Estimated reading time at 200 wpm: 15 minutes

This article aims to dissect and clarify intricate aspects of the Mental Health Act 1983 (MHA), particularly regarding treatment authorisation under Section 58 and emergency powers under S62(1). This is vital for all healthcare professionals involved in the care of patients under the Act. See background in Section 62(1): the hard boundary between law and ethics – Investigative Psychiatry, Feb 2025.

The core issues that emerge are non-delegation of Statutory duties to persons who are not the Approved Clinician or Responsible Clinician and illegality of PRN medication under S62(1).

My persistent interest in S62(1) is motivated by pain experienced several years ago. Institutional expectation that I should exceed statutory authority led to me being referred to the GMC for not prescribing outside a T3 certificate when a patient’s suffering was ‘less than serious.’ Six months of professional uncertainty followed this referral for lawful practice. The GMC then dropped the issue after a preliminary investigation – and that was the end of that. Such institutional misunderstanding of statutory authority revealed how misguided healthcare organisations can become.

The situation was repeated in a different way more recently. Read the following: ‘A senior nurse argued that all mental health professionals have an ethical duty to take all reasonable steps to prevent harm to patients. They contended that refusing to invoke Section 62 could contravene this duty, as the refusal clearly leaves the patient at heightened risk. The nurse consultant emphasised that professional bodies stress the importance of acting in emergencies to preserve life and prevent harm, and expressed their view that prescribing PRN anti-psychotic medication for the patient for nurses to administer in high risk scenarios would be both proportionate and necessary.’ [Caution: the latter is paraphrased and very close to the original quotation. It does not identify an individual to the public, though the individual may be able to identify themselves if they come across this article. It is factual and does not defame an individual.]

For those who whimsically come to an idea that these articles on S62(1) are about me ‘blowing off’, if you stick around you will discover the relevance of the above that has noting to do with me. What follows is the painstaking dissection.

1. Approved Clinician (AC) and Responsible Clinician (RC)

• Approved Clinician (AC): This is a mental health professional (who could be a psychiatrist, psychologist, nurse, occupational therapist, or social worker) who has been formally approved by the Secretary of State. This approval signifies they have the specific competencies and legal understanding to carry out certain functions under the MHA.
• Responsible Clinician (RC): The RC is the specific Approved Clinician who has overall responsibility for a patient’s care and treatment while they are detained under the MHA or on a Community Treatment Order (CTO). All RCs must first be Approved Clinicians but not all Approved Clinicians will be Responsible Clinicians.

2. Section 58: The basis for routine treatment

Section 58 of the MHA governs how certain medical treatments for mental disorder can be given to detained patients. This is the primary legal pathway for ongoing administration of medication. Section 58(3) is engaged after the 3-month rule has expired.

For treatment under Section 58 to be lawful, one of two conditions must generally be met:

• Patient Consent (T2 Certificate): The patient has the capacity to consent and provides their valid consent to the treatment. As stated in Section 58(3)(a): “Subject to section 62 below, a patient shall not be given any form of treatment to which this section applies unless— (a) he has consented to that treatment and either the approved clinician in charge of it or a registered medical practitioner appointed for the purposes of this Part of this Act by the regulatory authority has certified in writing that the patient is capable of understanding its nature, purpose and likely effects and has consented to it;” This certification is typically documented on a Form T2 issued by the Approved Clinician who in most cases will be the Responsible Clinician.
• Second Opinion Appointed Doctor (SOAD) Certificate (T3 Certificate): If the patient lacks capacity to consent, or if they have capacity but refuse treatment (after three months of medication), a SOAD must review the case and certify that the treatment is appropriate. Section 58(3)(b) states: “or (b) a registered medical practitioner appointed as aforesaid (not being the responsible clinician or the approved clinician in charge of the treatment in question) has certified in writing that the patient is not capable of understanding the nature, purpose and likely effects of that treatment or being so capable has not consented to it but that it is appropriate for the treatment to be given” This “registered medical practitioner appointed as aforesaid” refers to a Second Opinion Appointed Doctor (SOAD), who is appointed by the Care Quality Commission (CQC). This certification is typically documented on a Form T3. Furthermore, so meticulous is this part that Section 58(4) clarifies the consultation process for such a certificate: “Before giving a certificate under subsection (3)(b) above the registered medical practitioner concerned shall consult two other persons who have been professionally concerned with the patient’s medical treatment but, of those persons— (a) one shall be a nurse and the other shall be neither a nurse nor a registered medical practitioner; and (b) neither shall be the responsible clinician or the approved clinician in charge of the treatment in question.“

