Mental Health Act 1983
1983 c. 20
Be it enacted by the Queen’s most excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:—
Act modified (31.3.2005) by Army Act 1955 (c. 18), s. 116B(3), (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)
Act modified (31.3.2005) by Airforce Act 1955 (c. 19), s. 116B(3), (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)
Act modified (31.3.2005) by Naval Discipline Act 1957 (c. 53), s. 63B(3), (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)
"Senior courts" is substituted (1.10.2009) for "Supreme Court" or "Supreme Court of Judicature" in each place by Constitutional Reform Act 2005 (c. 4), ss. 59, 148, Sch. 11 para. 4; S.I. 2009/1604, art. 2(d)
Act applied in part (E.W.N.I.) (27.10.1960) by 1960 c. 65, s. 5A(4) (as inserted (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 32, 56, Sch. 4 para. 1 (with Sch. 10)); S.|. 2008/1900, {art. 2(i)} (with art. 3, Sch.)
Act applied in part (E.W.) (1.9.1968) by 1968 c. 19, s. 37A(5); S.I. 1968/325 (as inserted (3.11.2008 by Mental Health Act 2007 (c. 12), ss. 32, 56, Sch. 4 para. 2(3) (with Sch. 10)); S.I. 2008/1900, art. 2(i) (with art. 3, Sch.)
Act applied in part (1.9.1968) by 1968 c. 20, s. 43(3A); S.I. 1968/325 (as inserted (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 32, 56, Sch. 4 para. 3(3) (with Sch. 10)); S.I. 2008/1900, art. 2(i) (with art. 3, Sch.)
Act applied in part (1.9.1968) by 1968 c. 20, s. 43A(4); S.I. 1968/325 (as inserted (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 32, 56, Sch. 4 para. 3(4) (with Sch. 10)); S.I. 2008/1900, art. 2(i) (with art. 3, Sch.)
Act excluded (S.) by Mental Health (Scotland) Act 1984 (c. 36, SIF 85), ss. 17(2), 79(1)
Act modified by Repatriation of Prisoners Act 1984 (c. 47, SIF 39:1), s. 3, Sch. para. 5(1)(a)
Act modified (E.W.) (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
Act 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(1) (with saving in s. 8); S.I. 1991/2488, art. 2
Act: definition of "mental hospital" applied (E.W.) (1.10.1992) by Powers of Criminal Courts Act 1973 (c. 62, SIF 39:1), s. 3(3), Sch. 1A para. 5(10) (as inserted (1.10.1992) by Criminal Justice Act 1991 (c. 53, SIF 39:1), ss. 8(3), 9(2), Sch. 1 Pt. II; S.I. 1992/333, art. 2(2), Sch.2).
By Criminal Justice Act 1991 (c. 53, SIF 39:1), s. 101(1), Sch. 12 para.23; S.I. 1991/2208, art. 2(1), Sch.1 it is provided (14.10.1991) that in relation to any time before the commencement of s.70 of that 1991 Act (which came into force on 1.10.1992 by S.I. 1992/333, art. 2(2), Sch. 2) references in any enactment amended by that 1991 Act, to youth courts shall be construed as references to juvenile courts.
Act: functions (except under ss. 78, 106(5), Pt. VII, Sch. 2 paras. 1(b)(c)) transferred (W.) (1.7.1999) by S.I. 1999/672, art. 2, Sch. 1
Act (except ss. 25A, 25C-25H, 117, 140): functions not to be exercised by a primary care trust (1.4.2000) by virtue of S.I. 2000/695, art. 4(1), Sch. 4
Act applied (E.W.) (19.3.1997) by 1997 c. 17, s. 1(4)
Act applied (E.W) (19.3.1997) by 1984 c. 60, s. 63A(3A) (as inserted by 1997 c. 17, s. 3)
Act: functions transfered (3.11.2008) by The First-tier Tribunal and Upper Tribunal (Chambers) Order 2008 (S.I. 2008/2684), art. 5(h)
Part I Application of Act
1 Application of Act: “mental disorder”.
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.
C132
In this Act—
F2“mental disorder” means any disorder or disability of the mind; and
“mentally disordered” shall be construed accordingly;
F3. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F3. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F3. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
and other expressions shall have the meanings assigned to them in section 145 below.
F42A
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.
F53
Dependence on alcohol or drugs is not considered to be a disorder or disability of the mind for the purposes of subsection (2) above.
F64
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.
C27C28Part II Compulsory Admission to Hospital and Guardianship
Pt. II (ss. 2–34) modified by Mental Health (Scotland) Act 1984 (c. 36, SIF 85), ss. 17(2), 78(2)
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
2 Admission for assessment.
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.
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 F7mental disorder of a nature or degree which makes it appropriate for him to receive medical treatment in a hospital; and
b
F8. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
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 sectionF9; 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 F10(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.
F114
In this Act, references to appropriate medical treatment, in relation to a person suffering from mental disorder, are references to medical treatment which is appropriate in his case, taking into account the nature and degree of the mental disorder and all other circumstances of his case.
4 Admission for assessment in cases of emergency.
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 F12approved 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”.
5 Application in respect of patient already in hospital.
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 F13or 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.
F143
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 F15or 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 F15or 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 F16or 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 F16or a community patient .
7
In subsection (4) above “prescribed” means prescribed by an order made by the Secretary of State.
6 Effect of application for admission.
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
7 Application for guardianship.
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, F17. . . 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.
8 Effect of guardianship application, etc.
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, F18approved 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.
9 Regulations as to guardianship.
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.
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 F19approved 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.
F205
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).
General provisions as to applications and recommendations
11 General provisions as to applications.
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 F21approved mental health professional ; and every such application shall specify the qualification of the applicant to make the application.
F221A
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 F23approved 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.
F244
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
F25. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
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.
12 General provisions as to medical recommendations.
1
The recommendations required for the purposes of an application for the admission of a patient under this Part of this Act F26or 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.
C14C15C162
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.
F272A
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.
F283
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.
12ZAF915Agreement for exercise of approval function: England
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.
12ZBRequirement to exercise approval functions: England
1
The Secretary of State may impose a requirement on F1055NHS England (“F1055NHS 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 F1055NHS 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, F1055NHS 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 F1055NHS 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.
12ZCProvision of information for the purposes of section 12ZA or 12ZB
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
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.
12AF41Conflicts of interest
1
The appropriate national authority may make regulations as to the circumstances in which there would be a potential conflict of interest such that—
a
an approved mental health professional shall not make an application mentioned in section 11(1) above;
b
a registered medical practitioner shall not give a recommendation for the purposes of an application mentioned in section 12(1) above.
2
Regulations under subsection (1) above may make—
a
provision for the prohibitions in paragraphs (a) and (b) of that subsection to be subject to specified exceptions;
b
different provision for different cases; and
c
transitional, consequential, incidental or supplemental provision.
3
In subsection (1) above, “ the appropriate national authority ” means—
a
in relation to applications in which admission is sought to a hospital in England or to guardianship applications in respect of which the area of the relevant local social services authority is in England, the Secretary of State;
b
in relation to applications in which admission is sought to a hospital in Wales or to guardianship applications in respect of which the area of the relevant local social services authority is in Wales, the Welsh Ministers.
4
References in this section to the relevant local social services authority, in relation to a guardianship application, are references to the local social services authority named in the application as guardian or (as the case may be) the local social services authority for the area in which the person so named resides.
13F29Duty of approved mental health professionals to make applications for admission or guardianship.
F301
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 F31approved 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.
F323
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 F33make 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 F34that 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 F35approved mental health professional in contravention of the provisions of section 11(4) above F36or of regulations under section 12A, or as restricting the power of F37a local social services authority to make arrangements with an approved mental health professional to consider a patient's case or of an F35approved mental health professional to make any application under this Act.
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 F38an approved mental health professionalF39. . . to interview the patient and provide the managers with a report on his social circumstances.
15 Rectification of applications and recommendations.
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 recommendationsF40. . .
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.
Position of patients subject to detention or guardianship
16 Reclassification of patients.
F42. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
17 Leave of absence from hospital.
1
The F43responsible 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 F44that 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.
F452A
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 F46responsible 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 F47responsible 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, F48that 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;F49. . .
F506
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.
C1717AF63Community treatment orders
1
The responsible clinician may by order in writing discharge a detained patient from hospital subject to his being liable to recall in accordance with section 17E below.
2
A detained patient is a patient who is liable to be detained in a hospital in pursuance of an application for admission for treatment.
3
An order under subsection (1) above is referred to in this Act as a “community treatment order”.
4
The responsible clinician may not make a community treatment order unless—
a
in his opinion, the relevant criteria are met; and
b
an approved mental health professional states in writing—
i
that he agrees with that opinion; and
ii
that it is appropriate to make the order.
5
The relevant criteria are—
a
the patient is suffering from mental disorder of a nature or degree which makes it appropriate for him to receive medical treatment;
b
it is necessary for his health or safety or for the protection of other persons that he should receive such treatment;
c
subject to his being liable to be recalled as mentioned in paragraph (d) below, such treatment can be provided without his continuing to be detained in a hospital;
d
it is necessary that the responsible clinician should be able to exercise the power under section 17E(1) below to recall the patient to hospital; and
e
appropriate medical treatment is available for him.
6
In determining whether the criterion in subsection (5)(d) above is met, the responsible clinician shall, in particular, consider, having regard to the patient's history of mental disorder and any other relevant factors, what risk there would be of a deterioration of the patient's condition if he were not detained in a hospital (as a result, for example, of his refusing or neglecting to receive the medical treatment he requires for his mental disorder).
C187
In this Act—
“community patient” means a patient in respect of whom a community treatment order is in force;
“the community treatment order”, in relation to such a patient, means the community treatment order in force in respect of him; and
“the responsible hospital”, in relation to such a patient, means the hospital in which he was liable to be detained immediately before the community treatment order was made, subject to section 19A below.
17BConditions
1
A community treatment order shall specify conditions to which the patient is to be subject while the order remains in force.
C192
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 F883that 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.
C2017CDuration of community treatment order
A community treatment order shall remain in force until—
a
the period mentioned in section 20A(1) below (as extended under any provision of this Act) expires, but this is subject to sections 21 and 22 below;
b
the patient is discharged in pursuance of an order under section 23 below or a direction under section 72 below;
c
the application for admission for treatment in respect of the patient otherwise ceases to have effect; or
d
the order is revoked under section 17F below,
whichever occurs first.
C2117DEffect of community treatment order
1
The application for admission for treatment in respect of a patient shall not cease to have effect by virtue of his becoming a community patient.
2
But while he remains a community patient—
a
the authority of the managers to detain him under section 6(2) above in pursuance of that application shall be suspended; and
b
reference (however expressed) in this or any other Act, or in any subordinate legislation (within the meaning of the Interpretation Act 1978), to patients liable to be detained, or detained, under this Act shall not include him.
3
And section 20 below shall not apply to him while he remains a community patient.
4
Accordingly, authority for his detention shall not expire during any period in which that authority is suspended by virtue of subsection (2)(a) above.
17EPower to recall to hospital
1
The responsible clinician may recall a community patient to hospital if in his opinion—
a
the patient requires medical treatment in hospital for his mental disorder; and
b
there would be a risk of harm to the health or safety of the patient or to other persons if the patient were not recalled to hospital for that purpose.
2
The responsible clinician may also recall a community patient to hospital if the patient fails to comply with a condition specified under section 17B(3) above.
3
The hospital to which a patient is recalled need not be the responsible hospital.
4
Nothing in this section prevents a patient from being recalled to a hospital even though he is already in the hospital at the time when the power of recall is exercised; references to recalling him shall be construed accordingly.
5
The power of recall under subsections (1) and (2) above shall be exercisable by notice in writing to the patient.
6
A notice under this section recalling a patient to hospital shall be sufficient authority for the managers of that hospital to detain the patient there in accordance with the provisions of this Act.
17FPowers in respect of recalled patients
1
This section applies to a community patient who is detained in a hospital by virtue of a notice recalling him there under section 17E above.
2
The patient may be transferred to another hospital in such circumstances and subject to such conditions as may be prescribed in regulations made by the Secretary of State (if the hospital in which the patient is detained is in England) or the Welsh Ministers (if that hospital is in Wales).
3
If he is so transferred to another hospital, he shall be treated for the purposes of this section (and section 17E above) as if the notice under that section were a notice recalling him to that other hospital and as if he had been detained there from the time when his detention in hospital by virtue of the notice first began.
4
The responsible clinician may by order in writing revoke the community treatment order if—
a
in his opinion, the conditions mentioned in section 3(2) above are satisfied in respect of the patient; and
b
an approved mental health professional states in writing—
i
that he agrees with that opinion; and
ii
that it is appropriate to revoke the order.
5
The responsible clinician may at any time release the patient under this section, but not after the community treatment order has been revoked.
6
If the patient has not been released, nor the community treatment order revoked, by the end of the period of 72 hours, he shall then be released.
7
But a patient who is released under this section remains subject to the community treatment order.
8
In this section—
a
“the period of 72 hours” means the period of 72 hours beginning with the time when the patient's detention in hospital by virtue of the notice under section 17E above begins; and
b
references to being released shall be construed as references to being released from that detention (and accordingly from being recalled to hospital).
C2217GEffect of revoking community treatment order
1
This section applies if a community treatment order is revoked under section 17F above in respect of a patient.
2
Section 6(2) above shall have effect as if the patient had never been discharged from hospital by virtue of the community treatment order.
3
The provisions of this or any other Act relating to patients liable to be detained (or detained) in pursuance of an application for admission for treatment shall apply to the patient as they did before the community treatment order was made, unless otherwise provided.
4
If, when the order is revoked, the patient is being detained in a hospital other than the responsible hospital, the provisions of this Part of this Act shall have effect as if—
a
the application for admission for treatment in respect of him were an application for admission to that other hospital; and
b
he had been admitted to that other hospital at the time when he was originally admitted in pursuance of the application.
5
But, in any case, section 20 below shall have effect as if the patient had been admitted to hospital in pursuance of the application for admission for treatment on the day on which the order is revoked.
18E1Return and readmission of patients absent without leave.
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 F51approved 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.
F522A
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.
F534
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 F54or, in the case of a community patient, the community treatment order is in force ;
F55. . .
F564A
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.
F577
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.
19 Regulations as to transfer of patients.
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 F58National 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 F59or in a hospital vested in a National Health Service trustF920NHS foundation trust orF60Local Health BoardF921... , may at any time be removed to any other such hospital or accommodation F61which is managed by the managers of, or is vested in the National Health Service trust F920NHS foundation trust orF62Local Health BoardF921... 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.
19AF64Regulations as to assignment of responsibility for community patients
1
Responsibility for a community patient may be assigned to another hospital in such circumstances and subject to such conditions as may be prescribed by regulations made by the Secretary of State (if the responsible hospital is in England) or the Welsh Ministers (if that hospital is in Wales).
2
If responsibility for a community patient is assigned to another hospital—
a
the application for admission for treatment in respect of the patient shall have effect (subject to section 17D above) as if it had always specified that other hospital;
b
the patient shall be treated as if he had been admitted to that other hospital at the time when he was originally admitted in pursuance of the application (and as if he had subsequently been discharged under section 17A above from there); and
c
that other hospital shall become “the responsible hospital” in relation to the patient for the purposes of this Act.
F120Duration of authority and discharge
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.
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 F65under 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 F66responsible 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 F67under 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 F68mental disorder of a nature or degree which makes it appropriate for him to receive medical treatment in a hospital; and
b
F69. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
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;F70 and
d
appropriate medical treatment is available for him.
F71. . .
5
Before furnishing a report under subsection (3) above the F66responsible clinician shall consult one or more other persons who have been professionally concerned with the patient’s medical treatment.
F725A
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 F73appropriate 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 F67under 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 F74mental 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
F75. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
10
F76. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
20AF121Community treatment period
1
Subject to the provisions of this Part of this Act, a community treatment order shall cease to be in force on expiry of the period of six months beginning with the day on which it was made.
2
That period is referred to in this Act as “the community treatment period”.
3
The community treatment period may, unless the order has previously ceased to be in force, be extended—
a
from its expiration for a period of six months;
b
from the expiration of any period of extension under paragraph (a) above for a further period of one year,
and so on for periods of one year at a time.
4
Within the period of two months ending on the day on which the order would cease to be in force in default of an extension under this section, it shall be the duty of the responsible clinician—
a
to examine the patient; and
b
if it appears to him that the conditions set out in subsection (6) below are satisfied and if a statement under subsection (8) below is made, to furnish to the managers of the responsible hospital a report to that effect in the prescribed form.
5
Where such a report is furnished in respect of the patient, the managers shall, unless they discharge him under section 23 below, cause him to be informed.
6
The conditions referred to in subsection (4) above are that—
a
the patient is suffering from mental disorder of a nature or degree which makes it appropriate for him to receive medical treatment;
b
it is necessary for his health or safety or for the protection of other persons that he should receive such treatment;
c
subject to his continuing to be liable to be recalled as mentioned in paragraph (d) below, such treatment can be provided without his being detained in a hospital;
d
it is necessary that the responsible clinician should continue to be able to exercise the power under section 17E(1) above to recall the patient to hospital; and
e
appropriate medical treatment is available for him.
7
In determining whether the criterion in subsection (6)(d) above is met, the responsible clinician shall, in particular, consider, having regard to the patient's history of mental disorder and any other relevant factors, what risk there would be of a deterioration of the patient's condition if he were to continue not to be detained in a hospital (as a result, for example, of his refusing or neglecting to receive the medical treatment he requires for his mental disorder).
8
The statement referred to in subsection (4) above is a statement in writing by an approved mental health professional—
a
that it appears to him that the conditions set out in subsection (6) above are satisfied; and
b
that it is appropriate to extend the community treatment period.
9
Before furnishing a report under subsection (4) above the responsible clinician shall consult one or more other persons who have been professionally concerned with the patient's medical treatment.
10
Where a report is duly furnished under subsection (4) above, the community treatment period shall be thereby extended for the period prescribed in that case by subsection (3) above.
20BEffect of expiry of community treatment order
C231
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.
21F77 Special provisions as to patients absent without leave.
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 F78or, 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 F79, 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.
F803
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 F81the 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.
F824
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.
21A Patients who are taken into custody or return within 28 days.
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.
F834
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.
21B Patients who are taken into custody or return after more than 28 days.
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 F84appropriate 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 F85 (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 F86or is a community patient(as opposed to subject to guardianship), the F84appropriate 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 F87approved mental health professional .
F884
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.
F894A
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.
F906A
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.
F917A
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
F92. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
9
F92. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
10
In this section—
F93. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F94“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
- a
F95“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.
- a
22F96E2Special provisions as to patients sentenced to imprisonment, etc.
1
If—
a
a qualifying patient is detained in custody in pursuance of any sentence or order passed or made by a court in the United Kingdom (including an order committing or remanding him in custody); and
b
he is so detained for a period exceeding, or for successive periods exceeding in the aggregate, six months,
the relevant application shall cease to have effect on expiry of that period.
2
A patient is a qualifying patient for the purposes of this section if—
a
he is liable to be detained by virtue of an application for admission for treatment;
b
he is subject to guardianship by virtue of a guardianship application; or
c
he is a community patient.
3
“The relevant application”, in relation to a qualifying patient, means—
a
in the case of a patient who is subject to guardianship, the guardianship application in respect of him;
b
in any other case, the application for admission for treatment in respect of him.
4
The remaining subsections of this section shall apply if a qualifying patient is detained in custody as mentioned in subsection (1)(a) above but for a period not exceeding, or for successive periods not exceeding in the aggregate, six months.
5
If apart from this subsection—
a
the patient would have ceased to be liable to be detained or subject to guardianship by virtue of the relevant application on or before the day on which he is discharged from custody; or
b
in the case of a community patient, the community treatment order would have ceased to be in force on or before that day,
he shall not cease and shall be deemed not to have ceased to be so liable or subject, or the order shall not cease and shall be deemed not to have ceased to be in force, until the end of that day.
6
In any case (except as provided in subsection (8) below), sections 18, 21 and 21A above shall apply in relation to the patient as if he had absented himself without leave on that day.
7
In its application by virtue of subsection (6) above section 18 above shall have effect as if—
a
in subsection (4) for the words from “later of” to the end there were substituted “
end of the period of 28 days beginning with the first day of his absence without leave
”
; and
b
subsections (4A) and (4B) were omitted.
8
In relation to a community patient who was not recalled to hospital under section 17E above at the time when his detention in custody began—
a
section 18 above shall not apply; but
b
sections 21 and 21A above shall apply as if he had absented himself without leave on the day on which he is discharged from custody and had returned himself as provided in those sections on the last day of the period of 28 days beginning with that day.
23 Discharge of patients.
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 F97absolutely from detention or guardianship is made in accordance with this section
F981A
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 F99responsible clinician , by the managers or by the nearest relative of the patient;
b
where the patient is subject to guardianship, by the F99responsible clinician , by the responsible local social services authority or by the nearest relative of the patient.
F100c
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.
F8933
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F893 3A
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
4
The powers conferred by this section on any authority F101trust F102, boardF103(other than an NHS foundation trust) or body of persons may be exercised F101subject to subsection (5) below by any three or more members of that authority F101trustF102, board or body authorised by them in that behalf or by three or more members of a committee or sub-committee of that authority F101trustF102, board or body which has been authorised by them in that behalf.
F1045
The reference in subsection (4) above to the members of an authority, trust F105, board or body or the members of a committee or sub-committee of an authority, trust F105, board or body,—
a
in the case of a F106Local Health BoardF922or Special Health AuthorityF923... or a committee or sub-committee of a F106Local Health BoardF922or Special Health AuthorityF923..., is a reference only to the chairman of the authority F924...F107 or board and F108such members (of the authority F924..., board, committee or sub-committee, as the case may be) as are not also officers of the authority F924...F107 or board, within the meaning of F109the 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.
F1106
The powers conferred by this section on any NHS foundation trust may be exercised by any three or more F111 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. .
24 Visiting and examination of patients.
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 F112, or who is a community patient, of any power to order his discharge, any registered medical practitioner F113or 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 F113or 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 F114or to any after-care services provided for the patient under section 117 below..
F8943
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F8944
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
25 Restrictions on discharge by nearest relative.
1
An order for the discharge of a patient who is liable to be detained in a hospital shall not be made F115under 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 F116responsible clinician furnishes to the managers a report certifying that in the opinion of F117that 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.
F1181A
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 F119, or in respect of a community patient, the managers shall cause the nearest relative of the patient to be informed.
F132 After-care under supervision
Ss. 25A-25J inserted (1.4.1996) by 1995 c. 52, ss. 1(1), 7(2)
25A Application for supervision.
F122. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
25B Making of supervision application.
F123. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
25C Supervision applications: supplementary.
F124. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
25D Requirements to secure receipt of after-care under supervision.
F125. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
25E Review of after-care under supervision etc.
F126. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
25F Reclassification of patient subject to after-care under supervision.
F127. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
25G Duration and renewal of after-care under supervision.
F128. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
25H Ending of after-care under supervision.
F129. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
25I Special provisions as to patients sentenced to imprisonment etc.
F130. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
25J Patients moving from Scotland to England and Wales.
F131. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Functions of relatives of patients
26 Definition of “relative” and “nearest relative”.
1
In this Part of this Act “relative” means any of the following persons:—
a
husband or wife F133or 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
F134a
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 F135or 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
F137d
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
the nearest relative of the patient shall be ascertained as if that person were dead.
6
In this section “husband”F138, “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 F139or 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 F140or 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.
27F141 Children and young persons in care.
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 F142or civil partner (if any).
28 Nearest relative of minor under guardianship, etc.
F1431
Where—
a
a guardian has been appointed for a person who has not attained the age of eighteen years; or
b
the guardian (or guardians, where there is more than one) or the person F972so 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.
F1443
In this section “ guardian ” F145 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 M1Northern Ireland Act 1974.
29 Appointment by court of acting nearest relative.
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 F146the person specified in the order .
F1471A
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—
F148za
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 F149approved mental health professional ;
F150. . .
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; F151. . .
d
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 F154(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.
30 Discharge and variation of orders under s. 29.
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 F155the 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) F156, (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.
F1571A
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 F158the patient or of an F159approved mental health professional , by substituting F160another person for the person having those functions.
F1612A
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
F162An 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—
F163a
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.
F1644A
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).
F1654B
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.
Supplemental
31 Procedure on applications to county court.
F974Rules of court which relate to applications authorised by this Part of this Act to be made to F973the 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.
32 Regulations for purposes of Part II.
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;
C24c
for requiring F166such bodies as may be prescribed by the regulations to keep such registers or other records as may be F166so prescribed in respect of patients liable to be detained or subject to guardianship F167. . . under this Part of this Act F168or 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 M2Births 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.
C253
Without prejudice to subsections (1) and (2) above, but subject to section 23(4) F169and (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, F170F171Local Health Board Special Health Authorities F925...F172, 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 F173, boards,F174authorities and trusts.
C2633 Special provisions as to wards of court.
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 F175or 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.
F1764
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.
34 Interpretation of Part II.
1
In this Part of this Act—
F177 “ 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;
- a
F178. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
“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;
F857“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;
F179 “ 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;
- a
F178. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1A
F180. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2
Except where otherwise expressly provided, this Part of this Act applies in relation to F181a 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.
C50 Part III Patients Concerned in Criminal Proceedings or Under Sentence
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
C29C30C3135 Remand to hospital for report on accused’s mental condition.
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 F182mental 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.
C834
The court shall not remand an accused person to a hospital under this section unless satisfied, on the written or oral evidence of the F183approved 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.
C835
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 F183approved clinician responsible for making the report, that a further remand is necessary for completing the assessment of the accused person’s mental condition.
C836
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 F184an authorised person who is given an opportunity of being heard.
C837
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.
C838
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 F185or 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.
C839
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.
C8310
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.
C3236 Remand of accused person to hospital for treatment.
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
F186a
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;F187 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 F188approved 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 F189responsible 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 F190an 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 F191or 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.
Hospital and guardianship orders
C33C8637 Powers of courts to order hospital admission or guardianship.
C34C35C361
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,F192. . . , 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.
F1931A
In the case of an offence the sentence for which would otherwise fall to be F1036imposed under section 258, F1048258A,F1045268A, 273, 274, F1049274A, 282A, 283 F1050, 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.
F10371B
For the purposes of subsection (1A) above—
a
a sentence falls to be imposed under section 258 F1051or 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;
F1046aa
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 273F1052, 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 283F1053, 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), F1054312(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 F194mental 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 F195appropriate 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 F196. . . , 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 F197approved 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 hospitalF198. . . , 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
F199. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
8
Where an order is made under this section, the court F200shall not—
a
b
if the order under this section is a hospital order, make a referral order (within F1041the meaning given by section 83 of that Code) in respect of the offence, or
c
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.
C37C3838 Interim hospital orders.
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 F205mental 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 F206an 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 F207approved 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 F208responsible clinician , that the continuation of the order is warranted;
but no such order shall continue in force for more than F209twelve 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 F208responsible 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.
C39C407
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.
39 Information as to hospitals.
1
Where a court is minded to make a hospital order or interim hospital order in respect of any person it may request—
a
b
to furnish the court with such information as F211that F1057integrated care boardF927... F210Local Health BoardF213or F928F1058NHS England or the National Assembly for Wales have or can reasonably obtain with respect to the hospital or hospitals (if any) in F211their area or elsewhere at which arrangements could be made for the admission of that person in pursuance of the order, and F211that F1057integrated care boardF927... F210Local Health BoardF214or F928F1058NHS England or the National Assembly for Wales shall comply with any such request.
F9261ZA
F2151A
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.
F2162
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
39AF217Information to facilitate guardianship orders.
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.
40 Effect of hospital orders, guardianship orders and interim hospital orders.
1
A hospital order shall be sufficient authority—
a
for a constable, an F218approved 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.
C415
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.
F2196
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 M3Criminal 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.
Restriction orders
41 Power of higher courts to restrict discharge from hospital.
C421
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 F220. . . ; 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;
F221aa
none of the provisions of Part II of this Act relating to F222community treatment orders and community patients shall apply;
b
no application shall be made to F223the 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 F224or 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 F225responsible 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 F225responsible 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.
42 Powers of Secretary of State in respect of patients subject to restriction orders.
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 F226. . . .
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.
43 Power of magistrates’ courts to commit for restriction order.
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.
F9634
The powers of a magistrates' court under F1042section 14 F1044, 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 M4Vagrancy Act 1824 (which provides for the committal to the Crown Court of persons who are incorrigible rogues within the meaning of that section).
44 Committal to hospital under s. 43.
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 F227approved 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 F228. . . .
45 Appeals from magistrates’ courts.
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.
F237 Hospital and limitation directions
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))
45AF229C43Power of higher courts to direct hospital admission.
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
F230. . . , 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 F231mental 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
F232c
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 F233approved 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
F234. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
11
F234. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
45BF235Effect of hospital and limitation directions.
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 F236responsible 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.
Detention during Her Majesty’s pleasure
46 Persons ordered to be kept in custody during Her Majesty’s pleasure.
F238. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
46 Persons ordered to be kept in custody during Her Majesty’s pleasure.
F238. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Transfer to hospital of prisoners, etc.
C44C4547 Removal to hospital of persons serving sentences of imprisonment, etc.
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 F239mental 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 treatmentF240; 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 hospitalF241. . . 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
F242. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
5
References in this Part of this Act to a person serving a sentence of imprisonment include references—
C46a
to a person detained in pursuance of any sentence or order for detention made by a court in criminal proceedings F243or service disciplinary proceedings(other than an order F244made in consequence of a finding of insanity or unfitness to stand trialF245or 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 M5Magistrates’ 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 M6Prison Act 1952 applies in default of payment of any sum adjudged to be paid on his conviction.
F2466
In subsection (5)(a) “service disciplinary proceedings” means proceedings in respect of a service offence within the meaning of the Armed Forces Act 2006.
48Removal to hospital of other prisoners.
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
F247a
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;F248and
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 prison or 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 F249..., who are not persons falling to be dealt with under section 47 above;
3
Subsections (2) F251and (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.
49 Restriction on discharge of prisoners removed to hospital.
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 F252responsible 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.
50 Further provisions as to prisoners under sentence.
1
Where a transfer direction and a restriction direction have been given in respect of a person serving a sentence of imprisonment and before F253his release date the Secretary of State is notified by the F254responsible clinician , any other F255approved clinician or F256the 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.
F2572
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 M8Prison 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.
F2585
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.
51 Further provisions as to detained persons.
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 F259responsible clinician , any other F260approved clinician or F261the 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 F262responsible 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 F263, 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
F264i
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;F265 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.
52 Further provisions as to persons remanded by magistrates’ courts.
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 F964sent 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 M9Magistrates’ 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 F266responsible 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 F965sent to the Crown Court as mentioned in subsection (2) above.
6
If the accused is F966sent 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, F967send 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 F266responsible clinician , that the accused is unfit to take part in the proceedings; and
53 Further provisions as to civil prisoners and persons detained under F268the Immigration Acts.
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 F269responsible clinician , any other F270approved clinician or F271the 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.
Supplemental
C4754 Requirements as to medical evidence.
1
The registered medical practitioner whose evidence is taken into account under section 35(3)(a) above and at least one of the registered medical practitioners whose evidence is taken into account under sections 36(1), 37(2)(a), 38(1) F27245A(2) and 51(6)(a) above and whose reports are taken into account under sections 47(1) and 48(1) above shall be a practitioner approved for the purposes of section 12 above by the Secretary of State F930, or by another person by virtue of section 12ZA or 12ZB above, as having special experience in the diagnosis or treatment of mental disorder.
C48C49F2732
For the purposes of any provision of this Part of this Act under which a court may act on the written evidence of any person, a report in writing purporting to be signed by that person may, subject to the provisions of this section, be received in evidence without proof of the following—
a
the signature of the person; or
b
his having the requisite qualifications or approval or authority or being of the requisite description to give the report.
2A
But the court may require the signatory of any such report to be called to give oral evidence.
C48C493
Where, in pursuance of a direction of the court, any such report is tendered in evidence otherwise than by or on behalf of the person who is the subject of the report, then—
a
b
if that person is not so represented, the substance of the report shall be disclosed to him or, where he is a child or young person, to his parent or guardian if present in court; and
c
except where the report relates only to arrangements for his admission to a hospital, that person may require the signatory of the report to be called to give oral evidence, and evidence to rebut the evidence contained in the report may be called by or on behalf of that person.
54AF276Reduction of period for making hospital orders.
1
The Secretary of State may by order reduce the length of the periods mentioned in sections 37(4) and (5) and 38(4) above.
2
An order under subsection (1) above may make such consequential amendments of sections 40(1) and 44(3) above as appear to the Secretary of State to be necessary or expedient.
