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E+W+S+N.I.

Mental Health Act 2007

2007 CHAPTER 12

An Act to amend the Mental Health Act 1983, the Domestic Violence, Crime and Victims Act 2004 and the Mental Capacity Act 2005 in relation to mentally disordered persons; to amend section 40 of the Mental Capacity Act 2005; and for connected purposes.

[19th July 2007]

Be it enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:—

Part 1 E+W+S+N.I.Amendments to Mental Health Act 1983

Chapter 1E+W+S+N.I.Changes to key provisions

Mental disorderE+W+S+N.I.

1Removal of categories of mental disorderE+W+S+N.I.

(1)Section 1(2) of the 1983 Act (key definitions) is amended as set out in subsections (2) and (3).

(2)For the definitions of “mental disorder” and “mentally disordered” substitute—

mental disorder” means any disorder or disability of the mind; and

mentally disordered” shall be construed accordingly;.

(3)The following definitions are omitted—

(a)those of “severe mental impairment” and “severely mentally impaired”,

(b)those of “mental impairment” and “mentally impaired”, and

(c)that of “psychopathic disorder”.

(4)Schedule 1 (which contains further amendments to the 1983 Act and amendments to other Acts) has effect.

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Commencement Information

I1S. 1 not in force at Royal Assent see s. 56(1); s. 1(4) in force for specified purposes at 3.11.2008 by S.I. 2008/1210, arts. 1(1)(b), 2(a) (with arts. 4, 5); s. 1 in force insofar as not already in force at 3.11.2008 by S.I. 2008/1900, arts. 1(1), 2(a) (with art. 3, Sch.)

2Learning disabilityE+W+S+N.I.

(1)Section 1 of the 1983 Act (application of Act) is amended as follows.

(2)After subsection (2) insert—

(2A)But a person with learning disability shall not be considered by reason of that disability to be—

(a)suffering from mental disorder for the purposes of the provisions mentioned in subsection (2B) below; or

(b)requiring treatment in hospital for mental disorder for the purposes of sections 17E and 50 to 53 below,

unless that disability is associated with abnormally aggressive or seriously irresponsible conduct on his part.

(2B)The provisions are—

(a)sections 3, 7, 17A, 20 and 20A below;

(b)sections 35 to 38, 45A, 47, 48 and 51 below; and

(c)section 72(1)(b) and (c) and (4) below.

(3)After subsection (3) insert—

(4)In subsection (2A) above, “learning disability” means a state of arrested or incomplete development of the mind which includes significant impairment of intelligence and social functioning.

3Changes to exclusions from operation of 1983 ActE+W+S+N.I.

In section 1 of the 1983 Act (application of Act), for subsection (3) substitute—

(3)Dependence on alcohol or drugs is not considered to be a disorder or disability of the mind for the purposes of subsection (2) above.

Tests for detention etcE+W+S+N.I.

4Replacement of “treatability” and “care” tests with appropriate treatment testE+W+S+N.I.

(1)The 1983 Act is amended as follows.

(2)In section 3 (admission for treatment)—

(a)in subsection (2), omit paragraph (b) (and the word “and” at the end of that paragraph),

(b)in that subsection, after paragraph (c) insert ; and

(d)appropriate medical treatment is available for him., and

(c)in subsection (3)(a), for “(b)” substitute “ (d) ”.

(3)In that section, after subsection (3) insert—

(4)In this Act, references to appropriate medical treatment, in relation to a person suffering from mental disorder, are references to medical treatment which is appropriate in his case, taking into account the nature and degree of the mental disorder and all other circumstances of his case.

(4)In section 20 (renewal of authority to detain), in subsection (4)—

(a)omit paragraph (b) (and the word “and” at the end of that paragraph),

(b)after paragraph (c) insert and

(d)appropriate medical treatment is available for him., and

(c)omit the words from “but, in the case of mental illness” to the end.

(5)In section 37(2) (conditions for exercise of powers of court to order hospital admission or guardianship), in paragraph (a)(i), for the words from “, in the case of psychopathic disorder” to the end substitute “ appropriate medical treatment is available for him; or ”.

(6)In section 45A(2) (conditions for exercise of powers of court to direct hospital admission), for paragraph (c) substitute—

(c)that appropriate medical treatment is available for him.

(7)In section 47(1) (conditions for exercise of Secretary of State's powers to direct removal to hospital), in paragraph (b), for the words from “and, in the case of psychopathic disorder” to the end substitute ; and

(c)that appropriate medical treatment is available for him;.

(8)In section 72—

(a)in subsection (1)(b) (powers of tribunal to direct discharge of patient not liable to be detained under section 2), after sub-paragraph (ii) insert—

(iia)that appropriate medical treatment is available for him; or, and

(b)omit subsection (2).

(9)In section 73(1) (powers of tribunal to direct discharge of restricted patients), in paragraph (a), for “or (ii)” substitute “ , (ii) or (iia) ”.

(10)In section 145 (interpretation), after subsection (1AA) insert—

(1AB)References in this Act to appropriate medical treatment shall be construed in accordance with section 3(4) above.

5Further cases in which appropriate treatment test is to applyE+W+S+N.I.

(1)The 1983 Act is amended as follows.

(2)In section 36(1) (remand to hospital for treatment) after paragraph (a) (inserted by Schedule 1 to this Act) insert and

(b)appropriate medical treatment is available for him.

(3)In section 48(1) (removal to hospital of immigration detainees etc) after paragraph (b) (inserted by Schedule 1 to this Act) insert and

(c)appropriate medical treatment is available for him;.

(4)In section 51(6)(a) (further power to make hospital order) after sub-paragraph (i) (inserted by Schedule 1 to this Act) insert and

(ii)appropriate medical treatment is available for him; and.

Medical treatmentE+W+S+N.I.

6Appropriate treatment test in Part 4 of 1983 ActE+W+S+N.I.

(1)Part 4 of the 1983 Act (consent to treatment) is amended as follows.

(2)In the following provisions, for the words from “, having regard to” to the end substitute “ it is appropriate for the treatment to be given. ”

(a)section 57(2)(b) (certification of second opinion where treatment requires consent and a second opinion), and

(b)section 58(3)(b) (certification of second opinion where treatment requires consent or a second opinion).

(3)In section 64 (supplementary provisions for Part 4), after subsection (2) insert—

(3)For the purposes of this Part of this Act, it is appropriate for treatment to be given to a patient if the treatment is appropriate in his case, taking into account the nature and degree of the mental disorder from which he is suffering and all other circumstances of his case.

7Change in definition of “medical treatment”E+W+S+N.I.

(1)Section 145 of the 1983 Act is amended as follows.

(2)In subsection (1), in the definition of “medical treatment”, for the words from “and also” to the end substitute “ psychological intervention and specialist mental health habilitation, rehabilitation and care (but see also subsection (4) below); ”.

(3)After subsection (3) insert—

(4)Any reference in this Act to medical treatment, in relation to mental disorder, shall be construed as a reference to medical treatment the purpose of which is to alleviate, or prevent a worsening of, the disorder or one or more of its symptoms or manifestations.

Fundamental principlesE+W+S+N.I.

8The fundamental principlesE+W+S+N.I.

After section 118(2) of the 1983 Act (code of practice) insert—

(2A)The code shall include a statement of the principles which the Secretary of State thinks should inform decisions under this Act.

(2B)In preparing the statement of principles the Secretary of State shall, in particular, ensure that each of the following matters is addressed—

(a)respect for patients' past and present wishes and feelings,

(b)respect for diversity generally including, in particular, diversity of religion, culture and sexual orientation (within the meaning of section 35 of the Equality Act 2006),

(c)minimising restrictions on liberty,

(d)involvement of patients in planning, developing and delivering care and treatment appropriate to them,

(e)avoidance of unlawful discrimination,

(f)effectiveness of treatment,

(g)views of carers and other interested parties,

(h)patient wellbeing and safety, and

(i)public safety.

(2C)The Secretary of State shall also have regard to the desirability of ensuring—

(a)the efficient use of resources, and

(b)the equitable distribution of services.

(2D)In performing functions under this Act persons mentioned in subsection (1)(a) or (b) shall have regard to the code.

Chapter 2E+W+S+N.I.Professional roles

Approved clinicians and responsible cliniciansE+W+S+N.I.

9Amendments to Part 2 of 1983 ActE+W+S+N.I.

(1)Part 2 of the 1983 Act (compulsory admission to hospital and guardianship) is amended as follows.

(2)In section 5 (application in respect of patient already in hospital)—

(a)in subsection (2), after “registered medical practitioner” insert “ or approved clinician ”,

(b)for subsection (3) substitute—

(3)The registered medical practitioner or approved clinician in charge of the treatment of a patient in a hospital may nominate one (but not more than one) person to act for him under subsection (2) above in his absence.

(3A)For the purposes of subsection (3) above—

(a)the registered medical practitioner may nominate another registered medical practitioner, or an approved clinician, on the staff of the hospital; and

(b)the approved clinician may nominate another approved clinician, or a registered medical practitioner, on the staff of the hospital., and

(c)in subsection (4), after “a practitioner”, in each place, insert “ or clinician ”.

(3)In section 17 (leave of absence)—

(a)in subsection (1)—

(i)for “responsible medical officer” substitute “ responsible clinician ”, and

(ii)for “that officer” substitute “ that clinician ”,

(b)in subsection (3), for “responsible medical officer” substitute “ responsible clinician ”, and

(c)in subsection (4)—

(i)for “responsible medical officer” substitute “ responsible clinician ”, and

(ii)for “that officer” substitute “ that clinician ”.

(4)In section 20 (duration of authority)—

(a)in subsections (3) and (5), for “responsible medical officer” substitute “ responsible clinician ”,

(b)after subsection (5) insert—

(5A)But the responsible clinician may not furnish a report under subsection (3) above unless a person—

(a)who has been professionally concerned with the patient's medical treatment; but

(b)who belongs to a profession other than that to which the responsible clinician belongs,

states in writing that he agrees that the conditions set out in subsection (4) above are satisfied.,

(c)in subsection (6), for “appropriate medical officer” substitute “ appropriate practitioner ”, and

(d)omit subsection (10).

(5)In section 21B (patients who are taken into custody or return after more than 28 days)—

(a)in subsections (2) and (3), for “appropriate medical officer” substitute “ appropriate practitioner ”, and

(b)in subsection (10), omit the definition of “appropriate medical officer”.

(6)In section 23(2) (persons who may apply for discharge of patient), in paragraphs (a) and (b), for “responsible medical officer” substitute “ responsible clinician ”.

(7)In section 24 (visiting and examination of patients), in each place, after “registered medical practitioner” insert “ or approved clinician ”.

(8)In section 25(1) (restrictions on discharge by nearest relative)—

(a)for “responsible medical officer” substitute “ responsible clinician ”, and

(b)for “that officer” substitute “ that clinician ”.

(9)In section 34 (interpretation of Part 2 of the 1983 Act), in subsection (1), insert the following definition at the appropriate place—

  • the appropriate practitioner” means—

    (a)

    in the case of a patient who is subject to the guardianship of a person other than a local social services authority, the nominated medical attendant of the patient; and

    (b)

    in any other case, the responsible clinician;.

(10)In that subsection, for the definition of “the responsible medical officer” substitute—

the responsible clinician” means—

(a)in relation to a patient liable to be detained by virtue of an application for admission for assessment or an application for admission for treatment, or a community patient, the approved clinician with overall responsibility for the patient's case;

(b)in relation to a patient subject to guardianship, the approved clinician authorised by the responsible local social services authority to act (either generally or in any particular case or for any particular purpose) as the responsible clinician;.

10Amendments to Part 3 of 1983 ActE+W+S+N.I.

(1)Part 3 of the 1983 Act (patients concerned in criminal proceedings) is amended as follows.

(2)In section 35 (remand to hospital for report)—

(a)in subsections (4) and (5), for “registered medical practitioner” substitute “ approved clinician ”, and

(b)in subsection (8), after “registered medical practitioner” insert “ or approved clinician ”.

(3)In section 36 (remand to hospital for treatment)—

(a)in subsection (3), for “registered medical practitioner who would be in charge of his treatment” substitute “ approved clinician who would have overall responsibility for his case ”,

(b)in subsection (4), for “responsible medical officer” substitute “ responsible clinician ”, and

(c)in subsection (7), after “registered medical practitioner” insert “ or approved clinician ”.

(4)In section 37 (hospital and guardianship orders), in subsection (4), for “registered medical practitioner who would be in charge of his treatment” substitute “ approved clinician who would have overall responsibility for his case ”.

(5)In section 38 (interim hospital orders)—

(a)in subsection (4), for “registered medical practitioner who would be in charge of his treatment” substitute “ approved clinician who would have overall responsibility for his case ”, and

(b)in subsection (5), for “responsible medical officer”, in each place, substitute “ responsible clinician ”.

(6)In section 41 (power of courts to restrict discharge from hospital), in subsections (3)(c) and (6), for “responsible medical officer” substitute “ responsible clinician ”.

(7)In section 44(2) (person who is to give evidence in connection with committal to hospital), for “registered medical practitioner who would be in charge of the offender's treatment” substitute “ approved clinician who would have overall responsibility for the offender's case ”.

(8)In section 45A(5) (person who is to give evidence in connection with hospital or limitation direction), for “registered medical practitioner who would be in charge of his treatment” substitute “ approved clinician who would have overall responsibility for his case ”.

(9)In the following provisions, for “responsible medical officer” substitute “ responsible clinician ”

(a)section 45B(3) (requirement to produce report on person subject to hospital and limitation directions), and

(b)section 49(3) (requirement to produce report on person subject to restriction direction).

11Further amendments to Part 3 of 1983 ActE+W+S+N.I.

(1)Part 3 of the 1983 Act (patients concerned in criminal proceedings) is further amended as follows.

(2)In section 50(1) (powers of Secretary of State in respect of prisoners under sentence)—

(a)for “responsible medical officer” substitute “ responsible clinician ”, and

(b)for “registered medical practitioner” substitute “ approved clinician ”.

(3)In section 51 (further provisions as to detained persons)—

(a)in subsection (3)—

(i)for “responsible medical officer” substitute “ responsible clinician ”, and

(ii)for “registered medical practitioner” substitute “ approved clinician ”, and

(b)in subsection (4), for “responsible medical officer” substitute “ responsible clinician ”.

(4)In section 52 (further provisions as to persons remanded by magistrates' courts), in subsections (5) and (7), for “responsible medical officer” substitute “ responsible clinician ”.

(5)In section 53(2) (powers of Secretary of State in respect of civil prisoners and persons detained under the Immigration Acts)—

(a)for “responsible medical officer” substitute “ responsible clinician ”, and

(b)for “registered medical practitioner” substitute “ approved clinician ”.

(6)In section 54 (requirements as to medical evidence), for subsection (2) substitute—

(2)For the purposes of any provision of this Part of this Act under which a court may act on the written evidence of any person, a report in writing purporting to be signed by that person may, subject to the provisions of this section, be received in evidence without proof of the following—

(a)the signature of the person; or

(b)his having the requisite qualifications or approval or authority or being of the requisite description to give the report.

(2A)But the court may require the signatory of any such report to be called to give oral evidence.

(7)In section 55 (interpretation of Part 3), for the definition of “responsible medical officer” in subsection (1) substitute—

responsible clinician”, in relation to a person liable to be detained in a hospital within the meaning of Part 2 of this Act, means the approved clinician with overall responsibility for the patient's case.

(8)In Part 2 of Schedule 1 (modifications in relation to patients subject to special restrictions), in paragraph 3—

(a)in paragraph (b), for “ “the responsible medical officer” and after the words “that officer”” substitute “ “the responsible clinician” and after the words “that clinician” ”, and

(b)in paragraph (c), for “ “by the responsible medical officer”” substitute “by the responsible clinician” .

12Amendments to Part 4 of 1983 ActE+W+S+N.I.

(1)Part 4 of the 1983 Act (consent to treatment) is amended as follows.

(2)In section 57 (requirements as to certification for treatment requiring consent and a second opinion)—

(a)in subsection (2)(a), for “responsible medical officer” substitute “ responsible clinician (if there is one) or the person in charge of the treatment in question ”, and

(b)in subsection (3), for the words from “, and of those persons” to the end substitute 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 (if there is one) or the person in charge of the treatment in question.

(3)In section 58 (requirements as to certification for treatment requiring consent or a second opinion)—

(a)in subsection (3)—

(i)in paragraph (a), for “responsible medical officer” substitute “ approved clinician in charge of it ”, and

(ii)in paragraph (b), for “responsible medical officer” substitute “ responsible clinician or the approved clinician in charge of the treatment in question ”, and

(b)in subsection (4), for the words from “, and of those persons” to the end substitute 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.

(4)In section 61 (review of treatment)—

(a)in subsection (1)—

(i)for “by the responsible medical officer” substitute “ by the approved clinician in charge of the treatment ”, and

(ii)in paragraph (a), for “responsible medical officer” substitute “ responsible clinician ”,

(b)in subsection (2)(b), for “responsible medical officer” substitute “ responsible clinician ”,

(c)in subsection (3), omit the words “to the responsible medical officer”, and

(d)after that subsection insert—

(3A)The notice under subsection (3) above shall be given to the approved clinician in charge of the treatment.

(5)In section 62(2) (exception to discontinuance of treatment), for “responsible medical officer” substitute “ approved clinician in charge of the treatment ”.

(6)In section 63 (treatment not requiring consent), for “responsible medical officer” substitute “ approved clinician in charge of the treatment ”.

(7)In section 64 (supplementary provisions for Part 4)—

(a)in subsection (1), for the words from “ “the responsible” to “treatment” substitute the responsible clinician” means the approved clinician with overall responsibility for the case ”, and

(b)after that subsection insert—

(1A)References in this Part of this Act to the approved clinician in charge of a patient's treatment shall, where the treatment in question is a form of treatment to which section 57 above applies, be construed as references to the person in charge of the treatment.

13Amendments to Part 5 of 1983 ActE+W+S+N.I.

(1)Part 5 of the 1983 Act (Mental Health Review Tribunals) is amended as follows.

(2)In the following provisions, after “registered medical practitioner” insert “ or approved clinician ”

(a)section 67(2) (power to visit and examine patient for the purposes of a tribunal reference), and

(b)section 76(1) (power to visit and examine patient for the purposes of a tribunal application).

(3)In section 79 (interpretation of Part 5), in subsection (6), for “, and “the responsible medical officer” means the responsible medical officer,” substitute “ , and “the responsible clinician” means the responsible clinician, ”.

14Amendments to other provisions of 1983 ActE+W+S+N.I.

(1)The 1983 Act is amended as follows.

(2)In section 118 (code of practice), in subsection (1)(a), after “registered medical practitioners” insert “ , approved clinicians ”.

(3)In the following provisions, after “registered medical practitioner” insert “ or approved clinician ”

(a)section 120(4)(a) (right of person authorised by Secretary of State etc to visit patients), and

(b)section 121(5)(a) (right of person authorised by Mental Health Act Commission to visit patients).

(4)In section 134 (correspondence of patients), in subsection (1), for “registered medical practitioner in charge of the treatment of the patient” substitute “ approved clinician with overall responsibility for the patient's case ”.

(5)In section 145 (general interpretation), in subsection (1), insert the following definition at the appropriate place—

  • approved clinician” means a person approved by the Secretary of State (in relation to England) or by the Welsh Ministers (in relation to Wales) to act as an approved clinician for the purposes of this Act;.

15Amendments to other ActsE+W+S+N.I.

(1)

[F1In section 116B(5) of the Army Act 1955 (3 & 4 Eliz. 2 c. 18) (provision for person subject to hospital order and restriction order to be remitted for trial, etc)—

(a)for “the responsible medical officer” substitute “ the responsible clinician ”, and

(b)for the words from “In this subsection” to the end substitute— “ In this subsection “responsible clinician” means the responsible clinician within the meaning of Part 3 of the 1983 Act. ”]

F1F1(2)

[F1In section 116B(5) of the Air Force Act 1955 (3 & 4 Eliz. 2 c. 19) (provision for person subject to hospital order and restriction order to be remitted for trial, etc)—

(a)for “the responsible medical officer” substitute “ the responsible clinician ”, and

(b)for the words from “In this subsection” to the end substitute— “ In this subsection “responsible clinician” means the responsible clinician within the meaning of Part 3 of the 1983 Act. ”]

F1F1(3)

[F1In section 63B(5) of the Naval Discipline Act 1957 (c. 53) (provision for person subject to hospital order and restriction order to be remitted for trial, etc)—

(a)for “the responsible medical officer” substitute “ the responsible clinician ”, and

(b)for the words from “In this subsection” to the end substitute— “ In this subsection “responsible clinician” means the responsible clinician within the meaning of Part 3 of the 1983 Act. ”]

F1F1(4)In section 5A(4) of the Criminal Procedure (Insanity) Act 1964 (c. 84) (provision for person subject to hospital order and restriction order to be remitted for trial, etc), for “the responsible medical officer” substitute “ the responsible clinician ”.

(5)In section 171 of the Armed Forces Act 2006 (c. 52) (remission for trial)—

(a)in subsection (1), for “the responsible medical officer” substitute “ the responsible clinician ”, and

(b)in subsection (4) for the definition of “the responsible medical officer” substitute—

the responsible clinician” means the responsible clinician within the meaning of Part 3 of the Mental Health Act 1983.

(6)On the commencement of the repeal of an enactment mentioned in subsection (1), (2) or (3) by the Armed Forces Act 2006, that subsection shall also cease to have effect.

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

F1S. 15(1)-(3) cease to have effect (28.3.2009 for specified purposes and otherwise 31.10.2009) by virtue of Mental Health Act 2007 (c. 12), ss. 15(6), 56; S.I. 2009/812, art. 3; S.I. 2009/1167, art. 4

16Certain registered medical practitioners to be treated as approved under section 12 of 1983 ActE+W+S+N.I.

In section 12 of the 1983 Act (general provisions as to medical recommendations), after subsection (2) insert—

(2A)A registered medical practitioner who is an approved clinician shall be treated as also approved for the purposes of this section under subsection (2) above as having special experience as mentioned there.

17Regulations as to approvals in relation to England and WalesE+W+S+N.I.

After section 142 of the 1983 Act, insert—

142ARegulations as to approvals in relation to England and Wales

The Secretary of State jointly with the Welsh Ministers may by regulations make provision as to the circumstances in which—

(a)a practitioner approved for the purposes of section 12 above, or

(b)a person approved to act as an approved clinician for the purposes of this Act,

approved in relation to England is to be treated, by virtue of his approval, as approved in relation to Wales too, and vice versa.

Approved mental health professionalsE+W+S+N.I.

18Approved mental health professionalsE+W+S+N.I.

For section 114 of the 1983 Act (appointment of approved social workers) and the cross-heading immediately above it substitute—

Approved mental health professionalsE+W+S+N.I.
114Approval by local social services authority

(1)A local social services authority may approve a person to act as an approved mental health professional for the purposes of this Act.

(2)But a local social services authority may not approve a registered medical practitioner to act as an approved mental health professional.

(3)Before approving a person under subsection (1) above, a local social services authority shall be satisfied that he has appropriate competence in dealing with persons who are suffering from mental disorder.

(4)The appropriate national authority may by regulations make provision in connection with the giving of approvals under subsection (1) above.

(5)The provision which may be made by regulations under subsection (4) above includes, in particular, provision as to—

(a)the period for which approvals under subsection (1) above have effect;

(b)the courses to be undertaken by persons before such approvals are to be given and during the period for which such approvals have effect;

(c)the conditions subject to which such approvals are to be given; and

(d)the factors to be taken into account in determining whether persons have appropriate competence as mentioned in subsection (3) above.

(6)Provision made by virtue of subsection (5)(b) above may relate to courses approved or provided by such person as may be specified in the regulations (as well as to courses approved under section 114A below).

(7)An approval by virtue of subsection (6) above may be in respect of a course in general or in respect of a course in relation to a particular person.

(8)The power to make regulations under subsection (4) above includes power to make different provision for different cases or areas.

(9)In this section “the appropriate national authority” means—

(a)in relation to persons who are or wish to become approved to act as approved mental health professionals by a local social services authority whose area is in England, the Secretary of State;

(b)in relation to persons who are or wish to become approved to act as approved mental health professionals by a local social services authority whose area is in Wales, the Welsh Ministers.

(10)In this Act “approved mental health professional” means—

(a)in relation to acting on behalf of a local social services authority whose area is in England, a person approved under subsection (1) above by any local social services authority whose area is in England, and

(b)in relation to acting on behalf of a local social services authority whose area is in Wales, a person approved under that subsection by any local social services authority whose area is in Wales.

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Commencement Information

I2S. 18 not in force at Royal Assent see s. 56(1); s. 18 in force for specified purposes at 1.4.2008 by S.I. 2008/745, arts. 2(a), 3(b); s. 18 in force insofar as not already in force for E. at 3.11.2008 by S.I. 2008/1900, art. 2(c) (with art. 3, Sch.); s. 18 in force insofar as not already in force at 3.11.2008 by S.I. 2008/2561, art. 2(a) (with art. 3, Sch.)

19Approval of courses etc for approved mental health professionalsE+W+S+N.I.

After section 114 of the 1983 Act insert—

114AApproval of courses etc for approved mental health professionals

(1)The relevant Council may, in accordance with rules made by it, approve courses for persons who are or wish to become approved mental health professionals.

(2)For that purpose—

(a)subsections (2) to (4)(a) and (7) of section 63 of the Care Standards Act 2000 apply as they apply to approvals given, rules made and courses approved under that section; and

(b)sections 66 and 71 of that Act apply accordingly.

(3)In subsection (1), “the relevant Council” means—

(a)in relation to persons who are or wish to become approved to act as approved mental health professionals by a local social services authority whose area is in England, the General Social Care Council;

(b)in relation to persons who are or wish to become approved to act as approved mental health professionals by a local social services authority whose area is in Wales, the Care Council for Wales.

(4)The functions of an approved mental health professional shall not be considered to be relevant social work for the purposes of Part 4 of the Care Standards Act 2000.

(5)The General Social Care Council and the Care Council for Wales may also carry out, or assist other persons in carrying out, research into matters relevant to training for approved mental health professionals.

20Amendment to section 62 of Care Standards Act 2000E+W+S+N.I.

In section 62 of the Care Standards Act 2000 (c. 14) (codes of practice), after subsection (1) insert—

(1A)The codes may also lay down standards of conduct and practice expected of social workers when carrying out the functions of an approved mental health professional (as defined in section 114 of the Mental Health Act 1983).

21Approved mental health professionals: further amendmentsE+W+S+N.I.

Schedule 2 (which contains amendments in connection with section 18) has effect.

Annotations: Help about Annotation
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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Commencement Information

I3S. 21 not in force at Royal Assent see s. 56(1); s. 21 in force for specified purposes for E. at 3.11.2008 by S.I. 2008/1900, art. 2(d); s. 21 in force for specified purposes insofar as not already in force for W. at 3.11.2008 by S.I. 2008/2561, art. 2(b) (with art. 3, Sch.)

Conflicts of interest in professional rolesE+W+S+N.I.

22Conflicts of interestE+W+S+N.I.

(1)The 1983 Act is amended as follows.

(2)In section 11 (general provisions as to applications), after subsection (1) insert—

(1A)No application mentioned in subsection (1) above shall be made by an approved mental health professional if the circumstances are such that there would be a potential conflict of interest for the purposes of regulations under section 12A below.

(3)In section 12 (general provisions as to medical recommendations), in subsection (1), after “this Part of this Act” insert “ or a guardianship application ”.

(4)In that section, for subsections (3) to (7) substitute—

(3)No medical recommendation shall be given for the purposes of an application mentioned in subsection (1) above if the circumstances are such that there would be a potential conflict of interest for the purposes of regulations under section 12A below.