Key Point: Routine PRN (as required) medication, when prescribed as part of a patient’s overall pharmacological treatment, falls under the authority of Section 58 and is signified after the 3-month rule [S58(1)b] by a T2 orT3 certificate. Normally as part of the T2 (with consent) or T3 (without consent) the AC/RC will have determined that the PRN is part of the treatment plan. S62(1) is the exception. Read on.

3. Section 62(1): The emergency bypass

Section 62(1) is a critical exception to the requirements of Section 58. It allows for certain medical treatments to be given to a patient without their consent or a SOAD certificate, but only under very specific and ‘immediate‘ circumstances. Parliament has unfortunately conflated urgent with immediate, but redeems itself by use of the words “immediately necessary“. Nonetheless, that still leaves health workers believing that ‘urgent’ means almost immediately, which it isn’t.

These circumstances include situations where the treatment is:

• Immediately necessary to save the patient’s life.
• Immediately necessary to prevent a serious deterioration of the patient’s condition.
• Immediately necessary to alleviate serious suffering by the patient.
• Immediately necessary to prevent the patient from behaving violently or being a danger to themselves or others.

Key Point: Section 62(1) is invoked when a valid T2 or T3 certificate is insufficient, and treatment cannot be modified swiftly enough within the wider ambit of S58, when faced with immediately necessary circumstances as set out in S62(1) a to d.

4. Who decides on Section 62(1)? (The non-delegable duty)

This is a central point of clarity:

• Only an Approved Clinician (AC) or a Responsible Clinician (RC) can make the statutory decision to invoke a Section 62(1) bypass of S58 for existing T2 or T3 certificates.
• This is a statutory duty handed directly by Parliament through the Mental Health Act, to these specifically approved professionals.
• The decision-making authority and power CANNOT be delegated. The MHA does not provide for the delegation of this specific power to other healthcare professionals, such as junior doctors or nurses.

The AC/RC is legally accountable for the decision to bypass the usual safeguards of Section 58 under Section 62(1).

5. PRN medications and Section 62(1): A critical distinction

This is where common practice and legal authority can sometimes be confused (as explored in Section 62(1): the hard boundary between law and ethics – Investigative Psychiatry, Feb 2025).

1. Routine PRN Administration: When a nurse administers a PRN medication, they are typically doing so under the authority of an existing Section 58 certificate (Form T2 or T3). The AC/RC or SOAD has already authorised this medication as part of the patient’s overall treatment plan. The nurse uses their clinical judgment to assess when the patient’s symptoms meet the criteria for administering that already legally authorised dose, as per the prescription. They would be operating within existing legal authority for routine medications.
2. PRN as a Section 62(1) decision: It would be unlawful delegation for an AC/RC to simply say that a nurse can decide to administer PRN under the specific “immediately necessary” criteria of Section 62(1). Why?
   • The nurse’s role is not authorised to make the statutory decision to bypass Section 58 (four main clinic-legal criteria)
   • If a situation arises where a patient is actively refusing all medication (say when on a T2), and the situation then meets the criteria of Section 62(1). The AC or RC can personally make the legal decision to invoke Section 62(1) to compel that treatment. The nurse would then administer the medication under this new, explicit statutory authority provided by the AC/RC’s decision.
   • However, authorising such medication does not mean that a nurse can decide if and when PRN should be given because that would be delegation of statutory duty to the nurse to decide upon criteria in S62(1) – not possible according to the law.
   • In reality – and contrary to popular belief – only single doses of medication can be authorised, not PRN at nurses’ professional judgement.