55 Interpretation of Part III.
1
In this Part of this Act—
F277“authorised person” means a person who, for the purposes of the Legal Services Act 2007, is an authorised person in relation to an activity which constitutes the exercise of a right of audience (within the meaning of that Act);
“child” and “young person” have the same meaning as in the M10Children and Young Persons Act 1933;
“civil prisoner” has the meaning given to it by section 48(2)(c) above;
“guardian”, in relation to a child or young person, has the same meaning as in the Children and Young Persons Act 1933;
“place of safety”, in relation to a person who is not a child or young person, means any police station, prison or remand centre, or any hospital the managers of which are willing temporarily to receive him, and in relation to a child or young person has the same meaning as in the Children and Young Persons Act 1933;
F278“responsible clinician”, in relation to a person liable to be detained in a hospital within the meaning of Part 2 of this Act, means the approved clinician with overall responsibility for the patient's case.
2
Any reference in this Part of this Act to an offence punishable on summary conviction with imprisonment shall be construed without regard to any prohibition or restriction imposed by or under any enactment relating to the imprisonment of young offenders.
3
F279. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
4
Any reference to a hospital order, a guardianship order or a restriction order in section 40(2), (4) or (5), section 41(3) to (5), or section 42 above or section 69(1) below shall be construed as including a reference to any order or direction under this Part of this Act having the same effect as the first-mentioned order; and the exceptions and modifications set out in Schedule 1 to this Act in respect of the provisions of this Act described in that Schedule accordingly include those which are consequential on the provisions of this subsection.
5
Section 34(2) above shall apply for the purposes of this Part of this Act as it applies for the purposes of Part II of this Act.
6
References in this Part of this Act to persons serving a sentence of imprisonment shall be construed in accordance with section 47(5) above.
7
Section 99 of the M11Children and Young Persons Act 1933 (which relates to the presumption and determination of age) shall apply for the purposes of this Part of this Act as it applies for the purposes of that Act.
Part IV Consent to Treatment
56F280 Patients to whom Part IV applies.
1
Section 57 and, so far as relevant to that section, sections 59 to 62 below apply to any patient.
2
Subject to that and to subsection (5) below, this Part of this Act applies to a patient only if he falls within subsection (3) or (4) below.
3
A patient falls within this subsection if he is liable to be detained under this Act but not if—
a
he is so liable by virtue of an emergency application and the second medical recommendation referred to in section 4(4)(a) above has not been given and received;
b
he is so liable by virtue of section 5(2) or (4) or 35 above or section 135 or 136 below or by virtue of a direction for his detention in a place of safety under section 37(4) or 45A(5) above; or
c
he has been conditionally discharged under section 42(2) above or section 73 or 74 below and he is not recalled to hospital.
4
A patient falls within this subsection if—
a
he is a community patient; and
b
he is recalled to hospital under section 17E above.
5
Section 58A and, so far as relevant to that section, sections 59 to 62 below also apply to any patient who—
a
does not fall within subsection (3) above;
b
is not a community patient; and
c
has not attained the age of 18 years.
57 Treatment requiring consent and a second opinion.
1
This section applies to the following forms of medical treatment for mental disorder—
a
any surgical operation for destroying brain tissue or for destroying the functioning of brain tissue; and
b
such other forms of treatment as may be specified for the purposes of this section by regulations made by the Secretary of State.
2
Subject to section 62 below, a patient shall not be given any form of treatment to which this section applies unless he has consented to it and—
C51a
a registered medical practitioner appointed for the purposes of this Part of this Act by F281the regulatory authority(not being the F282responsible clinician (if there is one) or the person in charge of the treatment in question) and two other persons appointed for the purposes of this paragraph by F281the regulatory authority(not being registered medical practitioners) have certified in writing that the patient is capable of understanding the nature, purpose and likely effects of the treatment in question and has consented to it; and
b
the registered medical practitioner referred to in paragraph (a) above has certified in writing that F283it is appropriate for the treatment to be given.
3
Before giving a certificate under subsection (2)(b) above the registered medical practitioner concerned shall consult two other persons who have been professionally concerned with the patient’s medical treatment F284 but, of those persons—
a
one shall be a nurse and the other shall be neither a nurse nor a registered medical practitioner; and
b
neither shall be the responsible clinician (if there is one) or the person in charge of the treatment in question.
4
Before making any regulations for the purpose of this section the Secretary of State shall consult such bodies as appear to him to be concerned.
58 Treatment requiring consent or a second opinion.
1
This section applies to the following forms of medical treatment for mental disorder—
a
such forms of treatment as may be specified for the purposes of this section by regulations made by the Secretary of State;
b
the administration of medicine to a patient by any means (not being a form of treatment specified under paragraph (a) above or section 57 above F285or section 58A(1)(b) below) at any time during a period for which he is liable to be detained as a patient to whom this Part of this Act applies if three months or more have elapsed since the first occasion in that period when medicine was administered to him by any means for his mental disorder.
2
The Secretary of State may by order vary the length of the period mentioned in subsection (1)(b) above.
3
Subject to section 62 below, a patient shall not be given any form of treatment to which this section applies unless—
C52a
he has consented to that treatment and either the F286approved clinician in charge of it or a registered medical practitioner appointed for the purposes of this Part of this Act by F287the regulatory authority has certified in writing that the patient is capable of understanding its nature, purpose and likely effects and has consented to it; or
b
a registered medical practitioner appointed as aforesaid (not being the F288responsible clinician or the approved clinician in charge of the treatment in question) has certified in writing that the patient is not capable of understanding the nature, purpose and likely effects of that treatment or F289being so capable has not consented to it but that F290it is appropriate for the treatment to be given.
4
Before giving a certificate under subsection (3)(b) above the registered medical practitioner concerned shall consult two other persons who have been professionally concerned with the patient’s medical treatment F291 but, of those persons—
a
one shall be a nurse and the other shall be neither a nurse nor a registered medical practitioner; and
b
neither shall be the responsible clinician or the approved clinician in charge of the treatment in question.
5
Before making any regulations for the purposes of this section the Secretary of State shall consult such bodies as appear to him to be concerned.
C5358AF321Electro-convulsive therapy, etc.
1
This section applies to the following forms of medical treatment for mental disorder—
a
electro-convulsive therapy; and
b
such other forms of treatment as may be specified for the purposes of this section by regulations made by the appropriate national authority.
2
Subject to section 62 below, a patient shall be not be given any form of treatment to which this section applies unless he falls within subsection (3), (4) or (5) below.
3
A patient falls within this subsection if—
a
he has attained the age of 18 years;
b
he has consented to the treatment in question; and
c
either the approved clinician in charge of it or a registered medical practitioner appointed as mentioned in section 58(3) above has certified in writing that the patient is capable of understanding the nature, purpose and likely effects of the treatment and has consented to it.
4
A patient falls within this subsection if—
a
he has not attained the age of 18 years; but
b
he has consented to the treatment in question; and
c
a registered medical practitioner appointed as aforesaid (not being the approved clinician in charge of the treatment) has certified in writing—
i
that the patient is capable of understanding the nature, purpose and likely effects of the treatment and has consented to it; and
ii
that it is appropriate for the treatment to be given.
5
A patient falls within this subsection if a registered medical practitioner appointed as aforesaid (not being the responsible clinician (if there is one) or the approved clinician in charge of the treatment in question) has certified in writing—
a
that the patient is not capable of understanding the nature, purpose and likely effects of the treatment; but
b
that it is appropriate for the treatment to be given; and
c
that giving him the treatment would not conflict with—
i
an advance decision which the registered medical practitioner concerned is satisfied is valid and applicable; or
ii
a decision made by a donee or deputy or by the Court of Protection.
6
Before giving a certificate under subsection (5) above the registered medical practitioner concerned shall consult two other persons who have been professionally concerned with the patient's medical treatment but, of those persons—
a
one shall be a nurse and the other shall be neither a nurse nor a registered medical practitioner; and
b
neither shall be the responsible clinician (if there is one) or the approved clinician in charge of the treatment in question.
7
This section shall not by itself confer sufficient authority for a patient who falls within section 56(5) above to be given a form of treatment to which this section applies if he is not capable of understanding the nature, purpose and likely effects of the treatment (and cannot therefore consent to it).
8
Before making any regulations for the purposes of this section, the appropriate national authority shall consult such bodies as appear to it to be concerned.
9
In this section—
a
a reference to an advance decision is to an advance decision (within the meaning of the Mental Capacity Act 2005) made by the patient;
b
“valid and applicable”, in relation to such a decision, means valid and applicable to the treatment in question in accordance with section 25 of that Act;
c
a reference to a donee is to a donee of a lasting power of attorney (within the meaning of section 9 of that Act) created by the patient, where the donee is acting within the scope of his authority and in accordance with that Act; and
d
a reference to a deputy is to a deputy appointed for the patient by the Court of Protection under section 16 of that Act, where the deputy is acting within the scope of his authority and in accordance with that Act.
10
In this section, “the appropriate national authority” means—
a
in a case where the treatment in question would, if given, be given in England, the Secretary of State;
b
in a case where the treatment in question would, if given, be given in Wales, the Welsh Ministers.
59 Plans of treatment.
Any consent or certificate under section 57 F292, 58 or 58A above may relate to a plan of treatment under which the patient is to be given (whether within a specified period or otherwise) one or more of the forms of treatment to which that section applies.
60 Withdrawal of consent.
1
Where the consent of a patient to any treatment has been given for the purposes of section 57 F293, 58 or 58A above, the patient may, subject to section 62 below, at any time before the completion of the treatment withdraw his consent, and those sections shall then apply as if the remainder of the treatment were a separate form of treatment.
F2941A
Subsection (1B) below applies where—
a
the consent of a patient to any treatment has been given for the purposes of section 57, 58 or 58A above; but
b
before the completion of the treatment, the patient ceases to be capable of understanding its nature, purpose and likely effects.
1B
The patient shall, subject to section 62 below, be treated as having withdrawn his consent, and those sections shall then apply as if the remainder of the treatment were a separate form of treatment.
1C
Subsection (1D) below applies where—
a
a certificate has been given under section 58 or 58A above that a patient is not capable of understanding the nature, purpose and likely effects of the treatment to which the certificate applies; but
b
before the completion of the treatment, the patient becomes capable of understanding its nature, purpose and likely effects.
1D
The certificate shall, subject to section 62 below, cease to apply to the treatment and those sections shall then apply as if the remainder of the treatment were a separate form of treatment.
2
Without prejudice to the application of F295subsections (1) to (1D) above to any treatment given under the plan of treatment to which a patient has consented, a patient who has consented to such a plan may, subject to section 62 below, at any time withdraw his consent to further treatment, or to further treatment of any description, under the plan.
61 Review of treatment.
C541
Where a patient is given treatment in accordance with section 57(2) F296, 58(3)(b) or 58A(4) or (5) above F297, or by virtue of section 62A below in accordance with a Part 4A certificate (within the meaning of that section) F884that falls within section 64C(4) below, a report on the treatment and the patient’s condition shall be given F298by the approved clinician in charge of the treatment to F299the regulatory authority—
a
b
at any other time if so required by F299the regulatory authority.
2
In relation to a patient who is subject to a restriction order F303, limitation directionor restriction direction subsection (1) above shall have effect as if paragraph (a) required the report to be made—
a
in the case of treatment in the period of six months beginning with the date of the order or direction, at the end of that period;
C553
F299The regulatory authority may at any time give notice F306. . . directing that, subject to section 62 below, a certificate given in respect of a patient under subsection 57(2) F307, 58(3)(b) or 58A(4) or (5) above shall not apply to treatment given to him F308(whether in England or Wales) after a date specified in the notice and sections 57 F309, 58 and 58A above shall then apply to any such treatment as if that certificate has not been given.
F3103A
The notice under subsection (3) above shall be given to the approved clinician in charge of the treatment.
62 Urgent treatment.
1
Sections 57 and 58 above shall not apply to any treatment—
a
which is immediately necessary to save the patient’s life;
b
which (not being irreversible) is immediately necessary to prevent a serious deterioration of his condition; or
c
which (not being irreversible or hazardous) is immediately necessary to alleviate serious suffering by the patient; or
d
which (not being irreversible or hazardous) is immediately necessary and represents the minimum interference necessary to prevent the patient from behaving violently or being a danger to himself or to others.
F3111A
Section 58A above, in so far as it relates to electro-convulsive therapy by virtue of subsection (1)(a) of that section, shall not apply to any treatment which falls within paragraph (a) or (b) of subsection (1) above.
1B
Section 58A above, in so far as it relates to a form of treatment specified by virtue of subsection (1)(b) of that section, shall not apply to any treatment which falls within such of paragraphs (a) to (d) of subsection (1) above as may be specified in regulations under that section.
1C
For the purposes of subsection (1B) above, the regulations—
a
may make different provision for different cases (and may, in particular, make different provision for different forms of treatment);
b
may make provision which applies subject to specified exceptions; and
c
may include transitional, consequential, incidental or supplemental provision.
2
Sections 60 and 61(3) above shall not preclude the continuation of any treatment or of treatment under any plan pending compliance with section 57 F312, 58 or 58A above if the F313approved clinician in charge of the treatment considers that the discontinuance of the treatment or of treatment under the plan would cause serious suffering to the patient.
3
For the purposes of this section treatment is irreversible if it has unfavourable irreversible physical or psychological consequences and hazardous if it entails significant physical hazard.
62AF322Treatment on recall of community patient or revocation of order
1
This section applies where—
a
a community patient is recalled to hospital under section 17E above; or
b
a patient is liable to be detained under this Act following the revocation of a community treatment order under section 17F above in respect of him.
2
For the purposes of section 58(1)(b) above, the patient is to be treated as if he had remained liable to be detained since the making of the community treatment order.
3
But section 58 above does not apply to treatment given to the patient if—
a
the certificate requirement is met for the purposes of section 64C or 64E below; or
b
as a result of section 64B(4) or 64E(4) below, the certificate requirement would not apply (were the patient a community patient not recalled to hospital under section 17E above).
4
Section 58A above does not apply to treatment given to the patient if there is authority to give the treatment, and the certificate requirement is met, for the purposes of section 64C or 64E below.
5
In a case where this section applies F886and the Part 4A certificate falls within section 64C(4) below, the certificate requirement is met only in so far as—
a
the Part 4A certificate expressly provides that it is appropriate for one or more specified forms of treatment to be given to the patient in that case (subject to such conditions as may be specified); or
b
a notice having been given under subsection (5) of section 64H below, treatment is authorised by virtue of subsection (8) of that section.
6
Subsection (5)(a) above shall not preclude the continuation of any treatment, or of treatment under any plan, pending compliance with section 58 or 58A above F887or 64B or 64E below if the approved clinician in charge of the treatment considers that the discontinuance of the treatment, or of the treatment under the plan, would cause serious suffering to the patient.
F8856A
In a case where this section applies and the certificate requirement is no longer met for the purposes of section 64C(4A) below, the continuation of any treatment, or of treatment under any plan, pending compliance with section 58 or 58A above or 64B or 64E below shall not be precluded if the approved clinician in charge of the treatment considers that the discontinuance of the treatment, or of treatment under the plan, would cause serious suffering to the patient.
7
In a case where subsection (1)(b) above applies, subsection (3) above only applies pending compliance with section 58 above.
8
In subsection (5) above—
“ Part 4A certificate ” has the meaning given in section 64H below; and
“ specified ”, in relation to a Part 4A certificate, means specified in the certificate.
63 Treatment not requiring consent.
The consent of a patient shall not be required for any medical treatment given to him for the mental disorder from which he is suffering F314, not being a form of treatment to which section 57, 58 or 58A above applies, if the treatment is given by or under the direction of the F315approved clinician in charge of the treatment .
64 Supplementary provisions for Part IV.
1
F3181A
References in this Part of this Act to the approved clinician in charge of a patient's treatment shall, where the treatment in question is a form of treatment to which section 57 above applies, be construed as references to the person in charge of the treatment.
F3191B
References in this Part of this Act to the approved clinician in charge of a patient's treatment shall, where the treatment in question is a form of treatment to which section 58A above applies and the patient falls within section 56(5) above, be construed as references to the person in charge of the treatment.
1C
Regulations made by virtue of section 32(2)(d) above apply for the purposes of this Part as they apply for the purposes of Part 2 of this Act.
2
Any certificate for the purposes of this Part of this Act shall be in such form as may be prescribed by regulations made by the Secretary of State.
F3203
For the purposes of this Part of this Act, it is appropriate for treatment to be given to a patient if the treatment is appropriate in his case, taking into account the nature and degree of the mental disorder from which he is suffering and all other circumstances of his case.
F712Part 4ATreatment of community patients not recalled to hospital
Pt. 4A (ss. 64A-64K) inserted (1.4.2008 for s. 64H for certain purposes, otherwise 3.11.2008 for ss. 64A-64K) by Mental Health Act 2007 (c. 12) , ss. 35(1) , 56 (with Sch. 10 ); S.I. 2008/745 , arts. 2(d), 3(e); S.I. 2008/1900 , art. 2(k) (with art. 3, Sch.)
64AMeaning of “relevant treatment”
In this Part of this Act “ relevant treatment ”, in relation to a patient, means medical treatment which—
a
is for the mental disorder from which the patient is suffering; and
b
is not a form of treatment to which section 57 above applies.
64BAdult community patients
1
This section applies to the giving of relevant treatment to a community patient who—
a
is not recalled to hospital under section 17E above; and
b
has attained the age of 16 years.
2
The treatment may not be given to the patient unless—
a
there is authority to give it to him; and
b
if it is section 58 type treatment or section 58A type treatment, the certificate requirement is met.
3
But the certificate requirement does not apply if—
a
giving the treatment to the patient is authorised in accordance with section 64G below; or
b
the treatment is immediately necessary and—
i
the patient has capacity to consent to it and does consent to it; or
ii
a donee or deputy or the Court of Protection consents to the treatment on the patient's behalf.
4
Nor does the certificate requirement apply in so far as the administration of medicine to the patient at any time during the period of one month beginning with the day on which the community treatment order is made is section 58 type treatment.
5
The reference in subsection (4) above to the administration of medicine does not include any form of treatment specified under section 58(1)(a) above.
64CSection 64B: supplemental
1
This section has effect for the purposes of section 64B above.
2
There is authority to give treatment to a patient if—
a
he has capacity to consent to it and does consent to it;
b
a donee or deputy or the Court of Protection consents to it on his behalf; or
c
giving it to him is authorised in accordance with section 64D or 64G below.
3
Relevant treatment is section 58 type treatment or section 58A type treatment if, at the time when it is given to the patient, section 58 or 58A above (respectively) would have applied to it, had the patient remained liable to be detained at that time (rather than being a community patient).
4
The certificate requirement is met in respect of treatment to be given to a patient if—
a
a registered medical practitioner appointed for the purposes of Part 4 of this Act (not being the responsible clinician or the person in charge of the treatment) has certified in writing that it is appropriate for the treatment to be given or for the treatment to be given subject to such conditions as may be specified in the certificate; and
b
if conditions are so specified, the conditions are satisfied.
F8884A
Where there is authority to give treatment by virtue of subsection (2)(a), the certificate requirement is also met in respect of the treatment if the approved clinician in charge of the treatment has certified in writing that the patient has capacity to consent to the treatment and has consented to it.
4B
But, if the patient has not attained the age of 18, subsection (4A) does not apply to section 58A type treatment.
5
In a case where the treatment is section 58 type treatment, treatment is immediately necessary if—
a
it is immediately necessary to save the patient's life; or
b
it is immediately necessary to prevent a serious deterioration of the patient's condition and is not irreversible; or
c
it is immediately necessary to alleviate serious suffering by the patient and is not irreversible or hazardous; or
d
it is immediately necessary, represents the minimum interference necessary to prevent the patient from behaving violently or being a danger to himself or others and is not irreversible or hazardous.
6
In a case where the treatment is section 58A type treatment by virtue of subsection (1)(a) of that section, treatment is immediately necessary if it falls within paragraph (a) or (b) of subsection (5) above.
7
In a case where the treatment is section 58A type treatment by virtue of subsection (1)(b) of that section, treatment is immediately necessary if it falls within such of paragraphs (a) to (d) of subsection (5) above as may be specified in regulations under that section.
8
For the purposes of subsection (7) above, the regulations—
a
may make different provision for different cases (and may, in particular, make different provision for different forms of treatment);
b
may make provision which applies subject to specified exceptions; and
c
may include transitional, consequential, incidental or supplemental provision.
9
Subsection (3) of section 62 above applies for the purposes of this section as it applies for the purposes of that section.
64DAdult community patients lacking capacity
1
A person is authorised to give relevant treatment to a patient as mentioned in section 64C(2)(c) above if the conditions in subsections (2) to (6) below are met.
2
The first condition is that, before giving the treatment, the person takes reasonable steps to establish whether the patient lacks capacity to consent to the treatment.
3
The second condition is that, when giving the treatment, he reasonably believes that the patient lacks capacity to consent to it.
4
The third condition is that—
a
he has no reason to believe that the patient objects to being given the treatment; or
b
he does have reason to believe that the patient so objects, but it is not necessary to use force against the patient in order to give the treatment.
5
The fourth condition is that—
a
he is the person in charge of the treatment and an approved clinician; or
b
the treatment is given under the direction of that clinician.
6
The fifth condition is that giving the treatment does not conflict with—
a
an advance decision which he is satisfied is valid and applicable; or
b
a decision made by a donee or deputy or the Court of Protection.
7
In this section—
a
reference to an advance decision is to an advance decision (within the meaning of the Mental Capacity Act 2005) made by the patient; and
b
“ valid and applicable ”, in relation to such a decision, means valid and applicable to the treatment in question in accordance with section 25 of that Act.
64EChild community patients
1
This section applies to the giving of relevant treatment to a community patient who—
a
is not recalled to hospital under section 17E above; and
b
has not attained the age of 16 years.
2
The treatment may not be given to the patient unless—
a
there is authority to give it to him; and
b
if it is section 58 type treatment or section 58A type treatment, the certificate requirement is met.
3
But the certificate requirement does not apply if—
a
giving the treatment to the patient is authorised in accordance with section 64G below; or
b
in a case where the patient is competent to consent to the treatment and does consent to it, the treatment is immediately necessary.
4
Nor does the certificate requirement apply in so far as the administration of medicine to the patient at any time during the period of one month beginning with the day on which the community treatment order is made is section 58 type treatment.
5
The reference in subsection (4) above to the administration of medicine does not include any form of treatment specified under section 58(1)(a) above.
6
For the purposes of subsection (2)(a) above, there is authority to give treatment to a patient if—
a
he is competent to consent to it and he does consent to it; or
b
giving it to him is authorised in accordance with section 64F or 64G below.
7
Subsections F889(3) to (4A) and (5) to (9) of section 64C above have effect for the purposes of this section as they have effect for the purposes of section 64B above F890; and for the purpose of this subsection, subsection (4A) of section 64C above has effect as if—
a
the references to treatment were references only to section 58 type treatment,
b
the reference to subsection (2)(a) of section 64C were a reference to subsection (6)(a) of this section, and
c
the reference to capacity to consent were a reference to competence to consent.
8
Regulations made by virtue of section 32(2)(d) above apply for the purposes of this section as they apply for the purposes of Part 2 of this Act.
64FChild community patients lacking competence
1
A person is authorised to give relevant treatment to a patient as mentioned in section 64E(6)(b) above if the conditions in subsections (2) to (5) below are met.
2
The first condition is that, before giving the treatment, the person takes reasonable steps to establish whether the patient is competent to consent to the treatment.
3
The second condition is that, when giving the treatment, he reasonably believes that the patient is not competent to consent to it.
4
The third condition is that—
a
he has no reason to believe that the patient objects to being given the treatment; or
b
he does have reason to believe that the patient so objects, but it is not necessary to use force against the patient in order to give the treatment.
5
The fourth condition is that—
a
he is the person in charge of the treatment and an approved clinician; or
b
the treatment is given under the direction of that clinician.
64FAF882Withdrawal of consent
1
Where the consent of a patient to any treatment has been given as mentioned in section 64C(2)(a) above for the purposes of section 64B or 64E above, the patient may at any time before the completion of the treatment withdraw his consent, and those sections shall then apply as if the remainder of the treatment were a separate form of treatment.
2
Subsection (3) below applies where—
a
the consent of a patient to any treatment has been given as mentioned in section 64C(2)(a) above for the purposes of section 64B or 64E above; but
b
before the completion of the treatment, the patient loses capacity or (as the case may be) competence to consent to the treatment.
3
The patient shall be treated as having withdrawn his consent and section 64B or (as the case may be) section 64E above shall then apply as if the remainder of the treatment were a separate form of treatment.
4
Without prejudice to the application of subsections (1) to (3) above to any treatment given under the plan of treatment to which a patient has consented, a patient who has consented to such a plan may at any time withdraw his consent to further treatment, or to further treatment of any description, under the plan.
5
This section shall not preclude the continuation of any treatment, or of treatment under any plan, pending compliance with section 58, 58A, 64B or 64E above if the approved clinician in charge of the treatment considers that the discontinuance of the treatment, or of treatment under the plan, would cause serious suffering to the patient.
64GEmergency treatment for patients lacking capacity or competence
1
A person is also authorised to give relevant treatment to a patient as mentioned in section 64C(2)(c) or 64E(6)(b) above if the conditions in subsections (2) to (4) below are met.
2
The first condition is that, when giving the treatment, the person reasonably believes that the patient lacks capacity to consent to it or, as the case may be, is not competent to consent to it.
3
The second condition is that the treatment is immediately necessary.
4
The third condition is that if it is necessary to use force against the patient in order to give the treatment—
a
the treatment needs to be given in order to prevent harm to the patient; and
b
the use of such force is a proportionate response to the likelihood of the patient's suffering harm, and to the seriousness of that harm.
5
Subject to subsections (6) to (8) below, treatment is immediately necessary if—
a
it is immediately necessary to save the patient's life; or
b
it is immediately necessary to prevent a serious deterioration of the patient's condition and is not irreversible; or
c
it is immediately necessary to alleviate serious suffering by the patient and is not irreversible or hazardous; or
d
it is immediately necessary, represents the minimum interference necessary to prevent the patient from behaving violently or being a danger to himself or others and is not irreversible or hazardous.
6
Where the treatment is section 58A type treatment by virtue of subsection (1)(a) of that section, treatment is immediately necessary if it falls within paragraph (a) or (b) of subsection (5) above.
7
Where the treatment is section 58A type treatment by virtue of subsection (1)(b) of that section, treatment is immediately necessary if it falls within such of paragraphs (a) to (d) of subsection (5) above as may be specified in regulations under section 58A above.
8
For the purposes of subsection (7) above, the regulations—
a
may make different provision for different cases (and may, in particular, make different provision for different forms of treatment);
b
may make provision which applies subject to specified exceptions; and
c
may include transitional, consequential, incidental or supplemental provision.
9
Subsection (3) of section 62 above applies for the purposes of this section as it applies for the purposes of that section.
64HCertificates: supplementary provisions
1
A certificate under section 64B(2)(b) or 64E(2)(b) above (a “Part 4A certificate”) may relate to a plan of treatment under which the patient is to be given (whether within a specified period or otherwise) one or more forms of section 58 type treatment or section 58A type treatment.
2
A Part 4A certificate shall be in such form as may be prescribed by regulations made by the appropriate national authority F891; and the regulations may make different provision for the different descriptions of Part 4A certificate.
3
Before giving a Part 4A certificate F892that falls within section 64C(4) above, the registered medical practitioner concerned shall consult two other persons who have been professionally concerned with the patient's medical treatment but, of those persons—
a
at least one shall be a person who is not a registered medical practitioner; and
b
neither shall be the patient's responsible clinician or the person in charge of the treatment in question.
4
Where a patient is given treatment in accordance with a Part 4A certificate F892that falls within section 64C(4) above, a report on the treatment and the patient's condition shall be given by the person in charge of the treatment to the appropriate national authority if required by that authority.
5
The appropriate national authority may at any time give notice directing that a Part 4A certificate F892that falls within section 64C(4) above shall not apply to treatment given to a patient after a date specified in the notice, and the relevant section shall then apply to any such treatment as if that certificate had not been given.
6
The relevant section is—
a
if the patient is not recalled to hospital in accordance with section 17E above, section 64B or 64E above;
b
if the patient is so recalled or is liable to be detained under this Act following revocation of the community treatment order under section 17F above—
i
section 58 above, in the case of section 58 type treatment;
ii
section 58A above, in the case of section 58A type treatment;
(subject to section 62A(2) above).
7
The notice under subsection (5) above shall be given to the person in charge of the treatment in question.
8
Subsection (5) above shall not preclude the continuation of any treatment or of treatment under any plan pending compliance with the relevant section if the person in charge of the treatment considers that the discontinuance of the treatment or of treatment under the plan would cause serious suffering to the patient.
9
In this section, “ the appropriate national authority ” means—
a
in relation to community patients in respect of whom the responsible hospital is in England, the Secretary of State;
b
in relation to community patients in respect of whom the responsible hospital is in Wales, the Welsh Ministers.
64ILiability for negligence
Nothing in section 64D, 64F or 64G above excludes a person's civil liability for loss or damage, or his criminal liability, resulting from his negligence in doing anything authorised to be done by that section.
64JFactors to be considered in determining whether patient objects to treatment
1
In assessing for the purposes of this Part whether he has reason to believe that a patient objects to treatment, a person shall consider all the circumstances so far as they are reasonably ascertainable, including the patient's behaviour, wishes, feelings, views, beliefs and values.
2
But circumstances from the past shall be considered only so far as it is still appropriate to consider them.
64KInterpretation of Part 4A
1
This Part of this Act is to be construed as follows.
2
References to a patient who lacks capacity are to a patient who lacks capacity within the meaning of the Mental Capacity Act 2005.
3
References to a patient who has capacity are to be read accordingly.
4
References to a donee are to a donee of a lasting power of attorney (within the meaning of section 9 of the Mental Capacity Act 2005) created by the patient, where the donee is acting within the scope of his authority and in accordance with that Act.
5
References to a deputy are to a deputy appointed for the patient by the Court of Protection under section 16 of the Mental Capacity Act 2005, where the deputy is acting within the scope of his authority and in accordance with that Act.
6
Reference to the responsible clinician shall be construed as a reference to the responsible clinician within the meaning of Part 2 of this Act.
7
References to a hospital include a registered establishment.
8
Section 64(3) above applies for the purposes of this Part of this Act as it applies for the purposes of Part 4 of this Act.
Part V Mental Health Review Tribunals
Constitution etc.
65 Mental Health Review F323Tribunal for Wales.
C56F3241
There shall F325be a Mental Health Review Tribunal for Wales.
1A
The purpose of F326that tribunal is to deal with applications and references by and in respect of patients under the provisions of this Act.
2
The provisions of Schedule 2 to this Act shall have effect with respect to the constitution of F327the Mental Health Review Tribunal for Wales.
3
Subject to the provisions of Schedule 2 to this Act, and to rules made by the Lord Chancellor under this Act, the jurisdiction of F328the Mental Health Review Tribunal for Wales may be exercised by any three or more of its members, and references in this Act to F328the Mental Health Review Tribunal for Wales shall be construed accordingly.
F3294
The Welsh Ministers may pay to the members of the Mental Health Review Tribunal for Wales such remuneration and allowances as they may determine, and defray the expenses of that tribunal to such amount as they may determine, and may provide for that tribunal such officers and servants, and such accommodation, as that tribunal may require.
Applications and references concerning Part II patients
C5766 Applications to tribunals.
1
Where—
a
a patient is admitted to a hospital in pursuance of an application for admission for assessment; or
b
a patient is admitted to a hospital in pursuance of an application for admission for treatment; or
c
a patient is received into guardianship in pursuance of a guardianship application; or
F330ca
a community treatment order is made in respect of a patient; or
cb
a community treatment order is revoked under section 17F above in respect of a patient; or
d
F331. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
e
a patient is transferred from guardianship to a hospital in pursuance of regulations made under section 19 above; or
f
a report is furnished under section 20 above in respect of a patient and the patient is not discharged F332under section 23 above ; or
F333fza
a report is furnished under section 20A above in respect of a patient and the patient is not discharged under section 23 above; or
F334fa
a report is furnished under subsection (2) of section 21B above in respect of a patient and subsection (5) of that section applies (or subsections (5) and (6)(b) of that section apply) in the case of the report; or
F335faa
a report is furnished under subsection (2) of section 21B above in respect of a community patient and subsection (6A) of that section applies (or subsections (6A) and (6B)(b) of that section apply) in the case of the report; or
fb
F336. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
g
a report is furnished under section 25 above in respect of a patient who is detained in pursuance of an application for admission for treatment F337or a community patient ; or
ga
F338. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
gb
F338. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
gc
F338. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
h
an application may be made to F341the appropriate tribunal within the relevant period—
i
by the patient (except in the cases mentioned in paragraphs (g) and (h) above F342. . .
ii
in the cases mentioned in paragraphs (g) and (h) above, by his nearest relative.
