More guidance about ECT and capacity from the Mental Health Tribunal

A recent decision by the Mental Health Tribunal has helped clarify the law around capacity, and how this affects an individual’s ability to decide whether they want electroconvulsive treatment (ECT).

Although in this case the tribunal considered our client had 'impaired' capacity, importantly it concluded that it would be contrary to the principles of the Mental Health Act 2014 to set the capacity test too high. The tribunal also noted it would not be appropriate 'to expect from a patient an overly perfect understanding or articulation as to the nature, benefits or risks of ECT'.

About our client

Franc has a diagnosis of bipolar affective disorder and his strong preference was to continue with medication rather than commence ECT. He was concerned about the flattening or sedating effect of this treatment, and was worried it would undermine his aspiration to join a band and affect his ability to perform.

When Franc had been an inpatient for over a month and was very anxious to return home, his treating team applied to the Mental Health Tribunal for an ECT order. We represented Franc at the tribunal to put forward his views about why he did not want to undergo ECT.

The law

Under section 96(1)(a)(i) of the Mental Health Act to grant an application for ECT the Mental Health Tribunal must be satisfied that the patient does not have capacity to give informed consent, and there is no less restrictive way for the patient to be treated.

A person is defined as having capacity to give informed consent (section 68), if he or she can understand, remember, use or weigh information that is relevant to the decision, as well as communicate the decision.

The case

Franc’s treating team argued that he did not have the capacity to give informed consent due to his impaired mental state, and there were no less restrictive treatment options available. Their report referred to the fact that he did not want ECT, but in their view he could not explain why, nor could he explain the benefits, risks and consequences of ECT.

During discussion before the tribunal, the treating team admitted 'the principal basis for recommending ECT' was to accelerate his recovery and that it was not clear whether this would affect his overall prognosis or recovery in the long term. Although new medication had been introduced and it was having a positive impact, his speech was pressured and he was being treated in the High Dependency Unit.

We argued on Franc’s behalf that he was able to understand and weigh the benefits and risks of ECT, and had expressed the view that it wasn't necessary. This was the case even though Franc's views were contradictory to some extent, in that he was refusing ECT, but also wanted to be discharged as soon as possible.

We also argued that a less restrictive treatment option was available and this was adequate, even though it may require a longer stay in hospital. We submitted that his views about ECT and his opposition to this treatment were of primary importance.

The tribunal’s decision

The Mental Health Tribunal was not satisfied that Franc lacked the capacity to give informed consent, although it said it:

• considered that his capacity was ‘impaired’
• had ‘difficulty extracting a clear understanding from [Franc] as to the benefits and risks of ECT, or his reasons for opposing ECT’
• believed his ‘understanding of what ECT entailed was rudimentary’
• considered he ‘lack[ed] insight into the seriousness of his recent relapse’.

The tribunal held that ‘it would be contrary to the mental health principles under the Act that the test under section 68 should be construed too high or to expect from a patient an overly perfect understanding or articulation as to the nature, benefits or risk of ECT’.

Although it was unnecessary to do so, the tribunal went on to also find that it was not satisfied that there was no less restrictive way for the client to be treated. Helpfully, the tribunal said:

‘ECT may well carry the best prospect of accelerating [the client’s] recovery and facilitating his discharge home …[and] the use of ECT may have been in [the client’s] best interests. However, this is clearly not the test under s. 96(1)(a) …’