(5)After that section insert—

12AConflicts of interest

(1)The appropriate national authority may make regulations as to the circumstances in which there would be a potential conflict of interest such that—

(a)an approved mental health professional shall not make an application mentioned in section 11(1) above;

(b)a registered medical practitioner shall not give a recommendation for the purposes of an application mentioned in section 12(1) above.

(2)Regulations under subsection (1) above may make—

(a)provision for the prohibitions in paragraphs (a) and (b) of that subsection to be subject to specified exceptions;

(b)different provision for different cases; and

(c)transitional, consequential, incidental or supplemental provision.

(3)In subsection (1) above, “the appropriate national authority” means—

(a)in relation to applications in which admission is sought to a hospital in England or to guardianship applications in respect of which the area of the relevant local social services authority is in England, the Secretary of State;

(b)in relation to applications in which admission is sought to a hospital in Wales or to guardianship applications in respect of which the area of the relevant local social services authority is in Wales, the Welsh Ministers.

(4)References in this section to the relevant local social services authority, in relation to a guardianship application, are references to the local social services authority named in the application as guardian or (as the case may be) the local social services authority for the area in which the person so named resides.

(6)In section 13 (duty to make applications for admission or guardianship), in subsection (5), after “section 11(4) above” insert “ or of regulations under section 12A above ”.

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Commencement Information

I4S. 22 not in force at Royal Assent see s. 56(1); s. 22(5) in force at 1.4.2008 by S.I. 2008/745, art. 3(c); s. 22 in force insofar as not already in force at 3.11.2008 by S.I. 2008/1900, art. 2(e) (with art. 3, Sch.)

Chapter 3E+W+S+N.I.Safeguards for patients

Patient's nearest relativeE+W+S+N.I.

23Extension of power to appoint acting nearest relativeE+W+S+N.I.

(1)Section 29 of the 1983 Act (appointment by court of acting nearest relative) is amended as follows.

(2)In subsection (1), for the words from “the applicant” to the end substitute “ the person specified in the order ”.

(3)After subsection (1) insert—

(1A)If the court decides to make an order on an application under subsection (1) above, the following rules have effect for the purposes of specifying a person in the order—

(a)if a person is nominated in the application to act as the patient's nearest relative and that person is, in the opinion of the court, a suitable person to act as such and is willing to do so, the court shall specify that person (or, if there are two or more such persons, such one of them as the court thinks fit);

(b)otherwise, the court shall specify such person as is, in its opinion, a suitable person to act as the patient's nearest relative and is willing to do so.

(4)In subsection (2)—

(a)after “on the application of—” insert—

(za)the patient;, and

(b)omit the words from “but in relation to” to the end.

(5)In subsection (3)—

(a)in paragraph (c) omit the word “or” at the end of the paragraph, and

(b)after paragraph (d) insert ; or

(e)that the nearest relative of the patient is otherwise not a suitable person to act as such.

(6)In subsection (5), for “(3)(a) or (b)” substitute “ (3)(a), (b) or (e) ”.

24Discharge and variation of orders appointing nearest relativeE+W+S+N.I.

(1)Section 30 of the 1983 Act (discharge and variation of orders under section 29) is amended as follows.

(2)In subsection (1)—

(a)in paragraph (a), after “in any case, by” insert “ the patient or ”, and

(b)in paragraph (b), for “or paragraph (b)” substitute “ , (b) or (e) ”.

(3)After that subsection insert—

(1A)But, in the case of an order made on the ground specified in paragraph (e) of section 29(3) above, an application may not be made under subsection (1)(b) above by the person who was the nearest relative of the patient when the order was made except with leave of the county court.

(4)In subsection (2)—

(a)after “or on the application of” insert “ the patient or of ”, and

(b)for the words from “for the first-mentioned person” to the end substitute “ another person for the person having those functions ”.

(5)After that subsection insert—

(2A)If the court decides to vary an order on an application under subsection (2) above, the following rules have effect for the purposes of substituting another person—

(a)if a person is nominated in the application to act as the patient's nearest relative and that person is, in the opinion of the court, a suitable person to act as such and is willing to do so, the court shall specify that person (or, if there are two or more such persons, such one of them as the court thinks fit);

(b)otherwise, the court shall specify such person as is, in its opinion, a suitable person to act as the patient's nearest relative and is willing to do so.

(6)In subsection (4), for the words from “An order under” to “period is specified” substitute “ An order made on the ground specified in paragraph (c) or (d) of section 29(3) above shall, unless previously discharged under subsection (1) above, cease to have effect as follows ”.

(7)After subsection (4A) (inserted by Schedule 3 to this Act) insert—

(4B)An order made on the ground specified in paragraph (a), (b) or (e) of section 29(3) above shall—

(a)if a period was specified under section 29(5) above, cease to have effect on expiry of that period, unless previously discharged under subsection (1) above;

(b)if no such period was specified, remain in force until it is discharged under subsection (1) above.

25Restriction of nearest relative's right to apply to tribunalE+W+S+N.I.

In section 66 of the 1983 Act (applications to tribunal), in subsection (1)(h) after “section 29 above” insert “ on the ground specified in paragraph (c) or (d) of subsection (3) of that section ”.

26Civil partnersE+W+S+N.I.

(1)Section 26 of the 1983 Act (definition of “relative” and “nearest relative”) is amended as set out in subsections (2) to (5).

(2)In subsection (1)(a), after “wife” insert “ or civil partner ”.

(3)In subsection (5)—

(a)in paragraph (b) after “wife” insert “ or civil partner ”, and

(b)in paragraph (c) after “wife,” insert “ civil partner, ”.

(4)In subsection (6)—

(a)for “and “wife” include a person who is living with the patient as the patient's husband or wife” substitute “ “ , “wife”and “civil partner” include a person who is living with the patient as the patient's husband or wife or as if they were civil partners” , and

(b)for “unless the husband or wife” substitute “ or a patient in a civil partnership unless the husband, wife or civil partner ”.

(5)In subsection (7)(b), for “unless the husband or wife” substitute “ or a patient in a civil partnership unless the husband, wife or civil partner ”.

(6)In section 27 of the 1983 Act (children and young persons in care), after “wife” insert “ or civil partner ”.

Consent to treatmentE+W+S+N.I.

27Electro-convulsive therapy, etc.E+W+S+N.I.

After section 58 of the 1983 Act insert—

58AElectro-convulsive therapy, etc.

(1)This section applies to the following forms of medical treatment for mental disorder—

(a)electro-convulsive therapy; and

(b)such other forms of treatment as may be specified for the purposes of this section by regulations made by the appropriate national authority.

(2)Subject to section 62 below, a patient shall be not be given any form of treatment to which this section applies unless he falls within subsection (3), (4) or (5) below.

(3)A patient falls within this subsection if—

(a)he has attained the age of 18 years;

(b)he has consented to the treatment in question; and

(c)either the approved clinician in charge of it or a registered medical practitioner appointed as mentioned in section 58(3) above has certified in writing that the patient is capable of understanding the nature, purpose and likely effects of the treatment and has consented to it.

(4)A patient falls within this subsection if—

(a)he has not attained the age of 18 years; but

(b)he has consented to the treatment in question; and

(c)a registered medical practitioner appointed as aforesaid (not being the approved clinician in charge of the treatment) has certified in writing—

(i)that the patient is capable of understanding the nature, purpose and likely effects of the treatment and has consented to it; and

(ii)that it is appropriate for the treatment to be given.

(5)A patient falls within this subsection if a registered medical practitioner appointed as aforesaid (not being the responsible clinician (if there is one) or the approved clinician in charge of the treatment in question) has certified in writing—

(a)that the patient is not capable of understanding the nature, purpose and likely effects of the treatment; but

(b)that it is appropriate for the treatment to be given; and

(c)that giving him the treatment would not conflict with—

(i)an advance decision which the registered medical practitioner concerned is satisfied is valid and applicable; or

(ii)a decision made by a donee or deputy or by the Court of Protection.

(6)Before giving a certificate under subsection (5) 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 (if there is one) or the approved clinician in charge of the treatment in question.

(7)This section shall not by itself confer sufficient authority for a patient who falls within section 56(5) above to be given a form of treatment to which this section applies if he is not capable of understanding the nature, purpose and likely effects of the treatment (and cannot therefore consent to it).

(8)Before making any regulations for the purposes of this section, the appropriate national authority shall consult such bodies as appear to it to be concerned.

(9)In this section—

(a)a reference to an advance decision is to an advance decision (within the meaning of the Mental Capacity Act 2005) made by the patient;

(b)valid and applicable”, in relation to such a decision, means valid and applicable to the treatment in question in accordance with section 25 of that Act;

(c)a reference to a donee is to a donee of a lasting power of attorney (within the meaning of section 9 of that Act) created by the patient, where the donee is acting within the scope of his authority and in accordance with that Act; and

(d)a reference to a deputy is to a deputy appointed for the patient by the Court of Protection under section 16 of that Act, where the deputy is acting within the scope of his authority and in accordance with that Act.

(10)In this section, “the appropriate national authority” means—

(a)in a case where the treatment in question would, if given, be given in England, the Secretary of State;

(b)in a case where the treatment in question would, if given, be given in Wales, the Welsh Ministers.

Prospective

28Section 27: supplementalE+W+S+N.I.

(1)Part 4 of the 1983 Act (consent to treatment) is amended as follows.

(2)In section 58 (treatment requiring consent or a second opinion)—

(a)in subsection (1)(b), after “section 57 above” insert “ or section 58A(1)(b) below ”, and

(b)in subsection (3)(b), before “has not consented to it” insert “ being so capable ”.

(3)In section 59 (plans of treatment), for “or 58” substitute “ , 58 or 58A ”.

(4)In section 60 (withdrawal of consent), for “or 58”, substitute “ , 58 or 58A ”.

(5)In section 61 (review of treatment)—

(a)in subsection (1), for “or 58(3)(b)” substitute “ , 58(3)(b) or 58A(4) or (5) ”, and

(b)in subsection (3)—

(i)for “or 58(3)(b)” substitute “ , 58(3)(b) or 58A(4) or (5) ”, and

(ii)for “and 58” substitute “ , 58 and 58A ”.

(6)In section 62 (urgent treatment), after subsection (1) insert—

(1A)Section 58A above, in so far as it relates to electro-convulsive therapy by virtue of subsection (1)(a) of that section, shall not apply to any treatment which falls within paragraph (a) or (b) of subsection (1) above.

(1B)Section 58A above, in so far as it relates to a form of treatment specified by virtue of subsection (1)(b) of that section, shall not apply to any treatment which falls within such of paragraphs (a) to (d) of subsection (1) above as may be specified in regulations under that section.

(1C)For the purposes of subsection (1B) above, the regulations—

(a)may make different provision for different cases (and may, in particular, make different provision for different forms of treatment);

(b)may make provision which applies subject to specified exceptions; and

(c)may include transitional, consequential, incidental or supplemental provision.

(7)In that section, in subsection (2), for “or 58” substitute “ , 58 or 58A ”.

(8)In section 63 (treatment not requiring consent), for “, not being treatment falling within section 57 or 58 above,” substitute “ , not being a form of treatment to which section 57, 58 or 58A above applies, ”.

(9)In section 64 (supplementary provisions), after subsection (1A) (inserted by section 12 of this Act) insert—

(1B)References in this Part of this Act to the approved clinician in charge of a patient's treatment shall, where the treatment in question is a form of treatment to which section 58A above applies and the patient falls within section 56(5) above, be construed as references to the person in charge of the treatment.

(1C)Regulations made by virtue of section 32(2)(d) above apply for the purposes of this Part as they apply for the purposes of Part 2 of this Act.

(10)In section 28 of the Mental Capacity Act 2005 (c. 9) (Mental Health Act matters), after subsection (1) insert—

(1A)Subsection (1) does not apply in relation to any form of treatment to which section 58A of that Act (electro-convulsive therapy, etc.) applies if the patient comes within subsection (7) of that section (informal patient under 18 who cannot give consent)..

29Withdrawal of consentE+W+S+N.I.

(1)Section 60 of the 1983 Act (withdrawal of consent) is amended as follows.

(2)After subsection (1) insert—

(1A)Subsection (1B) below applies where—

(a)the consent of a patient to any treatment has been given for the purposes of section 57, 58 or 58A above; but

(b)before the completion of the treatment, the patient ceases to be capable of understanding its nature, purpose and likely effects.

(1B)The patient shall, subject to section 62 below, be treated as having withdrawn his consent, and those sections shall then apply as if the remainder of the treatment were a separate form of treatment.

(1C)Subsection (1D) below applies where—

(a)a certificate has been given under section 58 or 58A above that a patient is not capable of understanding the nature, purpose and likely effects of the treatment to which the certificate applies; but

(b)before the completion of the treatment, the patient becomes capable of understanding its nature, purpose and likely effects.

(1D)The certificate shall, subject to section 62 below, cease to apply to the treatment and those sections shall then apply as if the remainder of the treatment were a separate form of treatment.

(3)In subsection (2), for “subsection (1)” substitute “ subsections (1) to (1D) ”.

AdvocacyE+W+S+N.I.

30Independent mental health advocatesE+W+S+N.I.

(1)Part 10 of the 1983 Act (miscellaneous and supplementary) is amended as follows.

(2)Before section 131 insert—

130AIndependent mental health advocates

(1)The appropriate national authority shall make such arrangements as it considers reasonable to enable persons (“independent mental health advocates”) to be available to help qualifying patients.

(2)The appropriate national authority may by regulations make provision as to the appointment of persons as independent mental health advocates.

(3)The regulations may, in particular, provide—

(a)that a person may act as an independent mental health advocate only in such circumstances, or only subject to such conditions, as may be specified in the regulations;

(b)for the appointment of a person as an independent mental health advocate to be subject to approval in accordance with the regulations.

(4)In making arrangements under this section, the appropriate national authority shall have regard to the principle that any help available to a patient under the arrangements should, so far as practicable, be provided by a person who is independent of any person who is professionally concerned with the patient's medical treatment.

(5)For the purposes of subsection (4) above, a person is not to be regarded as professionally concerned with a patient's medical treatment merely because he is representing him in accordance with arrangements—

(a)under section 35 of the Mental Capacity Act 2005; or

(b)of a description specified in regulations under this section.

(6)Arrangements under this section may include provision for payments to be made to, or in relation to, persons carrying out functions in accordance with the arrangements.

(7)Regulations under this section—

(a)may make different provision for different cases;

(b)may make provision which applies subject to specified exceptions;

(c)may include transitional, consequential, incidental or supplemental provision.

130BArrangements under section 130A

(1)The help available to a qualifying patient under arrangements under section 130A above shall include help in obtaining information about and understanding—

(a)the provisions of this Act by virtue of which he is a qualifying patient;

(b)any conditions or restrictions to which he is subject by virtue of this Act;

(c)what (if any) medical treatment is given to him or is proposed or discussed in his case;

(d)why it is given, proposed or discussed;

(e)the authority under which it is, or would be, given; and

(f)the requirements of this Act which apply, or would apply, in connection with the giving of the treatment to him.

(2)The help available under the arrangements to a qualifying patient shall also include—

(a)help in obtaining information about and understanding any rights which may be exercised under this Act by or in relation to him; and

(b)help (by way of representation or otherwise) in exercising those rights.

(3)For the purpose of providing help to a patient in accordance with the arrangements, an independent mental health advocate may—

(a)visit and interview the patient in private;

(b)visit and interview any person who is professionally concerned with his medical treatment;

(c)require the production of and inspect any records relating to his detention or treatment in any hospital or registered establishment or to any after-care services provided for him under section 117 above;

(d)require the production of and inspect any records of, or held by, a local social services authority which relate to him.

(4)But an independent mental health advocate is not entitled to the production of, or to inspect, records in reliance on subsection (3)(c) or (d) above unless—

(a)in a case where the patient has capacity or is competent to consent, he does consent; or

(b)in any other case, the production or inspection would not conflict with a decision made by a donee or deputy or the Court of Protection and the person holding the records, having regard to such matters as may be prescribed in regulations under section 130A above, considers that—

(i)the records may be relevant to the help to be provided by the advocate; and

(ii)the production or inspection is appropriate.

(5)For the purpose of providing help to a patient in accordance with the arrangements, an independent mental health advocate shall comply with any reasonable request made to him by any of the following for him to visit and interview the patient—

(a)the person (if any) appearing to the advocate to be the patient's nearest relative;

(b)the responsible clinician for the purposes of this Act;

(c)an approved mental health professional.

(6)But nothing in this Act prevents the patient from declining to be provided with help under the arrangements.

(7)In subsection (4) above—

(a)the reference to a patient who has capacity is to be read in accordance with the Mental Capacity Act 2005;

(b)the reference to a donee is to a donee of a lasting power of attorney (within the meaning of section 9 of that Act) created by the patient, where the donee is acting within the scope of his authority and in accordance with that Act;

(c)the reference to a deputy is to a deputy appointed for the patient by the Court of Protection under section 16 of that Act, where the deputy is acting within the scope of his authority and in accordance with that Act.

130CSection 130A: supplemental

(1)This section applies for the purposes of section 130A above.

(2)A patient is a qualifying patient if he is—

(a)liable to be detained under this Act (otherwise than by virtue of section 4 or 5(2) or (4) above or section 135 or 136 below);

(b)subject to guardianship under this Act; or

(c)a community patient.

(3)A patient is also a qualifying patient if—

(a)not being a qualifying patient falling within subsection (2) above, he discusses with a registered medical practitioner or approved clinician the possibility of being given a form of treatment to which section 57 above applies; or

(b)not having attained the age of 18 years and not being a qualifying patient falling within subsection (2) above, he discusses with a registered medical practitioner or approved clinician the possibility of being given a form of treatment to which section 58A above applies.

(4)Where a patient who is a qualifying patient falling within subsection (3) above is informed that the treatment concerned is proposed in his case, he remains a qualifying patient falling within that subsection until—

(a)the proposal is withdrawn; or

(b)the treatment is completed or discontinued.

(5)References to the appropriate national authority are—

(a)in relation to a qualifying patient in England, to the Secretary of State;

(b)in relation to a qualifying patient in Wales, to the Welsh Ministers.

(6)For the purposes of subsection (5) above—

(a)a qualifying patient falling within subsection (2)(a) above is to be regarded as being in the territory in which the hospital or registered establishment in which he is liable to be detained is situated;

(b)a qualifying patient falling within subsection (2)(b) above is to be regarded as being in the territory in which the area of the responsible local social services authority within the meaning of section 34(3) above is situated;

(c)a qualifying patient falling within subsection (2)(c) above is to be regarded as being in the territory in which the responsible hospital is situated;

(d)a qualifying patient falling within subsection (3) above is to be regarded as being in the territory determined in accordance with arrangements made for the purposes of this paragraph, and published, by the Secretary of State and the Welsh Ministers.

130DDuty to give information about independent mental health advocates

(1)The responsible person in relation to a qualifying patient (within the meaning given by section 130C above) shall take such steps as are practicable to ensure that the patient understands—

(a)that help is available to him from an independent mental health advocate; and

(b)how he can obtain that help.

(2)In subsection (1) above, “the responsible person” means—

(a)in relation to a qualifying patient falling within section 130C(2)(a) above (other than one also falling within paragraph (b) below), the managers of the hospital or registered establishment in which he is liable to be detained;

(b)in relation to a qualifying patient falling within section 130C(2)(a) above and conditionally discharged by virtue of section 42(2), 73 or 74 above, the responsible clinician;

(c)in relation to a qualifying patient falling within section 130C(2)(b) above, the responsible local social services authority within the meaning of section 34(3) above;

(d)in relation to a qualifying patient falling within section 130C(2)(c) above, the managers of the responsible hospital;

(e)in relation to a qualifying patient falling within section 130C(3) above, the registered medical practitioner or approved clinician with whom the patient first discusses the possibility of being given the treatment concerned.

(3)The steps to be taken under subsection (1) above shall be taken—

(a)where the responsible person falls within subsection (2)(a) above, as soon as practicable after the patient becomes liable to be detained;

(b)where the responsible person falls within subsection (2)(b) above, as soon as practicable after the conditional discharge;

(c)where the responsible person falls within subsection (2)(c) above, as soon as practicable after the patient becomes subject to guardianship;

(d)where the responsible person falls within subsection (2)(d) above, as soon as practicable after the patient becomes a community patient;

(e)where the responsible person falls within subsection (2)(e) above, while the discussion with the patient is taking place or as soon as practicable thereafter.

(4)The steps to be taken under subsection (1) above shall include giving the requisite information both orally and in writing.

(5)The responsible person in relation to a qualifying patient falling within section 130C(2) above (other than a patient liable to be detained by virtue of Part 3 of this Act) shall, except where the patient otherwise requests, take such steps as are practicable to furnish the person (if any) appearing to the responsible person to be the patient's nearest relative with a copy of any information given to the patient in writing under subsection (1) above.

(6)The steps to be taken under subsection (5) above shall be taken when the information concerned is given to the patient or within a reasonable time thereafter.

(3)In section 134 (patients' correspondence), in subsection (3A), for paragraph (b) substitute—

(b)independent advocacy services” means services provided under—

(i)arrangements under section 130A above;

(ii)arrangements under section 248 of the National Health Service Act 2006 or section 187 of the National Health Service (Wales) Act 2006; or

(iii)arrangements of a description prescribed as mentioned in paragraph (a) above.

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Commencement Information

I5S. 30 not in force at Royal Assent see s. 56(1); s. 30(2)(3) in force for specified purposes at 1.4.2008 by S.I. 2008/745, arts. 2(b), 3(d); s. 30 in force insofar as not already in force for W. at 3.11.2008 by S.I. 2008/2561, art. 2(c) (with art. 3, Sch.); s. 30 in force insofar as not already in force for E. at. 1.4.2009 by S.I. 2009/139, art. 2(a)

Accommodation, etc.E+W+S+N.I.

31Accommodation, etc.E+W+S+N.I.

(1)The 1983 Act is amended as follows.

(2)In section 39 (power of court to request information about hospitals), after subsection (1) insert—

(1A)In relation to a person who has not attained the age of 18 years, subsection (1) above shall have effect as if the reference to the making of a hospital order included a reference to a remand under section 35 or 36 above or the making of an order under section 44 below.

(1B)Where the person concerned has not attained the age of 18 years, the information which may be requested under subsection (1) above includes, in particular, information about the availability of accommodation or facilities designed so as to be specially suitable for patients who have not attained the age of 18 years.

(3)After section 131 insert—

131AAccommodation, etc. for children

(1)This section applies in respect of any patient who has not attained the age of 18 years and who—

(a)is liable to be detained in a hospital under this Act; or

(b)is admitted to, or remains in, a hospital in pursuance of such arrangements as are mentioned in section 131(1) above.

(2)The managers of the hospital shall ensure that the patient's environment in the hospital is suitable having regard to his age (subject to his needs).

(3)For the purpose of deciding how to fulfil the duty under subsection (2) above, the managers shall consult a person who appears to them to have knowledge or experience of cases involving patients who have not attained the age of 18 years which makes him suitable to be consulted.

(4)In this section, “hospital” includes a registered establishment.

(4)In section 140 (the title to which becomes “Notification of hospitals having arrangements for special cases”), for the words from “for the reception” to the end substitute

(a)for the reception of patients in cases of special urgency;

(b)for the provision of accommodation or facilities designed so as to be specially suitable for patients who have not attained the age of 18 years.

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Commencement Information

I6S. 31 not in force at Royal Assent see s. 56(1); s. 31(1)(2)(4) in force at 3.11.2008 by S.I. 2008/1900, art. 2(h); s. 31(3) in force for E.W. at 1.4.2010 by S.I. 2010/143, art. 2

Chapter 4E+W+S+N.I.Supervised community treatment

32Community treatment orders, etcE+W+S+N.I.

(1)The 1983 Act is amended as follows.

(2)After section 17 insert—

17ACommunity treatment orders

(1)The responsible clinician may by order in writing discharge a detained patient from hospital subject to his being liable to recall in accordance with section 17E below.

(2)A detained patient is a patient who is liable to be detained in a hospital in pursuance of an application for admission for treatment.

(3)An order under subsection (1) above is referred to in this Act as a “community treatment order”.

(4)The responsible clinician may not make a community treatment order unless—

(a)in his opinion, the relevant criteria are met; and

(b)an approved mental health professional states in writing—

(i)that he agrees with that opinion; and

(ii)that it is appropriate to make the order.

(5)The relevant criteria are—

(a)the patient is suffering from mental disorder of a nature or degree which makes it appropriate for him to receive medical treatment;

(b)it is necessary for his health or safety or for the protection of other persons that he should receive such treatment;

(c)subject to his being liable to be recalled as mentioned in paragraph (d) below, such treatment can be provided without his continuing to be detained in a hospital;

(d)it is necessary that the responsible clinician should be able to exercise the power under section 17E(1) below to recall the patient to hospital; and

(e)appropriate medical treatment is available for him.

(6)In determining whether the criterion in subsection (5)(d) above is met, the responsible clinician shall, in particular, consider, having regard to the patient's history of mental disorder and any other relevant factors, what risk there would be of a deterioration of the patient's condition if he were not detained in a hospital (as a result, for example, of his refusing or neglecting to receive the medical treatment he requires for his mental disorder).

(7)In this Act—

  • community patient” means a patient in respect of whom a community treatment order is in force;

  • the community treatment order”, in relation to such a patient, means the community treatment order in force in respect of him; and

  • the responsible hospital”, in relation to such a patient, means the hospital in which he was liable to be detained immediately before the community treatment order was made, subject to section 19A below.

17BConditions

(1)A community treatment order shall specify conditions to which the patient is to be subject while the order remains in force.

(2)But, subject to subsection (3) below, the order may specify conditions only if the responsible clinician, with the agreement of the approved mental health professional mentioned in section 17A(4)(b) above, thinks them necessary or appropriate for one or more of the following purposes—

(a)ensuring that the patient receives medical treatment;

(b)preventing risk of harm to the patient's health or safety;

(c)protecting other persons.

(3)The order shall specify—

(a)a condition that the patient make himself available for examination under section 20A below; and

(b)a condition that, if it is proposed to give a certificate under Part 4A of this Act in his case, he make himself available for examination so as to enable the certificate to be given.

(4)The responsible clinician may from time to time by order in writing vary the conditions specified in a community treatment order.

(5)He may also suspend any conditions specified in a community treatment order.

(6)If a community patient fails to comply with a condition specified in the community treatment order by virtue of subsection (2) above, that fact may be taken into account for the purposes of exercising the power of recall under section 17E(1) below.

(7)But nothing in this section restricts the exercise of that power to cases where there is such a failure.

17CDuration of community treatment order

A community treatment order shall remain in force until—

(a)the period mentioned in section 20A(1) below (as extended under any provision of this Act) expires, but this is subject to sections 21 and 22 below;

(b)the patient is discharged in pursuance of an order under section 23 below or a direction under section 72 below;

(c)the application for admission for treatment in respect of the patient otherwise ceases to have effect; or

(d)the order is revoked under section 17F below,

whichever occurs first.

17DEffect of community treatment order

(1)The application for admission for treatment in respect of a patient shall not cease to have effect by virtue of his becoming a community patient.

(2)But while he remains a community patient—

(a)the authority of the managers to detain him under section 6(2) above in pursuance of that application shall be suspended; and

(b)reference (however expressed) in this or any other Act, or in any subordinate legislation (within the meaning of the Interpretation Act 1978), to patients liable to be detained, or detained, under this Act shall not include him.

(3)And section 20 below shall not apply to him while he remains a community patient.

(4)Accordingly, authority for his detention shall not expire during any period in which that authority is suspended by virtue of subsection (2)(a) above.

17EPower to recall to hospital

(1)The responsible clinician may recall a community patient to hospital if in his opinion—

(a)the patient requires medical treatment in hospital for his mental disorder; and

(b)there would be a risk of harm to the health or safety of the patient or to other persons if the patient were not recalled to hospital for that purpose.