2
In subsection (1) above “the relevant period” means—
a
in the case mentioned in paragraph (a) of that subsection, 14 days beginning with the day on which the patient is admitted as so mentioned;
b
in the case mentioned in paragraph (b) of that subsection, six months beginning with the day on which the patient is admitted as so mentioned;
c
in the F343case mentioned in paragraph (c) of that subsection, six months beginning with the day on which the application is accepted;
F344ca
in the case mentioned in paragraph (ca) of that subsection, six months beginning with the day on which the community treatment order is made;
cb
in the case mentioned in paragraph (cb) of that subsection, six months beginning with the day on which the community treatment order is revoked;
d
e
in the case mentioned in paragraph (e) of that subsection, six months beginning with the day on which the patient is transferred;
f
in the case mentioned in paragraph (f) F347or (fa) of that subsection, the period or periods for which authority for the patient’s detention or guardianship is renewed by virtue of the report;
F348fza
in the cases mentioned in paragraphs (fza) and (faa) of that subsection, the period or periods for which the community treatment period is extended by virtue of the report;
fa
F349. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
g
in the case mentioned in paragraph (h) of that subsection, 12 months beginning with the date of the order, and in any subsequent period of 12 months during which the order continues in force.
F3502A
Nothing in subsection (1)(b) above entitles a community patient to make an application by virtue of that provision even if he is admitted to a hospital on being recalled there under section 17E above.
3
Section 32 above shall apply for the purposes of this section as it applies for the purposes of Part II of this Act.
F3514
In this Act “the appropriate tribunal” means the First-tier Tribunal or the Mental Health Review Tribunal for Wales.
5
For provision determining to which of those tribunals applications by or in respect of a patient under this Act shall be made, see section 77(3) and (4) below.
67 References to tribunals by Secretary of State concerning Part II patients.
C581
2
For the purpose of furnishing information for the purposes of a reference under subsection (1) above any registered medical practitioner F355or approved clinician authorised by or on behalf of the patient may, at any reasonable time, visit the patient and examine him in private and require the production of and inspect any records relating to the detention or treatment of the patient in any hospital F356or to any after-care services provided for the patient under section 117 below.
3
Section 32 above shall apply for the purposes of this section as it applies for the purposes of Part II of this Act.
68F357 Duty of managers of hospitals to refer cases to tribunal.
1
This section applies in respect of the following patients—
a
a patient who is admitted to a hospital in pursuance of an application for admission for assessment;
b
a patient who is admitted to a hospital in pursuance of an application for admission for treatment;
c
a community patient;
d
a patient whose community treatment order is revoked under section 17F above;
e
a patient who is transferred from guardianship to a hospital in pursuance of regulations made under section 19 above.
2
On expiry of the period of six months beginning with the applicable day, the managers of the hospital shall refer the patient's case to F358the appropriate tribunal.
3
But they shall not do so if during that period—
a
any right has been exercised by or in respect of the patient by virtue of any of paragraphs (b), (ca), (cb), (e), (g) and (h) of section 66(1) above;
b
a reference has been made in respect of the patient under section 67(1) above, not being a reference made while the patient is or was liable to be detained in pursuance of an application for admission for assessment; or
c
a reference has been made in respect of the patient under subsection (7) below.
4
A person who applies to a tribunal but subsequently withdraws his application shall be treated for these purposes as not having exercised his right to apply, and if he withdraws his application on a date after expiry of the period mentioned in subsection (2) above, the managers shall refer the patient's case as soon as possible after that date.
5
In subsection (2) above, “the applicable day” means—
a
in the case of a patient who is admitted to a hospital in pursuance of an application for admission for assessment, the day on which the patient was so admitted;
b
in the case of a patient who is admitted to a hospital in pursuance of an application for admission for treatment—
i
the day on which the patient was so admitted; or
ii
if, when he was so admitted, he was already liable to be detained in pursuance of an application for admission for assessment, the day on which he was originally admitted in pursuance of the application for admission for assessment;
c
in the case of a community patient or a patient whose community treatment order is revoked under section 17F above, the day mentioned in sub-paragraph (i) or (ii), as the case may be, of paragraph (b) above;
d
in the case of a patient who is transferred from guardianship to a hospital, the day on which he was so transferred.
6
The managers of the hospital shall also refer the patient's case to F359the appropriate tribunal if a period of more than three years (or, if the patient has not attained the age of 18 years, one year) has elapsed since his case was last considered by such a tribunal, whether on his own application or otherwise.
7
If, in the case of a community patient, the community treatment order is revoked under section 17F above, the managers of the hospital shall also refer the patient's case to F360the appropriate tribunal as soon as possible after the order is revoked.
8
For the purposes of furnishing information for the purposes of a reference under this section, a registered medical practitioner or approved clinician authorised by or on behalf of the patient may at any reasonable time—
a
visit and examine the patient in private; and
b
require the production of and inspect any records relating to the detention or treatment of the patient in any hospital or any after-care services provided for him under section 117 below.
9
Reference in this section to the managers of the hospital—
a
in relation to a community patient, is to the managers of the responsible hospital;
b
in relation to any other patient, is to the managers of the hospital in which he is liable to be detained.
68AF362Power to reduce periods under section 68
1
The appropriate national authority may from time to time by order amend subsection (2) or (6) of section 68 above so as to substitute for a period mentioned there such shorter period as is specified in the order.
2
The order may include such transitional, consequential, incidental or supplemental provision as the appropriate national authority thinks fit.
3
The order may, in particular, make provision for a case where—
a
a patient in respect of whom subsection (1) of section 68 above applies is, or is about to be, transferred from England to Wales or from Wales to England; and
b
the period by reference to which subsection (2) or (6) of that section operates for the purposes of the patient's case is not the same in one territory as it is in the other.
4
A patient is transferred from one territory to the other if—
a
he is transferred from a hospital, or from guardianship, in one territory to a hospital in the other in pursuance of regulations made under section 19 above;
b
he is removed under subsection (3) of that section from a hospital or accommodation in one territory to a hospital or accommodation in the other;
c
he is a community patient responsibility for whom is assigned from a hospital in one territory to a hospital in the other in pursuance of regulations made under section 19A above; F895or
d
on the revocation of a community treatment order in respect of him under section 17F above he is detained in a hospital in the territory other than the one in which the responsible hospital was situated; F896...
F897e
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
5
Provision made by virtue of subsection (3) above may require or authorise the managers of a hospital determined in accordance with the order to refer the patient's case to F361the appropriate tribunal.
6
In so far as making provision by virtue of subsection (3) above, the order—
a
may make different provision for different cases;
b
may make provision which applies subject to specified exceptions.
7
Where the appropriate national authority for one territory makes an order under subsection (1) above, the appropriate national authority for the other territory may by order make such provision in consequence of the order as it thinks fit.
8
An order made under subsection (7) above may, in particular, make provision for a case within subsection (3) above (and subsections (4) to (6) above shall apply accordingly).
9
In this section, “ the appropriate national authority ” means—
a
in relation to a hospital in England, the Secretary of State;
b
in relation to a hospital in Wales, the Welsh Ministers.
Applications and references concerning Part III patients
69 Applications to tribunals concerning patients subject to hospital and guardianship orders.
1
Without prejudice to any provision of section 66(1) above as applied by section 40(4) above, an application to F363the appropriate tribunal may also be made—
F364a
in respect of a patient liable to be detained in pursuance of a hospital order or a community patient who was so liable immediately before he became a community patient, by the nearest relative of the patient in any period in which an application may be made by the patient under any such provision as so applied;
b
in respect of a patient placed under guardianship by a guardianship order—
i
by the patient, within the period of six months beginning with the date of the order;
ii
by the nearest relative of the patient, within the period of 12 months beginning with the date of the order and in any subsequent period of 12 months.
2
Where a person detained in a hospital—
a
b
is subject to a direction having the same effect as a hospital order by virtue of sectionF367. . . 47(3) or 48(3) above,
then, without prejudice to any provision of Part II of this Act as applied by section 40 above, that person may make an application to F368the appropriate tribunal in the period of six months beginning with the date of the order or direction mentioned in paragraph (a) above or, as the case may be, the date of the direction mentioned in paragraph (b) above.
F3693
The provisions of section 66 above as applied by section 40(4) above are subject to subsection (4) below.
4
If the initial detention period has not elapsed when the relevant application period begins, the right of a hospital order patient to make an application by virtue of paragraph (ca) or (cb) of section 66(1) above shall be exercisable only during whatever remains of the relevant application period after the initial detention period has elapsed.
5
In subsection (4) above—
a
“hospital order patient” means a patient who is subject to a hospital order, excluding a patient of a kind mentioned in paragraph (a) or (b) of subsection (2) above;
b
“the initial detention period”, in relation to a hospital order patient, means the period of six months beginning with the date of the hospital order; and
c
“the relevant application period” means the relevant period mentioned in paragraph (ca) or (cb), as the case may be, of section 66(2) above.
70 Applications to tribunals concerning restricted patients.
A patient who is a restricted patient within the meaning of section 79 below and is detained in a hospital may apply to F370the appropriate tribunal—
a
in the period between the expiration of six months and the expiration of 12 months beginning with the date of the relevant hospital order F371, hospital direction or transfer direction; and
b
in any subsequent period of 12 months.
71 References by Secretary of State concerning restricted patients.
1
The Secretary of State may at any time refer the case of a restricted patient to F372the appropriate tribunal.
2
The Secretary of State shall refer to F372the appropriate tribunal the case of any restricted patient detained in a hospital whose case has not been considered by such a tribunal, whether on his own application or otherwise, within the last three years.
3
The Secretary of State may by order vary the length of the period mentioned in subsection (2) above.
F3733A
An order under subsection (3) above may include such transitional, consequential, incidental or supplemental provision as the Secretary of State thinks fit.
4
Any reference under subsection (1) above in respect of a patient who has been conditionally discharged and not recalled to hospital shall be made to the tribunal for the area in which the patient resides.
5
F374. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
6
F374. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Discharge of patients
72C59Powers of tribunals.
F3751
Where application is made to F376the appropriate tribunal by or in respect of a patient who is liable to be detained under this Act F377or is a community patient , the tribunal may in any case direct that the patient be discharged, and—
a
the tribunal shall direct the discharge of a patient liable to be detained under section 2 above if F378it is not satisfied—
i
that he is then suffering from mental disorder or from mental disorder of a nature or degree which warrants his detention in a hospital for assessment (or for assessment followed by medical treatment) for at least a limited period; or
ii
that his detention as aforesaid is justified in the interests of his own health or safety or with a view to the protection of other persons;
b
the tribunal shall direct the discharge of a patient liable to be detained otherwise than under section 2 above if F378it is not satisfied—
i
that he is then suffering from F379 mental disorder or from mental disorderof a nature or degree which makes it appropriate for him to be liable to be detained in a hospital for medical treatment; or
ii
that it is necessary for the health of safety of the patient or for the protection of other persons that he should receive such treatment; or
F380iia
that appropriate medical treatment is available for him; or
iii
in the case of an application by virtue of paragraph (g) of section 66(1) above, that the patient, if released, would be likely to act in a manner dangerous to other persons or to himself.
F381c
the tribunal shall direct the discharge of a community patient if F378it is not satisfied—
i
that he is then suffering from mental disorder or mental disorder of a nature or degree which makes it appropriate for him to receive medical treatment; or
ii
that it is necessary for his health or safety or for the protection of other persons that he should receive such treatment; or
iii
that it is necessary that the responsible clinician should be able to exercise the power under section 17E(1) above to recall the patient to hospital; or
iv
that appropriate medical treatment is available for him; or
v
in the case of an application by virtue of paragraph (g) of section 66(1) above, that the patient, if discharged, would be likely to act in a manner dangerous to other persons or to himself.
F3821A
In determining whether the criterion in subsection (1)(c)(iii) above is met, the tribunal shall, in particular, consider, having regard to the patient's history of mental disorder and any other relevant factors, what risk there would be of a deterioration of the patient's condition if he were to continue not to be detained in a hospital (as a result, for example, of his refusing or neglecting to receive the medical treatment he requires for his mental disorder).
2
F383. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
3
A tribunal may under subsection (1) above direct the discharge of a patient on a future date specified in the direction; and where a tribunal F384does not direct the discharge of a patient under that subsection the tribunal may—
a
with a view to facilitating his discharge on a future date, recommend that he be granted leave of absence or transferred to another hospital or into guardianship; and
b
further consider his case in the event of any such recommendation not being complied with.
F3853A
Subsection (1) above does not require a tribunal to direct the discharge of a patient just because F386it thinks it might be appropriate for the patient to be discharged (subject to the possibility of recall) under a community treatment order; and a tribunal—
a
may recommend that the responsible clinician consider whether to make a community treatment order; and
b
may (but need not) further consider the patient's case if the responsible clinician does not make an order.
4
Where application is made to F387the appropriate tribunal by or in respect of a patient who is subject to guardianship under this Act, the tribunal may in any case direct that the patient be discharged, and shall so direct if F388it is satisfied—
a
that he is not then suffering from F389mental disorder ; or
b
that it is not necessary in the interests of the welfare of the patient, or for the protection of other persons, that the patient should remain under such guardianship.
4A
F390. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
5
F391. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
6
7
Subsection (1) above shall not apply in the case of a restricted patient except as provided in sections 73 and 74 below.
73 Power to discharge restricted patients.
F3951
Where an application to F396the appropriate tribunal is made by a restricted patient who is subject to a restriction order, or where the case of such a patient is referred to F397the appropriate tribunal, the tribunal shall direct the absolute discharge of the patient if—
a
b
F398the tribunal is satisfied that it is not appropriate for the patient to remain liable to be recalled to hospital for further treatment.
2
Where in the case of any such patient as is mentioned in subsection (1) above—
a
paragraph (a) of that subsection applies; but
b
paragraph (b) of that subsection does not apply,
the tribunal shall direct the conditional discharge of the patient.
3
Where a patient is absolutely discharged under this section 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.
4
Where a patient is conditionally discharged under this section—
a
he may be recalled by the Secretary of State under subsection (3) of section 42 above as if he had been conditionally discharged under subsection (2) of that section; and
b
the patient shall comply with such conditions (if any) as may be imposed at the time of discharge by the tribunal or at any subsequent time by the Secretary of State.
5
The Secretary of State may from time to time vary any condition imposed (whether by the tribunal or by him) under subsection (4) above.
6
Where a restriction order in respect of a patient ceases to have effect after he has been conditionally discharged under this section the patient shall, unless previously recalled, 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.
7
A tribunal may defer a direction for the conditional discharge of a patient until such arrangements as appear to the tribunal to be necessary for that purpose have been made to F400its satisfaction; and where by virtue of any such deferment no direction has been given on an application or reference before the time when the patient’s case comes before the tribunal on a subsequent application or reference, the previous application or reference shall be treated as one on which no direction under this section can be given.
8
This section is without prejudice to section 42 above.
74 Restricted patients subject to restriction directions.
1
Where an application to F401the appropriate tribunal is made by a restricted patient who is subject to F402a limitation direction or a restriction direction, or where the case of such a patient is referred to F403the appropriate tribunal, the tribunal—
a
shall notify the Secretary of State whether, in F404its opinion, the patient would, if subject to a restriction order, be entitled to be absolutely or conditionally discharged under section 73 above; and
b
if F405the tribunal notifies him that the patient would be entitled to be conditionally discharged, may recommend that in the event of his not being discharged under this section he should continue to be detained in hospital.
2
If in the case of a patient not falling within subsection (4) below—
a
the tribunal F406notifies the Secretary of State that the patient would be entitled to be absolutely or conditionally discharged; and
b
within the period of 90 days beginning with the date of that notification the Secretary of State gives notice to the tribunal that the patient may be so discharged,
the tribunal shall direct the absolute or, as the case may be, the conditional discharge of the patient.
3
Where a patient continues to be liable to be detained in a hospital at the end of the period referred to in subsection (2)(b) above because the Secretary of State has not given the notice there mentioned, the managers of the hospital shall, unless F407the tribunal has made a recommendation under subsection (1)(b) above, transfer the patient to a 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.
4
If, in the case of a patient who is subject to a transfer direction under section 48 above, the tribunal F408notifies the Secretary of State that the patient would be entitled to be absolutely or conditionally discharged, the Secretary of State shall, unless F409the tribunal has made a recommendation under subsection (1)(b) above, by warrant direct that the patient be remitted to a 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.
5
Where a patient is transferred or remitted under subsection (3) or (4) above F410the relevant hospital direction and the limitation direction or, as the casemay be, the relevant transfer direction and the restriction direction shall cease to have effect on his arrival in the prison or other institution.
F4115A
Where F412the tribunal has made a recommendation under subsection (1)(b) above in the case of a patient who is subject to a restriction direction or a limitation direction—
a
the fact that the restriction direction or limitation direction remains in force does not prevent the making of any application or reference to the Parole Board by or in respect of him or the exercise by him of any power to require the Secretary of State to refer his case to the Parole Board, and
b
if the Parole Board make a direction or recommendation by virtue of which the patient would become entitled to be released (whether unconditionally or on licence) from any prison or other institution in which he might have been detained if he had not been removed to hospital, the restriction direction or limitation direction shall cease to have effect at the time when he would become entitled to be so released.
6
Subsections (3) to (8) of section 73 above shall have effect in relation to this section as they have effect in relation to that section, taking references to the relevant hospital order and the restriction order as references to F413the hospital direction and the limitation direction or, as the case may be, to the transfer direction and the restriction direction.
7
This section is without prejudice to sections 50 to 53 above in their application to patients who are not discharged under this section.
75 Applications and references concerning conditionally discharged restricted patients.
1
Where a restricted patient has been conditionally discharged under section 42(2), 73 or 74 above and is subsequently recalled to hospital—
a
the Secretary of State shall, within one month of the day on which the patient returns or is returned to hospital, refer his case to F414the appropriate tribunal; and
b
section 70 above shall apply to the patient as if the relevant hospital order F415, hospital direction or transfer direction had been made on that day.
2
Where a restricted patient has been conditionally discharged as aforesaid but has not been recalled to hospital he may apply to F416the appropriate tribunal—
a
in the period between the expiration of 12 months and the expiration of two years beginning with the date on which he was conditionally discharged; and
b
in any subsequent period of two years.
3
Sections 73 and 74 above shall not apply to an application under subsection (2) above but on any such application the tribunal may—
a
vary any condition to which the patient is subject in connection with his discharge or impose any condition which might have been imposed in connection therewith; or
b
direct that the restriction order F417, limitation direction or restriction direction to which he is subject shall cease to have effect;
General
C6076 Visiting and examination of patients.
C611
For the purpose of advising whether an application to F420the appropriate tribunal should be made by or in respect of a patient who is liable to be detained or subject to guardianship F421. . . under Part II of this Act F422or a community patient, or of furnishing information as to the condition of a patient for the purposes of such an application, any registered medical practitioner F423or approved clinician authorised by or on behalf of the patient or other person who is entitled to make or has made the application—
a
may at any reasonable time visit the patient and examine him in private, and
b
may require the production of and inspect any records relating to the detention or treatment of the patient in any hospital F424or to any after-care services provided for the patient under section 117 below..
2
Section 32 above shall apply for the purposes of this section as it applies for the purposes of Part II of this Act.
77 General provisions concerning tribunal applications.
1
No application shall be made to F425the appropriate tribunal by or in respect of a patient under this Act except in such cases and at such times as are expressly provided by this Act.
2
Where under this Act any person is authorised to make an application to F426the appropriate tribunal within a specified period, not more than one such application shall be made by that person within that period but for that purpose there shall be disregarded any application which is withdrawn in accordance with F427Tribunal Procedure Rules or rules made under section 78 below.
C623
Subject to subsection (4) below an application to F428a tribunal authorised to be made by or in respect of a patient under this Act shall be made by notice in writing addressed
F429a
in the case of a patient who is liable to be detained in a hospital, F430to the First-tier Tribunal where that hospital is in England and to the Mental Health Review Tribunal for Wales where that hospital is in Wales;
b
in the case of a community patient, F431to the First-tier Tribunal where the responsible hospital is in England and to the Mental Health Review Tribunal for Wales where that hospital is in Wales;
c
in the case of a patient subject to guardianship, F432to the First-tier Tribunal where the patient resides in England and to the Mental Health Review Tribunal for Wales where the patient resides in Wales.
4
Any application under section 75(2) above shall be made F433to the First-tier Tribunal where the patient resides in England and to the Mental Health Review Tribunal for Wales where the patient resides in Wales.
C8578 Procedure of F434Mental Health Review Tribunal for Wales.
1
2
Rules made under this section may in particular make provision—
a
for enabling F437the tribunal, or the F996President of F437the tribunal, to postpone the consideration of any application by or in respect of a patient, or of any such application of any specified class, until the expiration of such period (not exceeding 12 months) as may be specified in the rules from the date on which an application by or in respect of the same patient was last considered and determined F438under this Act by the tribunal or the First-tier Tribunal;
F439b
for the transfer of proceedings to or from the Mental Health Review Tribunal for Wales in any case where, after the making of the application, the patient is moved into or out of Wales;
c
for restricting the persons qualified to serve as members of F437the tribunal for the consideration of any application, or of an application of any specified class;
d
for enabling F437the tribunal to dispose of an application without a formal hearing where such a hearing is not requested by the applicant or it appears to the tribunal that such a hearing would be detrimental to the health of the patient;
e
for enabling F437the tribunal to exclude members of the public, or any specified class of members of the public, from any proceedings of the tribunal, or to prohibit the publication of reports of any such proceedings or the names of any persons concerned in such proceedings;
f
for regulating the circumstances in which, and the persons by whom, applicants and patients in respect of whom applications are made to F437the tribunal may, if not desiring to conduct their own case, be represented for the purposes of those applications;
g
for regulating the methods by which information relevant to an application may be obtained by or furnished to the tribunal, and in particular for authorising the members of F437the tribunal, or any one or more of them, to visit and interview in private any patient by or in respect of whom an application has been made;
h
for making available to any applicant, and to any patient in respect of whom an application is made to F437the tribunal, copies of any documents obtained by or furnished to the tribunal in connection with the application, and a statement of the substance of any oral information so obtained or furnished except where the tribunal considers it undesirable in the interests of the patient or for other special reasons;
i
for requiring F437the tribunal, if so requested in accordance with the rules, to furnish such statements of the reasons for any decision given by the tribunal as may be prescribed by the rules, subject to any provision made by the rules for withholding such a statement from a patient or any other person in cases where the tribunal considers that furnishing it would be undesirable in the interests of the patient or for other special reasons;
j
3
4
Rules under this section may make provision as to the procedure to be adopted in cases concerning restricted patients and, in particular—
a
F445b
for the transfer of proceedings to or from the tribunal in any case where, after the making of a reference or application in accordance with section 71(4) or 77(4) above, the patient begins or ceases to reside in Wales.
5
Rules under this section may be so framed as to apply to all applications or references or to applications or references of any specified class and may make different provision in relation to different cases.
6
7
F448The Mental Health Review Tribunal for Wales may pay allowances in respect of travelling expenses, subsistence and loss of earnings to any person attending the tribunal as an applicant or witness, to the patient who is the subject of the proceedings if he attends otherwise than as the applicant or a witness and to any person (other than F449an authorised person (within the meaning of Part 3)) who attends as the representative of an applicant.
8
F450. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
9
78AF466Appeal from the Mental Health Review Tribunal for Wales to the Upper Tribunal
1
A party to any proceedings before the Mental Health Review Tribunal for Wales may appeal to the Upper Tribunal on any point of law arising from a decision made by the Mental Health Review Tribunal for Wales in those proceedings.
2
An appeal may be brought under subsection (1) above only if, on an application made by the party concerned, the Mental Health Review Tribunal for Wales or the Upper Tribunal has given its permission for the appeal to be brought.
3
Section 12 of the Tribunals, Courts and Enforcement Act 2007 (proceedings on appeal to the Upper Tribunal) applies in relation to appeals to the Upper Tribunal under this section as it applies in relation to appeals to it under section 11 of that Act, but as if references to the First-tier Tribunal were references to the Mental Health Review Tribunal for Wales.
79 Interpretation of Part V.
1
In this Part of this Act “restricted patient” means a patient who is subject to a restriction order F453, limitation directionor restriction direction and this Part of this Act shall, subject to the provisions of this section, have effect in relation to any person who—
F454a
is treated by virtue of any enactment as subject to a hospital order and a restriction order; or
b
F455. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F456c
is treated as subject to a hospital order and a restriction order, or to a hospital direction and a limitation direction, or to a transfer direction and a restriction direction, by virtue of any provision of Part 6 of this Act (except section 80D(3), 82A(2) or 85A(2) below),
as it has effect in relation to a restricted patient.
2
Subject to the following provisions of this section, in this Part of this Act “the relevant hospital order”F457, “the relevant hospital direction”and “the relevant transfer direction”, in relation to a restricted patient, mean the hospital order F457, the hospital directionor transfer direction by virtue of which he is liable to be detained in a hospital.
3
In the case of a person within paragraph (a) of subsection (1) above, references in this Part of this Act to the relevant hospital order or restriction order shall be construed as references to the direction referred to in that paragraph.
4
In the case of a person within paragraph (b) of subsection (1) above, references in this Part of this Act to the relevant hospital order or restriction order shall be construed as references to the order under the provisions mentioned in that paragraph.
5
In the case of a person within paragraph (c) of subsection (1) above, references in this Part of this Act to the relevant hospital order, F458the relevant hospital direction, the relevant transfer direction, the restriction order F459, the limitation direction or the restriction direction or to a transfer direction under section 48 above shall be construed as references to the hospital order, F460hospital direction, transfer direction, restriction order, F461limitation direction, restriction direction or transfer direction under that section to which that person is treated as subject by virtue of the provisions mentioned in that paragraph.
F4625A
Section 75 above shall, subject to the modifications in subsection (5C) below, have effect in relation to a qualifying patient as it has effect in relation to a restricted patient who is conditionally discharged under section 42(2), 73 or 74 above.
5B
A patient is a qualifying patient if he is treated by virtue of section 80D(3), 82A(2) or 85A(2) below as if he had been conditionally discharged and were subject to a hospital order and a restriction order, or to a hospital direction and a limitation direction, or to a transfer direction and a restriction direction.
5C
The modifications mentioned in subsection (5A) above are—
a
references to the relevant hospital order, hospital direction or transfer direction, or to the restriction order, limitation direction or restriction direction to which the patient is subject, shall be construed as references to the hospital order, hospital direction or transfer direction, or restriction order, limitation direction or restriction direction, to which the patient is treated as subject by virtue of section 80D(3), 82A(2) or 85A(2) below; and
b
the reference to the date on which the patient was conditionally discharged shall be construed as a reference to the date on which he was treated as conditionally discharged by virtue of a provision mentioned in paragraph (a) above.
6
In this Part of this Act, unless the context otherwise requires, “hospital” means a hospital F463, and “the responsible clinician” means the responsible clinician, within the meaning of Part II of this Act.
F4647
F465. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Part VI Removal and Return of Patients Within United Kingdom, etc.
F476Removal to and from Scotland
S. 80: cross-heading substituted (1.4.2008) by virtue of Mental Health Act 2007 (c. 12), ss. 39, 56, Sch. 5 para. 2 (with Sch. 10); S.I. 2008/745, art. 3(f)
80 Removal of patients to Scotland.
1
If it appears to the Secretary of State, in the case of a patient who is for the time being liable to be detained F467. . . under this Act (otherwise than by virtue of section 35, 36 or 38 above), that it is in the interests of the patient to remove him to Scotland, and that arrangements have been made for admitting him to a hospital F467. . . there, F468or, where he is not to be admitted to a hospital, for his detention in hospital to be authorised by virtue of the Mental Health (Care and Treatment)(Scotland) Act 2003 or the Criminal Procedure (Scotland) Act 1995 the Secretary of State may authorise his removal to Scotland and may give any necessary directions for his conveyance to his destination.
2
F988. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
3
F988. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
4
F988. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
5
F988. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
6
F469Where a person removed under this section was immediately before his removal subject to a restriction order or restriction direction of limited duration, F470the restriction order or restriction direction F471. . . shall expire on the date on which the first-mentioned order or direction would have expired if he had not been so removed.
7
In this section “hospital” has the same meaning as in the F472Mental Health (Care and Treatment)(Scotland) Act 2003 .
F4738
Reference in this section to a patient's detention in hospital being authorised by virtue of the Mental Health (Care and Treatment)(Scotland) Act 2003 or the Criminal Procedure (Scotland) Act 1995 shall be read as including references to a patient in respect of whom a certificate under one of the provisions listed in section 290(7)(a) of the Act of 2003 is in operation.
80ZAF477Transfer of responsibility for community patients to Scotland
1
If it appears to the appropriate national authority, in the case of a community patient, that the conditions mentioned in subsection (2) below are met, the authority may authorise the transfer of responsibility for him to Scotland.
2
The conditions are—
a
a transfer under this section is in the patient's interests; and
b
arrangements have been made for dealing with him under enactments in force in Scotland corresponding or similar to those relating to community patients in this Act.
3
The appropriate national authority may not act under subsection (1) above while the patient is recalled to hospital under section 17E above.
4
In this section, “the appropriate national authority” means—
a
in relation to a community patient in respect of whom the responsible hospital is in England, the Secretary of State;
b
in relation to a community patient in respect of whom the responsible hospital is in Wales, the Welsh Ministers.
80AF474F475Transfer of responsibility for conditionally discharged patients to Scotland
1
If it appears to the Secretary of State, in the case of a patient who—
a
is subject to a restriction order under section 41 above; and
b
has been conditionally discharged under section 42 or 73 above,
that a transfer under this section would be in the interests of the patient, the Secretary of State may, with the consent of the Minister exercising corresponding functions in Scotland, transfer responsibility for the patient to that Minister.
2
F819. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
3
F819. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
80BF478Removal of detained patients from Scotland
1
This section applies to a patient if—
a
he is removed to England and Wales under regulations made under section 290(1)(a) of the Mental Health (Care and Treatment) (Scotland) Act 2003 (“the 2003 Act”);
b
immediately before his removal, his detention in hospital was authorised by virtue of that Act or the Criminal Procedure (Scotland) Act 1995; and
c
on his removal, he is admitted to a hospital in England or Wales.
2
He shall be treated as if, on the date of his admission to the hospital, he had been so admitted in pursuance of an application made, or an order or direction made or given, on that date under the enactment in force in England and Wales which most closely corresponds to the enactment by virtue of which his detention in hospital was authorised immediately before his removal.
3
If, immediately before his removal, he was subject to a measure under any enactment in force in Scotland restricting his discharge, he shall be treated as if he were subject to an order or direction under the enactment in force in England and Wales which most closely corresponds to that enactment.
4
If, immediately before his removal, the patient was liable to be detained under the 2003 Act by virtue of a transfer for treatment direction, given while he was serving a sentence of imprisonment (within the meaning of section 136(9) of that Act) imposed by a court in Scotland, he shall be treated as if the sentence had been imposed by a court in England and Wales.
5
If, immediately before his removal, the patient was subject to a hospital direction or transfer for treatment direction, the restriction direction to which he is subject by virtue of subsection (3) above shall expire on the date on which that hospital direction or transfer for treatment direction (as the case may be) would have expired if he had not been so removed.
6
If, immediately before his removal, the patient was liable to be detained under the 2003 Act by virtue of a hospital direction, he shall be treated as if any sentence of imprisonment passed at the time when that hospital direction was made had been imposed by a court in England and Wales.
7
Any directions given by the Scottish Ministers under regulations made under section 290 of the 2003 Act as to the removal of a patient to which this section applies shall have effect as if they were given under this Act.
8
Subsection (8) of section 80 above applies to a reference in this section as it applies to one in that section.
9
In this section—
“hospital direction” means a direction made under section 59A of the Criminal Procedure (Scotland) Act 1995; and
“transfer for treatment direction” has the meaning given by section 136 of the 2003 Act.
80CF479Removal of patients subject to compulsion in the community from Scotland
1
This section applies to a patient if—
a
he is subject to an enactment in force in Scotland by virtue of which regulations under section 289(1) of the Mental Health (Care and Treatment) (Scotland) Act 2003 apply to him; and
b
he is removed to England and Wales under those regulations.
2
He shall be treated as if on the date of his arrival at the place where he is to reside in England or Wales—
a
he had been admitted to a hospital in England or Wales in pursuance of an application or order made on that date under the corresponding enactment; and
b
a community treatment order had then been made discharging him from the hospital.
3
For these purposes—
a
if the enactment to which the patient was subject in Scotland was an enactment contained in the Mental Health (Care and Treatment) (Scotland) Act 2003, the corresponding enactment is section 3 of this Act;
b
if the enactment to which he was subject in Scotland was an enactment contained in the Criminal Procedure (Scotland) Act 1995, the corresponding enactment is section 37 of this Act.
4
“The responsible hospital, in the case of a patient in respect of whom a community treatment order is in force by virtue of subsection (2) above, means the hospital to which he is treated as having been admitted by virtue of that subsection, subject to section 19A above.
5
As soon as practicable after the patient's arrival at the place where he is to reside in England or Wales, the responsible clinician shall specify the conditions to which he is to be subject for the purposes of section 17B(1) above, and the conditions shall be deemed to be specified in the community treatment order.
6
But the responsible clinician may only specify conditions under subsection (5) above which an approved mental health professional agrees should be specified.
