Mental Health Act 1983

Part I E+W Application of Act

1 Application of Act: “mental disorder”. E+W

(1) The provisions of this Act shall have effect with respect to the reception, care and treatment of mentally disordered patients, the management of their property and other related matters.

(2) In this Act—

• [F1 “mental disorder” means any disorder or disability of the mind; and

• “mentally disordered” shall be construed accordingly;]

• F2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• F2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• F2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

and other expressions shall have the meanings assigned to them in section 145 below.

[F3 (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.]

[F4 (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.]

[F5 (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.]

Textual Amendments

F1 S. 1(2): definitions of "mental disorder" and "mentally disordered" substituted (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 1(2), 56 (with Sch. 10); S.I. 2008/1900, art. 2(a) (with art. 3, Sch.)

F2 S. 1(2): definitions repealed (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 1(3), 55, 56, Sch. 11 Pt. 1 (with Sch. 10); S.I. 2008/1900, art. 2(a)(p) (with art. 3, Sch.)

F3 S. 1(2A)(2B) inserted (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 2(2), 56 (with Sch. 10); S.I. 2008/1900, art. 2(b) (with art. 3, Sch.)

F4 S. 1(3) substituted (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 3, 56 (with Sch. 10); S.I. 2008/1900, art. 2(b) (with art. 3, Sch.)

F5 S. 1(4) inserted (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 2(3), 56 (with Sch. 10); S.I. 2008/1900, art. 2(b) (with art. 3, Sch.)

Modifications etc. (not altering text)

C1 S. 1(2) modified (3.11.2008) by The Mental Health Act 2007 (Commencement No. 6 and After-care under Supervision: Savings, Modifications and Transitional Provisions) Order 2008 (S.I. 2008/1210), art. 6(a) (with arts. 4, 5)

Part II U.K. Compulsory Admission to Hospital and Guardianship

Modifications etc. (not altering text)

C2 Pt. II (ss. 2–34) modified by Mental Health (Scotland) Act 1984 (c. 36, SIF 85), ss. 17(2), 78(2)

C3 Part II (ss. 2-34) modified (E.W.) (1.1.1992) by Criminal Procedure (Insanity and Unfitness to Plead) Act 1991 (c. 25, SIF 39:1), s. 5(1), Sch. 1 para.3 (with saving in s. 8); S.I. 1991/2488, art. 2

Procedure for hospital admission E+W

2 Admission for assessment. E+W

(1) A patient may be admitted to a hospital and detained there for the period allowed by subsection (4) below in pursuance of an application (in this Act referred to as “an application for admission for assessment”) made in accordance with subsections (2) and (3) below.

(2) An application for admission for assessment may be made in respect of a patient on the grounds that—

(a) he is suffering from mental disorder of a nature or degree which warrants the detention of the patient in a hospital for assessment (or for assessment followed by medical treatment) for at least a limited period; and

(b) he ought to be so detained in the interests of his own health or safety or with a view to the protection of other persons.

(3) An application for admission for assessment shall be founded on the written recommendations in the prescribed form of two registered medical practitioners, including in each case a statement that in the opinion of the practitioner the conditions set out in subsection (2) above are complied with.

(4) Subject to the provisions of section 29(4) below, a patient admitted to hospital in pursuance of an application for admission for assessment may be detained for a period not exceeding 28 days beginning with the day on which he is admitted, but shall not be detained after the expiration of that period unless before it has expired he has become liable to be detained by virtue of a subsequent application, order or direction under the following provisions of this Act.

3 Admission for treatment. E+W

(1) A patient may be admitted to a hospital and detained there for the period allowed by the following provisions of this Act in pursuance of an application (in this Act referred to as “an application for admission for treatment”) made in accordance with this section.

(2) An application for admission for treatment may be made in respect of a patient on the grounds that—

(a) he is suffering from [F6 mental disorder] of a nature or degree which makes it appropriate for him to receive medical treatment in a hospital; and

(b) F7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(c) it is necessary for the health or safety of the patient or for the protection of other persons that he should receive such treatment and it cannot be provided unless he is detained under this section[F8 ; and

(d) appropriate medical treatment is available for him.]

(3) An application for admission for treatment shall be founded on the written recommendations in the prescribed form of two registered medical practitioners, including in each case a statement that in the opinion of the practitioner the conditions set out in subsection (2) above are complied with; and each such recommendation shall include—

(a) such particulars as may be prescribed of the grounds for that opinion so far as it relates to the conditions set out in paragraphs (a) and [F9 (d)] of that subsection; and

(b) a statement of the reasons for that opinion so far as it relates to the conditions set out in paragraph (c) of that subsection, specifying whether other methods of dealing with the patient are available and, if so, why they are not appropriate.

[F10 (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.]

Textual Amendments

F6 Words in s. 3(2)(a) substituted (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 1, 56, Sch. 1 para. 2 (with Sch. 10); S.I. 2008/1900, art. 2(a) (with art. 3, Sch.)

F7 S. 3(2)(b) and following word repealed (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 4(2)(a), 55, 56. {Sch. 11 Pt. 2} (with Sch. 10); S.I. 2008/1900, art. 2(b)(p) (with art. 3, Sch.)

F8 S. 3(2)(d) and preceding word inserted (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 4(2)(b), 56 (with Sch. 10); S.I. 2008/1900, art. 2(b) (with art. 3, Sch.)

F9 Word in s. 3(3)(a) substituted (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 4(2)(c), 56 (with Sch. 10); S.I. 2008/1900, art. 2(b) (with art. 3, Sch.)

F10 S. 3(4) inserted (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 4(3), 56 (with Sch. 10); S.I. 2008/1900, art. 2(b) (with art. 3, Sch.)

4 Admission for assessment in cases of emergency. E+W

(1) In any case of urgent necessity, an application for admission for assessment may be made in respect of a patient in accordance with the following provisions of this section, and any application so made is in this Act referred to as “an emergency application”.

(2) An emergency application may be made either by an [F11 approved mental health professional] or by the nearest relative of the patient; and every such application shall include a statement that it is of urgent necessity for the patient to be admitted and detained under section 2 above, and that compliance with the provisions of this Part of this Act relating to applications under that section would involve undesirable delay.

(3) An emergency application shall be sufficient in the first instance if founded on one of the medical recommendations required by section 2 above, given, if practicable, by a practitioner who has previous acquaintance with the patient and otherwise complying with the requirements of section 12 below so far as applicable to a single recommendation, and verifying the statement referred to in subsection (2) above.

(4) An emergency application shall cease to have effect on the expiration of a period of 72 hours from the time when the patient is admitted to the hospital unless—

(a) the second medical recommendation required by section 2 above is given and received by the managers within that period; and

(b) that recommendation and the recommendation referred to in subsection (3) above together comply with all the requirements of section 12 below (other than the requirement as to the time of signature of the second recommendation).

(5) In relation to an emergency application, section 11 below shall have effect as if in subsection (5) of that section for the words “the period of 14 days ending with the date of the application” there were substituted the words “the previous 24 hours”.

Textual Amendments

F11 Words in s. 4(2) substituted (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 21, 56, Sch. 2 para. 2(a) (with Sch. 10); S.I. 2008/1900, art. 2(d) (with art. 3, Sch.); S.I. 2008/2561, art. 2(b) (with art. 3, Sch.)

5 Application in respect of patient already in hospital. E+W

(1) An application for the admission of a patient to a hospital may be made under this Part of this Act notwithstanding that the patient is already an in-patient in that hospital or, in the case of an application for admission for treatment that the patient is for the time being liable to be detained in the hospital in pursuance of an application for admission for assessment; and where an application is so made the patient shall be treated for the purposes of this Part of this Act as if he had been admitted to the hospital at the time when that application was received by the managers.

(2) If, in the case of a patient who is an in-patient in a hospital, it appears to the registered medical practitioner [F12 or approved clinician] in charge of the treatment of the patient that an application ought to be made under this Part of this Act for the admission of the patient to hospital, he may furnish to the managers a report in writing to that effect; and in any such case the patient may be detained in the hospital for a period of 72 hours from the time when the report is so furnished.

[F13 (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.]

(4) If, in the case of a patient who is receiving treatment for mental disorder as an in-patient in a hospital, it appears to a nurse of the prescribed class—

(a) that the patient is suffering from mental disorder to such a degree that it is necessary for his health or safety or for the protection of others for him to be immediately restrained from leaving the hospital; and

(b) that it is not practicable to secure the immediate attendance of a practitioner [F14 or clinician] for the purpose of furnishing a report under subsection (2) above,

the nurse may record that fact in writing; and in that event the patient may be detained in the hospital for a period of six hours from the time when that fact is so recorded or until the earlier arrival at the place where the patient is detained of a practitioner [F14 or clinician] having power to furnish a report under that subsection.

(5) A record made under subsection (4) above shall be delivered by the nurse (or by a person authorised by the nurse in that behalf) to the managers of the hospital as soon as possible after it is made; and where a record is made under that subsection the period mentioned in subsection (2) above shall begin at the time when it is made.

(6) The reference in subsection (1) above to an in-patient does not include an in-patient who is liable to be detained in pursuance of an application under this Part of this Act [F15 or a community patient] and the references in subsections (2) and (4) above do not include an in-patient who is liable to be detained in a hospital under this Part of this Act [F15 or a community patient] .

(7) In subsection (4) above “prescribed” means prescribed by an order made by the Secretary of State.

Textual Amendments

F12 Words in s. 5(2) inserted (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 9(2)(a), 56 (with Sch. 10); S.I. 2008/1900, art. 2(b) (with art. 3, Sch.)

F13 S. 5(3)(3A) substituted (3.11.2008) for s. 5(3) by Mental Health Act 2007 (c. 12), ss. 9(2)(b), 56 (with Sch. 10); S.I. 2008/1900, art. 2(b) (with art. 3, Sch.)

F14 Words in s. 5(4) inserted (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 9(2)(c), 56 (with Sch. 10); S.I. 2008/1900, art. 2(b) (with art. 3, Sch.)

F15 Words in s. 5(6) inserted (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 32, 56, Sch. 3 para. 2 (with Sch. 10); S.I. 2008/1900, art. 2(i) (with art. 3, Sch.)

6 Effect of application for admission. E+W

(1) An application for the admission of a patient to a hospital under this Part of this Act, duly completed in accordance with the provisions of this Part of this Act, shall be sufficient authority for the applicant, or any person authorised by the applicant, to take the patient and convey him to the hospital at any time within the following period, that is to say—

(a) in the case of an application other than an emergency application, the period of 14 days beginning with the date on which the patient was last examined by a registered medical practitioner before giving a medical recommendation for the purposes of the application;

(b) in the case of an emergency application, the period of 24 hours beginning at the time when the patient was examined by the practitioner giving the medical recommendation which is referred to in section 4(3) above, or at the time when the application is made, whichever is the earlier.

(2) Where a patient is admitted within the said period to the hospital specified in such an application as is mentioned in subsection (1) above, or, being within that hospital, is treated by virtue of section 5 above as if he had been so admitted, the application shall be sufficient authority for the managers to detain the patient in the hospital in accordance with the provisions of this Act.

(3) Any application for the admission of a patient under this Part of this Act which appears to be duly made and to be founded on the necessary medical recommendations may be acted upon without further proof of the signature or qualification of the person by whom the application or any such medical recommendation is made or given or of any matter of fact or opinion stated in it.

(4) Where a patient is admitted to a hospital in pursuance of an application for admission for treatment, any previous application under this part of this Act by virtue of which he was liable to be detained in a hospital or subject to guardianship shall cease to have effect.

Guardianship E+W

7 Application for guardianship. E+W

(1) A patient who has attained the age of 16 years may be received into guardianship, for the period allowed by the following provisions of this Act, in pursuance of an application (in this Act referred to as “a guardianship application”) made in accordance with this section.

(2) A guardianship application may be made in respect of a patient on the grounds that—

(a) he is suffering from mental disorder, F16 . . . of a nature or degree which warrants his reception into guardianship under this section; and

(b) it is necessary in the interests of the welfare of the patient or for the protection of other persons that the patient should be so received.

(3) A guardianship application shall be founded on the written recommendations in the prescribed form of two registered medical practitioners, including in each case a statement that in the opinion of the practitioner the conditions set out in subsection (2) above are complied with; and each such recommendation shall include—

(a) such particulars as may be prescribed of the grounds for that opinion so far as it relates to the conditions set out in paragraph (a) of that subsection; and

(b) a statement of the reasons for that opinion so far as it relates to the conditions set out in paragraph (b) of that subsection.

(4) A guardianship application shall state the age of the patient or, if his exact age is not known to the applicant, shall state (if it be the fact) that the patient is believed to have attained the age of 16 years.

(5) The person named as guardian in a guardianship application may be either a local social services authority or any other person (including the applicant himself); but a guardianship application in which a person other than a local social services authority is named as guardian shall be of no effect unless it is accepted on behalf of that person by the local social services authority for the area in which he resides, and shall be accompanied by a statement in writing by that person that he is willing to act as guardian.

Textual Amendments

F16 Words in s. 7(2)(a) repealed (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 1, 55, 56, Sch. 1 para. 3 {Sch. 11 Pt. 1} (with Sch. 10); S.I. 2008/1900, art. 2(a)(p) (with art. 3, Sch.)

8 Effect of guardianship application, etc. E+W

(1) Where a guardianship application, duly made under the provisions of this Part of this Act and forwarded to the local social services authority within the period allowed by subsection (2) below is accepted by that authority, the application shall, subject to regulations made by the Secretary of State, confer on the authority or person named in the application as guardian, to the exclusion of any other person—

(a) the power to require the patient to reside at a place specified by the authority or person named as guardian;

(b) the power to require the patient to attend at places and times so specified for the purpose of medical treatment, occupation, education or training;

(c) the power to require access to the patient to be given, at any place where the patient is residing, to any registered medical practitioner, [F17 approved mental health professional] or other person so specified.

(2) The period within which a guardianship application is required for the purposes of this section to be forwarded to the local social services authority is the period of 14 days beginning with the date on which the patient was last examined by a registered medical practitioner before giving a medical recommendation for the purposes of the application.

(3) A guardianship application which appears to be duly made and to be founded on the necessary medical recommendations may be acted upon without further proof of the signature or qualification of the person by whom the application or any such medical recommendation is made or given, or of any matter of fact or opinion stated in the application.

(4) If within the period of 14 days beginning with the day on which a guardianship application has been accepted by the local social services authority the application, or any medical recommendation given for the purposes of the application, is found to be in any respect incorrect or defective, the application or recommendation may, within that period and with the consent of that authority, be amended by the person by whom it was signed; and upon such amendment being made the application or recommendation shall have effect and shall be deemed to have had effect as if it had been originally made as so amended.

(5) Where a patient is received into guardianship in pursuance of a guardianship application, any previous application under this Part of this Act by virtue of which he was subject to guardianship or liable to be detained in a hospital shall cease to have effect.

Textual Amendments

F17 Words in s. 8(1)(c) substituted (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 21, 56, Sch. 2 para. 2(b) (with Sch. 10); S.I. 2008/1900, art. 2(d) (with art. 3, Sch.); S.I. 2008/2561, art. 2(b) (with art. 3, Sch.)

9 Regulations as to guardianship. E+W

(1) Subject to the provisions of this Part of this Act, the Secretary of State may make regulations—

(a) for regulating the exercise by the guardians of patients received into guardianship under this Part of this Act of their powers as such; and

(b) for imposing on such guardians, and upon local social services authorities in the case of patients under the guardianship of persons other than local social services authorities, such duties as he considers necessary or expedient in the interests of the patients.

(2) Regulations under this section may in particular make provision for requiring the patients to be visited, on such occasions or at such intervals as may be prescribed by the regulations, on behalf of such local social services authorities as may be so prescribed, and shall provide for the appointment, in the case of every patient subject to the guardianship of a person other than a local social services authority, of a registered medical practitioner to act as the nominated medical attendant of the patient.

10 Transfer of guardianship in case of death, incapacity, etc., of guardian. E+W

(1) If any person (other than a local social services authority) who is the guardian of a patient received into guardianship under this Part of this Act—

(a) dies; or

(b) gives notice in writing to the local social services authority that he desires to relinquish the functions of guardian,

the guardianship of the patient shall thereupon vest in the local social services authority, but without prejudice to any power to transfer the patient into the guardianship of another person in pursuance of regulations under section 19 below.

(2) If any such person, not having given notice under subsection (1)(b) above, is incapacitated by illness or any other cause from performing the functions of guardian of the patient, those functions may, during his incapacity, be performed on his behalf by the local social services authority or by any other person approved for the purposes by that authority.

(3) If it appears to the county court, upon application made by an [F18 approved mental health professional acting on behalf of the local social services authority] , that any person other than a local social services authority having the guardianship of a patient received into guardianship under this Part of this Act has performed his functions negligently or in a manner contrary to the interests of the welfare of the patient, the court may order that the guardianship of the patient be transferred to the local social services authority or to any other person approved for the purpose by that authority.

(4) Where the guardianship of a patient is transferred to a local social services authority or other person by or under this section, subsection (2)(c) of section 19 below shall apply as if the patient had been transferred into the guardianship of that authority or person in pursuance of regulations under that section.

[F19 (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).]

Textual Amendments

F18 Words in s. 10(3) substituted (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 21, 56, Sch. 2 para. 3(2) (with Sch. 10); S.I. 2008/1900, art. 2(d) (with art. 3, Sch.); S.I. 2008/2561, art. 2(b) (with art. 3, Sch.)

F19 S. 10(5) inserted (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 21, 56, Sch. 2 para. 3(3) (with Sch. 10); S.I. 2008/1900, art. 2(d) (with art. 3, Sch.); S.I. 2008/2561, art. 2(b) (with art. 3, Sch.)

General provisions as to applications and recommendations E+W

11 General provisions as to applications. E+W

(1) Subject to the provisions of this section, an application for admission for assessment, an application for admission for treatment and a guardianship application may be made either by the nearest relative of the patient or by an [F20 approved mental health professional] ; and every such application shall specify the qualification of the applicant to make the application.

[F21 (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.]

(2) Every application for admission shall be addressed to the managers of the hospital to which admission is sought and every guardianship application shall be forwarded to the local social services authority named in the application as guardian, or, as the case may be, to the local social services authority for the area in which the person so named resides.

(3) Before or within a reasonable time after an application for the admission of a patient for assessment is made by an [F22 approved mental health professional, that professional] shall take such steps as are practicable to inform the person (if any) appearing to be the nearest relative of the patient that the application is to be or has been made and of the power of the nearest relative under section 23(2)(a) below.

[F23 (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.]

(5) None of the applications mentioned in subsection (1) above shall be made by any person in respect of a patient unless that person has personally seen the patient within the period of 14 days ending with the date of the application.

(6) F24 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(7) Each of the applications mentioned in subsection (1) above shall be sufficient if the recommendations on which it is founded are given either as separate recommendations, each signed by a registered medical practitioner, or as a joint recommendation signed by two such practitioners.

Textual Amendments

F20 Words in s. 11(1) substituted (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 21, 56, Sch. 2 para. 4(2) (with Sch. 10); S.I. 2008/1900, art. 2(d) (with art. 3, Sch.); S.I. 2008/2561, art. 2(b) (with art. 3, Sch.)

F21 S. 11(1A) inserted (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 22(2), 56 (with Sch. 10); S.I. 2008/1900, art. 2(e) (with art. 3, Sch.)

F22 Words in s. 11(3) substituted (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 21, 56, Sch. 2 para. 4(3) (with Sch. 10); S.I. 2008/1900, art. 2(d) (with art. 3, Sch.); S.I. 2008/2561, art. 2(b) (with art. 3, Sch.)

F23 S. 11(4) substituted (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 21, 56, Sch. 2 para. 4(4) (with Sch. 10); S.I. 2008/1900, art. 2(d) (with art. 3, Sch.); S.I. 2008/2561, art. 2(b) (with art. 3, Sch.)

F24 S. 11(6) repealed (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 55, 56, Sch.11 Pt. 1 (with Sch. 10); S.I. 2008/1900, art. 2(p) (with art. 3, Sch.)

12 General provisions as to medical recommendations. E+W

(1) The recommendations required for the purposes of an application for the admission of a patient under this Part of this Act [F25 or a guardianship application](in this Act referred to as “medical recommendations”) shall be signed on or before the date of the application, and shall be given by practitioners who have personally examined the patient either together or separately, but where they have examined the patient separately not more than five days must have elapsed between the days on which the separate examinations took place.

(2) Of the medical recommendations given for the purposes of any such application, one shall be given by a practitioner approved for the purposes of this section by the Secretary of State as having special experience in the diagnosis or treatment of mental disorder; and unless that practitioner has previous acquaintance with the patient, the other such recommendation shall, if practicable, be given by a registered medical practitioner who has such previous acquaintance.

[F26 (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.]

[F27 (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.]

Textual Amendments

F25 Words in s. 12(1) inserted (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 22(3), 56 (with Sch. 10); S.I. 2008/1900, art. 2(e) (with art. 3, Sch.)

F26 S. 12(2A) inserted (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 16, 56 (with Sch. 10); S.I. 2008/1900, art. 2(b) (with art. 3, Sch.)

F27 S. 12(3) substituted (3.11.2008) for s. 12(3)-(7) by Mental Health Act 2007 (c. 12), ss. 22(4), 56 (with Sch. 10); S.I. 2008/1900, art. 2(e) (with art. 3, Sch.)

Modifications etc. (not altering text)

C4 S. 12(2): certain functions not to be exercisable by a Primary Care Trust (E.) (1.4.2002) by virtue of 2000/695, reg. 4(1), Sch. 4 (as amended by S.I. 2002/555, reg. 6(3))

C5 S. 12(2): transfer of functions (E.) (1.4.2001) by S.I. 2001/747, regs. 2(1), 3, 4, Sch. 1

C6 S. 12(2): functions made exercisable (W.) (1.10.2009) by Local Health Boards (Directed Functions) (Wales) Regulations 2009 (S.I. 2009/1511), reg. 4, Sch.

[F28 12ZA Agreement for exercise of approval function: England E+W

(1) The Secretary of State may enter into an agreement with another person for an approval function of the Secretary of State to be exercisable by the Secretary of State concurrently—

(a) with that other person, and

(b) if a requirement under section 12ZB has effect, with the other person by whom the function is exercisable under that requirement.

