When a second opinion appointed doctor attends policy

1 Introduction

Section 58 of the Mental Health Act 1983 (MHA1983) covers treatment given to detained patients, which requires either, the patient’s consent or a second opinion.

Treatments which fall under this section would be the administration of:

ECT
medication after the first 3-month period

In the case of non-consenting patients, the above treatments cannot go ahead without the patient having been seen by a second opinion appointed doctor (SOAD) unless the criteria for treatment under section 62 are met (please refer to trust guidelines for nursing staff on the use of section 62, in the policies section on the web site).

1.1 This policy should be read within the context of the following policies and procedures

Consent to treatment policy.
Mental Capacity Act (2005) policy.

1.2 Underpinning acts, policy and guidance documents

Department of Health (2005) Mental Capacity Act (the stationery office).
Department of Health (2007) Mental Capacity Act: Code of Practice (the stationery office).

2 Purpose

The purpose of this policy is to:

provide clinical staff with a clear framework in which to operate the legal requirements prior to and following the attendance of a SOAD
provide a consistent approach across the trust’s care groups in its application
detail the responsibilities and duties of staff in relation to SOAD attendance
state what training is available to staff in relation to the Mental Health Act and in particular prior to and following SOAD attendance
detail what arrangements the trust has in place to monitor compliance with the legal requirements of the CQC prior to and following SOAD attendance

3 Scope

The contents of this policy apply to all mental health and learning disability clinical staff who work within the trust.

4 Responsibilities, accountabilities and duties

4.1 Mental health legislation committee

The trust’s mental health legislation committee is responsible for:

overseeing the implementation of the Act within the organisation
the review and issuing of all policies and procedures which relate to the Act
monitoring the trust’s compliance with the legal requirements of the Act
undertaking audit work and agreeing action plans in relation to the Act
providing an annual report on Mental Health Act activity within the trust to the board of directors

4.2 Responsible clinician

The responsible clinician is responsible for arranging the attendance of the SOAD by completing the necessary request form via the care quality commission’s website and forwarding a copy of this to the Mental Health Act office.

4.3 Registered clinical staff

In relation to this policy all registered clinical staff must be aware of and comply with the contents by ensuring that:

the patient is notified of the SOAD appointment
the patient is asked if they wish to have an advocate or relative or carer present and if so, make arrangements for their attendance
the details are recorded in the ward diary
the two required consultees will be available on the day of the appointment

Registered clinical staff should also:

attend any training which is provided in relation to this policy
complete all the necessary documentation required
implement any action plans which arise from the audit of this policy

4.4 Care coordinator and lead professional

In relation to this policy all care coordinators and lead professionals must be aware of and comply with the contents by providing their patients subject to community treatment orders (CTO) with information about:

the date, time and venue of the SOAD appointment
whether the patient wishes to have an advocate or relative or carer present and if so, make arrangements for their attendance
the details are recorded in the patients clinical record
that the 2 required statutory consultees will be available on the day of the appointment

Care coordinators and lead professionals should also:

attend any training which is provided in relation to this policy
complete all the necessary documentation required
implement any action plans which arise from the audit of this policy

4.5 Non-registered clinical staff

Any non-registered staff working within clinical services must:

be aware of this policy and its contents
direct any patient who has a query about their legal rights to a member of registered staff
report any breaches they become aware of in relation to this policy

4.6 Statutory consultees

In relation to this policy the statutory consultees can expect to have a private discussion with the SOAD and in the course of the discussion they should be able to comment on:

the proposed treatment and the patient’s ability to consent to it
their understanding of the past and present views and wishes of the patient
other treatment options and the way in which the decision to treat was arrived at
the patient’s progress, and view of the patient’s relatives or carers
the implications of imposing treatment upon a patient who does not want it and the reasons why the patient is refusing treatment

It is the consultees’ responsibility to consider whether or not they are sufficiently involved and knowledgeable about the patient in order to fulfil the role of consultee. If they do not feel able to act in this capacity, or if they feel there is someone else who could better undertake this role, they should make this known to the nurse in charge and SOAD in good time so that alternative arrangements can be made.