80DF480Transfer of conditionally discharged patients from Scotland
1
This section applies to a patient who is subject to—
a
a restriction order under section 59 of the Criminal Procedure (Scotland) Act 1995; and
b
a conditional discharge under section 193(7) of the Mental Health (Care and Treatment) (Scotland) Act 2003 (“the 2003 Act”).
2
A transfer of the patient to England and Wales under regulations made under section 290 of the 2003 Act shall have effect only if the Secretary of State has consented to the transfer.
3
If a transfer under those regulations has effect, the patient shall be treated as if—
a
on the date of the transfer he had been conditionally discharged under section 42 or 73 above; and
b
he were subject to a hospital order under section 37 above and a restriction order under section 41 above.
4
If the restriction order to which the patient was subject immediately before the transfer was of limited duration, the restriction order to which he is subject by virtue of subsection (3) above shall expire on the date on which the first-mentioned order would have expired if the transfer had not been made.
Removal to and from Northern Ireland
81 Removal of patients to Northern Ireland.
1
If it appears to the Secretary of State, in the case of a patient who is for the time being liable to be detained or subject to guardianship under this Act (otherwise than by virtue of section 35, 36 or 38 above), that it is in the interests of the patient to remove him to Northern Ireland, and that arrangements have been made for admitting him to a hospital or, as the case may be, for receiving him into guardianship there, the Secretary of State may authorise his removal to Northern Ireland and may give any necessary directions for his conveyance to his destination.
2
Subject to the provisions of subsections (4) and (5) below, where a patient liable to be detained under this Act by virtue of an application, order or direction under any enactment in force in England and Wales is removed under this section and admitted to a hospital in Northern Ireland, he shall be treated as if on the date of his admission he had been so admitted in pursuance of an application made, or an order or direction made or given, on that date under the corresponding enactment in force in Northern Ireland, and, F481where he is subject to a hospital order and a restriction order or a transfer direction and a restriction direction under any enactment in this Act, as if he were subject to a hospital order and a restriction order or a transfer direction and a restriction direction under the corresponding enactment in force in Northern Ireland.
3
Where a patient subject to guardianship under this Act by virtue of an application, order or direction under any enactment in force in England and Wales is removed under this section and received into guardianship in Northern Ireland, he shall be treated as if on the date on which he arrives at the place where he is to reside he had been so received in pursuance of an application, order or direction under the corresponding enactment in force in Northern Ireland, and as if the application had been accepted or, as the case may be, the order or direction had been made or given on that date.
4
Where a person removed under this section was immediately before his removal liable to be detained by virtue of an application for admission for assessment under this Act, he shall, on his admission to a hospital in Northern Ireland, be treated as if he had been admitted to the hospital in pursuance of an application F482for assessment under Article 4 of the Mental Health (Northern Ireland) Order 1986 made on the date of his admission.
5
Where a person removed under this section was immediately before his removal liable to be detained by virtue of an application for admission for treatment under this Act, he shall, on his admission to a hospital in Northern Ireland, be treated as if F483he were detained for treatment under Part II of the Mental Health (Northern Ireland) Order 1986 by virtue of a report under Article 12(1) of that Order made on the date of his admission
6
Where a patient removed under this section was immediately before his removal liable to be detained under this Act by virtue of a transfer direction given while he was serving a sentence of imprisonment (within the meaning of section 47(5) above) imposed by a court in England and Wales, he shall be treated as if the sentence had been imposed by a court in Northern Ireland.
7
Where a person removed under this section was immediately before his removal subject to a F484. . . restriction direction of limited duration, F485the F484. . . restriction direction to which he is subject by virtue of subsection (2) above shall expire on the date on which F485the first-mentioned F484. . . restriction direction would have expired if he had not been so removed.
8
In this section “hospital” has the same meaning as in the Mental Health F486(Northern Ireland) Order 1986.
81ZAF502Removal of community patients to Northern Ireland
1
Section 81 above shall apply in the case of a community patient as it applies in the case of a patient who is for the time being liable to be detained under this Act, as if the community patient were so liable.
2
Any reference in that section to the application, order or direction by virtue of which a patient is liable to be detained under this Act shall be construed, for these purposes, as a reference to the application, order or direction under this Act in respect of the patient.
81AF487 Transfer of responsibility for patients to Northern Ireland.
1
If it appears to the Secretary of State, in the case of a patient who—
F488a
is subject to a hospital order under section 37 above and a restriction order under section 41 above or to a transfer direction under section 47 above and a restriction direction under section 49 above;
b
has been conditionally discharged under section 42 or 73 above,
that a transfer under this section would be in the interests of the patient, the Secretary of State may, with the consent of the Minister exercising corresponding functions in Northern Ireland, transfer responsibility for the patient to that Minister.
2
Where responsibility for such a patient is transferred under this section, the patient shall be treated—
a
as if on the date of the transfer he had been conditionally discharged under the corresponding enactment in force in Northern Ireland; and
b
as if he were subject to F489a hospital order and a restriction order, or to a transfer direction and a restriction direction, under the corresponding enactment in force in Northern Ireland.
3
Where a patient responsibility for whom is transferred under this section was immediately before the transfer subject to a F490. . . restriction direction of limited duration, the F490. . . restriction direction to which he is subject by virtue of subsection (2) above shall expire on the date on which the first-mentioned F490. . . direction would have expired if the transfer had not been made.
82 Removal to England and Wales of patients from Northern Ireland.
1
If it appears to the responsible authority, in the case of a patient who is for the time being liable to be detained or subject to guardianship under the Mental Health F491(Northern Ireland) Order 1986 (otherwise than by virtue of Article 42, 43 or 45 of that Order), that it is in the interests of the patient to remove him to England and Wales, and that arrangements have been made for admitting him to a hospital or, as the case may be, for receiving him into guardianship there, the responsible authority may authorise his removal to England and Wales and may give any necessary directions for his conveyance to his destination.
2
Subject to the provisions of F492subsections (4) and (4A) below, where a patient who is liable to be detained under the F492Mental Health (Northern Ireland) Order 1986 by virtue of an application, order or direction under any enactment in force in Northern Ireland is removed under this section and admitted to a hospital in England and Wales, he shall be treated as if on the date of his admission he had been so admitted in pursuance of an application made, or an order or direction made or given, on that date under the corresponding enactment in force in England and Wales and, F493where he is subject to a hospital order and a restriction order or a transfer direction and a restriction direction under any enactment in that Order, as if he were subject to a hospital order and a restriction order or a transfer direction and a restriction direction under the corresponding enactment in force in England and Wales..
3
Where a patient subject to guardianship under the F494Mental Health (Northern Ireland) Order 1986 by virtue of an application, order or direction under any enactment in force in Northern Ireland is removed under this section and received into guardianship in England and Wales, he shall be treated as if on the date on which he arrives at the place where he is to reside he had been so received in pursuance of an application, order or direction under the corresponding enactment in force in England and Wales and as if the application had been accepted or, as the case may be, the order or direction had been made or given on that date.
F4954
Where a person removed under this section was immediately before his removal liable to be detained for treatment by virtue of a report under Article 12(1) or 13 of the Mental Health (Northern Ireland) Order 1986, he shall be treated, on his admission to a hospital in England and Wales, as if he had been admitted to the hospital in pursuance of an application for admission for treatment made on the date of his admission.
4A
Where a person removed under this section was immediately before his removal liable to be detained by virtue of an application for assessment under Article 4 of the Mental Health (Northern Ireland) Order 1986, he shall be treated, on his admission to a hospital in England and Wales, as if he had been admitted to the hospital in pursuance of an application for admission for assessment made on the date of his admission.
5
Where a patient removed under this section was immediately before his removal liable to be detained under the F496Mental Health (Northern Ireland) Order 1986 by virtue of a transfer direction given while he was serving a sentence of imprisonment (within the meaning of F496Article 53(5) of that Order ) imposed by a court in Northern Ireland, he shall be treated as if the sentence had been imposed by a court in England and Wales.
6
Where a person removed under this section was immediately before his removal subject to F497a restriction order or restriction direction of limited duration, the restriction order or restriction direction to which he is subject by virtue of subsection (2) above shall expire on the date on which the F497first-mentioned restriction order or restriction direction would have expired if he had not been so removed.
7
82AF499F500Transfer of responsibility for conditionally discharged patients to England and Wales from Northern Ireland
1
If it appears to F854the Department of Justice in Northern Ireland, in the case of a patient who—
a
is subject to a restriction order or restriction direction under Article 47(1) or 55(1) of the M12 Mental Health (Northern Ireland) Order 1986; and
b
has been conditionally discharged under Article 48(2) or 78(2) of that Order,
that a transfer under this section would be in the interests of the patient, F854the Department of Justice in Northern Ireland may, with the consent of the Secretary of State, transfer responsibility for the patient to the Secretary of State.
2
Where responsibility for such a patient is transferred under this section, the patient shall be treated—
a
as if on the date of the transfer he had been conditionally discharged under section 42 or 73 above; and
F501b
as if he were subject to a hospital order under section 37 above and a restriction order under section 41 above or to a transfer direction under section 47 above and a restriction direction under section 49 above.
3
Where a patient responsibility for whom is transferred under this section was immediately before the transfer subject to a restriction order or restriction direction of limited duration, the restriction order or restriction direction to which he is subject by virtue of subsection (2) above shall expire on the date on which the first-mentioned order or direction would have expired if the transfer had not been made.
F855 4
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Removal to and from Channel Islands and Isle of Man
83 Removal of patients to Channel Islands or Isle of Man.
If it appears to the Secretary of State, in the case of a patient who is for the time being liable to be detained or subject to guardianship under this Act (otherwise than by virtue of section 35, 36 or 38 above), that it is in the interests of the patient to remove him to any of the Channel Islands or to the Isle of Man, and that arrangements have been made for admitting him to a hospital or, as the case may be, for receiving him into guardianship there, the Secretary of State may authorise his removal to the island in question and may give any necessary directions for his conveyance to his destination.
83ZAF512Removal or transfer of community patients to Channel Islands or Isle of Man
1
Section 83 above shall apply in the case of a community patient as it applies in the case of a patient who is for the time being liable to be detained under this Act, as if the community patient were so liable.
2
But if there are in force in any of the Channel Islands or the Isle of Man enactments (“relevant enactments”) corresponding or similar to those relating to community patients in this Act—
a
subsection (1) above shall not apply as regards that island; and
b
subsections (3) to (6) below shall apply instead.
3
If it appears to the appropriate national authority, in the case of a community patient, that the conditions mentioned in subsection (4) below are met, the authority may authorise the transfer of responsibility for him to the island in question.
4
The conditions are—
a
a transfer under subsection (3) above is in the patient's interests; and
b
arrangements have been made for dealing with him under the relevant enactments.
5
But the authority may not act under subsection (3) above while the patient is recalled to hospital under section 17E above.
6
In this section, “the appropriate national authority” means—
a
in relation to a community patient in respect of whom the responsible hospital is in England, the Secretary of State;
b
in relation to a community patient in respect of whom the responsible hospital is in Wales, the Welsh Ministers.
F50483AF503Transfer of responsibility for conditionally discharged patients to Channel Islands or Isle of Man
If it appears to the Secretary of State, in the case of a patient who—
a
is subject to a restriction order or restriction direction under section 41 or 49 above; and
b
has been conditionally discharged under section 42 or 73 above,
that a transfer under this section would be in the interests of the patient, the Secretary of State may, with the consent of the authority exercising corresponding functions in any of the Channel Islands or in the Isle of Man, transfer responsibility for the patient to that authority.
84 Removal to England and Wales of offenders found insane in Channel Islands and Isle of Man.
1
The Secretary of State may by warrant direct that any offender found by a court in any of the Channel Islands or in the Isle of Man to be insane or to have been insane at the time of the alleged offence, and ordered to be detained during Her Majesty’s pleasure, be removed to a hospital in England and Wales.
2
3
The Secretary of State may by warrant direct that any patient removed under this section from any of the Channel Islands or from the Isle of Man be returned to the island from which he was so removed, there to be dealt with according to law in all respects as if he had not been removed under this section.
85 Patients removed from Channel Islands or Isle of Man.
1
This section applies to any patient who is removed to England and Wales from any of the Channel Islands or the Isle of Man under a provision corresponding to section 83 above and who immediately before his removal was liable to be detained or subject to guardianship in the island in question under a provision corresponding to an enactment contained in this Act (other than section 35, 36 or 38 above).
2
Where the patient is admitted to a hospital in England and Wales he shall be treated as if on the date of his admission he had been so admitted in pursuance of an application made, or an order or direction made or given, on that date under the corresponding enactment contained in this Act and, where he is subject to an order or direction restricting his discharge, as if he were subject F507to a hospital order and a restriction order or to a hospital direction and a limitation direction or to a transfer direction and a restriction direction .
3
Where the patient is received into guardianship in England and Wales, he shall be treated as if on the date on which he arrives at the place where he is to reside he had been so received in pursuance of an application, order or direction under the corresponding enactment contained in this Act and as if the application had been accepted or, as the case may be, the order or direction had been made or given on that date.
4
Where the patient was immediately before his removal liable to be detained by virtue of a transfer direction given while he was serving a sentence of imprisonment imposed by a court in the island in question, he shall be treated as if the sentence had been imposed by a court in England and Wales.
5
Where the patient was immediately before his removal subject to an order or direction restricting his discharge, being an order or direction of limited duration, the restriction order or restriction direction to which he is subject by virtue of subsection (2) above shall expire on the date on which the first-mentioned order or direction would have expired if he had not been removed.
6
While being conveyed to the hospital referred to in subsection (2) or, as the case may be, the place referred to in subsection (3) above, the patient shall be deemed to be in legal custody, and section 138 below shall apply to him as if he were in legal custody by virtue of section 137 below.
7
In the case of a patient removed from the Isle of Man the reference in subsection (4) above to a person serving a sentence of imprisonment includes a reference to a person detained as mentioned in section 60(6)(a) of the Mental Health Act 1974 (an Act of Tynwald).
85ZAF513Responsibility for community patients transferred from Channel Islands or Isle of Man
1
This section shall have effect if there are in force in any of the Channel Islands or the Isle of Man enactments (“relevant enactments”) corresponding or similar to those relating to community patients in this Act.
2
If responsibility for a patient is transferred to England and Wales under a provision corresponding to section 83ZA(3) above, he shall be treated as if on the date of his arrival at the place where he is to reside in England or Wales—
a
he had been admitted to the hospital in pursuance of an application made, or an order or direction made or given, on that date under the enactment in force in England and Wales which most closely corresponds to the relevant enactments; and
b
a community treatment order had then been made discharging him from the hospital.
3
“The responsible hospital”, in his case, means the hospital to which he is treated as having been admitted by virtue of subsection (2) above, subject to section 19A above.
4
As soon as practicable after the patient's arrival at the place where he is to reside in England or Wales, the responsible clinician shall specify the conditions to which he is to be subject for the purposes of section 17B(1) above, and the conditions shall be deemed to be specified in the community treatment order.
5
But the responsible clinician may only specify conditions under subsection (4) above which an approved mental health professional agrees should be specified.
F50985AF508 Responsibility for conditionally discharged patients transferred from Channel Islands or Isle of Man
1
This section applies to any patient responsibility for whom is transferred to the Secretary of State by the authority exercising corresponding functions in any of the Channel Islands or the Isle of Man under a provision corresponding to section 83A above.
2
The patient shall be treated—
a
as if on the date of the transfer he had been conditionally discharged under section 42 or 73 above; and
F510b
as if he were subject to a hospital order under section 37 above and a restriction order under section 41 above, or to a hospital direction and a limitation direction under section 45A above, or to a transfer direction under section 47 above and a restriction direction under section 49 above.
3
Where the patient was immediately before the transfer subject to an order or direction restricting his discharge, being an order or direction of limited duration, the restriction order F511, limitation direction or restriction direction to which he is subject by virtue of subsection (2) above shall expire on the date on which the first-mentioned order or direction would have expired if the transfer had not been made.
Removal of aliens
C6386 Removal of alien patients.
1
This section applies to any patient who is neither a British citizen nor a Commonwealth citizen having the right of abode in the United Kingdom by virtue of section 2(1)(b) of the M13Immigration Act 1971, being a patient who is receiving treatment for F514mental disorder as an in-patient in a hospital in England and Wales or a hospital within the meaning of the M14Mental Health F515(Northern Ireland) Order 1986 and is detained pursuant to—
a
an application for admission for treatment or F515a report under Article 12(1) or 13 of that Order;
b
a hospital order under section 37 above or F515Article 44 of that Order; or
c
an order or direction under this Act (other than under section 35, 36 or 38 above) or F515under that Order (other than under Article 42, 43 or 45 of that Order) .
2
If it appears to the Secretary of State that proper arrangements have been made for the removal of a patient to whom this section applies to a country or territory outside the United Kingdom, the Isle of Man and the Channel Islands and for his care or treatment there and that it is in the interests of the patient to remove him, the Secretary of State may, subject to subsection (3) below—
a
by warrant authorise the removal of the patient from the place where he is receiving treatment as mentioned in subsection (1) above, and
b
give such directions as the Secretary of State thinks fit for the conveyance of the patient to his destination in that country or territory and for his detention in any place or on board any ship or aircraft until his arrival at any specified port or place in any such country or territory.
3
The Secretary of State shall not exercise his powers under subsection (2) above in the case of any patient except with the approval of F516the appropriate tribunal or, as the case may be, of the Mental Health Review Tribunal for Northern Ireland.
F5174
In relation to a patient receiving treatment in a hospital within the meaning of the Mental Health (Northern Ireland) Order 1986, the reference in subsection (1) above to mental disorder shall be construed in accordance with that Order F856and any reference in subsection (2) or (3) to the Secretary of State shall be construed as a reference to the Department of Justice in Northern Ireland.
Return of patients absent without leave
87 Patients absent from hospitals in Northern Ireland.
1
Any person who—
a
under F518Article 29 or 132 of the Mental Health (Northern Ireland) Order 1986 (which provide, respectively, for the retaking of patients absent without leave and for the retaking of patients escaping from custody); or
b
under the said F518Article 29 as applied by Article 31 of the said Order(which makes special provision as to persons sentenced to imprisonment),
2
This section does not apply to any person who is subject to guardianship.
F52088 Patients absent from hospitals in England and Wales.
1
Subject to the provisions of this section, any person who, under section 18 above or section 138 below or under the said section 18 as applied by section 22 above, may be taken into custody in England and Wales may be taken into custody in, and returned to England and Wales from, F521Northern Ireland.
F5222
For the purposes of the enactments referred to in subsection (1) above in their application by virtue of this section, the expression “constable” includes an officer or constable of the Police Service of Northern Ireland.
3
For the purposes of the said enactments in their application by virtue of this section F523to Scotland or Northern Ireland, any reference to an F524approved mental health professionalshall be construed as including a reference—
a
4
This section does not apply to any person who is subject to guardianship.
89 Patients absent from hospitals in the Channel Islands or Isle of Man.
1
Any person who under any provision corresponding to section 18 above or 138 below may be taken into custody in any of the Channel Islands or the Isle of Man may be taken into custody in, and returned to the island in question from, England and Wales by an F529approved mental health professional or a constable.
2
This section does not apply to any person who is subject to guardianship.
General
90 Regulations for purposes of Part VI.
Section 32 above shall have effect as if references in that section to Part II of this Act included references to this Part of this Act F530, so far as this Part of this Act applies to patients removed to England and Wales or for whom responsibility is transferred to England and Wales.
91 General provisions as to patients removed from England and Wales.
1
Subject to subsection (2) below, where a patient liable to be detained or subject to guardianship by virtue of an application, order or direction under Part II or III of this Act (other than section 35, 36 or 38 above) is removed from England and Wales in pursuance of arrangements under this Part of this Act, the application, order or direction shall cease to have effect when he is duly received into a hospital or other institution, or placed under guardianship F531or, where he is not received into a hospital but his detention in hospital is authorised by virtue of the Mental Health (Care and Treatment)(Scotland) Act 2003 or the Criminal Procedure (Scotland) Act 1995 , in pursuance of those arrangements.
2
Where the Secretary of State exercises his powers under section 86(2) above in respect of a patient who is detained pursuant to a hospital order under section 37 above and in respect of whom a restriction order is in force, those orders shall continue in force so as to apply to the patient if he returns to England and Wales F532. . . .
F5332A
Where responsibility for a community patient is transferred to a jurisdiction outside England and Wales (or such a patient is removed outside England and Wales) in pursuance of arrangements under this Part of this Act, the application, order or direction mentioned in subsection (1) above in force in respect of him shall cease to have effect on the date on which responsibility is so transferred (or he is so removed) in pursuance of those arrangements.
F5343
Reference in this section to a patient's detention in hospital being authorised by virtue of the Mental Health (Care and Treatment)(Scotland) Act 2003 or the Criminal Procedure (Scotland) Act 1995 shall be read as including references to a patient in respect of whom a certificate under one of the provisions listed in section 290(7)(a) of the Act of 2003 is in operation.
92 Interpretation of Part VI.
1
References in this Part of this Act to a hospital, being a hospital in England and Wales, shall be construed as references to a hospital within the meaning of Part II of this Act.
F5351A
References in this Part of this Act to the responsible clinician shall be construed as references to the responsible clinician within the meaning of Part 2 of this Act.
2
Where a patient is treated by virtue of this Part of this Act as if he had been removed to a hospital in England and Wales in pursuance of a direction under Part III of this Act, that direction shall be deemed to have been given on the date of his reception into the hospital.
3
F536. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F5374
Sections 80 to 85A above shall have effect as if—
a
any hospital direction under section 45A above were a transfer direction under section 47 above; and
b
any limitation direction under section 45A above were a restriction direction under section 49 above.
5
Sections 80(5), 81(6) and 85(4) above shall have effect as if any reference to a transfer direction given while a patient was serving a sentence of imprisonment imposed by a court included a reference to a hospital direction given by a court after imposing a sentence of imprisonment on a patient.
F538F538Part VII
Pt. 7 (ss. 93-113) repealed (1.10.2007) by Mental Capacity Act 2005 (c. 9), ss. 66(1)(a), 67(2), Sch. 7 (with ss. 27, 28, 29, 62, Sch. 5 Pt. 1); S.I. 2007/1897, art. 2
93 Judicial authorities and Court of Protection.
1
The F820Lord Chief Justice shall, after consulting the Lord Chancellor, shall from time to time nominate one or more judges of the Supreme Court (in this Act referred to as “nominated judges”) to act for the purposes of this Part of this Act.
2
There shall continue to be an office of the Supreme Court, called the Court of Protection, for the protection and management, as provided by this Part of this Act, of the property and affairs of persons under disability; and there shall continue to be a Master of the Court of Protection appointed by F821Her Majesty under section 89 of the M61Supreme Court Act 1981.
3
The Master of the Court of Protection shall take the oath of allegiance and judicial oath in the presence of the F822Lord Chief Justice ; and the M62Promissory Oaths Act 1868 shall have effect as if the officers named in the Second Part of the Schedule to that Act included the Master of the Court of Protection.
4
The Lord Chancellor may F823, with the concurrence of the Lord Chief Justice, nominate other officers of the Court of Protection (in this Part of this Act referred to as “nominated officers”) to act for the purposes of this Part of this Act.
F8245
The Lord Chief Justice may nominate a judicial office holder (as defined in section 109(4) of the Constitutional Reform Act 2005) to exercise his functions under subsection (1), (3) or (4).
94 Exercise of the judge’s functions: “the patient”.
1
F825Subject to sub-section (1A) below the functions expressed to be conferred by this Part of this Act on the judge shall be exercisable F830. . . by any nominated judge, and shall also be exercisable by the Master of the Court of Protection F826,by the Public Trustee or by any nominated officer, but—
a
in the case of the Master F827the Public Trustee or any nominated officer, subject to any express provision to the contrary in this Part of this Act or any rules made under this Part of this Act,
F828aa
in the case of the Public Trustee, subject to any directions of the Master and so far only as may be provided by any rules made under this Part of this Act or (subject to any such rules) by directions of the Master,
b
in the case of any nominated officer, subject to any directions of the Master and so far only as may be provided by the instrument by which he is nominated;
and references in this Part of this Act to the judge shall be construed accordingly.
F8291A
In such cases or circumstances as may be prescribed by any rules under this Part of this Act or (subject to any such rules) by directions of the Master, the functions of the judge under this Part of this Act shall be exercised by the Public Trustee (but subject to any directions of the Master as to their exercise)
2
The functions of the judge under this Part of this Act shall be exercisable where, after considering medical evidence, he is satisfied that a person is incapable, by reason of mental disorder, of managing and administering his property and affairs; and a person as to whom the judge is so satisfied is referred to in this Part of this Act as a patient.
95 General functions of the judge with respect to property and affairs of patient.
1
The judge may, with respect to the property and affairs of a patient, do or secure the doing of all such things as appear necessary or expedient—
a
for the maintenance or other benefit of the patient,
b
for the maintenance or other benefit of members of the patient’s family,
c
for making provision for other persons or purposes for whom or which the patient might be expected to provide if he were not mentally disordered, or
d
otherwise for administering the patient’s affairs.
2
In the exercise of the powers conferred by this section regard shall be had first of all to the requirements of the patient, and the rules of law which restricted the enforcement by a creditor of rights against property under the control of the judge in lunacy shall apply to property under the control of the judge; but, subject to the foregoing provisions of this subsection, the judge shall, in administering a patient’s affairs, have regard to the interests of creditors and also to the desirability of making provision for obligations of the patient notwithstanding that they may not be legally enforceable.
96 Powers of the judge as to patient’s property and affairs.
1
Without prejudice to the generality of section 95 above, the judge shall have power to make such orders and give such directions and authorities as he thinks fit for the purposes of that section and in particular may for those purposes make orders or give directions or authorities for—
a
the control (with or without the transfer or vesting of property or the payment into or lodgment in the Supreme Court of money or securities) and management of any property of the patient;
b
the sale, exchange, charging or other disposition of or dealing with any property of the patient;
c
the acquisition of any property in the name or on behalf of the patient;
d
the settlement of any property of the patient, or the gift of any property of the patient to any such persons or for any such purposes as are mentioned in paragraphs (b) and (c) of section 95(1) above;
e
the execution for the patient of a will making any provision (whether by way of disposing of property or exercising a power or otherwise) which could be made by a will executed by the patient if he were not mentally disordered;
f
the carrying on by a suitable person of any profession, trade or business of the patient;
g
the dissolution of a partnership of which the patient is a member;
h
the carrying out of any contract entered into by the patient;
i
the conduct of legal proceedings in the name of the patient or on his behalf;
j
the reimbursement out of the property of the patient, with or without interest, of money applied by any person either in payment of the patient’s debts (whether legally enforceable or not) or for the maintenance or other benefit of the patient or members of his family or in making provision for other persons or purposes for whom or which he might be expected to provide if he were not mentally disordered;
k
the exercise of any power (including a power to consent) vested in the patient, whether beneficially, or as guardian or trustee, or otherwise.
2
If under subsection (1) above provision is made for the settlement of any property of a patient, or the exercise of a power vested in a patient of appointing trustees or retiring from a trust, the judge may also make as respects the property settled or trust property such consequential vesting or other orders as the case may require, including (in the case of the exercise of such a power) any order which could have been made in such a case under Part IV of the M63Trustee Act 1925.
3
Where under this section a settlement has been made of any property of a patient, and F831. . . a nominated judge is satisfied, at any time before the death of the patient, that any material fact was not disclosed when the settlement was made, or that there has been any substantial change in circumstances, he may by order vary the settlement in such manner as he thinks fit, and give any consequential directions.
4
The power of the judge to make or give an order, direction or authority for the execution of a will for a patient—
a
shall not be exercisable at any time when the patient is a minor, and
b
shall not be exercised unless the judge has reason to believe that the patient is incapable of making a valid will for himself.
5
The powers of a patient as patron of a benefice shall be exercisable by the Lord Chancellor only.
97 Supplementary provisions as to wills executed under s. 96.
1
Where under section 96(1) above the judge makes or gives an order, direction or authority requiring or authorising a person (in this section referred to as “the authorised person”) to execute a will for a patient, any will executed in pursuance of that order, direction or authority shall be expressed to be signed by the patient acting by the authorised person, and shall be—
a
signed by the authorised person with the name of the patient, and with his own name, in the presence of two or more witnesses present at the same time, and
b
attested and subscribed by those witnesses in the presence of the authorised person, and
c
sealed with the official seal of the Court of Protection.
2
The M64Wills Act 1837 shall have effect in relation to any such will as if it were signed by the patient by his own hand, except that in relation to any such will—
a
section 9 of that Act (which makes provision as to the signing and attestation of wills) shall not apply, and
b
in the subsequent provisions of that Act any reference to execution in the manner required by the previous provisions of that Act shall be construed as a reference to execution in the manner required by subsection (1) above.
3
Subject to the following provisions of this section, any such will executed in accordance with subsection (1) above shall have the same effect for all purposes as if the patient were capable of making a valid will and the will had been executed by him in the manner required by the M65Wills Act 1837.
4
So much of subsection (3) above as provides for such a will to have effect as if the patient were capable of making a valid will—
a
shall not have effect in relation to such a will in so far as it disposes of any immovable property, other than immovable property in England or Wales, and
b
where at the time when such a will is executed the patient is domiciled in Scotland or Northern Ireland or in a country or territory outside the United Kingdom, shall not have effect in relation to that will in so far as it relates to any other property or matter, except any property or matter in respect of which, under the law of his domicile, any question of his testamentary capacity would fall to be determined in accordance with the law of England and Wales.
98 Judge’s powers in cases of emergency.
Where it is represented to the judge, and he has reason to believe, that a person may be incapable, by reason of mental disorder, of managing and administering his property and affairs, and the judge is of the opinion that it is necessary to make immediate provision for any of the matters referred to in section 95 above, then pending the determination of the question whether that person is so incapable the judge may exercise in relation to the property and affairs of that person any of the powers conferred on him in relation to the property and affairs of a patient by this Part of this Act so far as is requisite for enabling that provision to be made.
99 Power to appoint receiver.
1
The judge may by order appoint as receiver for a patient a person specified in the order or the holder for the time being of an office so specified.
2
A person appointed as receiver for a patient shall do all such things in relation to the property and affairs of the patient as the judge, in the exercise of the powers conferred on him by sections 95 and 96 above, orders or directs him to do and may do any such thing in relation to the property and affairs of the patient as the judge, in the exercise of those powers, authorises him to do.
3
A receiver appointed for any person shall be discharged by order of the judge on the judge being satisfied that that person has become capable of managing and administering his property and affairs, and may be discharged by order of the judge at any time if the judge considers it expedient to do so; and a receiver shall be discharged (without any order) on the death of the patient.
100 Vesting of stock in curator appointed outside England and Wales.
1
Where the judge is satisfied—
a
that under the law prevailing in a place outside England and Wales a person has been appointed to exercise powers with respect to the property or affairs of any other person on the ground (however formulated) that that other person is incapable, by reason of mental disorder, of managing and administering his property and affairs, and
b
that having regard to the nature of the appointment and to the circumstances of the case it is expedient that the judge should exercise his powers under this section,
the judge may direct any stock standing in the name of the said other person or the right to receive the dividends from the stock to be transferred into the name of the person so appointed or otherwise dealt with as requested by that person, and may give such directions as the judge thinks fit for dealing with accrued dividends from the stock.
2
In this section “stock” includes shares and also any fund, annuity or security transferable in the books kept by any body corporate or unincorporated company or society, or by an instrument of transfer either alone or accompanied by other formalities, and “dividends” shall be construed accordingly.
101 Preservation of interests in patient’s property.
1
Where any property of a person has been disposed of under this Part of this Act, and under his will or his intestacy, or by any gift perfected or nomination taking effect on his death, any other person would have taken an interest in the property but for the disposal—
a
he shall take the same interest, if and so far as circumstances allow, in any property belonging to the estate of the deceased which represents the property disposed of; and
b
if the property disposed of was real property any property representing it shall so long as it remains part of his estate be treated as if it were real property.
2
The judge, in ordering, directing or authorising under this Part of this Act any disposal of property which apart from this section would result in the conversion of personal property into real property, may direct that the property representing the property disposed of shall, so long as it remains the property of the patient or forms part of his estate, be treated as if it were personal property.
3
References in subsections (1) and (2) above to the disposal of property are references to—
a
the sale, exchange, charging or other dealing (otherwise than by will) with property other than money,
b
the removal of property from one place to another,
c
the application of money in acquiring property, or
d
the transfer of money from one account to another;
and references to property representing property disposed of shall be construed accordingly and as including the result of successive disposals.
4
The judge may give such directions as appear to him necessary or expedient for the purpose of facilitating the operation of subsection (1) above, including the carrying of money to a separate account and the transfer of property other than money.
5
Where the judge has ordered, directed or authorised the expenditure of money for the carrying out of permanent improvements on, or otherwise for the permanent benefit of, any property of the patient, he may order that the whole or any part of the money expended or to be expended shall be a charge upon the property, whether without interest or with interest at a specified rate; and an order under this subsection may provide for excluding or restricting the operation of subsection (1) above.
