This section inserts new section 62ZA into the 1983 Act, which introduces additional safeguards for patients where the approved clinician wishes to overrule their refusal of urgent section 58A treatments (currently just electro-convulsive therapy) made with capacity/competence, either at the time or in a valid and applicable advance decision, or where the urgent treatment would conflict with the valid decision of a donee or deputy, or a decision of the Court of Protection.
	Subsection (2) permits an approved clinician to administer treatment if the patient has consented with capacity or if the patient has refused with capacity but, a second opinion appointed doctor has certified the treatment. Subsection (3) permits treatment if the patient lacks capacity to consent or if the patient lacks capacity, but the treatment conflicts with a valid and applicable advance decision, or a decision of a donee, deputy or the Court of Protection and a second opinion appointed doctor has certified the treatment.
	Under subsection (4) and subsection (5) the certificate must confirm the following: the patient’s capacity/competence and that the decision to give treatment conflicts with their refusal either made at the time or in a valid and applicable advance decision or by a donee or deputy or the Court of Protection; that the decision to give treatment was made by the clinician in charge in accordance with section 56A; and that the relevant urgent criteria in section 62 are met. Previous legislation allows urgent electro-convulsive therapy to be administered by the approved clinician without the certification of a second opinion appointed doctor. By requiring the external scrutiny of a second opinion appointed doctor where treatment is being given in the face of a refusal, the patient’s autonomy is further protected, and it is better ensured that urgent electro-convulsive therapy is only administered when there is a strong justification for doing so. We recognise that, again, this approach diverges from the changes made under section 15. That is because, in this case, the presence of an advance decision does not prevent the use of treatment, and the contents of the advance decision may be important to establishing if a certificate should be issued to permit the use of compulsory treatment.
	Subsection (6) requires that, before giving a certificate, the second opinion appointed doctor must, if practicable to do so, consult with a nurse who has been professionally concerned with the patient’s medical treatment, who is neither the responsible clinician nor the approved clinician in charge of the treatment in question, as well as the patient’s nominated person (see section 24 of the Act). Consultation with the nurse is to provide a clinical perspective on the patient’s condition and the necessity of the treatment in question, which is separate to clinical perspective of the approved clinician. Consultation with the Nominated Person is so that the second opinion appointed doctor can independently gain an understanding of the patient’s wishes and feeling, beliefs and values, particularly where the patient is too unwell to engage with the second opinion appointed doctor at the time.
	Due to the urgent nature of the second opinion appointed doctor’s role, subsection (7) states that the request must be made as soon as is reasonably practicable, so that the regulatory authority (in England the CQC, in Wales the Healthcare Inspectorate Wales (HIW)) can, in turn, appoint a second opinion appointed doctor as soon as possible.
	Section 18 inserts new section 62ZB which sets out that, where the regulatory authority determines that there are exceptional circumstances, which mean that there will be a delay in appointing a second opinion doctor, the second opinion function may be carried out instead by the approved clinician in charge of the patient’s treatment. The appropriate clinician must consider the treatment immediately necessary to save the patient’s life. Treatment is no longer permitted in reliance on a certificate given by the approved clinician once a second opinion doctor has been appointed under section 56B. The reason for this ‘back-stop’ is to allow for treatment to go ahead, in the rare instances where the second opinion appointed doctor is unexpectedly prevented from undertaking their role and it is not possible to appoint another second opinion appointed doctor in a safe time period.
	To ensure that these limited occasions are monitored, each time a patient is given treatment in reliance on a certificate given by the approved clinician, the managers of the hospital or registered establishment in which the treatment is given must notify the regulator as soon as reasonably practicable. The regulator must then report on this in their annual report under section 120D of the 1983 Act, as set out in subsection (4). Specifically, they must report on the number of times there was a delay in appointing a second opinion appointed doctor, the reasons for this, and how many times the hospital administered treatment in reliance on a certificate given by the approved clinician.
	Section 62ZC gives the appropriate national authority the power to impose duties on the following by way of regulations: (a) the managers of hospitals or registered establishments; (b) approved clinicians, or (c) the regulatory authority, for the purpose of ensuring that the second opinion appointed doctor’s certificate of treatment is given within a specified time period. This is to ensure that the second opinion appointed doctor’s assessment is undertaken within a safe time period, such that the patient is not put at undue risk. Regulations under this section may make provision to specific exceptions, such as applying section 62ZA to certain types of treatment under section 58A but not others, and for different cases, such as where the patient lacks the capacity or competence to consent to the treatment. This is because, while currently section 58A applies to electro-convulsive therapy only, if existing regulations are used to insert other treatments under this section, then such treatments may not necessitate the same second opinion appointed doctor certification process as for electro-convulsive therapy. Similarly, it may make sense to only provide for second opinion appointed doctor certification within specific timeframes in particular circumstances.
Treatment Section 18: Urgent electro-convulsive therapy etc.