Legalize / United Kingdom / Public General Act

Mental Health Act 2007

Type Public General Act

Publication 2007-07-19

Last updated 2019-05-16

State In force

Department Statute Law Database

Source legislation.gov.uk

articles Not indexed

Reform history JSON API

(64A) 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. (64B) (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. (64C) (1) This section has effect for the purposes of section 64B above. (2) There is authority to give treatment to a patient if— (a) he has capacity to consent to it and does consent to it; (b) a donee or deputy or the Court of Protection consents to it on his behalf; or (c) giving it to him is authorised in accordance with section 64D or 64G below. (3) Relevant treatment is section 58 type treatment or section 58A type treatment if, at the time when it is given to the patient, section 58 or 58A above (respectively) would have applied to it, had the patient remained liable to be detained at that time (rather than being a community patient). (4) The certificate requirement is met in respect of treatment to be given to a patient if— (a) a registered medical practitioner appointed for the purposes of Part 4 of this Act (not being the responsible clinician or the person in charge of the treatment) has certified in writing that it is appropriate for the treatment to be given or for the treatment to be given subject to such conditions as may be specified in the certificate; and (b) if conditions are so specified, the conditions are satisfied. (5) In a case where the treatment is section 58 type treatment, treatment is immediately necessary if— (a) it is immediately necessary to save the patient's life; or (b) it is immediately necessary to prevent a serious deterioration of the patient's condition and is not irreversible; or (c) it is immediately necessary to alleviate serious suffering by the patient and is not irreversible or hazardous; or (d) it is immediately necessary, represents the minimum interference necessary to prevent the patient from behaving violently or being a danger to himself or others and is not irreversible or hazardous. (6) In a case where the treatment is section 58A type treatment by virtue of subsection (1)(a) of that section, treatment is immediately necessary if it falls within paragraph (a) or (b) of subsection (5) above. (7) In a case where the treatment is section 58A type treatment by virtue of subsection (1)(b) of that section, treatment is immediately necessary if it falls within such of paragraphs (a) to (d) of subsection (5) above as may be specified in regulations under that section. (8) For the purposes of subsection (7) above, the regulations— (a) may make different provision for different cases (and may, in particular, make different provision for different forms of treatment); (b) may make provision which applies subject to specified exceptions; and (c) may include transitional, consequential, incidental or supplemental provision. (9) Subsection (3) of section 62 above applies for the purposes of this section as it applies for the purposes of that section. (64D) (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. (64E) (1) This section applies to the giving of relevant treatment to a community patient who— (a) is not recalled to hospital under section 17E above; and (b) has not attained the age of 16 years. (2) The treatment may not be given to the patient unless— (a) there is authority to give it to him; and (b) if it is section 58 type treatment or section 58A type treatment, the certificate requirement is met. (3) But the certificate requirement does not apply if— (a) giving the treatment to the patient is authorised in accordance with section 64G below; or (b) in a case where the patient is competent to consent to the treatment and does consent to it, the treatment is immediately necessary. (4) Nor does the certificate requirement apply in so far as the administration of medicine to the patient at any time during the period of one month beginning with the day on which the community treatment order is made is section 58 type treatment. (5) The reference in subsection (4) above to the administration of medicine does not include any form of treatment specified under section 58(1)(a) above. (6) For the purposes of subsection (2)(a) above, there is authority to give treatment to a patient if— (a) he is competent to consent to it and he does consent to it; or (b) giving it to him is authorised in accordance with section 64F or 64G below. (7) Subsections (3) to (9) of section 64C above have effect for the purposes of this section as they have effect for the purposes of section 64B above. (8) Regulations made by virtue of section 32(2)(d) above apply for the purposes of this section as they apply for the purposes of Part 2 of this Act. (64F) (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. (64G) (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. (64H) (1) A certificate under section 64B(2)(b) or 64E(2)(b) above (a “Part 4A certificate”) may relate to a plan of treatment under which the patient is to be given (whether within a specified period or otherwise) one or more forms of section 58 type treatment or section 58A type treatment. (2) A Part 4A certificate shall be in such form as may be prescribed by regulations made by the appropriate national authority. (3) Before giving a Part 4A certificate, the registered medical practitioner concerned shall consult two other persons who have been professionally concerned with the patient's medical treatment but, of those persons— (a) at least one shall be a person who is not a registered medical practitioner; and (b) neither shall be the patient's responsible clinician or the person in charge of the treatment in question. (4) Where a patient is given treatment in accordance with a Part 4A certificate, a report on the treatment and the patient's condition shall be given by the person in charge of the treatment to the appropriate national authority if required by that authority. (5) The appropriate national authority may at any time give notice directing that a Part 4A certificate shall not apply to treatment given to a patient after a date specified in the notice, and the relevant section shall then apply to any such treatment as if that certificate had not been given. (6) The relevant section is— (a) if the patient is not recalled to hospital in accordance with section 17E above, section 64B or 64E above; (b) if the patient is so recalled or is liable to be detained under this Act following revocation of the community treatment order under section 17F above— (i) section 58 above, in the case of section 58 type treatment; (ii) section 58A above, in the case of section 58A type treatment; (subject to section 62A(2) above). (7) The notice under subsection (5) above shall be given to the person in charge of the treatment in question. (8) Subsection (5) above shall not preclude the continuation of any treatment or of treatment under any plan pending compliance with the relevant section if the person in charge of the treatment considers that the discontinuance of the treatment or of treatment under the plan would cause serious suffering to the patient. (9) In this section, “the appropriate national authority” means— (a) in relation to community patients in respect of whom the responsible hospital is in England, the Secretary of State; (b) in relation to community patients in respect of whom the responsible hospital is in Wales, the Welsh Ministers. (64I) 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. (64J) (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. (64K) (1) This Part of this Act is to be construed as follows. (2) References to a patient who lacks capacity are to a patient who lacks capacity within the meaning of the Mental Capacity Act 2005. (3) References to a patient who has capacity are to be read accordingly. (4) References to a donee are to a donee of a lasting power of attorney (within the meaning of section 9 of the Mental Capacity Act 2005) created by the patient, where the donee is acting within the scope of his authority and in accordance with that Act. (5) References to a deputy are to a deputy appointed for the patient by the Court of Protection under section 16 of the Mental Capacity Act 2005, where the deputy is acting within the scope of his authority and in accordance with that Act. (6) Reference to the responsible clinician shall be construed as a reference to the responsible clinician within the meaning of Part 2 of this Act. (7) References to a hospital include a registered establishment. (8) Section 64(3) above applies for the purposes of this Part of this Act as it applies for the purposes of Part 4 of this Act.

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

(a) in subsection (2)—

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

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

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

(b) after subsection (2) insert—

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

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

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

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

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

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

Repeal of provisions for after-care under supervision

36

(1) The 1983 Act is amended as follows.