6
A charge under subsection (5) above may be made in favour of such person as may be just, and in particular, where the money charged is paid out of the patient’s general estate, may be made in favour of a person as trustee for the patient; but no charge under that subsection shall confer any right of sale or foreclosure during the lifetime of the patient.
102 Lord Chancellor’s Visitors.
1
There shall continue to be the following panels of Lord Chancellor’s Visitors of patients constituted in accordance with this section, namely—
a
a panel of Medical Visitors;
b
a panel of Legal Visitors; and
c
a panel of General Visitors (being Visitors who are not required by this section to possess either a medical or legal qualification for appointment).
2
Each panel shall consist of persons appointed to it by the Lord Chancellor, the appointment of each person being for such term and subject to such conditions as the Lord Chancellor may determine.
3
A person shall not be qualified to be appointed—
a
to the panel of Medical Visitors unless he is a registered medical practitioner who appears to the Lord Chancellor to have special knowledge and experience of cases of mental disorder;
b
to the panel of Legal Visitors unless F832he has a 10 year general qualification, within the meaning of section 71 of the Courts and Legal Services Act 1990.
4
If the Lord Chancellor so determines in the case of any Visitor appointed under this section, he shall be paid out of money provided by Parliament such remuneration and allowances as the Lord Chancellor may, with the concurrence of the Treasury, determine.
103 Functions of Visitors.
1
Patients shall be visited by Lord Chancellor’s Visitors in such circumstances, and in such manner, as may be prescribed by directions of a standing nature given by the Master of the Court of Protection with the concurrence of the Lord Chancellor.
2
Where it appears to the judge in the case of any patient that a visit by a Lord Chancellor’s Visitor is necessary for the purpose of investigating any particular matter or matters relating to the capacity of the patient to manage and administer his property and affairs, or otherwise relating to the exercise in relation to him of the functions of the judge under this Part of this Act, the judge may order that the patient shall be visited for that purpose.
3
Every visit falling to be made under subsection (1) or (2) above shall be made by a General Visitor unless, in a case where it appears to the judge that it is in the circumstances essential for the visit to be made by a Visitor with medical or legal qualifications, the judge directs that the visit shall be made by a Medical or a Legal Visitor.
4
A Visitor making a visit under this section shall make such report on the visit as the judge may direct.
5
A Visitor making a visit under this section may interview the patient in private.
6
A Medical Visitor making a visit under this section may carry out in private a medical examination of the patient and may require the production of and inspect any medical records relating to the patient.
7
The Master of the Court of Protection may visit any patient for the purpose mentioned in subsection (2) above and may interview the patient in private.
8
A report made by a Visitor under this section, and information contained in such a report, shall not be disclosed except to the judge and any person authorised by the judge to receive the disclosure.
9
If any person discloses any report or information in contravention of subsection (8) above, he shall be guilty of an offence and liable on summary conviction to imprisonment for a term not exceeding three months or to a fine not exceeding level 3 on the standard scale or both.
10
In this section references to patients include references to persons alleged to be incapable, by reason of mental disorder, of managing and administering their property and affairs.
104 General powers of the judge with respect to proceedings.
1
For the purposes of any proceedings before him with respect to persons suffering or alleged to be suffering from mental disorder, the judge shall have the same powers as are vested in the High Court in respect of securing the attendance of witnesses and the production of documents.
2
Subject to the provisions of this section, any act or omission in the course of such proceedings which, if occurring in the course of proceedings in the High Court would have been a contempt of the Court, shall be punishable by the judge in any manner in which it could have been punished by the High Court.
3
Subsection (2) above shall not authorise the Master, or any other officer of the Court of Protection to exercise any power of attachment or committal, but the Master or officer may certify any such act or omission to F833. . . a nominated judge, and F833. . . judge may upon such certification inquire into the alleged act or omission and take any such action in relation to it as he could have taken if the proceedings had been before him.
4
Subsections (1) to (4) of section 36 of the M66Supreme Court Act 1981 (which provides a special procedure for the issue of writs of subpoena ad testificandum and duces tecum so as to be enforceable throughout the United Kingdom) shall apply in relation to proceedings under this Part of this Act with the substitution for references to the High Court of references to the judge and for references to such writs of references to such document as may be prescribed by rules under this Part of this Act for issue by the judge for securing the attendance of witnesses or the production of documents.
105 Appeals.
1
Subject to and in accordance with rules under this Part of this Act, an appeal shall lie to a nominated judge from any decision of the Master of the Court of Protection or any nominated officer.
2
The Court of Appeal shall continue to have the same jurisdiction as to appeals from any decision of the Lord Chancellor or from any decision of a nominated judge, whether given in the exercise of his original jurisdiction or on the hearing of an appeal under subsection (1) above, as they had immediately before the coming into operation of Part VIII of the M67Mental Health Act 1959 as to appeals F834. . . any other person having jurisdiction in lunacy.
106 Rules of procedure.
1
Proceedings before the judge with respect to persons suffering or alleged to be suffering from mental disorder (in this section referred to as “proceedings”) shall be conducted in accordance with the provisions of rules made under this Part of this Act.
2
Rules under this Part of this Act may make provision as to—
a
the carrying out of preliminary or incidental inquiries;
b
the persons by whom and manner in which proceedings may be instituted and carried on;
c
the persons who are to be entitled to be notified of, to attend, or to take part in proceedings;
d
the evidence which may be authorised or required to be given in proceedings and the manner (whether on oath or otherwise and whether orally or in writing) in which it is to be given;
e
the administration of oaths and taking of affidavits for the purposes of proceedings; and
f
the enforcement of orders made and directions given in proceedings.
3
Without prejudice to the provisions of section 104(1) above, rules under this Part of this Act may make provision for authorising or requiring the attendance and examination of persons suffering or alleged to be suffering from mental disorder, the furnishing of information and the production of documents.
4
Rules under this Part of this Act may make provision as to the termination of proceedings, whether on the death or recovery of the person to whom the proceedings relate or otherwise, and for the exercise, pending the termination of the proceedings, of powers exercisable under this Part of this Act in relation to the property or affairs of a patient.
5
Rules under this Part of this Act made with the consent of the Treasury may—
a
make provision as to the scale of costs, fees and percentages payable in relation to proceedings, and as to the manner in which and funds out of which such costs, fees and percentages are to be paid;
b
contain provision for charging any percentage upon the estate of the person to whom the proceedings relate and for the payment of costs, fees and percentages within such time after the death of the person to whom the proceedings relate or the termination of the proceedings as may be provided by the rules; and
c
provide for the remission of fees and percentages.
6
A charge upon the estate of a person created by virtue of subsection (5) above shall not cause any interest of that person in any property to fail or determine or to be prevented from recommencing.
7
Rules under this Part of this Act may authorise the making of orders for the payment of costs to or by persons attending, as well as persons taking part in, proceedings.
107 Security and accounts.
1
Rules under this Part of this Act may make provision as to the giving of security by a receiver and as to the enforcement and discharge of the security.
2
It shall be the duty of a receiver to render accounts in accordance with the requirements of rules under this Part of this Act, as well after his discharge as during his receivership; and rules under this Part of this Act may make provision for the rendering of accounts by persons other than receivers who are ordered, directed or authorised under this Part of this Act to carry out any transaction.
108 General provisions as to rules under Part VII.
F8351
Rules under section 106(5) are to be made by the Lord Chancellor after consulting the Lord Chief Justice.
F8361A
Rules under any other provision of this Part of this Act are to be made in accordance with Part 1 of Schedule 1 to the Constitutional Reform Act 2005.
2
Rules under this Part of this Act may contain such incidental and supplemental provisions as appear requisite for the purposes of the rules.
F8373
The Lord Chief Justice may nominate a judicial office holder (as defined in section 109(4) of the Constitutional Reform Act 2005) to exercise his functions under this section.
109 Effect and proof of orders, etc.
1
Section 204 of the M68Law of Property Act 1925 (by which orders of the High Court are made conclusive in favour of purchasers) shall apply in relation to orders made and directions and authorities given by the judge as it applies in relation to orders of the High Court.
2
Office copies of orders made, directions or authorities given or other instruments issued by the judge and sealed with the official seal of the Court of Protection shall be admissible in all legal proceedings as evidence of the originals without any further proof.
110 Reciprocal arrangements in relation to Scotland and Northern Ireland as to exercise of powers.
1
This Part of this Act shall apply in relation to the property and affairs in Scotland or Northern Ireland of a patient in relation to whom powers have been exercised under this Part of this Act, or a person as to whom powers are exercisable and have been exercised under section 98 above as it applies in relation to his property and affairs in England and Wales F838unless—
b
in Northern Ireland, he is a patient in relation to whom powers have been exercised under Part VIII of the Mental Health (Northern Ireland) Order 1986, or a person as to whom powers are exercisable and have been exercised under Article 97(2) of that Order.
2
Where under the law in force in Scotland . . . F840 with respect to the property and affairs of persons suffering from mental disorder aF839. . . judicial factor has been appointed for any person, the provisions of that law shall apply in relation to that person’s property and affairs in England and Wales unless he is a patient in relation to whom powers have been exercised under this Part of this Act, or a person as to whom powers are exercisable and have been exercised under section 98 above.
F8412A
Part VIII of the Mental Health (Northern Ireland) Order 1986 shall apply in relation to the property and affairs in England and Wales of a patient in relation to whom powers have been exercised under that Part, or a person as to whom powers are exercisible and have been exercised under Article 97(2) of that Order as it applies in relation to his property and affairs in Northern Ireland unless he is a patient in relation to whom powers have been exercised under this Part of this Act, or a person as to whom powers are exercisable and have been exercised under section 98 above.
3
Nothing in this section shall affect any power to execute a will under section 96(1)(e) above F842or Article 99(1)(e) of the Mental Health (Northern Ireland) Order 1986 or the effect of any will executed in the exercise of such a power.
4
In this section references to property do not include references to land or interests in land but this subsection shall not prevent the receipt of rent or other income arising from land or interests in land.
111 Construction of references in other Acts to judge or authority having jurisdiction under Part VII.
1
The functions expressed to be conferred by any enactment not contained in this Part of this Act on the judge having jurisdiction under this Part of this Act shall be exercisable F846. . . by a nominated judge.
2
Subject to subsection (3) F843and (3A) below, the functions expressed to be conferred by any such enactment on the authority having jurisdiction under this Part of this Act shall, subject to any express provision to the contrary, be exercisable by F847. . . a nominated judge, the Master of the Court of Protection or a nominated officer.
F8442A
The exercise of the functions referred to in subsection (2) above by the Public Trustee shall be subject to any directions of the Master and they shall be excercisable so far only as may be provided by any rules made under this Part of this Act or (subject to any such rules) by directions of the Master.
3
The exercise of the functions referred to in subsection (2) above by a nominated officer shall be subject to any directions of the Master and they shall be exercisable so far only as may be provided by the instrument by which the officer is nominated.
F8453A
In such cases or circumstances as may be prescribed by any rules under this Part of this Act or (subject to any such rules) by directions of the Master, the functions referred to in subsection (2) above shall be exercised by the Public Trustee (but subject to any directions of the Master as to their exercise).
4
Subject to the foregoing provisions of this section—
a
references in any enactment not contained in this Part of this Act to the judge having jurisdiction under this Part of this Act shall be construed as references to F848. . . a nominated judge, and
b
references in any such enactment to the authority having jurisdiction under this Part of this Act shall be construed as references to F849. . . a nominated judge, the Master of the Court of Protection or a nominated officer.
112 Interpretation of Part VII.
In this Part of this Act, unless the context otherwise requires—
“nominated judge” means a judge nominated in pursuance of subsection (1) of section 93 above;
“nominated officer” means an officer nominated in pursuance of subsection (4) of that section;
“patient” has the meaning assigned to it by section 94 above;
“property” includes any thing in action, and any interest in real or personal property;
“the judge” shall be construed in accordance with section 94 above;
“will” includes a codicil.
113 Disapplication of certain enactments in relation to persons within the jurisdiction of the judge.
The provisions of the Acts described in Schedule 3 to this Act which are specified in the third column of that Schedule, so far as they make special provision for persons suffering from mental disorder, shall not have effect in relation to patients and to persons as to whom powers are exercisable and have been exercised under section 98 above.
Part VIII Miscellaneous Functions of Local Authorities and the Secretary of State
F541Approved mental health professionals
S. 114 and cross-heading substituted (1.4.2008 for certain purposes, otherwise 3.11.2008) by Mental Health Act 2007 (c. 12), ss. 18, 56 (with Sch. 10); S.I. 2008/745, arts. 2(a), 3(b); S.I. 2008/1900, art. 2(c) (with art. 3, Sch.); S.I. 2008/2156, art. 2(a) (with art. 3, Sch.)
F539114 Approval by local social services authority.
1
A local social services authority may approve a person to act as an approved mental health professional for the purposes of this Act.
2
But a local social services authority may not approve a registered medical practitioner to act as an approved mental health professional.
3
Before approving a person under subsection (1) above, a local social services authority shall be satisfied that he has appropriate competence in dealing with persons who are suffering from mental disorder.
4
The appropriate national authority may by regulations make provision in connection with the giving of approvals under subsection (1) above.
5
The provision which may be made by regulations under subsection (4) above includes, in particular, provision as to—
a
the period for which approvals under subsection (1) above have effect;
b
the courses to be undertaken by persons before such approvals are to be given and during the period for which such approvals have effect;
c
the conditions subject to which such approvals are to be given; and
d
the factors to be taken into account in determining whether persons have appropriate competence as mentioned in subsection (3) above.
6
Provision made by virtue of subsection (5)(b) above may relate to courses approved or provided by such person as may be specified in the regulations (as well as to courses approved under section F905114ZA or 114A below).
7
An approval by virtue of subsection (6) above may be in respect of a course in general or in respect of a course in relation to a particular person.
8
The power to make regulations under subsection (4) above includes power to make different provision for different cases or areas.
9
In this section “ the appropriate national authority ” means—
a
in relation to persons who are or wish to become approved to act as approved mental health professionals by a local social services authority whose area is in England, the Secretary of State;
b
in relation to persons who are or wish to become approved to act as approved mental health professionals by a local social services authority whose area is in Wales, the Welsh Ministers.
10
In this Act “ approved mental health professional ” means—
a
in relation to acting on behalf of a local social services authority whose area is in England, a person approved under subsection (1) above by any local social services authority whose area is in England, and
b
in relation to acting on behalf of a local social services authority whose area is in Wales, a person approved under that subsection by any local social services authority whose area is in Wales.
C84114ZAF904Approval of courses: England
1
F1032Social Work England may approve courses for persons who are, or wish to become, approved to act as approved mental health professionals by a local social services authority whose area is in England.
2
F1033Social Work England must publish a list of—
a
the courses which are approved under this section, and
b
the courses which have been, but are no longer, approved under this section and the periods for which they were so approved.
3
The functions of an approved mental health professional are not to be considered to be relevant social work for the purposes of Part 4 of the Care Standards Act 2000.
F10344
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F10355
Social Work England may charge fees for approving courses under subsection (1).
6
In this section “Social Work England” means the body corporate established by section 36(1) of the Children and Social Work Act 2017.
114AF542F906Approval of courses: Wales
F9071
The F989Social Care Wales may, in accordance with rules made by it, approve courses for persons who are, or wish to become, approved to act as approved mental health professionals by a local social services authority whose area is in Wales.
F9902
For that purpose—
a
subsections (2), (3), (4)(a) and (7) of section 114 of the Regulation and Inspection of Social Care (Wales) Act 2016 apply as they apply to approvals given, rules made and courses approved under that section, and
b
sections 73 to 75 and section 115 of that Act apply accordingly.
F9083
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
4
The functions of an approved mental health professional shall not be considered to be relevant social work F992for the purposes of Parts 3 to 8 of the Regulation and Inspection of Social Care (Wales) Act 2016 .
5
115F540 Powers of entry and inspection.
1
An approved mental health professional may at all reasonable times enter and inspect any premises (other than a hospital) in which a mentally disordered patient is living, if he has reasonable cause to believe that the patient is not under proper care.
2
The power under subsection (1) above shall be exercisable only after the professional has produced, if asked to do so, some duly authenticated document showing that he is an approved mental health professional.
Visiting patients
116 Welfare of certain hospital patients.
1
Where a patient to whom this section applies is admitted to a hospital F543independent hospital or care home in England and Wales (whether for treatment for mental disorder or for any other reason) then, without prejudice to their duties in relation to the patient apart from the provisions of this section, the authority shall arrange for visits to be made to him on behalf of the authority, and shall take such other steps in relation to the patient while in the hospital or nursing home as would be expected to be taken by his parents.
2
This section applies to-
F544a
a child or young person—
i
who is in the care of a local authority by virtue of a care order within the meaning of the M15 Children Act 1989, or
ii
in respect of whom the rights and powers of a parent are vested in a local authority by virtue of section 16 of the M16Social Work (Scotland) Act 1968;
b
a person who is subject to the guardianship of a local social services authority under the provisions of this Act F545. . . ; or
c
a person the functions of whose nearest relative under this Act F545. . . are for the time being transferred to a local social services authority.
After-care
117 After-care.
1
This section applies to persons who are detained under section 3 above, or admitted to a hospital in pursuance of a hospital order made under section 37 above, or transferred to a hospital in pursuance of F546a hospital direction made under section 45A above or a transfer direction made under section 47 or 48 above, and then cease to be detained and F547(whether or not immediately after so ceasing) leave hospital.
C64C652
It shall be the duty of the F1070F1060integrated care board orF911... F548Local Health Board and of the local social services authority to provide F979or arrange for the provision of, in co-operation with relevant voluntary agencies, after-care services for any person to whom this section applies until such time as the F1071F1060integrated care board orF911... F548Local Health Board and the local social services authority are satisfied that the person concerned is no longer in need of such services F549; but they shall not be so satisfied in the case of a F550community patient while he remains such a patient..
F5512A
F552. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2B
Section 32 above shall apply for the purposes of this section as it applies for the purposes of Part II of this Act.
F8502C
References in this Act to after-care services provided for a patient under this section include references to services provided for the patient—
a
in respect of which direct payments are made under F985—
i
sections 31 to 33 of the Care Act 2014 (as applied by Schedule 4 to that Act),
ii
sections 50, 51 and 53 of the Social Services and Well-being (Wales) Act 2014 (as applied by Schedule A1 to that Act), or
iii
regulations under section 12A(4) of the National Health Service Act 2006, and
b
which would be provided under this section apart from F982those sections (as so applied) or the regulations.
F9122D
2E
2F
2G
Section 272(7) and (8) of the National Health Service Act 2006 applies to the power to make regulations under subsection (2E) as it applies to a power to make regulations under that Act.
3
In this F553section “the F1072F1064integrated care board orF913 ... F548 Local Health Board” means the F914F1064integrated care board orF913...F548Local Health Board, and “the local social services authority” means the local social services authority F980—
a
if, immediately before being detained, the person concerned was ordinarily resident in England, for the area in England in which he was ordinarily resident;
b
if, immediately before being detained, the person concerned was ordinarily resident in Wales, for the area in Wales in which he was ordinarily resident; or
c
in any other case for the area in which the person concerned is resident or to which he is sent on discharge by the hospital in which he was detained.
F9774
Where there is a dispute about where a person was ordinarily resident for the purposes of subsection (3) above—
a
if the dispute is between local social services authorities in England, section 40 of the Care Act 2014 applies to the dispute as it applies to a dispute about where a person was ordinarily resident for the purposes of Part 1 of that Act;
b
if the dispute is between local social services authorities in Wales, section 195 of the Social Services and Well-being (Wales) Act 2014 applies to the dispute as it applies to a dispute about where a person was ordinarily resident for the purposes of that Act;
c
if the dispute is between a local social services authority in England and a local social services authority in Wales, it is to be determined by the Secretary of State or the Welsh Ministers.
5
The Secretary of State and the Welsh Ministers shall make and publish arrangements for determining which of them is to determine a dispute under subsection (4)(c); and the arrangements may, in particular, provide for the dispute to be determined by whichever of them they agree is to do so.
F9786
In this section, “after-care services”, in relation to a person, means services which have both of the following purposes—
a
meeting a need arising from or related to the person's mental disorder; and
b
reducing the risk of a deterioration of the person's mental condition (and, accordingly, reducing the risk of the person requiring admission to a hospital again for treatment for mental disorder).
117AF975After-care: preference for particular accommodation
1
The Secretary of State may by regulations provide that where—
a
the local social services authority under section 117 is, in discharging its duty under subsection (2) of that section, providing or arranging for the provision of accommodation for the person concerned;
b
the person concerned expresses a preference for particular accommodation; and
c
any prescribed conditions are met,
the local social services authority must provide or arrange for the provision of the person's preferred accommodation.
2
Regulations under this section may provide for the person concerned, or a person of a prescribed description, to pay for some or all of the additional cost in prescribed cases.
3
In subsection (2), “ additional cost ” means the cost of providing or arranging for the provision of the person's preferred accommodation less the amount that the local social services authority would expect to be the usual cost of providing or arranging for the provision of accommodation of that kind.
4
The power to make regulations under this section—
a
is exercisable only in relation to local social services authorities in England;
b
includes power to make different provision for different cases or areas.
117BF976After-care: exception for provision of nursing care
1
Section 117 does not authorise or require a local social services authority F986..., in or in connection with the provision of services under that section, to provide or arrange for the provision of nursing care by a registered nurse.
2
In this section “nursing care by a registered nurse” means a service provided by a registered nurse involving—
a
the provision of care, or
b
the planning, supervision or delegation of the provision of care,
other than a service which, having regard to its nature and the circumstances in which it is provided, does not need to be provided by a registered nurse.
Functions of the Secretary of State
118 Code of practice.
1
The Secretary of State shall prepare, and from time to time revise, a code of practice—
C66a
for the guidance of registered medical practitioners F554, approved clinicians , managers and staff of hospitals F555, independent hospitals and care homes and F556approved mental health professionals in relation to the admission of patients to hospitals F557and registered establishments under this Act F558and to guardianship and F559community patients under this Act; and
b
for the guidance of registered medical practitioners and members of other professions in relation to the medical treatment of patients suffering from mental disorder.
F8691A
The Code which must be prepared, and from time to time revised, in relation to Wales shall also be for the guidance of independent mental health advocates appointed under arrangements made under section 130E below
C672
The code shall, in particular, specify forms of medical treatment in addition to any specified by regulations made for the purposes of section 57 above which in the opinion of the Secretary of State give rise to special concern and which should accordingly not be given by a registered medical practitioner unless the patient has consented to the treatment (or to a plan of treatment including that treatment) and a certificate in writing as to the matters mentioned in subsection (2)(a) and (b) of that section has been given by another registered medical practitioner, being a practitioner F560appointed for the purposes of this section by the regulatory authority.
F5612A
The code shall include a statement of the principles which the Secretary of State thinks should inform decisions under this Act.
2B
In preparing the statement of principles the Secretary of State shall, in particular, ensure that each of the following matters is addressed—
a
respect for patients' past and present wishes and feelings,
b
respect for diversity generally including, in particular, diversity of religion, culture and sexual orientation (within the meaning of section 35 of the Equality Act 2006),
c
minimising restrictions on liberty,
d
involvement of patients in planning, developing and delivering care and treatment appropriate to them,
e
avoidance of unlawful discrimination,
f
effectiveness of treatment,
g
views of carers and other interested parties,
h
patient wellbeing and safety, and
i
public safety.
2C
The Secretary of State shall also have regard to the desirability of ensuring—
a
the efficient use of resources, and
b
the equitable distribution of services.
2D
In performing functions under this Act persons mentioned in subsection (1)(a) or (b) F870and subsection (1A) shall have regard to the code.
3
Before preparing the code or making any alteration in it the Secretary of State shall consult such bodies as appear to him to be concerned.
4
The Secretary of State shall lay copies of the code and of any alteration in the code before Parliament; and if either House of Parliament passes a resolution requiring the code or any alteration in it to be withdrawn the Secretary of State shall withdraw the code or alteration and, where he withdraws the code, shall prepare a code in substitution for the one which is withdrawn.
5
No resolution shall be passed by either House of Parliament under subsection (4) above in respect of a code or alteration after the expiration of the period of 40 days beginning with the day on which a copy of the code or alteration was laid before that House; but for the purposes of this subsection no account shall be taken of any time during which Parliament is dissolved or prorogued or during which both Houses are adjourned for more than four days.
6
The Secretary of State shall publish the code as for the time being in force.
F5627
The Care Quality Commission may at any time make proposals to the Secretary of State as to the content of the code of practice which the Secretary of State must prepare, and from time to time revise, under this section in relation to England.
119 Practitioners approved for Part IV and s. 118.
C681
F563The regulatory authority may make such provision as F564it may with the approval of the Treasury determine for the payment of remuneration, allowances, pensions or gratuities to or in respect of registered medical practitioners appointed F565by the authority for the purposes of Part IV of this Act and section 118 above and to or in respect of other persons appointed for the purposes of section 57(2)(a) above.
2
A registered medical practitioner or other person appointed F566... for the purposes of the provisions mentioned in subsection (1) above may, for the purpose of exercising his functions under those provisions F567or under Part 4A of this Act, at any reasonable time—
a
b
require the production of and inspect any records relating to the treatment of the patient F569there.
F8593
In this section “regulated establishment” means—
a
an establishment in respect of which a person is registered under Part 2 of the Care Standards Act 2000; F1028...
b
premises used for the carrying on of a regulated activity, within the meaning of Part 1 of the Health and Social Care Act 2008, in respect of which a person is registered under Chapter 2 of that Part F1027; or
c
premises at which—
i
a care home service,
ii
a secure accommodation service, or
iii
a residential family centre service,
within the meaning of the Regulation and Inspection of Social Care (Wales) Act 2016 (anaw 2) is provided by a person registered under Part 1 of that Act.
C69F570120 General protection of relevant patients.
1
The regulatory authority must keep under review and, where appropriate, investigate the exercise of the powers and the discharge of the duties conferred or imposed by this Act so far as relating to the detention of patients or their reception into guardianship or to relevant patients.
2
Relevant patients are—
a
patients liable to be detained under this Act,
b
community patients, and
c
patients subject to guardianship.
3
The regulatory authority must make arrangements for persons authorised by it to visit and interview relevant patients in private—
a
in the case of relevant patients detained under this Act, in the place where they are detained, and
b
in the case of other relevant patients, in hospitals and regulated establishments and, if access is granted, other places.
4
The regulatory authority must also make arrangements for persons authorised by it to investigate any complaint as to the exercise of the powers or the discharge of the duties conferred or imposed by this Act in respect of a patient who is or has been detained under this Act or who is or has been a relevant patient.
5
The arrangements made under subsection (4)—
a
may exclude matters from investigation in specified circumstances, and
b
do not require any person exercising functions under the arrangements to undertake or continue with any investigation where the person does not consider it appropriate to do so.
6
Where any such complaint as is mentioned in subsection (4) is made by a Member of Parliament or a member of the National Assembly for Wales, the results of the investigation must be reported to the Member of Parliament or member of the Assembly.
7
For the purposes of a review or investigation under subsection (1) or the exercise of functions under arrangements made under this section, a person authorised by the regulatory authority may at any reasonable time—
a
visit and interview in private any patient in a hospital or regulated establishment,
b
if the authorised person is a registered medical practitioner or approved clinician, examine the patient in private there, and
c
require the production of and inspect any records relating to the detention or treatment of any person who is or has been detained under this Act or who is or has been a community patient or a patient subject to guardianship.
8
The regulatory authority may make provision for the payment of remuneration, allowances, pensions or gratuities to or in respect of persons exercising functions in relation to any review or investigation for which it is responsible under subsection (1) or functions under arrangements made by it under this section.
9
In this section “regulated establishment” means—
a
an establishment in respect of which a person is registered under Part 2 of the Care Standards Act 2000, F1029...
b
premises used for the carrying on of a regulated activity (within the meaning of Part 1 of the Health and Social Care Act 2008) in respect of which a person is registered under Chapter 2 of that Part F1030, or
c
premises at which—
i
a care home service,
ii
a secure accommodation service, or
iii
a residential family centre service,
within the meaning of the Regulation and Inspection of Social Care (Wales) Act 2016 is provided by a person registered under Part 1 of that Act.
120AF576Investigation reports
1
The regulatory authority may publish a report of a review or investigation carried out by it under section 120(1).
2
The Secretary of State may by regulations make provision as to the procedure to be followed in respect of the making of representations to the Care Quality Commission before the publication of a report by the Commission under subsection (1).
3
The Secretary of State must consult the Care Quality Commission before making any such regulations.
4
The Welsh Ministers may by regulations make provision as to the procedure to be followed in respect of the making of representations to them before the publication of a report by them under subsection (1).
120BAction statements
1
The regulatory authority may direct a person mentioned in subsection (2) to publish a statement as to the action the person proposes to take as a result of a review or investigation under section 120(1).
2
The persons are—
a
the managers of a hospital within the meaning of Part 2 of this Act;
b
a local social services authority;
c
persons of any other description prescribed in regulations.
3
Regulations may make further provision about the content and publication of statements under this section.
4
“Regulations” means regulations made—
a
by the Secretary of State, in relation to England;
b
by the Welsh Ministers, in relation to Wales.
120CProvision of information
1
This section applies to the following persons—
a
the managers of a hospital within the meaning of Part 2 of this Act;
b
a local social services authority;
c
persons of any other description prescribed in regulations.
2
A person to whom this section applies must provide the regulatory authority with such information as the authority may reasonably request for or in connection with the exercise of its functions under section 120.
3
A person to whom this section applies must provide a person authorised under section 120 with such information as the person so authorised may reasonably request for or in connection with the exercise of functions under arrangements made under that section.
4
This section is in addition to the requirements of section 120(7)(c).
5
“Information” includes documents and records.
6
“Regulations” means regulations made—
a
by the Secretary of State, in relation to England;
b
by the Welsh Ministers, in relation to Wales.
120DAnnual reports
1
The regulatory authority must publish an annual report on its activities in the exercise of its functions under this Act.
2
The report must be published as soon as possible after the end of each financial year.
3
The Care Quality Commission must send a copy of its annual report to the Secretary of State who must lay the copy before Parliament.
4
The Welsh Ministers must lay a copy of their annual report before the National Assembly for Wales.
5
In this section “financial year” means—
a
the period beginning with the date on which section 52 of the Health and Social Care Act 2008 comes into force and ending with the next 31 March following that date, and
b
each successive period of 12 months ending with 31 March.
121 Mental Health Act Commission.
F571. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
E6122 Provision of pocket money for in-patients in hospital.
1
F933Welsh Ministers may (in relation to Wales) pay to persons who are receiving treatment as in-patients (whether liable to be detained or not) in F572 special hospitals or other hospitals, being hospitals wholly or mainly used for the treatment of persons suffering from mental disorder, such amounts as F934the Welsh Ministers think fit in respect of F935those persons' occasional personal expenses where it appears to F936the Welsh Ministers that F937those persons would otherwise be without resources to meet those expenses.
2
F898123 Transfers to and from special hospitals.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F574124. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
125 Inquiries.
F575. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Part IX Offences
126 Forgery, false statements, etc.
1
Any person who without lawful authority or excuse has in his custody or under his control any document to which this subsection applies, which is, and which he knows or believes to be, false within the meaning of Part I of the M17Forgery and Counterfeiting Act 1981, shall be guilty of an offence.
2
Any person who without lawful authority or excuse makes or has in his custody or under his control, any document so closely resembling a document to which subsection (1) above applies as to be calculated to deceive shall be guilty of an offence.
3
The documents to which subsection (1) above applies are any documents purporting to be—
a
an application under Part II of this Act;
b
a medical F577or other recommendation or report under this Act; and
c
any other document required or authorised to be made for any of the purposes of this Act.
4
Any person who—
a
wilfully makes a false entry or statement in any application, recommendation, report, record or other document required or authorised to be made for any of the purposes of this Act; or
b
with intent to deceive, makes use of any such entry or statement which he knows to be false,
shall be guilty of an offence.
5
Any person guilty of an offence under this section shall be liable—
a
on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding the statutory maximum, or to both;
b
on conviction on indictment, to imprisonment for a term not exceeding two years or to a fine of any amount, or to both.
127 Ill-treatment of patients.
1
It shall be an offence for any person who is an officer on the staff of or otherwise employed in, or who is one of the managers of, a hospital F578, independent hospital or care home—
a
to ill-treat or wilfully to neglect a patient for the time being receiving treatment for mental disorder as an in-patient in that hospital or home; or
b
to ill-treat or wilfully to neglect, on the premises of which the hospital or home forms part, a patient for the time being receiving such treatment there as an out-patient.
2
It shall be an offence for any individual to ill-treat or wilfully to neglect a mentally disordered patient who is for the time being subject to his guardianship under this Act or otherwise in his custody or care (whether by virtue of any legal or moral obligation or otherwise).
2A
F579. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
3
Any person guilty of an offence under this section shall be liable—
a
on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding the statutory maximum, or to both;
b
on conviction on indictment, to imprisonment for a term not exceeding F580five years or to a fine of any amount, or to both.
4
No proceedings shall be instituted for an offence under this section except by or with the consent of the Director of Public Prosecutions.
