Can a Patient with Capacity Refuse ECT Under the Mental Health Act?
Yes, a patient with adequate decision-making capacity can refuse ECT even when detained under the Mental Health Act, with very limited exceptions. 1
Legal Framework for ECT Refusal
The consent requirements for ECT are uniquely stringent compared to other psychiatric treatments:
- The patient's consent OR a second opinion is required before administering ECT, even when the patient is detained under mental health legislation 1
- ECT cannot be given if the patient has made an advance decision refusing ECT, or if a health and welfare attorney or court-appointed deputy refuses the treatment 1
- Refusal of treatment by an adult with capacity is legally binding, even if refusal is likely to result in the patient's death 1, 2
The Critical Exception: Emergency Situations Only
ECT can only be administered to a capacitated patient who refuses in extremely narrow circumstances:
- When the patient lacks capacity OR refuses treatment, ECT can be given in an emergency if the authorized practitioner certifies both the patient's lack of capacity or refusal AND that the treatment is likely to alleviate or prevent deterioration in the patient's condition 1
- This emergency provision extends to the use of general anesthesia for administering ECT 1
Key Distinction: Mental Health Act Detention ≠ Loss of Capacity
A common pitfall is assuming that detention under mental health legislation means automatic loss of capacity:
- A person detained under the Mental Health Act should not be assumed to be incapable of providing valid consent for medical, surgical, or treatment decisions 1, 3
- Mental illness alone does not automatically mean incapacity 3, 4
- Capacity is decision-specific, meaning a patient may have capacity to refuse ECT even if they lack capacity for other complex decisions 1, 2
Capacity Assessment Requirements
Before overriding a refusal, formal capacity assessment must demonstrate the patient cannot:
- Understand the benefits, risks, and alternatives to ECT 4
- Appreciate the consequences of their decision 4
- Demonstrate reasoning in their thought process 4
- Communicate their wishes 4
The refusal does not need to be sensible, rational, or well-considered to be valid if the patient has capacity 2
Documentation Imperatives
If proceeding with ECT over refusal in an emergency:
- Create a clear record of the grounds for determining lack of capacity 2
- Document why this constitutes an emergency requiring immediate treatment 1
- Record how the treatment is likely to alleviate or prevent deterioration 1
- Note consultation with family members when possible, though failure to do so should not compromise emergency care 1
Additional Safeguards for ECT
Beyond capacity assessment, ECT requires:
- Consultation with at least one other psychiatrist experienced in ECT before the initial decision to treat 1
- The second psychiatrist should review the comprehensiveness and appropriateness of previous treatment efforts 1
- Informed consent is a process occurring within a therapeutic alliance, not a legal transaction at a single point in time 1