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

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

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

Chapter 5 — Mental Health Review Tribunals

References

37

(1) The 1983 Act is amended as follows.

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

(3) Where a patient is absent without leave on the day on which (apart from this section) the managers would be required under section 68 below to refer the patient's case to a Mental Health Review Tribunal, that requirement shall not apply unless and until— (a) the patient is taken into custody under section 18 above and returned to the hospital where he ought to be; or (b) the patient returns himself to the hospital where he ought to be within the period during which he can be taken into custody under section 18 above.

(3) For section 68 substitute—

(68) (1) This section applies in respect of the following patients— (a) a patient who is admitted to a hospital in pursuance of an application for admission for assessment; (b) a patient who is admitted to a hospital in pursuance of an application for admission for treatment; (c) a community patient; (d) a patient whose community treatment order is revoked under section 17F above; (e) a patient who is transferred from guardianship to a hospital in pursuance of regulations made under section 19 above. (2) On expiry of the period of six months beginning with the applicable day, the managers of the hospital shall refer the patient's case to a Mental Health Review Tribunal. (3) But they shall not do so if during that period— (a) any right has been exercised by or in respect of the patient by virtue of any of paragraphs (b), (ca), (cb), (e), (g) and (h) of section 66(1) above; (b) a reference has been made in respect of the patient under section 67(1) above, not being a reference made while the patient is or was liable to be detained in pursuance of an application for admission for assessment; or (c) a reference has been made in respect of the patient under subsection (7) below. (4) A person who applies to a tribunal but subsequently withdraws his application shall be treated for these purposes as not having exercised his right to apply, and if he withdraws his application on a date after expiry of the period mentioned in subsection (2) above, the managers shall refer the patient's case as soon as possible after that date. (5) In subsection (2) above, “the applicable day” means— (a) in the case of a patient who is admitted to a hospital in pursuance of an application for admission for assessment, the day on which the patient was so admitted; (b) in the case of a patient who is admitted to a hospital in pursuance of an application for admission for treatment— (i) the day on which the patient was so admitted; or (ii) if, when he was so admitted, he was already liable to be detained in pursuance of an application for admission for assessment, the day on which he was originally admitted in pursuance of the application for admission for assessment; (c) in the case of a community patient or a patient whose community treatment order is revoked under section 17F above, the day mentioned in sub-paragraph (i) or (ii), as the case may be, of paragraph (b) above; (d) in the case of a patient who is transferred from guardianship to a hospital, the day on which he was so transferred. (6) The managers of the hospital shall also refer the patient's case to a Mental Health Review Tribunal if a period of more than three years (or, if the patient has not attained the age of 18 years, one year) has elapsed since his case was last considered by such a tribunal, whether on his own application or otherwise. (7) If, in the case of a community patient, the community treatment order is revoked under section 17F above, the managers of the hospital shall also refer the patient's case to a Mental Health Review Tribunal as soon as possible after the order is revoked. (8) For the purposes of furnishing information for the purposes of a reference under this section, a registered medical practitioner or approved clinician authorised by or on behalf of the patient may at any reasonable time— (a) visit and examine the patient in private; and (b) require the production of and inspect any records relating to the detention or treatment of the patient in any hospital or any after-care services provided for him under section 117 below. (9) Reference in this section to the managers of the hospital— (a) in relation to a community patient, is to the managers of the responsible hospital; (b) in relation to any other patient, is to the managers of the hospital in which he is liable to be detained. (68A) (1) The appropriate national authority may from time to time by order amend subsection (2) or (6) of section 68 above so as to substitute for a period mentioned there such shorter period as is specified in the order. (2) The order may include such transitional, consequential, incidental or supplemental provision as the appropriate national authority thinks fit. (3) The order may, in particular, make provision for a case where— (a) a patient in respect of whom subsection (1) of section 68 above applies is, or is about to be, transferred from England to Wales or from Wales to England; and (b) the period by reference to which subsection (2) or (6) of that section operates for the purposes of the patient's case is not the same in one territory as it is in the other. (4) A patient is transferred from one territory to the other if— (a) he is transferred from a hospital, or from guardianship, in one territory to a hospital in the other in pursuance of regulations made under section 19 above; (b) he is removed under subsection (3) of that section from a hospital or accommodation in one territory to a hospital or accommodation in the other; (c) he is a community patient responsibility for whom is assigned from a hospital in one territory to a hospital in the other in pursuance of regulations made under section 19A above; (d) on the revocation of a community treatment order in respect of him under section 17F above he is detained in a hospital in the territory other than the one in which the responsible hospital was situated; or (e) he is transferred or removed under section 123 below from a hospital in one territory to a hospital in the other. (5) Provision made by virtue of subsection (3) above may require or authorise the managers of a hospital determined in accordance with the order to refer the patient's case to a Mental Health Review Tribunal. (6) In so far as making provision by virtue of subsection (3) above, the order— (a) may make different provision for different cases; (b) may make provision which applies subject to specified exceptions. (7) Where the appropriate national authority for one territory makes an order under subsection (1) above, the appropriate national authority for the other territory may by order make such provision in consequence of the order as it thinks fit. (8) An order made under subsection (7) above may, in particular, make provision for a case within subsection (3) above (and subsections (4) to (6) above shall apply accordingly). (9) In this section, “the appropriate national authority” means— (a) in relation to a hospital in England, the Secretary of State; (b) in relation to a hospital in Wales, the Welsh Ministers.

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

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

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

(a) in subsection (2)—

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

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

(b) in subsection (3)—

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

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

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

(a) in paragraph 2—

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

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

(b) after paragraph 9 insert—

(10) 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.

Organisation

38

(1) The 1983 Act is amended as follows.

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

(1) There shall be— (a) a Mental Health Review Tribunal for England; and (b) a Mental Health Review Tribunal for Wales. (1A) The purpose of the Mental Health Review Tribunals is to deal with applications and references by and in respect of patients under the provisions of this Act.

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

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

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

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

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

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

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

(6) For paragraph 3 substitute—

(3) (1) The Lord Chancellor shall appoint one of the legal members of the Mental Health Review Tribunal for England to be the President of that tribunal. (2) The Lord Chancellor shall appoint one of the legal members of the Mental Health Review Tribunal for Wales to be the President of that tribunal.

(7) In paragraph 4—

(a) for “chairman”, in each place, substitute “ President ”, and

(b) omit “, if for any reason he is unable to act,”.

(8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(9) In paragraph 6—

(a) for “chairman”, in each place, substitute “ President ”, and

(b) for “president”, in each place, substitute “ chairman ”.

