Mental health act commission




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M
ENTAL HEALTH ACT COMMISSION






Treatment under emergency power for Supervised Community Treatment patients who are awaiting Second Opinions

Interim guidance for clinicians, administrators & Mental Health Act Commissioners



Issued: January 2009


The MHAC has been asked for its view on the use of emergency powers to treat Supervised Community Treatment patients who are awaiting Second Opinions. This note sets out our response to such queries, although it must not be taken as formal legal advice but remains merely an opinion on the possible interpretation of the Act.


The MHAC takes the view that sections 64B, 64C and 64G of the MHA 1983 (as amended by the MHA 2007) contain powers that can be used to ensure that the treatment of any SCT patient who is awaiting a SOAD visit is not seriously compromised as a result of the failure to meet the certification requirement.
The provisions of Part 4A are complex, and so the following aims to provide a succinct statement of the relevant powers.
The consenting SCT patient
Should the first month of SCT (or three-month period) expire before a CTO11 certificate can be issued, it is possible to treat the consenting SCT patient under the provisions of s.64B(3)(b)(i), which states that:
"the certificate requirement [i.e. the need for CTO11] does not apply if the treatment is immediately necessary and...the patient has capacity to consent to it and does consent to it".
Section 64(3)(b)(ii) extends this authority to incapacitated patients where a donee or deputy has consented on that patient’s behalf.
‘Immediately necessary’ is interpreted in this section to mean that treatment must be immediately necessary either to:

  • save the patient’s life; or

  • prevent serious deterioration of the patient’s condition (being not irreversible); or

  • alleviate serious suffering (being neither irreversible nor hazardous); or

  • prevent the patient from behaving violently or being a danger to self or others (being the minimum interference necessary and neither irreversible nor hazardous).   

Because of the 'immediately necessary' requirement, this should only be used until the SOAD visit is complete - it does not dispense with the need for a SOAD visit.

The incapacitated SCT patient
If the patient lacks capacity to consent or refuse consent, and the first month of SCT (or three-month period) expires before a CTO11 certificate can be issued, then treatment can be continued under the provisions of sections 64C(2)(c) and 64G, provided that it can be stated that it is immediately necessary either to:

  • save the patient’s life; or

  • prevent serious deterioration of the patient’s condition (being not irreversible); or

  • alleviate serious suffering (being neither irreversible nor hazardous); or

  • prevent the patient from behaving violently or being a danger to self or others (being the minimum interference necessary and neither irreversible nor hazardous).   

The MHAC takes the view that these ‘emergency ‘ provisions can extend to be used to ensure that a patient’s medication levels do not drop below the therapeutic dose – i.e. it is not necessary to wait for a relapse to show before authorising treatment under these powers. 


It would of course make good sense to record clearly when authorising treatment that the reason that it is necessary to use these powers is because the SOAD visit has yet to take place.  


Questions or concerns about this guidance should be addressed to the Policy Unit, Mental Health Act Commission, Maid Marion House, 56 Hounds Gate, Nottingham NG1 6BG, tel 0115 9437100, fax 0115 9437102,

e-mail: mat.kinton@mhac.org.uk





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