(2)The responsible clinician may also recall a community patient to hospital if the patient fails to comply with a condition specified under section 17B(3) above.

(3)The hospital to which a patient is recalled need not be the responsible hospital.

(4)Nothing in this section prevents a patient from being recalled to a hospital even though he is already in the hospital at the time when the power of recall is exercised; references to recalling him shall be construed accordingly.

(5)The power of recall under subsections (1) and (2) above shall be exercisable by notice in writing to the patient.

(6)A notice under this section recalling a patient to hospital shall be sufficient authority for the managers of that hospital to detain the patient there in accordance with the provisions of this Act.

17FPowers in respect of recalled patients

(1)This section applies to a community patient who is detained in a hospital by virtue of a notice recalling him there under section 17E above.

(2)The patient may be transferred to another hospital in such circumstances and subject to such conditions as may be prescribed in regulations made by the Secretary of State (if the hospital in which the patient is detained is in England) or the Welsh Ministers (if that hospital is in Wales).

(3)If he is so transferred to another hospital, he shall be treated for the purposes of this section (and section 17E above) as if the notice under that section were a notice recalling him to that other hospital and as if he had been detained there from the time when his detention in hospital by virtue of the notice first began.

(4)The responsible clinician may by order in writing revoke the community treatment order if—

(a)in his opinion, the conditions mentioned in section 3(2) above are satisfied in respect of the patient; and

(b)an approved mental health professional states in writing—

(i)that he agrees with that opinion; and

(ii)that it is appropriate to revoke the order.

(5)The responsible clinician may at any time release the patient under this section, but not after the community treatment order has been revoked.

(6)If the patient has not been released, nor the community treatment order revoked, by the end of the period of 72 hours, he shall then be released.

(7)But a patient who is released under this section remains subject to the community treatment order.

(8)In this section—

(a)the period of 72 hours” means the period of 72 hours beginning with the time when the patient's detention in hospital by virtue of the notice under section 17E above begins; and

(b)references to being released shall be construed as references to being released from that detention (and accordingly from being recalled to hospital).

17GEffect of revoking community treatment order

(1)This section applies if a community treatment order is revoked under section 17F above in respect of a patient.

(2)Section 6(2) above shall have effect as if the patient had never been discharged from hospital by virtue of the community treatment order.

(3)The provisions of this or any other Act relating to patients liable to be detained (or detained) in pursuance of an application for admission for treatment shall apply to the patient as they did before the community treatment order was made, unless otherwise provided.

(4)If, when the order is revoked, the patient is being detained in a hospital other than the responsible hospital, the provisions of this Part of this Act shall have effect as if—

(a)the application for admission for treatment in respect of him were an application for admission to that other hospital; and

(b)he had been admitted to that other hospital at the time when he was originally admitted in pursuance of the application.

(5)But, in any case, section 20 below shall have effect as if the patient had been admitted to hospital in pursuance of the application for admission for treatment on the day on which the order is revoked.

(3)After section 20 (the cross-heading immediately above which becomes “Duration of authority and discharge”) insert—

20ACommunity treatment period

(1)Subject to the provisions of this Part of this Act, a community treatment order shall cease to be in force on expiry of the period of six months beginning with the day on which it was made.

(2)That period is referred to in this Act as “the community treatment period”.

(3)The community treatment period may, unless the order has previously ceased to be in force, be extended—

(a)from its expiration for a period of six months;

(b)from the expiration of any period of extension under paragraph (a) above for a further period of one year,

and so on for periods of one year at a time.

(4)Within the period of two months ending on the day on which the order would cease to be in force in default of an extension under this section, it shall be the duty of the responsible clinician—

(a)to examine the patient; and

(b)if it appears to him that the conditions set out in subsection (6) below are satisfied and if a statement under subsection (8) below is made, to furnish to the managers of the responsible hospital a report to that effect in the prescribed form.

(5)Where such a report is furnished in respect of the patient, the managers shall, unless they discharge him under section 23 below, cause him to be informed.

(6)The conditions referred to in subsection (4) above are that—

(a)the patient is suffering from mental disorder of a nature or degree which makes it appropriate for him to receive medical treatment;

(b)it is necessary for his health or safety or for the protection of other persons that he should receive such treatment;

(c)subject to his continuing to be liable to be recalled as mentioned in paragraph (d) below, such treatment can be provided without his being detained in a hospital;

(d)it is necessary that the responsible clinician should continue to be able to exercise the power under section 17E(1) above to recall the patient to hospital; and

(e)appropriate medical treatment is available for him.

(7)In determining whether the criterion in subsection (6)(d) above is met, the responsible clinician shall, in particular, consider, having regard to the patient's history of mental disorder and any other relevant factors, what risk there would be of a deterioration of the patient's condition if he were to continue not to be detained in a hospital (as a result, for example, of his refusing or neglecting to receive the medical treatment he requires for his mental disorder).

(8)The statement referred to in subsection (4) above is a statement in writing by an approved mental health professional—

(a)that it appears to him that the conditions set out in subsection (6) above are satisfied; and

(b)that it is appropriate to extend the community treatment period.

(9)Before furnishing a report under subsection (4) above the responsible clinician shall consult one or more other persons who have been professionally concerned with the patient's medical treatment.

(10)Where a report is duly furnished under subsection (4) above, the community treatment period shall be thereby extended for the period prescribed in that case by subsection (3) above.

20BEffect of expiry of community treatment order

(1)A community patient shall be deemed to be discharged absolutely from liability to recall under this Part of this Act, and the application for admission for treatment cease to have effect, on expiry of the community treatment order, if the order has not previously ceased to be in force.

(2)For the purposes of subsection (1) above, a community treatment order expires on expiry of the community treatment period as extended under this Part of this Act, but this is subject to sections 21 and 22 below.

(4)Schedules 3 and 4 (which contain further amendments) have effect.

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Commencement Information

I7S. 32 not in force at Royal Assent see s. 56(1); s. 32(2)(4) in force for specified purposes at 1.4.2008 by S.I. 2008/745, art. 2(c); s. 32(4) in force for specified purposes at 3.11.2008 by S.I. 2008/1210, art. 2(b) (with art. 4); s. 32 in force insofar as not already in force at 3.11.2008 by S.I. 2008/1900, arts. 1(1), 2(i)

33Relationship with leave of absenceE+W+S+N.I.

(1)The 1983 Act is amended as follows.

(2)In section 17 (leave of absence from hospital), after subsection (2) insert—

(2A)But longer-term leave may not be granted to a patient unless the responsible clinician first considers whether the patient should be dealt with under section 17A instead.

(2B)For these purposes, longer-term leave is granted to a patient if—

(a)leave of absence is granted to him under this section either indefinitely or for a specified period of more than seven consecutive days; or

(b)a specified period is extended under this section such that the total period for which leave of absence will have been granted to him under this section exceeds seven consecutive days.

(3)In Part 2 of Schedule 1 (patients subject to special restrictions), in paragraph 3 after paragraph (a) insert—

(aa)subsections (2A) and (2B) shall be omitted;.

34Consent to treatmentE+W+S+N.I.

(1)Part 4 of the 1983 Act (consent to treatment) is amended as follows.

(2)For section 56 substitute—

56Patients to whom Part 4 applies

(1)Section 57 and, so far as relevant to that section, sections 59 to 62 below apply to any patient.

(2)Subject to that and to subsection (5) below, this Part of this Act applies to a patient only if he falls within subsection (3) or (4) below.

(3)A patient falls within this subsection if he is liable to be detained under this Act but not if—

(a)he is so liable by virtue of an emergency application and the second medical recommendation referred to in section 4(4)(a) above has not been given and received;

(b)he is so liable by virtue of section 5(2) or (4) or 35 above or section 135 or 136 below or by virtue of a direction for his detention in a place of safety under section 37(4) or 45A(5) above; or

(c)he has been conditionally discharged under section 42(2) above or section 73 or 74 below and he is not recalled to hospital.

(4)A patient falls within this subsection if—

(a)he is a community patient; and

(b)he is recalled to hospital under section 17E above.

(5)Section 58A and, so far as relevant to that section, sections 59 to 62 below also apply to any patient who—

(a)does not fall within subsection (3) above;

(b)is not a community patient; and

(c)has not attained the age of 18 years.

(3)In section 61 (review of treatment), in subsection (1)—

(a)before “a report on” insert “ , or by virtue of section 62A below in accordance with a Part 4A certificate (within the meaning of that section), ”, and

(b)in paragraph (a) for “or 21B(2) above renewing the authority for the detention” substitute “ , 20A(4) or 21B(2) above in respect ”.

(4)After section 62 insert—

62ATreatment on recall of community patient or revocation of order

(1)This section applies where—

(a)a community patient is recalled to hospital under section 17E above; or

(b)a patient is liable to be detained under this Act following the revocation of a community treatment order under section 17F above in respect of him.

(2)For the purposes of section 58(1)(b) above, the patient is to be treated as if he had remained liable to be detained since the making of the community treatment order.

(3)But section 58 above does not apply to treatment given to the patient if—

(a)the certificate requirement is met for the purposes of section 64C or 64E below; or

(b)as a result of section 64B(4) or 64E(4) below, the certificate requirement would not apply (were the patient a community patient not recalled to hospital under section 17E above).

(4)Section 58A above does not apply to treatment given to the patient if there is authority to give the treatment, and the certificate requirement is met, for the purposes of section 64C or 64E below.

(5)In a case where this section applies, the certificate requirement is met only in so far as—

(a)the Part 4A certificate expressly provides that it is appropriate for one or more specified forms of treatment to be given to the patient in that case (subject to such conditions as may be specified); or

(b)a notice having been given under subsection (5) of section 64H below, treatment is authorised by virtue of subsection (8) of that section.

(6)Subsection (5)(a) above shall not preclude the continuation of any treatment, or of treatment under any plan, pending compliance with section 58 or 58A above if the approved clinician in charge of the treatment considers that the discontinuance of the treatment, or of the treatment under the plan, would cause serious suffering to the patient.

(7)In a case where subsection (1)(b) above applies, subsection (3) above only applies pending compliance with section 58 above.

(8)In subsection (5) above—

  • Part 4A certificate” has the meaning given in section 64H below; and

  • specified”, in relation to a Part 4A certificate, means specified in the certificate.

35Authority to treatE+W+S+N.I.

(1)After Part 4 of the 1983 Act, insert the following Part—

Part 4A E+W+S+N.I.Treatment of community patients not recalled to hospital
64AMeaning of “relevant treatment”

In this Part of this Act “relevant treatment”, in relation to a patient, means medical treatment which—

(a)is for the mental disorder from which the patient is suffering; and

(b)is not a form of treatment to which section 57 above applies.

64BAdult community patients

(1)This section applies to the giving of relevant treatment to a community patient who—

(a)is not recalled to hospital under section 17E above; and

(b)has attained the age of 16 years.

(2)The treatment may not be given to the patient unless—

(a)there is authority to give it to him; and

(b)if it is section 58 type treatment or section 58A type treatment, the certificate requirement is met.

(3)But the certificate requirement does not apply if—

(a)giving the treatment to the patient is authorised in accordance with section 64G below; or

(b)the treatment is immediately necessary and—

(i)the patient has capacity to consent to it and does consent to it; or

(ii)a donee or deputy or the Court of Protection consents to the treatment on the patient's behalf.

(4)Nor does the certificate requirement apply in so far as the administration of medicine to the patient at any time during the period of one month beginning with the day on which the community treatment order is made is section 58 type treatment.

(5)The reference in subsection (4) above to the administration of medicine does not include any form of treatment specified under section 58(1)(a) above.

64CSection 64B: supplemental

(1)This section has effect for the purposes of section 64B above.

(2)There is authority to give treatment to a patient if—

(a)he has capacity to consent to it and does consent to it;

(b)a donee or deputy or the Court of Protection consents to it on his behalf; or

(c)giving it to him is authorised in accordance with section 64D or 64G below.

(3)Relevant treatment is section 58 type treatment or section 58A type treatment if, at the time when it is given to the patient, section 58 or 58A above (respectively) would have applied to it, had the patient remained liable to be detained at that time (rather than being a community patient).

(4)The certificate requirement is met in respect of treatment to be given to a patient if—

(a)a registered medical practitioner appointed for the purposes of Part 4 of this Act (not being the responsible clinician or the person in charge of the treatment) has certified in writing that it is appropriate for the treatment to be given or for the treatment to be given subject to such conditions as may be specified in the certificate; and

(b)if conditions are so specified, the conditions are satisfied.

(5)In a case where the treatment is section 58 type treatment, treatment is immediately necessary if—

(a)it is immediately necessary to save the patient's life; or

(b)it is immediately necessary to prevent a serious deterioration of the patient's condition and is not irreversible; or

(c)it is immediately necessary to alleviate serious suffering by the patient and is not irreversible or hazardous; or

(d)it is immediately necessary, represents the minimum interference necessary to prevent the patient from behaving violently or being a danger to himself or others and is not irreversible or hazardous.

(6)In a case where the treatment is section 58A type treatment by virtue of subsection (1)(a) of that section, treatment is immediately necessary if it falls within paragraph (a) or (b) of subsection (5) above.

(7)In a case where the treatment is section 58A type treatment by virtue of subsection (1)(b) of that section, treatment is immediately necessary if it falls within such of paragraphs (a) to (d) of subsection (5) above as may be specified in regulations under that section.

(8)For the purposes of subsection (7) above, the regulations—

(a)may make different provision for different cases (and may, in particular, make different provision for different forms of treatment);

(b)may make provision which applies subject to specified exceptions; and

(c)may include transitional, consequential, incidental or supplemental provision.

(9)Subsection (3) of section 62 above applies for the purposes of this section as it applies for the purposes of that section.

64DAdult community patients lacking capacity

(1)A person is authorised to give relevant treatment to a patient as mentioned in section 64C(2)(c) above if the conditions in subsections (2) to (6) below are met.

(2)The first condition is that, before giving the treatment, the person takes reasonable steps to establish whether the patient lacks capacity to consent to the treatment.

(3)The second condition is that, when giving the treatment, he reasonably believes that the patient lacks capacity to consent to it.

(4)The third condition is that—

(a)he has no reason to believe that the patient objects to being given the treatment; or

(b)he does have reason to believe that the patient so objects, but it is not necessary to use force against the patient in order to give the treatment.

(5)The fourth condition is that—

(a)he is the person in charge of the treatment and an approved clinician; or

(b)the treatment is given under the direction of that clinician.

(6)The fifth condition is that giving the treatment does not conflict with—

(a)an advance decision which he is satisfied is valid and applicable; or

(b)a decision made by a donee or deputy or the Court of Protection.

(7)In this section—

(a)reference to an advance decision is to an advance decision (within the meaning of the Mental Capacity Act 2005) made by the patient; and

(b)valid and applicable”, in relation to such a decision, means valid and applicable to the treatment in question in accordance with section 25 of that Act.

64EChild community patients

(1)This section applies to the giving of relevant treatment to a community patient who—

(a)is not recalled to hospital under section 17E above; and

(b)has not attained the age of 16 years.

(2)The treatment may not be given to the patient unless—

(a)there is authority to give it to him; and

(b)if it is section 58 type treatment or section 58A type treatment, the certificate requirement is met.

(3)But the certificate requirement does not apply if—

(a)giving the treatment to the patient is authorised in accordance with section 64G below; or

(b)in a case where the patient is competent to consent to the treatment and does consent to it, the treatment is immediately necessary.

(4)Nor does the certificate requirement apply in so far as the administration of medicine to the patient at any time during the period of one month beginning with the day on which the community treatment order is made is section 58 type treatment.

(5)The reference in subsection (4) above to the administration of medicine does not include any form of treatment specified under section 58(1)(a) above.

(6)For the purposes of subsection (2)(a) above, there is authority to give treatment to a patient if—

(a)he is competent to consent to it and he does consent to it; or

(b)giving it to him is authorised in accordance with section 64F or 64G below.

(7)Subsections (3) to (9) of section 64C above have effect for the purposes of this section as they have effect for the purposes of section 64B above.

(8)Regulations made by virtue of section 32(2)(d) above apply for the purposes of this section as they apply for the purposes of Part 2 of this Act.

64FChild community patients lacking competence

(1)A person is authorised to give relevant treatment to a patient as mentioned in section 64E(6)(b) above if the conditions in subsections (2) to (5) below are met.

(2)The first condition is that, before giving the treatment, the person takes reasonable steps to establish whether the patient is competent to consent to the treatment.

(3)The second condition is that, when giving the treatment, he reasonably believes that the patient is not competent to consent to it.

(4)The third condition is that—

(a)he has no reason to believe that the patient objects to being given the treatment; or

(b)he does have reason to believe that the patient so objects, but it is not necessary to use force against the patient in order to give the treatment.

(5)The fourth condition is that—

(a)he is the person in charge of the treatment and an approved clinician; or

(b)the treatment is given under the direction of that clinician.

64GEmergency treatment for patients lacking capacity or competence

(1)A person is also authorised to give relevant treatment to a patient as mentioned in section 64C(2)(c) or 64E(6)(b) above if the conditions in subsections (2) to (4) below are met.

(2)The first condition is that, when giving the treatment, the person reasonably believes that the patient lacks capacity to consent to it or, as the case may be, is not competent to consent to it.

(3)The second condition is that the treatment is immediately necessary.

(4)The third condition is that if it is necessary to use force against the patient in order to give the treatment—

(a)the treatment needs to be given in order to prevent harm to the patient; and

(b)the use of such force is a proportionate response to the likelihood of the patient's suffering harm, and to the seriousness of that harm.

(5)Subject to subsections (6) to (8) below, treatment is immediately necessary if—

(a)it is immediately necessary to save the patient's life; or

(b)it is immediately necessary to prevent a serious deterioration of the patient's condition and is not irreversible; or

(c)it is immediately necessary to alleviate serious suffering by the patient and is not irreversible or hazardous; or

(d)it is immediately necessary, represents the minimum interference necessary to prevent the patient from behaving violently or being a danger to himself or others and is not irreversible or hazardous.

(6)Where the treatment is section 58A type treatment by virtue of subsection (1)(a) of that section, treatment is immediately necessary if it falls within paragraph (a) or (b) of subsection (5) above.

(7)Where the treatment is section 58A type treatment by virtue of subsection (1)(b) of that section, treatment is immediately necessary if it falls within such of paragraphs (a) to (d) of subsection (5) above as may be specified in regulations under section 58A above.

(8)For the purposes of subsection (7) above, the regulations—

(a)may make different provision for different cases (and may, in particular, make different provision for different forms of treatment);

(b)may make provision which applies subject to specified exceptions; and

(c)may include transitional, consequential, incidental or supplemental provision.

(9)Subsection (3) of section 62 above applies for the purposes of this section as it applies for the purposes of that section.

64HCertificates: supplementary provisions

(1)A certificate under section 64B(2)(b) or 64E(2)(b) above (a “Part 4A certificate”) may relate to a plan of treatment under which the patient is to be given (whether within a specified period or otherwise) one or more forms of section 58 type treatment or section 58A type treatment.

(2)A Part 4A certificate shall be in such form as may be prescribed by regulations made by the appropriate national authority.

(3)Before giving a Part 4A certificate, 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)at least one shall be a person who is not a registered medical practitioner; and

(b)neither shall be the patient's responsible clinician or the person in charge of the treatment in question.

(4)Where a patient is given treatment in accordance with a Part 4A certificate, a report on the treatment and the patient's condition shall be given by the person in charge of the treatment to the appropriate national authority if required by that authority.

(5)The appropriate national authority may at any time give notice directing that a Part 4A certificate shall not apply to treatment given to a patient after a date specified in the notice, and the relevant section shall then apply to any such treatment as if that certificate had not been given.

(6)The relevant section is—

(a)if the patient is not recalled to hospital in accordance with section 17E above, section 64B or 64E above;

(b)if the patient is so recalled or is liable to be detained under this Act following revocation of the community treatment order under section 17F above—

(i)section 58 above, in the case of section 58 type treatment;

(ii)section 58A above, in the case of section 58A type treatment;

(subject to section 62A(2) above).

(7)The notice under subsection (5) above shall be given to the person in charge of the treatment in question.

(8)Subsection (5) above shall not preclude the continuation of any treatment or of treatment under any plan pending compliance with the relevant section if the person in charge of the treatment considers that the discontinuance of the treatment or of treatment under the plan would cause serious suffering to the patient.

(9)In this section, “the appropriate national authority” means—

(a)in relation to community patients in respect of whom the responsible hospital is in England, the Secretary of State;

(b)in relation to community patients in respect of whom the responsible hospital is in Wales, the Welsh Ministers.

64ILiability for negligence

Nothing in section 64D, 64F or 64G above excludes a person's civil liability for loss or damage, or his criminal liability, resulting from his negligence in doing anything authorised to be done by that section.

64JFactors to be considered in determining whether patient objects to treatment

(1)In assessing for the purposes of this Part whether he has reason to believe that a patient objects to treatment, a person shall consider all the circumstances so far as they are reasonably ascertainable, including the patient's behaviour, wishes, feelings, views, beliefs and values.

(2)But circumstances from the past shall be considered only so far as it is still appropriate to consider them.

64KInterpretation of Part 4A

(1)This Part of this Act is to be construed as follows.

(2)References to a patient who lacks capacity are to a patient who lacks capacity within the meaning of the Mental Capacity Act 2005.

(3)References to a patient who has capacity are to be read accordingly.

(4)References 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 his authority and in accordance with that Act.

(5)References 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 his authority and in accordance with that Act.

(6)Reference to the responsible clinician shall be construed as a reference to the responsible clinician within the meaning of Part 2 of this Act.

(7)References to a hospital include a registered establishment.

(8)Section 64(3) above applies for the purposes of this Part of this Act as it applies for the purposes of Part 4 of this Act.

(2)In section 119 of the 1983 Act (practitioners approved for Part 4 and section 118)—

(a)in subsection (2)—

(i)after “those provisions” insert “ or under Part 4A of this Act ”,

(ii)in paragraph (a), for “in a registered establishment” substitute “ in a hospital or registered establishment or any community patient in a hospital or establishment of any description or (if access is granted) other place ”, and

(iii)in paragraph (b), for “in that home” substitute “ there ”, and

(b)after subsection (2) insert—

(3)In this section, “establishment of any description” shall be construed in accordance with section 4(8) of the Care Standards Act 2000.

(3)In section 121 of the 1983 Act (Mental Health Act Commission), in subsection (2)(b) after “61” insert “ , 64H(5) ”.

(4)The Mental Capacity Act 2005 (c. 9) is amended as follows.

(5)In section 28 (Mental Health Act matters), after subsection (1A) (inserted by section 28 of this Act) insert—

(1B)Section 5 does not apply to an act to which section 64B of the Mental Health Act applies (treatment of community patients not recalled to hospital).

(6)In section 37 (independent mental capacity advocates: provision of serious medical treatment by NHS body), in subsection (2) after “Part 4” insert “ or 4A ”.

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Commencement Information

I8S. 35 not in force at Royal Assent see s. 56(1); s. 35 in force for specified purposes at 1.4.2008 by S.I. 2008/745, arts. 2(d), 3(e); s. 35 in force insofar as not already in force at 3.11.2008 by S.I. 2008/1900, arts. 1(1), 2(k)

36Repeal of provisions for after-care under supervisionE+W+S+N.I.

(1)The 1983 Act is amended as follows.

(2)Sections 25A to 25J (after-care under supervision) are omitted.

(3)In section 66 (applications to tribunals), in subsection (2)(c), for “cases mentioned in paragraphs (c) and (ga)” substitute “ case mentioned in paragraph (c) ”.

(4)In Part 1 of Schedule 1 (application of certain provisions to patients subject to hospital and guardianship orders: patients not subject to special restrictions), in paragraph 1, for “25C” substitute “ 26 ”.

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Commencement Information

I9S. 36 not in force at Royal Assent see s. 56(1); s. 36 in force at 3.11.2008 by S.I. 2008/1210, arts. 1(1)(b), 2(c) (with arts. 4, 5)

Chapter 5E+W+S+N.I.Mental Health Review Tribunals

37ReferencesE+W+S+N.I.

(1)The 1983 Act is amended as follows.

(2)In section 21 (special provision as to patients absent without leave), after subsection (2) insert—

(3)Where a patient is absent without leave on the day on which (apart from this section) the managers would be required under section 68 below to refer the patient's case to a Mental Health Review Tribunal, that requirement shall not apply unless and until—

(a)the patient is taken into custody under section 18 above and returned to the hospital where he ought to be; or

(b)the patient returns himself to the hospital where he ought to be within the period during which he can be taken into custody under section 18 above.

(3)For section 68 substitute—

68Duty of managers of hospitals to refer cases to tribunal

(1)This section applies in respect of the following patients—

(a)a patient who is admitted to a hospital in pursuance of an application for admission for assessment;

(b)a patient who is admitted to a hospital in pursuance of an application for admission for treatment;

(c)a community patient;

(d)a patient whose community treatment order is revoked under section 17F above;

(e)a patient who is transferred from guardianship to a hospital in pursuance of regulations made under section 19 above.

(2)On expiry of the period of six months beginning with the applicable day, the managers of the hospital shall refer the patient's case to a Mental Health Review Tribunal.

(3)But they shall not do so if during that period—

(a)any right has been exercised by or in respect of the patient by virtue of any of paragraphs (b), (ca), (cb), (e), (g) and (h) of section 66(1) above;

(b)a reference has been made in respect of the patient under section 67(1) above, not being a reference made while the patient is or was liable to be detained in pursuance of an application for admission for assessment; or

(c)a reference has been made in respect of the patient under subsection (7) below.

(4)A person who applies to a tribunal but subsequently withdraws his application shall be treated for these purposes as not having exercised his right to apply, and if he withdraws his application on a date after expiry of the period mentioned in subsection (2) above, the managers shall refer the patient's case as soon as possible after that date.

(5)In subsection (2) above, “the applicable day” means—

(a)in the case of a patient who is admitted to a hospital in pursuance of an application for admission for assessment, the day on which the patient was so admitted;

(b)in the case of a patient who is admitted to a hospital in pursuance of an application for admission for treatment—

(i)the day on which the patient was so admitted; or

(ii)if, when he was so admitted, he was already liable to be detained in pursuance of an application for admission for assessment, the day on which he was originally admitted in pursuance of the application for admission for assessment;

(c)in the case of a community patient or a patient whose community treatment order is revoked under section 17F above, the day mentioned in sub-paragraph (i) or (ii), as the case may be, of paragraph (b) above;

(d)in the case of a patient who is transferred from guardianship to a hospital, the day on which he was so transferred.

(6)The managers of the hospital shall also refer the patient's case to a Mental Health Review Tribunal if a period of more than three years (or, if the patient has not attained the age of 18 years, one year) has elapsed since his case was last considered by such a tribunal, whether on his own application or otherwise.

(7)If, in the case of a community patient, the community treatment order is revoked under section 17F above, the managers of the hospital shall also refer the patient's case to a Mental Health Review Tribunal as soon as possible after the order is revoked.

(8)For the purposes of furnishing information for the purposes of a reference under this section, a registered medical practitioner or approved clinician authorised by or on behalf of the patient may at any reasonable time—

(a)visit and examine the patient in private; and

(b)require the production of and inspect any records relating to the detention or treatment of the patient in any hospital or any after-care services provided for him under section 117 below.

(9)Reference in this section to the managers of the hospital—

(a)in relation to a community patient, is to the managers of the responsible hospital;

(b)in relation to any other patient, is to the managers of the hospital in which he is liable to be detained.

68APower to reduce periods under section 68

(1)The appropriate national authority may from time to time by order amend subsection (2) or (6) of section 68 above so as to substitute for a period mentioned there such shorter period as is specified in the order.