(2) In this section and sections 12ZB and 12ZC, “approval function” means—

(a) the function under section 12(2), or

(b) the function of approving persons as approved clinicians.

(3) An agreement under this section may, in particular, provide for an approval function to be exercisable by the other party—

(a) in all circumstances or only in specified circumstances;

(b) in all areas or only in specified areas.

(4) An agreement under this section may provide for an approval function to be exercisable by the other party—

(a) for a period specified in the agreement, or

(b) for a period determined in accordance with the agreement.

(5) The other party to an agreement under this section must comply with such instructions as the Secretary of State may give with respect to the exercise of the approval function.

(6) An instruction under subsection (5) may require the other party to cease to exercise the function to such extent as the instruction specifies.

(7) The agreement may provide for the Secretary of State to pay compensation to the other party in the event of an instruction such as is mentioned in subsection (6) being given.

(8) An instruction under subsection (5) may be given in such form as the Secretary of State may determine.

(9) The Secretary of State must publish instructions under subsection (5) in such form as the Secretary of State may determine; but that does not apply to an instruction such as is mentioned in subsection (6).

(10) An agreement under this section may provide for the Secretary of State to make payments to the other party; and the Secretary of State may make payments to other persons in connection with the exercise of an approval function by virtue of this section.

Textual Amendments

F28 Ss. 12ZA-12ZC inserted (1.4.2013) by Health and Social Care Act 2012 (c. 7), ss. 38(1), 306(4); S.I. 2013/160, art. 2(2) (with arts. 7-9)

12ZB Requirement to exercise approval functions: England E+W

(1) The Secretary of State may impose a requirement on [F29 NHS England] (“[F29 NHS England]”) or a Special Health Authority for an approval function of the Secretary of State to be exercisable by the Secretary of State concurrently—

(a) with [F29 NHS England] or (as the case may be) Special Health Authority, and

(b) if an agreement under section 12ZA has effect, with the other person by whom the function is exercisable under that agreement.

(2) The Secretary of State may, in particular, require the body concerned to exercise an approval function—

(a) in all circumstances or only in specified circumstances;

(b) in all areas or only in specified areas.

(3) The Secretary of State may require the body concerned to exercise an approval function—

(a) for a period specified in the requirement, or

(b) for a period determined in accordance with the requirement.

(4) Where a requirement under subsection (1) is imposed, [F29 NHS England] or (as the case may be) Special Health Authority must comply with such instructions as the Secretary of State may give with respect to the exercise of the approval function.

(5) An instruction under subsection (4) may be given in such form as the Secretary of State may determine.

(6) The Secretary of State must publish instructions under subsection (4) in such form as the Secretary of State may determine.

(7) Where [F29 NHS England] or a Special Health Authority has an approval function by virtue of this section, the function is to be treated for the purposes of the National Health Service Act 2006 as a function that it has under that Act.

(8) The Secretary of State may make payments in connection with the exercise of an approval function by virtue of this section.

Textual Amendments

F28 Ss. 12ZA-12ZC inserted (1.4.2013) by Health and Social Care Act 2012 (c. 7), ss. 38(1), 306(4); S.I. 2013/160, art. 2(2) (with arts. 7-9)

F29 Words in s. 12ZB substituted (1.7.2022) by Health and Care Act 2022 (c. 31), s. 186(6), Sch. 1 para. 1(1)(2); S.I. 2022/734, reg. 2(a), Sch. (with regs. 13, 29, 30)

12ZC Provision of information for the purposes of section 12ZA or 12ZB E+W

(1) A relevant person may provide another person with such information as the relevant person considers necessary or appropriate for or in connection with—

(a) the exercise of an approval function; or

(b) the exercise by the Secretary of State of the power—

(i) to enter into an agreement under section 12ZA;

(ii) to impose a requirement under section 12ZB; or

(iii) to give an instruction under section 12ZA(5) or 12ZB(4).

(2) The relevant persons are—

(a) the Secretary of State;

(b) a person who is a party to an agreement under section 12ZA; or

(c) if the Secretary of State imposes a requirement under section 12ZB on [F30 NHS England] or a Special Health Authority, [F30 NHS England] or (as the case may be) Special Health Authority.

(3) This section, in so far as it authorises the provision of information by one relevant person to another relevant person, has effect notwithstanding any rule of common law which would otherwise prohibit or restrict the provision.

(4) In this section, “information” includes documents and records.]

Textual Amendments

F28 Ss. 12ZA-12ZC inserted (1.4.2013) by Health and Social Care Act 2012 (c. 7), ss. 38(1), 306(4); S.I. 2013/160, art. 2(2) (with arts. 7-9)

F30 Words in s. 12ZC substituted (1.7.2022) by Health and Care Act 2022 (c. 31), s. 186(6), Sch. 1 para. 1(1)(2); S.I. 2022/734, reg. 2(a), Sch. (with regs. 13, 29, 30)

[F31 12A Conflicts of interest E+W

(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.]

Textual Amendments

F31 S. 12A inserted (1.4.2008) by Mental Health Act 2007 (c. 12), ss. 22(5), 56 (with Sch. 10); S.I. 2008/745, art. 3(c)

13 [F32 Duty of approved mental health professionals to make applications for admission or guardianship]. E+W

[F33 (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.]

(2) Before making an application for the admission of a patient to hospital an [F34 approved mental health professional] shall interview the patient in a suitable manner and satisfy himself that detention in a hospital is in all the circumstances of the case the most appropriate way of providing the care and medical treatment of which the patient stands in need.

[F35 (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.]

(4) It shall be the duty of a local social services authority, if so required by the nearest relative of a patient residing in their area, to [F36 make arrangements under subsection (1) above for an approved mental health professional to consider the patient's case] with a view to making an application for his admission to hospital; and if in any such case [F37 that professional] decides not to make an application he shall inform the nearest relative of his reasons in writing.

(5) Nothing in this section shall be construed as authorising or requiring an application to be made by an [F38 approved mental health professional] in contravention of the provisions of section 11(4) above [F39 or of regulations under section 12A], or as restricting the power of [F40 a local social services authority to make arrangements with an approved mental health professional to consider a patient's case or of] an [F38 approved mental health professional] to make any application under this Act.

Textual Amendments

F32 S. 13 heading: words substituted (3.11.2008) by virtue of Mental Health Act 2007 (c. 12), ss. 21, 56, Sch. 2 para. 5(1) (with Sch. 10); S.I. 2008/1900, art. 2(d) (with art. 3, Sch.); S.I. 2008/2561, art. 2(b) (with art. 3, Sch.)

F33 S. 13(1)-(1C) substituted (3.11.2008) for s. 13(1) by Mental Health Act 2007 (c. 12), ss. 21, 56, Sch. 2 para. 5(2) (with Sch. 10); S.I. 2008/1900, art. 2(d) (with art. 3, Sch.); S.I. 2008/2561, art. 2(b) (art. 3, Sch.)

F34 Words in s. 13(2) substituted (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 21, 56, Sch. 2 para. 5(3) (with Sch. 10); S.I. 2008/1900, art. 2(d) (with art. 3, Sch.); S.I. 2008/2561, art. 2(b) (with art. 3, Sch.)

F35 S. 13(3) substituted (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 21, 56, Sch. 2 para. 5(4) (with Sch. 10); S.I. 2008/1900, art. 2(d) (with art. 3, Sch.); S.I. 2008/2561, art. 2(b) (with art. 3, Sch.)

F36 Words in s. 13(4) substituted (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 21, 56, Sch. 2 para. 5(5)(a) (with Sch. 10); S.I. 2008/1900, art. 2(d) (with art. 3, Sch.); S.I. 2008/2561, art. 2(b) (with art. 3, Sch.)

F37 Words in s. 13(4) substituted (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 21, 56, Sch. 2 para. 5(5)(b) (with Sch. 10); S.I. 2008/1900, art. 2(d) (with art. 3, Sch.); S.I. 2008/2561, art. 2(b) (with art. 3, Sch.)

F38 Words in s. 13(5) substituted (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 21, 56, Sch. 2 para. 5(6)(a) (with Sch. 10); S.I. 2008/1900, art. 2(d) (with art. 3, Sch.); S.I. 2008/2561, art. 2(b) (with art. 3, Sch.)

F39 Words in s. 13(5) inserted (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 22(6), 56 (with Sch. 10); S.I. 2008/1900, art. 2(e) (with art. 3, Sch.)

F40 Words in s. 13(5) inserted (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 21, 56, Sch. 2 para. 5(6)(b) (with Sch. 10); S.I. 2008/1900, art. 2(d) (with art. 3, Sch.); S.I. 2008/2561, art. 2(b) (with art. 3, Sch.)

14

Where a patient is admitted to a hospital in pursuance of an application (other than an emergency application) made under this Part of this Act by his nearest relative, the managers of the hospital shall as soon as practicable give notice of that fact to the local social services authority for the area in which the patient resided immediately before his admission; and that authority shall as soon as practicable arrange for [F41 an approved mental health professional]F42 . . . to interview the patient and provide the managers with a report on his social circumstances.

Textual Amendments

F41 Words in s. 14 substituted (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 21, 56, Sch. 2 para. 6 (with Sch. 10); S.I. 2008/1900, art. 2(d) (with art. 3, Sch.); S.I. 2008/2561, art. 2(b) (art. 3, Sch.)

F42 Words in s. 14 repealed (1.4.2005 for E. and 1.4.2006 for W.) by Children Act 2004 (c. 31), ss. 64, 67, Sch. 5 Pt. 4; S.I. 2005/394, art. 2(2)(g); S.I. 2006/885, art. 2(2)(h)

15 Rectification of applications and recommendations. E+W

(1) If within the period of 14 days beginning with the day on which a patient has been admitted to a hospital in pursuance of an application for admission for assessment or for treatment the application, or any medical recommendation given for the purposes of the application, is found to be in any respect incorrect or defective, the application or recommendation may, within that period and with the consent of the managers of the hospital, be amended by the person by whom it was signed; and upon such amendment being made the application or recommendation shall have effect and shall be deemed to have had effect as if it had been originally made as so amended.

(2) Without prejudice to subsection (1) above, if within the period mentioned in that subsection it appears to the managers of the hospital that one of the two medical recommendations on which an application for the admission of a patient is founded is insufficient to warrant the detention of the patient in pursuance of the application, they may, within that period, give notice in writing to that effect to the applicant; and where any such notice is given in respect of a medical recommendation, that recommendation shall be disregarded, but the application shall be, and shall be deemed always to have been, sufficient if—

(a) a fresh medical recommendation complying with the relevant provisions of this Part of this Act (other than the provisions relating to the time of signature and the interval between examinations) is furnished to the managers within that period; and

(b) that recommendation, and the other recommendation on which the application is founded, together comply with those provisions.

(3) Where the medical recommendations upon which an application for admission is founded are, taken together, insufficient to warrant the detention of the patient in pursuance of the application, a notice under subsection (2) above may be given in respect of either of those recommendationsF43 . . .

(4) Nothing in this section shall be construed as authorising the giving of notice in respect of an application made as an emergency application, or the detention of a patient admitted in pursuance of such an application, after the period of 72 hours referred to in section 4(4) above, unless the conditions set out in paragraphs (a) and (b) of that section are complied with or would be complied with apart from any error or defect to which this section applies.

Textual Amendments

F43 Words in s. 15(3) repealed (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 55, 56, Sch. 11 Pt. 1 (with Sch. 10); S.I. 2008/1900, art. 2(p) (with art. 3, Sch.)

Position of patients subject to detention or guardianship U.K.

16 Reclassification of patients. E+W

F44 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F44 S. 16 repealed (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 55, 56, Sch. 11 Pt. 1 (with Sch. 10); S.I. 2008/1900, art. 2(p) (with art. 3, Sch.)

17 Leave of absence from hospital. E+W

(1) The [F45 responsible clinician] may grant to any patient who is for the time being liable to be detained in a hospital under this Part of this Act leave to be absent from the hospital subject to such conditions (if any) as [F46 that clinician] considers necessary in the interests of the patient or for the protection of other persons.

(2) Leave of absence may be granted to a patient under this section either indefinitely or on specified occasions or for any specified period; and where leave is so granted for a specified period, that period may be extended by further leave granted in the absence of the patient.

[F47 (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) Where it appears to the [F48 responsible clinician] that it is necessary so to do in the interests of the patient or for the protection of other persons, he may, upon granting leave of absence under this section, direct that the patient remain in custody during his absence; and where leave of absence is so granted the patient may be kept in the custody of any officer on the staff of the hospital, or of any other person authorised in writing by the managers of the hospital or, if the patient is required in accordance with conditions imposed on the grant of leave of absence to reside in another hospital, of any officer on the staff of that other hospital.

(4) In any case where a patient is absent from a hospital in pursuance of leave of absence granted under this section, and it appears to the [F49 responsible clinician] that it is necessary so to do in the interests of the patient’s health or safety or for the protection of other persons, [F50 that clinician] may, subject to subsection (5) below, by notice in writing given to the patient or to the person for the time being in charge of the patient, revoke the leave of absence and recall the patient to the hospital.

(5) A patient to whom leave of absence is granted under this section shall not be recalled under subsection (4) above after he has ceased to be liable to be detained under this Part of this Act;F51 . . .

[F52 (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.]

Textual Amendments

F45 Words in s. 17(1) substituted (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 9(3)(a)(i), 56 (with Sch. 10); S.I. 2008/1900, art. 2(b) (with art. 3, Sch.)

F46 Words in s. 17(1) substituted (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 9(3)(a)(ii), 56 (with Sch. 10); S.I. 2008/1900, art. 2(b) (with art. 3, Sch.)

F47 S. 17(2A)(2B) inserted (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 33(2), 56 (with Sch. 10); S.I. 2008/1900, art. 2(j) (with art. 3, Sch.)

F48 Words in s. 17(3) substituted (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 9(3)(b), 56 (with Sch. 10); S.I. 2008/1900, art. 2(b) (with art. 3, Sch.)

F49 Words in s. 17(4) substituted (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 9(3)(c)(i), 56 (with Sch. 10); S.I. 2008/1900, art. 2(b) (with art. 3, Sch.)

F50 Words in s. 17(4) substituted (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 9(3)(c)(ii), 56 (with Sch. 10); S.I. 2008/1900, art. 2(b) (with art. 3, Sch.)

F51 Words in s. 17(5) omitted (1.4.1996 with application as mentioned in s. 3(3) of the omitting Act)) by virtue of 1995 c. 52, ss. 3(1)(3), 7(2)

F52 S. 17(6)(7) inserted (1.10.2007) by Mental Health Act 2007 (c. 12), ss. 39(1), 56 (with Sch. 10); S.I. 2007/2798, art. 2

[F53 17A Community treatment orders E+W

(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.

Textual Amendments

F53 Ss. 17A-17G inserted (1.4.2008 s. 17F for certain purposes, otherwise 3.11.2008) by Mental Health Act 2007 (c. 12), ss. 32(2), 56 (with Sch. 10); S.I. 2008/745, art. 2(c)(i); S.I. 2008/1900, art. 2(i) (with art. 3, Sch. )

Modifications etc. (not altering text)

C7 S. 17A modified (3.11.2008) by The Mental Health Act 2007 (Commencement No. 6 and After-care under Supervision: Savings, Modifications and Transitional Provisions) Order 2008 (S.I. 2008/1210), art. 6(b)

C8 S. 17A(7) modified (3.11.2008) by The Mental Health Act 2007 (Commencement No. 6 and After-care under Supervision: Savings, Modifications and Transitional Provisions) Order 2008 (S.I. 2008/1210), art. 11(a)

17B Conditions E+W

(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 [F54 that falls within section 64C(4) below] 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.

Textual Amendments

F53 Ss. 17A-17G inserted (1.4.2008 s. 17F for certain purposes, otherwise 3.11.2008) by Mental Health Act 2007 (c. 12), ss. 32(2), 56 (with Sch. 10); S.I. 2008/745, art. 2(c)(i); S.I. 2008/1900, art. 2(i) (with art. 3, Sch. )

F54 Words in s. 17B(3)(b) inserted (1.6.2012) by Health and Social Care Act 2012 (c. 7), ss. 299(6), 306(4); S.I. 2012/1319, art. 2(2)

Modifications etc. (not altering text)

C9 S. 17B(2) modified (3.11.2008) by The Mental Health Act 2007 (Commencement No. 6 and After-care under Supervision: Savings, Modifications and Transitional Provisions) Order 2008 (S.I. 2008/1210), art. 6(c)

17C Duration of community treatment order E+W

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.

Textual Amendments

F53 Ss. 17A-17G inserted (1.4.2008 s. 17F for certain purposes, otherwise 3.11.2008) by Mental Health Act 2007 (c. 12), ss. 32(2), 56 (with Sch. 10); S.I. 2008/745, art. 2(c)(i); S.I. 2008/1900, art. 2(i) (with art. 3, Sch. )

Modifications etc. (not altering text)

C10 S. 17C modified (3.11.2008) by The Mental Health Act 2007 (Commencement No. 6 and After-care under Supervision: Savings, Modifications and Transitional Provisions) Order 2008 (S.I. 2008/1210), art. 11(b)

17D Effect of community treatment order E+W

(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.

Textual Amendments

F53 Ss. 17A-17G inserted (1.4.2008 s. 17F for certain purposes, otherwise 3.11.2008) by Mental Health Act 2007 (c. 12), ss. 32(2), 56 (with Sch. 10); S.I. 2008/745, art. 2(c)(i); S.I. 2008/1900, art. 2(i) (with art. 3, Sch. )

Modifications etc. (not altering text)

C11 S. 17D modified (3.11.2008) by The Mental Health Act 2007 (Commencement No. 6 and After-care under Supervision: Savings, Modifications and Transitional Provisions) Order 2008 (S.I. 2008/1210), art. 11(c)

17E Power to recall to hospital E+W

(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.

Textual Amendments

F53 Ss. 17A-17G inserted (1.4.2008 s. 17F for certain purposes, otherwise 3.11.2008) by Mental Health Act 2007 (c. 12), ss. 32(2), 56 (with Sch. 10); S.I. 2008/745, art. 2(c)(i); S.I. 2008/1900, art. 2(i) (with art. 3, Sch. )

17F Powers in respect of recalled patients E+W

(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).

Textual Amendments

F53 Ss. 17A-17G inserted (1.4.2008 s. 17F for certain purposes, otherwise 3.11.2008) by Mental Health Act 2007 (c. 12), ss. 32(2), 56 (with Sch. 10); S.I. 2008/745, art. 2(c)(i); S.I. 2008/1900, art. 2(i) (with art. 3, Sch. )

17G Effect of revoking community treatment order E+W

(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.]

Textual Amendments

F53 Ss. 17A-17G inserted (1.4.2008 s. 17F for certain purposes, otherwise 3.11.2008) by Mental Health Act 2007 (c. 12), ss. 32(2), 56 (with Sch. 10); S.I. 2008/745, art. 2(c)(i); S.I. 2008/1900, art. 2(i) (with art. 3, Sch. )

Modifications etc. (not altering text)

C12 S. 17G modified (3.11.2008) by The Mental Health Act 2007 (Commencement No. 6 and After-care under Supervision: Savings, Modifications and Transitional Provisions) Order 2008 (S.I. 2008/1210), art. 11(d)

18 Return and readmission of patients absent without leave. U.K.

(1) Where a patient who is for the time being liable to be detained under this Part of this Act in a hospital—

(a) absents himself from the hospital without leave granted under section 17 above; or

(b) fails to return to the hospital on any occasion on which, or at the expiration of any period for which, leave of absence was granted to him under that section, or upon being recalled under that section; or

(c) absents himself without permission from any place where he is required to reside in accordance with conditions imposed on the grant of leave of absence under that section,

he may, subject to the provisions of this section, be taken into custody and returned to the hospital or place by any [F55 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 managers of the hospital.

(2) Where the place referred to in paragraph (c) of subsection (1) above is a hospital other than the one in which the patient is for the time being liable to be detained, the references in that subsection to an officer on the staff of the hospital and the managers of the hospital shall respectively include references to an officer on the staff of the first-mentioned hospital and the managers of that hospital.

[F56 (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) Where a patient who is for the time being subject to guardianship under this Part of this Act absents himself without the leave of the guardian from the place at which he is required by the guardian to reside, he may, subject to the provisions of this section, be taken into custody and returned to that place by any officer on the staff of a local social services authority, by any constable, or by any person authorised in writing by the guardian or a local social services authority.

[F57 (4) A patient shall not be taken into custody under this section after the later of—

(a) the end of the period of six months beginning with the first day of his absence without leave; and

(b) the end of the period for which (apart from section 21 below) he is liable to be detained or subject to guardianship [F58 or, in the case of a community patient, the community treatment order is in force] ;

F59 . . . ]

[F60 (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) A patient shall not be taken into custody under this section if the period for which he is liable to be detained is that specified in section 2(4), 4(4) or 5(2) or (4) above and that period has expired.

(6) In this Act “absent without leave” means absent from any hospital or other place and liable to be taken into custody and returned under this section, and related expressions shall be construed accordingly.

[F61 (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.]

Extent Information

E1 For extent of s. 18 see 146, 147

Textual Amendments

F55 Words in s. 18(1) substituted (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 21, 56, Sch. 2 para. 7(a) (with Sch. 10); S.I. 2008/1900, art. 2(d) (with art. 3, Sch.); S.I. 2008/2561, art. 2(b) (with art. 3, Sch.)

F56 S. 18(2A) inserted (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 32, 56, Sch. 3 para. 3(2) (with Sch. 10); S.I. 2008/1900, art. 2(i) (with art. 3, Sch.)

F57 S. 18(4) substituted (1.4.1996) by 1995 c. 52, ss. 2(1), 7(2)

F58 Words in s. 18(4)(b) inserted (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 32, 56, Sch. 3 para. 3(3)(a) (with Sch. 10); S.I. 2008/1900, art. 2(i) (with art. 3, Sch.)

F59 Words in s. 18(4) repealed (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 32, 55, 56, Sch. 3 para. 3(3)(b), Sch. 11 Pt. 5 (with Sch. 10); S.I. 2008/1210, art. 2(d) (with art. 4)

F60 S. 18(4A)(4B) inserted (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 32, 56, Sch. 3 para. 3(4) (with Sch. 10); S.I. 2008/1900, art. 2(i) (with art. 3, Sch.)