4.7 Second opinion appointed doctor (SOAD)

The SOAD’s role is to provide an additional safeguard to protect the patient’s rights, primarily by deciding whether certain treatments are appropriate and issuing certificates accordingly. Although appointed by the care quality commission (CQC), SOADs act as independent professionals and must reach their own judgement about whether the proposed treatment is appropriate.

4.8 Mental Health Act office

Within each of the trust localities where inpatient services are provided there is a Mental Health Act office. In relation to this policy the staff working in these offices are responsible for:

ensuring the relevant documentation is fully completed by the RC, in a timely manner, in respect of 3 month medication rules
ensuring the relevant documentation is fully completed by the RC, in a timely manner, in respect of 1 month medication rules for CTO patients
ensuring the relevant documentation is fully completed by the RC, in respect of ECT requests and forwarded to the CQC as a matter of urgency
ensuring the relevant paperwork is available, on the day, for the SOAD’s attendance

5 Procedure and implementation

5.1 Whose responsibility is it to arrange the attendance of the SOAD?

It is clear within the MHA1983 that the responsibility for arranging for the attendance of the SOAD lies with the patient’s responsible clinician (RC) and staff should refer to the following procedures.

In the case of patients subject to a community treatment order (CTO) the initial request for the SOAD will be made by the RC initiating the CTO (for example, the inpatient RC, where appropriate) but should be made in consultation with their community RC, where appropriate.

Once the patient’s RC has made the request for the attendance of a SOAD and completed the SOAD request form via the CQC website, ensuring that the MHA administrator’s name is inserted onto the form where the “other information” is requested, an email will be generated via the CQC to notify the MHA Office that the request has been made and will allow the MHA Office to monitor the request.

5.2 What is the role of the SOAD?

The SOAD’s role is to provide an additional safeguard to protect the patient’s rights, primarily by deciding whether certain treatments are appropriate and issuing certificates accordingly. Although appointed by the CQC, SOAD’s act as independent professionals and must reach their own judgement about whether the proposed treatment is appropriate.

When deciding whether it is appropriate for treatment to be given to a patient, SOAD’s are required to consider both the clinical appropriateness of the treatment to the patient’s mental disorder and its appropriateness in the light of all the other circumstances of the patient’s case

SOAD’s should, in particular:

seek to understand the patient’s views on the proposed treatment, and the reasons for them
give due weight to the patient’s views, including any objection to the proposed treatment and any preference for an alternative
consider the appropriateness of alternative forms of treatment, not just that proposed
balance the potential therapeutic efficacy of the proposed treatment against the side effects and any other potential disadvantages to the patient
take into account any previous experience of comparable treatment for a similar episode of disorder
give due weight to the opinions, knowledge, experience and skills of those consulted

5.3 Preparing for the visit

5.3.1 Once the patient’s RC has made the request for the attendance of the SOAD

They should:

make an entry in the patient’s clinical record detailing why the SOAD request has been made
record details of the proposed treatment plan
record what discussions have taken place with the patient in relation to the proposed treatment?
ensure they are available to meet with the SOAD if necessary, and in the event they are not available, provide contact details

The RC should ensure that information is available for the SOAD for those patients who lack the capacity to consent to treatment under section 58A, where treatment may not be given if:

a valid and applicable advance decision has been made by the patient under the MCA (2005) refusing the treatment in question
a suitable authorised attorney or deputy objects to the treatment on the patient’s behalf
the treatment conflicts with a decision of the court of protection which prevents the treatment being given

5.3.2 The Mental Health Act office

They will:

where contacted in advance, liaise with the CQC regarding the attendance of the SOAD
agree a date, time and venue for the SOAD visit, in liaison with the two statutory consultees and the Ward or care coordinator and lead professional

5.3.3 The ward or care coordinator and lead professional will be notified by the Mental Health Act office of the date, time, venue and name of the SOAD attending, where contacted in advance

The nurse in charge or care coordinator and lead professional must then ensure that:

the patient is notified
the patient is asked if they wish to have an advocate or relative or carer present and if so, notify the mental health act office so that arrangements for their attendance can be made
the details are recorded in the ward or care coordinator and lead professional diary

5.4 Who can be a statutory consultee

In relation to this policy the SOAD is required to consult two people, “statutory consultees”, before issuing certificates approving treatment. One of the statutory consultees must be a nurse, the other must not be either a nurse or a medical doctor. Both must have been professionally concerned with the patient’s medical treatment, and neither may be the clinician in charge of the proposed treatment or the responsible clinician. They should be people whose knowledge of the patient and the patient’s treatment can inform the SOAD when making decisions as to the patient’s capacity to consent to or refuse treatment and the appropriateness of the proposed treatment, and will commonly be members of the wider Multi Disciplinary team.