(2)The order may include such transitional, consequential, incidental or supplemental provision as the appropriate national authority thinks fit.

(3)The order may, in particular, make provision for a case where—

(a)a patient in respect of whom subsection (1) of section 68 above applies is, or is about to be, transferred from England to Wales or from Wales to England; and

(b)the period by reference to which subsection (2) or (6) of that section operates for the purposes of the patient's case is not the same in one territory as it is in the other.

(4)A patient is transferred from one territory to the other if—

(a)he is transferred from a hospital, or from guardianship, in one territory to a hospital in the other in pursuance of regulations made under section 19 above;

(b)he is removed under subsection (3) of that section from a hospital or accommodation in one territory to a hospital or accommodation in the other;

(c)he is a community patient responsibility for whom is assigned from a hospital in one territory to a hospital in the other in pursuance of regulations made under section 19A above;

(d)on the revocation of a community treatment order in respect of him under section 17F above he is detained in a hospital in the territory other than the one in which the responsible hospital was situated; or

(e)he is transferred or removed under section 123 below from a hospital in one territory to a hospital in the other.

(5)Provision made by virtue of subsection (3) above may require or authorise the managers of a hospital determined in accordance with the order to refer the patient's case to a Mental Health Review Tribunal.

(6)In so far as making provision by virtue of subsection (3) above, the order—

(a)may make different provision for different cases;

(b)may make provision which applies subject to specified exceptions.

(7)Where the appropriate national authority for one territory makes an order under subsection (1) above, the appropriate national authority for the other territory may by order make such provision in consequence of the order as it thinks fit.

(8)An order made under subsection (7) above may, in particular, make provision for a case within subsection (3) above (and subsections (4) to (6) above shall apply accordingly).

(9)In this section, “the appropriate national authority” means—

(a)in relation to a hospital in England, the Secretary of State;

(b)in relation to a hospital in Wales, the Welsh Ministers.

(4)In section 71 (references by Secretary of State concerning restricted patients), after subsection (3) insert—

(3A)An order under subsection (3) above may include such transitional, consequential, incidental or supplemental provision as the Secretary of State thinks fit.

(5)In section 143 (general provisions as to regulations, orders and rules)—

(a)in subsection (2)—

(i)after “order made” insert “ by the Secretary of State ”, and

(ii)after “54A” insert “ or 68A(7) ”, and

(b)in subsection (3)—

(i)after “made” insert “ by the Secretary of State ”, and

(ii)for “68(4)” substitute “ 68A(1) ”.

(6)In Part 1 of Schedule 1 to that Act (application of certain provisions to patients subject to hospital and guardianship orders: patients not subject to special restrictions)—

(a)in paragraph 2—

(i)for “and 66” substitute “ , 66 and 68 ”, and

(ii)for “to 9” substitute “ to 10 ”, and

(b)after paragraph 9 insert—

In section 68—

(a)in subsection (1) paragraph (a) shall be omitted; and

(b)subsections (2) to (5) shall apply if the patient falls within paragraph (e) of subsection (1), but not otherwise.

38OrganisationE+W+S+N.I.

(1)The 1983 Act is amended as follows.

(2)In section 65 (Mental Health Review Tribunals), for subsections (1) to (1C) substitute—

(1)There shall be—

(a)a Mental Health Review Tribunal for England; and

(b)a Mental Health Review Tribunal for Wales.

(1A)The purpose of the Mental Health Review Tribunals is to deal with applications and references by and in respect of patients under the provisions of this Act.

(3)In section 78 (procedure of tribunals)—

(a)in subsections (2)(a) and (k) and (6), for “chairman” substitute “ President ”,

(b)F2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(c)F2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(d)in subsection (4)(a), for “president” substitute “ chairman ”, and

(e)in subsection (6) omit “, if for any reason he is unable to act,”.

(4)F2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(5)Schedule 2 (Mental Health Review Tribunals) is amended as set out in subsections (6) to (9).

(6)For paragraph 3 substitute—

3(1)The Lord Chancellor shall appoint one of the legal members of the Mental Health Review Tribunal for England to be the President of that tribunal.

(2)The Lord Chancellor shall appoint one of the legal members of the Mental Health Review Tribunal for Wales to be the President of that tribunal.

(7)In paragraph 4—

(a)for “chairman”, in each place, substitute “ President ”, and

(b)omit “, if for any reason he is unable to act,”.

(8)F2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(9)In paragraph 6—

(a)for “chairman”, in each place, substitute “ President ”, and

(b)for “president”, in each place, substitute “ chairman ”.

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Amendments (Textual)

Commencement Information

I10S. 38 not in force at Royal Assent see s. 56(1); s. 38(1)(2)(3)(e)(5)(7)(b) in force for specified purposes and jurisdictions at 3.11.2008 by S.I. 2008/1900, art. 2(n)

Chapter 6E+W+S+N.I.Cross-border patients

39Cross-border arrangementsE+W+S+N.I.

(1)At the end of section 17 of the 1983 Act (leave of absence) insert—

(6)Subsection (7) below applies to a person who is granted leave by or by virtue of a provision—

(a)in force in Scotland, Northern Ireland, any of the Channel Islands or the Isle of Man; and

(b)corresponding to subsection (1) above.

(7)For the purpose of giving effect to a direction or condition imposed by virtue of a provision corresponding to subsection (3) above, the person may be conveyed to a place in, or kept in custody or detained at a place of safety in, England and Wales by a person authorised in that behalf by the direction or condition.

(2)Schedule 5 (which contains amendments to Part 6 of the 1983 Act and related amendments) has effect.

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Commencement Information

I11S. 39 not in force at Royal Assent see s. 56(1); s. 39(1)(2) in force for specified purposes for E.W. at 1.10.2007 by S.I. 2007/2798, art. 2(c); s. 39(2) in force for specified purposes at 1.4.2008 by S.I. 2008/745, art. 3(f); s. 39 in force for specified purposes insofar as not already in force for E.W. at 28.10.2008 by S.I. 2008/2788, art. 2(a); s. 39(1)(2) in force for specified purposes insofar as not already in force at 3.11.2008 by S.I. 2008/1900, arts. 1(1), 2(n) (with art. 3, Sch.)

Chapter 7E+W+S+N.I.Restricted patients

40Restriction ordersE+W+S+N.I.

(1)In section 41(1) of the 1983 Act (restriction orders) omit the words “, either without limit of time or during such period as may be specified in the order”.

(2)In section 42(4)(b) of the 1983 Act (powers in respect of patients subject to restriction orders) omit the words from “, and, if the restriction order was made for a specified period,” to the end.

(3)In the following provisions omit the words “, made without limitation of time”—

(a)section 44(3) of the 1983 Act (committal to hospital),

(b)section 84(2) of the 1983 Act (removal from Islands), and

(c)section 10(3)(a) of the Colonial Prisoners Removal Act 1884 (c. 31) (criminal lunatics).

(4)In section 81(7) of the 1983 Act (removal to Northern Ireland: expiry of restriction order or direction) omit (in each place) “restriction order or”.

(5)In section 81A(3) of the 1983 Act (transfer of responsibility for patient to Northern Ireland: expiry of restriction order or direction)—

(a)omit (in each place) “restriction order or”, and

(b)omit “order or”.

(6)In section 91(2) of the 1983 Act (patients removed from England and Wales: revival of order on return) omit the words “at any time before the end of the period for which those orders would have continued in force”.

(7)But subsections (3) to (6) shall have no effect in respect of—

(a)a restriction order for a specified period made before subsection (1) comes into force, or

(b)an order made outside England and Wales which is treated under the 1983 Act as if it were a restriction order for a specified period.

41Conditionally discharged patients subject to limitation directionsE+W+S+N.I.

In section 75(3) of the 1983 Act (power of Mental Health Review Tribunal to direct that restriction order, etc. is to cease to have effect)—

(a)in paragraph (b), after “restriction order”, insert “ , limitation direction ”, and

(b)after “hospital order”, insert “ , hospital direction ”.

Chapter 8E+W+S+N.I.Miscellaneous

42Offence of ill-treatment: increase in maximum penalty on conviction on indictmentE+W+S+N.I.

In section 127 of the 1983 Act (ill-treatment or wilful neglect of patients), in subsection (3)(b), for “two years” substitute “ five years ”.

43Informal admission of patients aged 16 or 17E+W+S+N.I.

In section 131 of the 1983 Act (informal admission of patients), for subsection (2) substitute—

(2)Subsections (3) and (4) below apply in the case of a patient aged 16 or 17 years who has capacity to consent to the making of such arrangements as are mentioned in subsection (1) above.

(3)If the patient consents to the making of the arrangements, they may be made, carried out and determined on the basis of that consent even though there are one or more persons who have parental responsibility for him.

(4)If the patient does not consent to the making of the arrangements, they may not be made, carried out or determined on the basis of the consent of a person who has parental responsibility for him.

(5)In this section—

(a)the reference to a patient who has capacity is to be read in accordance with the Mental Capacity Act 2005; and

(b)parental responsibility” has the same meaning as in the Children Act 1989.

44Places of safetyE+W+S+N.I.

(1)The 1983 Act is amended as follows.

(2)In section 135 (warrant to search for and remove patients), after subsection (3) insert—

(3A)A constable, an approved mental health professional or a person authorised by either of them for the purposes of this subsection may, before the end of the period of 72 hours mentioned in subsection (3) above, take a person detained in a place of safety under that subsection to one or more other places of safety.

(3B)A person taken to a place of safety under subsection (3A) above may be detained there for a period ending no later than the end of the period of 72 hours mentioned in subsection (3) above.

(3)In section 136 (mentally disordered persons found in public places), after subsection (2) insert—

(3)A constable, an approved mental health professional or a person authorised by either of them for the purposes of this subsection may, before the end of the period of 72 hours mentioned in subsection (2) above, take a person detained in a place of safety under that subsection to one or more other places of safety.

(4)A person taken to a place of a safety under subsection (3) above may be detained there for a purpose mentioned in subsection (2) above for a period ending no later than the end of the period of 72 hours mentioned in that subsection.

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Commencement Information

I12S. 44 not in force at Royal Assent see s. 56(1); s. 44 in force at 30.4.2008 by S.I. 2008/800, art. 2 (with art. 3)

45Delegation of powers of managers of NHS foundation trustsE+W+S+N.I.

(1)In section 23(6) of the 1983 Act (delegation of NHS foundation trust's power to discharge patients), for the words from “non-executive directors” to the end substitute “ persons authorised by the board of the trust in that behalf each of whom is neither an executive director of the board nor an employee of the trust. ”

(2)In section 32(3) of the 1983 Act (power to make provision about how hospital managers' functions under Part 2 of that Act are to be exercised), after “23(4)” insert “ and (6) ”.

(3)After section 142A of the 1983 Act (inserted by section 17 of this Act), insert—

142BDelegation of powers of managers of NHS foundation trusts

(1)The constitution of an NHS foundation trust may not provide for a function under this Act to be delegated otherwise than in accordance with provision made by or under this Act.

(2)Paragraph 15(3) of Schedule 7 to the National Health Service Act 2006 (which provides that the powers of a public benefit corporation may be delegated to a committee of directors or to an executive director) shall have effect subject to this section.

46Local Health BoardsE+W+S+N.I.

(1)The 1983 Act is amended as follows.

(2)In section 19(3) (removal of patients), after “NHS foundation trust”, in each place, insert “ , Local Health Board ”.

(3)In section 145(1) (interpretation)—

(a)in the definition of “hospital”, after paragraph (b) insert ; and

(c)any hospital as defined by section 206 of the National Health Service (Wales) Act 2006 which is vested in a Local Health Board;, and

(b)in the definition of “the managers”, after paragraph (bc) insert—

(bd)in relation to a hospital vested in a Local Health Board, the Board;.

47Welsh Ministers: procedure for instrumentsE+W+S+N.I.

(1)Section 143 of the 1983 Act (general provisions as to regulations, orders and rules) is amended as follows.

(2)In subsection (2), for “or rules made” substitute “ made by the Secretary of State, or rules made, ”.

(3)After subsection (3) insert—

(3A)Subsections (3B) to (3D) apply where power to make regulations or an order under this Act is conferred on the Welsh Ministers (other than by or by virtue of the Government of Wales Act 2006).

(3B)Any power of the Welsh Ministers to make regulations or an order shall be exercisable by statutory instrument.

(3C)Any statutory instrument containing regulations, or an order under section 68A(7) above, made by the Welsh Ministers shall be subject to annulment in pursuance of a resolution of the National Assembly for Wales.

(3D)No order shall be made under section 68A(1) above by the Welsh Ministers unless a draft of it has been approved by a resolution of the National Assembly for Wales.

(3E)In this section—

(a)references to the Secretary of State include the Secretary of State and the Welsh Ministers acting jointly; and

(b)references to the Welsh Ministers include the Welsh Ministers and the Secretary of State acting jointly.

Part 2 E+W+S+N.I.Amendments to other Acts

Chapter 1E+W+S+N.I.Amendments to Domestic Violence, Crime and Victims Act 2004

48Victims' rightsE+W+S+N.I.

Schedule 6 (which makes amendments to Chapter 2 of Part 3 of the Domestic Violence, Crime and Victims Act 2004 (c. 28)) has effect.

Chapter 2E+W+S+N.I.Amendments to Mental Capacity Act 2005

49Independent mental capacity advocacy service: exceptionsE+W+S+N.I.

For section 40 of the Mental Capacity Act 2005 (c. 9) (independent mental capacity advocacy service: exceptions) substitute—

40Exceptions

The duty imposed by section 37(3), 38(3) or (4) or 39(4) or (5) does not apply where there is—

(a)a person nominated by P (in whatever manner) as a person to be consulted on matters to which that duty relates,

(b)a donee of a lasting power of attorney created by P who is authorised to make decisions in relation to those matters, or

(c)a deputy appointed by the court for P with power to make decisions in relation to those matters.

50Mental Capacity Act 2005: deprivation of libertyE+W+S+N.I.

(1)The Mental Capacity Act 2005 (c. 9) is amended as follows.

(2)After section 4 insert—

4ARestriction on deprivation of liberty

(1)This Act does not authorise any person (“D”) to deprive any other person (“P”) of his liberty.

(2)But that is subject to—

(a)the following provisions of this section, and

(b)section 4B.

(3)D may deprive P of his liberty if, by doing so, D is giving effect to a relevant decision of the court.

(4)A relevant decision of the court is a decision made by an order under section 16(2)(a) in relation to a matter concerning P's personal welfare.

(5)D may deprive P of his liberty if the deprivation is authorised by Schedule A1 (hospital and care home residents: deprivation of liberty).

4BDeprivation of liberty necessary for life-sustaining treatment etc

(1)If the following conditions are met, D is authorised to deprive P of his liberty while a decision as respects any relevant issue is sought from the court.

(2)The first condition is that there is a question about whether D is authorised to deprive P of his liberty under section 4A.

(3)The second condition is that the deprivation of liberty—

(a)is wholly or partly for the purpose of—

(i)giving P life-sustaining treatment, or

(ii)doing any vital act, or

(b)consists wholly or partly of—

(i)giving P life-sustaining treatment, or

(ii)doing any vital act.

(4)The third condition is that the deprivation of liberty is necessary in order to—

(a)give the life-sustaining treatment, or

(b)do the vital act.

(5)A vital act is any act which the person doing it reasonably believes to be necessary to prevent a serious deterioration in P's condition.

(3)After section 16 insert—

16ASection 16 powers: Mental Health Act patients etc

(1)If a person is ineligible to be deprived of liberty by this Act, the court may not include in a welfare order provision which authorises the person to be deprived of his liberty.

(2)If—

(a)a welfare order includes provision which authorises a person to be deprived of his liberty, and

(b)that person becomes ineligible to be deprived of liberty by this Act,

the provision ceases to have effect for as long as the person remains ineligible.

(3)Nothing in subsection (2) affects the power of the court under section 16(7) to vary or discharge the welfare order.

(4)For the purposes of this section—

(a)Schedule 1A applies for determining whether or not P is ineligible to be deprived of liberty by this Act;

(b)welfare order” means an order under section 16(2)(a).

(4)Omit the following provisions (which make specific provision about deprivation of liberty)—

(a)section 6(5);

(b)section 11(6);

(c)section 20(13).

(5)Schedule 7 (which inserts the new Schedule A1 into the Mental Capacity Act 2005 (c. 9)) has effect.

(6)Schedule 8 (which inserts the new Schedule 1A into the Mental Capacity Act 2005) has effect.

(7)Schedule 9 (which makes other amendments to the Mental Capacity Act 2005 and to other Acts) has effect.

(8)In subsection (9)—

  • GOWA 1998” means the Government of Wales Act 1998 (c. 38);

  • GOWA 2006” means the Government of Wales Act 2006 (c. 32);

  • initial period” has the same meaning as in Schedule 11 to GOWA 2006.

(9)If this Act is passed after the end of the initial period, the functions conferred on the National Assembly for Wales by virtue of any provision of this Part of this Act are to be treated for the purposes of Schedule 11 to GOWA 2006 as if they—

(a)had been conferred on the Assembly constituted by GOWA 1998 by an Act passed before the end of the initial period, and

(b)were exercisable by that Assembly immediately before the end of the initial period.

(10)If any function of making subordinate legislation conferred by virtue of any provision of this Part of this Act is transferred to the Welsh Ministers (whether by virtue of subsection (9) or otherwise)—

(a) paragraphs 34 and 35of Schedule 11 to the Government of Wales Act 2006 do not apply; and

(b)subsections (11) and (12) apply instead.

(11)If a relevant statutory instrument contains regulations under paragraph 42(2)(b), 129, 163 or 164 of Schedule A1 to the Mental Capacity Act 2005 (whether or not it also contains other regulations), the instrument may not be made unless a draft has been laid before and approved by resolution of the National Assembly for Wales.

(12)Subject to that, a relevant statutory instrument is subject to annulment in pursuance of a resolution of the National Assembly for Wales.

(13)In subsections (11) and (12) “relevant statutory instrument” means a statutory instrument containing subordinate legislation made in exercise of a function transferred as mentioned in subsection (10).

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Commencement Information

I13S. 50 not in force at Royal Assent see s. 56(1); s. 50(5)(7)(8)-(13) in force for specified purposes at 1.4.2008 by S.I. 2008/745, art. 4; s. 50 in force insofar as not already in force at 1.4.2009 by S.I. 2009/139, art. 2(b) (with Sch. paras. 3, 4)

51Amendment to section 20(11) of Mental Capacity Act 2005E+W+S+N.I.

In section 20 of the Mental Capacity Act 2005 (c. 9) (restrictions on deputies), in subsection (11)(a), for “or” substitute “ and ”.

Part 3 E+W+S+N.I.General

52Meaning of “1983 Act”E+W+S+N.I.

In this Act “the 1983 Act” means the Mental Health Act 1983 (c. 20).

53Transitional provisions and savingsE+W+S+N.I.

Schedule 10 (which contains transitional provisions and savings) has effect.

54Consequential provisionsE+W+S+N.I.

(1)The Secretary of State may by order made by statutory instrument make supplementary, incidental or consequential provision for the purposes of, in consequence of, or for giving full effect to a provision of this Act.

(2)An order under subsection (1) may, in particular—

(a)amend or repeal any provision of an Act passed before, or in the same Session as, this Act;

(b)amend or revoke any provision of subordinate legislation made before the passing of this Act;

(c)include transitional or saving provision in connection with the coming into force of provision made by the order.

(3)In relation to provision which deals with matters with respect to which functions are exercisable by the Welsh Ministers—

(a)the power under subsection (1) is exercisable by the Secretary of State only with agreement of the Welsh Ministers, and

(b)the power under that subsection is also exercisable by the Welsh Ministers except that provision may not be made by virtue of subsection (2)(a).

(4)The amendments that may be made by virtue of subsection (2) are in addition to those made by or by virtue of any other provision of this Act.

(5)A statutory instrument containing an order under subsection (1) which makes provision by virtue of subsection (2)(a) may not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament.

(6)A statutory instrument containing any other order under subsection (1) made by the Secretary of State is subject to annulment in pursuance of a resolution of either House of Parliament.

(7)A statutory instrument containing an order under subsection (1) made by the Welsh Ministers is subject to annulment in pursuance of a resolution of the National Assembly for Wales.

(8)In subsection (2), “subordinate legislation” has the same meaning as in the Interpretation Act 1978 (c. 30).

55Repeals and revocationsE+W+S+N.I.

The enactments mentioned in Schedule 11 are repealed or revoked to the extent specified.

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Commencement Information

I14s. 55 not in force at Royal Assent see s. 56(1); s. 55 in force for specified purposes for E.W. at 28.10.2008 by S.I. 2008/2788, art. 2(b); s. 55 in force for specified purposes at 3.11.2008 by S.I. 2008/1210, arts. 1(1)(b), 2(c) (with art. 4); s. 55 in force for specified purposes at 3.11.2008 by S.I. 2008/1900, arts. 1(1), 2(p); s. 55 in force for specified purposes at 1.4.2009 by S.I. 2009/139, art. 2(f)

56CommencementE+W+S+N.I.

(1)This Act (other than sections 51 to 53 (and Schedule 10), this section and sections 57 to 59) comes into force in accordance with provision made by the Secretary of State by order made by statutory instrument.

(2)In relation to provision which deals with matters with respect to which functions are exercisable by the Welsh Ministers, the power under subsection (1) is exercisable only with their agreement.

(3)Section 51 comes into force in accordance with provision made by the Lord Chancellor by order made by statutory instrument.

(4)An order under this section may—

(a)make different provision for different purposes (including different provision for different areas and different provision for different descriptions of patient);

(b)include transitional or saving provision.

(5)The provision which may be made by virtue of subsection (4)(b) includes provision modifying the application of a provision of this Act pending the commencement of a provision of another enactment.

(6)A statutory instrument containing an order under this section which makes provision by virtue of subsection (4)(b) (including provision within section 57) is subject to annulment in pursuance of a resolution of either House of Parliament.

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Subordinate Legislation Made

P1S. 56(1) power partly exercised: 24.7.2007 appointed for s. 45 (E.W.) by {S.I. 2007/2156}, art. 2

S. 56(1) power partly exercised: different dates appointed for specified provisions and purposes (E.W.) by {S.I. 2007/2798}, arts. 2-4

S. 56(1) power partly exercised: 1.4.2008 appointed for specified provisions and purposes by {S.I. 2008/745}, arts. 2-4

S. 56(1) partly exercised: 30.4.2008 appointed for s. 44 by {S.I. 2009/800}, art. 2 (with art. 3)

S. 56(1) power partly exercised: 3.11.2008 appointed for specified provisions by {S.I. 2008/1210}, arts. 1(1)(b), 2, (with arts. 3-12)

S. 56(1) power partly exercised: 3.11.2008 power appointed for specified provisions by {S.I. 2008/1900}, arts. 1(1), 2, (with art. 3, Sch.)

S. 56(1) power partly exercised: 3.11.2008 appointed for specified provisions by {S.I. 2008/2561}, art. 2 (with art. 3, Sch.)

S. 56(1) power partly exercised: 28.10.2008 appointed for specified provisions and purposes (E.W.) by {S.I. 2008/2788}, art. 2

S. 56(1) power partly exercised: 1.4.2009 appointed for specified provisions and purposes by {S.I. 2009/139}, art. 2 (with transitional provisions in art. 3, Sch)

S. 56(1) power partly exercised: 1.4.2010 appointed for s. 31(3) (E.W.) by {S.I. 2010/143}, art. 2

P2S. 56(3) power fully exercised: 1.10.2007 appointed for s. 51 (E.W.) by {S.I. 2007/2635}, art. 2

57Commencement of section 36E+W+S+N.I.

(1)An order under section 56 providing for the commencement of section 36 may, in particular, provide—

(a)for that section not to apply to or affect a patient who is subject to after-care under supervision immediately before that commencement, and

(b)for the patient to cease to be subject to after-care under supervision, and for his case to be dealt with, in accordance with provision made by the order.

(2)The order may require—

(a)a Primary Care Trust or Local Health Board to secure that the patient is examined by a registered medical practitioner of a description specified in the order;

(b)the registered medical practitioner to examine the patient with a view to making a decision about his case by reference to criteria specified in the order.

(3)The order may require the registered medical practitioner, having complied with provision made by virtue of subsection (2)(b)—

(a)to discharge the patient,

(b)to recommend that he be detained in hospital,

(c)to recommend that he be received into guardianship, or

(d)to make a community treatment order in respect of him.

(4)The order may, in respect of a recommendation made by virtue of subsection (3)(b) or (c)—

(a)provide that the recommendation is to be made to a local social services authority determined in accordance with the order;

(b)provide that the recommendation is to be made in accordance with any other requirements specified in the order;

(c)require the local social services authority determined in accordance with paragraph (a), in response to the recommendation, to make arrangements for an approved mental health professional to consider the patient's case on their behalf.

(5)The order may provide that a registered medical practitioner shall not make a community treatment order in respect of a patient unless an approved mental health professional states in writing—

(a)that he agrees with the decision made by the practitioner about the patient's case, and

(b)that it is appropriate to make the order.

(6)An order requiring a registered medical practitioner to make a community treatment order in respect of a patient shall include provision about—

(a)the effect of the community treatment order (in particular, replacing after-care under supervision with a contingent requirement to attend, and be detained at, a hospital), and

(b)the effect of its revocation (including, in particular, provision for detention under section 3 of the 1983 Act).

(7)The order may modify a provision of the 1983 Act in its application in relation to a patient who is subject to after-care under supervision immediately before the commencement of section 36.

(8)Provision made by virtue of subsection (7) may, in particular—

(a)modify any of sections 25A to 25J of the 1983 Act in their application in relation to a patient for so long as he is, by virtue of subsection (1)(a), subject to after-care under supervision after the commencement of section 36;

(b)modify any of sections 17A to 17G, 20A and 20B of that Act (inserted by section 32 of this Act) in their application in relation to a patient in respect of whom a community treatment order is made by virtue of subsection (3)(d).

(9)A reference in this section to section 36 includes the amendments and repeals in Schedules 3 and 11 consequential on that section.

(10)An expression used in this section and in the 1983 Act has the same meaning in this section as it has in that Act.

58ExtentE+W+S+N.I.

(1)The provisions of this Act which amend other enactments have the same extent as the enactments which they amend.

(2)But subsection (1) is subject to—

(a)paragraph 35 of Schedule 3,

(b)paragraphs 3, 4 and 20 of Schedule 5, and

(c)paragraph 12 of Schedule 9.

(3)Section 54 extends to the United Kingdom.

59Short titleE+W+S+N.I.

This Act may be cited as the Mental Health Act 2007.

SCHEDULES

Section 1

SCHEDULE 1E+W+S+N.I.Categories of mental disorder: further amendments etc

Part 1 E+W+S+N.I.Amendments to 1983 Act

1The 1983 Act is amended as follows.E+W+S+N.I.

2In section 3(2) (grounds for application for admission for treatment), in paragraph (a), for “mental illness, severe mental impairment, psychopathic disorder or mental impairment and his mental disorder is” substitute “ mental disorder ”.E+W+S+N.I.

3In section 7(2) (grounds for guardianship application), in paragraph (a), omit the words “, being mental illness, severe mental impairment, psychopathic disorder or mental impairment and his mental disorder is”.E+W+S+N.I.

4In section 20 (renewal of detention or guardianship)—E+W+S+N.I.

(a)in subsection (4)(a), for “mental illness, severe mental impairment, psychopathic disorder or mental impairment, and his mental disorder is” substitute “ mental disorder ”, and

(b)in subsection (7)(a), for “mental illness, severe mental impairment, psychopathic disorder or mental impairment and his mental disorder is” substitute “ mental disorder ”.

5In section 35(3) (conditions for exercise of power to remand accused to hospital for report), in paragraph (a), for “mental illness, psychopathic disorder, severe mental impairment or mental impairment” substitute “ mental disorder ”.E+W+S+N.I.