128 Assisting patients to absent themselves without leave, etc.
F5811
Where any person induces or knowingly assists another person who is liable to be detained in a hospital within the meaning of Part II of this Act or is subject to guardianship under this Act F582or is a community patient to absent himself without leave he shall be guilty of an offence.
2
Where any person induces or knowingly assists another person who is in legal custody by virtue of section 137 below to escape from such custody he shall be guilty of an offence.
3
Where any person knowingly harbours a patient who is absent without leave or is otherwise at large and liable to be retaken under this Act or gives him any assistance with intent to prevent, hinder or interfere with his being taken into custody or returned to the hospital or other place where he ought to be he shall be guilty of an offence.
4
Any person guilty of an offence under this section shall be liable—
a
on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding the statutory maximum, or to both;
b
on conviction on indictment, to imprisonment for a term not exceeding two years or to a fine of any amount, or to both.
129 Obstruction.
1
Any person who without reasonable cause—
a
refuses to allow the inspection of any premises; or
b
refuses to allow the visiting, interviewing or examination of any person by a person authorised in that behalf by or under this Act F583or to give access to any person to a person so authorised; or
c
refuses to produce for the inspection of any person so authorised any document or record the production of which is duly required by him; or
F584ca
fails to comply with a request made under section 120C; or
d
otherwise obstructs any such person in the exercise of his functions,
shall be guilty of an offence.
2
Without prejudice to the generality of subsection (1) above, any person who insists on being present when required to withdraw by a person authorised by or under this Act to interview or examine a person in private shall be guilty of an offence.
3
Any person guilty of an offence under this section shall be liable on summary conviction to imprisonment for a term not exceeding three months or to a fine not exceeding level 4 on the standard scale or to both.
130 Prosecutions by local authorities.
A local social services authority may institute proceedings for any offence under this Part of this Act, but without prejudice to any provision of this Part of this Act requiring the consent of the Director of Public Prosecutions for the institution of such proceedings.
Part X Miscellaneous and Supplementary
Miscellaneous provisions
130A F649Independent mental health advocatesF873: England
1
2
The F874Secretary of State may by regulations make provision as to the appointment of persons as independent mental health advocates.
3
The regulations may, in particular, provide—
a
that a person may act as an independent mental health advocate only in such circumstances, or only subject to such conditions, as may be specified in the regulations;
b
for the appointment of a person as an independent mental health advocate to be subject to approval in accordance with the regulations.
4
In making arrangements under this section, F940a local social services authority shall have regard to the principle that any help available to a patient under the arrangements should, so far as practicable, be provided by a person who is independent of any person who is professionally concerned with the patient's medical treatment.
5
For the purposes of subsection (4) above, a person is not to be regarded as professionally concerned with a patient's medical treatment merely because he is representing him in accordance with arrangements—
a
under section 35 of the Mental Capacity Act 2005; or
b
of a description specified in regulations under this section.
6
Arrangements under this section may include provision for payments to be made to, or in relation to, persons carrying out functions in accordance with the arrangements.
7
Regulations under this section—
a
may make different provision for different cases;
b
may make provision which applies subject to specified exceptions;
c
may include transitional, consequential, incidental or supplemental provision.
130BArrangements under section 130A
1
The help available to a qualifying patient under arrangements under section 130A above shall include help in obtaining information about and understanding—
a
the provisions of this Act by virtue of which he is a qualifying patient;
b
any conditions or restrictions to which he is subject by virtue of this Act;
c
what (if any) medical treatment is given to him or is proposed or discussed in his case;
d
why it is given, proposed or discussed;
e
the authority under which it is, or would be, given; and
f
the requirements of this Act which apply, or would apply, in connection with the giving of the treatment to him.
2
The help available under the arrangements to a qualifying patient shall also include—
a
help in obtaining information about and understanding any rights which may be exercised under this Act by or in relation to him; and
b
help (by way of representation or otherwise) in exercising those rights.
3
For the purpose of providing help to a patient in accordance with the arrangements, an independent mental health advocate may—
a
visit and interview the patient in private;
b
visit and interview any person who is professionally concerned with his medical treatment;
c
require the production of and inspect any records relating to his detention or treatment in any hospital or registered establishment or to any after-care services provided for him under section 117 above;
d
require the production of and inspect any records of, or held by, a local social services authority which relate to him.
4
But an independent mental health advocate is not entitled to the production of, or to inspect, records in reliance on subsection (3)(c) or (d) above unless—
a
in a case where the patient has capacity or is competent to consent, he does consent; or
b
in any other case, the production or inspection would not conflict with a decision made by a donee or deputy or the Court of Protection and the person holding the records, having regard to such matters as may be prescribed in regulations under section 130A above, considers that—
i
the records may be relevant to the help to be provided by the advocate; and
ii
the production or inspection is appropriate.
5
For the purpose of providing help to a patient in accordance with the arrangements, an independent mental health advocate shall comply with any reasonable request made to him by any of the following for him to visit and interview the patient—
a
the person (if any) appearing to the advocate to be the patient's nearest relative;
b
the responsible clinician for the purposes of this Act;
c
an approved mental health professional.
6
But nothing in this Act prevents the patient from declining to be provided with help under the arrangements.
7
In subsection (4) above—
a
the reference to a patient who has capacity is to be read in accordance with the Mental Capacity Act 2005;
b
the reference to a donee is to a donee of a lasting power of attorney (within the meaning of section 9 of that Act) created by the patient, where the donee is acting within the scope of his authority and in accordance with that Act;
c
the reference to a deputy is to a deputy appointed for the patient by the Court of Protection under section 16 of that Act, where the deputy is acting within the scope of his authority and in accordance with that Act.
130CSection 130A: supplemental
1
This section applies for the purposes of section 130A above.
F8752
A patient is a qualifying patient if he is–
a
liable to be detained under this Act (otherwise than by virtue of section 4 or 5(2) or (4) above or section 135 or 136 below) and the hospital or registered establishment in which he is liable to be detained is situated in England;
b
subject to guardianship under this Act and the area of the responsible local social services authority within the meaning of section 34(3) above is situated in England;
c
a community patient and the responsible hospital is situated in England.
3
A patient is also a qualifying patient if F876the patient is to be regarded as being in England for the purposes of this subsection and—
a
not being a qualifying patient falling within subsection (2) above, he discusses with a registered medical practitioner or approved clinician the possibility of being given a form of treatment to which section 57 above applies; or
b
not having attained the age of 18 years and not being a qualifying patient falling within subsection (2) above, he discusses with a registered medical practitioner or approved clinician the possibility of being given a form of treatment to which section 58A above applies.
F8773A
For the purposes of subsection (3), a patient is to be regarded as being in England if that has been determined in accordance with arrangements made for the purposes of that subsection and section 130I(4), and published, by the Secretary of State and the Welsh Ministers.
4
Where a patient who is a qualifying patient falling within subsection (3) above is informed that the treatment concerned is proposed in his case, he remains a qualifying patient falling within that subsection until—
a
the proposal is withdrawn; or
b
the treatment is completed or discontinued.
F9414A
A local social services authority is responsible for a qualifying patient if—
a
in the case of a qualifying patient falling within subsection (2)(a) above, the hospital or registered establishment in which he is liable to be detained is situated in that authority's area;
b
in the case of a qualifying patient falling within subsection (2)(b) above, that authority is the responsible local social services authority within the meaning of section 34(3) above;
c
in the case of a qualifying patient falling within subsection (2)(c), the responsible hospital is situated in that authority's area;
d
in the case of a qualifying patient falling within subsection (3)—
i
in a case where the patient has capacity or is competent to do so, he nominates that authority as responsible for him for the purposes of section 130A above, or
ii
in any other case, a donee or deputy or the Court of Protection, or a person engaged in caring for the patient or interested in his welfare, nominates that authority on his behalf as responsible for him for the purposes of that section.
4B
In subsection (4A)(d) above—
a
the reference to a patient who has capacity is to be read in accordance with the Mental Capacity Act 2005;
b
the reference to a donee is to a donee of a lasting power of attorney (within the meaning of section 9 of that Act) created by the patient, where the donee is acting within the scope of his authority and in accordance with that Act;
c
the reference to a deputy is to a deputy appointed for the patient by the Court of Protection under section 16 of that Act, where the deputy is acting within the scope of his authority and in accordance with that Act.
F878 5
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F878 6
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
130DDuty to give information about independent mental health advocates
1
The responsible person in relation to a qualifying patient (within the meaning given by section 130C above) shall take such steps as are practicable to ensure that the patient understands—
a
that help is available to him from an independent mental health advocate; and
b
how he can obtain that help.
2
In subsection (1) above, “ the responsible person ” means—
a
in relation to a qualifying patient falling within section 130C(2)(a) above (other than one also falling within paragraph (b) below), the managers of the hospital or registered establishment in which he is liable to be detained;
b
in relation to a qualifying patient falling within section 130C(2)(a) above and conditionally discharged by virtue of section 42(2), 73 or 74 above, the responsible clinician;
c
in relation to a qualifying patient falling within section 130C(2)(b) above, the responsible local social services authority within the meaning of section 34(3) above;
d
in relation to a qualifying patient falling within section 130C(2)(c) above, the managers of the responsible hospital;
e
in relation to a qualifying patient falling within section 130C(3) above, the registered medical practitioner or approved clinician with whom the patient first discusses the possibility of being given the treatment concerned.
3
The steps to be taken under subsection (1) above shall be taken—
a
where the responsible person falls within subsection (2)(a) above, as soon as practicable after the patient becomes liable to be detained;
b
where the responsible person falls within subsection (2)(b) above, as soon as practicable after the conditional discharge;
c
where the responsible person falls within subsection (2)(c) above, as soon as practicable after the patient becomes subject to guardianship;
d
where the responsible person falls within subsection (2)(d) above, as soon as practicable after the patient becomes a community patient;
e
where the responsible person falls within subsection (2)(e) above, while the discussion with the patient is taking place or as soon as practicable thereafter.
4
The steps to be taken under subsection (1) above shall include giving the requisite information both orally and in writing.
5
The responsible person in relation to a qualifying patient falling within section 130C(2) above (other than a patient liable to be detained by virtue of Part 3 of this Act) shall, except where the patient otherwise requests, take such steps as are practicable to furnish the person (if any) appearing to the responsible person to be the patient's nearest relative with a copy of any information given to the patient in writing under subsection (1) above.
6
The steps to be taken under subsection (5) above shall be taken when the information concerned is given to the patient or within a reasonable time thereafter.
130EF866Independent mental health advocates: Wales
1
The Welsh Ministers shall make such arrangements as they consider reasonable to enable persons (“independent mental health advocates”) to be available to help–
a
Welsh qualifying compulsory patients; and
b
Welsh qualifying informal patients.
2
The Welsh Ministers may by regulations make provision as to the appointment of persons as independent mental health advocates.
3
The regulations may, in particular, provide–
a
that a person may act as an independent mental health advocate only in such circumstances, or only subject to such conditions, as may be specified in the regulations;
b
for the appointment of a person as an independent mental health advocate to be subject to approval in accordance with the regulations.
4
In making arrangements under this section, the Welsh Ministers shall have regard to the principle that any help available to a patient under the arrangements should, so far as practicable, be provided by a person who is independent of any person who–
a
is professionally concerned with the patient's medical treatment; or
b
falls within a description specified in regulations made by the Welsh Ministers.
5
For the purposes of subsection (4) above, a person is not to be regarded as professionally concerned with a patient's medical treatment merely because he is representing him in accordance with arrangements–
a
under section 35 of the Mental Capacity Act 2005; or
b
of a description specified in regulations under this section.
6
Arrangements under this section may include provision for payments to be made to, or in relation to, persons carrying out functions in accordance with the arrangements.
7
Regulations under this section and sections 130F to 130H–
a
may make different provision for different cases;
b
may make provision which applies subject to specified exceptions;
c
may include transitional, consequential, incidental or supplemental provision.
130FF863Arrangements under section 130E for Welsh qualifying compulsory patients
1
The help available to a Welsh qualifying compulsory patient under arrangements under section 130E shall include help in obtaining information about and understanding–
a
the provisions of this Act by virtue of which he is a qualifying compulsory patient;
b
any conditions or restrictions to which he is subject by virtue of this Act;
c
what (if any) medical treatment is given to him or is proposed or discussed in his case;
d
why it is given, proposed or discussed;
e
the authority under which it is, or would be, given; and
f
the requirements of this Act which apply, or would apply, in connection with the giving of the treatment to him.
2
The help available under the arrangements to a Welsh qualifying compulsory patient shall also include–
a
help in obtaining information about and understanding any rights which may be exercised under this Act by or in relation to him;
b
help (by way of representation or otherwise)–
i
in exercising the rights referred to in paragraph (a);
ii
for patients who wish to become involved, or more involved, in decisions made about their care or treatment, or care or treatment generally;
iii
for patients who wish to complain about their care or treatment;
c
the provision of information about other services which are or may be available to the patient;
d
other help specified in regulations made by the Welsh Ministers.
130GF867Arrangements under section 130E for Welsh qualifying informal patients
1
The help available to a Welsh qualifying informal patient under arrangements under section 130E shall include help in obtaining information about and understanding–
a
what (if any) medical treatment is given to him or is proposed or discussed in his case;
b
why it is given, proposed or discussed;
c
the authority under which it is, or would be, given.
2
The help available under the arrangements to a Welsh qualifying informal patient shall also include–
a
help (by way of representation or otherwise)–
i
for patients who wish to become involved, or more involved, in decisions made about their care or treatment, or care or treatment generally;
ii
for patients who wish to complain about their care or treatment;
b
the provision of information about other services which are or may be available to the patient;
c
other help specified in regulations made by the Welsh Ministers.
130HF868Independent mental health advocates for Wales: supplementary powers and duties
1
For the purpose of providing help to a patient in accordance with arrangements made under section 130E, an independent mental health advocate may–
a
visit and interview the patient in private;
b
visit and interview–
i
any person who is professionally concerned with his medical treatment;
ii
any other person who falls within a description specified in regulations made by the Welsh Ministers;
c
require the production of and inspect any records relating to his detention, treatment or assessment in any hospital or registered establishment or to any after-care services provided for him under section 117 above;
d
require the production of and inspect any records of, or held by, a local social services authority which relate to him.
2
But an independent mental health advocate is not entitled to the production of, or to inspect, records in reliance on subsection (1)(c) or (d) above unless–
a
in a case where the patient has capacity or is competent to consent, he does consent; or
b
in any other case, the production or inspection would not conflict with a decision made by a donee or deputy or the Court of Protection and the person holding the records, having regard to such matters as may be prescribed in regulations under section 130E above, considers that–
i
the records may be relevant to the help to be provided by the advocate;
ii
the production or inspection is appropriate.
3
For the purpose of providing help to a Welsh qualifying compulsory patient in accordance with the arrangements, an independent mental health advocate shall comply with any reasonable request made to him by any of the following for him to visit and interview the patient–
a
the patient;
b
the person (if any) appearing to the advocate to be the patient's nearest relative;
c
the responsible clinician for the purposes of this Act;
d
an approved mental health professional;
e
a registered social worker who is professionally concerned with the patient's care, treatment or assessment;
f
where the patient is liable to be detained in a hospital or registered establishment, the managers of the hospital or establishment or a person duly authorised on their behalf;
g
the patient's donee or deputy.
4
For the purpose of providing help to a Welsh qualifying informal patient in accordance with the arrangements, an independent mental health advocate shall comply with any reasonable request made to him by any of the following for him to visit and interview the patient–
a
the patient;
b
the managers of the hospital or establishment in which the patient is an in-patient or a person duly authorised on their behalf;
c
any person appearing to the advocate to whom the request is made to be the patient's carer;
d
the patient's donee or deputy;
e
a registered social worker who is professionally concerned with the patient's care, treatment or assessment.
5
But nothing in this Act prevents the patient from declining to be provided with help under the arrangements.
6
In subsection (2) above the reference to a patient who has capacity is to be read in accordance with the Mental Capacity Act 2005.
7
In subsection (4) above–
a
“carer”, in relation to a Welsh qualifying informal patient, means an individual who provides or intends to provide a substantial amount of care on a regular basis for the patient, but does not include any individual who provides, or intends to provide care by virtue of a contract of employment or other contract with any person or as a volunteer for a body (whether or not incorporated);
8
In subsections (2) to (4) above–
a
the reference to a donee is to a donee of a lasting power of attorney (within the meaning of section 9 of the Mental Capacity Act 2005) created by the patient, where the donee, in making the decision referred to in subsection (2) or the request referred to in subsection (3) or (4), is acting within the scope of his authority and in accordance with that Act;
b
the reference to a deputy is to a deputy appointed for the patient by the Court of Protection under section 16 of that Act, where the deputy, in making the decision referred to in subsection (2) or the request referred to in subsection (3) or (4), is acting within the scope of his authority and in accordance with that Act.
130IF864Welsh qualifying compulsory patients
1
This section applies for the purposes of section 130E above.
2
A patient is a Welsh qualifying compulsory patient if he is–
a
liable to be detained under this Act (other than under section 135 or 136 below) and the hospital or registered establishment in which he is liable to be detained is situated in Wales;
b
subject to guardianship under this Act and the area of the responsible local social services authority within the meaning of section 34(3) above is situated in Wales; or
c
a community patient and the responsible hospital is situated in Wales.
3
A patient is also a Welsh qualifying compulsory patient if the patient is to be regarded as being in Wales for the purposes of this subsection and–
a
not being a qualifying patient falling within subsection (2) above, he discusses with a registered medical practitioner or approved clinician the possibility of being given a form of treatment to which section 57 above applies; or
b
not having attained the age of 18 years and not being a qualifying patient falling within subsection (2) above, he discusses with a registered medical practitioner or approved clinician the possibility of being given a form of treatment to which section 58A above applies.
4
For the purposes of subsection (3), a patient is to be regarded as being in Wales if that has been determined in accordance with arrangements made for the purposes of that subsection and section 130C(3), and published, by the Secretary of State and the Welsh Ministers.
5
Where a patient who is a Welsh qualifying compulsory patient falling within subsection (3) above is informed that the treatment concerned is proposed in his case, he remains a qualifying patient falling within that subsection until–
a
the proposal is withdrawn; or
b
the treatment is completed or discontinued.
130JF880Welsh qualifying informal patients
1
This section applies for the purposes of section 130E above.
2
A patient is a Welsh qualifying informal patient if–
a
the patient is an in-patient at a hospital or registered establishment situated in Wales;
b
the patient is receiving treatment for, or assessment in relation to, mental disorder at the hospital or registered establishment; and
c
no application, order, direction or report renders the patient liable to be detained under this Act.
130KF865Duty to give information about independent mental health advocates to Welsh qualifying compulsory patients
1
The responsible person in relation to a Welsh qualifying compulsory patient (within the meaning given by section 130I above) shall take such steps as are practicable to ensure that the patient understands–
a
that help is available to him from an independent mental health advocate; and
b
how he can obtain that help.
2
In subsection (1) above, the “ responsible person ” means–
a
in relation to a Welsh qualifying compulsory patient falling within section 130I(2)(a) above (other than one also falling within paragraph (b) below), the managers of the hospital or registered establishment in which he is liable to be detained; or
b
in relation to a Welsh qualifying compulsory patient falling within section 130I(2)(a) above and conditionally discharged by virtue of section 42(2), 73 or 74 above, the responsible clinician;
c
in relation to a Welsh qualifying compulsory patient falling within section 130I(2)(b) above, the responsible local social services authority within the meaning of section 34(3) above;
d
in relation to a Welsh qualifying compulsory patient falling within section 130I(2)(c) above, the managers of the responsible hospital;
e
in relation to a Welsh qualifying compulsory patient falling within section 130I(3) above, the registered medical practitioner or approved clinician with whom the patient first discusses the possibility of being given the treatment concerned.
3
The steps to be taken under subsection (1) above shall be taken–
a
where the responsible person falls within subsection (2)(a) above, as soon as practicable after the patient becomes liable to be detained;
b
where the responsible person falls within subsection (2)(b) above, as soon as practicable after the conditional discharge;
c
where the responsible person falls within subsection (2)(c) above, as soon as practicable after the patient becomes subject to guardianship;
d
where the responsible person falls within subsection (2)(d) above, as soon as practicable after the patient becomes a community patient;
e
where the responsible person falls within subsection (2)(e) above, while the discussion with the patient is taking place or as soon as practicable thereafter.
4
The steps to be taken under subsection (1) above shall include giving the requisite information both orally and in writing.
5
The responsible person in relation to a Welsh qualifying compulsory patient falling within section 130I(2) above (other than a patient liable to be detained by virtue of Part 3 of this Act) shall, except where the patient otherwise requests, take such steps as are practicable to furnish any person falling within subsection (6) with a copy of any information given to the patient in writing under subsection (1) above.
6
A person falls within this subsection if–
a
the person appears to the responsible person to be the patient's nearest relative;
b
the person is a donee of a lasting power of attorney (within the meaning of section 9 of the Mental Capacity Act 2005) created by the patient and the scope of the donee's authority includes matters related to the care and treatment of the patient;
c
the person is a deputy appointed for the patient by the Court of Protection under section 16 of that Act and the scope of the deputy's authority includes matters related to the care and treatment of the patient.
7
The steps to be taken under subsection (5) above shall be taken when the information concerned is given to the patient or within a reasonable time thereafter.
130LF881Duty to give information about independent mental health advocates to Welsh qualifying informal patients
1
The responsible person in relation to a Welsh qualifying informal patient (within the meaning given by section 130J above) shall take such steps as are practicable to ensure that the patient understands–
a
that help is available to him from an independent mental health advocate; and
b
how he can obtain that help.
2
In subsection (1) above, the “ responsible person ” means the managers of the hospital or registered establishment to which the patient is admitted as an in-patient.
3
The steps to be taken under subsection (1) above shall be taken as soon as practicable after the patient becomes an in-patient.
4
The steps to be taken under subsection (1) above shall include giving the requisite information both orally and in writing.
5
The responsible person in relation to a Welsh qualifying informal patient shall, except where the patient otherwise requests, take such steps as are practicable to furnish any person falling within subsection (6) with a copy of any information given to the patient in writing under subsection (1) above.
6
A person falls within this subsection if–
a
the person appears to the responsible person to be a carer of the patient;
b
the person is a donee of a lasting power of attorney (within the meaning of section 9 of the Mental Capacity Act 2005) created by the patient and the scope of the donee's authority includes matters related to the care and treatment of the patient;
c
the person is a deputy appointed for the patient by the Court of Protection under section 16 of that Act and the scope of the deputy's authority includes matters related to the care and treatment of the patient.
7
In subsection (6), “ carer ”, in relation to a Welsh qualifying informal patient, means an individual who provides or intends to provide a substantial amount of care on a regular basis for the patient, but does not include any individual who provides, or intends to provide care by virtue of a contract of employment or other contract with any person or as a volunteer for a body (whether or not incorporated);
8
The steps to be taken under subsection (5) above shall be taken when the information concerned is given to the patient or within a reasonable time thereafter.
131 Informal admission of patients.
1
Nothing in this Act shall be construed as preventing a patient who requires treatment for mental disorder from being admitted to any hospital or F585registered establishment in pursuance of arrangements made in that behalf and without any application, order or direction rendering him liable to be detained under this Act, or from remaining in any hospital or F585registered establishment in pursuance of such arrangements after he has ceased to be so liable to be detained.
F5862
Subsections (3) and (4) below apply in the case of a patient aged 16 or 17 years who has capacity to consent to the making of such arrangements as are mentioned in subsection (1) above.
3
If the patient consents to the making of the arrangements, they may be made, carried out and determined on the basis of that consent even though there are one or more persons who have parental responsibility for him.
4
If the patient does not consent to the making of the arrangements, they may not be made, carried out or determined on the basis of the consent of a person who has parental responsibility for him.
5
In this section—
a
the reference to a patient who has capacity is to be read in accordance with the Mental Capacity Act 2005; and
b
“ parental responsibility ” has the same meaning as in the Children Act 1989.
131AF851 Accommodation, etc. for children
1
This section applies in respect of any patient who has not attained the age of 18 years and who—
a
is liable to be detained in a hospital under this Act; or
b
is admitted to, or remains in, a hospital in pursuance of such arrangements as are mentioned in section 131(1) above.
2
The managers of the hospital shall ensure that the patient's environment in the hospital is suitable having regard to his age (subject to his needs).
3
For the purpose of deciding how to fulfil the duty under subsection (2) above, the managers shall consult a person who appears to them to have knowledge or experience of cases involving patients who have not attained the age of 18 years which makes him suitable to be consulted.
4
In this section, “ hospital ” includes a registered establishment.
132 Duty of managers of hospitals to give information to detained patients.
1
The managers of a hospital or F587registered establishment in which a patient is detained under this Act shall take such steps as are practicable to ensure that the patient understands—
a
under which of the provisions of this Act he is for the time being detained and the effect of that provision; and
b
what rights of applying to a F588tribunal are available to him in respect of his detention under that provision;
and those steps shall be taken as soon as practicable after the commencement of the patient’s detention under the provision in question.
2
The managers of a hospital or F587registered establishment in which a patient is detained as aforesaid shall also take such steps as are practicable to ensure that the patient understands the effect, so far as relevant in his case, of sections 23, 25, 56 to 64, 66(1)(g), 118 and 120 above and section 134 below; and those steps shall be taken as soon as practicable after the commencement of the patient’s detention in the hospital or F589establishment .
3
The steps to be taken under subsections (1) and (2) above shall include giving the requisite information both orally and in writing.
4
The managers of a hospital or F587registered establishment in which a patient is detained as aforesaid shall, except where the patient otherwise requests, take such steps as are practicable to furnish the person (if any) appearing to them to be his nearest relative with a copy of any information given to him in writing under subsections (1) and (2) above; and those steps shall be taken when the information is given to the patient or within a reasonable time thereafter.
132AF650Duty of managers of hospitals to give information to community patients
1
The managers of the responsible hospital shall take such steps as are practicable to ensure that a community patient understands—
a
the effect of the provisions of this Act applying to community patients; and
b
what rights of applying to a F590tribunal are available to him in that capacity;
and those steps shall be taken as soon as practicable after the patient becomes a community patient.
2
The steps to be taken under subsection (1) above shall include giving the requisite information both orally and in writing.
3
The managers of the responsible hospital shall, except where the community patient otherwise requests, take such steps as are practicable to furnish the person (if any) appearing to them to be his nearest relative with a copy of any information given to him in writing under subsection (1) above; and those steps shall be taken when the information is given to the patient or within a reasonable time thereafter.
133 Duty of managers of hospitals to inform nearest relatives of discharge.
1
Where a patient liable to be detained under this Act in a hospital or F591registered establishment is to be discharged otherwise than by virtue of an order for discharge made by his nearest relative, the managers of the hospital or F591registered establishment shall, subject to subsection (2) below, take such steps as are practicable to inform the person (if any) appearing to them to be the nearest relative of the patient; and that information shall, if practicable, be given at least seven days before the date of discharge.
F5921A
The reference in subsection (1) above to a patient who is to be discharged includes a patient who is to be discharged from hospital under section 17A above.
1B
Subsection (1) above shall also apply in a case where a community patient is discharged under section 23 or 72 above (otherwise than by virtue of an order for discharge made by his nearest relative), but with the reference in that subsection to the managers of the hospital or registered establishment being read as a reference to the managers of the responsible hospital.
2
Subsection (1) above shall not apply if the patient or his nearest relative has requested that information about the patient’s discharge should not be given under this section.
134 Correspondence of patients.
1
A postal packet addressed to any person by a patient detained in a hospital under this Act and delivered by the patient for dispatch may be withheld from F593the postal operator concerned—
a
if that person has requested that communications addressed to him by the patient should be withheld; or
b
subject to subsection (3) below, if the hospital is F594one at which high security psychiatric services are provided and the managers of the hospital consider that the postal packet is likely—
i
to cause distress to the person to whom it is addressed or to any other person (not being a person on the staff of the hospital); or
ii
to cause danger to any person;
2
Subject to subsection (3) below, a postal packet addressed to a patient detained F596under this Act in a hospital at which high security psychiatric services are provided may be withheld from the patient if, in the opinion of the managers of the hospital, it is necessary to do so in the interests of the safety of the patient or for the protection of other persons.
3
Subsections (1)(b) and (2) above do not apply to any postal packet addressed by a patient to, or sent to a patient by or on behalf of—
a
F599aa
any of the Welsh Ministers, the Counsel General to the Welsh Assembly Government or a member of the National Assembly for Wales;
F600b
any judge or officer of the Court of Protection, any of the Court of Protection Visitors or any person asked by that Court for a report under section 49 of the Mental Capacity Act 2005 concerning the patient;
C70c
F604ca
the Care Quality Commission;
F1074cb
the Citizen Voice Body for Health and Social Care, Wales;
d
F605the First-tier Tribunal or the Mental Health Review Tribunal for Wales;
e
F1066NHS EnglandF1065, an integrated care board, a F942... F606Local Health BoardF943or Special Health AuthorityF944..., a local social services authority F1073... F607... F608, aF609local probation board established under section 4 of the Criminal Justice and Court Services Act 2000)F610or a provider of probation services;
F611ea
a provider of a patient advocacy and liaison service for the assistance of patients at the hospital and their families and carers;
eb
a provider of independent advocacy services for the patient;
f
the managers of the hospital in which the patient is detained;
g
any legally qualified person instructed by the patient to act as his legal adviser; or
h
the European Commission of Human Rights or the European Court of Human Rights.
F612 and for the purposes of paragraph (d) above the reference to the First-tier Tribunal is a reference to that tribunal so far as it is acting for the purposes of any proceedings under this Act or paragraph 5(2) of the Schedule to the Repatriation of Prisoners Act 1984F613.
F6143A
In subsection (3) above—
a
“patient advocacy and liaison service” means a service of a description prescribed by regulations made by the Secretary of State, and
“independent advocacy services” means services provided under arrangements under F615 section 248 of the National Health Service Act 2006 or section 187 of the National Health Service (Wales) Act 2006.
F616b
“independent advocacy services” means services provided under—
i
arrangements under section 130A F879or section 130E above;
ii
arrangements under F910section 223A of the Local Government and Public Involvement in Health Act 2007 or section 187 of the National Health Service (Wales) Act 2006; or
iii
arrangements of a description prescribed as mentioned in paragraph (a) above.
4
The managers of a hospital may inspect and open any postal packet for the purposes of determining—
a
whether it is one to which subsection (1) or (2) applies, and
b
in the case of a postal packet to which subsection (1) or (2) above applies, whether or not it should be withheld under that subsection;
and the power to withhold a postal packet under either of those subsections includes power to withhold anything contained in it.
5
Where a postal packet or anything contained in it is withheld under subsection (1) or (2) above the managers of the hospital shall record that fact in writing.
6
Where a postal packet or anything contained in it is withheld under subsection (1)(b) or (2) above the managers of the hospital shall within seven days give notice of that fact to the patient and, in the case of a packet withheld under subsection (2) above, to the person (if known) by whom the postal packet was sent; and any such notice shall be given in writing and shall contain a statement of the effect of F617section 134A(1) to (4).
7
The functions of the managers of a hospital under this section shall be discharged on their behalf by a person on the staff of the hospital appointed by them for that purpose and different persons may be appointed to discharge different functions.
8
The Secretary of State may make regulations with respect to the exercise of the powers conferred by this section.
9
134AF651Review of decisions to withhold correspondence
1
The regulatory authority must review any decision to withhold a postal packet (or anything contained in it) under subsection (1)(b) or (2) of section 134 if an application for a review of the decision is made—
a
in a case under subsection (1)(b) of that section, by the patient; or
b
in a case under subsection (2) of that section, either by the patient or by the person by whom the postal packet was sent.
2
An application under subsection (1) must be made within 6 months of receipt by the applicant of the notice referred to in section 134(6).
3
On an application under subsection (1), the regulatory authority may direct that the postal packet (or anything contained in it) is not to be withheld.
4
The managers of the hospital concerned must comply with any such direction.
5
The Secretary of State may by regulations make provision in connection with the making to and determination by the Care Quality Commission of applications under subsection (1), including provision for the production to the Commission of any postal packet which is the subject of such an application.
6
The Welsh Ministers may by regulations make provision in connection with the making to them of applications under subsection (1), including provision for the production to them of any postal packet which is the subject of such an application.
135 Warrant to search for and remove patients.
1
If it appears to a justice of the peace, on information on oath laid by an F621approved mental health professional, that there is reasonable cause to suspect that a person believed to be suffering from mental disorder—
a
has been, or is being, ill-treated, neglected or kept otherwise than under proper control, in any place within the jurisdiction of the justice, or
b
being unable to care for himself, is living alone in any such place,
the justice may issue a warrant authorising any constable F622. . . to enter, if need be by force, any premises specified in the warrant in which that person is believed to be, and, if thought fit, to remove him to a place of safety with a view to the making of an application in respect of him under Part II of this Act, or of other arrangements for his treatment or care.
F10041A
If the premises specified in the warrant are a place of safety, the constable executing the warrant may, instead of removing the person to another place of safety, keep the person at those premises for the purpose mentioned in subsection (1).