Chapter 6 — Cross-border patients

Cross-border arrangements

39

(1) At the end of section 17 of the 1983 Act (leave of absence) insert—

(6) Subsection (7) below applies to a person who is granted leave by or by virtue of a provision— (a) in force in Scotland, Northern Ireland, any of the Channel Islands or the Isle of Man; and (b) corresponding to subsection (1) above. (7) For the purpose of giving effect to a direction or condition imposed by virtue of a provision corresponding to subsection (3) above, the person may be conveyed to a place in, or kept in custody or detained at a place of safety in, England and Wales by a person authorised in that behalf by the direction or condition.

(2) Schedule 5 (which contains amendments to Part 6 of the 1983 Act and related amendments) has effect.

Chapter 7 — Restricted patients

Restriction orders

40

(1) In section 41(1) of the 1983 Act (restriction orders) omit the words “, either without limit of time or during such period as may be specified in the order”.

(2) In section 42(4)(b) of the 1983 Act (powers in respect of patients subject to restriction orders) omit the words from “, and, if the restriction order was made for a specified period,” to the end.

(3) In the following provisions omit the words “, made without limitation of time”—

(a) section 44(3) of the 1983 Act (committal to hospital),

(b) section 84(2) of the 1983 Act (removal from Islands), and

(4) In section 81(7) of the 1983 Act (removal to Northern Ireland: expiry of restriction order or direction) omit (in each place) “restriction order or”.

(5) In section 81A(3) of the 1983 Act (transfer of responsibility for patient to Northern Ireland: expiry of restriction order or direction)—

(a) omit (in each place) “restriction order or”, and

(b) omit “order or”.

(6) In section 91(2) of the 1983 Act (patients removed from England and Wales: revival of order on return) omit the words “at any time before the end of the period for which those orders would have continued in force”.

(7) But subsections (3) to (6) shall have no effect in respect of—

(a) a restriction order for a specified period made before subsection (1) comes into force, or

(b) an order made outside England and Wales which is treated under the 1983 Act as if it were a restriction order for a specified period.

Conditionally discharged patients subject to limitation directions

41

In section 75(3) of the 1983 Act (power of Mental Health Review Tribunal to direct that restriction order, etc. is to cease to have effect)—

(a) in paragraph (b), after “restriction order”, insert “ , limitation direction ”, and

(b) after “hospital order”, insert “ , hospital direction ”.

Chapter 8 — Miscellaneous

Offence of ill-treatment: increase in maximum penalty on conviction on indictment

42

In section 127 of the 1983 Act (ill-treatment or wilful neglect of patients), in subsection (3)(b), for “two years” substitute “ five years ”.

Informal admission of patients aged 16 or 17

43

In section 131 of the 1983 Act (informal admission of patients), for subsection (2) substitute—

(2) Subsections (3) and (4) below apply in the case of a patient aged 16 or 17 years who has capacity to consent to the making of such arrangements as are mentioned in subsection (1) above. (3) If the patient consents to the making of the arrangements, they may be made, carried out and determined on the basis of that consent even though there are one or more persons who have parental responsibility for him. (4) If the patient does not consent to the making of the arrangements, they may not be made, carried out or determined on the basis of the consent of a person who has parental responsibility for him. (5) In this section— (a) the reference to a patient who has capacity is to be read in accordance with the Mental Capacity Act 2005; and (b) “parental responsibility” has the same meaning as in the Children Act 1989.

Places of safety

44

(1) The 1983 Act is amended as follows.

(2) In section 135 (warrant to search for and remove patients), after subsection (3) insert—

(3A) A constable, an approved mental health professional or a person authorised by either of them for the purposes of this subsection may, before the end of the period of 72 hours mentioned in subsection (3) above, take a person detained in a place of safety under that subsection to one or more other places of safety. (3B) A person taken to a place of safety under subsection (3A) above may be detained there for a period ending no later than the end of the period of 72 hours mentioned in subsection (3) above.

(3) In section 136 (mentally disordered persons found in public places), after subsection (2) insert—

(3) A constable, an approved mental health professional or a person authorised by either of them for the purposes of this subsection may, before the end of the period of 72 hours mentioned in subsection (2) above, take a person detained in a place of safety under that subsection to one or more other places of safety. (4) A person taken to a place of a safety under subsection (3) above may be detained there for a purpose mentioned in subsection (2) above for a period ending no later than the end of the period of 72 hours mentioned in that subsection.

Delegation of powers of managers of NHS foundation trusts

45

(1) In section 23(6) of the 1983 Act (delegation of NHS foundation trust's power to discharge patients), for the words from “non-executive directors” to the end substitute “ persons authorised by the board of the trust in that behalf each of whom is neither an executive director of the board nor an employee of the trust. ”

(2) In section 32(3) of the 1983 Act (power to make provision about how hospital managers' functions under Part 2 of that Act are to be exercised), after “23(4)” insert “ and (6) ”.

(3) After section 142A of the 1983 Act (inserted by section 17 of this Act), insert—

(142B) (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.

Local Health Boards

46

(1) The 1983 Act is amended as follows.

(2) In section 19(3) (removal of patients), after “NHS foundation trust”, in each place, insert “ , Local Health Board ”.

(3) In section 145(1) (interpretation)—

(a) in the definition of “hospital”, after paragraph (b) insert

; and (c) any hospital as defined by section 206 of the National Health Service (Wales) Act 2006 which is vested in a Local Health Board;

, and

(b) in the definition of “the managers”, after paragraph (bc) insert—

(bd) in relation to a hospital vested in a Local Health Board, the Board;

Welsh Ministers: procedure for instruments

47

(1) Section 143 of the 1983 Act (general provisions as to regulations, orders and rules) is amended as follows.

(2) In subsection (2), for “or rules made” substitute “ made by the Secretary of State, or rules made, ”.

(3) After subsection (3) insert—

(3A) Subsections (3B) to (3D) apply where power to make regulations or an order under this Act is conferred on the Welsh Ministers (other than by or by virtue of the Government of Wales Act 2006). (3B) Any power of the Welsh Ministers to make regulations or an order shall be exercisable by statutory instrument. (3C) Any statutory instrument containing regulations, or an order under section 68A(7) above, made by the Welsh Ministers shall be subject to annulment in pursuance of a resolution of the National Assembly for Wales. (3D) No order shall be made under section 68A(1) above by the Welsh Ministers unless a draft of it has been approved by a resolution of the National Assembly for Wales. (3E) In this section— (a) references to the Secretary of State include the Secretary of State and the Welsh Ministers acting jointly; and (b) references to the Welsh Ministers include the Welsh Ministers and the Secretary of State acting jointly.

Part 2 — Amendments to other Acts

Chapter 1 — Amendments to Domestic Violence, Crime and Victims Act 2004

Victims' rights

48

Schedule 6 (which makes amendments to Chapter 2 of Part 3 of the Domestic Violence, Crime and Victims Act 2004 (c. 28)) has effect.