6In section 36(1) (conditions for exercise of power to remand accused to hospital for medical treatment), for the words from “he is suffering” to the end substitute—E+W+S+N.I.

(a)he is suffering from mental disorder of a nature or degree which makes it appropriate for him to be detained in a hospital for medical treatment;.

7In section 37 (power to order hospital admission or guardianship)—E+W+S+N.I.

(a)in subsection (2)(a), for “mental illness, psychopathic disorder, severe mental impairment or mental impairment” substitute “ mental disorder ”, and

(b)in subsection (3), omit the words “as being a person suffering from mental illness or severe mental impairment”.

8In section 38(1) (conditions for exercise of power to make interim hospital order), in paragraph (a), for “mental illness, psychopathic disorder, severe mental impairment or mental impairment” substitute “ mental disorder ”.E+W+S+N.I.

9In section 45A(2) (conditions for exercise of power to direct hospital admission), in paragraph (a), for “psychopathic disorder” substitute “ mental disorder ”.E+W+S+N.I.

10In section 47(1) (power to make transfer direction), in paragraph (a), for “mental illness, psychopathic disorder, severe mental impairment or mental impairment” substitute “ mental disorder ”.E+W+S+N.I.

11In section 48 (further power to make transfer direction)—E+W+S+N.I.

(a)in subsection (1), for the words from “that person is suffering” to “such treatment,” substitute—

(a)that person is suffering from mental disorder of a nature or degree which makes it appropriate for him to be detained in a hospital for medical treatment; and

(b)he is in urgent need of such treatment;, and

(b)in subsection (3), for “to (4)” substitute “ and (3) ”.

12In section 51(6) (further power to make hospital order), in paragraph (a), for the words from “the detainee” to the end substitute—E+W+S+N.I.

(i)the detainee is suffering from mental disorder of a nature or degree which makes it appropriate for the patient to be detained in a hospital for medical treatment;.

13In section 66(2) (time limits for applications to tribunals), in paragraph (d), for “in the cases mentioned in paragraphs (d), (fb), (g)” substitute “ in the case mentioned in paragraph (g) ”.E+W+S+N.I.

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Commencement Information

I15Sch. 1 para. 13 not in force at Royal Assent see s. 56(1); Sch. 1 para. 13 in force for specified purposes at 3.11.2008 by S.I. 2008/1210, arts. 1(1)(b), 2(a)

14In section 72 (powers of tribunals)—E+W+S+N.I.

(a)in subsection (1)(b)(i), for “mental illness, psychopathic disorder, severe mental impairment or mental impairment or from any of those forms of disorder” substitute “ mental disorder or from mental disorder ”,

(b)in subsection (4)(a), for “mental illness, psychopathic disorder, severe mental impairment or mental impairment” substitute “ mental disorder ”, and

(c)in subsection (6), for “(5)” substitute “ (4) ”.

15(1)Section 86 (application of power to remove alien patients) is amended as follows.E+W+S+N.I.

(2)In subsection (1), for “mental illness” substitute “ mental disorder ”.

(3)After subsection (3) insert—

(4)In relation to a patient receiving treatment in a hospital within the meaning of the Mental Health (Northern Ireland) Order 1986, the reference in subsection (1) above to mental disorder shall be construed in accordance with that Order.

16(1)Section 141 (Members of Parliament etc) is amended as follows.E+W+S+N.I.

(2)In subsection (1)—

(a)after “House of Commons is authorised to be detained” insert “ under a relevant enactment ”, and

(b)for “mental illness” substitute “ mental disorder ”.

(3)In subsection (4)—

(a)for “mental illness” substitute “ mental disorder ”, and

(b)after “detained” insert “ under a relevant enactment ”.

(4)In subsections (5) and (6), for “mental illness” substitute “ mental disorder ”.

(5)After subsection (6) insert—

(6A)For the purposes of this section, the following are relevant enactments—

(a)this Act;

(b)the Criminal Procedure (Scotland) Act 1995 and the Mental Health (Care and Treatment) Scotland Act 2003 (“the Scottish enactments”); and

(c)the Mental Health (Northern Ireland) Order 1986 (“the 1986 Order”).

(6B)In relation to an authorisation for detention under the Scottish enactments or the 1986 Order, the references in this section to mental disorder shall be construed in accordance with those enactments or that Order (as the case may be).

17In section 145(1) (interpretation), for the definitions of “mental disorder”, “severe mental impairment”, “mental impairment” and “psychopathic disorder” substitute—E+W+S+N.I.

mental disorder” has the meaning given in section 1 above (subject to sections 86(4) and 141(6B));.

Part 2 E+W+S+N.I.Amendments to other Acts

Juries Act 1974E+W+S+N.I.

18(1)Part 1 of Schedule 1 to the Juries Act 1974 (c. 23) (mentally disordered persons) is amended as follows.E+W+S+N.I.

(2)In paragraph 1, for “mental illness, psychopathic disorder, mental handicap or severe mental handicap” substitute “ mental disorder within the meaning of the Mental Health Act 1983 ”.

(3)Omit paragraph 4(1).

Contempt of Court Act 1981E+W+S+N.I.

19In section 14 of the Contempt of Court Act 1981 (c. 49) (proceedings in England and Wales), in subsection (4) and the first subsection (4A), for “mental illness or severe mental impairment” substitute “ mental disorder within the meaning of that Act ”.E+W+S+N.I.

Family Law Act 1996E+W+S+N.I.

20(1)The Family Law Act 1996 (c. 27) is amended as follows.E+W+S+N.I.

(2)In section 48 (remand for medical examination and report), in subsection (4)—

(a)for “mental illness or severe mental impairment” substitute “ mental disorder within the meaning of the Mental Health Act 1983 ”,

(b)for “the Mental Health Act 1983” substitute “ that Act ”, and

(c)for “section 35 of the Act of 1983” substitute “ that section ”.

(3)In section 51 (power of magistrates' court to order hospital admission or guardianship), in subsection (1), for “mental illness or severe mental impairment” substitute “ mental disorder within the meaning of that Act ”.

Housing Act 1996E+W+S+N.I.

21In section 156 of the Housing Act 1996 (c. 52) (remand for medical examination and report), in subsection (4)—E+W+S+N.I.

(a)for “mental illness or severe mental impairment” substitute “ mental disorder within the meaning of the Mental Health Act 1983 ”,

(b)for “the Mental Health Act 1983” substitute “ that Act ”, and

(c)for “section 35 of that Act” substitute “ that section ”.

Care Standards Act 2000E+W+S+N.I.

22In section 121 of the Care Standards Act 2000 (c. 14) (general interpretation), in subsection (1), for the definition of “mental disorder” substitute—E+W+S+N.I.

mental disorder” has the same meaning as in the Mental Health Act 1983;.

Mental Capacity Act 2005E+W+S+N.I.

23(1)In Schedule 4 to the Mental Capacity Act 2005 (c. 9) (provisions applying to existing enduring powers of attorney), paragraph 23 is amended as follows.E+W+S+N.I.

(2)In sub-paragraph (1), omit the words “(within the meaning of the Mental Health Act)”.

(3)After sub-paragraph (1) insert—

(1A)In sub-paragraph (1), “mental disorder” has the same meaning as in the Mental Health Act but disregarding the amendments made to that Act by the Mental Health Act 2007.

National Health Service Act 2006E+W+S+N.I.

24In section 275 of the National Health Service Act 2006 (c. 41) (interpretation), in the definition of “illness” in subsection (1), for “mental disorder within the meaning of the Mental Health Act 1983” substitute “ any disorder or disability of the mind ”.E+W+S+N.I.

National Health Service (Wales) Act 2006E+W+S+N.I.

25In section 206 of the National Health Service (Wales) Act 2006 (c. 42) (interpretation), in the definition of “illness” in subsection (1), for “mental disorder within the meaning of the Mental Health Act 1983” substitute “ any disorder or disability of the mind ”.E+W+S+N.I.

Police and Justice Act 2006E+W+S+N.I.

26In section 27 of the Police and Justice Act 2006 (c. 48) (anti-social behaviour injunctions: power of arrest and remand), in subsection (11)—E+W+S+N.I.

(a)for “mental illness or severe mental impairment” substitute “ mental disorder within the meaning of the Mental Health Act 1983 ”, and

(b)for “the Mental Health Act 1983 (c. 20)” substitute “ that Act ”.

Section 21

SCHEDULE 2E+W+S+N.I.Approved mental health professionals: further amendments to 1983 Act

1The 1983 Act is amended as follows.E+W+S+N.I.

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Commencement Information

I16Sch. 2 para. 1 not in force at Royal Assent see s. 56(1); Sch. 2 para. 1 in force for E. at 3.11.2008 by S.I. 2008/1900, art. 2(d); Sch. 2 para. 1 in force insofar as not already in force for W. at 3.11.2008 by S.I. 2008/2561, art. 2(b)

2In the following provisions, for “approved social worker” substitute “ approved mental health professional ”E+W+S+N.I.

(a)section 4(2) (admission for assessment in cases of emergency), and

(b)section 8(1)(c) (effect of guardianship application).

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Commencement Information

I17Sch. 2 para. 2 not in force at Royal Assent see s. 56(1); Sch. 2 para. 2 in force for E. at 3.11.2008 by S.I. 2008/1900, art. 2(d); Sch. 2 para. 2 in force insofar as not already in force for W. at 3.11.2008 by S.I. 2008/2561, art. 2(b)

3(1)Section 10 (transfer of guardianship) is amended as follows.E+W+S+N.I.

(2)In subsection (3), for “approved social worker” substitute “ approved mental health professional acting on behalf of the local social services authority ”.

(3)After subsection (4) insert—

(5)In this section “the local social services authority”, in relation to a person (other than a local social services authority) who is the guardian of a patient, means the local social services authority for the area in which that person resides (or resided immediately before his death).

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Commencement Information

I18Sch. 2 para. 3 not in force at Royal Assent see s. 56(1); Sch. 2 para. 3 in force for E. at 3.11.2008 by S.I. 2008/1900, art. 2(d); Sch. 2 para. 3 in force insofar as not already in force for W. at 3.11.2008 by S.I. 2008/2561, art. 2(b)

4(1)Section 11 (general provisions as to applications) is amended as follows.E+W+S+N.I.

(2)In subsection (1), for “approved social worker” substitute “ approved mental health professional ”.

(3)In subsection (3), for “approved social worker, that social worker” substitute “ approved mental health professional, that professional ”.

(4)For subsection (4) substitute—

(4)An approved mental health professional may not make an application for admission for treatment or a guardianship application in respect of a patient in either of the following cases—

(a)the nearest relative of the patient has notified that professional, or the local social services authority on whose behalf the professional is acting, that he objects to the application being made; or

(b)that professional has not consulted the person (if any) appearing to be the nearest relative of the patient, but the requirement to consult that person does not apply if it appears to the professional that in the circumstances such consultation is not reasonably practicable or would involve unreasonable delay.

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Commencement Information

I19Sch. 2 para. 4 not in force at Royal Assent see s. 56(1); Sch. 2 para. 4 in force for E. at 3.11.2008 by S.I. 2008/1900, art. 2(d); Sch. 2 para. 4 in force insofar as not already in force for W. at 3.11.2008 by S.I. 2008/2561, art. 2(b)

5(1)Section 13 (the title to which becomes “Duty of approved mental health professionals to make applications for admission or guardianship”) is amended as follows.E+W+S+N.I.

(2)For subsection (1) substitute—

(1)If a local social services authority have reason to think that an application for admission to hospital or a guardianship application may need to be made in respect of a patient within their area, they shall make arrangements for an approved mental health professional to consider the patient's case on their behalf.

(1A)If that professional is—

(a)satisfied that such an application ought to be made in respect of the patient; and

(b)of the opinion, having regard to any wishes expressed by relatives of the patient or any other relevant circumstances, that it is necessary or proper for the application to be made by him,

he shall make the application.

(1B)Subsection (1C) below applies where—

(a)a local social services authority makes arrangements under subsection (1) above in respect of a patient;

(b)an application for admission for assessment is made under subsection (1A) above in respect of the patient;

(c)while the patient is liable to be detained in pursuance of that application, the authority have reason to think that an application for admission for treatment may need to be made in respect of the patient; and

(d)the patient is not within the area of the authority.

(1C)Where this subsection applies, subsection (1) above shall be construed as requiring the authority to make arrangements under that subsection in place of the authority mentioned there.

(3)In subsection (2), for “approved social worker” substitute “ approved mental health professional ”.

(4)For subsection (3) substitute—

(3)An application under subsection (1A) above may be made outside the area of the local social services authority on whose behalf the approved mental health professional is considering the patient's case.

(5)In subsection (4)—

(a)for the words from “direct” to “above” substitute “ make arrangements under subsection (1) above for an approved mental health professional to consider the patient's case ”, and

(b)for “that approved social worker” substitute “ that professional ”.

(6)In subsection (5)—

(a)for “approved social worker”, in each place, substitute “ approved mental health professional ”, and

(b)after “the power of” insert “ a local social services authority to make arrangements with an approved mental health professional to consider a patient's case or of ”.

Annotations: Help about Annotation
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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Commencement Information

I20Sch. 2 para. 5 not in force at Royal Assent see s. 56(1); Sch. 2 para. 5 in force for E. at 3.11.2008 by S.I. 2008/1900, art. 2(d); Sch. 2 para. 5 in force insofar as not already in force for W. at 3.11.2008 by S.I. 2008/2561, art. 2(b)

6In section 14 (social reports), for “a social worker” substitute “ an approved mental health professional ”.E+W+S+N.I.

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Commencement Information

I21Sch. 2 para. 6 not in force at Royal Assent see s. 56(1); Sch. 2 para. 6 in force for E. at 3.11.2008 by S.I. 2008/1900, art. 2(d); Sch. 2 para. 6 in force insofar as not already in force for W. at 3.11.2008 by S.I. 2008/2561, art. 2(b)

7In the following provisions, for “approved social worker” substitute “ approved mental health professional ”E+W+S+N.I.

(a)section 18(1) (return of patients absent without leave),

(b)section 21B(3)(b) (consultation before furnishing report),

(c)section 29(2)(c) (application for appointment of acting nearest relative),

(d)section 30(2) (application for variation of orders under section 29),

(e)section 40(1)(a) (power to convey patient),

(f)section 87(1) (power to take Northern Ireland patient into custody),

(g)section 88(3) (power to take England and Wales patient into custody), in the first place it occurs, and

(h)section 89(1) (power to take Channel Islands or Isle of Man patient into custody).

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Commencement Information

I22Sch. 2 para. 7 not in force at Royal Assent see s. 56(1); Sch. 2 para. 7 in force for E. at 3.11.2008 by S.I. 2008/1900, art. 2(d); Sch. 2 para. 7 in force insofar as not already in force for W. at 3.11.2008 by S.I. 2008/2561, art. 2(b)

8For section 115 substitute—E+W+S+N.I.

115Powers of entry and inspection

(1)An approved mental health professional may at all reasonable times enter and inspect any premises (other than a hospital) in which a mentally disordered patient is living, if he has reasonable cause to believe that the patient is not under proper care.

(2)The power under subsection (1) above shall be exercisable only after the professional has produced, if asked to do so, some duly authenticated document showing that he is an approved mental health professional.

Annotations: Help about Annotation
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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Commencement Information

I23Sch. 2 para. 8 not in force at Royal Assent see s. 56(1); Sch. 2 para. 8 in force for E. at 3.11.2008 by S.I. 2008/1900, art. 2(d); Sch. 2 para. 8 in force insofar as not already in force for W. at 3.11.2008 by S.I. 2008/2561, art. 2(b)

9In section 118(1)(a) (application of code of practice), for “approved social workers” substitute “ approved mental health professionals ”.E+W+S+N.I.

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Commencement Information

I24Sch. 2 para. 9 not in force at Royal Assent see s. 56(1); Sch. 2 para. 9 in force for E. at 3.11.2008 by S.I. 2008/1900, art. 2(d); Sch. 2 para. 9 in force insofar as not already in force for W. at 3.11.2008 by S.I. 2008/2561, art. 2(b)

10In the following provisions, for “approved social worker” substitute “ approved mental health professional ”E+W+S+N.I.

(a)

section 135(1) and (4) (warrant to search for and remove patient),

(b)

section 136(2) (detention of person removed to a place of safety), and

(c)

section 138(1)(a) (retaking of patients escaping from custody).

Annotations: Help about Annotation
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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Commencement Information

I25Sch. 2 para. 10 not in force at Royal Assent see s. 56(1); Sch. 2 para. 10 in force for E. at 3.11.2008 by S.I. 2008/1900, art. 2(d); Sch. 2 para. 10 in force insofar as not already in force for W. at 3.11.2008 by S.I. 2008/2561, art. 2(b)

11(1)Section 145 (interpretation) is amended as follows.E+W+S+N.I.

(2)In subsection (1), for the definition of “approved social worker” substitute—

approved mental health professional” has the meaning given in section 114 above;.

(3)After subsection (1AB) (inserted by section 4 of this Act) insert—

(1AC)References in this Act to an approved mental health professional shall be construed as references to an approved mental health professional acting on behalf of a local social services authority, unless the context otherwise requires.

Annotations: Help about Annotation
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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Commencement Information

I26Sch. 2 para. 11 not in force at Royal Assent see s. 56(1); Sch. 2 para. 11 in force for E. at 3.11.2008 by S.I. 2008/1900, art. 2(d); Sch. 2 para. 11 in force insofar as not already in force for W. at 3.11.2008 by S.I. 2008/2561, art. 2(b)

Section 32

SCHEDULE 3E+W+S+N.I.Supervised community treatment: further amendments to 1983 Act

1The 1983 Act is amended as follows.E+W+S+N.I.

Application in respect of patient already in hospitalE+W+S+N.I.

2In section 5 (application in respect of patient already in hospital), in subsection (6) after “this Act”, in each place, insert “ or a community patient ”.E+W+S+N.I.

Return of patients absent without leaveE+W+S+N.I.

3(1)Section 18 (return and readmission of patients absent without leave) is amended as follows.E+W+S+N.I.

(2)After subsection (2) insert—

(2A)Where a community patient is at any time absent from a hospital to which he is recalled under section 17E above, he may, subject to the provisions of this section, be taken into custody and returned to the hospital by any approved mental health professional, by any officer on the staff of the hospital, by any constable, or by any person authorised in writing by the responsible clinician or the managers of the hospital.

(3)In subsection (4)—

(a)in paragraph (b), after “guardianship” insert “ or, in the case of a community patient, the community treatment order is in force ”, and

(b)omit the words from “and, in determining” to the end.

(4)After subsection (4) insert—

(4A)In determining for the purposes of subsection (4)(b) above or any other provision of this Act whether a person who is or has been absent without leave is at any time liable to be detained or subject to guardianship, a report furnished under section 20 or 21B below before the first day of his absence without leave shall not be taken to have renewed the authority for his detention or guardianship unless the period of renewal began before that day.

(4B)Similarly, in determining for those purposes whether a community treatment order is at any time in force in respect of a person who is or has been absent without leave, a report furnished under section 20A or 21B below before the first day of his absence without leave shall not be taken to have extended the community treatment period unless the extension began before that day.

(5)After subsection (6) insert—

(7)In relation to a patient who has yet to comply with a requirement imposed by virtue of this Act to be in a hospital or place, references in this Act to his liability to be returned to the hospital or place shall include his liability to be taken to that hospital or place; and related expressions shall be construed accordingly.

Assignment of responsibility for community patientsE+W+S+N.I.

4After section 19 insert—E+W+S+N.I.

19ARegulations as to assignment of responsibility for community patients

(1)Responsibility for a community patient may be assigned to another hospital in such circumstances and subject to such conditions as may be prescribed by regulations made by the Secretary of State (if the responsible hospital is in England) or the Welsh Ministers (if that hospital is in Wales).

(2)If responsibility for a community patient is assigned to another hospital—

(a)the application for admission for treatment in respect of the patient shall have effect (subject to section 17D above) as if it had always specified that other hospital;

(b)the patient shall be treated as if he had been admitted to that other hospital at the time when he was originally admitted in pursuance of the application (and as if he had subsequently been discharged under section 17A above from there); and

(c)that other hospital shall become “the responsible hospital” in relation to the patient for the purposes of this Act.

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Commencement Information

I27Sch. 3 para. 4 not in force at Royal Assent see s. 56(1); Sch. 3 para. 4 in force for specified purposes at 1.4.2008 by S.I. 2008/745, art. 2(c)(ii); Sch. 3 in force insofar as not already in force at 3.11.2008 by S.I. 2008/1900, arts. 1(1), 2(i) (with art. 3, Sch.)

Renewal of authority to detain patientsE+W+S+N.I.

5In section 20 (duration of authority)—E+W+S+N.I.

(a)in subsection (2), after “discharged” insert “ under section 23 below ”, and

(b)in subsections (3) and (6), after “discharge the patient” insert “ under section 23 below ”.

Special provisions as to patients absent without leaveE+W+S+N.I.

6(1)Section 21 (special provisions as to patients absent without leave) is amended as follows.E+W+S+N.I.

(2)In subsection (1)—

(a)in paragraph (a), after “Act” insert “ or, in the case of a community patient, the community treatment order would cease to be in force ”, and

(b)after “liable or subject” insert “ , or the order shall not cease to be in force, ”.

(3)After subsection (3) (inserted by section 37 of this Act) insert—

(4)Where a community patient is absent without leave on the day on which (apart from this section) the 72-hour period mentioned in section 17F above would expire, that period shall not expire until the end of the period of 72 hours beginning with the time when—

(a)the patient is taken into custody under section 18 above and returned to the hospital where he ought to be; or

(b)the patient returns himself to the hospital where he ought to be within the period during which he can be taken into custody under section 18 above.

(5)Any reference in this section, or in sections 21A to 22 below, to the time when a community treatment order would cease, or would have ceased, to be in force shall be construed as a reference to the time when it would cease, or would have ceased, to be in force by reason only of the passage of time.

7In section 21A (patients who are taken into custody or return within 28 days), after subsection (3) insert—E+W+S+N.I.

(4)In the case of a community patient, where the period for which the community treatment order is in force is extended by section 21 above, any examination and report to be made and furnished in respect of the patient under section 20A(4) above may be made and furnished within the period as so extended.

(5)Where the community treatment period is extended by virtue of subsection (4) above after the day on which (apart from section 21 above) the order would have ceased to be in force, the extension shall take effect as from that day.

8(1)Section 21B (patients who are taken into custody or return after more than 28 days) is amended as follows.E+W+S+N.I.

(2)In subsection (2), after “ought to be” insert “ (his “return day”) ”.

(3)In subsection (3), after “detained” insert “ or is a community patient ”.

(4)For subsection (4) substitute—

(4)Where—

(a)the patient would (apart from any renewal of the authority for his detention or guardianship on or after his return day) be liable to be detained or subject to guardianship after the end of the period of one week beginning with that day; or

(b)in the case of a community patient, the community treatment order would (apart from any extension of the community treatment period on or after that day) be in force after the end of that period,

he shall cease to be so liable or subject, or the community treatment period shall be deemed to expire, at the end of that period unless a report is duly furnished in respect of him under subsection (2) above.

(5)After subsection (4) insert—

(4A)If, in the case of a community patient, the community treatment order is revoked under section 17F above during the period of one week beginning with his return day—

(a)subsections (2) and (4) above shall not apply; and

(b)any report already furnished in respect of him under subsection (2) above shall be of no effect.

(6)After subsection (6) insert—

(6A)In the case of a community patient, where the community treatment order would (apart from section 21 above) have ceased to be in force on or before the day on which a report is duly furnished in respect of him under subsection (2) above, the report shall extend the community treatment period for the period prescribed in that case by section 20A(3) above.

(6B)Where the community treatment period is extended by virtue of subsection (6A) above—

(a)the extension shall take effect as from the day on which (apart from section 21 above and that subsection) the order would have ceased to be in force; and

(b)if (apart from this paragraph) the period as so extended would expire on or before the day on which the report is furnished, the report shall further extend that period, as from the day on which it would expire, for the period prescribed in that case by section 20A(3) above.

(7)After subsection (7) insert—

(7A)In the case of a community patient, where the community treatment order would (taking account of any extension under subsection (6A) above) cease to be in force within the period of two months beginning with the day on which a report is duly furnished in respect of him under subsection (2) above, the report shall, if it so provides, have effect also as a report duly furnished under section 20A(4) above.

(8)In subsection (10)—

(a)for the definition of “the appropriate body” substitute—

the appropriate body” means—

(a)in relation to a patient who is liable to be detained in a hospital, the managers of the hospital;

(b)in relation to a patient who is subject to guardianship, the responsible local social services authority;

(c)in relation to a community patient, the managers of the responsible hospital; and, and

(b)for the definition of “the relevant conditions” substitute—

the relevant conditions” means—

(a)in relation to a patient who is liable to be detained in a hospital, the conditions set out in subsection (4) of section 20 above;

(b)in relation to a patient who is subject to guardianship, the conditions set out in subsection (7) of that section;

(c)in relation to a community patient, the conditions set out in section 20A(6) above.

Patients sentenced to imprisonment etcE+W+S+N.I.

9For section 22 substitute—E+W+S+N.I.

22Special provisions as to patients sentenced to imprisonment, etc

(1)If—

(a)a qualifying patient is detained in custody in pursuance of any sentence or order passed or made by a court in the United Kingdom (including an order committing or remanding him in custody); and

(b)he is so detained for a period exceeding, or for successive periods exceeding in the aggregate, six months,

the relevant application shall cease to have effect on expiry of that period.

(2)A patient is a qualifying patient for the purposes of this section if—

(a)he is liable to be detained by virtue of an application for admission for treatment;

(b)he is subject to guardianship by virtue of a guardianship application; or

(c)he is a community patient.

(3)The relevant application”, in relation to a qualifying patient, means—

(a)in the case of a patient who is subject to guardianship, the guardianship application in respect of him;

(b)in any other case, the application for admission for treatment in respect of him.

(4)The remaining subsections of this section shall apply if a qualifying patient is detained in custody as mentioned in subsection (1)(a) above but for a period not exceeding, or for successive periods not exceeding in the aggregate, six months.

(5)If apart from this subsection—

(a)the patient would have ceased to be liable to be detained or subject to guardianship by virtue of the relevant application on or before the day on which he is discharged from custody; or

(b)in the case of a community patient, the community treatment order would have ceased to be in force on or before that day,

he shall not cease and shall be deemed not to have ceased to be so liable or subject, or the order shall not cease and shall be deemed not to have ceased to be in force, until the end of that day.

(6)In any case (except as provided in subsection (8) below), sections 18, 21 and 21A above shall apply in relation to the patient as if he had absented himself without leave on that day.

(7)In its application by virtue of subsection (6) above section 18 above shall have effect as if—

(a)in subsection (4) for the words from “later of” to the end there were substituted “ end of the period of 28 days beginning with the first day of his absence without leave ”; and

(b)subsections (4A) and (4B) were omitted.

(8)In relation to a community patient who was not recalled to hospital under section 17E above at the time when his detention in custody began—

(a)section 18 above shall not apply; but

(b)sections 21 and 21A above shall apply as if he had absented himself without leave on the day on which he is discharged from custody and had returned himself as provided in those sections on the last day of the period of 28 days beginning with that day.

DischargeE+W+S+N.I.

10(1)Section 23 (discharge of patients) is amended as follows.E+W+S+N.I.

(2)In subsection (1) for the words from “from detention” to the end substitute “ absolutely from detention or guardianship is made in accordance with this section ”.

(3)After subsection (1) insert—

(1A)Subject to the provisions of this section and section 25 below, a community patient shall cease to be liable to recall under this Part of this Act, and the application for admission for treatment cease to have effect, if an order in writing discharging him from such liability is made in accordance with this section.