Legal analysis and rebuttals of the scenario

At the beginning of this article I gave an anonymised version from a real-life scenario, “A senior nurse argued that all mental health professionals have an ethical duty to take all reasonable steps to prevent harm to patients. They contended that refusing to invoke Section 62 could contravene this duty, as the refusal clearly leaves the patient at heightened risk. The nurse consultant emphasised that professional bodies stress the importance of acting in emergencies to preserve life and prevent harm, and expressed their view that prescribing PRN anti-psychotic medication for the patient for nurses to administer in high risk scenarios would be both proportionate and necessary.’

Professional ethics to override Statute

Rebuttal: Professional duties derive from statutory authority, not the reverse. The GMC’s Good Medical Practice explicitly requires doctors to act within the law. Regulatory bodies cannot create ethical duties that contradict Parliamentary law. Why? Parliament is supreme. When statute provides specific criteria (“immediately necessary” for “serious suffering”), professional ethics must operate within these boundaries, not override them.

Legal compliance means intention or neglect causing harm

Rebuttal: This argument attempts to place moral responsibility for Parliamentary decisions upon individual clinicians. Parliament set the “serious suffering” threshold knowing that some patients would experience harm below that level, but chose to maintain Section 58 safeguards rather than lower the emergency threshold. This represents Parliament’s acceptance of risk in order to preserve legal protections, not a clinical judgment that individual practitioners should override. Clinicians cannot be held morally or ethically responsible for implementing Parliament’s Will to tolerate some harm rather than weaken the consent and second opinion framework.

Authority and knowledge

Rebuttal: This represents veiled criticism disguised as clinical concern. The nurse implies that refusing to invoke Section 62(1)c constitutes failure to act in emergencies, thereby questioning professional ethics rather than engaging with legal requirements. While imperfect legal knowledge might be understandable, using professional status as a nurse consultant, to pressure statutory compliance without verifying legal accuracy represents a failure of due diligence. When crossing professional boundaries to challenge statutory decisions, practitioners bear responsibility for ensuring their legal understanding is sound and/or have the benefit of appropriate legal advice.

Professional status is not power

Rebuttal: The phrase “as a nurse consultant” implies that professional seniority creates an obligation to accept clinical opinions about statutory matters. However, professional rank cannot override legal requirements or create binding authority over statutory decisions. Regardless of nursing status or seniority, the decision to invoke Section 62(1)c remains exclusively with Approved Clinicians or Responsible Clinicians. Professional opinion, however senior, cannot transform non-emergency situations into statutory emergencies or compel compliance with legally inappropriate requests.

Cognitive Dissonance

Reading this analysis may create considerable unease for many healthcare professionals. This discomfort is entirely predictable and has a name: cognitive dissonance. This occurs when our established beliefs clash with new information that challenges those beliefs. The mind experiences tension when what we have always done contradicts what the law actually requires. This psychological discomfort drives us to find ways to restore our sense of inner consistency.

Many psychiatrists and other mental health professionals have operated for years believing their delegation practices were legally sound. They trusted received wisdom from other colleagues, forms on EPRs, and followed established team-based approaches. The realisation that statutory authority cannot be delegated threatens this long-standing professional confidence based on long-standing cultures of practice. The natural response is to ‘shoot the messenger‘ rather than examine the message, the facts and the law. The usual cop out is “I’m not a lawyer.” Practitioners may argue that interpretations in this article are overly legalistic and question ‘What business is it for a doctor to be doing legal analysis?‘ They might suggest that clinical reality demands flexibility that statute cannot accommodate. Some are expected to insist that patient safety trumps legal technicality.

