Commentary Part 1 – Amendments to Mental Health Act 1983 Overview Section 35: Authority to treat
129.Section 35 introduces a new Part 4A into the 1983 Act to regulate the treatment of community patients whilst in the community i.e. when they are not recalled to hospital. New section 64B gives the authority to treat in the community adult patients who have the capacity to consent. Community patients aged 16 or over with capacity to consent to treatment can only be treated in the community if they do consent to their treatment.
130.Community patients aged 16 or over who lack the capacity to consent to treatment can be treated in the community provided that the treatment is authorised under new section 64D or, where relevant, a donee of a lasting power of attorney (an “attorney” or deputy appointed under the Mental Capacity Act 2005, or the Court of Protection, consents to treatment on their behalf. Section 64D also sets out that force cannot be used to administer treatment if the patient objects to that treatment. If the patient does not object to treatment, force is permitted and that may be in cases where, for example, the patient is suffering from tremor and physical force is needed as a practical measure to administer the treatment. The factors to be considered by a practitioner in determining whether a patient objects to treatment are outlined in new section 64J. If the treatment conflicts with a valid and applicable advance decision made under the MCA, it cannot be given to the patient.
131.Children aged under 16 can also be made subject to a CTO. As with adults who have capacity, treatment cannot be given to a child in the community who is competent to consent and does not consent to it. New section 64F provides the authority to treat a child who lacks competence in the community. Similar conditions must be met in order to treat a child lacking competence as for an adult who lacks capacity (although the conditions do not hinge on concepts in the MCA since powers under that Act cannot in general be exercised in relation to children under 16).
132.Only in emergencies can force be used to give treatment to patients who lack capacity or to children who lack competence against their objections. New section 64G sets out how and when treatment can be given in these situations.  Force can be used to give treatment only if it is immediately necessary, needs to be given to prevent harm to the patient, and is a proportionate response to the likelihood of the patient suffering harm and to the seriousness of the harm. The emergency circumstances in which section 58A type treatment can be given to patients who lack capacity or children who lack competence are more limited than the circumstances in which other treatment can be given in emergencies.
133.All community patients receiving the type of treatment which falls under section 58 or 58A of the 1983 Act must have that treatment certified by a SOAD in accordance with the provisions of Part 4A. For treatment specified in section 58(1)(b), i.e. medication, a certificate is not required immediately, but must be in place after a certain period. This period is one month from when a patient leaves hospital or three months from when the medication was first given to the patient (whether that medication was given in the community or in hospital), whichever is later. The SOAD must certify in writing that it is appropriate for the treatment to be given.
134.The SOAD may specify within the certificate that certain treatment can be given to the patient only if certain conditions are satisfied: so, for example, the SOAD could specify that a particular antipsychotic and dosage can only be given in the community if the patient retains capacity to consent to it. The SOAD can also specify whether and if so what treatments can be given to the patient on recall to hospital and the circumstances in which the treatment can be given. For example, the SOAD can specify, if appropriate, that an antipsychotic can be given to the patient on recall without the patient’s consent.
135.Under new section 64B, it is not necessary to meet the certificate requirement before treatment can be given in emergencies to a patient in the community where that patient consents to treatment or, for patients who lack capacity, where an attorney, deputy or the Court of Protection consents to it on the patient’s behalf.
136.The following table summarises when patients can be treated in the community and the safeguards that are in place for the review of section 58-type and section 58A type treatment: