Section 20 — Capacity to consent to treatment

(1) The Mental Health Act 1983 is amended as follows.

(2) In section 57 (treatment requiring consent and a second opinion), in subsection (2)(a), for “is capable of understanding the nature, purpose and likely effects of” substitute “has capacity to consent to”.

(3) In section 58 (treatment requiring consent or a second opinion), in subsection (3)—

(a) in paragraph (a), for “is capable of understanding its nature, purpose and likely effects” substitute “has capacity to consent to it”;

(b) in paragraph (b), for “is not capable of understanding the nature, purpose and likely effects of” substitute “lacks capacity to consent to”.

(4) In section 58A (electro-convulsive therapy etc)—

(a) in subsection (3)(c), for “is capable of understanding the nature, purpose and likely effects of” substitute “has capacity to consent to”;

(b) in subsection (4)(c), for sub-paragraph (i) (but not the “and” at the end) substitute— (i) that the patient has capacity to consent to the treatment and has consented to it, ;

(c) in subsection (7), for the words from “is not” to the end substitute “lacks capacity to consent to the treatment”;

(d) omit subsection (9).

(5) In section 60 (withdrawal of consent)—

(a) in subsection (1A)(b), for the words from “be” to the end substitute “have capacity to consent to the treatment”;

(b) in subsection (1C)—

(i) in paragraph (a), for the words from “is not” to “effects of” substitute “lacks capacity to consent to”;

(ii) in paragraph (b), for the words from “becomes” to the end substitute “gains capacity to consent to that treatment”.

(6) In section 64 (supplementary provisions for Part 4), after subsection (1B) insert— (1BA) In relation to a patient who is aged under 16, references in this Part to capacity are to be read as references to competence. (1BB) In relation to a patient who is aged 16 or over— (a) references in this Part to lacking capacity are to lacking capacity within the meaning of the Mental Capacity Act 2005, and (b) references in this Part to having, ceasing to have or gaining capacity are to be read accordingly. (1BC) References in this Part— (a) to an advance decision are to an advance decision (within the meaning of the Mental Capacity Act 2005) made by the patient; (b) to a donee are to a donee of a lasting power of attorney (within the meaning of section 9 of the Mental Capacity Act 2005) created by the patient, where the donee is acting within the scope of their authority and in accordance with that Act; (c) to a deputy are to a deputy appointed for the patient by the Court of Protection under section 16 of the Mental Capacity Act 2005, where the deputy is acting within the scope of their authority and in accordance with that Act. (1BD) In this Part “valid and applicable”, in relation to an advance decision, means valid and applicable to the treatment in question in accordance with section 25 of the Mental Capacity Act 2005.