Chapter 2 — Amendments to Mental Capacity Act 2005

Independent mental capacity advocacy service: exceptions

49

For section 40 of the Mental Capacity Act 2005 (c. 9) (independent mental capacity advocacy service: exceptions) substitute—

(40) The duty imposed by section 37(3), 38(3) or (4) or 39(4) or (5) does not apply where there is— (a) a person nominated by P (in whatever manner) as a person to be consulted on matters to which that duty relates, (b) a donee of a lasting power of attorney created by P who is authorised to make decisions in relation to those matters, or (c) a deputy appointed by the court for P with power to make decisions in relation to those matters.

Mental Capacity Act 2005: deprivation of liberty

50

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

(2) After section 4 insert—

(4A) (1) This Act does not authorise any person (“D”) to deprive any other person (“P”) of his liberty. (2) But that is subject to— (a) the following provisions of this section, and (b) section 4B. (3) D may deprive P of his liberty if, by doing so, D is giving effect to a relevant decision of the court. (4) A relevant decision of the court is a decision made by an order under section 16(2)(a) in relation to a matter concerning P's personal welfare. (5) D may deprive P of his liberty if the deprivation is authorised by Schedule A1 (hospital and care home residents: deprivation of liberty). (4B) (1) If the following conditions are met, D is authorised to deprive P of his liberty while a decision as respects any relevant issue is sought from the court. (2) The first condition is that there is a question about whether D is authorised to deprive P of his liberty under section 4A. (3) The second condition is that the deprivation of liberty— (a) is wholly or partly for the purpose of— (i) giving P life-sustaining treatment, or (ii) doing any vital act, or (b) consists wholly or partly of— (i) giving P life-sustaining treatment, or (ii) doing any vital act. (4) The third condition is that the deprivation of liberty is necessary in order to— (a) give the life-sustaining treatment, or (b) do the vital act. (5) A vital act is any act which the person doing it reasonably believes to be necessary to prevent a serious deterioration in P's condition.

(3) After section 16 insert—

(16A) (1) If a person is ineligible to be deprived of liberty by this Act, the court may not include in a welfare order provision which authorises the person to be deprived of his liberty. (2) If— (a) a welfare order includes provision which authorises a person to be deprived of his liberty, and (b) that person becomes ineligible to be deprived of liberty by this Act, the provision ceases to have effect for as long as the person remains ineligible. (3) Nothing in subsection (2) affects the power of the court under section 16(7) to vary or discharge the welfare order. (4) For the purposes of this section— (a) Schedule 1A applies for determining whether or not P is ineligible to be deprived of liberty by this Act; (b) “welfare order” means an order under section 16(2)(a).

(4) Omit the following provisions (which make specific provision about deprivation of liberty)—

(a) section 6(5);

(b) section 11(6);

(5) Schedule 7 (which inserts the new Schedule A1 into the Mental Capacity Act 2005 (c. 9)) has effect.

(6) Schedule 8 (which inserts the new Schedule 1A into the Mental Capacity Act 2005) has effect.

(7) Schedule 9 (which makes other amendments to the Mental Capacity Act 2005 and to other Acts) has effect.

(8) In subsection (9)—

“GOWA 1998” means the Government of Wales Act 1998 (c. 38);

“GOWA 2006” means the Government of Wales Act 2006 (c. 32);

“initial period” has the same meaning as in Schedule 11 to GOWA 2006.

(9) If this Act is passed after the end of the initial period, the functions conferred on the National Assembly for Wales by virtue of any provision of this Part of this Act are to be treated for the purposes of Schedule 11 to GOWA 2006 as if they—

(a) had been conferred on the Assembly constituted by GOWA 1998 by an Act passed before the end of the initial period, and

(b) were exercisable by that Assembly immediately before the end of the initial period.

(10) If any function of making subordinate legislation conferred by virtue of any provision of this Part of this Act is transferred to the Welsh Ministers (whether by virtue of subsection (9) or otherwise)—

(a) paragraphs 34 and 35of Schedule 11 to the Government of Wales Act 2006 do not apply; and

(b) subsections (11) and (12) apply instead.

(11) If a relevant statutory instrument contains regulations under paragraph 42(2)(b), 129, 163 or 164 of Schedule A1 to the Mental Capacity Act 2005 (whether or not it also contains other regulations), the instrument may not be made unless a draft has been laid before and approved by resolution of the National Assembly for Wales.

(12) Subject to that, a relevant statutory instrument is subject to annulment in pursuance of a resolution of the National Assembly for Wales.

(13) In subsections (11) and (12) “relevant statutory instrument” means a statutory instrument containing subordinate legislation made in exercise of a function transferred as mentioned in subsection (10).

Amendment to section 20(11) of Mental Capacity Act 2005

51

In section 20 of the Mental Capacity Act 2005 (c. 9) (restrictions on deputies), in subsection (11)(a), for “or” substitute “ and ”.

Part 3 — General

Meaning of “1983 Act”

52

In this Act “the 1983 Act” means the Mental Health Act 1983 (c. 20).

Transitional provisions and savings

53

Schedule 10 (which contains transitional provisions and savings) has effect.

Consequential provisions

54

(1) The Secretary of State may by order made by statutory instrument make supplementary, incidental or consequential provision for the purposes of, in consequence of, or for giving full effect to a provision of this Act.

(2) An order under subsection (1) may, in particular—

(a) amend or repeal any provision of an Act passed before, or in the same Session as, this Act;

(b) amend or revoke any provision of subordinate legislation made before the passing of this Act;

(3) In relation to provision which deals with matters with respect to which functions are exercisable by the Welsh Ministers—

(a) the power under subsection (1) is exercisable by the Secretary of State only with agreement of the Welsh Ministers, and

(b) the power under that subsection is also exercisable by the Welsh Ministers except that provision may not be made by virtue of subsection (2)(a).

(4) The amendments that may be made by virtue of subsection (2) are in addition to those made by or by virtue of any other provision of this Act.

(5) A statutory instrument containing an order under subsection (1) which makes provision by virtue of subsection (2)(a) may not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament.

(6) A statutory instrument containing any other order under subsection (1) made by the Secretary of State is subject to annulment in pursuance of a resolution of either House of Parliament.

(7) A statutory instrument containing an order under subsection (1) made by the Welsh Ministers is subject to annulment in pursuance of a resolution of the National Assembly for Wales.

(8) In subsection (2), “subordinate legislation” has the same meaning as in the Interpretation Act 1978 (c. 30).

Repeals and revocations

55

The enactments mentioned in Schedule 11 are repealed or revoked to the extent specified.

