Mental health policy and practice across Europe: an overview

328 Mental health policy and practice
despite his or her competency to refuse it, the Court considered that the compulsory
treatment of a competent patient has the potential to breach Articles 8
and 3, even if the proposed treatment complies with the legislative requirements.
In deciding whether treatment could be given in these circumstances,
the Court considered factors such as the consequences of the patient not receiving
the proposed treatment, its possible side-effects and whether there were any
other less invasive treatments (R on the application of PS and others 2003).
Consent to treatment: issues for legislators
Given the lack of consensus on the circumstances in which treatment without
consent may be given, this issue will need to be explored at national level before
legislation is introduced. Such dialogue should take into account that treatment
without consent relates to two different situations.
Incapacity
The individual concerned lacks the capacity to decide whether to accept or
refuse the treatment, but it is proposed to give the treatment in the absence of
the person’s consent. In such situations the following questions are relevant:
• How is the person’s capacity to make treatment decisions determined and
who should be involved in this decision?
• On what basis can the treatment be given and who should be involved in
making this decision? For example, will this apply to all treatment or just
treatment for mental disorder?
• Will there be any restrictions on the types of treatment that can be given or
any special safeguards for certain treatments? For example, providing that
psychosurgery cannot be given without consent, specifying in what circumstances
(if any) electroconvulsive therapy (ECT) can be given without consent
and prohibiting ‘unmodified’ ECT.
• Will an ‘advance directive’ (also referred to as a ‘psychiatric will’) be
respected? The Salize Report (Salize et al. 2002: 3.4) describes this term as ‘the
predefined instructions of a patient about the preference or refusal of certain
treatments or interventions in the event of any later incapacity to decide due
to their mental state’, but definitions may vary. If included in legislation, a
clear definition of the term must be provided, in addition to the conditions
which must be met in order for such a directive to be valid.
Competent refusal
The individual has the capacity to make decisions about treatment and is
refusing such treatment, but it is proposed to give the treatment despite the
individual’s refusal. In such situations the following questions are relevant:
• Will the compulsory treatment provisions only apply to treatment for mental
disorder?
• In what circumstances can the individual’s refusal be overridden? For
example, where there is risk to others? Risk of harm to self? The person
presents a suicide risk? Or risk to the health of the individual (for example,
the person’s health will deteriorate if not given the treatment)?