Consent to Treatment Under the Mental Health Act: ECT and Second Opinions

Being detained under the Mental Health Act does not mean a person can be given any treatment without safeguards. Part 4 of the Act sets out when treatment for mental disorder can be given with or without consent, and who must approve it. Care and nursing staff need to understand the basics because they give medicines, support patients through treatment and often hear a patient say they want to refuse. This guide explains the main rules, including electroconvulsive therapy (ECT) and the role of the second opinion appointed doctor.

It is general information, not legal advice. Always follow the Code of Practice and your organisation's policy, and check the certificate before giving treatment that needs one.

The big picture

For patients detained under the Act, the rules depend on the type of treatment. Some treatments are so serious that they need both the patient's consent and independent approval. Others, such as medication, can be given without consent after a set period, but only with an independent doctor's agreement if the patient refuses or lacks capacity. The independent doctor is called a second opinion appointed doctor, usually shortened to SOAD, and is appointed by the Care Quality Commission.

Section 57: the most serious treatments

Section 57 applies to a very small group of rare treatments, such as neurosurgery for mental disorder and surgical implantation of hormones to reduce male sex drive. Treatment needs the patient's consent and a certificate from an independent doctor and two other people, confirming the treatment is appropriate. It applies to all patients, not only those who are detained.

Section 58: medication after three months

For medication for mental disorder, the Act allows treatment during the first three months of detention. After that, treatment must be authorised in one of two ways. Either the patient consents and their responsible clinician certifies that the patient has capacity and consents, or a SOAD certifies that the treatment is appropriate where the patient refuses or lacks capacity to consent. Staff should check that the certificate is in place, and that the medicines being given match what the certificate covers. If the treatment plan changes, the certificate may need to be updated.

Section 58A: electroconvulsive therapy

ECT has its own, stricter rules. NHS information for patients explains the main points:

• A patient who has capacity can refuse ECT. It is given only if they agree, or in an emergency.
• If the patient lacks capacity, a SOAD must assess them and authorise treatment before it can go ahead.
• A SOAD must also be involved for every patient under 18, who needs to agree and have the independent doctor agree.
• The SOAD talks to the patient and to the staff involved and reviews their understanding of ECT.

The law also protects earlier wishes. A SOAD cannot override a valid advance decision to refuse ECT, or a decision made by a person with a lasting power of attorney, a court-appointed deputy or the Court of Protection. Our guide to advance decisions to refuse treatment explains how these decisions work.

Section 62: emergencies

Section 62 allows urgent treatment without the usual consent or certificate in limited situations. In the case of ECT, the leaflet states it may be given in an emergency only where it is needed to save the person's life or stop their mental health getting very much worse. More generally, the Act allows urgent treatment where it is immediately necessary, for example to save life, prevent serious deterioration, alleviate serious suffering or prevent violent behaviour or danger. Emergency powers are narrow, so staff should not assume that an urgent situation permits any treatment.

Section 63: treatment without consent

Section 63 allows treatment for mental disorder without consent for a detained patient, subject to the more specific rules in sections 57, 58 and 58A. In other words, it does not override the safeguards above.

Community patients

People on a community treatment order are covered by similar rules in Part 4A of the Act, adapted for the fact that they are living in the community. See our guide to community treatment orders for the details.

What care staff should do

• Check the legal authority. Before giving medication that needs a certificate, check that one exists and that it covers the drug and dose.
• Record the patient's views. Note any refusal and tell the responsible clinician.
• Explain in plain terms. Make sure the patient understands what is happening and why.
• Tell them about advocacy. A patient can ask for support from an Independent Mental Health Advocate.
• Follow earlier wishes. Check for advance decisions or a person with legal authority to decide.

Common mistakes

• Giving medicines without checking whether the three-month point has passed and whether a certificate is needed.
• Assuming that a patient who is detained has lost the right to refuse any treatment.
• Forgetting that a second opinion is required for every patient under 18 who is being considered for ECT.
• Treating an emergency as a general permission.

Frequently asked questions

Can a detained patient refuse medication?

Within the first three months, treatment can be given without consent. After that, authority is needed through the patient's consent or a SOAD certificate.

Who is a SOAD?

An independent doctor appointed by the Care Quality Commission to review treatment where the patient refuses or cannot consent.

Can ECT be given to someone who refuses?

Not unless it is an emergency. If the person has capacity and refuses, they should not be given ECT. If they lack capacity, a SOAD must authorise it and cannot override a valid advance decision.

Where can teams find training?

See the CPD hub for professional development options for care and healthcare teams.

Learnsignal will update this guide as the Mental Health Act reforms are put into practice.