The most common rationalisations include claiming the law is ambiguous – when it is actually explicit. Professionals may argue that delegation constitutes supervision rather than abdication of responsibility. Others will point to widespread practice as evidence of legal acceptability.

These responses are understandable but irrelevant because the law trumps cultures, standard practice, received wisdom and ethics. The Mental Health Act means what Parliament wrote, not what practice has assumed. Statutory duties exist independently of professional comfort or institutional convenience. None of these arguments change the fundamental legal position directed by Parliament.

Only an Approved Clinician or Responsible Clinician can invoke Section 62(1). This authority cannot be transferred to colleagues, regardless of their seniority or competence. Professional integrity requires accepting uncomfortable truths about statutory compliance. Cognitive dissonance serves as a defence mechanism, but it offers no legal protection. The statute stands unchanged by our psychological responses to its requirements.

The depth of this professional disconnect is captured in one colleague’s assertion: ‘I’m happy to deal with the GMC if they come after me, than to leave this patient suffering.‘ [The GMC requires doctors to act within the law]. This statement reveals the dangerous assumption that regulatory consequences are preferable to statutory compliance. It ignores that Parliament specifically requires immediate necessity to relieve ‘serious suffering’ —not any other sort of suffering—before Section 62(1) can be invoked. Such attitudes demonstrate how cognitive dissonance transforms unlawful practice into perceived patient advocacy.

Any perceived moral high ground that many doctors adhere to crumbles when confronted with Parliamentary authority. Professional ethics requires statutory compliance, not individual moral entrepreneurship. When clinicians act outside legal boundaries whilst claiming patient advocacy, they substitute their personal judgment for the Will of Parliament. That’s a fine mix of arrogance and ignorance.

Parliament has set the threshold at “serious suffering” [S62(1)c] to respect the patient’s legal position under Section 58’s protective framework. If Section 58 could be circumvented by the mere moral imperative of doctors or anyone else, it would render the entire consent and second opinion system meaningless. Doctors who unilaterally lower this threshold undermine the very legal protections Parliament established for patients. This represents a fundamental misunderstanding of how statutory safeguards operate within our constitutional framework.

True professional integrity lies in recognising that medical training confers clinical expertise, not legal immunity. The high ground cannot belong to those who unlawfully exceed their statutory authority under the guise of patient care.

Key takeaways for professionals:

1. Section 62(1) decisions arise from high-stakes statutory powers. The decision to bypass the usual Section 58 safeguards via Section 62(1) rests solely with the Approved Clinician (AC) or Responsible Clinician (RC).
2. This decision-making power is NOT delegable to junior doctors. A junior doctor can implement treatment under an AC/RC’s Section 62(1) authority, but cannot make the decision themselves. Some junior doctors believe they would be ‘covered’ in writing up PRN, if the RC authorises PRN on a S62(1) document. They would not! How? They would be enacting a delegation to nurses, that is not authorised by law. Furthermore all doctors – junior or senior – are required to act within the law; so says the General Medical Council.
3. This decision-making power is NOT delegable to nurses. Routine PRN administration by nurses may operate within the established legal framework of Section 58, when supported by a Form T2 or T3. A nurse cannot according to law make the decision on the requirements of S62(1). Why? This is a distinct statutory decision for the AC/RC. This means that an AC/RC cannot delegate discretion nor decision-making to nurses for the statutory circumstances for when doses of PRN medication may need to be administered.
4. The silence of Parliament on a particular issue is not a carte blanche for exercise power based on some assumed moral imperative. No one is permitted to bend Parliament’s will to suit their own purposes. Statute trumps ethics.
5. All doctors privileged with a licence to practice medicine are obliged by the GMC to obey the law, even if they find the law to be absurd or causing patients to endure less than serious suffering or deterioration, whilst waiting between 14 and 204 days for the CQC to provide a SOAD.