Strapline: Consent to treatment; 18 October 2015
Thank you for your letter of 13 October in which you confirm that
you have provided Jamie Hepburn with a copy of my paper
"Antipsychotic guidelines for dementia patients 2". I now attach reports
of two court judgments and would be grateful if you could draw these to
the attention of the Minister and suggest that either he reads them or
that he instructs his officials to do so. These judgments clearly have
implications for Scotland's mental health strategy.
|Jamie Hepburn visiting pharmacy|
In the judgment relating to a refusal of treatment the report correctly notes that the judge observed that "Every adult capable of making decisions has an absolute right to accept or refuse medical treatment, regardless of the consequences of the decision. The decision does not need to be justified to anyone. Without consent any invasion of the body, however well-meaning or therapeutic, will be a criminal assault".
The judge's observation should be assessed in conjunction with the GMC consent guidance which stresses that there must be a presumption of capacity :"You must only regard a patient as lacking capacity once it is clear that, having been given all appropriate help and support, they cannot understand, retain, use or weigh up the information needed to make that decision, or communicate their wishes". The judge's observation should also be assessed in conjunction with Article 12 of the Convention on the Rights of Person's with Disabilities and the General Comment on Article 12 issued by the UN Committee on the Rights of Persons with Disabilities.
I am not aware of any health professional being prosecuted as a consequence of having treated a patient without first having obtained consent. I am aware, however, of successful civil actions being raised by patients who suffered harm after being treated without having given their informed consent. They had not objected to the proposed treatment but might have done so had they been informed of the significant risks associated with the treatment. I attach a report of such a case. A jury in the USA awarded a woman $635,177 damages for long-term memory loss following electroconvulsive therapy. Although the report does not make the reason for the award completely clear it seems that there was a failure to warn the woman about the risks and that is likely to have been the main reason for making the award. It would have been unreasonable to have awarded damages for memory loss if the woman had been made well aware of that risk and had agreed to go ahead regardless.
One implication of the attached reports is that it is never appropriate to treat a competent patient against his or her will. Hence section 242 should be deleted when the 2015 Mental Health Act is amended as should that part of the Act which permits electroconvulsive therapy to be given even if a patient resists or objects to the treatment: ECT is not the safe and effective treatment that its proponents claim it to be.
Evidence from those who supported petition PE01494 on mental health legislation revealed that some psychiatrists made no serious attempt to assess the capacity of their patients to make decisions about medical treatment. The Code of Practice which replaces the Code for the 2003 Act should emphasise that this situation must change and that health professionals must seek not only consent, but also informed consent.
Landmark Decision: Jury awards $635,177 Damages for Memory Loss from Electroshock, 8 July 2005:
Court of Protection upholds the right of a confused, lonely man to refuse treatment | UK Human Rights Blog; 13 October 2015, Rosalind English:
"A north-east campaigner has warned health boards risk being taken to court for forcing mental health patients to undergo a controversial treatment.
If follows the Freedom of Information revelation that 15 patients in Aberdeen were forced to have electroconvulsive therapy (ECT), commonly called shock therapy, in the 13-month period until the end of July.
ECT is a psychiatric practice in which electricity is passed through the brain in order to induce seizures and provide relief from certain mental conditions.
Retired lecturer Hunter Watson said non-consensual use of ECT is permitted under Scottish law even though the UN Committee on the Rights of Persons with Disabilities has recommended it be banned. ..." Read complete article
"A campaign to stop the force treatment of mental health patients is being taken to the General Assembly of the Church of Scotland later this month.
|Rev John Ferguson Peterculter|
His campaign to stop the use of electric shock treatment – know as electric convulsive therapy (ECT) – came up against a brick wall when the Scottish Parliament’s public petitions committee decided it could take his petition any further.
Despite the rebuff, Mr Watson has soldiered on and won the support of a north-east churchman who has agreed to raise the issue with the Kirk. ..." Read complete article