F61 S. 18(7) inserted (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 32, 56, Sch. 3 para. 3(5) (with Sch. 10); S.I. 2008/1900, art. 2(i) (with art. 3, Sch.)

19 Regulations as to transfer of patients. E+W

(1) In such circumstances and subject to such conditions as may be prescribed by regulations made by the Secretary of State—

(a) a patient who is for the time being liable to be detained in a hospital by virtue of an application under this Part of this Act may be transferred to another hospital or into the guardianship of a local social services authority or of any person approved by such an authority;

(b) a patient who is for the time being subject to the guardianship of a local social services authority or other person by virtue of an application under this Part of this Act may be transferred into the guardianship of another local social services authority or person, or be transferred to a hospital.

(2) Where a patient is transferred in pursuance of regulations under this section, the provisions of this Part of this Act (including this subsection) shall apply to him as follows, that is to say—

(a) in the case of a patient who is liable to be detained in a hospital by virtue of an application for admission for assessment or for treatment and is transferred to another hospital, as if the application were an application for admission to that other hospital and as if the patient had been admitted to that other hospital at the time when he was originally admitted in pursuance of the application;

(b) in the case of a patient who is liable to be detained in a hospital by virtue of such an application and is transferred into guardianship, as if the application were a guardianship application duly accepted at the said time;

(c) in the case of a patient who is subject to guardianship by virtue of a guardianship application and is transferred into the guardianship of another authority or person, as if the application were for his reception into the guardianship of that authority or person and had been accepted at the time when it was originally accepted;

(d) in the case of a patient who is subject to guardianship by virtue of a guardianship application and is transferred to a hospital, as if the guardianship application were an application for admission to that hospital for treatment and as if the patient had been admitted to the hospital at the time when the application was originally accepted.

(3) Without prejudice to subsections (1) and (2) above, any patient, who is for the time being liable to be detained under this Part of this Act in a hospital vested in the Secretary of State for the purposes of his functions under the [F62 National Health Service Act 2006, in a hospital vested in the Welsh Ministers for the purposes of their functions under the National Health Service (Wales) Act 2006, in any accommodation used under either of those Acts] by the managers of such a hospital [F63 or in a hospital vested in a National Health Service trust] [F64 NHS foundation trust or] [F65 Local Health Board] F66 ... , may at any time be removed to any other such hospital or accommodation [F67 which is managed by the managers of, or is vested in the National Health Service trust [F64 NHS foundation trust or] [F68 Local Health Board]F66 ... for, the first-mentioned hospital]; and paragraph (a) of subsection (2) above shall apply in relation to a patient so removed as it applies in relation to a patient transferred in pursuance of regulations made under this section.

(4) Regulations made under this section may make provision for regulating the conveyance to their destination of patients authorised to be transferred or removed in pursuance of the regulations or under subsection (3) above.

Textual Amendments

F62 Words in s. 19(3) substituted (1.3.2007) by National Health Service (Consequential Provisions) Act 2006 (c. 43), ss. 2, 8(2), Sch. 1 para. 64 (with Sch. 3 Pt. 1)

F63 Words inserted by National Health Service and Community Care Act 1990 (c. 19, SIF 113:2), s. 66(1), Sch. 9 para. 24(2)

F64 Words in s. 19(3) substituted (1.4.2013) by Health and Social Care Act 2012 (c. 7), s. 306(4), Sch. 5 para. 25(a); S.I. 2013/160, art. 2(2) (with arts. 7-9)

F65 Words in s. 19(3) inserted (1.10.2007) by Mental Health Act 2007 (c. 12), ss. 46(2), 56 (with Sch. 10); S.I. 2007/2798, art. 2(g)

F66 Words in s. 19(3) omitted (1.4.2013) by virtue of Health and Social Care Act 2012 (c. 7), s. 306(4), Sch. 5 para. 25(b); S.I. 2013/160, art. 2(2) (with arts. 7-9)

F67 Words substituted by National Health Service and Community Care Act 1990 (c. 19, SIF 113:2), s. 66(1), Sch. 9 para. 24(2)

F68 Words in s. 19(3) inserted (1.10.2007) by Mental Health Act 2007 (c. 12), ss. 46(2), 56 (with Sch. 10); S.I. 2007/2798, art. 2(g)

[F69 19A Regulations as to assignment of responsibility for community patients E+W

(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.]

Textual Amendments

F69 S. 19A inserted (1.4.2008 for certain purposes, otherwise 3.11.2008) by Mental Health Act 2007 (c. 12), ss. 32, 56, Sch. 3 para. 4 (with Sch. 10); S.I. 2008/745, art. 2(c)(ii); S.I. 2008/1900, art. 2(i) (with art. 3, Sch.)

[F70 Duration of authority and discharge] U.K.

Textual Amendments

F70 S. 20: cross-heading substituted (3.11.2008) by virtue of Mental Health Act 2007 (c. 12), ss. 32(3), 56 (with Sch. 10); S.I. 2008/1900, art. 2(i) (with art. 3, Sch.)

20 Duration of authority. E+W

(1) Subject to the following provisions of this Part of this Act, a patient admitted to hospital in pursuance of an application for admission for treatment, and a patient placed under guardianship in pursuance of a guardianship application, may be detained in a hospital or kept under guardianship for a period not exceeding six months beginning with the day on which he was so admitted, or the day on which the guardianship application was accepted, as the case may be, but shall not be so detained or kept for any longer period unless the authority for his detention or guardianship is renewed under this section.

(2) Authority for the detention or guardianship of a patient may, unless the patient has previously been discharged [F71 under section 23 below] , be renewed—

(a) from the expiration of the period referred to in subsection (1) above, for a further period of six months;

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

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

(3) Within the period of two months ending on the day on which a patient who is liable to be detained in pursuance of an application for admission for treatment would cease under this section to be so liable in default of the renewal of the authority for his detention, it shall be the duty of the [F72 responsible clinician]—

(a) to examine the patient; and

(b) if it appears to him that the conditions set out in subsection (4) below are satisfied, to furnish to the managers of the hospital where the patient is detained a report to that effect in the prescribed form;

and where such a report is furnished in respect of a patient the managers shall, unless they discharge the patient [F73 under section 23 below] , cause him to be informed.

(4) The conditions referred to in subsection (3) above are that—

(a) the patient is suffering from [F74 mental disorder] of a nature or degree which makes it appropriate for him to receive medical treatment in a hospital; and

(b) F75 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(c) it is necessary for the health or safety of the patient or for the protection of other persons that he should receive such treatment and that it cannot be provided unless he continues to be detained;[F76 and

(d) appropriate medical treatment is available for him.]

F77 . . .

(5) Before furnishing a report under subsection (3) above the [F72 responsible clinician] shall consult one or more other persons who have been professionally concerned with the patient’s medical treatment.

[F78 (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.]

(6) Within the period of two months ending with the day on which a patient who is subject to guardianship under this Part of this Act would cease under this section to be so liable in default of the renewal of the authority for his guardianship, it shall be the duty of the [F79 appropriate practitioner]—

(a) to examine the patient; and

(b) if it appears to him that the conditions set out in subsection (7) below are satisfied, to furnish to the guardian and, where the guardian is a person other than a local social services authority, to the responsible local social services authority a report to that effect in the prescribed form;

and where such a report is furnished in respect of a patient, the local social services authority shall, unless they discharge the patient [F73 under section 23 below] , cause him to be informed.

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

(a) the patient is suffering from [F80 mental disorder] of a nature or degree which warrants his reception into guardianship; and

(b) it is necessary in the interests of the welfare of the patient or for the protection of other persons that the patient should remain under guardianship.

(8) Where a report is duly furnished under subsection (3) or (6) above, the authority for the detention or guardianship of the patient shall be thereby renewed for the period prescribed in that case by subsection (2) above.

(9) F81 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(10) F82 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F71 Words in s. 20(2) inserted (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 32, 56, Sch. 3 para. 5(a) (with Sch. 10); S.I. 2008/1900, art. 2(i) (with art. 3, Sch.)

F72 Words in s. 20(3)(5) substituted (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 9(4)(a), 56 (with Sch. 10); S.I. 2008/1900, art. 2(b) (with art. 3, Sch.)

F73 Words in s. 20(3)(6) inserted (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 32, 56, Sch. 3 para. 5(b) (with Sch. 10); S.I. 2008/1900, art. 2(i) (with art. 3, Sch.)

F74 Words in s. 20(4)(a) substituted (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 1, 56, Sch. 1 para. 4(a) (with Sch. 10); S.I. 2008/1900, art. 2(a) (with art. 3, Sch.)

F75 S. 20(4)(b) and word "and" at the end of that paragraph repealed (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 4(4)(a), 55, 56, Sch. 11 Pt. 2 (with Sch. 10); S.I. 2008/1900, art. 2(b)(p) (with art. 3, Sch.)

F76 S. 20(4)(d) and preceding word inserted (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 4(4)(b), 56 (with Sch. 10); S.I. 2008/1900, art. 2(b) (with art. 3, Sch.)

F77 Words in s. 20(4) repealed (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 4(4)(c), 55, 56, Sch. 11 Pt. 2 (with Sch. 10); S.I. 2008/1900, art. 2(b)(p) (with art. 3, Sch.)

F78 S. 20(5A) inserted (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 9(4)(b), 56 (with Sch. 10); S.I. 2008/1900, art. 2(b) (with art. 3, Sch.)

F79 Words in s. 20(6) substituted (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 9(4)(c), 56 (with Sch. 10); S.I. 2008/1900, art. 2(b) (with art. 3, Sch.)

F80 Words in s. 20(7)(a) substituted (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 1, 56, Sch. 1 para. 4(b) (with Sch. 10); S.I. 2008/1900, art. 2(a) (with art. 3, Sch.)

F81 S. 20(9) repealed (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 55, 56, Sch. 11 Pt. 1 (with Sch. 10); S.I. 2008/1900, art. 2(p) (with art. 3, Sch.)

F82 S. 20(10) repealed (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 9(4)(d), 55, 56, Sch. 11 Pt. 3 (with Sch. 10); S.I. 2008/1900, art. 2(b)(p) (with art. 3, Sch.)

[F83 20A Community treatment period E+W

(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.

Textual Amendments

F83 Ss. 20A, 20B inserted (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 32(3), 56 (with Sch. 10); S.I. 2008/1900, art. 2(i) (with art. 3, Sch.)

20B Effect of expiry of community treatment order E+W

(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.]

Textual Amendments

F83 Ss. 20A, 20B inserted (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 32(3), 56 (with Sch. 10); S.I. 2008/1900, art. 2(i) (with art. 3, Sch.)

Modifications etc. (not altering text)

C13 S. 20B(1) modified (3.11.2008) by The Mental Health Act 2007 (Commencement No. 6 and After-care under Supervision: Savings, Modifications and Transitional Provisions) Order 2008 (S.I. 2008/1210), arts. 1(1)(b), 11(e)

[F84 21 Special provisions as to patients absent without leave. E+W

(1) Where a patient is absent without leave—

(a) on the day on which (apart from this section) he would cease to be liable to be detained or subject to guardianship under this Part of this Act [F85 or, in the case of a community patient, the community treatment order would cease to be in force] ; or

(b) within the period of one week ending with that day,

he shall not cease to be so liable or subject [F86 , or the order shall not cease to be in force,] until the relevant time.

(2) For the purposes of subsection (1) above the relevant time—

(a) where the patient is taken into custody under section 18 above, is the end of the period of one week beginning with the day on which he is returned to the hospital or place where he ought to be;

(b) where the patient returns himself to the hospital or place where he ought to be within the period during which he can be taken into custody under section 18 above, is the end of the period of one week beginning with the day on which he so returns himself; and

(c) otherwise, is the end of the period during which he can be taken into custody under section 18 above.

[F87 (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 [F88 the appropriate 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.]

[F89 (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.]]

Textual Amendments

F84 Ss. 21, 21A, 21B substituted (1.4.1996) for s. 21 by 1995 c. 52, ss. 2(2), 7(2)

F85 Words in s. 21(1)(a) inserted (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 32, 56, Sch. 3 para. 6(2)(a) (with Sch. 10); S.I. 2008/1900, art. 2(i) (with art. 3, Sch.)

F86 Words in s. 21(1) inserted (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 32, 56, Sch. 3 para. 6(2)(b) (with Sch. 10); S.I. 2008/1900, art. 2(i) (with art. 3, Sch.)

F87 S. 21(3) inserted (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 37(2), 56 (with Sch. 10); S.I. 2008/1900, art. 2(l) (with art. 3, Sch.)

F88 Words in s. 21(3) substituted (3.11.2008) by The Transfer of Tribunal Functions Order 2008 (S.I. 2008/2833), art. 6, Sch. 3 para. 40

F89 S. 21(4)(5) inserted (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 32, 56, Sch. 3 para. 6(3) (with Sch. 10); S.I. 2008/1900, art. 2(i) (with art. 3, Sch.)

21A Patients who are taken into custody or return within 28 days. E+W

(1) This section applies where a patient who is absent without leave is taken into custody under section 18 above, or returns himself to the hospital or place where he ought to be, not later than the end of the period of 28 days beginning with the first day of his absence without leave.

(2) Where the period for which the patient is liable to be detained or subject to guardianship is extended by section 21 above, any examination and report to be made and furnished in respect of the patient under section 20(3) or (6) above may be made and furnished within the period as so extended.

(3) Where the authority for the detention or guardianship of the patient is renewed by virtue of subsection (2) above after the day on which (apart from section 21 above) that authority would have expired, the renewal shall take effect as from that day.

[F90 (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.]

Textual Amendments

F90 S. 21A(4)(5) inserted (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 32, 56, Sch. 3 para. 7 (with Sch. 10); S.I. 2008/1900, art. 2(i) (with art. 3, Sch.)

21B Patients who are taken into custody or return after more than 28 days. E+W

(1) This section applies where a patient who is absent without leave is taken into custody under section 18 above, or returns himself to the hospital or place where he ought to be, later than the end of the period of 28 days beginning with the first day of his absence without leave.

(2) It shall be the duty of the [F91 appropriate practitioner] , within the period of one week beginning with the day on which the patient is returned or returns himself to the hospital or place where he ought to be [F92 (his “return day”)]

(a) to examine the patient; and

(b) if it appears to him that the relevant conditions are satisfied, to furnish to the appropriate body a report to that effect in the prescribed form;

and where such a report is furnished in respect of the patient the appropriate body shall cause him to be informed.

(3) Where the patient is liable to be detained [F93 or is a community patient](as opposed to subject to guardianship), the [F91 appropriate practitioner] shall, before furnishing a report under subsection (2) above, consult—

(a) one or more other persons who have been professionally concerned with the patient’s medical treatment; and

(b) an [F94 approved mental health professional] .

[F95 (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.]

[F96 (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.]

(5) Where the patient would (apart from section 21 above) have ceased to be liable to be detained or subject to guardianship on or before the day on which a report is duly furnished in respect of him under subsection (2) above, the report shall renew the authority for his detention or guardianship for the period prescribed in that case by section 20(2) above.

(6) Where the authority for the detention or guardianship of the patient is renewed by virtue of subsection (5) above—

(a) the renewal shall take effect as from the day on which (apart from section 21 above and that subsection) the authority would have expired; and

(b) if (apart from this paragraph) the renewed authority would expire on or before the day on which the report is furnished, the report shall further renew the authority, as from the day on which it would expire, for the period prescribed in that case by section 20(2) above.

[F97 (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) Where the authority for the detention or guardianship of the patient would expire 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 20(3) or (6) above; and the reference in this subsection to authority includes any authority renewed under subsection (5) above by the report.

[F98 (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) F99 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(9) F99 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(10) In this section—

• F100 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• [F101 “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]

• [F102 “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.]

Textual Amendments

F91 Words in s. 21B(2)(3) substituted (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 9(5)(a), 56 (with Sch. 10); S.I. 2008/1900, art. 2(b) (with art. 3, Sch.)

F92 Words in s. 21B(2) inserted (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 32, 56, Sch. 3 para. 8(2) (with Sch. 10); S.I. 2008/1900, art. 2(i) (with art. 3, Sch.)

F93 Words in s. 21B(3) inserted (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 32, 56, Sch. 3 para. 8(3) (with Sch. 10); S.I. 2008/1900, art. 2(i) (with art. 3, Sch.)

F94 Words in s. 21B(3)(b) substituted (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 21, 56, Sch. 2 para. 7(b) (with Sch. 10); S.I. 2008/1900, art. 2(d) (with art. 3, Sch.); S.I. 2008/2561, art. 2(b) (with art. 3, Sch.)

F95 S. 21B(4) substituted (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 32, 56, Sch. 3 para. 8(4) (with Sch. 10); S.I. 2008/1900, art. 2(i) (with art. 3, Sch.)

F96 S. 21B(4A) inserted (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 32, 56, Sch. 3 para. 8(5) (with Sch. 10); S.I. 2008/1900, art. 2(i) (with art. 3, Sch.)

F97 S. 21B(6A)(6B) inserted (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 32, 56, Sch. 3 para. 8(6) (with Sch. 10); S.I. 2008/1900, art. 2(i) (with art. 3, Sch.)

F98 S. 21B(7A) inserted (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 32, 56, Sch. 3 para. 8(7) (with Sch. 10); S.I. 2008/1900, art. 2(i) (with art. 3, Sch.)

F99 S. 21B(8)(9) repealed (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 55, 56, Sch. 11 Pt. 1 (with Sch. 10); S.I. 2008/1900, art. 2(p) (with art. 3, Sch.)

F100 S. 21B(10): definition of "appropriate medical officer" repealed (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 9(5)(b), 56, Sch. 11 Pt. 3 (with Sch. 10); S.I. 2008/1900, art. 2(b)(p) (with art. 3, Sch.)

F101 S. 21B(10): definition of "the appropriate body" substituted (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 32, 56, Sch. 3 para. 8(8)(a) (with Sch. 10); S.I. 2008/1900, art. 2(i) (with art. 3, Sch.)

F102 S. 21B(10): definition of "the relevant conditions" substituted (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 32, 56, Sch. 3 para. 8(8)(b) (with Sch. 10); S.I. 2008/1900, art. 2(i) (with art. 3, Sch.)

[F103 22 Special provisions as to patients sentenced to imprisonment, etc. U.K.

(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.]

Extent Information

E2 For extent of s. 22 see ss. 146, 147

Textual Amendments

F103 S. 22 substituted (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 32, 56, Sch. 3 para. 9 (with Sch. 10); S.I. 2008/1900, art. 2(i) (with art. 3, Sch.)

23 Discharge of patients. E+W

(1) Subject to the provisions of this section and section 25 below, a patient who is for the time being liable to be detained or subject to guardianship under this Part of this Act shall cease to be so liable or subject if an order in writing discharging him [F104 absolutely from detention or guardianship is made in accordance with this section]

[F105 (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 ”. ]

(2) An order for discharge may be made in respect of a patient—

(a) where the patient is liable to be detained in a hospital in pursuance of an application for admission for assessment or for treatment by the [F106 responsible clinician] , by the managers or by the nearest relative of the patient;

(b) where the patient is subject to guardianship, by the [F106 responsible clinician] , by the responsible local social services authority or by the nearest relative of the patient.

[F107 (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.]

F108 (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F108 ( 3A ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4) The powers conferred by this section on any authority [F109 trust ][F110 , board][F111 (other than an NHS foundation trust)] or body of persons may be exercised [F109 subject to subsection (5) below] by any three or more members of that authority [F109 trust][F110 , board] or body authorised by them in that behalf or by three or more members of a committee or sub-committee of that authority [F109 trust][F110 , board] or body which has been authorised by them in that behalf.

[F112 (5) The reference in subsection (4) above to the members of an authority, trust [F113 , board] or body or the members of a committee or sub-committee of an authority, trust [F113 , board] or body,—

(a) in the case of a [F114 Local Health Board] [F115 or Special Health Authority] F116 ... or a committee or sub-committee of a [F114 Local Health Board] [F115 or Special Health Authority] F116 ..., is a reference only to the chairman of the authority F117 ...[F118 or board] and [F119 such members (of the authority F117 ..., board, committee or sub-committee], as the case may be) as are not also officers of the authority F117 ...[F118 or board], within the meaning of [F120 the National Health Service Act 2006 or the National Health Service (Wales) Act 2006]; and

(b) in the case of a National Health Service trust or a committee or sub-committee of such a trust, is a reference only to the chairman of the trust and such directors or (in the case of a committee or sub-committee) members as are not also employees of the trust.]

[F121 (6) The powers conferred by this section on any NHS foundation trust may be exercised by any three or more [F122 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. ] . ]

Textual Amendments

F104 Words in s. 23(1) substituted (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 32, 56, Sch. 3 para. 10(2) (with Sch. 10); S.I. 2008/1900, art. 2(i) (with art. 3, Sch.)

F105 S. 23(1A)(1B) inserted (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 32, 56, Sch. 3 para. 10(3) (with Sch. 10); S.I. 2008/1900, art. 2(i) (with art. 3, Sch.)

F106 Words in s. 23(2)(a)(b) substituted (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 9(6), 56 (with Sch. 10); S.I. 2008/1900, art. 2(b) (with art. 3, Sch.)

F107 S. 23(2)(c) inserted (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 32, 56, Sch. 3 para. 10(4) (with Sch. 10); S.I. 2008/1900, art. 2(i) (with art. 3, Sch.)

