of a prospective evaluation of the effectiveness of the procedure, and the establishment of a Standing Advisory Committee. So far as we can ascertain, these have not been fully implemented. This is an undesirable state of affairs.

Surgical implantation of hormones to reduce male sex drive

21. Currently, the surgical implantation of hormones to reduce male sex drive is designated as a special treatment under s97 by regulations. However, it would appear that
the procedure is now obsolete. Where clinicians believe that reduction of sexual drive is clinically appropriate, they would use oral medication, which we discuss below.

22. On that basis, we feel the surgical procedure should be removed from the regulations governing procedures requiring special additional safeguards.

23. We do not propose that any new treatments should be added at present to the list of treatments which attract particularly stringent safeguards under s97. We go on to discuss treatments which should attract safeguards currently provided for in s98.

Treatments which should require consent or a second opinion (present s98)

Medication to reduce sex drive

24. As we state above, clinicians do on occasion feel it appropriate to reduce male sexual drive by means of oral medication. The most common drug for this purpose is Cyproterone acetate ('Androcur'). The Mental Welfare Commission considered this treatment in its 1991 Annual Report, and concluded that it was indeed not covered by s97, although in some circumstances the more limited safeguards of s98 might apply.

25. We believe that the safeguards for such medication need not be quite as stringent as were provided for hormonal implantation. The procedure is more easily reversed, and cannot be forcibly imposed on an unwilling patient. However, administering drugs with the specific intention of reducing sexual drive is a step with considerable implications for human rights. We heard anecdotal evidence of its use with people with learning disabilities, and the current position provides few safeguards against misuse. We therefore believe that an independent second opinion should be obtained in all cases where the patient has not given consent, before such treatment is administered.

Electro-convulsive therapy

26. As we have already mentioned, ECT is controversial. Most Scottish psychiatrists regard it as a safe, effective and well-evidenced treatment in appropriate cases, for example severe depression, and much research supports this. Many service users report considerable benefits while others regard it as an almost uniquely invasive and distressing intervention.

27. We are satisfied that the degree of concern felt by many service users regarding ECT is such that it should continue to attract special safeguards when carried out on patients subject to compulsion, by specific provision in the Act.

28. We also considered whether it should ever be possible to give ECT to a patient who, at the time the treatment is offered, is competent to consent to it but refuses consent. A large number of those who responded to our consultations felt that it should not be permitted. In view of this, and despite the evidence we have already noted that the risks attached to ECT are no greater than those applying to some other treatments for mental disorder which do not provoke similarly strong feelings, we feel it is appropriate to provide that any patient who is capable of making a treatment decision at the time the treatment is being offered should be entitled to refuse ECT.

Long term medication

29. The evidence we received suggested that there was general support for the current arrangements, that any medication for mental disorder given for over three months to a detained patient should be a special treatment. There was however considerable support for the suggestion that this could be shortened, perhaps to two months. We can see no objection in principle to this, and it would significantly shorten the time during which a person could be receiving treatment on a compulsory basis with no independent oversight. The main practical consideration would be if it would greatly increase the number of cases for consideration by approved second opinion doctors. However, information received from the Mental Welfare Commission suggested that the amount of additional second opinions which would be involved would not be unmanageable.

30. We also feel that the current definition of the time period after which consent or a second opinion should be obtained is unnecessarily complex. It would be simpler if the 'clock' started to run from the date of compulsory measures being imposed, given that treatment will almost always be commenced then or shortly afterwards.

Forcible feeding

31. The issue of forcible feeding of patients with, for example, eating disorders is controversial. There has been some doubt about whether it constituted treatment under the Act at all, since Part X of the Act covers only treatment for mental disorder, not physical treatments. Case law in England⁸⁷ has established that forcible feeding can be considered treatment for a mental disorder, and so can be carried out on patients under mental health law.

32. We accept that this may be appropriate in some situations, although of course there will be difficult judgements as to whether physically forcing a person to accept food is clinically appropriate and likely to be effective. The intrusive nature of the treatment is such that it should attract special safeguards.

33. These safeguards should not apply to steps taken to encourage or persuade a patient to take nourishment, but should apply where a patient is compelled to eat or is given nutrition against his or her will by artificial means. In these latter circumstances, the question of consent cannot of course arise, but there should be a requirement for a second opinion.

Medication outwith the normal range

34. There are established dosages for the various types of psychotropic medication. In the great majority of cases, drugs will be administered within this range, but there are occasionally situations where a higher dose is felt to be necessary or where a high dose of a particular class of drug is achieved through the use of more than one individual drug (polypharmacy). This was identified as an issue of concern, including by the Royal College of Psychiatrists. In some cases, drugs may also be used for a purpose other than their normal recommended purpose, as specified in the product licence. We feel that additional protection is appropriate for such cases.

Behavioural and other psychotherapeutic interventions

35. We heard evidence of concern about a range of behavioural and other psychotherapeutic treatments. It was suggested that explorative psychotherapy could sometimes be very distressing, particularly if the patient was not clear about the implications of the exchanges with the professional.

36. For people with learning disability in particular, there are a range of behavioural techniques which are used. We were advised that the cruder forms of 'behavioural modification', involving sanctions for non compliance, were no longer widely practised. Nevertheless, we believe that safeguards may well be appropriate for particular approaches and techniques.

