“Capable but refusing”: this was how the Mental Health Act Commission (MHAC) described the people who were forced to have electroconvulsive therapy (ECT) against their wishes under section 58 of the Mental Health Act 1985. They formed roughly 40 per cent of those treated with ECT under section 58; the other 60 per cent were deemed to be lacking capacity.
In November 2008, the category of “capable but refusing” disappeared, as an amendment of the law meant that only patients lacking capacity could be given ECT under section 58 of the Mental Health Act. But the number of requests to use ECT under section 58 didn’t suddenly drop by 40 per cent. When psychiatrists realized the law was going to change, they started shifting people from the capable but refusing category into the incapable category, and the 60/40 balance became a 75/25 one in 2007/2008. The number of requests to use ECT without consent dropped by almost exactly 25 per cent when the new rules came into force, from an average of 175 requests a month to an average of 132 a month.
In 2007/2008 women made up 72 per cent of the people given ECT against their wishes, compared to 67 per cent of those who were lacking capacity. In their last biennial report the MHAC came up with an interesting statistic: men who said (a capable) “no” to ECT were more than twice as likely as women to have their wishes respected by the MHAC panel doctor (the second opinion appointed doctor or SOAD). “Whilst 3.3 per cent of females refusing consent to ECT had a significant change to their treatment plan, 8.5 per cent of refusing males had a significant change made”. “Significant change”, at least in some cases, meaning a refusal to authorise treatment. The MHAC didn’t offer any explanation for these differences.