Saturday, May 08, 2021

Second opinion for enforced psychiatric treatment

I've mentioned before (see eg. previous post) that patients detained under the Mental Health Act (MHA) should have a right to a second opinion of their choice for medical, nursing and social matters. Currently, detained patients who are not consenting to medication must have their treatment certified after three months by a Second Opinion Approved Doctor (SOAD) from the Care Quality Commission (CQC). The government's White paper to reform the MHA (see another previous post) proposes that patients refusing medication treatment must have it certified by the SOAD at day 14, and by 2 months if they do not have relevant capacity, rather than 3 months. I don't think it's fair that patients with capacity should have stronger protection in this respect merely because they have capacity. Protection should be the same for detained patients with and without capacity, although at least civil detention should actually be difficult to justify for people with mental capacity.

As I've also mentioned (see previous post), SOADs, certainly these days, merely tend to 'rubber-stamp' Responsible Clinicans’ (RCs') treatment plans. For example, I think it's reasonable for a SOAD to consult the nearest relative about the treatment of an incapacitous patient, but I don't think I've ever seen it happen. SOADs need to take account of the will and preferences of the patient (see another previous post), including any advanced statement or Advanced Choice Document but I'm not convinced they do.

As I've again also mentioned before (see eg. previous post), I think a better safeguard would be to abolish SOADs and have their function taken over by the Mental Health Tribunal (MHT). The MHT should be able to require the RC to reconsider a specific treatment decision in a Tribunal hearing, if necessary, as proposed by the White paper, following a preliminary ‘permission to appeal’ stage. Personally I've no objection to this decision being made by a single judge sitting alone, particularly if it makes the Tribunal more responsive in these circumstances, as it's simpler to organise a single rather than three person panel. If necessary, the judge should be able to seek advice from a panel of medical members. The judge will be able to consider and make a judgement about any conflict between the RC and second opinion doctor of the patient's choice and made by the second opinion doctor in their best interests.

Finally, in my previous post, I've talked about independent clinical opinions being available routinely for patients and nearest relatives as part of an improved advocacy service. As I keep saying, the White paper proposals do not go far enough. They need to be put under proper scrutiny on the basis of these alternative proposals that I am making.

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