2
If it appears to a justice of the peace, on information on oath laid by any constable or other person who is authorised by or under this Act or under F623article 8 of the Mental Health (Care and Treatment)(Scotland) Act 2003 (Consequential Provisions) Order 2005 to take a patient to any place, or to take into custody or retake a patient who is liable under this Act or under the said F624article 8 to be so taken or retaken—
a
that there is reasonable cause to believe that the patient is to be found on premises within the jurisdiction of the justice; and
b
that admission to the premises has been refused or that a refusal of such admission is apprehended,
the justice may issue a warrant authorising any constable F622. . . to enter the premises, if need be by force, and remove the patient.
3
F10173ZA
In subsection (3), “the permitted period of detention” means—
a
the period of 24 hours beginning with—
i
in a case where the person is removed to a place of safety, the time when the person arrives at that place;
ii
in a case where the person is kept at the premises specified in the warrant, the time when the constable first entered the premises to execute the warrant; or
b
where an authorisation is given in relation to the person under section 136B, that period of 24 hours and such further period as is specified in the authorisation.
F6253A
A constable, an approved mental health professional or a person authorised by either of them for the purposes of this subsection may, before the end of F1018the permitted period of detention mentioned in subsection (3) above, take a person detained in a place of safety under that subsection to one or more other places of safety.
3B
A person taken to a place of safety under subsection (3A) above may be detained there for a period ending no later than the end of F1019the permitted period of detention mentioned in subsection (3) above.
4
In the execution of a warrant issued under subsection (1) above, F626a constable shall be accompanied by an F621approved mental health professional and by a registered medical practitioner, and in the execution of a warrant issued under subsection (2) above F626a constable may be accompanied—
a
by a registered medical practitioner;
b
by any person authorised by or under this Act or under F627article 8 of the Mental Health (Care and Treatment)(Scotland) Act 2003 (Consequential Provisions) Order 2005 to take or retake the patient.
5
It shall not be necessary in any information or warrant under subsection (1) above to name the patient concerned.
6
In this section “place of safety” means residential accommodation provided by a local social services authority under F983Part 1 of the Care Act 2014 orF987Part 4 of the Social Services and Well-being (Wales) Act 2014F628. . . , a hospital as defined by this Act, a police station, F629an independent hospital or care home for mentally disordered persons or any other suitable place F1011....
F10127
For the purpose of subsection (6)—
a
a house, flat or room where a person is living may not be regarded as a suitable place unless—
i
if the person believed to be suffering from a mental disorder is the sole occupier of the place, that person agrees to the use of the place as a place of safety;
ii
if the person believed to be suffering from a mental disorder is an occupier of the place but not the sole occupier, both that person and one of the other occupiers agree to the use of the place as a place of safety;
iii
if the person believed to be suffering from a mental disorder is not an occupier of the place, both that person and the occupier (or, if more than one, one of the occupiers) agree to the use of the place as a place of safety;
b
a place other than one mentioned in paragraph (a) may not be regarded as a suitable place unless a person who appears to the constable exercising powers under this section to be responsible for the management of the place agrees to its use as a place of safety.
F10138
This section is subject to section 136A which makes provision about the removal and taking of persons to a police station under this section.
136F1010Removal etc of mentally disordered persons without a warrant
F10071
If a person appears to a constable to be suffering from mental disorder and to be in immediate need of care or control, the constable may, if he thinks it necessary to do so in the interests of that person or for the protection of other persons—
a
remove the person to a place of safety within the meaning of section 135, or
b
if the person is already at a place of safety within the meaning of that section, keep the person at that place or remove the person to another place of safety.
1A
The power of a constable under subsection (1) may be exercised where the mentally disordered person is at any place, other than—
a
any house, flat or room where that person, or any other person, is living, or
b
any yard, garden, garage or outhouse that is used in connection with the house, flat or room, other than one that is also used in connection with one or more other houses, flats or rooms.
1B
For the purpose of exercising the power under subsection (1), a constable may enter any place where the power may be exercised, if need be by force.
F10081C
Before deciding to remove a person to, or to keep a person at, a place of safety under subsection (1), the constable must, if it is practicable to do so, consult—
a
a registered medical practitioner,
b
a registered nurse,
c
an approved mental health professional, or
d
a person of a description specified in regulations made by the Secretary of State.
2
A person F1009removed to, or kept at, a place of safety under this section may be detained there for a period not exceeding F1020the permitted period of detention for the purpose of enabling him to be examined by a registered medical practitioner and to be interviewed by an F630approved mental health professional and of making any necessary arrangements for his treatment or care.
F10212A
In subsection (2), “the permitted period of detention” means—
a
the period of 24 hours beginning with—
i
in a case where the person is removed to a place of safety, the time when the person arrives at that place;
ii
in a case where the person is kept at a place of safety, the time when the constable decides to keep the person at that place; or
b
where an authorisation is given in relation to the person under section 136B, that period of 24 hours and such further period as is specified in the authorisation.
F6313
A constable, an approved mental health professional or a person authorised by either of them for the purposes of this subsection may, before the end of F1022the permitted period of detention mentioned in subsection (2) above, take a person detained in a place of safety under that subsection to one or more other places of safety.
4
A person taken to a place of a safety under subsection (3) above may be detained there for a purpose mentioned in subsection (2) above for a period ending no later than the end of F1023the permitted period of detention mentioned in that subsection.
F10145
This section is subject to section 136A which makes provision about the removal and taking of persons to a police station, and the keeping of persons at a police station, under this section.
136AF1015Use of police stations as places of safety
1
A child may not, in the exercise of a power to which this section applies, be removed to, kept at or taken to a place of safety that is a police station.
2
The Secretary of State may by regulations—
a
provide that an adult may be removed to, kept at or taken to a place of safety that is a police station, in the exercise of a power to which this section applies, only in circumstances specified in the regulations;
b
make provision about how adults removed to, kept at or taken to a police station, in the exercise of a power to which this section applies, are to be treated while at the police station, including provision for review of their detention.
3
Regulations under this section—
a
may make different provision for different cases;
b
may make provision that applies subject to specified exceptions;
c
may include incidental, supplementary or consequential provision or transitional, transitory or saving provision.
4
The powers to which this section applies are—
a
the power to remove a person to a place of safety under a warrant issued under section 135(1);
b
the power to take a person to a place of safety under section 135(3A);
c
the power to remove a person to, or to keep a person at, a place of safety under section 136(1);
d
the power to take a person to a place of safety under section 136(3).
5
In this section—
a
“child” means a person aged under 18;
b
“adult” means a person aged 18 or over.
136BF1024Extension of detention
1
The registered medical practitioner who is responsible for the examination of a person detained under section 135 or 136 may, at any time before the expiry of the period of 24 hours mentioned in section 135(3ZA) or (as the case may be) 136(2A), authorise the detention of the person for a further period not exceeding 12 hours (beginning immediately at the end of the period of 24 hours).
2
An authorisation under subsection (1) may be given only if the registered medical practitioner considers that the extension is necessary because the condition of the person detained is such that it would not be practicable for the assessment of the person for the purpose of section 135 or (as the case may be) section 136 to be carried out before the end of the period of 24 hours (or, if the assessment began within that period, for it to be completed before the end).
3
If the person is detained at a police station, and the assessment would be carried out or completed at the station, the registered medical practitioner may give an authorisation under subsection (1) only if an officer of the rank of superintendent or above approves it.
136CF1026Protective searches
1
Where a warrant is issued under section 135(1) or (2), a constable may search the person to whom the warrant relates if the constable has reasonable grounds for believing that the person—
a
may present a danger to himself or herself or to others, and
b
is concealing on his or her person an item that could be used to cause physical injury to himself or herself or to others.
2
The power to search conferred by subsection (1) may be exercised—
a
in a case where a warrant is issued under section 135(1), at any time during the period beginning with the time when a constable enters the premises specified in the warrant and ending when the person ceases to be detained under section 135;
b
in a case where a warrant is issued under section 135(2), at any time while the person is being removed under the authority of the warrant.
3
Where a person is detained under section 136(2) or (4), a constable may search the person, at any time while the person is so detained, if the constable has reasonable grounds for believing that the person—
a
may present a danger to himself or herself or to others, and
b
is concealing on his or her person an item that could be used to cause physical injury to himself or herself or to others.
4
The power to search conferred by subsection (1) or (3) is only a power to search to the extent that is reasonably required for the purpose of discovering the item that the constable believes the person to be concealing.
5
The power to search conferred by subsection (1) or (3)—
a
does not authorise a constable to require a person to remove any of his or her clothing other than an outer coat, jacket or gloves, but
b
does authorise a search of a person’s mouth.
6
A constable searching a person in the exercise of the power to search conferred by subsection (1) or (3) may seize and retain anything found, if he or she has reasonable grounds for believing that the person searched might use it to cause physical injury to himself or herself or to others.
7
The power to search a person conferred by subsection (1) or (3) does not affect any other power to search the person.
C71137 Provisions as to custody, conveyance and detention.
1
Any person required or authorised by or by virtue of this Act to be conveyed to any place or to be kept in custody or detained in a place of safety or at any place to which he is taken under section 42(6) above shall, while being so conveyed, detained or kept, as the case may be, be deemed to be in legal custody.
2
A constable or any other person required or authorised by or by virtue of this Act to take any person into custody, or to convey or detain any person shall, for the purposes of taking him into custody or conveying or detaining him, have all the powers, authorities, protection and privileges which a constable has within the area for which he acts as constable.
3
In this section “convey” includes any other expression denoting removal from one place to another.
C72138 Retaking of patients escaping from custody.
1
If any person who is in legal custody by virtue of section 137 above escapes, he may, subject to the provisions of this section, be retaken—
a
in any case, by the person who had his custody immediately before the escape, or by any constable or F632approved mental health professional;
b
if at the time of the escape he was liable to be detained in a hospital within the meaning of Part II of this Act, or subject to guardianship under this Act, F633or a community patient who was recalled to hospital under section 17E above, by any other person who could take him into custody under section 18 above if he had absented himself without leave.
2
A person to whom paragraph (b) of subsection (1) above applies shall not be retaken under this section after the expiration of the period within which he could be retaken under section 18 above if he had absented himself without leave on the day of his escape unless he is subject to a restriction order under Part III of this Act or an order or direction having the same effect as such an order; and subsection (4) of the said section 18 shall apply with the necessary modifications accordingly.
3
A person who escapes while being taken to or detained in a place of safety under section 135 or 136 above shall not be retaken under this section F1025—
a
in a case where the person escapes while being removed to a place of safety in the execution of a warrant under section 135(1) or under section 136(1), after the end of the period of 24 hours beginning with the escape;
b
in a case where the person escapes after the beginning of the period that is the permitted period of detention in relation to the person under section 135(3ZA) or 136(2A), after the end of that period (taking into account any authorisation under section 136B(1) that was given before the person escaped).
4
This section, so far as it relates to the escape of a person liable to be detained in a hospital within the meaning of Part II of this Act, shall apply in relation to a person who escapes—
a
while being taken to or from such a hospital in pursuance of regulations under section 19 above, or of any order, direction or authorisation under Part III or VI of this Act (other than under section 35, 36, 38, 53, 83 or 85) F901... ; or
b
while being taken to or detained in a place of safety in pursuance of an order under Part III of this Act (other than under section 35, 36 or 38 above) pending his admission to such a hospital,
as if he were liable to be detained in that hospital and, if he had not previously been received in that hospital, as if he had been so received.
5
In computing for the purposes of the power to give directions under section 37(4) above and for the purposes of sections 37(5) and 40(1) above the period of 28 days mentioned in those sections, no account shall be taken of any time during which the patient is at large and liable to be retaken by virtue of this section.
6
Section 21 above shall, with any necessary modifications, apply in relation to a patient who is at large and liable to be retaken by virtue of this section as it applies in relation to a patient who is absent without leave and references in that section to section 18 above shall be construed accordingly.
C73C74C75E3139 Protection for acts done in pursuance of this Act.
1
No person shall be liable, whether on the ground of want of jurisdiction or on any other ground, to any civil or criminal proceedings to which he would have been liable apart from this section in respect of any act purporting to be done in pursuance of this Act or any regulations or rules made under this Act, F634. . . , unless the act was done in bad faith or without reasonable care.
2
No civil proceedings shall be brought against any person in any court in respect of any such act without the leave of the High Court; and no criminal proceedings shall be brought against any person in any court in respect of any such act except by or with the consent of the Director of Public Prosecutions.
3
This section does not apply to proceedings for an offence under this Act, being proceedings which, under any other provision of this Act, can be instituted only by or with the consent of the Director of Public Prosecutions.
4
This section does not apply to proceedings against the Secretary of State or against F1068NHS EnglandF1067, an integrated care board, a F917... F635Local Health BoardF918or Special Health AuthorityF919... F636or against a National Health Service trust established under F637the National Health Service Act 2006 or the National Health Service (Wales) Act 2006F638or NHS foundation trustF852or against the Department of Justice in Northern IrelandF916or against a person who has functions under this Act by virtue of section 12ZA in so far as the proceedings relate to the exercise of those functions.
5
In relation to Northern Ireland the reference in this section to the Director of Public Prosecutions shall be construed as a reference to the Director of Public Prosecutions for Northern Ireland.
C76C77E4E5139 Protection for acts done in pursuance of this Act.
1
No person shall be liable, whether on the ground of want of jurisdiction or on any other ground, to any civil or criminal proceedings to which he would have been liable apart from this section in respect of any act purporting to be done in pursuance of this Act or any regulations or rules made under this Act, F634. . . unless the act was done in bad faith or without reasonable care.
2
No civil proceedings shall be brought against any person in any court in respect of any such act without the leave of the High Court; and no criminal proceedings shall be brought against any person in any court in respect of any such act except by or with the consent of the Director of Public Prosecutions.
3
This section does not apply to proceedings for an offence under this Act, being proceedings which, under any other provision of this Act, can be instituted only by or with the consent of the Director of Public Prosecutions.
4
This section does not apply to proceedings against the Secretary of State or against F1068NHS EnglandF1067, an integrated care board, a F917... F635 Local Health BoardF918or Special Health AuthorityF639or against a National Health Service trust established under F640the National Health Service Act 2006 or the National Health Service (Wales) Act 2006F641or NHS foundation trustF852or against the Department of Justice in Northern IrelandF916or against a person who has functions under this Act by virtue of section 12ZA in so far as the proceedings relate to the exercise of those functions.
5
In relation to Northern Ireland the reference in this section to the Director of Public Prosecutions shall be construed as a reference to the Director of Public Prosecutions for Northern Ireland.
C78140F642Notification of hospitals having arrangements for special cases.
It shall be the duty of F945every F1069integrated care board and ofF946... every F643Local Health Board to give notice to every local social services authority for an area wholly or partly comprised within the F644area of the F947F1069integrated care board orF948... F643Local Health Board specifying the hospital or hospitals administered by F645or otherwise available F646to the F949F1069integrated care board orF950... F643Local Health Board in which arrangements are from time to time in force
F647a
for the reception of patients in cases of special urgency;
b
for the provision of accommodation or facilities designed so as to be specially suitable for patients who have not attained the age of 18 years.
F959141 Members of Parliament suffering from mental illness.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F648C79142 Pay, pensions, etc., of mentally disordered persons.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
142AF652Regulations as to approvals in relation to England and Wales
The Secretary of State jointly with the Welsh Ministers may by regulations make provision as to the circumstances in which—
a
a practitioner approved for the purposes of section 12 above, or
b
a person approved to act as an approved clinician for the purposes of this Act,
approved in relation to England is to be treated, by virtue of his approval, as approved in relation to Wales too, and vice versa.
142BF653 Delegation of powers of managers of NHS foundation trusts
1
The constitution of an NHS foundation trust may not provide for a function under this Act to be delegated otherwise than in accordance with provision made by or under this Act.
2
Paragraph 15(3) of Schedule 7 to the National Health Service Act 2006 (which provides that the powers of a public benefit corporation may be delegated to a committee of directors or to an executive director) shall have effect subject to this section.
Supplemental
143 General provisions as to regulations, orders and rules.
1
Any power of the Secretary of State or the Lord Chancellor to make regulations, orders or rules under this Act shall be exercisable by statutory instrument.
2
Any Order in Council under this Act F654or any order made F655by the Secretary of State under section 54A F656or 68A(7)F657or 65aboveand any statutory instrument containing regulations F658made by the Secretary of State, or rules made, under this Act shall be subject to annulment in pursuance of a resolution of either House of Parliament.
3
F6623A
Subsections (3B) to F871(3DB) apply where power to make regulations or an order under this Act is conferred on the Welsh Ministers (other than by or by virtue of the Government of Wales Act 2006).
3B
Any power of the Welsh Ministers to make regulations or an order shall be exercisable by statutory instrument.
3C
Any statutory instrument containing regulations, or an order under section 68A(7) above, made by the Welsh Ministers shall be subject to annulment in pursuance of a resolution of the National Assembly for Wales.
3D
No order shall be made under section 68A(1) above by the Welsh Ministers unless a draft of it has been approved by a resolution of the National Assembly for Wales.
F8723DA
Subsection (3C) does not apply to regulations to which subsection (3DB) applies.
3DB
A statutory instrument which contains (alone or with other provisions) the first regulations to be made under any of the following provisions–
a
section 130E(2),
b
section 130E(4)(b),
c
section 130E(5)(b),
d
section 130F(2)(d),
e
section 130G(2)(c), or
f
section 130H(1)(b)(ii),
must not be made unless a draft of the instrument containing the regulations has been laid before, and approved by resolution of, the National Assembly for Wales.
3E
In this section—
a
references to the Secretary of State include the Secretary of State and the Welsh Ministers acting jointly; and
b
references to the Welsh Ministers include the Welsh Ministers and the Secretary of State acting jointly.
F6634
This section does not apply to rules which are, by virtue of section 108 of this Act, to be made in accordance with Part 1 of Schedule 1 to the Constitutional Reform Act 2005.
144 Power to amend local Acts.
Her Majesty may by Order in Council repeal or amend any local enactment so far as appears to Her Majesty to be necessary in consequence of this Act.
145 Interpretation.
1
In this Act, unless the context otherwise requires—
“absent without leave” has the meaning given to it by section 18 above and related expressions F664(including expressions relating to a patient's liability to be returned to a hospital or other place) shall be construed accordingly;
“application for admission for assessment” has the meaning given in section 2 above;
“application for admission for treatment” has the meaning given in section 3 above;
F665“the appropriate tribunal” has the meaning given by section 66(4) above;
F666“approved clinician” means a person approved by the Secretary of State F951or another person by virtue of section 12ZA or 12ZB above (in relation to England) or by the Welsh Ministers (in relation to Wales) to act as an approved clinician for the purposes of this Act;
F667“approved mental health professional” has the meaning given in section 114 above;
F1031“care home”—
- a
has the same meaning as in the Care Standards Act 2000 in respect of a care home in England; and
- b
means a place in Wales at which a care home service within the meaning of Part 1 of the Regulation and Inspection of Social Care (Wales) Act 2016 is provided wholly or mainly to persons aged 18 or over;
- a
F668“community patient” has the meaning given in section 17A above;
F669“community treatment order” and “the community treatment order” have the meanings given in section 17A above;
F670“the community treatment period” has the meaning given in section 20A above;
F671. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F672“high security psychiatric services” has the same meaning as in the F673section 4 of the National Health Service Act 2006 or section 4 of the National Health Service (Wales) Act 2006,
“hospital” means—
- (a)
any health service hospital within the meaning of the F674National Health Service Act 2006 or the National Health Service (Wales) Act 2006; and
- (b)
any accommodation provided by a local authority and used as a hospital by or on behalf of the Secretary of State under that Act;F675; and
- (c)
any hospital as defined by section 206 of the National Health Service (Wales) Act 2006 which is vested in a Local Health Board;
- (a)
“hospital within the meaning of Part II of this Act” has the meaning given in section 34 above;
F676“hospital direction” has the meaning given in section 45A(3)(a) above;
“hospital order” and “guardianship order” have the meanings respectively given in section 37 above;
F860“independent hospital”—
- (a)
in relation to England, means a hospital as defined by section 275 of the National Health Service Act 2006 that is not a health service hospital as defined by that section, and
- (b)
in relation to Wales, has the same meaning as in the Care Standards Act 2000;
- (a)
“interim hospital order” has the meaning given in section 38 above;
F676“limitation direction” has the meaning given in section 45A(3)(b) above;
F677“Local Health Board” means a Local Health Board established under section 11 of the National Health Services (Wales) Act 2006;
F984“local social services authority” means—
- (a)
an authority in England which is a local authority for the purposes of Part 1 of the Care Act 2014, or
- (b)
an authority in Wales which is a local authority for the purposes of the Social Services and Well-being (Wales) Act 2014.
- (a)
“the managers” means—
- (a)
in relation to a hospital vested in the Secretary of State for the purposes of his functions under the F678the National Health Service Act 2006, or in the Welsh Ministers for the purposes of their functions under the National Health Service (Wales) Act 2006,, and in relation to any accommodation provided by a local authority and used as a hospital by or on behalf of the Secretary of State under F679the National Health Service Act 2006, or of the Welsh Ministers under the National Health Service (Wales) Act 2006,F952the Secretary of State where the Secretary is responsible for the administration of the hospital orthe F953... F954... F680F681Local Health Board or Special Health Authority responsible for the administration of the hospital;
- (b)
F682. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
- (bb)
F683in relation to a hospital vested in F955... a National Health Service trust,F684... the trust
- (bc)
F685 in relation to a hospital vested in an NHS foundation trust, the trust;
- (bd)
F686in relation to a hospital vested in a Local Health Board, the Board;
- (c)
F861in relation to a registered establishment—
- (i)
if the establishment is in England, the person or persons registered as a service provider under Chapter 2 of Part 1 of the Health and Social Care Act 2008 in respect of the regulated activity (within the meaning of that Part) relating to the assessment or medical treatment of mental disorder that is carried out in the establishment, and
- (ii)
if the establishment is in Wales, the person or persons registered in respect of the establishment under Part 2 of the Care Standards Act 2000;
- (i)
- (a)
and in this definition “hospital” means a hospital within the meaning of Part II of this Act;
“medical treatment” includes nursing, F687psychological intervention and specialist mental health habilitation, rehabilitation and care (but see also subsection (4) below);
F688“mental disorder” has the meaning given in section 1 above (subject to F960section 86(4));
F689. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
“nearest relative”, in relation to a patient, has the meaning given in Part II of this Act;
“patient”F690... means a person suffering or appearing to be suffering from mental disorder;
F956. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F691“registered establishment” has the meaning given in section 34 above;
F692. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F693“the regulatory authority” means—
- a
in relation to England, the Care Quality Commission;
- b
in relation to Wales, the Welsh Ministers;
- a
F694“the responsible hospital” has the meaning given in section 17A above;
“restriction direction” has the meaning given to it by section 49 above;
“restriction order” has the meaning given to it by section 41 above;
F695“Special Health Authority” means a Special Health Authority established under F696section 28 of the National Health Service Act 2006, or section 22 of the National Health Service (Wales) Act 2006;
F697. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F957. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F698. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F699. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
“transfer direction” has the meaning given to it by section 47 above.
F7001AA
Where high security psychiatric services and other services are provided at a hospital, the part of the hospital at which high security psychiatric services are provided and the other part shall be treated as separate hospitals for the purposes of this Act.
F7011AB
References in this Act to appropriate medical treatment shall be construed in accordance with section 3(4) above.
F7021AC
References in this Act to an approved mental health professional shall be construed as references to an approved mental health professional acting on behalf of a local social services authority, unless the context otherwise requires.
F7031A
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F7042
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
3
In relation to a person who is liable to be detained or subject to guardianship F705or a community patient by virtue of an order or direction under Part III of this Act (other than under section 35, 36 or 38), any reference in this Act to any enactment contained in Part II of this Act or in section 66 or 67 above shall be construed as a reference to that enactment as it applies to that person by virtue of Part III of this Act.
F7064
Any reference in this Act to medical treatment, in relation to mental disorder, shall be construed as a reference to medical treatment the purpose of which is to alleviate, or prevent a worsening of, the disorder or one or more of its symptoms or manifestations.
146 Application to Scotland.
Sections 42(6), 80, F707... F708... 116, F958... F709... 137, 139(1), F961... 142, 143 (so far as applicable to any Order in Council extending to Scotland) and 144 above shall extend to Scotland together with any amendment or repeal by this Act of or any provision of Schedule 5 to this Act relating to any enactment which so extends; but, except as aforesaid and except so far as it relates to the interpretation or commencement of the said provisions, this Act shall not extend to Scotland.
147 Application to Northern Ireland.
Sections 81, 82, 86, 87, 88 (and so far as applied by that section sections 18, 22 and 138), F710... section 128 (except so far as it relates to patients subject to guardianship), 137, 139, F962... 142, 143 (so far as applicable to any Order in Council extending to Northern Ireland) and 144 above shall extend to Northern Ireland together with any amendment or repeal by this Act of or any provision of Schedule 5 to this Act relating to any enactment which so extends; but except as aforesaid and except so far as it relates to the interpretation or commencement of the said provisions, this Act shall not extend to Northern Ireland.
148 Consequential and transitional provisions and repeals.
1
Schedule 4 (consequential amendments) and Schedule 5 (transitional and saving provisions) to this Act shall have effect but without prejudice to the operation of sections 15 to 17 of the M19Interpretation Act 1978 (which relate to the effect of repeals).
2
Where any amendment in Schedule 4 to this Act affects an enactment amended by the M20Mental Health (Amendment) Act 1982 the amendment in Schedule 4 shall come into force immediately after the provision of the Act of 1982 amending that enactment.
3
The enactments specified in Schedule 6 to this Act are hereby repealed to the extent mentioned in the third column of that Schedule.
149 Short title, commencement and application to Scilly Isles.
1
This Act may be cited as the Mental Health Act 1983.
2
Subject to subsection (3) below and Schedule 5 to this Act, this Act shall come into force on 30th September 1983.
3
F711. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
4
Section 130(4) of the M21National Health Service Act 1977 (which provides for the extension of that Act to the Isles of Scilly) shall have effect as if the references to that Act included references to this Act.
SCHEDULES
SCHEDULE 1 Application of Certain Provisions to Patients Subject to Hospital and Guardianship Orders
Part I Patients Not Subject to Special Restrictions
C801
C812
F7272A
In section 17D(2)(a) for the reference to section 6(2) above there shall be substituted a reference to section 40(1)(b) below.
2B
In section 17G—
a
in subsection (2) for the reference to section 6(2) above there shall be substituted a reference to section 40(1)(b) below;
b
in subsection (4) for paragraphs (a) and (b) there shall be substituted the words the order or direction under Part 3 of this Act in respect of him were an order or direction for his admission or removal to that other hospital; and
c
in subsection (5) for the words from “the patient” to the end there shall be substituted the words the date of the relevant order or direction under Part 3 of this Act were the date on which the community treatment order is revoked.
3
F722. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
4
In section 18 subsection (5) shall be omitted.
5
In section 19(2) for the words from “as follows” to the end of the subsection there shall be substituted the words “as if the order or direction under Part III of this Act by virtue of which he was liable to be detained or subject to guardianship before being transferred were an order or direction for his admission or removal to the hospital to which he is transferred, or placing him under the guardianship of the authority or person into whose guardianship he is transferred, as the case may be”.
F7285A
In section 19A(2), paragraph (b) shall be omitted.
6
In subsection 20—
a
in subsection (1) for the words from “day on which he was” to “as the case may be” there shall be substituted the words “date of the relevant order or direction under Part III of this Act”; F723. . .
b
F723. . .
F7296A
In section 20B(1), for the reference to the application for admission for treatment there shall be substituted a reference to the order or direction under Part 3 of this Act by virtue of which the patient is liable to be detained.
7
In section 22 for references to an application for admission or a guardianship application there shall be substituted references to the order or direction under Part III of this Act by virtue of which the patient is liable to be detained or subject to guardianship.
8
In section 23(2)—
a
in paragraph (a) the words “for assessment or” shall be omitted; and
b
in paragraphs (a) F724to (c) the references to the nearest relative shall be omitted.
8A
F725. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
9
In section 66—
a
in subsection (1), paragraphs (a), (b), (c), (g) and (h), the words in parenthesis in paragraph (i) and paragraph (ii) shall be omitted; and
b
in subsection (2), paragraphs (a), (b), (c) and (g) F726, and in paragraph (d) “, (g)”, shall be omitted..
F73010
In section 68—
a
in subsection (1) paragraph (a) shall be omitted; and
b
subsections (2) to (5) shall apply if the patient falls within paragraph (e) of subsection (1), but not otherwise.
Part II Patients Subject to Special Restrictions
1
Sections F903... 32 and 76 shall apply in relation to the patient without modification.
2
Sections F73117, 18, 19 , 22, 23 and 34 shall apply in relation to the patient with the modifications specified in paragraphs 3 to 8 below.
3
In section 17—
a
in subsection (1) after the word “may” there shall be inserted the words “with the consent of the Secretary of State”;
F732aa
subsections (2A) and (2B) shall be omitted;
b
in subsection (4) after the words F733“the responsible clinician” and after the words “that clinician” there shall be inserted the words “or the Secretary of State”; and
c
in subsection (5) after the word “recalled” there shall be inserted the words F734 “by the responsible clinician” , and for the words from “he has ceased” to the end of the subsection there shall be substituted the words “the expiration of the period of F735twelve months beginning with the first day of his absence on leave”.
4
In section 18 there shall be omitted—
a
in subsection (1) the words “subject to the provisions of this section”; and
b
subsections (3), (4) and (5).
5
In section 19—
a
in subsection (1) after the word “may” in paragraph (a) there shall be inserted the words “with the consent of the Secretary of State”, and the words from “or into” to the end of the subsection shall be omitted;F736. . .
b
in subsection (2) for the words from “as follows” to the end of the subsection there shall be substituted the words “as if the order or direction under Part III of this Act by virtue of which he was liable to be detained before being transferred were an order or direction for his admission or removal to the hospital to which he is transferred”; F737and
c
in subsection (3) after the words “may at any time” there shall be inserted the words “, with the consent of the Secretary of State,”.
F7386
In section 22, subsections (1) and (5) shall not apply.
7
In section 23—
a
in subsection (1) references to guardianship shall be omitted and after the word “made” there shall be inserted the words “with the consent of the Secretary of State and” and
b
in subsection (2)—
i
in paragraph (a) the words “for assessment or” and “or by the nearest relative of the patient” shall be omitted; and
ii
paragraph (b) shall be omitted.
8
In section 34, in subsection (1) the definition of “the nominated medical attendant” and subsection (3) shall be omitted.
SCHEDULE 2 Mental Health Review F747Tribunal for Wales
Words in Sch. 2 title substituted (3.11.2008) by The Transfer of Tribunal Functions Order 2008 (S.I. 2008/2833), arts. 1(1), 6, Sch. 3 para. 67(b)
1
F739The Mental Health Review Tribunal for Wales shall consist of—
a
a number of persons (referred to in this Schedule as “the legal members”) appointed by the Lord Chancellor and having such legal experience as the Lord Chancellor considers suitable;
F7481A
As part of the selection process for an appointment under paragraph 1(b) or (c) the Judicial Appointments Commission shall consult the Secretary of State.
2
F741Subject to paragraph 2A below,the members of F742the Mental Health Review Tribunal for Wales shall hold and vacate office under the terms of the instrument under which they are appointed, but may resign office by notice in writing to the Lord Chancellor; and any such member who ceases to hold office shall be eligible for re-appointment.
F7432A
F10003
1
The Lord Chancellor shall appoint one of the legal members of the Mental Health Review Tribunal for England to be the President of that tribunal.
2
The Lord Chancellor shall appoint one of the legal members of the Mental Health Review Tribunal for Wales to be the President of that tribunal.
4
Subject to rules made by the Lord Chancellor under section 78(2)(c) above, the members who are to constitute F745the Mental Health Review Tribunal for Wales for the purposes of any proceedings or class or group of proceedings under this Act shall be appointed by the F1001President of the tribunal or F746..., by another member of the tribunal appointed for the purpose by the F1001President; and of the members so appointed—
a
one or more shall be appointed from the legal members;
b
one or more shall be appointed from the medical members; and
c
one or more shall be appointed from the members who are neither legal nor medical members.
F7495
1
A member of the First-tier Tribunal who is eligible to decide any matter in a case under this Act may, at the request of the President of the Mental Health Review Tribunal for Wales and with the approval of the Senior President of Tribunals, act as a member of the Mental Health Review Tribunal for Wales.
F9941A
A member of a tribunal listed in section 59 of the Wales Act 2017 (the Welsh tribunals) who is not a member of the Tribunal but who is eligible to decide any matter in a case under this Act may, at the request of the President of the Mental Health Review Tribunal for Wales and with the approval of the President of Welsh Tribunals, act as a member of the Mental Health Review Tribunal for Wales.
2
Every person while acting under this paragraph may perform any of the functions of a member of the Mental Health Review Tribunal for Wales.