F108 S. 23(3)(3A) omitted (1.7.2012) by virtue of Health and Social Care Act 2012 (c. 7), ss. 39(1), 306(4); S.I. 2012/1319, art. 2(3)

F109 Words inserted by National Health Service and Community Care Act 1990 (c. 19, SIF 113:2), s. 66(1), Sch. 9 para. 24(3)(b)

F110 Words in s. 23(4) inserted (1.4.2007) by The References to Health Authorities Order 2007 (S.I. 2007/961, art. 3, Sch. para. 13(2)(b)

F111 Words in s. 23(4) inserted (1.4.2004) by Health and Social Care (Community Health and Standards) Act 2003 (c. 43), ss. 34, 199, Sch. 4 para. 53(b); S.I. 2004/759, art. 2

F112 S.23(5) inserted by National Health Service and Community Care Act 1990 (c. 19, SIF 113:2), s. 66(1), Sch. 9 para. 24(3)(c)

F113 Words in s. 23(5) inserted (1.4.2007) by The References to Health Authorities Order 2007 (S.I. 2007/961, art. 3, Sch. para. 13(2)(c)

F114 Words in s. 23(5)(a) substituted (1.4.2007) by The References to Health Authorities Order 2007 (S.I. 2007/961, art. 3, Sch. para. 13(2)(d)(i)

F115 Words in s. 23(5)(a) substituted (1.4.2013) by Health and Social Care Act 2012 (c. 7), s. 306(4), Sch. 5 para. 26(a); S.I. 2013/160, art. 2(2) (with arts. 7-9)

F116 Words in s. 23(5)(a) omitted (1.4.2013) by virtue of Health and Social Care Act 2012 (c. 7), s. 306(4), Sch. 5 para. 26(b); S.I. 2013/160, art. 2(2) (with arts. 7-9)

F117 Word in s. 23(5)(a) omitted (1.4.2013) by virtue of Health and Social Care Act 2012 (c. 7), s. 306(4), Sch. 5 para. 26(c); S.I. 2013/160, art. 2(2) (with arts. 7-9)

F118 Words in s. 23(5)(a) substituted (1.4.2007) by The References to Health Authorities Order 2007 (S.I. 2007/961, art. 3, Sch. para. 13(2)(d)(ii)

F119 Words in s. 23(5)(a) substituted (1.4.2007) by virtue of The References to Health Authorities Order 2007 (S.I. 2007/961), art. 3, Sch. para. 13(2)(d)(iii)

F120 Words in s. 23(5)(a) substituted (1.3.2007) by National Health Service (Consequential Provisions) Act 2006 (c. 43), ss. 2, 8(2), Sch. 1 para. 65 (with Sch. 3 Pt. 1)

F121 S. 23(6) inserted (1.4.2004) by Health and Social Care (Community Health and Standards) Act 2003 (c. 43), ss. 34, 199, Sch. 4 para. 53(c); S.I. 2004/759, art. 2

F122 Words in s. 23(6) substituted (24.7.2007) by Mental Health Act 2007 (c. 12), ss. 45(1), 56 (with Sch. 10); S.I. 2007/2156, art. 2

24 Visiting and examination of patients. E+W

(1) For the purpose of advising as to the exercise by the nearest relative of a patient who is liable to be detained or subject to guardianship under this Part of this Act [F123 , or who is a community patient,] of any power to order his discharge, any registered medical practitioner [F124 or approved clinician] authorised by or on behalf of the nearest relative of the patient may, at any reasonable time, visit the patient and examine him in private.

(2) Any registered medical practitioner [F124 or approved clinician] authorised for the purposes of subsection (1) above to visit and examine a patient may require the production of and inspect any records relating to the detention or treatment of the patient in any hospital [F125 or to any after-care services provided for the patient under section 117 below.].

F126 (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F126 (4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F123 Words in s. 24(1) inserted (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 32, 56, Sch. 3 para. 11(2) (with Sch. 10); S.I. 2008/1900, art. 2(i) (with art. 3, Sch.)

F124 Words in s. 24 inserted (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 9(7), 56, (with Sch. 10); S.I. 2008/1900, art. 2(b) (with art. 3, Sch.)

F125 Words in s. 24(2)(4) inserted (1.4.1996) by 1995 c .52, ss. 1(2), 7(2), Sch. 1, para. 1

F126 S. 24(3)(4) omitted (1.7.2012) by virtue of Health and Social Care Act 2012 (c. 7), ss. 39(2), 306(4); S.I. 2012/1319, art. 2(3)

25 Restrictions on discharge by nearest relative. E+W

(1) An order for the discharge of a patient who is liable to be detained in a hospital shall not be made [F127 under section 23 above] by his nearest relative except after giving not less than 72 hours’ notice in writing to the managers of the hospital; and if, within 72 hours after such notice has been given, the [F128 responsible clinician] furnishes to the managers a report certifying that in the opinion of [F129 that clinician] the patient, if discharged, would be likely to act in a manner dangerous to other persons or to himself—

(a) any order for the discharge of the patient made by that relative in pursuance of the notice shall be of no effect; and

(b) no further order for the discharge of the patient shall be made by that relative during the period of six months beginning with the date of the report.

[F130 (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.]

(2) In any case where a report under subsection (1) above is furnished in respect of a patient who is liable to be detained in pursuance of an application for admission for treatment [F131 , or in respect of a community patient,] the managers shall cause the nearest relative of the patient to be informed.

Textual Amendments

F127 Words in s. 25(1) inserted (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 32, 56, Sch. 3 para. 12(2) (with Sch. 10); S.I. 2008/1900, art. 2(i) (with art. 3, Sch.)

F128 Words in s. 25(1) substituted (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 9(8)(a), 56 (with Sch. 10); S.I. 2008/1900, art. 2(b) (with art. 3, Sch.)

F129 Words in s. 25(1) substituted (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 9(8)(b), 56 (with Sch. 10); S.I. 2008/1900, art. 2(b) (with art. 3, Sch.)

F130 S. 25(1A) inserted (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 32, 56, Sch. 3 para. 12(3) (with Sch. 10); S.I. 2008/1900, art. 2(i) (with art. 3, Sch.)

F131 Words in s. 25(2) inserted (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 32, 56, Sch. 3 para. 12(4) (with Sch. 10); S.I. 2008/1900, art. 2(i) (with art. 3, Sch.)

[F132 After-care under supervision E+W

Textual Amendments

F132 Ss. 25A-25J inserted (1.4.1996) by 1995 c. 52, ss. 1(1), 7(2)

25A Application for supervision. E+W

F133 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F133 Ss. 25A-25J repealed (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 36(2), 55, 56, Sch. 11 Pt. 5 (with Sch. 10); S.I. 2008/1210, art. 2(d) (with art. 4)

25B Making of supervision application. E+W

F134 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F134 Ss. 25A-25J repealed (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 36(2), 55, 56, Sch. 11 Pt. 5 (with Sch. 10); S.I. 2008/1210, art. 2(d) (with art. 4)

25C Supervision applications: supplementary. E+W

F135 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F135 Ss. 25A-25J repealed (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 36(2), 55, 56, Sch. 11 Pt. 5 (with Sch. 10); S.I. 2008/1210, art. 2(d) (with art. 4)

25D Requirements to secure receipt of after-care under supervision. E+W

F136 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F136 Ss. 25A-25J repealed (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 36(2), 55, 56, Sch. 11 Pt. 5 (with Sch. 10); S.I. 2008/1210, art. 2(d) (with art. 4)

25E Review of after-care under supervision etc. E+W

F137 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F137 Ss. 25A-25J repealed (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 36(2), 55, 56, Sch. 11 Pt. 5 (with Sch. 10); S.I. 2008/1210, art. 2(d) (with art. 4)

25F Reclassification of patient subject to after-care under supervision. E+W

F138 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F138 Ss. 25A-25J repealed (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 36(2), 55, 56, Sch. 11 Pt. 5 (with Sch. 10); S.I. 2008/1210, art. 2(d) (with art. 4)

25G Duration and renewal of after-care under supervision. E+W

F139 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F139 Ss. 25A-25J repealed (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 36(2), 55, 56, Sch. 11 Pt. 5 (with Sch. 10); S.I. 2008/1210, art. 2(d) (with art. 4)

25H Ending of after-care under supervision. E+W

F140 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F140 Ss. 25A-25J repealed (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 36(2), 55, 56, Sch. 11 Pt. 5 (with Sch. 10); S.I. 2008/1210, art. 2(d) (with art. 4)

25I Special provisions as to patients sentenced to imprisonment etc. E+W

F141 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F141 Ss. 25A-25J repealed (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 36(2), 55, 56, Sch. 11 Pt. 5 (with Sch. 10); S.I. 2008/1210, art. 2(d) (with art. 4)

25J Patients moving from Scotland to England and Wales. E+W

F142 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .]

Textual Amendments

F142 Ss. 25A-25J repealed (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 36(2), 55, 56, Sch. 11 Pt. 5 (with Sch. 10); S.I. 2008/1210, art. 2(d) (with art. 4)

Functions of relatives of patients E+W

26 Definition of “relative” and “nearest relative”. E+W

(1) In this Part of this Act “relative” means any of the following persons:—

(a) husband or wife [F143 or civil partner] ;

(b) son or daughter;

(c) father or mother;

(d) brother or sister;

(e) grandparent;

(f) grandchild;

(g) uncle or aunt;

(h) nephew or niece.

(2) In deducing relationships for the purposes of this section, any relationship of the half-blood shall be treated as a relationship of the whole blood, and an illegitimate person shall be treated as the legitimate child of

[F144 (a) his mother, and

(b) if his father has parental responsibility for him within the meaning of section 3 of the Children Act 1989, his father.]

(3) In this Part of this Act, subject to the provisions of this section and to the following provisions of this Part of this Act, the “nearest relative” means the person first described in subsection (1) above who is for the time being surviving, relatives of the whole blood being preferred to relatives of the same description of the half-blood and the elder or eldest of two or more relatives described in any paragraph of that subsection being preferred to the other or others of those relatives, regardless of sex.

(4) Subject to the provisions of this section and to the following provisions of this Part of this Act, where the patient ordinarily resides with or is cared for by one or more of his relatives (or, if he is for the time being an in-patient in a hospital, he last ordinarily resided with or was cared for by one or more of his relatives) his nearest relative shall be determined—

(a) by giving preference to that relative or those relatives over the other or others; and

(b) as between two or more such relatives, in accordance with subsection (3) above.

(5) Where the person who, under subsection (3) or (4) above, would be the nearest relative of a patient—

(a) in the case of a patient ordinarily resident in the United Kingdom, the Channel Islands or the Isle of Man, is not so resident; or

(b) is the husband or wife [F145 or civil partner] of the patient, but is permanently separated from the patient, either by agreement or under an order of a court, or has deserted or has been deserted by the patient for a period which has not come to an end; or

(c) is a person other than the husband, wife [F146 civil partner,] , father or mother of the patient, and is for the time being under 18 years of age; F147 . . .

F147 (d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

the nearest relative of the patient shall be ascertained as if that person were dead.

(6) In this section “husband”[F148 , “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”] , as the case may be (or, if the patient is for the time being an in-patient in a hospital, was so living until the patient was admitted), and has been or had been so living for a period of not less than six months; but a person shall not be treated by virtue of this subsection as the nearest relative of a married patient [F149 or a patient in a civil partnership unless the husband, wife or civil partner] of the patient is disregarded by virtue of paragraph (b) of subsection (5) above.

(7) A person, other than a relative, with whom the patient ordinarily resides (or, if the patient is for the time being an in-patient in a hospital, last ordinarily resided before he was admitted), and with whom he has or had been ordinarily residing for a period of not less than five years, shall be treated for the purposes of this Part of this Act as if he were a relative but—

(a) shall be treated for the purposes of subsection (3) above as if mentioned last in subsection (1) above; and

(b) shall not be treated by virtue of this subsection as the nearest relative of a married patient [F150 or a patient in a civil partnership unless the husband, wife or civil partner] of the patient is disregarded by virtue of paragraph (b) of subsection (5) above.

Textual Amendments

F143 Words in s. 26(1)(a) inserted (1.12.2007) by Mental Health Act 2007 (c. 12), ss. 26(2), 56 (with Sch. 10); S.I. 2007/2798, art. 3

F144 S. 26(2)(a)(b) substituted (14.10.1991) by S.I. 1991/1881 art.3

F145 Words in s. 26(5)(b) inserted (1.12.2007) by Mental Health Act 2007 (c. 12), ss. 26(3)(a), 56 (with Sch. 10); S.I. 2007/2798, art. 3

F146 Words in s. 26(5)(c) inserted (1.12.2007) by Mental Health Act 2007 (c. 12), ss. 26(3)(b), 56 (with Sch. 10); S.I. 2007/2798, art. 3

F147 In s. 26(5) the word “or” and paragraph (d) repealed (14.10.1991) by Children Act 1989 (c. 41, SIF 20), s. 108(7), Sch. 15 (with Sch. 14 paras. 1(1), 27(4)); S.I. 1991/828, art. 3(2)

F148 Words in s. 26(6) substituted (1.12.2007) by Mental Health Act 2007 (c. 12), ss. 26(4)(a), 56, (with Sch. 10); S.I. 2007/2798, art. 3

F149 Words in s. 26(6) substituted (1.12.2007) by Mental Health Act 2007 (c. 12), {ss. 26(4(b))}, 56, (with Sch. 10); S.I. 2007/2798, art. 3

F150 Words in s. 26(7)(b) substituted (1.12.2007) by Mental Health Act 2007 (c. 12), ss. 26(5), 56, (with Sch. 10); S.I. 2007/2798, art. 3

[F151 27 Children and young persons in care. E+W

Where—

(a) a patient who is a child or young person is in the care of a local authority by virtue of a care order within the meaning of the Children Act 1989; or

(b) the rights and powers of a parent of a patient who is a child or young person are vested in a local authority by virtue of section 16 of the Social Work (Scotland) Act 1968,

the authority shall be deemed to be the nearest relative of the patient in preference to any person except the patient’s husband or wife [F152 or civil partner] (if any).]

Textual Amendments

F151 S. 27 substituted (14.10.1991) by Children Act 1989 (c. 41, SIF 20), s. 108(5), Sch. 13 para. 48(1) (with Sch. 14 para. 1(1)); S.I. 1991/828, art. 3(2)

F152 Words in s. 27 inserted (1.12.2007) by Mental Health Act 2007 (c. 12), ss. 26(6), 56 (with Sch. 10); S.I. 2007/2798, art. 3

28 Nearest relative of minor under guardianship, etc. E+W

[F153 (1) Where—

(a) a guardian has been appointed for a person who has not attained the age of eighteen years; or

(b) a [F154 person is named in a child arrangements] order (as defined by section 8 of the Children Act 1989) [F155 as a person with whom a person who has not attained the age of eighteen years is to live],

the guardian (or guardians, where there is more than one) or the person [F156 so named (or the persons so named, where there is more than one)] shall, to the exclusion of any other person, be deemed to be his nearest relative.]

(2) Subsection (5) of section 26 above shall apply in relation to a person who is, or who is one of the persons, deemed to be the nearest relative of a patient by virtue of this section as it applies in relation to a person who would be the nearest relative under subsection (3) of that section.

[F157 (3) In this section “ guardian ” [F158 includes a special guardian (within the meaning of the Children Act 1989), but ] does not include a guardian under this Part of this Act. ]

(4) In this section “court” includes a court in Scotland or Northern Ireland, and “enactment” includes an enactment of the Parliament of Northern Ireland, a Measure of the Northern Ireland Assembly and an Order in Council under Schedule 1 of the M1 Northern Ireland Act 1974.

Textual Amendments

F153 S. 28(1) substituted (14.10.1991) by Children Act 1989 (c. 41, SIF 20), s. 108(5), Sch. 13 para. 48(3) (with Sch. 14 para. 1(1)); S.I. 1991/828, art. 3(2)

F154 Words in s. 28(1)(b) substituted (22.4.2014) by Children and Families Act 2014 (c. 6), s. 139(6), Sch. 2 para. 46(a)(i); S.I. 2014/889, art. 4(f) (with transitional provisions in S.I. 2014/1042, arts. 3, 4, 6-10)

F155 Words in s. 28(1)(b) substituted (22.4.2014) by Children and Families Act 2014 (c. 6), s. 139(6), Sch. 2 para. 46(a)(ii); S.I. 2014/889, art. 4(f) (with transitional provisions in S.I. 2014/1042, arts. 3, 4, 6-10)

F156 Words in s. 28(1) substituted (22.4.2014) by Children and Families Act 2014 (c. 6), s. 139(6), Sch. 2 para. 46(b); S.I. 2014/889, art. 4(f) (with transitional provisions in S.I. 2014/1042, arts. 3, 4, 6-10)

F157 S. 28(3) substituted (14.10.1991) by Children Act 1989 (c. 41, SIF 20), s. 108(5), Sch. 13 para. 48(4); S.I. 1991/828, art. 3(2)

F158 Words in s. 28(3) inserted (30.12.2005) by 2002 c. 38, ss. 139, 148, Sch. 3 para. 41 (with Sch. 4 paras. 6-8); S.I. 2005/2213, art. 2(o)

Marginal Citations

M1 1974 c. 28.

29 Appointment by court of acting nearest relative. E+W

(1) The county court may, upon application made in accordance with the provisions of this section in respect of a patient, by order direct that the functions of the nearest relative of the patient under this Part of this Act and sections 66 and 69 below shall, during the continuance in force of the order, be exercisable by [F159 the person specified in the order] .

[F160 (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.]

(2) An order under this section may be made on the application of—

[F161 (za) the patient;]

(a) any relative of the patient;

(b) any other person with whom the patient is residing (or, if the patient is then an in-patient in a hospital, was last residing before he was admitted); or

(c) an [F162 approved mental health professional] ;

F163 . . .

(3) An application for an order under this section may be made upon any of the following grounds, that is to say—

(a) that the patient has no nearest relative within the meaning of this Act, or that it is not reasonably practicable to ascertain whether he has such a relative, or who that relative is;

(b) that the nearest relative of the patient is incapable of acting as such by reason of mental disorder or other illness;

(c) that the nearest relative of the patient unreasonably objects to the making of an application for admission for treatment or a guardianship application in respect of the patient; F164 . . .

(d) that the nearest relative of the patient has exercised without due regard to the welfare of the patient or the interests of the public his power to discharge the patient F165 . . . under this Part of this Act, or is likely to do so.[F166 ; or

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

(4) If, immediately before the expiration of the period for which a patient is liable to be detained by virtue of an application for admission for assessment, an application under this section, which is an application made on the ground specified in subsection (3)(c) or (d) above, is pending in respect of the patient, that period shall be extended—

(a) in any case, until the application under this section has been finally disposed of; and

(b) if an order is made in pursuance of the application under this section, for a further period of seven days;

and for the purposes of this subsection an application under this section shall be deemed to have been finally disposed of at the expiration of the time allowed for appealing from the decision of the court or, if notice of appeal has been given within that time, when the appeal has been heard or withdrawn, and “pending” shall be construed accordingly.

(5) An order made on the ground specified in subsection [F167 (3)(a), (b) or (e)] above may specify a period for which it is to continue in force unless previously discharged under section 30 below.

(6) While an order made under this section is in force, the provisions of this Part of this Act (other than this section and section 30 below) and sections 66, 69, 132(4) and 133 below shall apply in relation to the patient as if for any reference to the nearest relative of the patient there were substituted a reference to the person having the functions of that relative and (without prejudice to section 30 below) shall so apply notwithstanding that the person who was the patient’s nearest relative when the order was made is no longer his nearest relative; but this subsection shall not apply to section 66 below in the case mentioned in paragraph (h) of subsection (1) of that section.

Textual Amendments

F159 Words in s. 29(1) substituted (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 23(2), 56 (with Sch. 10); S.I. 2008/1900, art. 2(f) (with art. 3, Sch.)

F160 S. 29(1A) inserted (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 23(3), 56 (with Sch. 10); S.I. 2008/1900, art. 2(f) (with art. 3, Sch.)

F161 S. 29(2)(za) inserted (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 23(4)(a), 56 (with Sch. 10); S.I. 2008/1900, art. 2(f) (with art. 3, Sch.)

F162 Words in s. 29(2)(c) substituted (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 21, 56, Sch. 2 para. 7(c) (with Sch. 10); S.I. 2008/1900, art. 2(d) (with art. 3, Sch.); S.I. 2008/2561, art. 2(b) (art. 3, Sch.)

F163 Words in s. 29(2) repealed (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 23(4)(b), 55, 56, Sch. 11 Pt. 4 (with Sch. 10); S.I. 2008/1900, art. 2(f)(p) (with art. 3, Sch.)

F164 Word in s. 29(3)(c) repealed (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 23(5)(a), 55, 56, Sch. 11 Pt. 4 (with Sch. 10); S.I. 2008/1900, art. 2(f)(p) (with art. 3, Sch.)

F165 Words in s. 29(3)(d) repealed (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 32, 55, 56, Sch. 3 para. 13, Sch. 11 Pt. 5 (with Sch. 10); S.I. 2008/1210, art. 2(d) (with art. 4); S.I. 2008/1900, art. 2(i) (with art. 3, Sch.)

F166 S. 29(3)(e) and preceding words inserted (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 23(5)(b), 56 (with Sch. 10); S.I. 2008/1900, art. 2(f) (with art. 3, Sch.)

F167 Words in s. 29(5) substituted (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 23(6), 56, (with Sch. 10); S.I. 2008/1900, art. 2(f) (with art. 3, Sch.)

30 Discharge and variation of orders under s. 29. E+W

(1) An order made under section 29 above in respect of a patient may be discharged by the county court upon application made—

(a) in any case, by [F168 the patient or] the person having the functions of the nearest relative of the patient by virtue of the order;

(b) where the order was made on the ground specified in paragraph (a) [F169 , (b) or (e)] of section 29(3) above, or where the person who was the nearest relative of the patient when the order was made has ceased to be his nearest relative, on the application of the nearest relative of the patient.

[F170 (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.]

(2) An order made under section 29 above in respect of a patient may be varied by the county court, on the application of the person having the functions of the nearest relative by virtue of the order or on the application of [F171 the patient or of] an [F172 approved mental health professional] , by substituting [F173 another person for the person having those functions].

[F174 (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.]

(3) If the person having the functions of the nearest relative of a patient by virtue of an order under section 29 above dies—

(a) subsections (1) and (2) above shall apply as if for any reference to that person there were substituted a reference to any relative of the patient, and

(b) until the order is discharged or varied under those provisions the functions of the nearest relative under this Part of this Act and sections 66 and 69 below shall not be exercisable by any person.

(4) [F175 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]—

[F176 (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.]

[F177 (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).]

[F178 (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.]

(5) The discharge or variation under this section of an order made under section 29 above shall not affect the validity of anything previously done in pursuance of the order.

Textual Amendments

F168 Words in s. 30(1)(a) inserted (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 24(2)(a), 56 (with Sch. 10); S.I. 2008/1900, art. 2(f) (with art. 3, Sch.)

F169 Words in s. 30(1)(b) substituted (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 24(2)(b), 56 (with Sch. 10); S.I. 2008/1900, art. 2(f) (with art. 3, Sch.)

F170 S. 30(1A) inserted (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 24(3), 56 (with Sch. 10); S.I. 2008/1900, art. 2(f) (with art. 3, Sch.)