Commencement

56

(1) This Act (other than sections 51 to 53 (and Schedule 10), this section and sections 57 to 59) comes into force in accordance with provision made by the Secretary of State by order made by statutory instrument.

(2) In relation to provision which deals with matters with respect to which functions are exercisable by the Welsh Ministers, the power under subsection (1) is exercisable only with their agreement.

(3) Section 51 comes into force in accordance with provision made by the Lord Chancellor by order made by statutory instrument.

(4) An order under this section may—

(a) make different provision for different purposes (including different provision for different areas and different provision for different descriptions of patient);

(b) include transitional or saving provision.

(5) The provision which may be made by virtue of subsection (4)(b) includes provision modifying the application of a provision of this Act pending the commencement of a provision of another enactment.

(6) A statutory instrument containing an order under this section which makes provision by virtue of subsection (4)(b) (including provision within section 57) is subject to annulment in pursuance of a resolution of either House of Parliament.

Commencement of section 36

57

(1) An order under section 56 providing for the commencement of section 36 may, in particular, provide—

(a) for that section not to apply to or affect a patient who is subject to after-care under supervision immediately before that commencement, and

(b) for the patient to cease to be subject to after-care under supervision, and for his case to be dealt with, in accordance with provision made by the order.

(2) The order may require—

(a) a Primary Care Trust or Local Health Board to secure that the patient is examined by a registered medical practitioner of a description specified in the order;

(b) the registered medical practitioner to examine the patient with a view to making a decision about his case by reference to criteria specified in the order.

(3) The order may require the registered medical practitioner, having complied with provision made by virtue of subsection (2)(b)—

(a) to discharge the patient,

(b) to recommend that he be detained in hospital,

(d) to make a community treatment order in respect of him.

(4) The order may, in respect of a recommendation made by virtue of subsection (3)(b) or (c)—

(a) provide that the recommendation is to be made to a local social services authority determined in accordance with the order;

(b) provide that the recommendation is to be made in accordance with any other requirements specified in the order;

(c) require the local social services authority determined in accordance with paragraph (a), in response to the recommendation, to make arrangements for an approved mental health professional to consider the patient's case on their behalf.

(5) The order may provide that a registered medical practitioner shall not make a community treatment order in respect of a patient unless an approved mental health professional states in writing—

(a) that he agrees with the decision made by the practitioner about the patient's case, and

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

(6) An order requiring a registered medical practitioner to make a community treatment order in respect of a patient shall include provision about—

(a) the effect of the community treatment order (in particular, replacing after-care under supervision with a contingent requirement to attend, and be detained at, a hospital), and

(b) the effect of its revocation (including, in particular, provision for detention under section 3 of the 1983 Act).

(7) The order may modify a provision of the 1983 Act in its application in relation to a patient who is subject to after-care under supervision immediately before the commencement of section 36.

(8) Provision made by virtue of subsection (7) may, in particular—

(a) modify any of sections 25A to 25J of the 1983 Act in their application in relation to a patient for so long as he is, by virtue of subsection (1)(a), subject to after-care under supervision after the commencement of section 36;

(b) modify any of sections 17A to 17G, 20A and 20B of that Act (inserted by section 32 of this Act) in their application in relation to a patient in respect of whom a community treatment order is made by virtue of subsection (3)(d).

(9) A reference in this section to section 36 includes the amendments and repeals in Schedules 3 and 11 consequential on that section.

(10) An expression used in this section and in the 1983 Act has the same meaning in this section as it has in that Act.

Extent

58

(1) The provisions of this Act which amend other enactments have the same extent as the enactments which they amend.

(2) But subsection (1) is subject to—

(a) paragraph 35 of Schedule 3,

(b) paragraphs 3, 4 and 20 of Schedule 5, and

(3) Section 54 extends to the United Kingdom.

Short title

59

This Act may be cited as the Mental Health Act 2007.

SCHEDULE 1

Part 1 — Amendments to 1983 Act

1

The 1983 Act is amended as follows.

2

In section 3(2) (grounds for application for admission for treatment), in paragraph (a), for “mental illness, severe mental impairment, psychopathic disorder or mental impairment and his mental disorder is” substitute “ mental disorder ”.

3

In section 7(2) (grounds for guardianship application), in paragraph (a), omit the words “, being mental illness, severe mental impairment, psychopathic disorder or mental impairment and his mental disorder is”.

4

In section 20 (renewal of detention or guardianship)—

(a) in subsection (4)(a), for “mental illness, severe mental impairment, psychopathic disorder or mental impairment, and his mental disorder is” substitute “ mental disorder ”, and

(b) in subsection (7)(a), for “mental illness, severe mental impairment, psychopathic disorder or mental impairment and his mental disorder is” substitute “ mental disorder ”.

5

In section 35(3) (conditions for exercise of power to remand accused to hospital for report), in paragraph (a), for “mental illness, psychopathic disorder, severe mental impairment or mental impairment” substitute “ mental disorder ”.

6

In section 36(1) (conditions for exercise of power to remand accused to hospital for medical treatment), for the words from “he is suffering” to the end substitute—

(a) he is suffering from mental disorder of a nature or degree which makes it appropriate for him to be detained in a hospital for medical treatment;

7

In section 37 (power to order hospital admission or guardianship)—

(a) in subsection (2)(a), for “mental illness, psychopathic disorder, severe mental impairment or mental impairment” substitute “ mental disorder ”, and

(b) in subsection (3), omit the words “as being a person suffering from mental illness or severe mental impairment”.

8

In section 38(1) (conditions for exercise of power to make interim hospital order), in paragraph (a), for “mental illness, psychopathic disorder, severe mental impairment or mental impairment” substitute “ mental disorder ”.

9

In section 45A(2) (conditions for exercise of power to direct hospital admission), in paragraph (a), for “psychopathic disorder” substitute “ mental disorder ”.

10

In section 47(1) (power to make transfer direction), in paragraph (a), for “mental illness, psychopathic disorder, severe mental impairment or mental impairment” substitute “ mental disorder ”.

11

In section 48 (further power to make transfer direction)—

(a) in subsection (1), for the words from “that person is suffering” to “such treatment,” substitute—

(a) that person is suffering from mental disorder of a nature or degree which makes it appropriate for him to be detained in a hospital for medical treatment; and (b) he is in urgent need of such treatment;

, and

(b) in subsection (3), for “to (4)” substitute “ and (3) ”.

12

In section 51(6) (further power to make hospital order), in paragraph (a), for the words from “the detainee” to the end substitute—

(i) the detainee is suffering from mental disorder of a nature or degree which makes it appropriate for the patient to be detained in a hospital for medical treatment;

13

In section 66(2) (time limits for applications to tribunals), in paragraph (d), for “in the cases mentioned in paragraphs (d), (fb), (g)” substitute “ in the case mentioned in paragraph (g) ”.

