ABSTRACT
A central feature of providing for people with mental health difficulties is the occasional need to consider imposing treatment upon an individual in the absence of their informed consent. Historically patients suffering with mental health problems were considered to lack the necessary judgement or capacity to give true consent. It was not until the 1820s, enlightened by the memoirs of a patient, that awareness of consent became the subject of debate (Perceval, 1982). Furthermore, it was not until the 1970s that the assumption that detained patients could be treated for their mental disorder without consent met serious challenges. The subsequent debate led to the provisions of Part IV of the Mental Health Act 1983, which stipulates safeguards against the inappropriate treatment of non-consenting detained patients. In particular these include the need for treatment plans to be endorsed by a second medical opinion. Current debate and further reform of mental health legislation consider two different sets of circumstances in which treatment without consent might be appropriate. These are either a situation in which a person is considered too psychologically disabled to give fully informed consent (lacks capacity), or circumstances in which a failure to be treated despite lack of consent would put the patient and/or others at risk. Some attempts have been made to clarify how capacity might be determined and assessed. The Law Commission attempted a definition of capacity, which recommends the assessment of five key areas (Law Commission, 1993):
Communicating a choice – the ability to make a response about a particular decision;
Understanding information relevant to the treatment – albeit in ‘broad terms’ and ‘simple language’;
Retaining information – if information is not retained, the individual is unlikely to understand relevant information;
Manipulating information rationally – the ability to weigh the risks and benefits of different options;
Appreciating the situation and its likely consequences – the individual recognises the disorder for which treatment will apply.