F171 Words in s. 30(2) inserted (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 24(4)(a), 56 (with Sch. 10); S.I. 2008/1900, art. 2(f) (with art. 3, Sch.)

F172 Words in s. 30(2) substituted (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 21, 56, Sch. 2 para. 7(d) (with Sch. 10); S.I. 2008/1900, art. 2(f) (with art. 3, Sch.); S.I. 2008/2561, art. 2(b), (with art. 3, Sch.)

F173 Words in s. 30(2) substituted (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 24(4)(b), 56 (with Sch. 10); S.I. 2008/1900, art. 2(f) (with art. 3, Sch.)

F174 S. 30(2A) inserted (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 24(5), 56 (with Sch. 10); S.I. 2008/1900, art. 2(f) (with art. 3, Sch.)

F175 Words in s. 30(4) substituted (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 24(6), 56 (with Sch. 10); S.I. 2008/1900, art. 2(f) (with art. 3, Sch.)

F176 S. 30(4)(a)(b) substituted (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 32, 56, Sch. 3 para. 14(2) (with Sch. 10); S.I. 2008/1900, art. 2(i) (with art. 3, Sch.)

F177 S. 30(4A) inserted (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 32, 56, Sch. 3 para. 14(3) (with Sch. 10); S.I. 2008/1900, art. 2(i) (with art. 3, Sch.)

F178 S. 30(4B) inserted (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 24(7), 56 (with Sch. 10); S.I. 2008/1900, art. 2(f) (with art. 3, Sch.)

Supplemental E+W

31 Procedure on applications to county court. E+W

[F179 Rules of court] which relate to applications authorised by this Part of this Act to be made to [F180 the county court] may make provision—

(a) for the hearing and determination of such applications otherwise than in open court;

(b) for the admission on the hearing of such applications of evidence of such descriptions as may be specified in the rules notwithstanding anything to the contrary in any enactment or rule of law relating to the admissibility of evidence;

(c) for the visiting and interviewing of patients in private by or under the directions of the court.

Textual Amendments

F179 Words in s. 31 substituted (22.4.2014) by Crime and Courts Act 2013 (c. 22), s. 61(3), Sch. 9 para. 112; S.I. 2014/954, art. 2(c) (with art. 3) (with transitional provisions and savings in S.I. 2014/956, arts. 3-11)

F180 Words in s. 31 substituted (22.4.2014) by Crime and Courts Act 2013 (c. 22), s. 61(3), Sch. 9 para. 52; S.I. 2014/954, art. 2(c) (with art. 3) (with transitional provisions and savings in S.I. 2014/956, arts. 3-11)

32 Regulations for purposes of Part II. E+W

(1) The Secretary of State may make regulations for prescribing anything which, under this Part of this Act, is required or authorised to be prescribed, and otherwise for carrying this Part of this Act into full effect.

(2) Regulations under this section may in particular make provision—

(a) for prescribing the form of any application, recommendation, report, order, notice or other document to be made or given under this Part of this Act;

(b) for prescribing the manner in which any such application, recommendation, report, order, notice or other document may be proved, and for regulating the service of any such application, report, order or notice;

(c) for requiring [F181 such bodies as may be prescribed by the regulations] to keep such registers or other records as may be [F181 so prescribed] in respect of patients liable to be detained or subject to guardianship F182 . . . under this Part of this Act [F183 or community patients] , and to furnish or make available to those patients, and their relatives, such written statements of their rights and powers under this Act as may be so prescribed;

(d) for the determination in accordance with the regulations of the age of any person whose exact age cannot be ascertained by reference to the registers kept under the M2 Births and Deaths Registration Act 1953; and

(e) for enabling the functions under this Part of this Act of the nearest relative of a patient to be performed, in such circumstances and subject to such conditions (if any) as may be prescribed by the regulations, by any person authorised in that behalf by that relative;

and for the purposes of this Part of this Act any application, report or notice the service of which is regulated under paragraph (b) above shall be deemed to have been received by or furnished to the authority or person to whom it is authorised or required to be furnished, addressed or given if it is duly served in accordance with the regulations.

(3) Without prejudice to subsections (1) and (2) above, but subject to section 23(4) [F184 and (6)] above, regulations under this section may determine the manner in which functions under this Part of this Act of the managers of hospitals, local social services authorities, [F185 [F186 Local Health Board] Special Health Authorities F187 ... [F188 , National Health Service trusts or NHS foundation trusts]] are to be exercised, and such regulations may in particular specify the circumstances in which, and the conditions subject to which, any such functions may be performed by officers of or other persons acting on behalf of those managers [F189 , boards,][F190 authorities and trusts].

Textual Amendments

F181 Words in s. 32(2)(c) substituted (1.4.1996) by 1995 c. 52, ss. 1(2), 7(2), Sch. 1 para. 2

F182 Words in s. 32(2)(c) repealed (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 55, 56, Sch. 11 Pt. 5 (with Sch. 10); S.I. 2008/1210, art. 2(d) (with art. 4)

F183 Words in s. 32(2)(c) inserted (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 32, 56, Sch. 3 para. 15 (with Sch. 10); S.I. 2008/1900, art. 2(i) (with art. 3, Sch.)

F184 Words in s. 32(3) inserted (24.7.2007) by Mental Health Act 2007 (c. 12), ss. 45(2), 56 (with Sch. 10); S.I. 2007/2156, art. 2

F185 Words in s. 32(3) substituted (28.6.1995 for certain purposes, otherwise 1.4.1996) by 1995 c. 17, s. 2(1)(3), 8, Sch. 1, Pt. III, para. 107(4)

F186 Words in s. 32(3) substituted (1.4.2007) by The References to Health Authorities Order 2007 (S.I. 2007/961), art. 3, {Sch. para. 13(7(a))}

F187 Words in s. 32(3) omitted (1.4.2013) by virtue of Health and Social Care Act 2012 (c. 7), s. 306(4), Sch. 5 para. 27; S.I. 2013/160, art. 2(2) (with arts. 7-9)

F188 Words in s. 32(3) substituted (1.4.2004) by Health and Social Care (Community Health and Standards) Act 2003 (c. 43), ss. 34, 199, Sch. 4 para. 55; S.I. 2004/759, art.2

F189 Word in s. 32(3) inserted (1.4.2007) by The References to Health Authorities Order 2007 (S.I. 2007/961), art. 3, {Sch. para. 13(7(b))}

F190 Words substituted by virtue of National Health Service and Community Care Act 1990 (c. 19, SIF 113:2), s. 66(1), Sch. 9 para. 24(5)

Modifications etc. (not altering text)

C14 S. 32(2)(c) modified (3.11.2008) by The Mental Health Act 2007 (Commencement No. 6 and After-care under Supervision: Savings, Modifications and Transitional Provisions) Order 2008 (S.I. 2008/1210), arts. 1(1)(b), 6(d)

C15 S. 32(3) modified (1.7.2005) by Domestic Violence, Crime and Victims Act 2004 (c. 28), s. 45(4); S.I. 2005/1705, art. 2(b) (as inserted (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 48, 56, Sch. 6 para. 16(4) (with Sch. 10)); S.I. 2008/1900, art. 2(o) (with art. 3, Sch.)

Marginal Citations

M2 1953 c. 20.

33 Special provisions as to wards of court. E+W

(1) An application for the admission to hospital of a minor who is a ward of court may be made under this Part of this Act with the leave of the court; and section 11(4) above shall not apply in relation to an application so made.

(2) Where a minor who is a ward of court is liable to be detained in a hospital by virtue of an application for admission under this Part of this Act [F191 or is a community patient] , any power exercisable under this Part of this Act or under section 66 below in relation to the patient by his nearest relative shall be exercisable by or with the leave of the court.

(3) Nothing in this Part of this Act shall be construed as authorising the making of a guardianship application in respect of a minor who is a ward of court, or the transfer into guardianship of any such minor.

[F192 (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.]

Textual Amendments

F191 Words in s. 33(2) inserted (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 32, 56, Sch. 3 para. 16(2) (with Sch. 10); S.I. 2008/1210, art. 2(b) (with art. 4)

F192 S. 33(4) substituted (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 32, 56, Sch. 3 para. 16(3) (with Sch. 10); S.I. 2008/1210, art. 2(b) (with art. 4)

Modifications etc. (not altering text)

C16 S. 33 modified (3.11.2008) by The Mental Health Act 2007 (Commencement No. 6 and After-care under Supervision: Savings, Modifications and Transitional Provisions) Order 2008 (S.I. 2008/1210), arts. 1(1)(b), 6(e)

34 Interpretation of Part II. E+W

(1) In this Part of this Act—

• [F193 “ 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;]

• F194 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• “the nominated medical attendant”, in relation to a patient who is subject to the guardianship of a person other than a local social services authority, means the person appointed in pursuance of regulations made under section 9(2) above to act as the medical attendant of the patient;

• [F195 “registered establishment” means an establishment which would not, apart from subsection (2) below, be a hospital for the purposes of this Part and which—

(a) in England, is a hospital as defined by section 275 of the National Health Service Act 2006 that is used for the carrying on of a regulated activity, within the meaning of Part 1 of the Health and Social Care Act 2008, which relates to the assessment or medical treatment of mental disorder and in respect of which a person is registered under Chapter 2 of that Part; and

(b) in Wales, is an establishment in respect of which a person is registered under Part 2 of the Care Standards Act 2000 as an independent hospital in which treatment or nursing (or both) are provided for persons liable to be detained under this Act;]

• [F196 “ 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;]

F194 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(1A) F197 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(2) Except where otherwise expressly provided, this Part of this Act applies in relation to [F198 a registered establishment], as it applies in relation to a hospital, and references in this Part of this Act to a hospital, and any reference in this Act to a hospital to which this Part of this Act applies, shall be construed accordingly.

(3) In relation to a patient who is subject to guardianship in pursuance of a guardianship application, any reference in this Part of this Act to the responsible local social services authority is a reference—

(a) where the patient is subject to the guardianship of a local social services authority, to that authority;

(b) where the patient is subject to the guardianship of a person other than a local social services authority, to the local social services authority for the area in which that person resides.

Textual Amendments

F193 Definition of "the appropriate practitioner" in s 34(1) inserted (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 9(9), 56 (with Sch. 10); S.I. 2008/1900, art. 2(b) (with art. 3, Sch.)

F194 Definitions of "the community responsible medical officer" and "the supervisor" in s 34(1) repealed (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 55, 56, Sch. 11 Pt. 5 (with Sch. 10); S.I. 2008/1210, art. 2(d) (with art. 4)

F195 Definition of "registered establishment" in s. 34(1) substituted (1.10.2010) by The Health and Social Care Act 2008 (Consequential Amendments No.2) Order 2010 (S.I. 2010/813), arts. 1(1), 5(3)

F196 Definition of "the responsible clinician" in s 34(1) substituted (3.11.2008) for definition of "the responsible medical officer" by Mental Health Act 2007 (c. 12), ss. 9(10), 56 (with Sch. 10); S.I. 2008/1900, art. 2(b) (with art. 3, Sch.)

F197 S. 34(1A) repealed (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 55, 56, Sch. 11 Pt. 5 (with Sch. 10); S.I. 2008/1210, art. 2(d) (with art. 4)

F198 Words in s. 34(2) substituted (1.4.2002) by 2000 c. 14, s. 116, Sch. 4 para. 9(4)(b); S.I. 2001/4150, art. 3(3) (subject to transitional provisions in art. 4 and S.I. 2002/1493, art. 4); S.I. 2002/920, art. 3(3)(d) (subject to transitional provisions in Schs. 1-3 and art. 3(4)-(10))

Part III E+W+S Patients Concerned in Criminal Proceedings or Under Sentence

Modifications etc. (not altering text)

C17 Pt. III (ss. 35 - 55) certain defintions applied (E.W.) (1.1.1992) by Criminal Procedure (Insanity and Unfitness to Plead) Act 1991 (c. 25, SIF 39:1), s. 6(2); S.I. 1991/2488, art. 2

Remands to hospital E+W

35 Remand to hospital for report on accused’s mental condition. E+W

(1) Subject to the provisions of this section, the Crown Court or a magistrates’ court may remand an accused person to a hospital specified by the court for a report on his mental condition.

(2) For the purposes of this section an accused person is—

(a) in relation to the Crown Court, any person who is awaiting trial before the court for an offence punishable with imprisonment or who has been arraigned before the court for such offence and has not yet been sentenced or otherwise dealt with for the offence on which he has been arraigned;

(b) in relation to a magistrates’ court, any person who has been convicted by the court of an offence punishable on summary conviction with imprisonment and any person charged with such an offence if the court is satisfied that he did the act or made the omission charged or he has consented to the exercise by the court of the powers conferred by this section.

(3) Subject to subsection (4) below, the powers conferred by this section may be exercised if—

(a) the court is satisfied, on the written or oral evidence of a registered medical practitioner, that there is reason to suspect that the accused person is suffering from [F199 mental disorder] ; and

(b) the court is of the opinion that it would be impracticable for a report on his mental condition to be made if he were remanded on bail;

but those powers shall not be exercised by the Crown Court in respect of a person who has been convicted before the court if the sentence for the offence of which he has been convicted is fixed by law.

(4) The court shall not remand an accused person to a hospital under this section unless satisfied, on the written or oral evidence of the [F200 approved clinician] who would be responsible for making the report or of some other person representing the managers of the hospital, that arrangements have been made for his admission to that hospital and for his admission to it within the period of seven days beginning with the date of the remand; and if the court is so satisfied it may, pending his admission, give directions for his conveyance to and detention in a place of safety.

(5) Where a court has remanded an accused person under this section it may further remand him if it appears to the court, on the written or oral evidence of the [F200 approved clinician] responsible for making the report, that a further remand is necessary for completing the assessment of the accused person’s mental condition.

(6) The power of further remanding an accused person under this section may be exercised by the court without his being brought before the court if he is represented by [F201 an authorised person who] is given an opportunity of being heard.

(7) An accused person shall not be remanded or further remanded under this section for more than 28 days at a time or for more than 12 weeks in all; and the court may at any time terminate the remand if it appears to the court that it is appropriate to do so.

(8) An accused person remanded to hospital under this section shall be entitled to obtain at his own expense an independent report on his mental condition from a registered medical practitioner [F202 or approved clinician] chosen by him and to apply to the court on the basis of it for his remand to be terminated under subsection (7) above.

(9) Where an accused person is remanded under this section—

(a) a constable or any other person directed to do so by the court shall convey the accused person to the hospital specified by the court within the period mentioned in subsection (4) above; and

(b) the managers of the hospital shall admit him within that period and thereafter detain him in accordance with the provisions of this section.

(10) If an accused person absconds from a hospital to which he has been remanded under this section, or while being conveyed to or from that hospital, he may be arrested without warrant by any constable and shall, after being arrested, be brought as soon as practicable before the court that remanded him; and the court may thereupon terminate the remand and deal with him in any way in which it could have dealt with him if he had not been remanded under this section.

Textual Amendments

F199 Words in s. 35(3)(a) substituted (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 1, 56, Sch. 1 para. 5 (with Sch. 10); S.I. 2008/1900, art. 2(a) (with art. 3, Sch.)

F200 Words in s. 35(4)(5) substituted (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 10(2)(a), 56 (with Sch. 10); S.I. 2008/1900, art. 2(b) (with art. 3, Sch.)

F201 Words in s. 35(6) substituted (1.1.2010) by Legal Services Act 2007 (c. 29), ss. 208, 211, Sch. 21 para. 54 (with ss. 29, 192, 193); S.I. 2009/3250, art. 2(h) (with arts. 6, 9)

F202 Words in s. 35(8) inserted (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 10(2)(b), 56 (with Sch. 10); S.I. 2008/1900, art. 2(a) (with art. 3, Sch.)

Modifications etc. (not altering text)

C18 S. 35 modified (31.3.2005) by Army Act 1955 (c. 18), s. 116B(2)(a)(c) (as substituted by 2004 c. 28, ss. 26, 60, Sch. 3 para. 1 (with Sch. 12 para. 8)); S.I. 2005/579, art. 3(b)

S. 35 modified (31.3.2005) by Airforce Act 1955 (c. 19), s. 116B(2)(a)(c), (as substituted by 2004 c. 28, ss. 26, 60, Sch. 3 para. 1 (with Sch. 12 para. 8)); S.I. 2005/579, art. 3(b)

S. 35 modified (31.3.2005) by Naval Discipline Act 1957 (c. 53), s. 63B(2)(a)(c), (as substituted by 2004 c. 28, ss. 26, 60, Sch. 3 para. 3 (with Sch. 12 para. 8)); S.I. 2005/579, art. 3(b)

S. 35 modified (28.3.2009 for certain purposes, otherwise 31.10.2009) by Armed Forces Act 2006 (c. 52), ss. 169, 383, Sch. 4 para. 3; S.I. 2009/812, art. 3(a) (with transitional provisions in S.I. 2009/1059); S.I. 2009/1167, art. 4

C19 S. 35 applied (1.10.1997) by 1996 c. 27, ss. 48, 67(2); S.I. 1997/1892, art. 3(1)(a)

C20 S. 35 applied (15.10.2001) by 1996 c. 52 s. 156(4); S.I. 2001/3164, art. 2

C21 S. 35(4)-(10) applied (with modifications) (23.3.2015) by Anti-social Behaviour, Crime and Policing Act 2014 (c. 12), s. 185(1), Sch. 1 para. 6(3) (with ss. 21, 33, 42, 58, 75, 93); S.I. 2015/373, art. 4(c)

36 Remand of accused person to hospital for treatment. E+W

(1) Subject to the provisions of this section, the Crown Court may, instead of remanding an accused person in custody, remand him to a hospital specified by the court if satisfied, on the written or oral evidence of two registered medical practitioners, that

[F203 (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;][F204 and

(b) appropriate medical treatment is available for him.]

(2) For the purposes of this section an accused person is any person who is in custody awaiting trial before the Crown Court for an offence punishable with imprisonment (other than an offence the sentence for which is fixed by law) or who at any time before sentence is in custody in the course of a trial before that court for such an offence.

(3) The court shall not remand an accused person under this section to a hospital unless it is satisfied, on the written or oral evidence of the [F205 approved clinician who would have overall responsibility for his case] or of some other person representing the managers of the hospital, that arrangements have been made for his admission to that hospital and for his admission to it within the period of seven days beginning with the date of the remand; and if the court is so satisfied it may, pending his admission, give directions for his conveyance to and detention in a place of safety.

(4) Where a court has remanded an accused person under this section it may further remand him if it appears to the court, on the written or oral evidence of the [F206 responsible clinician] , that a further remand is warranted.

(5) The power of further remanding an accused person under this section may be exercised by the court without his being brought before the court if he is represented by [F207 an authorised person who] is given an opportunity of being heard.

(6) An accused person shall not be remanded or further remanded under this section for more than 28 days at a time or for more than 12 weeks in all; and the court may at any time terminate the remand if it appears to the court that it is appropriate to do so.

(7) An accused person remanded to hospital under this section shall be entitled to obtain at his own expense an independent report on his mental condition from a registered medical practitioner [F208 or approved clinician] chosen by him and to apply to the court on the basis of it for his remand to be terminated under subsection (6) above.

(8) Subsections (9) and (10) of section 35 above shall have effect in relation to a remand under this section as they have effect in relation to a remand under that section.

Textual Amendments

F203 S. 36(1)(a) substituted (3.11.2008) for words by Mental Health Act 2007 (c. 12), ss. 1, 56, Sch. 1 para. 6 (with Sch. 10); S.I. 2008/1900, art. 2(a) (with art. 3, Sch.)

F204 S. 36(1)(b) and preceding word inserted (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 5(2), 56 (with Sch. 10); S.I. 2008/1900, art. 2(b) (with art. 3, Sch.)

F205 Words in s. 36(3) substituted (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 10(3)(a), 56 (with Sch. 10); S.I. 2008/1900, art. 2(a) (with art. 3, Sch.)

F206 Words in s. 36(4) substituted (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 10(3)(b), 56 (with Sch. 10); S.I. 2008/1900, art. 2(a) (with art. 3, Sch.)

F207 Words in s. 36(5) substituted (1.1.2010) by Legal Services Act 2007 (c. 29), ss. 208, 211, Sch. 21 para. 55 (with ss. 29, 192, 193); S.I. 2009/3250, art. 2(h) (with arts. 6, 9)

F208 Words in s. 36(7) inserted (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 10(3)(c), 56 (with Sch. 10); S.I. 2008/1900, art. 2(a) (with art. 3, Sch.)

Modifications etc. (not altering text)

C22 S. 36 modified (31.3.2005) by Army Act 1955 (c. 18), s. 116B(2)(b)(c), (as substituted by 2004 c. 28, ss. 26, 60, Sch. 3 para.1 (with Sch. 12 para. 8)); S.I. 2005/579, art. 3(b)

S. 36 modified (31.3.2005) by Airforce Act 1955 (c. 19), s. 116B(2)(b)(c), (as substituted by 2004 c. 28, ss. 26, 60, Sch. 3 para.1 (with Sch. 12 para. 8)); S.I. 2005/579, art. 3(b)

S. 36 modified (31.3.2005) by Naval Discipline Act 1957 (c. 53), s. 63B(2)(b)(c), (as substituted by 2004 c. 28, ss. 26, 60, Sch. 3 para.3 (with Sch. 12 para. 8)); S.I. 2005/579, art. 3(b)

S. 36 modified (28.3.2009 for certain purposes, otherwise 31.10.2009) by Armed Forces Act 2006 (c. 52), ss. 169, 383, Sch. 4 para. 4; S.I. 2009/812, art. 3(a) (with transitional provisions in S.I. 2009/1059); S.I. 2009/1167, art. 4

Hospital and guardianship orders E+W

37 Powers of courts to order hospital admission or guardianship. E+W

(1) Where a person is convicted before the Crown Court of an offence punishable with imprisonment other than an offence the sentence for which is fixed by law,F209 . . . , or is convicted by a magistrates’ court of an offence punishable on summary conviction with imprisonment, and the conditions mentioned in subsection (2) below are satisfied, the court may by order authorise his admission to and detention in such hospital as may be specified in the order or, as the case may be, place him under the guardianship of a local social services authority or of such other person approved by a local social services authority as may be so specified.

