- Latest available (Revised)
- Original (As enacted)
Mental Capacity Act 2005, Part 2 is up to date with all changes known to be in force on or before 09 December 2024. There are changes that may be brought into force at a future date. Changes that have been made appear in the content and are referenced with annotations.
Revised legislation carried on this site may not be fully up to date. Changes and effects are recorded by our editorial team in lists which can be found in the ‘Changes to Legislation’ area. Where those effects have yet to be applied to the text of the legislation by the editorial team they are also listed alongside the legislation in the affected provisions. Use the ‘more’ link to open the changes and effects relevant to the provision you are viewing.
Whole provisions yet to be inserted into this Act (including any effects on those provisions):
Textual Amendments
F1Sch. 1A omitted (16.5.2019 for specified purposes) by virtue of Mental Capacity (Amendment) Act 2019 (c. 18), s. 6(3), Sch. 2 para. 2(c)
6E+WThis Part applies for the purposes of this Schedule.
7E+WThe mental health regimes are—
(a)the hospital treatment regime,
(b)the community treatment regime, and
(c)the guardianship regime.
8(1)P is subject to the hospital treatment regime if he is subject to—E+W
(a)a hospital treatment obligation under the relevant enactment, or
(b)an obligation under another England and Wales enactment which has the same effect as a hospital treatment obligation.
(2)But where P is subject to any such obligation, he is to be regarded as not subject to the hospital treatment regime during any period when he is subject to the community treatment regime.
(3)A hospital treatment obligation is an application, order or direction of a kind listed in the first column of the following table.
(4)In relation to a hospital treatment obligation, the relevant enactment is the enactment in the Mental Health Act which is referred to in the corresponding entry in the second column of the following table.
Hospital treatment obligation | Relevant enactment |
---|---|
Application for admission for assessment | Section 2 |
Application for admission for assessment | Section 4 |
Application for admission for treatment | Section 3 |
Order for remand to hospital | Section 35 |
Order for remand to hospital | Section 36 |
Hospital order | Section 37 |
Interim hospital order | Section 38 |
Order for detention in hospital | Section 44 |
Hospital direction | Section 45A |
Transfer direction | Section 47 |
Transfer direction | Section 48 |
Hospital order | Section 51 |
9E+WP is subject to the community treatment regime if he is subject to—
(a)a community treatment order under section 17A of the Mental Health Act, or
(b)an obligation under another England and Wales enactment which has the same effect as a community treatment order.
10E+WP is subject to the guardianship regime if he is subject to—
(a)a guardianship application under section 7 of the Mental Health Act,
(b)a guardianship order under section 37 of the Mental Health Act, or
(c)an obligation under another England and Wales enactment which has the same effect as a guardianship application or guardianship order.
11(1)An England and Wales enactment is an enactment which extends to England and Wales (whether or not it also extends elsewhere).E+W
(2)It does not matter if the enactment is in the Mental Health Act or not.
12(1)P is within the scope of the Mental Health Act if—E+W
(a)an application in respect of P could be made under section 2 or 3 of the Mental Health Act, and
(b)P could be detained in a hospital in pursuance of such an application, were one made.
(2)The following provisions of this paragraph apply when determining whether an application in respect of P could be made under section 2 or 3 of the Mental Health Act.
(3)If the grounds in section 2(2) of the Mental Health Act are met in P's case, it is to be assumed that the recommendations referred to in section 2(3) of that Act have been given.
(4)If the grounds in section 3(2) of the Mental Health Act are met in P's case, it is to be assumed that the recommendations referred to in section 3(3) of that Act have been given.
(5)In determining whether the ground in section 3(2)(c) of the Mental Health Act is met in P's case, it is to be assumed that the treatment referred to in section 3(2)(c) cannot be provided under this Act.
13E+WIn a case where this Schedule applies for the purposes of section 16A—
“authorised course of action” means any course of action amounting to deprivation of liberty which the order under section 16(2)(a) authorises;
“relevant care or treatment” means any care or treatment which—
comprises, or forms part of, the authorised course of action, or
is to be given in connection with the authorised course of action;
“relevant instrument” means the order under section 16(2)(a).