3
Until section 38(7) of the Mental Health Act 2007 comes into force, the reference in sub-paragraph (1) F995or (1A) to the President of the Mental Health Review Tribunal for Wales is to be read as a reference to the chairman of the tribunal.
6
Subject to any rules made by the Lord Chancellor under section 78(4)(a) above, where the F1002President of the tribunal is included among the persons appointed under paragraph 4 above, he shall be F1003chairman of the tribunal; and in any other case the F1003chairman of the tribunal shall be such one of the members so appointed (being one of the legal members) as the F1002President may nominate.
F750SCHEDULE 3
SCHEDULE 4 Consequential Amendments
1
F751. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2
F752. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
3
In section 10(3) of the M22Colonial Prisoners Removal Act 1884 for the words “section seventy-one of the Mental Health Act 1959”, “section seventy-two” and “section seventy-four” there shall be substituted respectively the words “
section 46 of the Mental Health Act 1983
”
, “
section 47
”
and “
section 49
”
.
4
F753. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
5
F754. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
6
F755. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
7
F756. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
8
In sections 4(1) and 11(3)(b) of the M23Polish Resettlement Act 1947 for the words “the Mental Health Act 1959” there shall be substituted the words “
the Mental Health Act 1983
”
.
9
F757. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
10
In section 116(7) of the M24Army Act 1955 for the words “section 71 of the Mental Health Act 1959” and “within the meaning of the Mental Health Act 1959” there shall be substituted respectively the words “
section 46 of the Mental Health Act 1983
”
and “
within the meaning of the Mental Health Act 1983
”
.
11
In section 116(7) of the M25Air Force Act 1955 for the words “section 71 of the Mental Health Act 1959” and “within the meaning of the Mental Health Act 1959” there shall be substituted respectively the words “
section 46 of the Mental Health Act 1983
”
and “
within the meaning of the Mental Health Act 1983
”
.
F75812
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
13
In section 71(6) of the M26Naval Discipline Act 1957 for the words “section 71 of the Mental Health Act 1959” and “within the meaning of the Mental Health Act 1959” there shall be substituted respectively the words “
section 46 of the Mental Health Act 1983
”
and “
within the meaning of the Mental Health Act 1983
”
.
14
F759. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
15
F760. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
16
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F761
17
In section 5 of the M27Administration of Justice Act 1960—
a
in subsection (4) for the words “Part V of the Mental Health Act 1959” and the words “the said Part V” there shall be substituted respectively the words “
Part III of the Mental Health Act 1983 (other than under section 35, 36 or 38)
”
and “
the said Part III
”
; and
b
in subsection (4A) for the words “section 31 of the Mental Health (Amendment) Act 1982”, “Part V of the said Act of 1959” and “the said section 31” there shall be substituted respectively “
section 38 of the Mental Health Act 1983
”
, “
Part III of the said Act of 1983
”
and “
the said section 38
”
.
18
In the M28Criminal Procedure (Insanity) Act 1964—
a
in section 8(2) for the words “the Mental Health Act 1959”, “Part V” and “sections 139 to 141” there shall be substituted respectively the words “
the Mental Health Act 1983
”
, “
Part III
”
and “
sections 137 to 139
”
;
F762b
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
19
F763. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
20
F764. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
21
In the M29Criminal Justice Act 1967—
a
in section 72(1)(b) for the words “section 40 or 140 of the Mental Health Act 1959 or section 31(8) of the Mental Health (Amendment) Act 1982” there shall be substituted the words “
section 18, 38(7) or 138 of the Mental Health Act 1983
”
;
b
in section 72(3) for the words “Section 139 of the Mental Health Act 1959” and “the said Act of 1959” there shall be substituted respectively the words “
Section 137 of the Mental Health Act 1983
”
and “
the said Act of 1983
”
;
c
in section 72(4) for the words “Part V of the Mental Health Act 1959”, “section 31 of the Mental Health (Amendment) Act 1982” and “Part V of the said Act of 1959” there shall be substituted respectively the words “
Part III of the Mental Health Act 1983
”
, “
section 38 of the said Act of 1983
”
and “
Part III of the said Act of 1983
”
.
22
F765. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
23
In the M30Criminal Appeal Act 1968—
F766a
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
b
in section 8(3) after the words “Part V of the Mental Health Act 1959” there shall be inserted the words “
or under Part III of the Mental Health Act 1983 (other than under section 35, 36 or 38 of that Act)
”
;
c
in section 8(3A)—
i
for the words “section 30 of the Mental Health (Amendment) Act 1982” there shall be substituted the words “
section 36 of the Mental Health Act 1983
”
;
ii
for the words “section 31 of that Act” there shall be substituted the words “
section 38 of that Act
”
; and
iii
for the words “Part V of the Mental Health Act 1959” there shall be substituted the words “
Part III of that Act
”
;
d
in section 11—
i
in subsection (5) for the words “the Mental Health (Amendment) Act 1982” there shall be substituted the words “
the Mental Health Act 1983
”
; and
ii
F767. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F766e
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F766f
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
g
in section 37(4) for the words “Part V of the Mental Health Act 1959” and “the Mental Health Act 1959” there shall be substituted respectively the words “
Part III of the Mental Health Act 1983 (otherwise than under section 35, 36 or 38 of that Act)
”
and “
the Mental Health Act 1983
”
;
h
in section 37(4A) for the words “section 30 of the Mental Health (Amendment) Act 1982”, “section 31” and “Part V of the said Act of 1959” wherever they occur there shall be substituted respectively the words “
section 36 of the Mental Health Act 1983
”
, “
section 38
”
and “
Part III of the said Act of 1983
”
;
i
in section 50(1), for the words from “Part V” to “1982” there shall be substituted the words “
Part III of the Mental Health Act 1983, with or without a restriction order, and an interim hospital order under that Part
”
;
j
in section 51(2) for the words “section 147(1) of the Mental Health Act 1959” there shall be substituted the words “
section 145(1) of the Mental Health Act 1983
”
;
F766k
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F766l
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F766m
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
n
in Schedule 3—
i
in the heading to the Schedule for the words “PART V OF MENTAL HEALTH ACT 1959” there shall be substituted the words “
PART III OF MENTAL HEALTH ACT 1983
”
; and
ii
for paragraph 2 there shall be substituted—
Order for continued detention under Act of 1983
2
Where an order is made by the Court of Appeal under section 16(3) of this Act for a person’s continued detention under the Mental Health Act 1983, Part III of that Act (patients concerned in criminal proceedings or under sentence) shall apply to him as if he had been ordered under the said section 16(3) to be kept in custody pending trial and were detained in pursuance of a transfer direction together with a restriction direction.
24
In the M31Courts-Martial (Appeals) Act 1968—
a
in sections 20(4) and 43(4) for the words “Part V of the Mental Health Act 1959” there shall be substituted the words “
Part III of the Mental Health Act 1983
”
;
b
in section 23, in subsection (1) for the words “section 71 of the Mental Health Act 1959” there shall be substituted the words “
section 46 of the Mental Health Act 1983
”
and in subsection (2) for the words “the Mental Health Act 1959” there shall be substituted the words “
the Mental Health Act 1983
”
;
c
in section 25(4) for the words “the Mental Health Act 1959” there shall be substituted the words “
the Mental Health Act 1983
”
.
25
F768. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
26
a
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F769b
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F769c
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
d
in section 12(4) for the words “section 28 of the Mental Health Act 1959”, “Part V” and “the said Act of 1959” there shall be substituted respectively the words “
section 12 of the Mental Health Act 1983
”
, “
Part III
”
and “
the said Act of 1983
”
;
e
in paragraph 7(7) of Schedule 4 for the words from the beginning to “1959” there shall be substituted the words “
A restriction direction which was given under section 49 of the Mental Health Act 1983
”
.
27
In Schedule 1 to the M33Local Authorities Social Services Act 1970—
a
in the entry relating to the Mental Health Act 1959, in the first column for the words “Parts II to VI and IX” there shall be substituted the words “
sections 8 and 9
”
and for the entry in the second column there shall be substituted the words “
Welfare and accommodation of mentally disordered persons.
”
;
b
there shall be inserted at the end—
Mental Health Act 1983 (c. 20)
Parts II, III and VI
Welfare of the mentally disordered; guardianship of persons suffering from mental disorder including such persons removed to England and Wales from Scotland or Northern Ireland; exercise of functions of nearest relative of person so suffering.
Sections 66, 67, 69(1)
Exercise of functions of nearest relative in relation to applications and references to Mental Health Review Tribunals.
Section 114
Appointment of approved social workers.
Section 115
Entry and inspection.
Section 116
Welfare of certain hospital patients.
Section 117
After-care of detained patients.
Section 130
Prosecutions.
c
the entry relating to the M34Mental Health (Amendment) Act 1982 shall cease to have effect.
28
In section 57(1) of the M35Courts Act 1971 for the words “Part V of the Mental Health Act 1959” there shall be substituted the words “
Part III of the Mental Health Act 1983
”
.
F77029
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
30
F771. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
31
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F772
32
F773. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
33
F774. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
34
In section 12(d) of the M36Matrimonial Causes Act 1973 for the words “the Mental Health Act 1959” there shall be substituted the words “
the Mental Health Act 1983
”
.
F77535
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
36
F776. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
37
F777. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
38
F778. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F96939
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
40
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F779
41
In the M37Criminal Procedure (Scotland) Act 1975—
a
in sections 13(1)(b) and 322(1)(b) for the words “section 40 or 140 of the Mental Health Act 1959, section 31(8) of the Mental Health (Amendment) Act 1982” there shall be substituted the words “
section 18, 38(7) or 138 of the Mental Health Act 1983
”
;
b
in sections 13(3) and 322(3) for the words “Section 139 of the Mental Health Act 1959” and “the said Act of 1959” there shall be substituted respectively “
Section 137 of the Mental Health Act 1983
”
and “
the said Act of 1983
”
;
c
in sections 13(4) and 322(4) for the words “Part V of the Mental Health Act 1959”, “section 31 of the Mental Health (Amendment) Act 1982” and “Part V of the said Act of 1959” there shall be substituted respectively the words “
Part III of the Mental Health Act 1983
”
, “
section 38 of the said Act of 1983
”
and “
Part III of the said Act of 1983
”
.
42
In Part II of Schedule 1 to the M38House of Commons Disqualification Act 1975 in the entry relating to Mental Health Review Tribunals for the words “constituted under the Mental Health Act 1959” there shall be substituted the words “
constituted or having effect as if constituted under the Mental Health Act 1983
”
.
43
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F780
F78144
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
45
F782. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
46
In section 3(6B) of the M39Bail Act 1976 for the words “section 28 of the Mental Health Act 1959” there shall be substituted the words “
section 12 of the Mental Health Act 1983
”
.
47
F783. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
48
In section 16A(1)(b)(ii) of the M40National Health Service (Scotland) Act 1978 for the words “section 10 of the Mental Health Act 1959” there shall be substituted the words “
section 116 of the Mental Health Act 1983
”
.
F78449
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F78550
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F78651
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
52
F787. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
53
F788. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
54
F789. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
55
F790. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
56
F791. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
57
In the M41Contempt of Court Act 1981—
a
in section 14(4) for the words “section 60 of the Mental Health Act 1959” and “section 31 of the Mental Health (Amendment) Act 1982” there shall be substituted respectively the words “
section 37 of the Mental Health Act 1983
”
and “
section 38 of that Act
”
; and
b
in section 14(4A) for the words “section 29 of the said Act of 1982” there shall be substituted the words “
section 35 of the said Act of 1983
”
.
c
in paragraph 10(b) of Schedule 1 for the words “paragraph (b) of subsection (2) of section 76 of the Mental Health Act 1959” there shall be substituted the words “
section 51(5) of the Mental Health Act 1983
”
.
58
a
in section 48(6)(a) for the words “Part V of the Mental Health Act 1959” and “the Mental Health (Amendment) Act 1982” there shall be substituted respectively the words “
Part III of the Mental Health Act 1983
”
; and “
that Act
”
;
b
in section 48(7) for the words “the said Act of 1982” there shall be substituted the words “
the said Act of 1983
”
; and
c
in section 48(8)(b) for the words “section 31(8) of the said Act of 1982” there shall be substituted the words “
section 38(7) of the said Act of 1983
”
.
59
In section 13(9) of the M43Armed Forces Act 1981 or the words “the Mental Health Act 1959” there shall be substituted the words “
the Mental Health Act 1983
”
.
60
In paragraph 9 of Schedule 1 to the M44British Nationality Act 1981—
a
in sub-paragraph (1)(b) for the words “Part V of the Mental Health Act 1959” there shall be substituted the words “
Part III of the Mental Health Act 1983”
”
; and
b
in sub-paragraph (2)(b) for the words “Part V of the Mental Health Act 1959” there shall be substituted the words “
Part III of the Mental Health Act 1983”
.
”
61
In the M45Mental Health (Amendment) Act 1982—
a
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F793
b
in section 70(3) for the words “Section 154(2) of the principal Act” there shall be substituted the words “
Section 149(4) of the Mental Health Act 1983”
”
.
SCHEDULE 5 Transitional and Saving Provisions
1
Where any period of time specified in an enactment repealed by this Act is current at the commencement of this Act, this Act shall have effect as if the corresponding provision of this Act had been in force when that period began to run.
2
Nothing in this Act shall affect the interpretation of any provision of the M46Mental Health Act 1959 which is not repealed by this Act and accordingly sections 1 and 145(1) of this Act shall apply to any such provision as if it were contained in this Act.
3
Where, apart from this paragraph, anything done under or for the purposes of any enactment which is repealed by this Act would cease to have effect by virtue of that repeal it shall have effect as if it had been done under or for the purposes of the corresponding provision of this Act.
4
F794. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
5
F795. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
6
This Act shall apply in relation to any authority for the detention or guardianship of a person who was liable to be detained or subject to guardianship under the Mental Health Act 1959 immediately before 30th September 1983 as if the provisions of this Act which derive from provisions amended by section 1 or 2 of the M47Mental Health (Amendment) Act 1982 and the amendments in Schedule 3 to that Act which are consequential on those sections were included in this Act in the form the provisions from which they derive would take if those amendments were disregarded but this provision shall not apply to any renewal of that authority on or after that date.
7
F796. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
8
F797. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
9
1
F798. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2
Section 20(2) of this Act shall have effect in relation to any authority renewed before 1st October 1983 with the substitution for the words “six months” of the words “
one year
”
.
2
Section 20(2) of this Act shall have effect in relation to any authority renewed before 1st October 1983 with the substitution for the words “six months” of the words “
one year
”
and for the words “one year” in both places they occur of the words “
two years
”
.
3
F799. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
10
F800. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
11
F801. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
12
F802. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
13
F803. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
14
F804. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
15
The provisions of this Act which derive from sections 24 to 27 of the M48Mental Health (Amendment) Act 1982 shall have effect in relation to a transfer direction given before 30th September 1983 as well as in relation to one given later, but where, apart from this paragraph, a transfer direction given before 30th September 1983 would by virtue of the words in section 50(3) of this Act which are derived from section 24(3) of the Mental Health (Amendment) Act 1982 have ceased to have effect before that date it shall cease to have effect on that date.
16
The words in section 42(1) of this Act which derive from the amendment of section 66(1) of the M49Mental Health Act 1959 by section 28(1) of the Mental Health (Amendment) Act 1982 and the provisions of this Act which derive from section 28(3) of and Schedule 1 to that Act have effect in relation to a restriction order or, as the case may be, a restriction direction made or given before 30th September 1983 as well as in relation to one made or given later, but—
a
any reference to a tribunal under section 66(6) of the said Act of 1959 in respect of a patient shall be treated for the purposes of subsections (1) and (2) of section 77 of this Act in their application to sections 70 and 75(2) of this Act as an application made by him; and
b
sections 71(5) and 75(1)(a) of this Act do not apply where the period in question has expired before 30th September 1983.
17
Section 91(2) of this Act shall not apply in relation to a patient removed from England and Wales before 30th September 1983.
18
F805. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
19
F806. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
20
The repeal by the Mental Health (Amendment) Act 1982 of section 77 of the Mental Health Act 1959 does not affect subsection (4) of that section in its application to a transfer direction given before 30th September 1983, but after the coming into force of this Act that subsection shall have effect for that purpose as if for the references to subsection (6) of section 60, Part IV of that Act and the provisions of that Act there were substituted respectively references to section 37(8), Part II and the provisions of this Act.
F80721
Any direction to which section 71(4) of the Mental Health Act 1959 applied immediately before the commencement of this Act shall have the same effect as a hospital order together with a restriction order, made without limitation of time.
22
F808. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
23
For any reference in any enactment, instrument, deed or other document to a receiver under Part VIII of the Mental Health Act 1959 there shall be substituted a reference to a receiver under Part VII of this Act.
24
Nothing in this Act shall affect the operation of the proviso to section 107(5) of the Mental Health Act 1959 in relation to a charge created before the commencement of this Act under that section.
25
Nothing in this Act shall affect the operation of subsection (6) of section 112 of the Mental Health Act 1959 in relation to a charge created before the commencement of this Act by virtue of subsection (5) of that section.
26
F809. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
27
Nothing in this Act shall affect the operation of section 116 of the Mental Health Act 1959 in relation to orders made, directions or authorities given or other instruments issued before the commencement of this Act.
28
References to applications, recommendations, reports and other documents in section 126 of this Act shall include those to which section 125 of the Mental Health Act 1959 applied immediately before the commencement of this Act and references in section 139 of this Act to the acts to which that section applies shall include those to which section 141 of the said Act of 1959 applied at that time.
29
The repeal by the Mental Health Act 1959 of the M50Mental Treatment Act 1930 shall not affect any amendment effected by section 20 of that Act in any enactment not repealed by the said Act of 1959.
30
The repeal by the Mental Health Act 1959 of the provisions of the M51Lunacy Act 1890 and of the M52Mental Deficiency Act 1913 relating to the superannuation of officers or employees shall not affect any arrangements for the payment of allowances or other benefits made in accordance with those provisions and in force on 1st November 1960.
31
1
Any patient who immediately before the commencement of this Act was liable to be detained in a hospital or subject to guardianship by virtue of paragraph 9 of Schedule 6 to the M53Mental Health Act 1959 shall unless previously discharged continue to be so liable for the remainder of the period of his treatment current on 1st November 1960.
2
The patient may before the expiration of the period of treatment referred to in sub-paragraph (1) above apply to a Mental Health Review Tribunal.
32
Any patient who immediately before the commencement of this Act was liable to be detained or subject to guardianship by virtue of an authority which had been renewed under paragraph 11 of Schedule 6 to the Mental Health Act 1959 shall unless previously discharged continue to be so liable during the period for which that authority was so renewed.
33
1
This paragraph applies to patients who at the commencement of this Act are liable to be detained or subject to guardianship by virtue of paragraph 31 or 32 above.
2
Authority for the detention or guardianship of the patient may on the expiration of the relevant period, unless the patient has previously been discharged, be renewed for a further period of two years.
3
Sections 20(3) to (10) and 66(1)(f) of this Act shall apply in relation to the renewal of authority for the detention or guardianship of a patient under this paragraph as they apply in relation to the renewal of authority for the detention or guardianship of the patient under section 20(2).
4
In this paragraph “the relevant period” means—
a
in relation to a patient liable to be detained or subject to guardianship by virtue of the said paragraph 31, the period of his treatment referred to in that paragraph;
b
in relation to a patient detained by virtue of the said paragraph 32, the period for which authority for the detention or guardianship of the patient has been renewed under paragraph 11 of Schedule 6 to the 1959 Act;
c
in relation to a patient the authority for whose detention or guardianship has previously been renewed under this paragraph, the latest period for which it has been so renewed.
34
1
Any patient who is liable to be detained in a hospital or subject to guardianship by virtue of paragraph 31 above shall (subject to the exceptions and modifications specified in the following provisions of this paragraph) be treated as if he had been admitted to the hospital in pursuance of an application for admission for treatment under Part II of this Act or had been received into guardianship in pursuance of a guardianship application under the said Part II and had been so admitted or received as a patient suffering from the form or forms of mental disorder recorded under paragraph 7 of Schedule 6 to the M54Mental Health Act 1959 or, if a different form or forms have been specified in a report under section 38 of that Act as applied by that paragraph, the form or forms so specified.
2
Section 20 of this Act shall not apply in relation to the patient, but the provisions of paragraph 33 above shall apply instead.
3
Any patient to whom paragraph 9(3) of Schedule 6 to the Mental Health Act 1959 applied at the commencement of this Act who fell within paragraph (b) of that paragraph shall cease to be liable to be detained on attaining the age of 25 years unless, during the period of two months ending on the date when he attains that age, the responsible medical officer records his opinion under the following provisions of this Schedule that the patient is unfit for discharge.
4
If the patient was immediately before 1st November 1960 liable to be detained by virtue of section 6, 8(1) or 9 of the M55Mental Deficiency Act 1913, the power of discharging him under section 23 of this Act shall not be exercisable by his nearest relative, but his nearest relative may make one application in respect of him to F810the appropriate tribunal in any period of 12 months.
35
1
The responsible medical officer may record for the purposes of paragraph 34(3) above his opinion that a patient detained in a hospital is unfit for discharge if it appears to the responsible medical officer—
a
that if that patient were released from the hospital he would be likely to act in a manner dangerous to other persons or to himself, or would be likely to resort to criminal activities; or
b
that that patient is incapable of caring for himself and that there is no suitable hospital or other establishment into which he can be admitted and where he would be likely to remain voluntarily;
and where the responsible medical officer records his opinion as aforesaid he shall also record the grounds for his opinion.
2
Where the responsible medical officer records his opinion under this paragraph in respect of a patient, the managers of the hospital or other persons in charge of the establishment where he is for the time being detained or liable to be detained shall cause the patient to be informed, and the patient may, at any time before the expiration of the period of 28 days beginning with the date on which he is so informed, apply to a Mental Health Review Tribunal.
3
On any application under sub-paragraph (2) above the tribunal shall, if satisfied that none of the conditions set out in paragraphs (a) and (b) of sub-paragraph (1) above are fulfilled, direct that the patient be discharged, and subsection (1) of section 72 of this Act shall have effect in relation to the application as if paragraph (b) of that subsection were omitted.
36
Any person who immediately before the commencement of this Act was deemed to have been named as the guardian of any patient under paragraph 14 of Schedule 6 to the Mental Health Act 1959 shall be deemed for the purposes of this Act to have been named as the guardian of the patient in an application for his reception into guardianship under Part II of this Act accepted on that person’s behalf by the relevant local authority.
37
1
This paragraph applies to patients who immediately before the commencement of this Act were transferred patients within the meaning of paragraph 15 of Schedule 6 to the M56Mental Health Act 1959.
2
A transferred patient who immediately before the commencement of this Act was by virtue of sub-paragraph (2) of that paragraph treated for the purposes of that Act as if he were liable to be detained in a hospital in pursuance of a direction under section 71 of that Act shall be treated as if he were so liable in pursuance of a F811hospital order together with a restriction order, made without limitation of time of this Act.
3
A transferred patient who immediately before the commencement of this Act was by virtue of sub-paragraph (3) of that paragraph treated for the purposes of that Act as if he were liable to be detained in a hospital by virtue of a transfer direction under section 72 of that Act and as if a direction restricting his discharge had been given under section 74 of that Act shall be treated as if he were so liable by virtue of a transfer direction under section 47 of this Act and as if a restriction direction had been given under section 49 of this Act.
4
Section 84 of this Act shall apply to a transferred patient who was treated by virtue of sub-paragraph (5) of that paragraph immediately before the commencement of this Act as if he had been removed to a hospital under section 89 of that Act as if he had been so removed under the said section 84.
5
Any person to whom sub-paragraph (6) of that paragraph applied immediately before the commencement of this Act shall be treated for the purposes of this Act as if he were liable to be detained in a hospital in pursuance of a transfer direction given under section 48 of this Act and as if a restriction direction had been given under section 49 of this Act F812. . . .
38
Any patient who immediately before the commencement of this Act was treated by virtue of sub-paragraph (1) of paragraph 16 of Schedule 6 to the Mental Health Act 1959 as if he had been conditionally discharged under section 66 of that Act shall be treated as if he had been conditionally discharged under section 42 of this Act and any such direction as is mentioned in paragraph (b) of that sub-paragraph shall be treated as if it had been given under the said section 42.
39
F813. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
40
A person who immediately before the commencement of this Act was detained by virtue of paragraph 19 of Schedule 6 to the M57Mental Health Act 1959 may continue to be detained until the expiration of the period of his treatment current on 1st November 1960 or until he becomes liable to be detained or subject to guardianship under this Act, whichever occurs first, and may be so detained in any place in which he might have been detained under that paragraph.
41
Any opinion recorded by the responsible medical officer under the foregoing provisions of this Schedule shall be recorded in such form as may be prescribed by regulations made by the Secretary of State.
42
1
In the foregoing provisions of this Schedule—
a
references to the period of treatment of a patient that was current on 1st November 1960 are to the period for which he would have been liable to be detained or subject to guardianship by virtue of any enactment repealed or excluded by the Mental Health Act 1959, or any enactment repealed or replaced by any such enactment as aforesaid, being a period which began but did not expire before that date; and
b
“the responsible medical officer” means—
i
in relation to a patient subject to guardianship, the medical officer authorised by the local social services authority to act (either generally or in any particular case or for any particular purpose) as the responsible medical officer;
ii
in relation to any other class of patient, the registered medical practitioner in charge of the treatment of the patient.
2
Subsection (2) of section 34 of this Act shall apply for the purposes of the foregoing provisions of this Schedule as it applies for the purposes of Part II of this Act.
3
The sentence or other period of detention of a person who was liable to be detained or subject to guardianship immediately before 1st November 1960 by virtue of an order under section 9 of the M58Mental Deficiency Act 1913 shall be treated for the purposes of the foregoing provisions of this Schedule as expiring at the end of the period for which that person would have been liable to be detained in a prison or other institution if the order had not been made.
4
For the purposes of the foregoing provisions of this Schedule, an order sending a person to an institution or placing a person under guardianship made before 9th March 1956 on a petition presented under the Mental Deficiency Act 1913 shall be deemed to be valid if it was so deemed immediately before the commencement of this Act by virtue of section 148(2) of the M59Mental Health Act 1959.
43
F814. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
44
F815. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
45
F816. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
46
For the purposes of section 15 of the M60National Health Service Reorganisation Act 1973 (preservation of certain boards of governors) any provision of this Act which corresponds to a provision amended by that Act shall be treated as if it were such a provision and any reference in any order for the time being in force under that section to such a provision shall have effect as if it were a reference to the corresponding provision of this Act.
F81746. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
SCHEDULE 6 Repeals
Words in Sch. 6 substituted (1.10.2009) by Constitutional Reform Act 2005 (c. 4), ss. 59, 148, Sch. 11 para. 4; S.I. 2009/1604, art. 2(d)
Chapter | Short title | Extent of repeal |
|---|---|---|
7 & 8 Eliz. 2. c. 72. | The Mental Health Act 1959. | Sections 1 to 5. |
Section 10. | ||
Section 22. | ||
Sections 25 to 35. | ||
Sections 37 to 43. | ||
Sections 45 to 60. | ||
Sections 62 to 68. | ||
Sections 70 to 76. | ||
Sections 80 and 81. | ||
Section 85. | ||
Section 87. | ||
Sections 89 and 90. | ||
Sections 92 to 96. | ||
Sections 99 to 119. | ||
Sections 121 to 126. | ||
Sections 129 and 130. | ||
Sections 132 and 133. | ||
Section 135 to 141. | ||
In section 144, in subsection (1), paragraph (b). | ||
Section 145(2). | ||
Sections 147 and 148. | ||
Section 149(3) to (5). | ||
In section 150, the words from “section ten” to “section one hundred and forty one” and from “section one hundred and forty six” to “Schedules”. | ||
In section 152, the words from “sections eighty-five” to “Northern Ireland by that section”, from “section one hundred and twenty-nine” to “Schedules” and the words “Part II of the Seventh Schedule; Part II of the Eighth Schedule”. | ||
Section 153. | ||
Schedule 1. | ||
Schedule 3. | ||
Schedule 5. | ||
Schedule 6, except paragraph 15(4). | ||
In Schedule 7, in Part I the entry relating to sections 48 and 49 of the Fines and Recoveries Act 1833 and in Part II the entries relating to the Polish Resettlement Act 1947 and the USA Veterans’ Pensions (Administration) Act 1949. | ||
Chapter | Short title | Extent of repeal |
1960 c. 61. | The Mental Health (Scotland) Act 1960. | Section 74. |
In Schedule 4, all the entries relating to the Mental Health Act 1959 except those relating to section 9 and Schedule 7. | ||
1961 (N.I.) c. 15. | The Mental Health Act (Northern Ireland) 1961. | In Schedule 5, paragraphs 1 to 4. |
1964 c. 84. | The Criminal Procedure (Insanity) Act 1964. | Section 4(7). |
1965 c. 2. | The Administration of Justice Act 1965. | In Schedule 1, the entry relating to the Mental Health Act 1959. |
1968 c. 20. | The Courts-Martial (Appeals) Act 1968. | In Schedule 4, the entry relating to the Mental Health Act 1959. |
1968 c. 49. | The Social Work (Scotland) Act 1968. | In Schedule 8, paragraphs 48 and 49. |
1969 c. 46. | The Family Law Reform Act 1969. | In Schedule 1 the entries relating to the Mental Health Act 1959. |
1969 c. 54. | The Children and Young Persons Act 1969. | In Schedule 5, paragraphs 38 to 40. |
1969 c. 58. | The Administration of Justice Act 1969. | Sections 17 to 19. |
1970 c. 42. | The Local Authority Social Services Act 1970. | In Schedule 1, the entry relating to the Mental Health (Amendment) Act 1982. |
1971 c. 23. | The Courts Act 1971. | In Schedule 8, paragraph 38. |
In Part I of Schedule 9, the entry relating to the Mental Health Act 1959. | ||
1971 c. 77. | The Immigration Act 1971. | In section 30(2), the words from “and accordingly” onwards. |
1972 c. 70. | The Local Government Act 1972. | In Schedule 23, in paragraph 9, in sub-paragraph (1) the words “35, 56(2)(c) and 56(3)”, in sub-paragraph (2) the words “10(1), 22, 27(2), 33, 34, 38(3), 40 to 43, 47(2), 52, 53, 59, 60” and “132”, sub-paragraphs (4), (5) and (6). |
1973 c. 29. | The Guardianship Act 1973. | In section 1(8), the words from “and” to the end of the subsection. |
1975 c. 37. | The Nursing Homes Act 1975. | In Schedule 1, paragraphs 1 to 4. |
1977 c. 45. | The Criminal Law Act 1977. | In Schedule 6, the entry relating to section 130(3) of the Mental Health Act 1959. |
1977 c. 49. | The National Health Service Act 1977. | In section 105(3), the words “or the Mental Health Act 1959”. |
In Schedule 15, paragraphs 23, 26 to 28, 30, 31 and 33. | ||
Chapter | Short title | Extent of repeal |
1978 c. 29. | The National Health Service (Scotland) Act 1978. | In paragraph 10(b) of Schedule 15, the figure “102”. |
1980 c. 5. | The Child Care Act 1980. | In Schedule 5, paragraphs 13 and 14. |
1980 c. 43. | The Magistrates’ Courts Act 1980. | In Schedule 7, paragraphs 31 and 32. |
1980 c. 53. | The Health Services Act 1980. | In Schedule 1, paragraph 13. |
1981 c. 45. | The Forgery and Counterfeiting Act 1981. | Section 11(1). |
1981 c. 54. | The F818Senior Courts Act 1981. | Section 144. |
In Schedule 5, paragraphs 2 and 3 of the entry relating to the Mental Health Act 1959. | ||
In Schedule 6, paragraph 4. | ||
1981 c. 61. | The British Nationality Act 1981. | In section 39(7) the words “section 90 of the Mental Health Act 1959 and”. |
1982 c. 51. | The Mental Health (Amendment) Act 1982. | Sections 1 to 33. |
Sections 35 to 61. | ||
In section 63, subsection (1) and in subsection (2) the words from the beginning to “Act and”. | ||
Section 64(1), (2), (3), (5) and (6). | ||
Section 66. | ||
Section 68(2) and (3). | ||
Section 69(2), (3), and (4). | ||
In section 70(2), the words “sections 35(1) and (2) and 64(6) above extend to Northern Ireland”. | ||
Schedule 1. | ||
In Schedule 3, in Part I paragraphs 1 to 26, in paragraph 35 sub-paragraph (a), paragraphs 40, 42, 45 and 46, in paragraph 50 sub-paragraph (a), in paragraph 51 sub-paragraph (a), paragraphs 52 to 55, 57 and 58 and Part II. | ||
In Schedule 5, paragraphs 2 to 15. |
For the words "Supreme Court Act 1981" there is substituted (1.10.2009) the words "Senior Courts Act 1981" by virtue of Constitutional Reform Act 2005 (c. 4), ss. 59, 148(1), Sch. 11 para. 1(2); S.I. 2009/1604, art. 2(d)