Annex F(ii)

MENTAL WELFARE COMMISSION FOR SCOTLAND

ELECTROCONVULSIVE THERAPY

GUIDANCE ON CONSENT ISSUES FOR ECT COORDINATORS

The following guidance is offered to ECT co-ordinators to be read alongside the chapter on The Law and Consent in the Royal College of Psychiatrists ECT Handbook, and the chapter on ECT and Consent in the CRAG Good Practice Statement on ECT. The Commissions aim is to ensure that no patient should be treated with ECT unless there has been careful consideration of the consent issues and proper and lawful procedures have been followed to obtain consent, or, in the absence of consent, lawful authority to proceed.

1. Informal patients

It is expected under current legislation that informal patients will only be given ECT with their valid consent. The proposed legislation on Adults with Incapacity is likely to make new provisions about ECT and incapable patients.

In the past ECT has been given to patients who are incapable of consenting but are considered by the consultant to be passively consenting; or they may have expressed positive views of ECT when mentally capable, or may have given valid consent to ECT during previous episodes of illness.

This practice is becoming rarer. Most psychiatrists consider that in the absence of valid consent the patient should be detained and a Section 98 doctors opinion obtained before proceeding to ECT. The Commission endorses this view.

The Commission expects to hear of any case where ECT is to be given to a non-consenting informal patient.

2. Treatment during emergency detention

Section 24 and 25 detention are not associated with a treatment power - Part X of the Act does not apply.

Treatment without valid consent could therefore only be justified by common law principles of necessity, and the four circumstances defined in Section 102 can be used as a guide (though Section 102 itself does not apply until Section 26 or a Section 18 comes into operation).

The Commission expects that such emergency treatment will not be given unless the RMO has obtained a second opinion from a consultant colleague about the necessity of the treatment.

Any treatment given during emergency detention should be reported to the Commission.

3. Detained patients who are capable of consenting and are consenting

The patient must have certified his or her valid consent on the ECT consent form and the RMO must have certified the patients consent to the ECT Treatment Plan on a Form 9, before any treatment is given.

The doctor administering the treatment, the anaesthetist and the ECT nurse should expect to see both the consent form and the Form 9 before giving each treatment. A photocopy of the Form 9 is acceptable.

The Form 9 signifies consent to both ECT and anaesthetic, and covers a course of treatment. Its existence does not take away the normal requirement that the need for ECT is reconsidered before each proposed treatment and that consent status should be regularly reassessed. A patient who has given valid consent can withdraw that consent at any time.

Varying or uncertain consent should not be considered to be valid consent. In any case of doubt the RMO should seek the opinion of a Section 98 approved doctor. Where those administering the treatment have doubts about the patients consent status, this should be brought to the attention of the RMO, and appropriate action taken before treatment proceeds. In any discussion about a patients consent status, attention should be paid to any past views of the patient, information from relatives and assessments of multi-disciplinary team members.

4. Detained patients who are not consenting (Section 26,18, 71,72 MH(S)A 57, 58 and equivalents CP(S)A)

Whether the patient is capable of consent but refusing, or incapable of giving or withholding consent, treatment cannot proceed unless a Section 98 doctor has visited and examined the patient, discussed the treatment plan with the RMO and signed a Form 10 certifying agreement with the plan (except where Section 102 applies - see later).

The Form 10 gives authorisation for a course of ECT. It sets the limits within which that course can proceed.

The Section 98 doctor is asked to agree that the treatment is appropriate for the patients condition and should be given, but it is still a matter for the clinical judgement of those treating the patient whether it is necessary and reasonable to begin or proceed with the course of ECT. If the Section 98 doctor does not authorise the treatment it cannot lawfully proceed.

The discussion between Section 98 doctor and patient and between Section 98 doctor and RMO should be clearly recorded in the case notes. If there has any disagreement between the RMO and the Section 98 doctor, or a modification of the RMOs treatment plan by the Section 98 doctor, this should be clearly recorded. As far as is practicable the patient should be aware of these discussions and the outcome.

The ECT treatment team should see the signed Form 10 before starting the course of ECT. A photocopied or faxed copy is acceptable, but it is not sufficient to have only oral information about the existence of the Form.

Because the Form 10 gives overall authorisation to the course of ECT and the associated anaesthetic, and the patient cannot be fully involved in decisions about the treatment, RMOs and the ECT treatment team need to be particularly aware of the need to reassess the need for treatment and any potential risks of the treatment before each individual treatment.

The patients consent status may change during the course of ECT. RMOs should, however, not rush to the assumption that a patient is consenting. It is more likely that refusal to consent or inability to consent will only gradually change to valid consent, when a Form 9 may be signed.

After any approved course of ECT, the Commission expects to receive a Section 99 report on the treatment and its outcome. This report should be completed at discharge from detention or renewal of detention, whichever comes first. A yearly report is requested in Restricted patients. Any problems will be fed back to the Section 98 doctor involved and will be noted by the Commission.

5. Urgent treatment of detained patients (Section 26,18,58 etc.)

Section 102 provides for the possibility of emergency ECT in circumstances where Part X of the Act applies, but where it has not been possible to await the arrival of a Section 98 doctor.

There are 4 possible circumstances - that ECT is immediately necessary

• to save the patients life
• to prevent serious deterioration
• to alleviate serious suffering (and the treatment is not hazardous)
• as the minimum necessary intervention to prevent the patient being violent or dangerous to self or others (and the treatment is not hazardous)

Section 102 treatment should never be given unless a Section 98 doctor visit has already been requested.

It should usually only be necessary to give one Section 102 treatment (or exceptionally two treatments) before the Section 98 doctors visit. Where ECT is seen as necessary at the very beginning of a Section 26 period of detention, the Commission will accept a request for a Section 98 doctor visit during Section 24/25 detention, but the doctor cannot visit until the Section 26 detention has started.

It is good practice to have a second opinion from another consultant before proceeding with Section 102 treatment.

Every Section 102 treatment must be reported to the Mental Welfare Commission (in the form suggested in Appendix D in the MWC letter appended to the MH(S)A Code of Practice)

6. Advice

The Commission has a member of professional staff available during working hours to give telephone advice and discuss individual problems. The Commission cannot give a legal opinion. This is available from the Health Service Central Legal Office.

October 1999