ECT without consent: the Mental Health Act 1985

While the Department of Health was losing track of the numbers of people undergoing electroconvulsive therapy (ECT) in hospitals in England and Wales, the Mental Health Act Commission (the body which was responsible for overseeing the working of the Mental Health Act 1985) was collecting statistics on the use of ECT without consent, between 1985 and 2009. These statistics – varying in detail – were published in the Commission’s biennial reports. Their final report was the thirteenth; in 2008 they became part of the Quality Care Commission.

 While the Mental Health Act 1959 gave psychiatrists implied authority to treat detained patients without their consent, the Mental Health Act 1983 made this authority explicit. As far as ECT was concerned, under section 58 it could be used on both incapable patients and those who were capable of making decisions about their treatment but had decided that they didn’t want ECT (known as capable but refusing in the statistics), as long as the patient’s psychiatrist got permission from a psychiatrist from the Mental Health Act Commission panel, known as a second opinion appointed doctor, or SOAD. Permission was rarely refused.

 In November 2008 the law was changed, and ECT can now only be given under section 58 to patients who are deemed to be lacking capacity, and not to those who remain capable of making decisions (who can still be given ECT against their wishes under section 62, the emergency treatment section).

It was these section 58 second opinion visits that were counted by the Mental Health Act Commission, and the numbers remained fairly stable from 1985 to 2008 – at about 2,000 patients a year in England and Wales. As the numbers of consenting patients declined, non-consenting patients made up an ever increasing proportion of those given ECT: they probably account for about 30 per cent of the ECT given currently.

Not all non-consenting ECT patients are included in the section 58 statistics: there are a few informal patients treated under common law, and some detained patients treated under section 62, who do not find their way into the statistics.  Not all requests for a SOAD visit result in the treatment going ahead, though most do. But these figures give a rough idea of the numbers:

 2 year period 1985-1987   3,362 requests to use ECT under s58

                         1987-1989   4,454

                         1989-1991   4,144

                         1991-1993   4,212

                         1993-1995   4,607

                         1995-1997   figure not given

                          1997-1999   4,579

                          1999-2001   4,463

                          2001-2003   4,407

                          2003-2005   4,003

                          2005-2007   3,956 completed second opinions

                          2007-2009   3,781

This information can be seen on a graph on page 236 of the Mental Health Act Commission’s 11th biennial report.

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