37. We do not believe it would be practical to spell these out in the Act itself, since it would be difficult adequately to define the particular interventions, but we feel that it would be appropriate to review these treatments, to consider whether any should be specified in regulations.

Restraint

38. Some consultees suggested that safeguards were needed in relation to restraint. We agree. However, we feel that restraint falls into a different category, since it is not a treatment, but a response to the behaviour of the patient. We deal with this in Chapter 12.

Adding to the list of special treatments

39. Since the regulations immediately following the 1984 Act were passed, there have been no additions to the list of special treatments. We are concerned to ensure that new treatments which may arise are evaluated in accordance with the criteria which we specify above. We suggest that this responsibility be vested in the Mental Welfare Commission. The Commission would also be well placed to consider whether there are other current procedures, which should be added by regulation to the list of special treatments.

The nature of the second opinion

40. The role of the second opinion doctor is to specify whether, having regard to the likelihood of the treatment alleviating or preventing a deterioration in the patient's condition, the treatment should be given⁸⁸. The Act does not specifically require the doctor to consider whether the treatment is the best treatment for the patient, or whether other alternatives might be more acceptable to the patient.

41. It would seem that the term 'second opinion' may be something of a misnomer, to the extent that it implies a doctor coming up with a wholly independent diagnosis and treatment plan. Instead, the second opinion doctor in this context may be more concerned to be satisfied that the treatment which is proposed is within the acceptable range of treatment options for the patient. It is also the case that the approval by the second doctor tends to be of a fairly general nature, for example consent to any anti-depressant specified in a particular part of the British National Formulary, within the prescribed therapeutic dose.

42. There is clearly a tension between providing a thorough and independent check, and avoiding the second doctor dictating treatment to the doctor who carries responsibility for the patient. We believe that the role of the second opinion doctor should be more clearly linked to the principles of the Act, such as that of the least restrictive intervention. It would be helpful for the Code of Practice to set out in some detail the responsibilities of the second opinion doctor, and for these to be followed up in training of all approved second opinion doctors.

The duration of the second opinion

43. The 1984 Act does not specify any particular time limit, after which a second opinion must be renewed. In theory, a second opinion could operate to authorise treatment for many years. The Mental Welfare Commission has recommended that, for patients who refuse consent, a second opinion should be renewed every 3 years⁸⁹, although this does not apply to cases where the patient is simply unable to give consent.

44. We believe that such a safeguard should be reviewed regularly and that 2 years would be a more appropriate time limit.

Role of the tribunal

45. In approving a plan of care involving special treatments, the tribunal should be entitled to satisfy itself that the necessary safeguards have been or will be followed, but not to add additional safeguards.

Urgent treatment

46. We accept that provision requires to be made for urgent treatment to which the safeguards currently in sections 97 and 98 cannot apply because of time constraints, but which should attract other conditions and safeguards. We propose that the arrangements should remain as set out in s102 of the 1984 Act. We note that the Mental Welfare Commission has expressed concern that the requirement to report to it cases of treatment being given under s102 may not always be implemented.

Children and young people

47. Under the terms of the Age of Legal Capacity (Scotland) Act 1991 and the Children (Scotland) Act 1995, it is possible for a person with parental rights and responsibilities to consent to medical treatment on behalf of a child aged under 16, if the child is not capable of understanding the nature and possible consequences of the treatment. This applies to treatment for mental disorder, as it does for other treatment, but would not apply where a child is treated compulsorily under mental health law. We recommend in Chapter 18 that the Code of Practice should give guidance on when it would be appropriate to rely on parental consent for treatment of a child for mental disorder, and when the Mental Health Act should be used.

48. In relation to special treatments, the safeguards in the Mental Health Act are not replicated in children's legislation. This means that a parent may be able to consent on behalf of a child to treatment such as ECT or long term anti-psychotic medication, without a second opinion being obtained.

49. We believe that this places parents in a difficult position, and potentially undermines the safeguards of the Mental Health Act in relation to children. We therefore believe that the legislation should provide the same protection in relation to special treatments for children unable to consent to treatment as would apply to children subject to compulsion under the Act.

50. Where a child has the necessary maturity and understanding competently to consent to (and refuse) treatment, we believe that the current position should be maintained, that such a child is legally in the same position as a competent adult. The effect of this is that such a child could not be treated for mental disorder against his or her will without the use of the Mental Health Act, and would be entitled to refuse ECT while legally competent.

51. So far as treatment without consent is concerned we received evidence that further safeguards were desirable for children and young people. This is, of course, an extremely vulnerable group. Also, the issues of diagnosis and treatment are particularly complex. There may be additional risks to certain treatments, associated with the fact that a child's physical and mental development is not complete.

52. We therefore believe that special treatments should only be lawfully administered without consent to this group where they have been approved by two specialists in child and adolescent psychiatry. This is similar to the guidance in the Clinical Resource Audit Group good practice statement on ECT⁹⁰. The two approvals could be by the responsible medical officer (RMO) and the approved second opinion doctor. Where the RMO is not such a specialist, we believe two further opinions should be obtained.

53. In relation to neurosurgery for mental disorder, the CRAG working group on that issue considered that it should never be carried out on a patient aged under 20. We agree that this should almost never be considered, although we do not believe that it would be desirable for the Act to rule it out altogether. It should however be mentioned in the Code of Practice.

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