Giving medical treatment without consent in the first three months of detention under the Mental Health Act should be subject to tough safeguards, the Law Society has said. In evidence to an independent review of the 1983 Mental Health Act, Chancery Lane says the absence of any meaningful safeguards against arbitrariness and disregard for patients' wishes regarding their treatment is 'unacceptable'.

The Society believes the act should be amended so that treatment without consent can be given only if it is authorised by a second-opinion appointed doctor (SOAD). 'We recognise that there will need to be some provision for the use of urgent treatment in the very early stages of admission for those lacking capacity,' the response states. 'This could be met by a limited exception that emergency treatment decisions should be reviewed by a SOAD within seven days,' Chancery Lane says.

Last year the government appointed professor Simon Wessely, a former president of the Royal College of Psychiatrists, to chair an independent review of the Mental Health Act, looking at the legislation's impact on 'service users', families and staff. Wessely will publish an interim report followed by a final version with detailed recommendations by autumn this year.

Responding to the review's call for evidence, the Society recommends considering the possibility of automatic referrals to the tribunal during, or at the end of, every period of detention for all patients. Should this happen, it would also be necessary to consider whether 'capacitous' patients can opt out of a tribunal referral or choose not to attend. The Society says it is aware that some patients may consider a tribunal referral unhelpful or stressful.

The Society notes that not all patients who lack capacity under the current legislation are able to challenge their detention either in the tribunal or through a manager's hearing. Chancery Lane says such patients should be supported to apply for managers' hearings and receive adequate representation, perhaps in a similar manner to those without capacity in the tribunal who are provided with legal representation under rule 11(7) of the tribunal rules. 

Christina Blacklaws, Society vice-president, said: 'Attitudes and approaches to mental health have moved on since the act was written, and the legislation should reflect that. Every person who suffers from mental health issues should be treated in the least restrictive way possible, and should only be detained against their will if their health, safety or public protection depends on this last resort.'