[F210 (1A) In the case of an offence the sentence for which would otherwise fall to be [F211 imposed under section 258, [F212 258A,] [F213 268A, 273, 274, [F214 274A,] 282A], 283 [F215 , 285 or 285A] of the Sentencing Code or under Chapter 7 of Part 10 of that Code, nothing] in those provisions shall prevent a court from making an order under subsection (1) above for the admission of the offender to a hospital.

[F216 (1B) For the purposes of subsection (1A) above—

(a) a sentence falls to be imposed under section 258 [F217 or 258A] of the Sentencing Code if the court is obliged by that section to pass a sentence of detention for life under section 250 of that Code;

[F218 (aa) a sentence falls to be imposed under section 268A or 282A of that Code if it is required by section 268B(2) or 282B(2) of that Code and the court is not of the opinion there mentioned;]

(b) a sentence falls to be imposed under section 273[F219 , 274 or 274A] of that Code if the court is obliged by that section to pass a sentence of custody for life;

(c) a sentence falls to be imposed under section 283[F220 , 285 or 285A] of that Code if the court is obliged by that section to pass a sentence of imprisonment for life;

(d) a sentence falls to be imposed under Chapter 7 of Part 10 of that Code if it is required by section 311(2), [F221 312(2A), 313(2A), 314(2A) or 315(2A)] of that Code and the court is not of the opinion there mentioned.]

(2) The conditions referred to in subsection (1) above are that—

(a) the court is satisfied, on the written or oral evidence of two registered medical practitioners, that the offender is suffering from [F222 mental disorder] and that either—

(i) the mental disorder from which the offender is suffering is of a nature or degree which makes it appropriate for him to be detained in a hospital for medical treatment and [F223 appropriate medical treatment is available for him; or]

(ii) in the case of an offender who has attained the age of 16 years, the mental disorder is of a nature or degree which warrants his reception into guardianship under this Act; and

(b) the court is of the opinion, having regard to all the circumstances including the nature of the offence and the character and antecedents of the offender, and to the other available methods of dealing with him, that the most suitable method of disposing of the case is by means of an order under this section.

(3) Where a person is charged before a magistrates’ court with any act or omission as an offence and the court would have power, on convicting him of that offence, to make an order under subsection (1) above in his case F224 . . . , then, if the court is satisfied that the accused did the act or made the omission charged, the court may, if it thinks fit, make such an order without convicting him.

(4) An order for the admission of an offender to a hospital (in this Act referred to as “a hospital order”) shall not be made under this section unless the court is satisfied on the written or oral evidence of the [F225 approved clinician who would have overall responsibility for his case] or of some other person representing the managers of the hospital that arrangements have been made for his admission to that hospitalF226 . . . , and for his admission to it within the period of 28 days beginning with the date of the making of such an order; and the court may, pending his admission within that period, give such directions as it thinks fit for his conveyance to and detention in a place of safety.

(5) If within the said period of 28 days it appears to the Secretary of State that by reason of an emergency or other special circumstances it is not practicable for the patient to be received into the hospital specified in the order, he may give directions for the admission of the patient to such other hospital as appears to be appropriate instead of the hospital so specified; and where such directions are given—

(a) the Secretary of State shall cause the person having the custody of the patient to be informed, and

(b) the hospital order shall have effect as if the hospital specified in the directions were substituted for the hospital specified in the order.

(6) An order placing an offender under the guardianship of a local social services authority or of any other person (in this Act referred to as “a guardianship order”) shall not be made under this section unless the court is satisfied that that authority or person is willing to receive the offender into guardianship.

(7) F227 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(8) Where an order is made under this section, the court [F228 shall not—

(a) pass sentence of imprisonment or impose a fine or make a [F229 community order (within [F230 the meaning given by section 200 of the Sentencing Code])] [F231 or a youth rehabilitation order (within [F232 the meaning given by section 173 of that Code])] in respect of the offence,

(b) if the order under this section is a hospital order, make a referral order (within [F233 the meaning given by section 83 of that Code]) in respect of the offence, or

(c) make in respect of the offender F234 . . . [F235 an order under [F236 section 376 of that Code] (binding over of parent or guardian)],

but the court may make any other order which it] has power to make apart from this section; and for the purposes of this subsection “sentence of imprisonment” includes any sentence or order for detention.]

Textual Amendments

F209 Words in s. 37(1) omitted (4.4.2005) by virtue of Criminal Justice Act 2003 (c. 44), ss. 304, 336, Sch. 32 para. 38(a); S.I. 2005/950, art. 2(1), Sch. 1 para. 42(18) (with art. 2(2), Sch. 2 (as amended by S.I. 2005/2122, art. 2))

F210 S. 37(1A)(1B) substituted (4.4.2005) by Criminal Justice Act 2003 (c. 44), ss. 304, 336, Sch. 32 para. 38(b); S.I. 2005/950,art 2(1), Sch. 1 para. 42(18) (with art. 2(2), Sch. 2 (as amended by S.I. 2005/2122, art. 2))

F211 Words in s. 37(1A) substituted (1.12.2020) by Sentencing Act 2020 (c. 17), s. 416(1), Sch. 24 para. 73(2) (with Sch. 24 para. 447, Sch. 27); S.I. 2020/1236, reg. 2

F212 Word in s. 37(1A) inserted (28.6.2022) by Police, Crime, Sentencing and Courts Act 2022 (c. 32), ss. 3(16)(a)(i), 208(5)(b)

F213 Words in s. 37(1A) substituted (29.6.2021) by Counter-Terrorism and Sentencing Act 2021 (c. 11), s. 50(2)(v), Sch. 13 para. 8(a)

F214 Word in s. 37(1A) inserted (28.6.2022) by Police, Crime, Sentencing and Courts Act 2022 (c. 32), ss. 3(16)(a)(ii), 208(5)(b)

F215 Words in s. 37(1A) substituted (28.6.2022) by Police, Crime, Sentencing and Courts Act 2022 (c. 32), ss. 3(16)(a)(iii), 208(5)(b)

F216 S. 37(1B) substituted (1.12.2020) by Sentencing Act 2020 (c. 17), s. 416(1), Sch. 24 para. 73(3) (with Sch. 24 para. 447, Sch. 27); S.I. 2020/1236, reg. 2

F217 Words in s. 37(1B)(a) inserted (28.6.2022) by Police, Crime, Sentencing and Courts Act 2022 (c. 32), ss. 3(16)(b)(i), 208(5)(b)

F218 S. 37(1B)(aa) inserted (29.6.2021) by Counter-Terrorism and Sentencing Act 2021 (c. 11), s. 50(2)(v), Sch. 13 para. 8(b)

F219 Words in s. 37(1B)(b) substituted (28.6.2022) by Police, Crime, Sentencing and Courts Act 2022 (c. 32), ss. 3(16)(b)(ii), 208(5)(b)

F220 Words in s. 37(1B)(c) substituted (28.6.2022) by Police, Crime, Sentencing and Courts Act 2022 (c. 32), ss. 3(16)(b)(iii), 208(5)(b)

F221 Words in s. 37(1B)(d) substituted (28.6.2022) by Police, Crime, Sentencing and Courts Act 2022 (c. 32), s. 208(5)(k), Sch. 12 para. 1 (with s. 124(11)(12))

F222 Words in s. 37(2)(a) substituted (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 1, 56, Sch. 1 para. 7(a) (with Sch. 10); S.I. 2008/1900, art. 2(a) (with art. 3, Sch.)

F223 Words in s. 37(2)(a)(i) substituted (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 4(5), 56 (with Sch. 10); S.I. 2008/1900, art. 2(b) (with art. 3, Sch.)

F224 Words in s. 37(3) repealed (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 1, 55, 56, Sch. 1 para. 7(b), Sch. 11 Pt. 1 (with Sch. 10); S.I. 2008/1900, art. 2(a)(p) (with art. 3, Sch.)

F225 Words in s. 37(4) substituted (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 10(4), 56 (with Sch. 10); S.I. 2008/1900, art. 2(b) (with art. 3, Sch.)

F226 Words in s. 37(4) repealed (1.10.1997) by 1997 c. 43, s. 55, Sch. 4, para. 12(3), Sch. 6; S.I. 1997/2200, art. 2(1)(o)(2)(f)

F227 S. 37(7) repealed (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 55, 56, Sch. 11 Pt. 1 (with Sch. 10); S.I. 2008/1900, art. 2(p) (with art. 3, Sch.)

F228 Words in s. 37(8) substituted (26.6.2000) by 1999 c. 23, s. 67(1), Sch. 4 para. 11 (with Sch. 7 para. 3(3), para. 5(2)); S.I. 2000/1587, 2(b)

F229 Words in s. 37(8) substituted (4.4.2005) by Criminal Justice Act 2003 (c. 44), ss. 304, 336, Sch. 32 para. 38(c); S.I. 2005/950, art 2(1), Sch. 1 para. 42(18) (with art. 2(2), Sch. 2 (as amended by S.I. 2005/2122, art. 2))

F230 Words in s. 37(8)(a) substituted (1.12.2020) by Sentencing Act 2020 (c. 17), s. 416(1), Sch. 24 para. 73(4)(a) (with Sch. 24 para. 447, Sch. 27); S.I. 2020/1236, reg. 2

F231 Words in s. 37(8)(a) inserted (30.11.2009) by Criminal Justice and Immigration Act 2008 (c. 4), ss, 6, 153, {Sch. 4 para. 30(a)}(with Sch. 27 para. 5): S.I. 2009/3074, art. 2(p)(v)

F232 Words in s. 37(8)(a) substituted (1.12.2020) by Sentencing Act 2020 (c. 17), s. 416(1), Sch. 24 para. 73(4)(b) (with Sch. 24 para. 447, Sch. 27); S.I. 2020/1236, reg. 2

F233 Words in s. 37(8)(b) substituted (1.12.2020) by Sentencing Act 2020 (c. 17), s. 416(1), Sch. 24 para. 73(5) (with Sch. 24 para. 447, Sch. 27); S.I. 2020/1236, reg. 2

F234 Words in s. 37(8)(c) repealed (30.11.2009) by Criminal Justice and Immigration Act 2008 (c. 4), ss, 6, 149, 153, Sch. 4 para. 30(b), {Sch. 28 Pt. 1} (with Sch. 27 para. 5): S.I. 2009/3074, arts. 2(p)(v)(u)(ix)

F235 Words in s. 37(8) substituted (25.8.2000) by 2000 c. 6, ss. 165, 168(1), Sch. 9 para. 90(1)(6)(b)

F236 Words in s. 37(8)(c) substituted (1.12.2020) by Sentencing Act 2020 (c. 17), s. 416(1), Sch. 24 para. 73(6) (with Sch. 24 para. 447, Sch. 27); S.I. 2020/1236, reg. 2

Modifications etc. (not altering text)

C23 S. 37 modified (31.3.2005) by Criminal Procedure (Insanity) Act 1964 (c. 84), s. 5A(1) (as substituted by 2004 c. 28, ss. 24(1), 60 (with Sch. 12 para. 8)); S.I. 2005/579, art. 3(b)

S. 37 modified (31.3.2005) by Army Act 1955 (c. 18), s. 116B(1) (as substituted by 2004 c. 28, ss. 26, 60, Sch. 3, para. 1 (with Sch. 12 para. 8)); S.I. 2005/579, art. 3(b)

S. 37 modified (31.3.2005) by Airforce Act 1955 (c. 19), s. 116B(1) (as substituted by 2004 c. 28, ss. 26, 60, Sch. 3 para.1 (with Sch. 12 para. 8)); S.I. 2005/579, art. 3(b)

S. 37 modified (31.3.2005) by Naval Discipline Act 1957 (c. 53), s. 63B(1), (as substituted by 2004 c. 28, ss. 26, 60, Sch. 3 para. 3 (with Sch. 12 para. 8)); S.I. 2005/579, art. 3(b)

S. 37 modified (28.3.2009 for certain purposes, otherwise 31.10.2009) by Armed Forces Act 2006 (c. 52), ss. 169, 383, Sch. 4 para. 1; S.I. 2009/812, art. 3(a) (with transitional provisions in S.I. 2009/1059); S.I. 2009/1167, art. 4

C24 S. 37 modified (1.12.2020 immediately before the consolidation date (see 2020 c. 9, ss. 3, 5(2)(3) and 2020 c. 17, ss. 2, 416)) by Sentencing (Pre-consolidation Amendments) Act 2020 (c. 9), ss. 1, 5(2)(3); S.I. 2012/1236, reg. 2

C25 S. 37(1) modified (1.1.1992) by Criminal Procedure (Insanity and Unfitness to Plead) Act 1991 (c. 25, SIF 39:1), s. 5(2), (with saving in s. 8); S.I. 1991/2488, art. 2

C26 S. 37 extended (1.10.1997) by 1997 c. 43, s. 47(1)(a); S.I. 1997/2200, art. 2(1)(i)

C27 S. 37 applied (1.10.1997) by 1996 c. 27, s. 51; S.I. 1997/1892, art. 3(1)(a)

38 Interim hospital orders. E+W

(1) Where a person is convicted before the Crown Court of an offence punishable with imprisonment (other than an offence the sentence for which is fixed by law) or is convicted by a magistrates’ court of an offence punishable on summary conviction with imprisonment and the court before or by which he is convicted is satisfied, on the written or oral evidence of two registered medical practitioners—

(a) that the offender is suffering from [F237 mental disorder] ; and

(b) that there is reason to suppose that the mental disorder from which the offender is suffering is such that it may be appropriate for a hospital order to be made in his case,

the court may, before making a hospital order or dealing with him in some other way, make an order (in this Act referred to as “an interim hospital order”) authorising his admission to such hospital as may be specified in the order and his detention there in accordance with this section.

(2) In the case of an offender who is subject to an interim hospital order the court may make a hospital order without his being brought before the court if he is represented by [F238 an authorised person who] is given an opportunity of being heard.

(3) At least one of the registered medical practitioners whose evidence is taken into account under subsection (1) above shall be employed at the hospital which is to be specified in the order.

(4) An interim hospital order shall not be made for the admission of an offender to a hospital unless the court is satisfied, on the written or oral evidence of the [F239 approved clinician who would have overall responsibility for his case] or of some other person representing the managers of the hospital, that arrangements have been made for his admission to that hospital and for his admission to it within the period of 28 days beginning with the date of the order; and if the court is so satisfied the court may, pending his admission, give directions for his conveyance to and detention in a place of safety.

(5) An interim hospital order—

(a) shall be in force for such period, not exceeding 12 weeks, as the court may specify when making the order; but

(b) may be renewed for further periods of not more than 28 days at a time if it appears to the court, on the written or oral evidence of the [F240 responsible clinician] , that the continuation of the order is warranted;

but no such order shall continue in force for more than [F241 twelve months] in all and the court shall terminate the order if it makes a hospital order in respect of the offender or decides after considering the written or oral evidence of the [F240 responsible clinician] to deal with the offender in some other way.

(6) The power of renewing an interim hospital order may be exercised without the offender being brought before the court if he is represented by counsel or a solicitor and his counsel or solicitor is given an opportunity of being heard.

(7) If an offender absconds from a hospital in which he is detained in pursuance of an interim hospital order, or while being conveyed to or from such a hospital, he may be arrested without warrant by a constable and shall, after being arrested, be brought as soon as practicable before the court that made the order; and the court may thereupon terminate the order and deal with him in any way in which it could have dealt with him if no such order had been made.

Textual Amendments

F237 Words in s. 38(1)(a) substituted (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 1, 56, Sch. 1 para. 8 (with Sch. 10); S.I. 2008/1900, art. 2(a) (with art. 3, Sch.)

F238 Words in s. 38(2) substituted (1.1.2010) by Legal Services Act 2007 (c. 29), ss. 208, 211, Sch. 21 para. 56 (with ss. 29, 192, 193); S.I. 2009/3250, art. 2(h) (subject to arts. 6, 9)

F239 Words in s. 38(4) substituted (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 10(5)(a), 56 (with Sch. 10); S.I. 2008/1900, art. 2(b) (with art. 3, Sch.)

F240 Words in s. 38(5) substituted (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 10(5)(b), 56 (with Sch. 10); S.I. 2008/1900, art. 2(b) (with art. 3, Sch.)

F241 Words in s. 38(5) substituted (1.10.1997) by 1997 c. 43, s. 49(1); S.I. 1997/2200, art. 2

Modifications etc. (not altering text)

C28 S. 38 modified (31.3.2005) by Army Act 1955 (c. 18), s. 116B(2)(d) (as substituted by 2004 c. 28, ss. 26, 60, Sch. 3 para.1 (with Sch. 12 para. 8)); S.I. 2005/579, art. 3(b)

S. 38 modified (31.3.2005) by Naval Discipline Act 1957 (c. 53), s. 63B(2)(d) (as substituted by 2004 c. 28, ss. 26, 60, Sch. 3 para. 3 (with Sch. 12 para. 8)); S.I. 2005/579, art. 3(b)

S. 38 modified (31.3.2005) by Airforce Act 1955 (c. 19), s. 116B(2)d) (as substituted by 2004 c. 28, ss. 26, 60, Sch. 3 para.1 (with Sch. 12 para. 8)); S.I. 2005/579, art. 3(b)

S. 38 modified (28.3.2009 for certain purposes, otherwise 31.10.2009) by Armed Forces Act 2006 (c. 52), ss. 169, 383, Sch. 4 para. 5; S.I. 2009/812, art. 3(a) (with transitional provisions in S.I. 2009/1059); S.I. 2009/1167, art. 4

C29 S. 38 applied (1.10.1997) by 1996 c. 27, s. 51; S.I. 1997/1892, art. 3(1)(a)

C30 S. 38(7) modified (31.3.2005) by Courts-Martial (Appeals) Act 1968 (c. 20), s. 16(5)(b), (as substituted by 2004 c. 28, ss. 26, 60, Sch. 3 para. 7 (with Sch. 12 para. 8)); S.I. 2005/579, art. 3(b)

S. 38(7) modified (31.3.2005) by Courts-Martial (Appeals) Act 1968 (c. 20), s. 23(5)(b), (as substituted by 2004 c. 28, ss. 26, 60, Sch. 3 para. 10 (with Sch. 12 para. 8)); S.I. 2005/579, art. 3(b)

S. 38(7) modified (31.3.2005) by Courts-Martial (Appeals) Act 1968 (c. 20), s. 25B(3)(b), (as substituted by 2004 c. 28, ss. 26, 60, Sch. 3 para. 13, (with Sch. 12 para. 8)); S.I. 2005/579, art. 3(b)

C31 S. 38(7) modified by 1968 c. 19, s. 30A(2) (as inserted (14.7.2008) by Criminal Justice and Immigration Act 2008 (c. 4), ss. 47, 153, Sch. 8 para. 8); S.I. 2008/1586, art. 2(1), Sch. 1 para. 26

39 Information as to hospitals. E+W

(1) Where a court is minded to make a hospital order or interim hospital order in respect of any person it may request—

(a) the [F242 integrated care board] F243 ... [F244 Local Health Board] for [F245 the area] in which that person resides or last resided; or

(b) [F246 [F247 NHS England] or] [F248 the National Assembly for Wales or any other] [F242 integrated care board] F243 ... [F244 Local Health Board] that appears to the court to be appropriate,

to furnish the court with such information as [F245 that [F242 integrated care board] F243 ... [F244 Local Health Board] [F249 or [F250 [F247 NHS England] or the] National Assembly for Wales] have] or can reasonably obtain with respect to the hospital or hospitals (if any) in [F245 their area] or elsewhere at which arrangements could be made for the admission of that person in pursuance of the order, and [F245 that [F242 integrated care board] F243 ... [F244 Local Health Board] [F251 or [F250 [F247 NHS England] or the] National Assembly for Wales] shall] comply with any such request.

[F252 (1ZA) A request under this section to [F247 NHS England] may relate only to services or facilities the provision of which [F247 NHS England] arranges.]

[F253 (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.]

F254 (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F242 Words in s. 39(1) substituted (1.7.2022) by Health and Care Act 2022 (c. 31), s. 186(6), Sch. 4 para. 15; S.I. 2022/734, reg. 2(a), Sch. (with regs. 13, 29, 30)

F243 Words in s. 39(1) omitted (1.4.2013) by virtue of Health and Social Care Act 2012 (c. 7), s. 306(4), Sch. 5 para. 28(2)(a); S.I. 2013/160, art. 2(2) (with arts. 7-9)

F244 Words in s. 39(1) substituted (1.4.2007) by The References to Health Authorities Order 2007 (S.I. 2007/961), art. 3, Sch. para. 13(8)(a)

F245 Words in s. 39(1) substituted (28.6.1995 for certain purposes, otherwise 1.4.1996) by 1995 c. 17, s. 2(1)(3), 8, Sch. 1, Pt. III, para. 107(5)(a)

F246 Words in s. 39(1)(b) inserted (1.4.2013) by Health and Social Care Act 2012 (c. 7), s. 306(4), Sch. 5 para. 28(2)(c); S.I. 2013/160, art. 2(2) (with arts. 7-9)

F247 Words in s. 39 substituted (1.7.2022) by Health and Care Act 2022 (c. 31), s. 186(6), Sch. 1 para. 1(1)(2); S.I. 2022/734, reg. 2(a), Sch. (with regs. 13, 29, 30)

F248 Words in s. 39(1)(b) substituted (1.4.2007) by The References to Health Authorities Order 2007 (S.I. 2007/961), art. 3, Sch. para. 13(8)(b)

F249 Words in s. 39(1) inserted (1.4.2007) by The References to Health Authorities Order 2007 (S.I. 2007/961), art. 3, Sch. para. 13(8)(c)

F250 Words in s. 39(1) inserted (1.4.2013) by Health and Social Care Act 2012 (c. 7), s. 306(4), Sch. 5 para. 28(2)(f); S.I. 2013/160, art. 2(2) (with arts. 7-9)

F251 Words in s. 39(1) inserted (1.4.2007) by The References to Health Authorities Order 2007 (S.I. 2007/961), art. 3, Sch. para. 13(8)(d)

F252 S. 39(1ZA) inserted (1.4.2013) by Health and Social Care Act 2012 (c. 7), s. 306(4), Sch. 5 para. 28(3); S.I. 2013/160, art. 2(2) (with arts. 7-9)

F253 S. 39(1A)(1B) inserted (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 31(2), 56 (with Sch. 10); S.I. 2008/1900, art. 2(h) (with art. 3, Sch.)