(1B)An order under subsection (1) or (1A) above shall be referred to in this Act as “an order for discharge”.

(4)In subsection (2), after paragraph (b) insert—

(c)where the patient is a community patient, by the responsible clinician, by the managers of the responsible hospital or by the nearest relative of the patient.

(5)In subsection (3)—

(a)for the words from “is liable” to “treatment” substitute “ falls within subsection (3A) below ”, and

(b)for “the patient is maintained” substitute “ arrangements have been made in respect of the patient ”.

(6)After subsection (3) insert—

(3A)A patient falls within this subsection if—

(a)he is liable to be detained in a registered establishment in pursuance of an application for admission for assessment or for treatment; or

(b)he is a community patient and the responsible hospital is a registered establishment.

11(1)Section 24 (visiting and examination of patients) is amended as follows.E+W+S+N.I.

(2)In subsection (1), after “this Act” insert “ , or who is a community patient, ”.

(3)In subsection (3)—

(a)for the words from “, in respect of” to “his discharge” substitute “ any power under section 23(3) above to make an order for a patient's discharge ”, and

(b)in paragraph (b) for “the home” substitute “ the establishment in question ”.

(4)In subsection (4)—

(a)after “the detention of the patient” insert “ , or (as the case may be) for his liability to recall, ” and

(b)for “the home” substitute “ the establishment ”.

12(1)Section 25 (restrictions on discharge by nearest relative) is amended as follows.E+W+S+N.I.

(2)In subsection (1), after “shall not be made” insert “ under section 23 above ”.

(3)After that subsection insert—

(1A)Subsection (1) above shall apply to an order for the discharge of a community patient as it applies to an order for the discharge of a patient who is liable to be detained in a hospital, but with the reference to the managers of the hospital being read as a reference to the managers of the responsible hospital.

(4)In subsection (2), after “treatment” insert “ , or in respect of a community patient, ”.

Orders appointing acting nearest relativeE+W+S+N.I.

13In section 29 (appointment by court of acting nearest relative), in subsection (3)(d) omit the words “from hospital or guardianship”.E+W+S+N.I.

14(1)Section 30 (discharge and variation of orders under section 29) is amended as follows.E+W+S+N.I.

(2)In subsection (4), for paragraphs (a) and (b) substitute—

(a)if—

(i)on the date of the order the patient was liable to be detained or subject to guardianship by virtue of a relevant application, order or direction; or

(ii)he becomes so liable or subject within the period of three months beginning with that date; or

(iii)he was a community patient on the date of the order,

it shall cease to have effect when he is discharged under section 23 above or 72 below or the relevant application, order or direction otherwise ceases to have effect (except as a result of his being transferred in pursuance of regulations under section 19 above);

(b)otherwise, it shall cease to have effect at the end of the period of three months beginning with the date of the order.

(3)After subsection (4) insert—

(4A)In subsection (4) above, reference to a relevant application, order or direction is to any of the following—

(a)an application for admission for treatment;

(b)a guardianship application;

(c)an order or direction under Part 3 of this Act (other than under section 35, 36 or 38).

Regulations for purposes of Part 2E+W+S+N.I.

15In section 32 (regulations for purposes of Part 2), in subsection (2)(c) after “this Part of this Act” insert “ or community patients ”.E+W+S+N.I.

Wards of courtE+W+S+N.I.

16(1)Section 33 (special provisions as to wards of court) is amended as follows.E+W+S+N.I.

(2)In subsection (2), after “admission under this Part of this Act” insert “ or is a community patient ”.

(3)For subsection (4) substitute—

(4)Where a community treatment order has been made in respect of a minor who is a ward of court, the provisions of this Part of this Act relating to community treatment orders and community patients have effect in relation to the minor subject to any order which the court makes in the exercise of its wardship jurisdiction; but this does not apply as regards any period when the minor is recalled to hospital under section 17E above.

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Commencement Information

I28Sch. 3 para. 16 not in force at Royal Assent see s. 56(1); Sch. 3 para. 16 in force at 3.11.2008 by S.I. 2008/1210, arts. 1(1)(b), 2(b) (with art. 4)

Restricted patientsE+W+S+N.I.

17In section 41 (power of higher courts to restrict discharge from hospital), in subsection (3)(aa) for “after-care under supervision” substitute “ community treatment orders and community patients ”.E+W+S+N.I.

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Commencement Information

I29Sch. 3 para. 17 not in force at Royal Assent see s. 56(1); Sch. 3 para. 17 in force at 3.11.2008 by S.I. 2008/1210, arts. 1(1)(b), 2(b) (with art. 4)

Applications and references to Mental Health Review TribunalE+W+S+N.I.

18(1)Section 66 (applications to tribunals) is amended as follows.E+W+S+N.I.

(2)In subsection (1)—

(a)after paragraph (c) insert—

(ca)a community treatment order is made in respect of a patient; or

(cb)a community treatment order is revoked under section 17F above in respect of a patient; or,

(b)in paragraph (f), after “discharged” insert “ under section 23 above ”,

(c)after that paragraph insert—

(fza)a report is furnished under section 20A above in respect of a patient and the patient is not discharged under section 23 above; or,

(d)after paragraph (fa) insert—

(faa)a report is furnished under subsection (2) of section 21B above in respect of a community patient and subsection (6A) of that section applies (or subsections (6A) and (6B)(b) of that section apply) in the case of the report; or,

(e)in paragraph (g), after “treatment” insert “ or a community patient ”, and

(f)in paragraph (h), after “this Act” insert “ or who is a community patient ”.

(3)In subsection (2)—

(a)after paragraph (c) insert—

(ca)in the case mentioned in paragraph (ca) of that subsection, six months beginning with the day on which the community treatment order is made;

(cb)in the case mentioned in paragraph (cb) of that subsection, six months beginning with the day on which the community treatment order is revoked;, and

(b)after paragraph (f) insert—

(fza)in the cases mentioned in paragraphs (fza) and (faa) of that subsection, the period or periods for which the community treatment period is extended by virtue of the report;.

(4)After subsection (2) insert—

(2A)Nothing in subsection (1)(b) above entitles a community patient to make an application by virtue of that provision even if he is admitted to a hospital on being recalled there under section 17E above.

19In section 67 (references to tribunals by Secretary of State concerning Part 2 patients), in subsection (1), at the end insert “ or of any community patient ”.E+W+S+N.I.

20In section 69 (applications to tribunals concerning patients subject to hospital and guardianship orders)—E+W+S+N.I.

(a)in subsection (1), for paragraph (a) substitute—

(a)in respect of a patient liable to be detained in pursuance of a hospital order or a community patient who was so liable immediately before he became a community patient, by the nearest relative of the patient in any period in which an application may be made by the patient under any such provision as so applied;,

(b)in subsection (2)(b), omit the words “45B(2), 46(3),”, and

(c)after subsection (2) insert—

(3)The provisions of section 66 above as applied by section 40(4) above are subject to subsection (4) below.

(4)If the initial detention period has not elapsed when the relevant application period begins, the right of a hospital order patient to make an application by virtue of paragraph (ca) or (cb) of section 66(1) above shall be exercisable only during whatever remains of the relevant application period after the initial detention period has elapsed.

(5)In subsection (4) above—

(a)hospital order patient” means a patient who is subject to a hospital order, excluding a patient of a kind mentioned in paragraph (a) or (b) of subsection (2) above;

(b)the initial detention period”, in relation to a hospital order patient, means the period of six months beginning with the date of the hospital order; and

(c)the relevant application period” means the relevant period mentioned in paragraph (ca) or (cb), as the case may be, of section 66(2) above.

21(1)Section 72 (powers of tribunals) is amended as follows.E+W+S+N.I.

(2)In subsection (1)—

(a)after “this Act” insert “ or is a community patient ”, and

(b)after paragraph (b) insert—

(c)the tribunal shall direct the discharge of a community patient if they are not satisfied—

(i)that he is then suffering from mental disorder or mental disorder of a nature or degree which makes it appropriate for him to receive medical treatment; or

(ii)that it is necessary for his health or safety or for the protection of other persons that he should receive such treatment; or

(iii)that it is necessary that the responsible clinician should be able to exercise the power under section 17E(1) above to recall the patient to hospital; or

(iv)that appropriate medical treatment is available for him; or

(v)in the case of an application by virtue of paragraph (g) of section 66(1) above, that the patient, if discharged, would be likely to act in a manner dangerous to other persons or to himself.

(3)After subsection (1) insert—

(1A)In determining whether the criterion in subsection (1)(c)(iii) above is met, the tribunal shall, in particular, consider, having regard to the patient's history of mental disorder and any other relevant factors, what risk there would be of a deterioration of the patient's condition if he were to continue not to be detained in a hospital (as a result, for example, of his refusing or neglecting to receive the medical treatment he requires for his mental disorder).

(4)For subsection (3A) substitute—

(3A)Subsection (1) above does not require a tribunal to direct the discharge of a patient just because they think it might be appropriate for the patient to be discharged (subject to the possibility of recall) under a community treatment order; and a tribunal—

(a)may recommend that the responsible clinician consider whether to make a community treatment order; and

(b)may (but need not) further consider the patient's case if the responsible clinician does not make an order.

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Commencement Information

I30Sch. 3 para. 21 not in force at Royal Assent see s. 56(1); Sch. 3 para. 21(4) in force at 3.11.2008 by S.I. 2008/1210, arts. 1(1)(b), 2(b) (with art. 4); Sch. 3 in force insofar as not already in force at 3.11.2008 by S.I. 2008/1900, arts. 1(1), 2(i) (with art. 3, Sch.)

22In section 76 (visiting and examination of patients), in subsection (1), after “this Act” insert “ or a community patient, ”.E+W+S+N.I.

23In section 77 (general provisions concerning tribunal applications), in subsection (3) for the words from “to the tribunal” to the end substitute—E+W+S+N.I.

(a)in the case of a patient who is liable to be detained in a hospital, to the tribunal for the area in which that hospital is situated;

(b)in the case of a community patient, to the tribunal for the area in which the responsible hospital is situated;

(c)in the case of a patient subject to guardianship, to the tribunal for the area in which the patient is residing.

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Commencement Information

I31Sch. 3 para. 23 not in force at Royal Assent see s. 56(1); Sch. 3 para. 23 in force at 3.11.2008 by S.I. 2008/1210, arts. 1(1)(b), 2(b) (with art. 4)

After-care servicesE+W+S+N.I.

24In section 117 (after-care), in subsection (2) for the words from “patient who is subject” to the end substitute “ community patient while he remains such a patient. ”E+W+S+N.I.

Annotations: Help about Annotation
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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Commencement Information

I32Sch. 3 para. 24 not in force at Royal Assent see s. 56(1); Sch. 3 para. 24 in force at 3.11.2008 by S.I. 2008/1210, arts. 1(1)(b), 2(b) (with art. 4)

Code of practiceE+W+S+N.I.

25In section 118 (code of practice), in subsection (1)(a) for “after-care under supervision” substitute “ community patients ”.E+W+S+N.I.

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Commencement Information

I33Sch. 3 para. 25 not in force at Royal Assent see s. 56(1); Sch. 3 para. 25 in force at 3.11.2008 by S.I. 2008/1210, arts. 1(1)(b), 2(b) (with art. 4)

General protection of detained patientsE+W+S+N.I.

26(1)Section 120 (general protection of detained patients) is amended as follows.E+W+S+N.I.

(2)In subsection (1)—

(a)after “liable to be detained under this Act” insert “ or to community patients ”,

(b)in paragraph (a) after “registered establishments” insert “ and community patients in hospitals and establishments of any description and (if access is granted) other places ”, and

(c)in paragraph (b)—

(i)in sub-paragraph (i), after “this Act in” insert “ , or recalled under section 17E above to, ”, and

(ii)in sub-paragraph (ii), after “detained” insert “ or is or has been a community patient ”.

(3)In subsection (4)—

(a)in paragraph (a), for “registered establishment” substitute “ hospital or establishment of any description ”, and

(b)in paragraph (b), for “in a registered establishment” substitute “ under this Act or who is or has been a community patient ”.

(4)After subsection (7) insert—

(8)In this section, “establishment of any description” has the same meaning as in section 119 above.

27In section 121 (Mental Health Act Commission), in subsection (4), for the words from “not liable” to the end substitute “ neither liable to be detained under this Act nor community patients ”.E+W+S+N.I.

OffencesE+W+S+N.I.

28In section 128 (assisting patients to absent themselves without leave, etc), in subsection (1) after “under this Act” insert “ or is a community patient ”.E+W+S+N.I.

Duty to give informationE+W+S+N.I.

29In section 132 (duty of managers of hospitals to give information to detained patients), in subsection (2) for “nursing home” substitute “ establishment ”.E+W+S+N.I.

30After section 132 insert—E+W+S+N.I.

132ADuty of managers of hospitals to give information to community patients

(1)The managers of the responsible hospital shall take such steps as are practicable to ensure that a community patient understands—

(a)the effect of the provisions of this Act applying to community patients; and

(b)what rights of applying to a Mental Health Review Tribunal are available to him in that capacity;

and those steps shall be taken as soon as practicable after the patient becomes a community patient.

(2)The steps to be taken under subsection (1) above shall include giving the requisite information both orally and in writing.

(3)The managers of the responsible hospital shall, except where the community patient otherwise requests, take such steps as are practicable to furnish the person (if any) appearing to them to be his nearest relative with a copy of any information given to him in writing under subsection (1) above; and those steps shall be taken when the information is given to the patient or within a reasonable time thereafter.

31In section 133 (duty of managers of hospitals to inform nearest relatives of discharge), after subsection (1) insert—E+W+S+N.I.

(1A)The reference in subsection (1) above to a patient who is to be discharged includes a patient who is to be discharged from hospital under section 17A above.

(1B)Subsection (1) above shall also apply in a case where a community patient is discharged under section 23 or 72 above (otherwise than by virtue of an order for discharge made by his nearest relative), but with the reference in that subsection to the managers of the hospital or registered establishment being read as a reference to the managers of the responsible hospital.

Retaking of patients escaping from custodyE+W+S+N.I.

32In section 138 (retaking of patients escaping from custody), in subsection (1)(b) after “under this Act,” insert “ or a community patient who was recalled to hospital under section 17E above, ”.E+W+S+N.I.

Members of Parliament suffering from mental disorderE+W+S+N.I.

33In section 141 (Members of Parliament suffering from mental disorder), after subsection (6B) (inserted by Schedule 1 to this Act) insert—E+W+S+N.I.

(6C)References in this section to a member who is authorised to be detained shall not include a member who is a community patient (whether or not he is recalled to hospital under section 17E above).

InterpretationE+W+S+N.I.

34(1)Section 145 (interpretation) is amended as follows.E+W+S+N.I.

(2)In subsection (1), in the definition of “absent without leave”, after “related expressions” insert “ (including expressions relating to a patient's liability to be returned to a hospital or other place) ”.

(3)In that subsection, at the appropriate places insert—

community patient” has the meaning given in section 17A above;

“community treatment order” and “the community treatment order” have the meanings given in section 17A above;

the community treatment period” has the meaning given in section 20A above;

the responsible hospital” has the meaning given in section 17A above;.

(4)In subsection (3), after “guardianship” insert “ or a community patient ”.

ExtentE+W+N.I.

35(1)In section 146 (application to Scotland), omit the words from “128” to “guardianship)”.E+W+N.I.

(2)This paragraph does not extend to Scotland.

Application of certain provisions to patients concerned in criminal proceedingsE+W+S+N.I.

36(1)In Schedule 1 (application of certain provisions to patients subject to hospital and guardianship orders), Part 1 (patients not subject to special restrictions) is amended as follows.E+W+S+N.I.

(2)In paragraph 1, after “17” insert “ to 17C, 17E, 17F, 20A ”.

(3)In paragraph 2—

(a)for “18, 19, 20” substitute “ 17D, 17G, 18 to 20, 20B ”, and

(b)for “paragraphs 3” substitute “ paragraphs 2A ”.

(4)After paragraph 2 insert—

2AIn section 17D(2)(a) for the reference to section 6(2) above there shall be substituted a reference to section 40(1)(b) below.

2BIn section 17G—

(a)in subsection (2) for the reference to section 6(2) above there shall be substituted a reference to section 40(1)(b) below;

(b)in subsection (4) for paragraphs (a) and (b) there shall be substituted the words “ the order or direction under Part 3 of this Act in respect of him were an order or direction for his admission or removal to that other hospital ”; and

(c)in subsection (5) for the words from “the patient” to the end there shall be substituted the words “ the date of the relevant order or direction under Part 3 of this Act were the date on which the community treatment order is revoked ”.

(5)After paragraph 5 insert—

5AIn section 19A(2), paragraph (b) shall be omitted.

(6)After paragraph 6 insert—

6AIn section 20B(1), for the reference to the application for admission for treatment there shall be substituted a reference to the order or direction under Part 3 of this Act by virtue of which the patient is liable to be detained.

(7)In paragraph 8(b), for “and (b)” substitute “ to (c) ”.

37(1)Part 2 of that Schedule (patients subject to special restrictions) is amended as follows.E+W+S+N.I.

(2)In paragraph 2, for “17 to 19” substitute “ 17, 18, 19 ”.

(3)For paragraph 6 substitute—

6In section 22, subsections (1) and (5) shall not apply.

Section 32

SCHEDULE 4E+W+S+N.I.Supervised community treatment: amendments to other Acts

Administration of Justice Act 1960E+W+S+N.I.

1After section 5 of the Administration of Justice Act 1960 (c. 65) insert—E+W+S+N.I.

5APower to order continuation of community treatment order

(1)Where the defendant in any proceedings from which an appeal lies under section 1 of this Act would, but for the decision of the court below, be liable to recall, and immediately after that decision the prosecutor is granted, or gives notice that he intends to apply for, leave to appeal, the court may make an order under this section.

(2)For the purposes of this section, a person is liable to recall if he is subject to a community treatment order (within the meaning of the Mental Health Act 1983) and, when that order was made, he was liable to be detained in pursuance of an order or direction under Part 3 of that Act.

(3)An order under this section is an order providing for the continuation of the community treatment order and the order or direction under Part 3 of that Act so long as any appeal under section 1 of this Act is pending.

(4)Where the court makes an order under this section, the provisions of the Mental Health Act 1983 with respect to persons liable to recall (including provisions as to the extension of the community treatment period, the removal or discharge of community patients, the revocation of community treatment orders and the re-detention of patients following revocation) shall apply accordingly.

(5)An order under this section shall (unless the appeal has previously been disposed of) cease to have effect at the expiration of the period for which the defendant would, but for the decision of the court below, have been—

(a)liable to recall; or

(b)where the community treatment order is revoked, liable to be detained in pursuance of the order or direction under Part 3 of the Mental Health Act 1983.

(6)Where the court below has power to make an order under this section, and either no such order is made or the defendant is discharged by virtue of subsection (4) or (5) of this section before the appeal is disposed of, the defendant shall not be liable to be again detained as the result of the decision of the Supreme Court on the appeal.

Criminal Appeal Act 1968E+W+S+N.I.

2(1)The Criminal Appeal Act 1968 (c. 19) is amended as follows.E+W+S+N.I.

(2)In section 8 (supplementary provisions as to retrial), after subsection (3A) insert—

(3B)If the person ordered to be retried—

(a)was liable to be detained in pursuance of an order or direction under Part 3 of the Mental Health Act 1983;

(b)was then made subject to a community treatment order (within the meaning of that Act); and

(c)was subject to that community treatment order immediately before the determination of his appeal,

the order or direction under Part 3 of that Act and the community treatment order shall continue in force pending the retrial as if the appeal had not been allowed, and any order made by the Court of Appeal under this section for his release on bail shall have effect subject to the community treatment order.

(3)After section 37 insert—

37AContinuation of community treatment order on appeal by the Crown

(1)The following provisions apply where, immediately after a decision of the Court of Appeal from which an appeal lies to the Supreme Court, the prosecutor is granted, or gives notice that he intends to apply for, leave to appeal.

(2)If, but for the decision of the Court of Appeal, the defendant would be liable to recall, the Court of Appeal may make an order under this section.

(3)For the purposes of this section, a person is liable to recall if he is subject to a community treatment order (within the meaning of the Mental Health Act 1983) and, when that order was made, he was liable to be detained in pursuance of an order or direction under Part 3 of that Act.

(4)An order under this section is an order providing for the continuation of the community treatment order and the order or direction under Part 3 of that Act so long as an appeal to the Supreme Court is pending.

(5)Where an order is made under this section the provisions of the Mental Health Act 1983 with respect to persons liable to recall (including provisions as to the extension of the community treatment period, the removal or discharge of community patients, the revocation of community treatment orders and the re-detention of patients following revocation) shall apply accordingly.

(6)An order under this section shall (unless the appeal has previously been disposed of) cease to have effect at the expiration of the period for which the defendant would, but for the decision of the Court of Appeal, have been—

(a)liable to recall; or

(b)where the community treatment order is revoked, liable to be detained in pursuance of the order or direction under Part 3 of the Mental Health Act 1983.

(7)Where the Court of Appeal have power to make an order under this section, and either no such order is made or the defendant is discharged, by virtue of subsection (5) or (6) of this section, before the appeal is disposed of, the defendant shall not be liable to be again detained as the result of the decision of the Supreme Court on the appeal.

Courts-Martial (Appeals) Act 1968E+W+S+N.I.

3(1)The Courts-Martial (Appeals) Act 1968 (c. 20) is amended as follows.E+W+S+N.I.

(2)In section 20 (implementation of authority for retrial etc), after subsection (4) insert—

(4A)Where retrial is authorised in the case of a person who—

(a)was liable to be detained in pursuance of an order or direction under Part 3 of the Mental Health Act 1983;

(b)was then made subject to a community treatment order (within the meaning of that Act); and

(c)was subject to that community treatment order immediately before the date of the authorisation,

the order or direction under Part 3 of that Act and the community treatment order shall continue in force until the relevant time (as defined in subsection (3A)) as if his conviction had not been quashed.

(4B)An order under subsection (1E)(a) is of no effect in relation to a person for so long as he is subject to a community treatment order.

(3)In section 43 (detention of accused), after subsection (3) insert—

(3A)The relevant provisions of the Mental Health Act 1983 with respect to community treatment orders (within the meaning of that Act) shall also apply for the purposes of subsection (3).

(4)After that section insert—

43AContinuation of community treatment order

(1)The Appeal Court may make an order under this section where—

(a)but for the decision of the Appeal Court, the accused would be liable to recall; and

(b)immediately after that decision, the Director of Service Prosecutions is granted leave to appeal or gives notice that he intends to apply for leave to appeal.

(2)For the purposes of this section, a person is liable to recall if he is subject to a community treatment order (within the meaning of the Mental Health Act 1983) and, when that order was made, he was liable to be detained in pursuance of an order or direction under Part 3 of that Act.

(3)An order under this section is an order providing for the continuation of the community treatment order and the order or direction under Part 3 of that Act so long as any appeal to the Supreme Court is pending.

(4)Where the Appeal Court makes an order under this section, the relevant provisions of the Mental Health Act 1983 with respect to persons liable to recall (including provisions as to the extension of the community treatment period, the removal or discharge of community patients, the revocation of community treatment orders and the re-detention of patients following revocation) shall apply accordingly.

(5)An order under this section shall (unless the appeal has been previously disposed of) cease to have effect at the end of the period for which the accused would, but for the decision of the Appeal Court, have been—

(a)liable to recall; or

(b)where the community treatment order is revoked, liable to be detained in pursuance of the order or direction under Part 3 of the Mental Health Act 1983.

(6)Where the Appeal Court has power to make an order under this section and either no such order is made or the accused is discharged by virtue of subsection (4) or (5) above before the appeal is disposed of, the accused shall not be liable to be again detained as a result of the decision of the Supreme Court on the appeal.

Juries Act 1974E+W+S+N.I.

4In Schedule 1 to the Juries Act 1974 (c. 23) (mentally disordered persons and persons disqualified from serving), at the end of paragraph 2 insert “ or subject to a community treatment order under section 17A of that Act ”.E+W+S+N.I.

Section 39

SCHEDULE 5E+W+S+N.I.Cross-border arrangements

Part 1 E+W+S+N.I.Amendments to Part 6 of 1983 Act

IntroductionE+W+S+N.I.

1Part 6 of the 1983 Act is amended as set out in this Part of this Schedule.E+W+S+N.I.

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Commencement Information

I34Sch. 5 para. 1 not in force at Royal Assent see s. 56(1); Sch. 5 para. 1 in force at 3.11.2008 by S.I. 2008/1900, arts. 1(1), 2(n) (with art. 3, Sch.)

Transfer of patients: ScotlandE+W+S+N.I.

2In section 80 (removal of patients to Scotland) (the cross-heading immediately above which becomes “Removal to and from Scotland”), in subsection (1), omit the words “or subject to guardianship” and the words “or, as the case may be, for receiving him into guardianship”.E+W+S+N.I.

3(1)After that section insert—E+W+N.I.

80ZATransfer of responsibility for community patients to Scotland

(1)If it appears to the appropriate national authority, in the case of a community patient, that the conditions mentioned in subsection (2) below are met, the authority may authorise the transfer of responsibility for him to Scotland.

(2)The conditions are—

(a)a transfer under this section is in the patient's interests; and

(b)arrangements have been made for dealing with him under enactments in force in Scotland corresponding or similar to those relating to community patients in this Act.

(3)The appropriate national authority may not act under subsection (1) above while the patient is recalled to hospital under section 17E above.

(4)In this section, “the appropriate national authority” means—

(a)in relation to a community patient in respect of whom the responsible hospital is in England, the Secretary of State;

(b)in relation to a community patient in respect of whom the responsible hospital is in Wales, the Welsh Ministers.

(2)This paragraph does not extend to Scotland.

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Commencement Information

I35Sch. 5 para. 3 not in force at Royal Assent see s. 56(1); Sch. 5 para. 3 in force at 3.11.2008 by S.I. 2008/1900, arts. 1(1), 2(n) (with art. 3, Sch.)

4(1)After section 80A (the title to which becomes ( “ Transfer of responsibility for conditionally discharged patients to Scotland ”) insert—E+W+N.I.

80BRemoval of detained patients from Scotland

(1)This section applies to a patient if—

(a)he is removed to England and Wales under regulations made under section 290(1)(a) of the Mental Health (Care and Treatment) (Scotland) Act 2003 (“the 2003 Act”);

(b)immediately before his removal, his detention in hospital was authorised by virtue of that Act or the Criminal Procedure (Scotland) Act 1995; and

(c)on his removal, he is admitted to a hospital in England or Wales.

(2)He shall be treated as if, on the date of his admission to the hospital, he had been so admitted in pursuance of an application made, or an order or direction made or given, on that date under the enactment in force in England and Wales which most closely corresponds to the enactment by virtue of which his detention in hospital was authorised immediately before his removal.

(3)If, immediately before his removal, he was subject to a measure under any enactment in force in Scotland restricting his discharge, he shall be treated as if he were subject to an order or direction under the enactment in force in England and Wales which most closely corresponds to that enactment.

(4)If, immediately before his removal, the patient was liable to be detained under the 2003 Act by virtue of a transfer for treatment direction, given while he was serving a sentence of imprisonment (within the meaning of section 136(9) of that Act) imposed by a court in Scotland, he shall be treated as if the sentence had been imposed by a court in England and Wales.

(5)If, immediately before his removal, the patient was subject to a hospital direction or transfer for treatment direction, the restriction direction to which he is subject by virtue of subsection (3) above shall expire on the date on which that hospital direction or transfer for treatment direction (as the case may be) would have expired if he had not been so removed.

(6)If, immediately before his removal, the patient was liable to be detained under the 2003 Act by virtue of a hospital direction, he shall be treated as if any sentence of imprisonment passed at the time when that hospital direction was made had been imposed by a court in England and Wales.

