On 8th December, the word “unwilling” was deleted from section 59 of Ireland’s Mental Health Act.

Section 59 of the Act deals with administration of electro-convulsive therapy ECT without informed consent to involuntary patients in approved centres (psychiatric units). The amendments mandating this change and an analogous change to section 60, which governs the administration of medication without consent to involuntary patients, are here.

The Mental Health Act up to 8th December allowed for administration of ECT to people who were “unable” or “unwilling” to consent, or both. The decision as to who whether a patient was “unable” or “unwilling” was formally the decision of the treating consultant psychiatrist along with one other independent consultant psychiatrist. (“Unwilling” is now gone, but the decision around inability to consent remains with two consultants.)

The removal of “unwilling” from the Act was long-flagged. The College of Psychiatrists of Ireland have been advocating for the change since 2010. (The College has only existed since 2009).

The change to section 59 is an important change, in principle. In practice, I would argue, it will make very little difference.

To be “unwilling” to consent, under the Act, implied that the person had capacity to give informed consent – which means that he or she was able to refuse informed consent. A person who received ECT or medication without consent but was documented to be “unwilling” to consent rather than “unable” was therefore considered capable of giving or refusing consent. It never made sense that this provision would be in the Act and I find it hard to imagine a set of circumstances in which I would give a treatment to a patient who refused it, if they were able to weigh up the pros and cons of that treatment.

To be “unable” to consent to a treatment – ECT, medication, or any other – means to lack capacity, which is “the ability to use and understand information to make a decision, and communicate any decision made.”

Capacity is judged on a decision by decision basis so that one might have capacity to consent to one treatment and not another. Ireland’s capacity legislation dates from 1871, but is almost updated – a Capacity Bill from 2013 is nearing the end of its legislative journey.

A person who is “unable” to consent to ECT – “unable” has stayed in the Act, by necessity – is, generally, too sick to make treatment decisions. I’ve written about illness depriving people of capacity here.

The only way that the loss of the word “unwilling” in Section 59 would make a substantial difference in practice is if, in recent years, the number of apparently capacitous people being treated with ECT without consent was large. It was small. (It was not zero.)

The most recent figures on ECT from the Mental Health Commission, which has oversight of all activity in approved centres, are from 2013. They were published on November 12th 2015 and widely reported.

The MHC report records each course of ECT without consent and the assessment of each psychiatrist, documented in a tick box on the MHC’s Form 16, as to whether the patient was unable or unwilling to consent. (The forms are yet to be updated.)

In 2013, 46 people received ECT without consent. In 39 cases, both psychiatrists ticked “unwilling”. In six cases, one psychiatrist ticked “unable” and another ticked “unwilling”. In one case in 2013, both psychiatrists ticked “unwilling”. The analogous numbers for 2012 were 26, 3, and 1; for 2011 20, 4, and 3; for 2010 29, 6, and 5; and for 2009 38, 5, and 11. (I hadn’t gone back as far as the 2009 figure before now and it’s higher than I would have thought it would be.)

What these figures show is that the number of people receiving ECT without consent went down, then back up, in the five cited years, and the number of people receiving ECT under “unwilling” – i.e. those who the Form 16s would indicated had preserved capacity, but had ECT without consent anyway – dramatically reduced, from 11 in a year to one in a year; we don’t have figures for 2014 or 2015 so we don’t yet have a baseline to judge any potential change in the figures to ensue from the legislative change last night.

There is a question here: why did anyone receive this treatment without consent when they were deemed, one would infer, to have capacity to decline the treatment? I just don’t know. It’s a basic principle not just of psychiatry but of all medicine that if you have capacity, and you say no, your no is respected. It’s how we work day in day out. There’s no reason to insist on a treatment that a capacitous person is refusing – not just in principle, but in practice. Psychiatrists are used to thinking that a treatment might help, and to being told no.

I have my suspicion, which is that psychiatrists ticked “unwilling” to mean both unable and unwilling – as in, we wouldn’t even be looking at this form if the patient were “able” to consent. I doubt anyone who received ECT without consent in Ireland in the last several years had capacity to consent. But I don’t know for sure, and I’m not sure we’ll ever know. From now on, we’ll know.

People are going to need treatment with ECT without consent as long as severe depression exists. Those people will receive that treatment without consent because they are unable to consent – they may think all hope is lost when it’s not; they may think we are trying to kill them; they may think they are already dead. Small numbers of people will need this treatment. It is a very good thing that “unwilling” is gone. The number of people receiving treatment with ECT under “unwilling” is now, as it should be, zero. The number of people we have to treat who are too sick to consent will never be.