F254 S. 39(2) repealed (28.6.1995 for certain purposes, otherwise 1.4.1996) by 1995 c. 17, ss. 2(1)(3), 5(1), 8, Sch. 1, Pt. III, para. 107(5)(b), Sch. 3 (with Sch. 2 para. 6)

[39A F255 Information to facilitate guardianship orders. E+W

Where a court is minded to make a guardianship order in respect of any offender, it may request the local social services authority for the area in which the offender resides or last resided, or any other local social services authority that appears to the court to be appropriate—

(a) to inform the court whether it or any other person approved by it is willing to receive the offender into guardianship; and

(b) if so, to give such information as it reasonably can about how it or the other person could be expected to exercise in relation to the offender the powers conferred by section 40(2) below;

and that authority shall comply with any such request.]

Textual Amendments

F255 S. 39A inserted (E.W.) (1.10.1992)by Criminal Justice Act 1991 (c. 53, SIF 39:1), s. 27(1) (with saving in s. 28); S.I. 1992/333, art. 2(2), Sch.2.

40 Effect of hospital orders, guardianship orders and interim hospital orders. E+W

(1) A hospital order shall be sufficient authority—

(a) for a constable, an [F256 approved mental health professional] or any other person directed to do so by the court to convey the patient to the hospital specified in the order within a period of 28 days; and

(b) for the managers of the hospital to admit him at any time within that period and thereafter detain him in accordance with the provisions of this Act.

(2) A guardianship order shall confer on the authority or person named in the order as guardian the same powers as a guardianship application made and accepted under Part II of this Act.

(3) Where an interim hospital order is made in respect of an offender—

(a) a constable or any other person directed to do so by the court shall convey the offender to the hospital specified in the order within the period mentioned in section 38(4) above; and

(b) the managers of the hospital shall admit him within that period and thereafter detain him in accordance with the provisions of section 38 above.

(4) A patient who is admitted to a hospital in pursuance of a hospital order, or placed under guardianship by a guardianship order, shall, subject to the provisions of this subsection, be treated for the purposes of the provisions of this Act mentioned in Part I of Schedule 1 to this Act as if he had been so admitted or placed on the date of the order in pursuance of an application for admission for treatment or a guardianship application, as the case may be, duly made under Part II of this Act, but subject to any modifications of those provisions specified in that Part of that Schedule.

(5) Where a patient is admitted to a hospital in pursuance of a hospital order, or placed under guardianship by a guardianship order, any previous application, hospital order or guardianship order by virtue of which he was liable to be detained in a hospital or subject to guardianship shall cease to have effect; but if the first-mentioned order, or the conviction on which it was made, is quashed on appeal, this subsection shall not apply and section 22 above shall have effect as if during any period for which the patient was liable to be detained or subject to guardianship under the order, he had been detained in custody as mentioned in that section.

[F257 (6) Where—

(a) a patient admitted to a hospital in pursuance of a hospital order is absent without leave;

(b) a warrant to arrest him has been issued under section 72 of the M3 Criminal Justice Act 1967; and

(c) he is held pursuant to the warrant in any country or territory other than the United Kingdom, any of the Channel Islands and the Isle of Man,

he shall be treated as having been taken into custody under section 18 above on first being so held.]

Textual Amendments

F256 Words in s. 40(1)(a) substituted (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 21, 56, Sch. 2 para. 7(e) (with Sch. 10); S.I. 2008/1900, art. 2(d) (with art. 3, Sch.); S.I. 2008/2561, art. 2(b) (with art. 3 , Sch.)

F257 S. 40(6) inserted (1.4.1996) by 1995 c. 52, ss. 2(4), 7(2)

Modifications etc. (not altering text)

C32 S. 40(5) modified (E.W.) (1.1.1992) by Criminal Procedure (Insanity and Unfitness to Plead) Act 1991 (c. 25, SIF 39:1), s. 5(1), Sch. 1 para. 2(3) (with saving in s. 8); S.I. 1991/2488, art. 2

Marginal Citations

M3 1967 c. 80.

Restriction orders E+W+S

41 Power of higher courts to restrict discharge from hospital. E+W

(1) Where a hospital order is made in respect of an offender by the Crown Court, and it appears to the court, having regard to the nature of the offence, the antecedents of the offender and the risk of his committing further offences if set at large, that it is necessary for the protection of the public from serious harm so to do, the court may, subject to the provisions of this section, further order that the offender shall be subject to the special restrictions set out in this section F258 . . . ; and an order under this section shall be known as “a restriction order”.

(2) A restriction order shall not be made in the case of any person unless at least one of the registered medical practitioners whose evidence is taken into account by the court under section 37(2)(a) above has given evidence orally before the court.

(3) The special restrictions applicable to a patient in respect of whom a restriction order is in force are as follows—

(a) none of the provisions of Part II of this Act relating to the duration, renewal and expiration of authority for the detention of patients shall apply, and the patient shall continue to be liable to be detained by virtue of the relevant hospital order until he is duly discharged under the said Part II or absolutely discharged under section 42, 73, 74 or 75 below;

[F259 (aa) none of the provisions of Part II of this Act relating to [F260 community treatment orders and community patients] shall apply;]

(b) no application shall be made to [F261 the appropriate tribunal] in respect of a patient under section 66 or 69(1) below;

(c) the following powers shall be exercisable only with the consent of the Secretary of State, namely—

(i) power to grant leave of absence to the patient under section 17 above;

(ii) power to transfer the patient in pursuance of regulations under section 19 above [F262 or in pursuance of subsection 3 of that section]; and

(iii) power to order the discharge of the patient under section 23 above;

and if leave of absence is granted under the said section 17 power to recall the patient under that section shall vest in the Secretary of State as well as the [F263 responsible clinician] ; and

(d) the power of the Secretary of State to recall the patient under the said section 17 and power to take the patient into custody and return him under section 18 above may be exercised at any time;

and in relation to any such patient section 40(4) above shall have effect as if it referred to Part II of Schedule 1 to this Act instead of Part I of that Schedule.

(4) A hospital order shall not cease to have effect under section 40(5) above if a restriction order in respect of the patient is in force at the material time.

(5) Where a restriction order in respect of a patient ceases to have effect while the relevant hospital order continues in force, the provisions of section 40 above and Part I of Schedule 1 to this Act shall apply to the patient as if he had been admitted to the hospital in pursuance of a hospital order (without a restriction order) made on the date on which the restriction order ceased to have effect.

(6) While a person is subject to a restriction order the [F263 responsible clinician] shall at such intervals (not exceeding one year) as the Secretary of State may direct examine and report to the Secretary of State on that person; and every report shall contain such particulars as the Secretary of State may require.

Textual Amendments

F258 Words in s. 41(1) omitted (1.10.2007) and repealed (3.11.2008) by virtue of Mental Health Act 2007 (c. 12), ss. 40(1), 55, 56, Sch. 11 Pt. 8 (with Sch. 10); S.I. 2007/2798, art. 2(d); S.I. 2008/1900, art. 2(p) (with art. 3, Sch)

F259 S. 41(3)(aa) inserted (1.4.1996) by 1995 c. 52, ss. 1(2), 7(2), Sch. 1, para. 5

F260 Words in s. 41(3)(aa) substituted (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 32, 56, Sch. 3 para. 17 (with Sch. 10); S.I. 2008/1210, art. 2(b) (with art. 4)

F261 Words in s. 41(3)(b) substituted (3.11.2008) by The Transfer of Tribunal Functions Order 2008 (S.I. 2008/2833), art. 6, Sch. 3 para. 41

F262 Words in s. 41(3)(c)(ii) inserted (1.10.1997) by 1997 c. 43, s. 49(2); S.I.1997/2200, art. 2

F263 Words in s. 41(3)(c)(6) substituted (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 10(6), 56 (with Sch. 10); S.I. 2008/1900, art. 2(b) (with art. 3, Sch.)

Modifications etc. (not altering text)

C33 S. 41(1) modified (28.3.2009 for certain purposes, otherwise 31.10.2008) by Armed Forces Act 2006 (c. 52), ss. 169, 383, Sch. 4 para. 2; S.I. 2009/812, art. 3(a) (with transitional provisions in S.I. 2009/1059); S.I. 2009/1167, art. 4

42 Powers of Secretary of State in respect of patients subject to restriction orders. E+W+S

(1) If the Secretary of State is satisfied that in the case of any patient a restriction order is no longer required for the protection of the public from serious harm, he may direct that the patient shall cease to be subject to the special restrictions set out in section 41(3) above; and where the Secretary of State so directs, the restriction order shall cease to have effect, and section 41(5) above shall apply accordingly.

(2) At any time while a restriction order is in force in respect of a patient, the Secretary of State may, if he thinks fit, by warrant discharge the patient from hospital, either absolutely or subject to conditions; and where a person is absolutely discharged under this subsection, he shall thereupon cease to be liable to be detained by virtue of the relevant hospital order, and the restriction order shall cease to have effect accordingly.

(3) The Secretary of State may at any time during the continuance in force of a restriction order in respect of a patient who has been conditionally discharged under subsection (2) above by warrant recall the patient to such hospital as may be specified in the warrant.

(4) Where a patient is recalled as mentioned in subsection (3) above—

(a) if the hospital specified in the warrant is not the hospital from which the patient was conditionally discharged, the hospital order and the restriction order shall have effect as if the hospital specified in the warrant were substituted for the hospital specified in the hospital order;

(b) in any case, the patient shall be treated for the purposes of section 18 above as if he had absented himself without leave from the hospital specified in the warrant F264 . . . .

(5) If a restriction order in respect of a patient ceases to have effect after the patient has been conditionally discharged under this section, the patient shall, unless previously recalled under subsection (3) above, be deemed to be absolutely discharged on the date when the order ceases to have effect, and shall cease to be liable to be detained by virtue of the relevant hospital order accordingly.

(6) The Secretary of State may, if satisfied that the attendance at any place in Great Britain of a patient who is subject to a restriction order is desirable in the interests of justice or for the purposes of any public inquiry, direct him to be taken to that place; and where a patient is directed under this subsection to be taken to any place he shall, unless the Secretary of State otherwise directs, be kept in custody while being so taken, while at that place and while being taken back to the hospital in which he is liable to be detained.

Textual Amendments

F264 Words in s. 42(4)(b) omitted (1.10.2007) and repealed (3.11.2008) by virtue of Mental Health Act 2007 (c. 12), ss. 40(2), 55, 56, Sch. 11 Pt. 8 (with Sch. 10); S.I. 2007/2798, art. 2(d); S.I. 2008/1900, art. 2(p) (with art. 3, Sch.)

43 Power of magistrates’ courts to commit for restriction order. E+W

(1) If in the case of a person of or over the age of 14 years who is convicted by a magistrates’ court of an offence punishable on summary conviction with imprisonment—

(a) the conditions which under section 37(1) above are required to be satisfied for the making of a hospital order are satisfied in respect of the offender; but

(b) it appears to the court, having regard to the nature of the offence, the antecedents of the offender and the risk of his committing further offences if set at large, that if a hospital order is made a restriction order should also be made,

the court may, instead of making a hospital order or dealing with him in any other manner, commit him in custody to the Crown Court to be dealt with in respect of the offence.

(2) Where an offender is committed to the Crown Court under this section, the Crown Court shall inquire into the circumstances of the case and may—

(a) if that court would have power so to do under the foregoing provisions of this Part of this Act upon the conviction of the offender before that court of such an offence as is described in section 37(1) above, make a hospital order in his case, with or without a restriction order;

(b) if the court does not make such an order, deal with the offender in any other manner in which the magistrates’ court might have dealt with him.

(3) The Crown Court shall have the same power to make orders under sections 35, 36 and 38 above in the case of a person committed to the court under this section as the Crown Court has under those sections in the case of an accused person within the meaning of section 35 or 36 above or of a person convicted before that court as mentioned in section 38 above.

[F265 (4) The powers of a magistrates' court under [F266 section 14 [F267 , 16 or 16A] of the Sentencing Code] (which enable such a court to commit an offender to the Crown Court where the court is of the opinion, or it appears to the court, as mentioned in the section in question) shall also be exercisable by a magistrates' court where it is of that opinion (or it so appears to it) unless a hospital order is made in the offender’s case with a restriction order.]

(5) The power of the Crown Court to make a hospital order, with or without a restriction order, in the case of a person convicted before that court of an offence may, in the same circumstances and subject to the same conditions, be exercised by such a court in the case of a person committed to the court under section 5 of the M4 Vagrancy Act 1824 (which provides for the committal to the Crown Court of persons who are incorrigible rogues within the meaning of that section).

Textual Amendments

F265 S. 43(4) substituted (18.6.2012 for specified purposes, 5.11.2012 for specified purposes; 28.5.2013 for specified purposes) by Criminal Justice Act 2003 (c. 44), s. 336(3)(4), Sch. 3 para. 55(2); S.I. 2012/1320, art. 4(1)(c)(2)(3) (with art. 5) (see S.I. 2012/2574, art. 4(2) and S.I. 2013/1103, art. 4); S.I. 2012/2574, art. 2(2)(3), Sch. (with arts. 3, 4) (as amended (4.11.2012) by S.I. 2012/2761, art. 2) (with S.I. 2013/1103, art. 4); S.I. 2013/1103, art. 2(1)(c)(2)(3) (with arts. 3, 4)

F266 Words in s. 43(4) substituted (1.12.2020) by Sentencing Act 2020 (c. 17), s. 416(1), Sch. 24 para. 74 (with Sch. 24 para. 447, Sch. 27); S.I. 2020/1236, reg. 2

F267 Words in s. 43(4) substituted (30.4.2021) by Counter-Terrorism and Sentencing Act 2021 (c. 11), s. 50(1)(i), Sch. 13 para. 15

Marginal Citations

M4 1824 c. 83.

44 Committal to hospital under s. 43. E+W

(1) Where an offender is committed under section 43(1) above and the magistrates’ court by which he is committed is satisfied on written or oral evidence that arrangements have been made for the admission of the offender to a hospital in the event of an order being made under this section, the court may, instead of committing him in custody, by order direct him to be admitted to that hospital, specifying it, and to be detained there until the case is disposed of by the Crown Court, and may give such directions as it thinks fit for this production from the hospital to attend the Crown Court by which his case is to be dealt with.

(2) The evidence required by subsection (1) above shall be given by the [F268 approved clinician who would have overall responsibility for the offender's case] or by some other person representing the managers of the hospital in question.

(3) The power to give directions under section 37(4) above, section 37(5) above and section 40(1) above shall apply in relation to an order under this section as they apply in relation to a hospital order, but as if references to the period of 28 days mentioned in section 40(1) above were omitted; and subject as aforesaid an order under this section shall, until the offender’s case is disposed of by the Crown Court, have the same effect as a hospital order together with a restriction order F269 . . . .

Textual Amendments

F268 Words in s. 44(2) substituted (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 10(7), 56 (with Sch. 10); S.I. 2008/1900, art. 2(b) (with art. 3, Sch.)

F269 Words in s. 44(3) omitted (1.10.2007) and repealed (3.11.2008) by virtue of Mental Health Act 2007 (c. 12), ss. 40(3)(a)(7), 55, 56, Sch. 11 Pt. 8 (with Sch. 10); S.I. 2007/2798, art. 2(d); S.I. 2008/1900, art. 2(p) (with art. 3, Sch.)

45 Appeals from magistrates’ courts. E+W

(1) Where on the trial of an information charging a person with an offence a magistrates’ court makes a hospital order or guardianship order in respect of him without convicting him, he shall have the same right of appeal against the order as if it had been made on his conviction; and on any such appeal the Crown Court shall have the same powers as if the appeal had been against both conviction and sentence.

(2) An appeal by a child or young person with respect to whom any such order has been made, whether the appeal is against the order or against the finding upon which the order was made, may be brought by him or by his parent or guardian on his behalf.

[F270 Hospital and limitation directions E+W

Textual Amendments

F270 Ss. 45A, 45B inserted (1.10.1997) by 1997 c. 43, ss. 46; S.I. 1997/2200, art. 2 (with saving in art. 5(1))

[F271 45A Power of higher courts to direct hospital admission. E+W

(1) This section applies where, in the case of a person convicted before the Crown Court of an offence the sentence for which is not fixed by law—

(a) the conditions mentioned in subsection (2) below are fulfilled; and

(b) F272 . . . , the court considers making a hospital order in respect of him before deciding to impose a sentence of imprisonment (“the relevant sentence”) in respect of the offence.

(2) The conditions referred to in subsection (1) above are that the court is satisfied, on the written or oral evidence of two registered medical practitioners—

(a) that the offender is suffering from [F273 mental disorder] ;

(b) that the mental disorder from which the offender is suffering is of a nature or degree which makes it appropriate for him to be detained in a hospital for medical treatment; and

[F274 (c) that appropriate medical treatment is available for him.]

(3) The court may give both of the following directions, namely—

(a) a direction that, instead of being removed to and detained in a prison, the offender be removed to and detained in such hospital as may be specified in the direction (in this Act referred to as a “hospital direction”); and

(b) a direction that the offender be subject to the special restrictions set out in section 41 above (in this Act referred to as a “limitation direction”).

(4) A hospital direction and a limitation direction shall not be given in relation to an offender unless at least one of the medical practitioners whose evidence is taken into account by the court under subsection (2) above has given evidence orally before the court.

(5) A hospital direction and a limitation direction shall not be given in relation to an offender unless the court is satisfied on the written or oral evidence of the [F275 approved clinician who would have overall responsibility for his case] , or of some other person representing the managers of the hospital that arrangements have been made—

(a) for his admission to that hospital; and

(b) for his admission to it within the period of 28 days beginning with the day of the giving of such directions;

and the court may, pending his admission within that period, give such directions as it thinks fit for his conveyance to and detention in a place of safety.

(6) If within the said period of 28 days it appears to the Secretary of State that by reason of an emergency or other special circumstances it is not practicable for the patient to be received into the hospital specified in the hospital direction, he may give instructions for the admission of the patient to such other hospital as appears to be appropriate instead of the hospital so specified.

(7) Where such instructions are given—

(a) the Secretary of State shall cause the person having the custody of the patient to be informed, and

(b) the hospital direction shall have effect as if the hospital specified in the instructions were substituted for the hospital specified in the hospital direction.

(8) Section 38(1) and (5) and section 39 above shall have effect as if any reference to the making of a hospital order included a reference to the giving of a hospital direction and a limitation direction.

(9) A hospital direction and a limitation direction given in relation to an offender shall have effect not only as regards the relevant sentence but also (so far as applicable) as regards any other sentence of imprisonment imposed on the same or a previous occasion.

(10) F276 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(11) F276 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .]

Textual Amendments

F271 S. 45A inserted (1.10.1997) by 1997 c. 43, s. 46; S.I. 1997/2200, art. 2 (with saving in art. 5(1))

F272 Words in s. 45A(1)(b) repealed (4.4.2005) by Criminal Justice Act 2003 (c. 44), ss. 304, 332, 336, Sch. 32 para. 39, Sch. 37 Pt. 7; S.I. 2005/950, art 2(1), Sch. 1 paras. 42(18), 44(4)(g) (with art. 2(2), Sch. 2 (as amended by S.I. 2005/2122, art. 2))

F273 Words in s. 45A(2)(a) substituted (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 1, 56, Sch. 1 para. 9 (with Sch. 10); S.I. 2008/1900, art. 2(a) (with art. 3, Sch.)

F274 S. 45A(2)(c) substituted (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 4(6), 56 (with Sch. 10); S.I. 2008/1900, art. 2(b) (with art. 3, Sch.)

F275 Words in s. 45A(5) substituted (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 10(8), 56 (with Sch. 10); S.I. 2008/1900, art. 2(b) (with art. 3, Sch.)

F276 S. 45A(10)(11) repealed (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 55, 56, Sch. 11 Pt. 1 (with Sch. 10); S.I. 2008/1900, art. 2(p) (with art. 3, Sch.)

Modifications etc. (not altering text)

C34 S. 45A extended (1.10.1997) by 1997 c. 43, s. 47(1)(b); S.I. 1997/2200, art. 2

[F277 45B Effect of hospital and limitation directions. E+W

(1) A hospital direction and a limitation direction shall be sufficient authority—

(a) for a constable or any other person directed to do so by the court to convey the patient to the hospital specified in the hospital direction within a period of 28 days; and

(b) for the managers of the hospital to admit him at any time within that period and thereafter detain him in accordance with the provisions of this Act.

(2) With respect to any person—

(a) a hospital direction shall have effect as a transfer direction; and

(b) a limitation direction shall have effect as a restriction direction.

(3) While a person is subject to a hospital direction and a limitation direction the [F278 responsible clinician] shall at such intervals (not exceeding one year) as the Secretary of State may direct examine and report to the Secretary of State on that person; and every report shall contain such particulars as the Secretary of State may require.]]

Textual Amendments

F277 S. 45B inserted (1.10.1997) by 1997 c. 43, s. 46; S.I. 1997/2200, art. 2 (with saving in art. 5(1))

F278 Words in s. 45B(3) substituted (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 10(9)(a), 56 (with Sch. 10); S.I. 2008/1900, art. 2(b) (with art. 3, Sch.)

Detention during Her Majesty’s pleasure E+W

46 Persons ordered to be kept in custody during Her Majesty’s pleasure. U.K.

F279 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F279 S. 46 repealed (29.4.2005) by Armed Forces Act 1996 (c. 46), ss. 35(2), 36, Sch. 7 Pt. III: S.I. 2005/1119, art. 2

46 Persons ordered to be kept in custody during Her Majesty’s pleasure. E+W

F279 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F279 S. 46 repealed (29.4.2005) by Armed Forces Act 1996 (c. 46), ss. 35(2), 36, Sch. 7 Pt. III: S.I. 2005/1119, art. 2

Transfer to hospital of prisoners, etc. E+W

47 Removal to hospital of persons serving sentences of imprisonment, etc. E+W

(1) If in the case of a person serving a sentence of imprisonment the Secretary of State is satisfied, by reports from at least two registered medical practitioners—

(a) that the said person is suffering from [F280 mental disorder]; and

(b) that the mental disorder from which that person is suffering is of a nature or degree which makes it appropriate for him to be detained in a hospital for medical treatment[F281 ; and

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

the Secretary of State may, if he is of the opinion having regard to the public interest and all the circumstances that it is expedient so to do, by warrant direct that that person be removed to and detained in such hospitalF282 . . . as may be specified in the direction; and a direction under this section shall be known as “a transfer direction”.

