Section 58 and consent to treatment under the Mental Health Act

What is Part 4 of the Mental Health Act?

Part 4 is the consent to treatment part of the Act. Its core is s63. A Part 4 patient can be treated for their mental disorder without consent, if the approved clinician in charge gives or directs the treatment.

Three kinds of treatment have extra safeguards: s57 for neurosurgery and hormone implants, s58 for medication after three months, and s58A for ECT. Section 62 lifts those extra rules in a genuine emergency. Patients on a CTO in the community come under Part 4A instead.

Which sections allow treatment without consent?

Guardianship gives no power to treat either (Code 26.174). Patients on the sections Part 4 excludes are in the same position as informal patients (s56(3); Code 24.11).

Treatment for the mental disorder only

Part 4 covers medical treatment for mental disorder: treatment whose purpose is to alleviate, or prevent a worsening of, the disorder or its symptoms or manifestations (s145(4)). It includes nursing, psychological intervention, and specialist habilitation, rehabilitation and care (s145(1)).

Physical treatment counts only when it's part of, or ancillary to, treating the disorder, such as treating self-inflicted wounds (Code 24.5). An unrelated physical illness is outside Part 4. See treating physical illness in a detained patient.

Part 4 and the Mental Capacity Act

• Part 4 takes over. You can't use the MCA to treat a Part 4 patient's mental disorder, and an attorney or deputy can't consent to it for them (MCA s28; Code 24.54).
• Advance refusals. Where Part 4 allows treatment over a capacitous refusal, it also allows treatment despite an advance decision. ECT is the exception, outside emergencies (Code 24.54, figure 12).
• Outside Part 4, the MCA applies normally. For a patient on s5(2), s35 or s136 who lacks capacity, the Mental Capacity Act can authorise treatment, even for the mental disorder (MCA Code 13.32).
• Consent still matters. Seek consent wherever practicable, and record capacity and consent, even when you can treat without them (Code 24.41; MCA Code 13.30).

How the three-month rule works

For the first three months, medication for mental disorder can be given under s63, with or without consent. The clock starts the first time any medicine for mental disorder is given in the current period of liability to detention (s58(1)(b); Code 25.11).

The three months are there to give time to develop a treatment plan (Code 24.40). Seek consent anyway, wherever practicable, and record the answer (Code 24.41).

• It keeps running if the section changes, if consent is withdrawn, and through any time on a CTO (Code 25.12, 25.16).
• It starts again only after a break in liability to detention: discharge without going onto a CTO, a move onto guardianship, or a restricted patient's conditional discharge (Code 25.12).
• Reminders. The managers should remind both the clinician and the patient at least four weeks before it ends (Code 25.15).

Section 58(3): Form T2 or Form T3?

Appropriate means appropriate given the nature and degree of the disorder and all the other circumstances (s64(3)). Don't ask a SOAD for a consent certificate you could give yourself, unless you genuinely can't tell whether the patient has capacity or consents (Code 25.44).

Getting a SOAD: step by step

1. Request the visit from CQC. As the clinician in charge of the treatment, that's your personal responsibility (Code 25.43).
2. Prepare the treatment proposal, with notes of the MDT discussion behind it, for the SOAD (Code 25.47).
3. For a complex or unusual regimen, consider a specialist pharmacist review first (Code 25.51).
4. Tell the SOAD about any attorney, deputy, advance decision or advance statement (Code 25.52).
5. Make sure the statutory consultees and the clinician in charge are available on the day (Code 25.49).
6. Tell the patient the outcome yourself, and show them the SOAD's reasons unless that's likely to cause serious harm (Code 25.65, 25.66).

You can act on a certificate before the written reasons arrive, though it's better to wait if there's no hurry. There's no appeal to CQC against a SOAD's opinion (Code 25.64, 25.71).

What the certificate must cover

• Every drug. By name or BNF class, including as-required (prn) medication. For a class, state how many drugs are allowed and any exclusions (Code 25.18).
• Route and maximum dose. For each drug or class. Doses above the BNF limits can be certified, with particular care (Code 25.18).
• Where it's kept. The original with the detention papers, a copy in the notes and a copy with the drug chart (Code 25.75).
• Not an instruction to treat. A certificate allows treatment. Whoever gives it must still judge that it's appropriate at the time (Code 25.72, 25.73).

When a certificate stops covering treatment

• A T2 lapses if the patient withdraws consent, loses capacity, or stops being a detained or CTO patient even briefly. One the AC signed also lapses if the AC in charge changes permanently (Code figure 15).
• A T3 lapses if a patient who lacked capacity regains it, or a patient who was refusing starts consenting or loses capacity (s60; Code figure 15).
• Serious suffering. If consent is withdrawn, a consenting patient loses capacity, or a T3 patient regains it, a course can continue pending a new certificate. The test is that stopping would cause serious suffering (s62(2); Reference Guide 23.39).
• Ask straight away. Request the SOAD at once. If the SOAD won't certify, the treatment must stop (Code 25.81).