(7)Any directions given by the Scottish Ministers under regulations made under section 290 of the 2003 Act as to the removal of a patient to which this section applies shall have effect as if they were given under this Act.

(8)Subsection (8) of section 80 above applies to a reference in this section as it applies to one in that section.

(9)In this section—

  • hospital direction” means a direction made under section 59A of the Criminal Procedure (Scotland) Act 1995; and

  • transfer for treatment direction” has the meaning given by section 136 of the 2003 Act.

80CRemoval of patients subject to compulsion in the community from Scotland

(1)This section applies to a patient if—

(a)he is subject to an enactment in force in Scotland by virtue of which regulations under section 289(1) of the Mental Health (Care and Treatment) (Scotland) Act 2003 apply to him; and

(b)he is removed to England and Wales under those regulations.

(2)He shall be treated as if on the date of his arrival at the place where he is to reside in England or Wales—

(a)he had been admitted to a hospital in England or Wales in pursuance of an application or order made on that date under the corresponding enactment; and

(b)a community treatment order had then been made discharging him from the hospital.

(3)For these purposes—

(a)if the enactment to which the patient was subject in Scotland was an enactment contained in the Mental Health (Care and Treatment) (Scotland) Act 2003, the corresponding enactment is section 3 of this Act;

(b)if the enactment to which he was subject in Scotland was an enactment contained in the Criminal Procedure (Scotland) Act 1995, the corresponding enactment is section 37 of this Act.

(4)“The responsible hospital, in the case of a patient in respect of whom a community treatment order is in force by virtue of subsection (2) above, means the hospital to which he is treated as having been admitted by virtue of that subsection, subject to section 19A above.

(5)As soon as practicable after the patient's arrival at the place where he is to reside in England or Wales, the responsible clinician shall specify the conditions to which he is to be subject for the purposes of section 17B(1) above, and the conditions shall be deemed to be specified in the community treatment order.

(6)But the responsible clinician may only specify conditions under subsection (5) above which an approved mental health professional agrees should be specified.

80DTransfer of conditionally discharged patients from Scotland

(1)This section applies to a patient who is subject to—

(a)a restriction order under section 59 of the Criminal Procedure (Scotland) Act 1995; and

(b)a conditional discharge under section 193(7) of the Mental Health (Care and Treatment) (Scotland) Act 2003 (“the 2003 Act”).

(2)A transfer of the patient to England and Wales under regulations made under section 290 of the 2003 Act shall have effect only if the Secretary of State has consented to the transfer.

(3)If a transfer under those regulations has effect, the patient shall be treated as if—

(a)on the date of the transfer he had been conditionally discharged under section 42 or 73 above; and

(b)he were subject to a hospital order under section 37 above and a restriction order under section 41 above.

(4)If the restriction order to which the patient was subject immediately before the transfer was of limited duration, the restriction order to which he is subject by virtue of subsection (3) above shall expire on the date on which the first-mentioned order would have expired if the transfer had not been made.

(2)This paragraph does not extend to Scotland.

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Commencement Information

I36Sch. 5 para. 4 not in force at Royal Assent see s. 56(1); Sch. 5 para. 4 in force for specified purposes for E.W. at 1.10.2007 by S.I. 2007/2798, art. 2(c)(i); Sch. 5 para. 4 in force at 3.11.2008 by S.I. 2008/1900, arts. 1(1), 2(n) (with art. 3, Sch.)

Transfer of patients: Northern IrelandE+W+S+N.I.

5In section 81 (removal of patients to Northern Ireland), in subsection (2), for the words from “where he is” to “the corresponding enactment” substitute “ where he is subject to a hospital order and a restriction order or a transfer direction and a restriction direction under any enactment in this Act, as if he were subject to a hospital order and a restriction order or a transfer direction and a restriction direction under the corresponding enactment ”.E+W+S+N.I.

6After that section insert—E+W+S+N.I.

81ZARemoval of community patients to Northern Ireland

(1)Section 81 above shall apply in the case of a community patient as it applies in the case of a patient who is for the time being liable to be detained under this Act, as if the community patient were so liable.

(2)Any reference in that section to the application, order or direction by virtue of which a patient is liable to be detained under this Act shall be construed, for these purposes, as a reference to the application, order or direction under this Act in respect of the patient.

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Commencement Information

I37Sch. 5 para. 6 not in force at Royal Assent see s. 56(1); Sch. 5 para. 6 in force at 3.11.2008 by S.I. 2008/1900, arts. 1(1), 2(n) (with art. 3, Sch.)

7(1)Section 81A (transfer of responsibility for patients to Northern Ireland) is amended as follows.E+W+S+N.I.

(2)For subsection (1)(a) substitute—

(a)is subject to a hospital order under section 37 above and a restriction order under section 41 above or to a transfer direction under section 47 above and a restriction direction under section 49 above;

(3)In subsection (2)(b), for “a restriction order or restriction direction” substitute “ a hospital order and a restriction order, or to a transfer direction and a restriction direction, ”.

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Commencement Information

I38Sch. 5 para. 7 not in force at Royal Assent see s. 56(1); Sch. 5 para. 7 in force for E.W. at 1.10.2007 by S.I. 2007/2798, art. 2(c)(ii)

8In section 82 (removal to England and Wales of patients from Northern Ireland), in subsection (2), for the words from “where he is” to “the corresponding enactment” substitute “ where he is subject to a hospital order and a restriction order or a transfer direction and a restriction direction under any enactment in that Order, as if he were subject to a hospital order and a restriction order or a transfer direction and a restriction direction under the corresponding enactment ”.E+W+S+N.I.

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Commencement Information

I39Sch. 5 para. 8 not in force at Royal Assent see s. 56(1); Sch. 5 para. 8 in force for E.W. at 1.10.2007 by S.I. 2007/2798, art. 2(c)(iii)

9In section 82A (the title to which becomes “Transfer of responsibility for conditionally discharged patients to England and Wales from Northern Ireland), for subsection (2)(b) substitute—E+W+S+N.I.

(b)as if he were subject to a hospital order under section 37 above and a restriction order under section 41 above or to a transfer direction under section 47 above and a restriction direction under section 49 above.

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Commencement Information

I40Sch. 5 para. 9 not in force at Royal Assent see s. 56(1); Sch. 5 para. 9 in force for E.W. at 1.10.2007 by S.I. 2007/2798, art. 2(c)(iv)

Transfer of patients: Channel Islands and Isle of ManE+W+S+N.I.

10Before section 83A (the title to which becomes “Transfer of responsibility for conditionally discharged patients to Channel Islands or Isle of Man”) insert—E+W+S+N.I.

83ZARemoval or transfer of community patients to Channel Islands or Isle of Man

(1)Section 83 above shall apply in the case of a community patient as it applies in the case of a patient who is for the time being liable to be detained under this Act, as if the community patient were so liable.

(2)But if there are in force in any of the Channel Islands or the Isle of Man enactments (“relevant enactments”) corresponding or similar to those relating to community patients in this Act—

(a)subsection (1) above shall not apply as regards that island; and

(b)subsections (3) to (6) below shall apply instead.

(3)If it appears to the appropriate national authority, in the case of a community patient, that the conditions mentioned in subsection (4) below are met, the authority may authorise the transfer of responsibility for him to the island in question.

(4)The conditions are—

(a)a transfer under subsection (3) above is in the patient's interests; and

(b)arrangements have been made for dealing with him under the relevant enactments.

(5)But the authority may not act under subsection (3) above while the patient is recalled to hospital under section 17E above.

(6)In this section, “the appropriate national authority” means—

(a)in relation to a community patient in respect of whom the responsible hospital is in England, the Secretary of State;

(b)in relation to a community patient in respect of whom the responsible hospital is in Wales, the Welsh Ministers.

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Commencement Information

I41Sch. 5 para. 10 not in force at Royal Assent see s. 56(1); Sch. 5 para. 10 in force at 3.11.2008 by S.I. 2008/1900, arts. 1(1), 2(n) (with art. 3, Sch.)

11In section 85 (patients removed from Channel Islands or Isle of Man), in subsection (2), for “to a restriction order or restriction direction” substitute “ to a hospital order and a restriction order or to a hospital direction and a limitation direction or to a transfer direction and a restriction direction ”.E+W+S+N.I.

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Commencement Information

I42Sch. 5 para. 11 not in force at Royal Assent see s. 56(1); Sch. 5 para. 11 in force for E.W. at 1.10.2007 by S.I. 2007/2798, art. 2(c)(v)

12Before section 85A (the title to which becomes “Responsibility for conditionally discharged patients transferred from Channel Islands or Isle of Man”) insert—E+W+S+N.I.

85ZAResponsibility for community patients transferred from Channel Islands or Isle of Man

(1)This section shall have effect if there are in force in any of the Channel Islands or the Isle of Man enactments (“relevant enactments”) corresponding or similar to those relating to community patients in this Act.

(2)If responsibility for a patient is transferred to England and Wales under a provision corresponding to section 83ZA(3) above, he shall be treated as if on the date of his arrival at the place where he is to reside in England or Wales—

(a)he had been admitted to the hospital in pursuance of an application made, or an order or direction made or given, on that date under the enactment in force in England and Wales which most closely corresponds to the relevant enactments; and

(b)a community treatment order had then been made discharging him from the hospital.

(3)“The responsible hospital”, in his case, means the hospital to which he is treated as having been admitted by virtue of subsection (2) above, subject to section 19A above.

(4)As soon as practicable after the patient's arrival at the place where he is to reside in England or Wales, the responsible clinician shall specify the conditions to which he is to be subject for the purposes of section 17B(1) above, and the conditions shall be deemed to be specified in the community treatment order.

(5)But the responsible clinician may only specify conditions under subsection (4) above which an approved mental health professional agrees should be specified.

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Commencement Information

I43Sch. 5 para. 12 not in force at Royal Assent see s. 56(1); Sch. 5 para. 12 in force at 3.11.2008 by S.I. 2008/1900, arts. 1(1), 2(n) (with art. 3, Sch.)

13(1)Section 85A is amended as follows.E+W+S+N.I.

(2)For subsection (2)(b) substitute—

(b)as if he were subject to a hospital order under section 37 above and a restriction order under section 41 above, or to a hospital direction and a limitation direction under section 45A above, or to a transfer direction under section 47 above and a restriction direction under section 49 above.

(3)In subsection (3) after “restriction order” insert “ , limitation direction ”.

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Commencement Information

I44Sch. 5 para. 13 not in force at Royal Assent see s. 56(1); Sch. 5 para. 13 in force for E.W. at 1.10.2007 by S.I. 2007/2798, art. 2(c)(vi)

Patients absent from hospitals in England and WalesE+W+S+N.I.

14(1)Section 88 (patients absent from hospitals in England and Wales) is amended as follows.E+W+S+N.I.

(2)In subsection (1) for the words from “any other part” to the end substitute “ Northern Ireland ”.

(3)For subsection (2) substitute—

(2)For the purposes of the enactments referred to in subsection (1) above in their application by virtue of this section, the expression “constable” includes an officer or constable of the Police Service of Northern Ireland.

(4)In subsection (3) omit the following—

(a)the words “to Scotland or Northern Ireland”,

(b)paragraph (a), and

(c)in paragraph (b), the words “in Northern Ireland,”.

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Commencement Information

I45Sch. 5 para. 14 not in force at Royal Assent see s. 56(1); Sch. 5 para. 14 in force insofar as not already in force for E.W. at 28.10.2008 by S.I. 2008/2788, art. 2(a)

Regulations for purposes of Part 6E+W+S+N.I.

15In section 90 (regulations for purposes of Part 6), for the words from “and to regulations” to the end substitute “ , so far as this Part of this Act applies to patients removed to England and Wales or for whom responsibility is transferred to England and Wales. ”E+W+S+N.I.

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Commencement Information

I46Sch. 5 para. 15 not in force at Royal Assent see s. 56(1); Sch. 5 para. 15 in force at 3.11.2008 by S.I. 2008/1900, arts. 1(1), 2(n) (with art. 3, Sch.)

General provisions as to patients removed from England and WalesE+W+S+N.I.

16In section 91 (general provisions as to patients removed from England and Wales), after subsection (2) insert—E+W+S+N.I.

(2A)Where responsibility for a community patient is transferred to a jurisdiction outside England and Wales (or such a patient is removed outside England and Wales) in pursuance of arrangements under this Part of this Act, the application, order or direction mentioned in subsection (1) above in force in respect of him shall cease to have effect on the date on which responsibility is so transferred (or he is so removed) in pursuance of those arrangements.

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Commencement Information

I47Sch. 5 para. 16 not in force at Royal Assent see s. 56(1); Sch. 5 para. 16 in force at 3.11.2008 by S.I. 2008/1900, arts. 1(1), 2(n) (with art. 3, Sch.)

InterpretationE+W+S+N.I.

17In section 92 (interpretation of Part 6), after subsection (1) insert—E+W+S+N.I.

(1A)References in this Part of this Act to the responsible clinician shall be construed as references to the responsible clinician within the meaning of Part 2 of this Act.

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Commencement Information

I48Sch. 5 para. 17 not in force at Royal Assent see s. 56(1); Sch. 5 para. 17 in force at 3.11.2008 by S.I. 2008/1900, arts. 1(1), 2(n) (with art. 3, Sch.)

Part 2 E+W+S+N.I.Related amendments

The 1983 ActE+W+S+N.I.

18In section 69 of the 1983 Act (applications to tribunals concerning patients subject to hospital and guardianship orders), in subsection (2)(a)—E+W+S+N.I.

(a)after “hospital order” insert “ , hospital direction ”, and

(b)for the words from “, 82(2) or” to the end substitute “ or section 80B(2), 82(2) or 85(2) below. ”

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Commencement Information

I49Sch. 5 para. 18 not in force at Royal Assent see s. 56(1); Sch. 5 para. 18(a) in force for E.W. at 1.10.2007 by S.I. 2007/2798, art. 2(c)(vii); Sch. 5 para. 18 in force insofar as not already in force at 3.11.2008 by S.I. 2008/1900, arts. 1(1), 2(n) (with art. 3, Sch.)

19(1)Section 79 of that Act (interpretation of Part 5) is amended as follows.E+W+S+N.I.

(2)In subsection (1), for paragraph (c) substitute—

(c)is treated as subject to a hospital order and a restriction order, or to a hospital direction and a limitation direction, or to a transfer direction and a restriction direction, by virtue of any provision of Part 6 of this Act (except section 80D(3), 82A(2) or 85A(2) below),.

(3)In subsection (5)—

(a)after “the relevant hospital order,” insert “ the relevant hospital direction, ”,

(b)after “the restriction order” insert “ , the limitation direction ”,

(c)after “the hospital order,” insert “ hospital direction, ”, and

(d)after “restriction order,” insert “ limitation direction, ”.

(4)After that subsection insert—

(5A)Section 75 above shall, subject to the modifications in subsection (5C) below, have effect in relation to a qualifying patient as it has effect in relation to a restricted patient who is conditionally discharged under section 42(2), 73 or 74 above.

(5B)A patient is a qualifying patient if he is treated by virtue of section 80D(3), 82A(2) or 85A(2) below as if he had been conditionally discharged and were subject to a hospital order and a restriction order, or to a hospital direction and a limitation direction, or to a transfer direction and a restriction direction.

(5C)The modifications mentioned in subsection (5A) above are—

(a)references to the relevant hospital order, hospital direction or transfer direction, or to the restriction order, limitation direction or restriction direction to which the patient is subject, shall be construed as references to the hospital order, hospital direction or transfer direction, or restriction order, limitation direction or restriction direction, to which the patient is treated as subject by virtue of section 80D(3), 82A(2) or 85A(2) below; and

(b)the reference to the date on which the patient was conditionally discharged shall be construed as a reference to the date on which he was treated as conditionally discharged by virtue of a provision mentioned in paragraph (a) above.

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Commencement Information

I50Sch. 5 para. 19 not in force at Royal Assent see s. 56(1); Sch. 5 para. 19 in force for E.W. at 1.10.2007 by S.I. 2007/2798, art. 2(c)(viii)

20(1)In section 146 (application to Scotland), omit the words from “88” to “138)”.E+W+N.I.

(2)This paragraph does not extend to Scotland.

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Commencement Information

I51Sch. 5 para. 20 not in force at Royal Assent see s. 56(1); Sch. 5 para. 20 in force insofar as not already in force for E.W. at 28.10.2008 by S.I. 2008/2788, art. 2(a)

Mental Health (Care and Treatment) (Scotland) Act 2003 (Consequential Provisions) Order 2005 (S.I. 2005/2078)E+W+S+N.I.

21(1)The Mental Health (Care and Treatment) (Scotland) Act 2003 (Consequential Provisions) Order 2005 is amended as follows.E+W+S+N.I.

(2)Omit the following provisions—

(a)article 1(5),

(b)article 2, and

(c)article 3.

(3)In article 8 (the title to which becomes “Patients absent from hospitals or other places in Scotland”), in paragraph (1)(b), for “290” substitute “ 289, 290, 309, 309A ”.

(4)In article 12(2), for “2 to 11” substitute “ 4 to 11 ”.

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Commencement Information

I52Sch. 5 para. 21 not in force at Royal Assent see s. 56(1); Sch. 5 para. 21(2)(c) in force for E.W. at 1.10.2007 by S.I. 2007/2798, art. 2(c)(ix); Sch. 5 para. 21 in force insofar as not already in force at 3.11.2008 by S.I. 2008/1900, arts. 1(1), 2(n) (with art. 3, Sch.)

Section 48

SCHEDULE 6E+W+S+N.I.Victims' rights

IntroductionE+W+S+N.I.

1Chapter 2 of Part 3 of the Domestic Violence, Crime and Victims Act 2004 (c. 28) (provision of information to victims of restricted patients under the 1983 Act, etc.) is amended as set out in this Schedule.E+W+S+N.I.

Hospital orders (with or without restriction orders)E+W+S+N.I.

2(1)Section 36 (victims' rights: preliminary) is amended as follows.E+W+S+N.I.

(2)In subsection (3), for “with a restriction order” substitute “ , whether with or without a restriction order, ”.

(3)In subsection (5)—

(a)in paragraph (a), after “discharge from hospital” insert “ while a restriction order is in force in respect of him ”, and

(b)after paragraph (b) insert ;

“(c)what conditions he should be subject to in the event of his discharge from hospital under a community treatment order.

3After section 36 insert—E+W+S+N.I.

36ASupplemental provision for case where no restriction order made

(1)This section applies if, in a case where section 36 applies, the hospital order in respect of the patient was made without a restriction order.

(2)Subsection (3) applies if a person who appears to the local probation board [F3or provider of probation services]F3 mentioned in section 36(4) to be the victim of the offence or to act for the victim of the offence, when his wishes are ascertained under section 36(4), expresses a wish—

(a)to make representations about a matter specified in section 36(5), or

(b)to receive the information specified in section 36(6).

(3)The local probation board [F4or the provider of probation services]F4 must—

(a)notify the managers of the hospital in which the patient is detained of that person's wish and of that person's name and address, and

(b)notify that person of the name and address of the hospital.

(4)Subsection (5) applies if a person who appears to the local probation board [F5or provider of probation services]F5 mentioned in section 36(4) to be the victim of the offence or to act for the victim of the offence, subsequently to his wishes being ascertained under section 36(4), expresses a wish to do something specified in subsection (2)(a) or (b).

(5)The local probation board [F6or provider of probation services]F6 mentioned in section 36(4) must take all reasonable steps—

(a)to ascertain whether the hospital order made in respect of the patient continues in force and whether a community treatment order is in force in respect of him, and

(b)if the board [F7or provider]F7 ascertains that the hospital order does continue in force—

(i)to notify the managers of the relevant hospital of that person's wish, and

(ii)to notify that person of the name and address of the hospital.

(6)The relevant hospital is—

(a)the hospital in which the patient is detained, or

(b)if a community treatment order is in force in respect of the patient, the responsible hospital.

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Amendments (Textual)

4In section 37 (the title to which becomes “Representations where restriction order made”), in subsection (1), for “if section 36 applies” substitute “ if, in a case where section 36 applies, the hospital order in respect of the patient was made with a restriction order ”.E+W+S+N.I.

5After section 37 insert—E+W+S+N.I.

37ARepresentations where restriction order not made

(1)This section applies if, in a case where section 36 applies, the hospital order in respect of the patient was made without a restriction order.

(2)Subsection (3) applies if—

(a)a person makes representations about a matter specified in section 36(5) to the managers of the relevant hospital, and

(b)it appears to the managers that the person is the victim of the offence or acts for the victim of the offence.

(3)The managers must forward the representations to the persons responsible for determining the matter.

(4)The responsible clinician must inform the managers of the relevant hospital if he is considering making—

(a)an order for discharge in respect of the patient under section 23(2) of the Mental Health Act 1983,

(b)a community treatment order in respect of the patient, or

(c)an order under section 17B(4) of the Mental Health Act 1983 to vary the conditions specified in a community treatment order in force in respect of the patient.

(5)Any person who has the power to make an order for discharge in respect of the patient under section 23(3) of the Mental Health Act 1983 must inform the managers of the relevant hospital if he is considering making that order.

(6)A Mental Health Review Tribunal must inform the managers of the relevant hospital if—

(a)an application is made to the tribunal under section 66 or 69 of the Mental Health Act 1983, or

(b)the patient's case is referred to the tribunal under section 67 of that Act.

(7)Subsection (8) applies if—

(a)the managers of the relevant hospital receive information under subsection (4), (5) or (6), and

(b)a person who appears to the managers to be the victim of the offence or to act for the victim of the offence—

(i)when his wishes were ascertained under section 36(4), expressed a wish to make representations about a matter specified in section 36(5), or

(ii)has made representations about such a matter to the managers of the hospital in which the patient was, at the time in question, detained.

(8)The managers of the relevant hospital must provide the information to the person.

(9)The relevant hospital has the meaning given in section 36A(6).

6In section 38 (the title to which becomes “Information where restriction order made”), in subsection (1) for “if section 36 applies” substitute “ if, in a case where section 36 applies, the hospital order in respect of the patient was made with a restriction order ”.E+W+S+N.I.

7After section 38 insert —E+W+S+N.I.

38AInformation where restriction order not made

(1)This section applies if, in a case where section 36 applies, the hospital order in respect of the patient was made without a restriction order.

(2)The responsible clinician must inform the managers of the relevant hospital—

(a)whether he is to make an order for discharge in respect of the patient under section 23(2) of the Mental Health Act 1983;

(b)whether he is to make a community treatment order in respect of the patient;

(c)if a community treatment order is to be made in respect of the patient, what conditions are to be specified in the order;

(d)if a community treatment order is in force in respect of the patient, of any variation to be made under section 17B(4) of the Mental Health Act 1983 of the conditions specified in the order;

(e)if a community treatment order in respect of the patient is to cease to be in force, of the date on which it is to cease to be in force;

(f)if, following the examination of the patient under section 20 of the Mental Health Act 1983, it does not appear to the responsible clinician that the conditions set out in subsection (4) of that section are satisfied, of the date on which the authority for the patient's detention is to expire.

(3)Any person who has the power to make an order for discharge in respect of the patient under section 23(3) of the Mental Health Act 1983 must inform the managers of the relevant hospital if he is to make that order.

(4)Subsection (5) applies if—

(a)an application is made to a Mental Health Review Tribunal under section 66 or 69 of the Mental Health Act 1983,

(b)the patient's case is referred to a Mental Health Review Tribunal under section 67 of that Act, or

(c)the managers of the relevant hospital refer the patient's case to a Mental Health Review Tribunal under section 68 of that Act.

(5)The tribunal must inform the managers of the relevant hospital if it directs that the patient is to be discharged.

(6)Subsection (7) applies if a person who appears to the managers of the relevant hospital to be the victim of the offence or to act for the victim of the offence—

(a)when his wishes were ascertained under section 36(4), expressed a wish to receive the information specified in section 36(6), or

(b)has subsequently informed the managers of the relevant hospital that he wishes to receive that information.

(7)The managers of the relevant hospital order must take all reasonable steps—

(a)to inform that person whether the patient is to be discharged under section 23 or 72 of the Mental Health Act 1983;

(b)to inform that person whether a community treatment order is to be made in respect of the patient;

(c)if a community treatment order is to be made in respect of the patient and is to specify conditions which relate to contact with the victim or his family, to provide that person with details of those conditions;

(d)if a community treatment order is in force in respect of the patient and the conditions specified in the order are to be varied under section 17B(4) of the Mental Health Act 1983, to provide that person with details of any variation which relates to contact with the victim or his family;

(e)if a community treatment order in respect of the patient is to cease to be in force, to inform that person of the date on which it is to cease to be in force;

(f)if, following the examination of the patient under section 20 of the Mental Health Act 1983, the authority for the patient's detention is not to be renewed, to inform that person of the date on which the authority is to expire;

(g)to provide that person with such other information as the managers of the relevant hospital consider appropriate in all the circumstances of the case.

(8)The relevant hospital has the meaning given by section 36A(6).

38BRemoval of restriction

(1)This section applies if, in a case where section 36 applies—

(a)the hospital order in respect of the patient was made with a restriction order, and

(b)the restriction order ceases to have effect while the hospital order continues in force.

(2)Subsection (3) applies if a person who appears to the [F8relevant probation body]F8 to be the victim of the offence or to act for the victim of the offence—

(a)when his wishes were ascertained under section 36(4), expressed a wish to make representations about a matter specified in section 36(5) or to receive the information specified in section 36(6), or

(b)has subsequently informed the [F8relevant probation body]F8 that he wishes to make representations about such a matter or to receive that information.

(3)The [F9relevant probation body]F9 must take all reasonable steps—

(a)to notify the managers of the relevant hospital of an address at which that person may be contacted;

(b)to notify that person of the name and address of the hospital.

(4)While the hospital order continues in force, the patient is to be regarded as a patient in respect of whom a hospital order was made without a restriction order; and sections 37A and 38A are to apply in relation to him accordingly.

(5)The relevant hospital has the meaning given in section 36A(6).

(6)The [F10relevant probation body]F10 has the meaning given in section 37(8).

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Amendments (Textual)

Hospital directions and limitation directionsE+W+S+N.I.

8In section 39 (victims' rights: preliminary), in subsection (3)—E+W+S+N.I.

(a)in paragraph (a), after “discharge from hospital” insert “ while he is subject to a limitation direction ”, and

(b)after that paragraph insert—

(aa)what conditions he should be subject to in the event of his discharge from hospital under a community treatment order;.

9After section 41 insert—E+W+S+N.I.

41ARemoval of restriction

(1)This section applies if, in a case where section 39 applies—

(a)the limitation direction in respect of the offender ceases to be in force, and

(b)he is treated for the purposes of the Mental Health Act 1983 as a patient in respect of whom a hospital order has effect.

(2)Subsection (3) applies if a person who appears to the [F11relevant probation body]F11 to be the victim of the offence or to act for the victim of the offence—

(a)when his wishes were ascertained under section 39(2), expressed a wish to make representations about a matter specified in section 39(3) or to receive the information specified in section 39(4), or

(b)has subsequently informed the [F11relevant probation body]F11 that he wishes to make representations about such a matter or to receive that information.

(3)The [F12relevant probation body]F12 must take all reasonable steps—

(a)to notify the managers of the relevant hospital of an address at which that person may be contacted;

(b)to notify that person of the address of the hospital.

(4)The offender is to be regarded as a patient in respect of whom a hospital order was made without a restriction order; and sections 37A and 38A are to apply in relation to him accordingly.

(5)The relevant hospital has the meaning given in section 36A(6).

(6)The [F13relevant probation body]F13 has the meaning given in section 40(8).

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Amendments (Textual)

Transfer directions (with or without restriction directions)E+W+S+N.I.

10(1)Section 42 (victims' rights: preliminary) is amended as follows.E+W+S+N.I.