14E+WIn a case where this Schedule applies for the purposes of paragraph 17 of Schedule A1—
“authorised course of action” means the accommodation of the relevant person in the relevant hospital or care home for the purpose of being given the relevant care or treatment;
“relevant care or treatment” has the same meaning as in Schedule A1;
“relevant instrument” means the standard authorisation under Schedule A1.
15(1)This paragraph applies where the question whether a person is ineligible to be deprived of liberty by this Act is relevant to either of these decisions—E+W
(a)whether or not to include particular provision (“the proposed provision”) in an order under section 16(2)(a);
(b)whether or not to give a standard authorisation under Schedule A1.
(2)A reference in this Schedule to the authorised course of action or the relevant care or treatment is to be read as a reference to that thing as it would be if—
(a)the proposed provision were included in the order, or
(b)the standard authorisation were given.
(3)A reference in this Schedule to the relevant instrument is to be read as follows—
(a)where the relevant instrument is an order under section 16(2)(a): as a reference to the order as it would be if the proposed provision were included in it;
(b)where the relevant instrument is a standard authorisation: as a reference to the standard authorisation as it would be if it were given.
16(1)These expressions have the meanings given—E+W
“donee” means a donee of a lasting power of attorney granted by P;
“mental health patient” means a person accommodated in a hospital for the purpose of being given medical treatment for mental disorder;
“mental health treatment” means the medical treatment for mental disorder referred to in the definition of “mental health patient”.
(2)A decision of a donee or deputy is valid if it is made—
(a)within the scope of his authority as donee or deputy, and
(b)in accordance with Part 1 of this Act.
17(1)“Hospital” has the same meaning as in Part 2 of the Mental Health Act.E+W
(2)“Medical treatment” has the same meaning as in the Mental Health Act.
(3)“Mental disorder” has the same meaning as in Schedule A1 (see paragraph 14).]
The Whole Act you have selected contains over 200 provisions and might take some time to download. You may also experience some issues with your browser, such as an alert box that a script is taking a long time to run.
Would you like to continue?
The Whole Act you have selected contains over 200 provisions and might take some time to download.
Would you like to continue?
The Whole Act you have selected contains over 200 provisions and might take some time to download. You may also experience some issues with your browser, such as an alert box that a script is taking a long time to run.
Would you like to continue?
The Schedules you have selected contains over 200 provisions and might take some time to download. You may also experience some issues with your browser, such as an alert box that a script is taking a long time to run.
Would you like to continue?
Latest Available (revised):The latest available updated version of the legislation incorporating changes made by subsequent legislation and applied by our editorial team. Changes we have not yet applied to the text, can be found in the ‘Changes to Legislation’ area.
Original (As Enacted or Made): The original version of the legislation as it stood when it was enacted or made. No changes have been applied to the text.
Geographical Extent: Indicates the geographical area that this provision applies to. For further information see ‘Frequently Asked Questions’.
Show Timeline of Changes: See how this legislation has or could change over time. Turning this feature on will show extra navigation options to go to these specific points in time. Return to the latest available version by using the controls above in the What Version box.
Text created by the government department responsible for the subject matter of the Act to explain what the Act sets out to achieve and to make the Act accessible to readers who are not legally qualified. Explanatory Notes were introduced in 1999 and accompany all Public Acts except Appropriation, Consolidated Fund, Finance and Consolidation Acts.
Access essential accompanying documents and information for this legislation item from this tab. Dependent on the legislation item being viewed this may include:
This timeline shows the different points in time where a change occurred. The dates will coincide with the earliest date on which the change (e.g an insertion, a repeal or a substitution) that was applied came into force. The first date in the timeline will usually be the earliest date when the provision came into force. In some cases the first date is 01/02/1991 (or for Northern Ireland legislation 01/01/2006). This date is our basedate. No versions before this date are available. For further information see the Editorial Practice Guide and Glossary under Help.
Use this menu to access essential accompanying documents and information for this legislation item. Dependent on the legislation item being viewed this may include:
Click 'View More' or select 'More Resources' tab for additional information including: