Sir: Having recently been involved in a difficult clinical dilemma, we have had it brought to our attention that our usual practice and what we believed to be the common practice of psychiatrists throughout the country is in fact contrary to the Code of Practice.

The dilemma involved the need to resort to the use of the Mental Health Act 1983 (MHA) when wanting to treat a compliant mentally incapacitated patient (due to mutism secondary to severe psychotic depression) with electroconvulsive therapy (ECT). Nobody would dispute the need to detain a mentally ill patient who verbalises refusal to consent to treatment. The difficulty comes when deciding to treat a patient who is uncommunicative from a functional or organic mental illness, with medication or ECT. Our common practice is to use the MHA in these patients, even though they have not actually refused treatment.

Having carried out a postal survey of all the consultants in elderly mental illness and their senior registrars in south and west Wales (20 responded out of 22), all agreed with this course of action.

It was brought to our attention by Richard Jones, a leading specialist in Mental Health law, that the criteria for admission under Sections 2 or 3 of the Act cannot be satisfied in respect of a compliant mentally incapacitated patient (i.e. one who is not “persistently and/or purposely” attempting to leave the hospital (see paragraph 19.27 of the Code of Practice; Department of Health & Welsh Office, 1999, and paragraphs 1- 626A of the sixth edition of the Mental Health Act Manual; Reference JonesJones, 1999). Hence, ECT (being a medical treatment for mental disorder) can and should be given to a mentally incapacitated patient under common law as long as the requirements for “treatment of those without capacity to consent” (see paragraph 15.19 of Code of Practice; Department of Health, 1993, and paragraph 15.21 Code of Practice, published 1999) are satisfied.

Perhaps it is significant that this has come to our attention following the Bournewood judgement which clarified our position in treating, under common law, those patients who are compliant but mentally incapacitated. Most would agree that this refers to individuals with learning difficulties or dementia or who are temporarily incapacitated from delirium, and these are indeed specified in paragraph 15.20 of the newly published Code of Practice. It unfortunately does not include such cases as mutism secondary to severe psychotic depression.

We are uncertain how such a widely held practice, which appears to contradict the Code of Practice, originated. We would be interested to hear from anyone who feels they can shed light on this interesting clinical conundrum.