14

In section 72 (powers of tribunals)—

(a) in subsection (1)(b)(i), for “mental illness, psychopathic disorder, severe mental impairment or mental impairment or from any of those forms of disorder” substitute “ mental disorder or from mental disorder ”,

(b) in subsection (4)(a), for “mental illness, psychopathic disorder, severe mental impairment or mental impairment” substitute “ mental disorder ”, and

15

(1) Section 86 (application of power to remove alien patients) is amended as follows.

(2) In subsection (1), for “mental illness” substitute “ mental disorder ”.

(3) After subsection (3) insert—

(4) In relation to a patient receiving treatment in a hospital within the meaning of the Mental Health (Northern Ireland) Order 1986, the reference in subsection (1) above to mental disorder shall be construed in accordance with that Order.

16

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

17

In section 145(1) (interpretation), for the definitions of “mental disorder”, “severe mental impairment”, “mental impairment” and “psychopathic disorder” substitute—

“mental disorder” has the meaning given in section 1 above (subject to sections 86(4) and 141(6B));

Part 2 — Amendments to other Acts

Juries Act 1974

18

(1) Part 1 of Schedule 1 to the Juries Act 1974 (c. 23) (mentally disordered persons) is amended as follows.

(2) In paragraph 1, for “mental illness, psychopathic disorder, mental handicap or severe mental handicap” substitute “ mental disorder within the meaning of the Mental Health Act 1983 ”.

(3) Omit paragraph 4(1).

Contempt of Court Act 1981

19

In section 14 of the Contempt of Court Act 1981 (c. 49) (proceedings in England and Wales), in subsection (4) and the first subsection (4A), for “mental illness or severe mental impairment” substitute “ mental disorder within the meaning of that Act ”.

Family Law Act 1996

20

(1) The Family Law Act 1996 (c. 27) is amended as follows.

(2) In section 48 (remand for medical examination and report), in subsection (4)—

(a) for “mental illness or severe mental impairment” substitute “ mental disorder within the meaning of the Mental Health Act 1983 ”,

(b) for “the Mental Health Act 1983” substitute “ that Act ”, and

(3) In section 51 (power of magistrates' court to order hospital admission or guardianship), in subsection (1), for “mental illness or severe mental impairment” substitute “ mental disorder within the meaning of that Act ”.

Housing Act 1996

21

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Care Standards Act 2000

22

In section 121 of the Care Standards Act 2000 (c. 14) (general interpretation), in subsection (1), for the definition of “mental disorder” substitute—

“mental disorder” has the same meaning as in the Mental Health Act 1983;

Mental Capacity Act 2005

23

(1) In Schedule 4 to the Mental Capacity Act 2005 (c. 9) (provisions applying to existing enduring powers of attorney), paragraph 23 is amended as follows.

(2) In sub-paragraph (1), omit the words “(within the meaning of the Mental Health Act)”.

(3) After sub-paragraph (1) insert—

(1A) In sub-paragraph (1), “mental disorder” has the same meaning as in the Mental Health Act but disregarding the amendments made to that Act by the Mental Health Act 2007.

National Health Service Act 2006

24

In section 275 of the National Health Service Act 2006 (c. 41) (interpretation), in the definition of “illness” in subsection (1), for “mental disorder within the meaning of the Mental Health Act 1983” substitute “ any disorder or disability of the mind ”.

National Health Service (Wales) Act 2006

25

In section 206 of the National Health Service (Wales) Act 2006 (c. 42) (interpretation), in the definition of “illness” in subsection (1), for “mental disorder within the meaning of the Mental Health Act 1983” substitute “ any disorder or disability of the mind ”.

Police and Justice Act 2006

26

In section 27 of the Police and Justice Act 2006 (c. 48) (anti-social behaviour injunctions: power of arrest and remand), in subsection (11)—

(a) for “mental illness or severe mental impairment” substitute “ mental disorder within the meaning of the Mental Health Act 1983 ”, and

(b) for “the Mental Health Act 1983 (c. 20)” substitute “ that Act ”.

SCHEDULE 2

1

The 1983 Act is amended as follows.

2

In the following provisions, for “approved social worker” substitute “ approved mental health professional ”

(a) section 4(2) (admission for assessment in cases of emergency), and

(b) section 8(1)(c) (effect of guardianship application).

3

(1) Section 10 (transfer of guardianship) is amended as follows.

(2) In subsection (3), for “approved social worker” substitute “ approved mental health professional acting on behalf of the local social services authority ”.

(3) After subsection (4) insert—

(5) In this section “the local social services authority”, in relation to a person (other than a local social services authority) who is the guardian of a patient, means the local social services authority for the area in which that person resides (or resided immediately before his death).

4

(1) Section 11 (general provisions as to applications) is amended as follows.

(2) In subsection (1), for “approved social worker” substitute “ approved mental health professional ”.

(3) In subsection (3), for “approved social worker, that social worker” substitute “ approved mental health professional, that professional ”.

(4) For subsection (4) substitute—

(4) An approved mental health professional may not make an application for admission for treatment or a guardianship application in respect of a patient in either of the following cases— (a) the nearest relative of the patient has notified that professional, or the local social services authority on whose behalf the professional is acting, that he objects to the application being made; or (b) that professional has not consulted the person (if any) appearing to be the nearest relative of the patient, but the requirement to consult that person does not apply if it appears to the professional that in the circumstances such consultation is not reasonably practicable or would involve unreasonable delay.

5

(1) Section 13 (the title to which becomes “Duty of approved mental health professionals to make applications for admission or guardianship”) is amended as follows.

(2) For subsection (1) substitute—

(1) If a local social services authority have reason to think that an application for admission to hospital or a guardianship application may need to be made in respect of a patient within their area, they shall make arrangements for an approved mental health professional to consider the patient's case on their behalf. (1A) If that professional is— (a) satisfied that such an application ought to be made in respect of the patient; and (b) of the opinion, having regard to any wishes expressed by relatives of the patient or any other relevant circumstances, that it is necessary or proper for the application to be made by him, he shall make the application. (1B) Subsection (1C) below applies where— (a) a local social services authority makes arrangements under subsection (1) above in respect of a patient; (b) an application for admission for assessment is made under subsection (1A) above in respect of the patient; (c) while the patient is liable to be detained in pursuance of that application, the authority have reason to think that an application for admission for treatment may need to be made in respect of the patient; and (d) the patient is not within the area of the authority. (1C) Where this subsection applies, subsection (1) above shall be construed as requiring the authority to make arrangements under that subsection in place of the authority mentioned there.

(3) In subsection (2), for “approved social worker” substitute “ approved mental health professional ”.

(4) For subsection (3) substitute—

(3) An application under subsection (1A) above may be made outside the area of the local social services authority on whose behalf the approved mental health professional is considering the patient's case.