(2)In subsection (1)(c), for “and a restriction direction in respect of him” substitute “ in respect of the offender (whether or not he also gives a restriction direction in respect of the offender) ”.

(3)In subsection (3)—

(a)in paragraph (a), after “discharge from hospital” insert “ at a time when a restriction direction is in force in respect of him ”, and

(b)after paragraph (b) insert ;

“(c)what conditions he should be subject to in the event of his discharge from hospital under a community treatment order.

11After section 42 insert—E+W+S+N.I.

42ASupplemental provision for case where no restriction direction given

(1)This section applies if, in a case where section 42 applies, the transfer direction in respect of the patient was given without a restriction direction.

(2)Subsection (3) applies if a person who appears to the local probation board [F14or provider of probation services]F14 mentioned in section 42(2) to be the victim of the offence or to act for the victim of the offence, when his wishes are ascertained under section 42(2), expresses a wish—

(a)to make representations about a matter specified in section 42(3), or

(b)to receive the information specified in section 42(4).

(3)The local probation board [F15or provider of probation services]F15 must—

(a)notify the managers of the hospital in which the patient is detained of that person's wish and of that person's name and address, and

(b)notify that person of the name and address of the hospital.

(4)Subsection (5) applies if a person who appears to the local probation board [F16or provider of probation services]F16 mentioned in section 42(2) to be the victim of the offence or to act for the victim of the offence, subsequently to his wishes being ascertained under section 42(2), expressed a wish to do something specified in subsection (2)(a) or (b).

(5)The local probation board [F17or provider of probation services]F17 mentioned in section 42(2) must take all reasonable steps—

(a)to ascertain whether the transfer direction given in respect of the patient continues in force and whether a community treatment order is in force in respect of him, and

(b)if the board [F18or the provider]F18 ascertains that the transfer direction does continue in force—

(i)to notify the managers of the relevant hospital of that person's wish, and

(ii)to notify that person of the name and address of the hospital.

(6)The relevant hospital has the meaning given in section 36A(6).

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Amendments (Textual)

12In section 43 (the title to which becomes “Representations where restriction direction made”), in subsection (1), for “if section 42 applies” substitute “ if, in a case where section 42 applies, the transfer direction in respect of the patient was given with a restriction direction ”.E+W+S+N.I.

13After section 43 insert—E+W+S+N.I.

43ARepresentations where restriction direction not given

(1)This section applies if, in a case where section 42 applies, the transfer direction in respect of the patient was given without a restriction direction.

(2)Subsection (3) applies if—

(a)a person makes representations about a matter specified in section 42(3) to the managers of the relevant hospital, and

(b)it appears to the managers that the person is the victim of the offence or acts for the victim of the offence.

(3)The managers must forward the representations to the persons responsible for determining the matter.

(4)The responsible clinician must inform the managers of the relevant hospital if he is considering making—

(a)an order for discharge in respect of the patient under section 23(2) of the Mental Health Act 1983,

(b)a community treatment order in respect of him, or

(c)an order under section 17B(4) of the Mental Health Act 1983 to vary the conditions specified in a community treatment order in force in respect of the patient.

(5)Any person who has power to make an order for discharge in respect of the patient under section 23(3) of the Mental Health Act 1983 must inform the managers of the relevant hospital if he is considering making that order.

(6)A Mental Health Review Tribunal must inform the managers of the relevant hospital if—

(a)an application is made to the tribunal under section 66 or 69 of the Mental Health Act 1983, or

(b)the patient's case is referred to the tribunal under section 67 of that Act.

(7)Subsection (8) applies if—

(a)the managers of the relevant hospital receive information under subsection (4), (5) or (6), and

(b)a person who appears to the managers to be the victim of the offence or to act for the victim of the offence—

(i)when his wishes were ascertained under section 42(2), expressed a wish to make representations about a matter specified in section 42(3), or

(ii)has made representations about such a matter to the managers of the hospital in which the patient was, at the time in question, detained.

(8)The managers of the relevant hospital must provide the information to the person.

(9)The relevant hospital has the meaning given in section 36A(6).

14In section 44 (the title to which becomes “Information where restriction direction made”), in subsection (1), for “if section 42 applies” substitute “ if, in a case where section 42 applies, the transfer direction in respect of the patient was given with a restriction direction ”.E+W+S+N.I.

15After section 44 insert —E+W+S+N.I.

44AInformation where restriction direction not given

(1)This section applies if, in a case where section 42 applies, the transfer direction in respect of the patient was given without a restriction direction.

(2)The responsible clinician must inform the managers of the relevant hospital—

(a)whether he is to make an order for discharge in respect of the patient under section 23(2) of the Mental Health Act 1983;

(b)whether he is to make a community treatment order in respect of the patient;

(c)if a community treatment order is to be made in respect of the patient, what conditions are to be specified in the order;

(d)if a community treatment order is in force in respect of the patient, of any variation to be made under section 17B(4) of the Mental Health Act 1983 of the conditions specified in the order;

(e)if a community treatment order in respect of the patient is to cease to be in force, of the date on which it is to cease to be in force;

(f)if, following the examination of the patient under section 20 of the Mental Health Act 1983, it does not appear to the responsible clinician that the conditions set out in subsection (4) of that section are satisfied, of the date on which the authority for the patient's detention is to expire.

(3)Any person who has power to make an order for discharge in respect of the patient under section 23(3) of the Mental Health Act 1983 must inform the managers of the relevant hospital if he is to make that order.

(4)Subsection (5) applies if—

(a)an application is made to a Mental Health Review Tribunal under section 66 or 69 of the Mental Health Act 1983,

(b)the patient's case is referred to a Mental Health Review Tribunal under section 67 of that Act, or

(c)the managers of the relevant hospital refer the patient's case to a Mental Health Review Tribunal under section 68 of that Act.

(5)The tribunal must inform the managers of the relevant hospital if it directs that the patient be discharged.

(6)Subsection (7) applies if a person who appears to the managers of the relevant hospital to be the victim of the offence or to act for the victim of the offence—

(a)when his wishes were ascertained under section 42(2), expressed a wish to receive the information specified in section 42(4), or

(b)has subsequently informed the managers of the relevant hospital that he wishes to receive that information.

(7)The managers of the relevant hospital order must take all reasonable steps—

(a)to inform that person whether the patient is to be discharged under section 23 or 72 of the Mental Health Act 1983;

(b)to inform that person whether a community treatment order is to be made in respect of the patient;

(c)if a community treatment order is to be made in respect of the patient and is to specify conditions which relate to contact with the victim or his family, to provide that person with details of those conditions;

(d)if a community treatment order is in force in respect of the patient and the conditions specified in the order are to be varied under section 17B(4) of the Mental Health Act 1983, to provide that person with details of any variation which relates to contact with the victim or his family;

(e)if a community treatment order in respect of the patient is to cease to be in force, to inform that person of the date on which it is to cease to be in force;

(f)if, following the examination of the patient under section 20 of the Mental Health Act 1983, the authority for the patient's detention is not to be renewed, to inform that person of the date on which the authority is to expire;

(g)to provide that person with such other information as the managers of the relevant hospital consider appropriate in all the circumstances of the case.

(8)The relevant hospital has the meaning given by section 36A(6).

44BRemoval of restriction

(1)This section applies if, in a case where section 42 applies—

(a)the transfer direction in respect of the patient was given with a restriction direction, and

(b)the restriction direction ceases to be in force while the transfer direction continues in force.

(2)Subsection (3) applies if a person who appears to the [F19relevant probation body]F19 to be the victim of the offence or to act for the victim of the offence—

(a)when his wishes were ascertained under section 42(2), expressed a wish to make representations about a matter specified in section 42(3) or to receive the information specified in section 42(4), or

(b)has subsequently informed the [F19relevant probation body]F19 that he wishes to make representations about such a matter or to receive that information.

(3)The [F20relevant probation body]F20 must take all reasonable steps—

(a)to notify the managers of the relevant hospital of an address at which that person may be contacted;

(b)to notify that person of the name and address of the hospital.

(4)While the transfer direction continues in force, the patient is to be regarded as a patient in respect of whom a transfer direction was given without a restriction direction; and sections 43A and 44A are to apply in relation to him accordingly.

(5)The relevant hospital has the meaning given in section 36A(6).

(6)The [F21relevant probation body]F21 has the meaning given in section 43(8).

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Amendments (Textual)

InterpretationE+W+S+N.I.

16(1)Section 45 (the title to which becomes “Interpretation: sections 35 to 44B”) is amended as follows.E+W+S+N.I.

(2)In subsection (1)—

(a)for “44” substitute “ 44B ”, and

(b)at the appropriate places insert—

community treatment order” has the meaning given in section 17A of the Mental Health Act 1983;,

the managers” has the meaning given in section 145 of the Mental Health Act 1983;,

responsible clinician” means the responsible clinician for the purposes of Part 3 of the Mental Health Act 1983;, and

responsible hospital” has the meaning given in section 17A of the Mental Health Act 1983;.

(3)In subsection (2), for “44” substitute “ 44B ”.

(4)After subsection (2) insert—

(3)A reference in sections 35 to 44B to a place in which a person is detained includes a reference to a place in which he is liable to be detained under the Mental Health Act 1983.

(4)For the purposes of section 32(3) of that Act (regulations as to delegation of managers' functions, etc.) as applied by Parts 1 and 2 of Schedule 1 to that Act, a function conferred on the managers of a hospital under sections 35 to 44B of this Act is to be treated as a function of theirs under Part 3 of that Act.

Section 50

SCHEDULE 7E+W+S+N.I.Mental Capacity Act 2005: new Schedule A1

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Commencement Information

I53Sch. 7 not in force at Royal Assent see s. 56(1); Sch. 7 in force for specified purposes at 1.4.2008 by S.I. 2008/745, art. 4(a); Sch. 7 in force insofar as not already in force at 1.4.2009 by S.I. 2009/139, art. 2(c) (with Sch. paras. 3, 4)

Before Schedule 1 to the Mental Capacity Act 2005 (c. 9) insert—

SCHEDULE A1E+W+S+N.I.Hospital and care home residents: deprivation of liberty

Part 1 E+W+S+N.I.Authorisation to deprive residents of liberty etc
Application of PartE+W+S+N.I.

1(1)This Part applies if the following conditions are met.

(2)The first condition is that a person (“P”) is detained in a hospital or care home — for the purpose of being given care or treatment — in circumstances which amount to deprivation of the person's liberty.

(3)The second condition is that a standard or urgent authorisation is in force.

(4)The third condition is that the standard or urgent authorisation relates—

(a)to P, and

(b)to the hospital or care home in which P is detained.

Authorisation to deprive P of libertyE+W+S+N.I.

2The managing authority of the hospital or care home may deprive P of his liberty by detaining him as mentioned in paragraph 1(2).

No liability for acts done for purpose of depriving P of libertyE+W+S+N.I.

3(1)This paragraph applies to any act which a person (“D”) does for the purpose of detaining P as mentioned in paragraph 1(2).

(2)D does not incur any liability in relation to the act that he would not have incurred if P—

(a)had had capacity to consent in relation to D's doing the act, and

(b)had consented to D's doing the act.

No protection for negligent acts etcE+W+S+N.I.

4(1)Paragraphs 2 and 3 do not exclude a person's civil liability for loss or damage, or his criminal liability, resulting from his negligence in doing any thing.

(2)Paragraphs 2 and 3 do not authorise a person to do anything otherwise than for the purpose of the standard or urgent authorisation that is in force.

(3)In a case where a standard authorisation is in force, paragraphs 2 and 3 do not authorise a person to do anything which does not comply with the conditions (if any) included in the authorisation.

Part 2 E+W+S+N.I.Interpretation: main terms
IntroductionE+W+S+N.I.

5This Part applies for the purposes of this Schedule.

Detained residentE+W+S+N.I.

6Detained resident” means a person detained in a hospital or care home — for the purpose of being given care or treatment — in circumstances which amount to deprivation of the person's liberty.

Relevant person etcE+W+S+N.I.

7In relation to a person who is, or is to be, a detained resident—

  • relevant person” means the person in question;

  • relevant hospital or care home” means the hospital or care home in question;

  • relevant care or treatment” means the care or treatment in question.

AuthorisationsE+W+S+N.I.

8Standard authorisation” means an authorisation given under Part 4.

9Urgent authorisation” means an authorisation given under Part 5.

10Authorisation under this Schedule” means either of the following—

(a)a standard authorisation;

(b)an urgent authorisation.

11(1)The purpose of a standard authorisation is the purpose which is stated in the authorisation in accordance with paragraph 55(1)(d).

(2)The purpose of an urgent authorisation is the purpose which is stated in the authorisation in accordance with paragraph 80(d).

Part 3 E+W+S+N.I.The qualifying requirements
The qualifying requirementsE+W+S+N.I.

12(1)These are the qualifying requirements referred to in this Schedule—

(a)the age requirement;

(b)the mental health requirement;

(c)the mental capacity requirement;

(d)the best interests requirement;

(e)the eligibility requirement;

(f)the no refusals requirement.

(2)Any question of whether a person who is, or is to be, a detained resident meets the qualifying requirements is to be determined in accordance with this Part.

(3)In a case where—

(a)the question of whether a person meets a particular qualifying requirement arises in relation to the giving of a standard authorisation, and

(b)any circumstances relevant to determining that question are expected to change between the time when the determination is made and the time when the authorisation is expected to come into force,

those circumstances are to be taken into account as they are expected to be at the later time.

The age requirementE+W+S+N.I.

13The relevant person meets the age requirement if he has reached 18.

The mental health requirementE+W+S+N.I.

14(1)The relevant person meets the mental health requirement if he is suffering from mental disorder (within the meaning of the Mental Health Act, but disregarding any exclusion for persons with learning disability).

(2)An exclusion for persons with learning disability is any provision of the Mental Health Act which provides for a person with learning disability not to be regarded as suffering from mental disorder for one or more purposes of that Act.

The mental capacity requirementE+W+S+N.I.

15The relevant person meets the mental capacity requirement if he lacks capacity in relation to the question whether or not he should be accommodated in the relevant hospital or care home for the purpose of being given the relevant care or treatment.

The best interests requirementE+W+S+N.I.

16(1)The relevant person meets the best interests requirement if all of the following conditions are met.

(2)The first condition is that the relevant person is, or is to be, a detained resident.

(3)The second condition is that it is in the best interests of the relevant person for him to be a detained resident.

(4)The third condition is that, in order to prevent harm to the relevant person, it is necessary for him to be a detained resident.

(5)The fourth condition is that it is a proportionate response to—

(a)the likelihood of the relevant person suffering harm, and

(b)the seriousness of that harm,

for him to be a detained resident.

The eligibility requirementE+W+S+N.I.

17(1)The relevant person meets the eligibility requirement unless he is ineligible to be deprived of liberty by this Act.

(2)Schedule 1A applies for the purpose of determining whether or not P is ineligible to be deprived of liberty by this Act.

The no refusals requirementE+W+S+N.I.

18The relevant person meets the no refusals requirement unless there is a refusal within the meaning of paragraph 19 or 20.

19(1)There is a refusal if these conditions are met—

(a)the relevant person has made an advance decision;

(b)the advance decision is valid;

(c)the advance decision is applicable to some or all of the relevant treatment.

(2)Expressions used in this paragraph and any of sections 24, 25 or 26 have the same meaning in this paragraph as in that section.

20(1)There is a refusal if it would be in conflict with a valid decision of a donee or deputy for the relevant person to be accommodated in the relevant hospital or care home for the purpose of receiving some or all of the relevant care or treatment—

(a)in circumstances which amount to deprivation of the person's liberty, or

(b)at all.

(2)A donee is a donee of a lasting power of attorney granted by the relevant person.

(3)A decision of a donee or deputy is valid if it is made—

(a)within the scope of his authority as donee or deputy, and

(b)in accordance with Part 1 of this Act.

Part 4 E+W+S+N.I.Standard authorisations
Supervisory body to give authorisationE+W+S+N.I.

21Only the supervisory body may give a standard authorisation.

22The supervisory body may not give a standard authorisation unless—

(a)the managing authority of the relevant hospital or care home have requested it, or

(b)paragraph 71 applies (right of third party to require consideration of whether authorisation needed).

23The managing authority may not make a request for a standard authorisation unless—

(a)they are required to do so by paragraph 24 (as read with paragraphs 27 to 29),

(b)they are required to do so by paragraph 25 (as read with paragraph 28), or

(c)they are permitted to do so by paragraph 30.

Duty to request authorisation: basic casesE+W+S+N.I.

24(1)The managing authority must request a standard authorisation in any of the following cases.

(2)The first case is where it appears to the managing authority that the relevant person—

(a)is not yet accommodated in the relevant hospital or care home,

(b)is likely — at some time within the next 28 days — to be a detained resident in the relevant hospital or care home, and

(c)is likely—

(i)at that time, or

(ii)at some later time within the next 28 days,

to meet all of the qualifying requirements.

(3)The second case is where it appears to the managing authority that the relevant person—

(a)is already accommodated in the relevant hospital or care home,

(b)is likely — at some time within the next 28 days — to be a detained resident in the relevant hospital or care home, and

(c)is likely—

(i)at that time, or

(ii)at some later time within the next 28 days,

to meet all of the qualifying requirements.

(4)The third case is where it appears to the managing authority that the relevant person—

(a)is a detained resident in the relevant hospital or care home, and

(b)meets all of the qualifying requirements, or is likely to do so at some time within the next 28 days.

(5)This paragraph is subject to paragraphs 27 to 29.

Duty to request authorisation: change in place of detentionE+W+S+N.I.

25(1)The relevant managing authority must request a standard authorisation if it appears to them that these conditions are met.

(2)The first condition is that a standard authorisation—

(a)has been given, and

(b)has not ceased to be in force.

(3)The second condition is that there is, or is to be, a change in the place of detention.

(4)This paragraph is subject to paragraph 28.

26(1)This paragraph applies for the purposes of paragraph 25.

(2)There is a change in the place of detention if the relevant person—

(a)ceases to be a detained resident in the stated hospital or care home, and

(b)becomes a detained resident in a different hospital or care home (“the new hospital or care home”).

(3)The stated hospital or care home is the hospital or care home to which the standard authorisation relates.

(4)The relevant managing authority are the managing authority of the new hospital or care home.

Other authority for detention: request for authorisationE+W+S+N.I.

27(1)This paragraph applies if, by virtue of section 4A(3), a decision of the court authorises the relevant person to be a detained resident.

(2)Paragraph 24 does not require a request for a standard authorisation to be made in relation to that detention unless these conditions are met.

(3)The first condition is that the standard authorisation would be in force at a time immediately after the expiry of the other authority.

(4)The second condition is that the standard authorisation would not be in force at any time on or before the expiry of the other authority.

(5)The third condition is that it would, in the managing authority's view, be unreasonable to delay making the request until a time nearer the expiry of the other authority.

(6)In this paragraph—

(a)the other authority is—

(i)the decision mentioned in sub-paragraph (1), or

(ii)any further decision of the court which, by virtue of section 4A(3), authorises, or is expected to authorise, the relevant person to be a detained resident;

(b)the expiry of the other authority is the time when the other authority is expected to cease to authorise the relevant person to be a detained resident.

Request refused: no further request unless change of circumstancesE+W+S+N.I.

28(1)This paragraph applies if—

(a)a managing authority request a standard authorisation under paragraph 24 or 25, and

(b)the supervisory body are prohibited by paragraph 50(2) from giving the authorisation.

(2)Paragraph 24 or 25 does not require that managing authority to make a new request for a standard authorisation unless it appears to the managing authority that—

(a)there has been a change in the relevant person's case, and

(b)because of that change, the supervisory body are likely to give a standard authorisation if requested.

Authorisation given: request for further authorisationE+W+S+N.I.

29(1)This paragraph applies if a standard authorisation—

(a)has been given in relation to the detention of the relevant person, and

(b)that authorisation (“the existing authorisation”) has not ceased to be in force.

(2)Paragraph 24 does not require a new request for a standard authorisation (“the new authorisation”) to be made unless these conditions are met.

(3)The first condition is that the new authorisation would be in force at a time immediately after the expiry of the existing authorisation.

(4)The second condition is that the new authorisation would not be in force at any time on or before the expiry of the existing authorisation.

(5)The third condition is that it would, in the managing authority's view, be unreasonable to delay making the request until a time nearer the expiry of the existing authorisation.

(6)The expiry of the existing authorisation is the time when it is expected to cease to be in force.

Power to request authorisationE+W+S+N.I.

30(1)This paragraph applies if—

(a)a standard authorisation has been given in relation to the detention of the relevant person,

(b)that authorisation (“the existing authorisation”) has not ceased to be in force,

(c)the requirement under paragraph 24 to make a request for a new standard authorisation does not apply, because of paragraph 29, and

(d)a review of the existing authorisation has been requested, or is being carried out, in accordance with Part 8.

(2)The managing authority may request a new standard authorisation which would be in force on or before the expiry of the existing authorisation; but only if it would also be in force immediately after that expiry.

(3)The expiry of the existing authorisation is the time when it is expected to cease to be in force.

(4)Further provision relating to cases where a request is made under this paragraph can be found in—

(a)paragraph 62 (effect of decision about request), and

(b)paragraph 124 (effect of request on Part 8 review).

Information included in requestE+W+S+N.I.

31A request for a standard authorisation must include the information (if any) required by regulations.

Records of requestsE+W+S+N.I.

32(1)The managing authority of a hospital or care home must keep a written record of—

(a)each request that they make for a standard authorisation, and

(b)the reasons for making each request.

(2)A supervisory body must keep a written record of each request for a standard authorisation that is made to them.

Relevant person must be assessedE+W+S+N.I.

33(1)This paragraph applies if the supervisory body are requested to give a standard authorisation.

(2)The supervisory body must secure that all of these assessments are carried out in relation to the relevant person—

(a)an age assessment;

(b)a mental health assessment;

(c)a mental capacity assessment;

(d)a best interests assessment;

(e)an eligibility assessment;

(f)a no refusals assessment.

(3)The person who carries out any such assessment is referred to as the assessor.

(4)Regulations may be made about the period (or periods) within which assessors must carry out assessments.

(5)This paragraph is subject to paragraphs 49 and 133.

Age assessmentE+W+S+N.I.

34An age assessment is an assessment of whether the relevant person meets the age requirement.

Mental health assessmentE+W+S+N.I.

35A mental health assessment is an assessment of whether the relevant person meets the mental health requirement.

36When carrying out a mental health assessment, the assessor must also—

(a)consider how (if at all) the relevant person's mental health is likely to be affected by his being a detained resident, and

(b)notify the best interests assessor of his conclusions.

Mental capacity assessmentE+W+S+N.I.

37A mental capacity assessment is an assessment of whether the relevant person meets the mental capacity requirement.

Best interests assessmentE+W+S+N.I.

38A best interests assessment is an assessment of whether the relevant person meets the best interests requirement.

39(1)In carrying out a best interests assessment, the assessor must comply with the duties in sub-paragraphs (2) and (3).

(2)The assessor must consult the managing authority of the relevant hospital or care home.

(3)The assessor must have regard to all of the following—

(a)the conclusions which the mental health assessor has notified to the best interests assessor in accordance with paragraph 36(b);

(b)any relevant needs assessment;

(c)any relevant care plan.

(4)A relevant needs assessment is an assessment of the relevant person's needs which—

(a)was carried out in connection with the relevant person being accommodated in the relevant hospital or care home, and

(b)was carried out by or on behalf of—

(i)the managing authority of the relevant hospital or care home, or

(ii)the supervisory body.

(5)A relevant care plan is a care plan which—

(a)sets out how the relevant person's needs are to be met whilst he is accommodated in the relevant hospital or care home, and

(b)was drawn up by or on behalf of—

(i)the managing authority of the relevant hospital or care home, or

(ii)the supervisory body.

(6)The managing authority must give the assessor a copy of—

(a)any relevant needs assessment carried out by them or on their behalf, or

(b)any relevant care plan drawn up by them or on their behalf.

(7)The supervisory body must give the assessor a copy of—

(a)any relevant needs assessment carried out by them or on their behalf, or

(b)any relevant care plan drawn up by them or on their behalf.

(8)The duties in sub-paragraphs (2) and (3) do not affect any other duty to consult or to take the views of others into account.

40(1)This paragraph applies whatever conclusion the best interests assessment comes to.

(2)The assessor must state in the best interests assessment the name and address of every interested person whom he has consulted in carrying out the assessment.

41Paragraphs 42 and 43 apply if the best interests assessment comes to the conclusion that the relevant person meets the best interests requirement.

42(1)The assessor must state in the assessment the maximum authorisation period.

(2)The maximum authorisation period is the shorter of these periods—

(a)the period which, in the assessor's opinion, would be the appropriate maximum period for the relevant person to be a detained resident under the standard authorisation that has been requested;

(b)1 year, or such shorter period as may be prescribed in regulations.

(3)Regulations under sub-paragraph (2)(b)—

(a)need not provide for a shorter period to apply in relation to all standard authorisations;

(b)may provide for different periods to apply in relation to different kinds of standard authorisations.

(4)Before making regulations under sub-paragraph (2)(b) the Secretary of State must consult all of the following—

(a)each body required by regulations under paragraph 162 to monitor and report on the operation of this Schedule in relation to England;

(b)such other persons as the Secretary of State considers it appropriate to consult.

(5)Before making regulations under sub-paragraph (2)(b) the National Assembly for Wales must consult all of the following—

(a)each person or body directed under paragraph 163(2) to carry out any function of the Assembly of monitoring and reporting on the operation of this Schedule in relation to Wales;

(b)such other persons as the Assembly considers it appropriate to consult.

43The assessor may include in the assessment recommendations about conditions to which the standard authorisation is, or is not, to be subject in accordance with paragraph 53.

44(1)This paragraph applies if the best interests assessment comes to the conclusion that the relevant person does not meet the best interests requirement.

(2)If, on the basis of the information taken into account in carrying out the assessment, it appears to the assessor that there is an unauthorised deprivation of liberty, he must include a statement to that effect in the assessment.

(3)There is an unauthorised deprivation of liberty if the managing authority of the relevant hospital or care home are already depriving the relevant person of his liberty without authority of the kind mentioned in section 4A.

45The duties with which the best interests assessor must comply are subject to the provision included in appointment regulations under Part 10 (in particular, provision made under paragraph 146).

Eligibility assessmentE+W+S+N.I.

46An eligibility assessment is an assessment of whether the relevant person meets the eligibility requirement.

47(1)Regulations may—

(a)require an eligibility assessor to request a best interests assessor to provide relevant eligibility information, and

(b)require the best interests assessor, if such a request is made, to provide such relevant eligibility information as he may have.

(2)In this paragraph—

  • best interests assessor” means any person who is carrying out, or has carried out, a best interests assessment in relation to the relevant person;

  • eligibility assessor” means a person carrying out an eligibility assessment in relation to the relevant person;

  • “relevant eligibility information” is information relevant to assessing whether or not the relevant person is ineligible by virtue of paragraph 5 of Schedule 1A.

No refusals assessmentE+W+S+N.I.

48A no refusals assessment is an assessment of whether the relevant person meets the no refusals requirement.

Equivalent assessment already carried outE+W+S+N.I.

49(1)The supervisory body are not required by paragraph 33 to secure that a particular kind of assessment (“the required assessment”) is carried out in relation to the relevant person if the following conditions are met.

(2)The first condition is that the supervisory body have a written copy of an assessment of the relevant person (“the existing assessment”) that has already been carried out.

(3)The second condition is that the existing assessment complies with all requirements under this Schedule with which the required assessment would have to comply (if it were carried out).

(4)The third condition is that the existing assessment was carried out within the previous 12 months; but this condition need not be met if the required assessment is an age assessment.

(5)The fourth condition is that the supervisory body are satisfied that there is no reason why the existing assessment may no longer be accurate.

(6)If the required assessment is a best interests as