Section 61: reporting to CQC

When treatment is given on a SOAD's T1, T3, T5, T6 or CTO11, the AC in charge must report to CQC on the treatment and the patient's condition. The report goes in with the next renewal report, and whenever CQC asks (s61(1)). Give the patient a copy (Code 25.77).

For restricted patients, the timing follows their reports to the Secretary of State (s61(2)). CQC can direct that a certificate stops covering treatment from a set date (s61(3)). A course already under way can then continue only under s62(2).

What the 2025 Act changes

When the treatment reforms start, the three months become two (2025 Act s14). A capacitous refusal will then be overridable only for a compelling reason, with a SOAD's certificate before any treatment (new s57A). The same goes for a refusal through a valid advance decision, attorney, deputy or the Court of Protection. None of this is in force yet. See the 2025 Act.

When can you use section 62?

Section 62 lifts the certificate rules in s57, s58 and s58A when treatment is immediately necessary. It's a strict test. An urgent need, or a belief that treatment would help, isn't enough (Code 25.40).

Irreversible means unfavourable irreversible physical or psychological consequences. Hazardous means significant physical hazard (s62(3)). For ECT, only (a) and (b) apply (s62(1A)).

What section 62 does and doesn't do

• It removes the certificate requirement, nothing more. The rest of Part 4 still applies, so the treatment still needs authority, usually s63 (Code 25.41).
• It lasts only while the need does. Once treatment stops being immediately necessary, the certificate rules return, so each further dose needs the same justification (Code 25.41).
• It isn't for a planned course. Ask for a SOAD as soon as you rely on it.
• It isn't a power to treat non-Part 4 patients. Someone on s5(2), s135 or s136 is in the same position as an informal patient: consent, or the MCA (Code 18.41, 16.72).

Continuing treatment pending a new certificate

Section 62(2) is a separate rule. If consent is withdrawn, or CQC withdraws a certificate, a course already under way can continue while a new certificate is sought. The AC in charge must think that stopping would cause serious suffering (Reference Guide 23.39; Code 25.79).

Ask for a SOAD at once, and stop immediately if they won't certify (Code 25.81). It can't keep ECT or s57 treatment going against a capacitous refusal, because no certificate could ever follow (Code 25.80).

Recording urgent treatment

• What and why. Record the treatment, why it was immediately necessary and how long it was given for, on your trust's form if it has one (Code 25.42).
• Which ground. Name the paragraph of s62(1) you're relying on, and say why it's met.
• Audit. The managers should monitor urgent treatment so it isn't used inappropriately or too often (Code 25.42).

Urgent treatment on a CTO

In the community, a CTO patient with capacity who refuses can't be treated, even in an emergency. Recall is the route (Code 24.17). For a CTO patient who lacks capacity, s64G allows immediately necessary treatment. Force is allowed only if the treatment is needed to prevent harm to them, and in proportion to that harm (Code 24.24 to 24.27).

What the 2025 Act changes

The serious suffering ground will no longer allow medication over a capacitous refusal (2025 Act s17). Urgent ECT over a capacitous refusal will need a SOAD's certificate under a new s62ZA. Neither is in force yet. See ECT and section 58A.

What section 57 covers

Section 57 covers any surgical operation for destroying brain tissue or its functioning, and surgical implantation of hormones to reduce male sex drive (s57(1); reg 27(1); Code 25.7). Regulations can add other treatments.

It applies to every patient, informal or detained (s56(1)). Outside a s62 emergency, it's the one rule in Part 4 that always needs the patient's own consent.

The requirements: Form T1

1. The patient consents.
2. A SOAD, and two people appointed by CQC who aren't doctors, certify that the patient is capable of understanding the treatment and has consented (s57(2)(a)).
3. The SOAD certifies that it's appropriate, after consulting a nurse and someone who's neither a nurse nor a doctor, both involved in the treatment. The second is typically a psychologist, social worker or therapist (s57(2)(b), (3); Reference Guide 23.21).
4. Both parts go on Form T1. The consent and certificate can cover a plan of treatment, not just a single procedure (s59).

Before you refer

• Agree the process. Hospitals offering these treatments are strongly encouraged to agree procedures with CQC (Code 25.9).
• Check capacity and willingness yourself. Do it before you ask CQC to start the process. Explain the rules, and make clear that being willing doesn't mean the treatment will go ahead (Code 25.10).
• No substitute consent. The MCA can't be used to give it, and attorneys and deputies can't consent to it (Code figure 12).
• An IMHA. An informal patient discussing s57 treatment qualifies for an IMHA (s130C(3)(a)).
• Reports afterwards. Treatment given on a T1 is reported to CQC, which can direct that the certificate no longer applies (s61(1), (3)).

Withdrawal of consent and emergencies

The patient can withdraw consent at any time before the treatment is complete, and the rest then counts as a new treatment needing fresh certification (s60(1)). The T1 also stops applying if they lose capacity (Code figure 15).

Section 62 can lift s57 in an emergency, but irreversible treatment is allowed only to save life (s62(1)). Neurosurgery is irreversible, so only the save-life ground could ever apply.

Sections 57, 58 and 58A compared