(5) In subsection (4)—

(a) for the words from “direct” to “above” substitute “ make arrangements under subsection (1) above for an approved mental health professional to consider the patient's case ”, and

(b) for “that approved social worker” substitute “ that professional ”.

(6) In subsection (5)—

(a) for “approved social worker”, in each place, substitute “ approved mental health professional ”, and

(b) after “the power of” insert “ a local social services authority to make arrangements with an approved mental health professional to consider a patient's case or of ”.

6

In section 14 (social reports), for “a social worker” substitute “ an approved mental health professional ”.

7

In the following provisions, for “approved social worker” substitute “ approved mental health professional ”

(a) section 18(1) (return of patients absent without leave),

(b) section 21B(3)(b) (consultation before furnishing report),

(d) section 30(2) (application for variation of orders under section 29),

(e) section 40(1)(a) (power to convey patient),

(f) section 87(1) (power to take Northern Ireland patient into custody),

(g) section 88(3) (power to take England and Wales patient into custody), in the first place it occurs, and

(h) section 89(1) (power to take Channel Islands or Isle of Man patient into custody).

8

For section 115 substitute—

(115) (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.

9

In section 118(1)(a) (application of code of practice), for “approved social workers” substitute “ approved mental health professionals ”.

10

In the following provisions, for “approved social worker” substitute “ approved mental health professional ”

11

(1) Section 145 (interpretation) is amended as follows.

(2) In subsection (1), for the definition of “approved social worker” substitute—

“approved mental health professional” has the meaning given in section 114 above;

(3) After subsection (1AB) (inserted by section 4 of this Act) insert—

(1AC) References in this Act to an approved mental health professional shall be construed as references to an approved mental health professional acting on behalf of a local social services authority, unless the context otherwise requires.

SCHEDULE 3

1

The 1983 Act is amended as follows.

Application in respect of patient already in hospital

2

In section 5 (application in respect of patient already in hospital), in subsection (6) after “this Act”, in each place, insert “ or a community patient ”.

Return of patients absent without leave

3

(1) Section 18 (return and readmission of patients absent without leave) is amended as follows.

(2) After subsection (2) insert—

(2A) Where a community patient is at any time absent from a hospital to which he is recalled under section 17E above, he may, subject to the provisions of this section, be taken into custody and returned to the hospital by any approved mental health professional, by any officer on the staff of the hospital, by any constable, or by any person authorised in writing by the responsible clinician or the managers of the hospital.

(3) In subsection (4)—

(a) in paragraph (b), after “guardianship” insert “ or, in the case of a community patient, the community treatment order is in force ”, and

(b) omit the words from “and, in determining” to the end.

(4) After subsection (4) insert—

(4A) In determining for the purposes of subsection (4)(b) above or any other provision of this Act whether a person who is or has been absent without leave is at any time liable to be detained or subject to guardianship, a report furnished under section 20 or 21B below before the first day of his absence without leave shall not be taken to have renewed the authority for his detention or guardianship unless the period of renewal began before that day. (4B) Similarly, in determining for those purposes whether a community treatment order is at any time in force in respect of a person who is or has been absent without leave, a report furnished under section 20A or 21B below before the first day of his absence without leave shall not be taken to have extended the community treatment period unless the extension began before that day.

(5) After subsection (6) insert—

(7) In relation to a patient who has yet to comply with a requirement imposed by virtue of this Act to be in a hospital or place, references in this Act to his liability to be returned to the hospital or place shall include his liability to be taken to that hospital or place; and related expressions shall be construed accordingly.

Assignment of responsibility for community patients

4

After section 19 insert—

(19A) (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.

Renewal of authority to detain patients

5

In section 20 (duration of authority)—

(a) in subsection (2), after “discharged” insert “ under section 23 below ”, and

(b) in subsections (3) and (6), after “discharge the patient” insert “ under section 23 below ”.

Special provisions as to patients absent without leave

6

(1) Section 21 (special provisions as to patients absent without leave) is amended as follows.

(2) In subsection (1)—

(a) in paragraph (a), after “Act” insert “ or, in the case of a community patient, the community treatment order would cease to be in force ”, and

(b) after “liable or subject” insert “ , or the order shall not cease to be in force, ”.

(3) After subsection (3) (inserted by section 37 of this Act) insert—

(4) Where a community patient is absent without leave on the day on which (apart from this section) the 72-hour period mentioned in section 17F above would expire, that period shall not expire until the end of the period of 72 hours beginning with the time when— (a) the patient is taken into custody under section 18 above and returned to the hospital where he ought to be; or (b) the patient returns himself to the hospital where he ought to be within the period during which he can be taken into custody under section 18 above. (5) Any reference in this section, or in sections 21A to 22 below, to the time when a community treatment order would cease, or would have ceased, to be in force shall be construed as a reference to the time when it would cease, or would have ceased, to be in force by reason only of the passage of time.

7

In section 21A (patients who are taken into custody or return within 28 days), after subsection (3) insert—

(4) In the case of a community patient, where the period for which the community treatment order is in force is extended by section 21 above, any examination and report to be made and furnished in respect of the patient under section 20A(4) above may be made and furnished within the period as so extended. (5) Where the community treatment period is extended by virtue of subsection (4) above after the day on which (apart from section 21 above) the order would have ceased to be in force, the extension shall take effect as from that day.

8

(1) Section 21B (patients who are taken into custody or return after more than 28 days) is amended as follows.

(2) In subsection (2), after “ought to be” insert “ (his “return day”) ”.

(3) In subsection (3), after “detained” insert “ or is a community patient ”.

(4) For subsection (4) substitute—

(4) Where— (a) the patient would (apart from any renewal of the authority for his detention or guardianship on or after his return day) be liable to be detained or subject to guardianship after the end of the period of one week beginning with that day; or (b) in the case of a community patient, the community treatment order would (apart from any extension of the community treatment period on or after that day) be in force after the end of that period, he shall cease to be so liable or subject, or the community treatment period shall be deemed to expire, at the end of that period unless a report is duly furnished in respect of him under subsection (2) above.

(5) After subsection (4) insert—

(4A) If, in the case of a community patient, the community treatment order is revoked under section 17F above during the period of one week beginning with his return day— (a) subsections (2) and (4) above shall not apply; and (b) any report already furnished in respect of him under subsection (2) above shall be of no effect.

(6) After subsection (6) insert—

(6A) In the case of a community patient, where the community treatment order would (apart from section 21 above) have ceased to be in force on or before the day on which a report is duly furnished in respect of him under subsection (2) above, the report shall extend the community treatment period for the period prescribed in that case by section 20A(3) above. (6B) Where the community treatment period is extended by virtue of subsection (6A) above— (a) the extension shall take effect as from the day on which (apart from section 21 above and that subsection) the order would have ceased to be in force; and (b) if (apart from this paragraph) the period as so extended would expire on or before the day on which the report is furnished, the report shall further extend that period, as from the day on which it would expire, for the period prescribed in that case by section 20A(3) above.