(2) A transfer direction shall cease to have effect at the expiration of the period of 14 days beginning with the date on which it is given unless within that period the person with respect to whom it was given has been received into the hospital specified in the direction.

(3) A transfer direction with respect to any person shall have the same effect as a hospital order made in his case.

(4) F283 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(5) References in this Part of this Act to a person serving a sentence of imprisonment include references—

(a) to a person detained in pursuance of any sentence or order for detention made by a court in criminal proceedings [F284 or service disciplinary proceedings](other than an order [F285 made in consequence of a finding of insanity or unfitness to stand trial][F286 or a sentence of service detention within the meaning of the Armed Forces Act 2006]);

(b) to a person committed to custody under section 115(3) of the M5 Magistrates’ Courts Act 1980 (which relates to persons who fail to comply with an order to enter into recognisances to keep the peace or be of good behaviour); and

(c) to a person committed by a court to a prison or other institution to which the M6 Prison Act 1952 applies in default of payment of any sum adjudged to be paid on his conviction.

[F287 (6) In subsection (5)(a) “service disciplinary proceedings” means proceedings in respect of a service offence within the meaning of the Armed Forces Act 2006.]

Textual Amendments

F280 Words in s. 47(1)(a) substituted (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 1, 56, Sch. 1 para. 10 (with Sch. 10); S.I. 2008/1900, art. 2(a) (with art. 3, Sch.)

F281 S. 47(1)(c) and preceding word substituted (3.11.2008) for words in s. 47(1)(b) by Mental Health Act 2007 (c. 12), ss. 4(7), 56 (with Sch. 10); S.I. 2008/1900, art. 2(b) (with art. 3, Sch.)

F282 Words in s. 47(1) repealed (1.10.1997) by 1997 c. 43, ss. 49(3), 56(2), Sch. 6; S.I. 1997/ 2200, art. 2 (with saving in art. 5(6))

F283 S. 47(4) repealed (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 55, 56, Sch. 11 Pt. 1 (with Sch. 10); S.I. 2008/1900, art. 2(p) (with art. 3, Sch.)

F284 Words in s. 47(5)(a) inserted (28.3.2009 for certain purposes, otherwise 31.10.2009) by Armed Forces Act 2006 (c. 52), ss. 378, 383, Sch. 16 para. 97(2)(a); S.I. 2009/812, art. 3(a) (with the transitional provisions in S.I. 2009/1059); S.I. 2009/1167, art. 4

F285 Words in s. 47(5)(a) substituted (31.3.2005) by Domestic Violence, Crime and Victims Act 2004 (c. 28), ss. 58(1), 60, Sch. 10 para. 18 (with Sch. 12 para. 8); S.I. 2005/579, art. 3(g)(k)

F286 Words in s. 47(5)(a) inserted (28.3.2009 for certain purposes, otherwise 31.10.2009) by Armed Forces Act 2006 (c. 52), ss. 378, 383, Sch. 16 para. 97(2)(b); S.I. 2009/812, art. 3(a) (with the transitional provisions in S.I. 2009/1059); S.I. 2009/1167, art. 4

F287 S. 47(6) inserted (28.3.2009 for certain purposes, otherwise 31.10.2009) by Armed Forces Act 2006 (c. 52), ss. 378, 383, Sch. 16 para. 97(3); S.I. 2009/812, art. 3(a) (with the transitional provisions in S.I. 2009/1059); S.I. 2009/1167, art. 4

Modifications etc. (not altering text)

C35 S. 47 excluded (E.W.) (1.1.1992) by Criminal Procedure (Insanity and Unfitness to Plead) Act 1991 (c. 25, SIF 39:1), s. 5(1), Sch. 1 para. 2(4) (with saving in s. 8); S.I. 1991/2488, art. 2

C36 S. 47 extended (1.10.1997) by 1997 c. 43, s. 47(1)(c); S.I. 1997/2200, art. 2

C37 S. 47(5)(a) modified (24.4.2009 for certain purposes, otherwise 31.10.2009) by The Armed Forces Act 2006 (Transitional Provisions etc) Order 2009 (S.I. 2009/1059), art. 205, Sch. 1 para. 25

Marginal Citations

M5 1980 c. 43.

M6 1952 c. 52.

48 Removal to hospital of other prisoners. E+W

(1) If in the case of a person to whom this section applies the Secretary of State is satisfied by the same reports as are required for the purposes of section 47 above that

[F288 (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;][F289 and

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

the Secretary of State shall have the same power of giving a transfer direction in respect of him under that section as if he were serving a sentence of imprisonment.

(2) This section applies to the following persons, that is to say—

(a) persons detained in a prisonor remand centre, not being persons serving a sentence of imprisonment or persons falling within the following paragraphs of this subsection;

(b) persons remanded in custody by a magistrates’ court;

(c) civil prisoners, that is to say, persons committed by a court to prison for a limited term F290 . . . , who are not persons falling to be dealt with under section 47 above;

(d) persons detained under the M7 Immigration Act 1971 [F291 or under section 62 of the Nationality, Immigration and Asylum Act 2002 (detention by Secretary of State)].

(3) Subsections (2) [F292 and (3)] of section 47 above shall apply for the purposes of this section and of any transfer direction given by virtue of this section as they apply for the purposes of that section and of any transfer direction under that section.

Textual Amendments

F288 S. 48(1)(a)(b) substituted (3.11.2008) for words in s. 48(1) by Mental Health Act 2007 (c. 12), ss. 1, 56, Sch. 1 para. 11(a) (with Sch. 10); S.I. 2008/1900, art. 2(a), (with art. 3, Sch.)

F289 S. 48(1)(c) and preceding word inserted (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 5(3), 56 (with Sch. 10); S.I. 2008/1900, art. 2(b), (with art. 3, Sch.)

F290 Words in s. 48(2)(c) repealed (22.7.2004) by Statute Law (Repeals) Act 2004 (c. 14), ss. 1(1), {Sch. 1 Pt. 17 Group 8}

F291 Words in s. 48(2)(d) added (10.2.2003) by 2002 c. 41, ss. 62(10)(a), 162 (with s. 159); S.I. 2003/1, art. 2, Sch.

F292 Words in s. 48(3) substituted (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 1, 56, Sch. 1 para. 11(b) (with Sch. 10); S.I. 2008/1900, art. 2(a), (with art. 3, Sch.)

Marginal Citations

M7 1971 c. 77.

49 Restriction on discharge of prisoners removed to hospital. E+W

(1) Where a transfer direction is given in respect of any person, the Secretary of State, if he thinks fit, may by warrant further direct that that person shall be subject to the special restrictions set out in section 41 above; and where the Secretary of State gives a transfer direction in respect of any such person as is described in paragraph (a) or (b) of section 48(2) above, he shall also give a direction under this section applying those restrictions to him.

(2) A direction under this section shall have the same effect as a restriction order made under section 41 above and shall be known as “a restriction direction”.

(3) While a person is subject to a restriction direction the [F293 responsible clinician] shall at such intervals (not exceeding one year) as the Secretary of State may direct examine and report to the Secretary of State on that person; and every report shall contain such particulars as the Secretary of State may require.

Textual Amendments

F293 Words in s. 49(3) substituted (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 10(9)(b), 56 (with Sch. 10); S.I. 2008/1900, art. 2(b) (with art. 3, Sch.)

50 Further provisions as to prisoners under sentence. E+W

(1) Where a transfer direction and a restriction direction have been given in respect of a person serving a sentence of imprisonment and before [F294 his release date] the Secretary of State is notified by the [F295 responsible clinician] , any other [F296 approved clinician] or [F297 the appropriate tribunal] that that person no longer requires treatment in hospital for mental disorder or that no effective treatment for his disorder can be given in the hospital to which he has been removed, the Secretary of State may—

(a) by warrant direct that he be remitted to any prison or other institution in which he might have been detained if he had not been removed to hospital, there to be dealt with as if he had not been so removed; or

(b) exercise any power of releasing him on licence or discharging him under supervision which would have been exercisable if he had been remitted to such a prison or institution as aforesaid,

and on his arrival in the prison or other institution or, as the case may be, his release or discharge as aforesaid, the transfer direction and the restriction direction shall cease to have effect.

[F298 (2) A restriction direction in the case of a person serving a sentence of imprisonment shall cease to have effect, if it has not previously done so, on his release date.

(3) In this section, references to a person’s release date are to the day (if any) on which he would be entitled to be released (whether unconditionally or on licence) from any prison or other institution in which he might have been detained if the transfer direction had not been given; and in determining that day there shall be disregarded—

(a) any powers that would be exercisable by the Parole Board if he were detained in such a prison or other institution, and

(b) any practice of the Secretary of State in relation to the early release under discretionary powers of persons detained in such a prison or other institution.]

(4) For the purposes of section 49(2) of the M8 Prison Act 1952 (which provides for discounting from the sentences of certain prisoners periods while they are unlawfully at large) a patient who, having been transferred in pursuance of a transfer direction from any such institution as is referred to in that section, is at large in circumstances in which he is liable to be taken into custody under any provision of this Act, shall be treated as unlawfully at large and absent from that institution.

[F299 (5) The preceding provisions of this section shall have effect as if—

(a) the reference in subsection (1) to a transfer direction and a restriction direction having been given in respect of a person serving a sentence of imprisonment included a reference to a hospital direction and a limitation direction having been given in respect of a person sentenced to imprisonment;

(b) the reference in subsection (2) to a restriction direction included a reference to a limitation direction; and

(c) references in subsections (3) and (4) to a transfer direction included references to a hospital direction.]

Textual Amendments

F294 Words in s. 50(1) substituted (20.1.2004) by Criminal Justice Act 2003 (c. 44), ss. 294(2), 336; S.I. 2004/81, art. 2(2)(b)

F295 Words in s. 50(1) substituted (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 11(2)(a), 56 (with Sch. 10); S.I. 2008/1900, art. 2(b) (with art. 3, Sch.)

F296 Words in s. 50(1) substituted (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 11(2)(b), 56 (with Sch. 10); S.I. 2008/1900, art. 2(b) (with art. 3, Sch.)

F297 Words in s. 50(1) substituted (3.11.2008) by The Transfer of Tribunal Functions Order 2008 (S.I. 2008/2833), art. 6, Sch. 3 para. 42

F298 S. 50(2)(3) substituted (20.1.2004) by Criminal Justice Act 2003 (c. 44), ss. 294(3), 336; S.I. 2004/81, art. 2(2)(b)

F299 S. 50(5) added (1.10.1997) by 1997 c. 43, s. 55, Sch. 4, para 12(5); S.I. 1997/2200, art. 2

Marginal Citations

M8 1952 c. 52.

51 Further provisions as to detained persons. E+W

(1) This section has effect where a transfer direction has been given in respect of any such person as is described in paragraph (a) of section 48(2) above and that person is in this section referred to as “the detainee”.

(2) The transfer direction shall cease to have effect when the detainee’s case is disposed of by the court having jurisdiction to try or otherwise deal with him, but without prejudice to any power of that court to make a hospital order or other order under this Part of this Act in his case.

(3) If the Secretary of State is notified by the [F300 responsible clinician] , any other [F301 approved clinician] or [F302 the appropriate tribunal] at any time before the detainee’s case is disposed of by that court—

(a) that the detainee no longer requires treatment in hospital for mental disorder; or

(b) that no effective treatment for his disorder can be given at the hospital to which he has been removed,

the Secretary of State may by warrant direct that he be remitted to any place where he might have been detained if he had not been removed to hospital, there to be dealt with as if he had not been so removed, and on his arrival at the place to which he is so remitted the transfer direction shall cease to have effect.

(4) If (no direction having been given under subsection (3) above) the court having jurisdiction to try or otherwise deal with the detainee is satisfied on the written or oral evidence of the [F303 responsible clinician]—

(a) that the detainee no longer requires treatment in hospital for mental disorder; or

(b) that no effective treatment for his disorder can be given at the hospital to which he has been removed,

the court may order him to be remitted to any such place as is mentioned in subsection (3) above or [F304 , subject to section 25 of the Criminal Justice and Public Order Act 1994,] released on bail and on his arrival at that place or, as the case may be, his release on bail the transfer direction shall cease to have effect.

(5) If (no direction or order having been given or made under subsection (3) or (4) above) it appears to the court having jurisdiction to try or otherwise deal with the detainee—

(a) that it is impracticable or inappropriate to bring the detainee before the court; and

(b) that the conditions set out in subsection (6) below are satisfied,

the court may make a hospital order (with or without a restriction order) in his case in his absence and, in the case of a person awaiting trial, without convicting him.

(6) A hospital order may be made in respect of a person under subsection (5) above if the court—

(a) is satisfied, on the written or oral evidence of at least two registered medical practitioners, that

[F305 (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;][F306 and

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

(b) is of the opinion, after considering any depositions or other documents required to be sent to the proper officer of the court, that it is proper to make such an order.

(7) Where a person committed to the Crown Court to be dealt with under section 43 above is admitted to a hospital in pursuance of an order under section 44 above, subsections (5) and (6) above shall apply as if he were a person subject to a transfer direction.

Textual Amendments

F300 Words in s. 51(3) substituted (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 11(3)(a)(i), 56 (with Sch. 10); S.I. 2008/1900, art. 2(b) (with art. 3, Sch.)

F301 Words in s. 51(3) substituted (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 11(3)(a)(ii), 56 (with Sch. 10); S.I. 2008/1900, art. 2(b) (with art. 3, Sch.)

F302 Words in s. 51(3) substituted (3.11.2008) by The Transfer of Tribunal Functions Order 2008 (S.I. 2008/2833), art. 6, Sch. 3 para. 43

F303 Words in s. 51(4) substituted (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 11(3)(b), 56 (with Sch. 10); S.I. 2008/1900, art. 2(b) (with art. 3, Sch.)

F304 Words in s. 51(4) inserted (10.4.1995) by 1994 c. 33, s. 168, Sch. 10, para. 51; S.I. 1995/721, art. 2, Sch. Appendix A

F305 S. 51(6)(a)(i) substituted (3.11.2008) for words in s. 51(6)(a) by Mental Health Act 2007 (c. 12), ss. 1, 56, Sch. 1 para. 12 (with Sch. 10); S.I. 2008/1900, art. 2(a) (with art. 3, Sch.)

F306 S. 51(6)(a)(ii) and preceding word inserted (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 5(4), 56 (with Sch. 10); S.I. 2008/1900, art. 2(b) (with art. 3, Sch.)

52 Further provisions as to persons remanded by magistrates’ courts. E+W

(1) This section has effect where a transfer direction has been given in respect of any such person as is described in paragraph (b) of section 48(2) above; and that person is in this section referred to as “the accused”.

(2) Subject to subsection (5) below, the transfer direction shall cease to have effect on the expiration of the period of remand unless the accused is [F307 sent] in custody to the Crown Court for trial or to be otherwise dealt with.

(3) Subject to subsection (4) below, the power of further remanding the accused under section 128 of the M9 Magistrates’ Courts Act 1980 may be exercised by the court without his being brought before the court; and if the court further remands the accused in custody (whether or not he is brought before the court) the period of remand shall, for the purposes of this section, be deemed not to have expired.

(4) The court shall not under subsection (3) above further remand the accused in his absence unless he has appeared before the court within the previous six months.

(5) If the magistrates’ court is satisfied, on the written or oral evidence of the [F308 responsible clinician]—

(a) that the accused no longer requires treatment in hospital for mental disorder; or

(b) that no effective treatment for his disorder can be given in the hospital to which he has been removed,

the court may direct that the transfer direction shall cease to have effect notwithstanding that the period of remand has not expired or that the accused is [F309 sent] to the Crown Court as mentioned in subsection (2) above.

(6) If the accused is [F310 sent] to the Crown Court as mentioned in subsection (2) above and the transfer direction has not ceased to have effect under subsection (5) above, section 51 above shall apply as if the transfer direction given in his case were a direction given in respect of a person falling within that section.

(7) The magistrates’ court may, in the absence of the accused, [F311 send him to the Crown Court for trial under section 51 or 51A of the Crime and Disorder Act 1998] if—

(a) the court is satisfied, on the written or oral evidence of the [F308 responsible clinician] , that the accused is unfit to take part in the proceedings; and

(b) F312 ... the accused is represented by [F313 an authorised person].

Textual Amendments

F307 Word in s. 52(2) substituted (9.5.2005 for specified purposes, 18.6.2012 for specified purposes, 5.11.2012 for specified purposes, 28.5.2013 for specified purposes) by Criminal Justice Act 2003 (c. 44), s. 336(3)(4), Sch. 3 para. 55(3)(a); S.I. 2005/1267, art. 2(1)(2)(a), Sch. Pt. 1; S.I. 2012/1320, art. 4(1)(c)(2)(3) (with art. 5) (see S.I. 2012/2574, art. 4(2) and S.I. 2013/1103, art. 4); S.I. 2012/2574, art. 2(2)(3)(c), Sch. (with arts. 3, 4) (as amended (4.11.2012) by S.I. 2012/2761, art. 2) (with S.I. 2013/1103, art. 4); S.I. 2013/1103, art. 2(1)(c)(2)(3) (with arts. 3, 4)

F308 Words in s. 52(5)(7) substituted (3.11.2008) by Mental Health Act 2007 (c. 12) , ss. 11(4) , (with Sch. 10 ); S.I. 2008/1900 , art. 2(b) 56 (with art. 3 , Sch. )

F309 Word in s. 52(5) substituted (9.5.2005 for specified purposes, 18.6.2012 for specified purposes, 5.11.2012 for specified purposes, 28.5.2013 for specified purposes) by Criminal Justice Act 2003 (c. 44), s. 336(3)(4), Sch. 3 para. 55(3)(b); S.I. 2005/1267, art. 2(1)(2)(a), Sch. Pt. 1; S.I. 2012/1320, art. 4(1)(c)(2)(3) (with art. 5) (see S.I. 2012/2574, art. 4(2) and S.I. 2013/1103, art. 4); S.I. 2012/2574, art. 2(2)(3)(c), Sch. (with arts. 3, 4) (as amended (4.11.2012) by S.I. 2012/2761, art. 2) (with S.I. 2013/1103, art. 4); S.I. 2013/1103, art. 2(1)(c)(2)(3) (with arts. 3, 4)

F310 Word in s. 52(6) substituted (9.5.2005 for specified purposes, 18.6.2012 for specified purposes, 5.11.2012 for specified purposes, 28.5.2013 for specified purposes) by Criminal Justice Act 2003 (c. 44), s. 336(3)(4), Sch. 3 para. 55(3)(c); S.I. 2005/1267, art. 2(1)(2)(a), Sch. Pt. 1; S.I. 2012/1320, art. 4(1)(c)(2)(3) (with art. 5) (see S.I. 2012/2574, art. 4(2) and S.I. 2013/1103, art. 4); S.I. 2012/2574, art. 2(2)(3)(c), Sch. (with arts. 3, 4) (as amended (4.11.2012) by S.I. 2012/2761, art. 2) (with S.I. 2013/1103, art. 4); S.I. 2013/1103, art. 2(1)(c)(2)(3) (with arts. 3, 4)

F311 Words in s. 52(7) substituted (9.5.2005 for specified purposes, 18.6.2012 for specified purposes, 5.11.2012 for specified purposes, 28.5.2013 for specified purposes) by Criminal Justice Act 2003 (c. 44), s. 336(3)(4), Sch. 3 para. 55(3)(d); S.I. 2005/1267, art. 2(1)(2)(a), Sch. Pt. 1; S.I. 2012/1320, art. 4(1)(c)(2)(3) (with art. 5) (see S.I. 2012/2574, art. 4(2) and S.I. 2013/1103, art. 4); S.I. 2012/2574, art. 2(2)(3)(c), Sch. (with arts. 3, 4) (as amended (4.11.2012) by S.I. 2012/2761, art. 2) (with S.I. 2013/1103, art. 4); S.I. 2013/1103, art. 2(1)(c)(2)(3) (with arts. 3, 4)

F312 Words in s. 52(7)(b) repealed (9.5.2005 for specified purposes, 18.6.2012 for specified purposes, 5.11.2012 for specified purposes, 28.5.2013 for specified purposes) by Criminal Justice Act 2003 (c. 44), s. 336(3)(4), Sch. 3 paras. 55(3)(d), 37 Pt. 4; S.I. 2005/1267, art. 2(1)(2)(a), Sch. Pt. 1; S.I. 2012/1320, art. 4(1)(c)(d)(2)(3) (with art. 5) (see S.I. 2012/2574, art. 4(2) and S.I. 2013/1103, art. 4); S.I. 2012/2574, art. 2(2)(3)(c)(d), Sch. (with arts. 3, 4) (as amended (4.11.2012) by S.I. 2012/2761, art. 2) (with S.I. 2013/1103, art. 4); S.I. 2013/1103, art. 2(1)(c)(d)(2)(3) (with arts. 3, 4)

F313 Words in s. 52(7)(b) substituted (1.1.2010) by Legal Services Act 2007 (c. 29) , ss. 208 , 211 , Sch. 21 para. 57 (with ss. 29 , 192 , 193 ); S.I. 2009/3250 , art. 2(h) (subject to art. 6 , 9 )

Marginal Citations

M9 1980 c. 43 .

53 Further provisions as to civil prisoners and persons detained under [F314 the Immigration Acts]. E+W

(1) Subject to subsection (2) below, a transfer direction given in respect of any such person as is described in paragraph (c) or (d) of section 48(2) above shall cease to have effect on the expiration of the period during which he would, but for his removal to hospital, be liable to be detained in the place from which he was removed.

(2) Where a transfer direction and a restriction direction have been given in respect of any such person as is mentioned in subsection (1) above, then, if the Secretary of State is notified by the [F315 responsible clinician] , any other [F316 approved clinician] or [F317 the appropriate tribunal] at any time before the expiration of the period there mentioned—

(a) that that person no longer requires treatment in hospital for mental disorder; or

(b) that no effective treatment for his disorder can be given in the hospital to which he has been removed,

the Secretary of State may by warrant direct that he be remitted to any place where he might have been detained if he had not been removed to hospital, and on his arrival at the place to which he is so remitted the transfer direction and the restriction direction shall cease to have effect.

Textual Amendments

F314 S. 53: words in heading substituted (10.2.2003) by virtue of 2002 c. 41, ss. 62(10)(b), 162 (with s. 129); S.I. 2003/1, art. 2, Sch

F315 Words in s. 53(2) substituted (3.