Section 63 and treating physical illness in a detained patient

What is section 63 of the Mental Health Act?

Section 63 is the general power to treat. A Part 4 patient's consent isn't needed for medical treatment for the mental disorder they're suffering from, if it's given by or under the direction of the AC in charge. Treatments under s57, s58 and s58A have their own rules (see consent to treatment).

The words that matter are ‘for the mental disorder’. The Act means treatment whose purpose is to alleviate, or prevent a worsening of, the disorder or its symptoms or manifestations (s145(4)). That's why a section doesn't cover a chest infection.

Physical treatment that counts as treating the disorder

A physical treatment falls under s63 when it's part of, or ancillary to, treatment for the mental disorder (Code 24.5). So does physical treatment aimed at the disorder's symptoms or manifestations (Code 13.37).

• Self-harm wounds. Treating wounds inflicted as a result of the mental disorder is the Code's own example (Code 24.5).
• Clozapine blood tests. The Code gives these as an example of physical treatment the Act covers (Code 13.37).
• Nasogastric feeding in anorexia nervosa. Restoring nutrition treats a manifestation of the disorder, and the Code treats it as medical treatment for mental disorder (Code chapter 19, example B).
• The wide meaning of treatment. Nursing, psychological intervention and specialist habilitation, rehabilitation and care all count (s145(1)).

Physical illness the section doesn't cover

An unrelated physical illness sits outside Part 4, whatever section the patient is on. Treating pneumonia, a fracture, cancer or diabetes needs consent, or the MCA if the patient lacks capacity for that decision (Code 24.5, 13.38).

Detention changes nothing about that. The same is true on the holding powers, ss135 and 136, a CTO and guardianship: none of them gives a power to treat a physical illness. If you're unsure which law applies, see MHA or MCA.

Can a detained patient refuse treatment for a physical illness?

Yes, if they have capacity for that decision. A detained patient with capacity can refuse antibiotics, surgery or investigations like anyone else. Capacity is presumed until it's shown to be lacking, and an unwise decision doesn't prove incapacity (MCA s1(2), (4)).

Mental disorder doesn't mean someone lacks capacity, and capacity is specific to each decision (Code 24.32). Someone can lack capacity about their antipsychotic and still have it about an antibiotic.

Assessing capacity for a physical treatment decision

• The test. Can they understand the relevant information, retain it, use or weigh it, and communicate a decision? If not, is that because of an impairment of, or a disturbance in the functioning of, the mind or brain (MCA ss2, 3)? See how to assess capacity.
• Delusions. A delusion about the treatment may stop them using or weighing the information. It doesn't make the treatment part of treating the psychosis.
• Compulsions. Someone with anorexia nervosa may understand the risks of not eating but be unable to weigh them against the compulsion (MCA Code 4.22).
• Fluctuation. If capacity varies and the decision can wait, consider waiting until they can decide (Code 24.32). Treating the mental disorder first may bring capacity back (MCA Code 13.33).
• Record it. Write the assessment up fully in the notes (Code 24.32).

Treating under the Mental Capacity Act

• Best interests. If they lack capacity, you can treat under s5 of the MCA, in their best interests and following its principles. The MCA applies to a detained patient's physical illness in the normal way (MCA Code 13.33).
• Restraint. Only if it's necessary to prevent harm to them, and proportionate to the likelihood and seriousness of that harm (MCA s6).
• Attorneys and deputies. The MCA doesn't let you override a decision an attorney or deputy makes within their authority (MCA s6(6)). While the court decides, you can still give life-sustaining treatment or act to prevent a serious deterioration (s6(7)).
• IMCAs. Serious medical treatment for a physical illness, such as cancer treatment, brings the right to an IMCA if there's nobody appropriate to consult (MCA s37; MCA Code 10.50).
• Deprivation of liberty. If the physical treatment is the only reason they need holding in hospital, the MHA can't authorise it. You need DoLS or a Court of Protection order (Code 13.39).

Advance decisions and a section

Except for ECT, Part 4 can override an advance refusal of treatment for mental disorder, just as it can a capacitous refusal. It doesn't touch an advance decision refusing other treatment. A valid, applicable refusal of a physical treatment binds you, detained or not (MCA Code 13.35, 13.37).

To refuse life-sustaining treatment, it must be in writing, signed and witnessed, and say it applies even if life is at risk (MCA s25(5), (6)). See advance decisions.

Inside or outside Part 4?

Physical healthcare is part of the job

The Code expects physical healthcare for patients under the Act to match anyone else's, with physical needs assessed routinely alongside psychological ones (Code 24.57). Detained patients are at particular risk of comorbidities, so providers should screen for conditions such as heart disease and diabetes (Code 24.58).

How to write it up

1. What's proposed, and by whom.
2. Why it isn't treatment for the mental disorder, or why it is.
3. Capacity for this decision: the information given and how they responded.
4. Their wishes, any advance decision, attorney or deputy, and who you consulted.
5. The plan: their own decision, or a best interests decision under the MCA, with any restraint and why it's proportionate.

A worked example

The amputation isn't treatment for his schizophrenia, so s63 doesn't help. Assess his capacity for this decision. The delusion may stop him weighing the risks, or he may understand them and still refuse. If he has capacity, his refusal stands. If he doesn't, the MCA applies, with an IMCA if there's nobody else to consult. If waiting is safe, treating the psychosis first may restore his capacity.