5.5 Prior to the appointment

The Mental Health Act office will:

where contacted in advance, contact the two statutory consultees to remind them of the date, time and venue
ensure that a private room is available for the SOAD to interview the patient
arrange for the following documents are available on the day of the visit appointment
- the patient’s original detention papers
- all the patient’s clinical record
- access to the patient’s medication record on SystmOne

5.6 On the day of the appointment

5.6.1 The nurse in charge, care coordinator and lead professional

The nurse in charge, care coordinator and lead professional should:

remind the patient of the time of the SOAD appointment, (For inpatients, in the event of there being a high risk that the patient will absent themselves from the ward in order to avoid the appointment, consideration should be given to the need for them to be cared for on close 1-to-1 observations until after the SOAD appointment has taken place)
have the following documents ready:
- all the patient’s clinical record
- access to patient’s medication record on SystmOne

5.6.2 The statutory consultees

Expect to have a private discussion with SOAD and in the course of the discussion they should be able to comment on:

the proposed treatment and the patient’s ability to consent to it
their understanding of the past and present views and wishes of the patient
other treatments options and the way in which the decision to treat was arrived
the patient’s progress, and view of the patient’s relatives or carers
where relevant, the implications of imposing treatment upon a patient who does not want it and the reasons why the patient is refusing treatment

It is the consultee’s responsibility to consider whether or not they are sufficiently involved and knowledgeable about the patient in order to fulfil the role of consultee. If they do not feel able to act in this capacity, or if they feel there is someone else who could better undertake this role, they should make this known to the nurse in charge and SOAD in good time so that alternative arrangements can be made.

The consultee must ensure that they make a record of their discussions with the SOAD in the patient’s clinical record.

Note: Occupational therapists who are acting as a statutory consultee should refer to the trust’s policy for occupational therapists providing Mental Health Act second opinions.

5.7 What happens if the SOAD disagrees with the proposed treatment plan?

In the event that the SOAD disagrees with the treatment proposed by the patient’s RC, they should discuss this with them personally and record their reasons in the patient’s clinical record.

Any opinion given by the SOAD cannot be appealed against, but if the patient’s clinical presentation changes, the RC can request a further second opinion, and in such cases it is the policy of the CQC to ask the same SOAD to return.

5.8 Action once the form (T1, T3, T4, T6 and CTO11) has been completed

5.8.1 In the Mental Health Act office

The Mental Health Act Office will:

scan and upload a copy of the form onto SystmOne
check the form and forward it for scrutinising using the local form for the scrutinising of SOAD forms T1, T2, T3, T4, T5, T6, section 62 and high dose anti: psychotics (appendix B)
following scrutiny maintain the original form on the MHA file
re request a SOAD for the notification of any changes made via the receipt of the SOAD request form for example, change of consultant, medication dosage, change of medication.
where changes to the form have been completed, scan and upload a copy of the Form onto SystmOne and “mark in error” the old copy
ensure that the prescriber prescribes a “placeholder” onto the patient’s drug card to alert other healthcare professionals to its presence and validity

Note, if the patient is in a care home or residential home copies of the forms must be issued to the home manager with a copy of the letter on SystmOne titled: MHA nursing home manager.

