Rights to NHS treatment

What if I am unable to make decisions because my mental capacity is impaired?
The case of Tony Bland, victim of the Hillsborough disaster, set out the legal test as to whether a person has the capacity necessary to make decisions about treatment. It must be determined whether the person can understand and retain information which is provided and whether he or she can weigh it up and make a choice. If a patient is ‘incapacitated’, either temporarily (e.g. due to mental illness) or permanently (e.g. in a coma) he or she is entitled to be treated in his or her best interests. Relatives cannot consent to treatment on the behalf of someone who lacks mental capacity, unless the patient is under 18.

See Mental Capacity Act for more information.

What if I make an advance statement about treatment?
It must be remembered that, while the doctors must take the advance statement into account, the Mental Health Act 1983 can be used to enforce treatment which the patient has rejected in the advance statement. Also, doctors cannot be required to provide treatment which they think is not in the patient's best interests, nor do something which is not legal (e.g end a patient’s life).

Do I have the right to a second opinion?
There is no legal or enforceable right to a second opinion. But, the patient’s charter (1996 but since withdrawn) pointed out that someone has a right to a second opinion if the GP agrees to make the referral. This could happen if the GP is not convinced that the patient’s psychiatrist has reached the right diagnosis or the most appropriate treatment. Because diagnoses like Schizophrenia have very serious implications for the patient and there is sometimes uncertainty about the diagnosis, there are strong arguments as to why a second opinion should be available. NICE clinical guidance says that patients newly diagnosed with Schizophrenia should have a second opinion if they wish.

See Getting a second opinion for more information.

What is the National Service Framework (NSF) for mental health?
This sets out the standards which are to be achieved by service providers but does not give individuals any new rights. Even so, it creates legitimate expectations.

What about the National Institute of Clinical Excellence(NICE)?
This was set up to give guidance to health professionals on quality standards and also to patients, on what they should expect. Professionals are expected to take guidance fully into account when using their clinical judgement, but they are allowed some discretion. If a doctor does not seem to be providing care or treatment of the standard described in the guideline, then the outcome could be a successful complaint, possible disciplinary proceedings or court action if the patient is harmed in some way. National Institute for Health & Cinical Excellence (NICE)