5.8.3 By the patient’s RC

The RC will:

communicate the results of the SOAD visit to the patient. It is the personal responsibility of the clinician in charge of the treatment to communicate the results of the SOAD visit to the patient. This need not wait until any separate statement of reasons has been received from the SOAD. But when a separate statement of reasons has been received from the SOAD, the patient should be given the opportunity to see it as soon as possible, unless the clinician in charge of the treatment (or SOAD) thinks that it would be likely to cause serious harm to the physical or mental health of the patient or any other person. (MHA: Code of Practice 2015 26.66)
make a record of their actions in relation to providing patients with the reasons supplied by SOADs on the local RDASH form 5a “communication of SOAD decision by responsible clinician” (appendix A)

6 Training implications

6.1 Responsible clinicians

How often should this be undertaken: Once when the revised policy is launched.
Length of training: Not applicable.
Delivery method: New policy to be presented at the trust wide consultants meeting.
Training delivered by whom: Medical director.
Where are the records of attendance held: Consultant PDR, appraisal, training records.

6.2 Registered clinical staff (across inpatient and community services)

How often should this be undertaken: Once when the revised policy is launched. Once for new starters within the trust.
Training delivered by whom: Once when the revised policy is launched. Once for new starters within the trust.
Where are the records of attendance held: Staff training attendance records held at ward. Level, electronic staff record system (ESR).

7 Monitoring arrangements

7.1 All detained patients on treatment sections will have a recorded date of the consent to
treatment date of expiry

How: All review of treatment dates are on the weekly Expiries list circulated to all staff involved with detained patients.
Who by: MHA office.
Reported to: The relevant local MH legislation monitoring group, where data will be forwarded, by exception, to the mental health legislation committee.
Frequency: Compliance audits with results and action plans developed.

7.2 Feedback from any monitoring visits by the CQC which specifically relates to consent to
treatment compliance

How: Written report which is issued following a visit.
Who by: Care group triumvirate.
Reported to: As above.
Frequency: Following a CQC MHA visit. Ward visits are undertaken on an 18 month to 2 yearly cycle.

8 Equality impact assessment screening

To download the equality impact assessment for this policy, please follow this link: Equality impact assessment.

8.1 Privacy, dignity and respect

The NHS Constitution states that all patients should feel that their privacy and dignity are respected while they are in hospital. High Quality Care for All (2008), Lord Darzi’s review of the NHS, identifies the need to organise care around the individual, ‘not just clinically but in terms of dignity and respect’.

Consequently, the trust is required to articulate its intent to deliver care with privacy and dignity that treats all service users with respect. Therefore, all procedural documents will be considered, if relevant, to reflect the requirement to treat everyone with privacy, dignity, and respect, (when appropriate this should also include how same sex accommodation is provided).

8.1.1 Indicate how this will be met

No issues have been identified in relation to this policy.

8.2 Mental capacity act

Central to any aspect of care delivered to adults and young people aged 16 years or over will be the consideration of the individual’s capacity to participate in the decision-making process. Consequently, no intervention should be carried out without either the individual’s informed consent, or the powers included in a legal framework, or by order of the court.

Therefore, the trust is required to make sure that all colleagues working with individuals who use our service are familiar with the provisions within the Mental Capacity Act (2005). For this reason, all procedural documents will be considered, if relevant to reflect the provisions of the Mental Capacity Act (2005)to ensure that the rights of individual are protected, and they are supported to make their own decisions where possible and that any decisions made on their behalf when they lack capacity are made in their best interests and least restrictive of their rights and freedoms.

8.2.1 Indicate how this will be achieved

This policy will be implemented in accordance with the guiding principles of the Mental Capacity Act 2005 (section 1).

9 Associated documents

10 References

Consent to treatment policy.
Mental Capacity Act (2005) policy.
Department of Health (2005) Mental Capacity Act (the stationary office).
Department of Health (2007) Mental Capacity Act: Code of Practice (the stationary office).
Department of Health (2015) Code of Practice, Mental Health Act 1983.
Jones R (2009) Mental Health Act Manual, Seventeenth Edition, Sweet and Maxwell.

11 Appendices

Document control

Version: 7.
Unique reference number: 103.
Ratified by: Mental health legislation operational group.
Date ratified: 14 October 2021.
Name of originator or author: MHA manager.
Name of responsible individual: Executive medical director.
Date issued: 8 November 2021.
Review date: September 2024.
Target audience: Mental health and learning disability clinical staff.
Description of change: Review and update.

Page last reviewed: April 24, 2024
Next review due: April 24, 2025

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