(7) After subsection (7) insert—

(7A) In the case of a community patient, where the community treatment order would (taking account of any extension under subsection (6A) above) cease to be in force within the period of two months beginning with the day on which a report is duly furnished in respect of him under subsection (2) above, the report shall, if it so provides, have effect also as a report duly furnished under section 20A(4) above.

(8) In subsection (10)—

(a) for the definition of “the appropriate body” substitute—

“the appropriate body” means— (a) in relation to a patient who is liable to be detained in a hospital, the managers of the hospital; (b) in relation to a patient who is subject to guardianship, the responsible local social services authority; (c) in relation to a community patient, the managers of the responsible hospital; and

, and

(b) for the definition of “the relevant conditions” substitute—

“the relevant conditions” means— (a) in relation to a patient who is liable to be detained in a hospital, the conditions set out in subsection (4) of section 20 above; (b) in relation to a patient who is subject to guardianship, the conditions set out in subsection (7) of that section; (c) in relation to a community patient, the conditions set out in section 20A(6) above.

Patients sentenced to imprisonment etc

9

For section 22 substitute—

(22) (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.

Discharge

10

(1) Section 23 (discharge of patients) is amended as follows.

(2) In subsection (1) for the words from “from detention” to the end substitute “ absolutely from detention or guardianship is made in accordance with this section ”.

(3) After subsection (1) insert—

(1A) Subject to the provisions of this section and section 25 below, a community patient shall cease to be liable to recall under this Part of this Act, and the application for admission for treatment cease to have effect, if an order in writing discharging him from such liability is made in accordance with this section. (1B) An order under subsection (1) or (1A) above shall be referred to in this Act as “an order for discharge”.

(4) In subsection (2), after paragraph (b) insert—

(c) where the patient is a community patient, by the responsible clinician, by the managers of the responsible hospital or by the nearest relative of the patient.

(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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

11

(1) Section 24 (visiting and examination of patients) is amended as follows.

(2) In subsection (1), after “this Act” insert “ , or who is a community patient, ”.

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

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

12

(1) Section 25 (restrictions on discharge by nearest relative) is amended as follows.

(2) In subsection (1), after “shall not be made” insert “ under section 23 above ”.

(3) After that subsection insert—

(1A) Subsection (1) above shall apply to an order for the discharge of a community patient as it applies to an order for the discharge of a patient who is liable to be detained in a hospital, but with the reference to the managers of the hospital being read as a reference to the managers of the responsible hospital.

(4) In subsection (2), after “treatment” insert “ , or in respect of a community patient, ”.

Orders appointing acting nearest relative

13

In section 29 (appointment by court of acting nearest relative), in subsection (3)(d) omit the words “from hospital or guardianship”.

14

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

(2) In subsection (4), for paragraphs (a) and (b) substitute—

(a) if— (i) on the date of the order the patient was liable to be detained or subject to guardianship by virtue of a relevant application, order or direction; or (ii) he becomes so liable or subject within the period of three months beginning with that date; or (iii) he was a community patient on the date of the order, it shall cease to have effect when he is discharged under section 23 above or 72 below or the relevant application, order or direction otherwise ceases to have effect (except as a result of his being transferred in pursuance of regulations under section 19 above); (b) otherwise, it shall cease to have effect at the end of the period of three months beginning with the date of the order.

(3) After subsection (4) insert—

(4A) In subsection (4) above, reference to a relevant application, order or direction is to any of the following— (a) an application for admission for treatment; (b) a guardianship application; (c) an order or direction under Part 3 of this Act (other than under section 35, 36 or 38).

Regulations for purposes of Part 2

15

In section 32 (regulations for purposes of Part 2), in subsection (2)(c) after “this Part of this Act” insert “ or community patients ”.

Wards of court

16

(1) Section 33 (special provisions as to wards of court) is amended as follows.

(2) In subsection (2), after “admission under this Part of this Act” insert “ or is a community patient ”.

(3) For subsection (4) substitute—

(4) Where a community treatment order has been made in respect of a minor who is a ward of court, the provisions of this Part of this Act relating to community treatment orders and community patients have effect in relation to the minor subject to any order which the court makes in the exercise of its wardship jurisdiction; but this does not apply as regards any period when the minor is recalled to hospital under section 17E above.

Restricted patients

17

In section 41 (power of higher courts to restrict discharge from hospital), in subsection (3)(aa) for “after-care under supervision” substitute “ community treatment orders and community patients ”.

Applications and references to Mental Health Review Tribunal

18

(1) Section 66 (applications to tribunals) is amended as follows.

(2) In subsection (1)—

(a) after paragraph (c) insert—

(ca) a community treatment order is made in respect of a patient; or (cb) a community treatment order is revoked under section 17F above in respect of a patient; or

(b) in paragraph (f), after “discharged” insert “ under section 23 above ”,

(fza) a report is furnished under section 20A above in respect of a patient and the patient is not discharged under section 23 above; or

(d) after paragraph (fa) insert—

(faa) a report is furnished under subsection (2) of section 21B above in respect of a community patient and subsection (6A) of that section applies (or subsections (6A) and (6B)(b) of that section apply) in the case of the report; or

(e) in paragraph (g), after “treatment” insert “ or a community patient ”, and

(f) in paragraph (h), after “this Act” insert “ or who is a community patient ”.

(3) In subsection (2)—

(a) after paragraph (c) insert—

(ca) in the case mentioned in paragraph (ca) of that subsection, six months beginning with the day on which the community treatment order is made; (cb) in the case mentioned in paragraph (cb) of that subsection, six months beginning with the day on which the community treatment order is revoked;

, and

(b) after paragraph (f) insert—

(fza) in the cases mentioned in paragraphs (fza) and (faa) of that subsection, the period or periods for which the community treatment period is extended by virtue of the report;

(4) After subsection (2) insert—

(2A) Nothing in subsection (1)(b) above entitles a community patient to make an application by virtue of that provision even if he is admitted to a hospital on being recalled there under section 17E above.

19

In section 67 (references to tribunals by Secretary of State concerning Part 2 patients), in subsection (1), at the end insert “ or of any community patient ”.

20

In section 69 (applications to tribunals concerning patients subject to hospital and guardianship orders)—

(a) in subsection (1), for paragraph (a) substitute—

(a) in respect of a patient liable to be detained in pursuance of a hospital order or a community patient who was so liable immediately before he became a community patient, by the nearest relative of the patient in any period in which an application may be made by the patient under any such provision as so applied;

(b) in subsection (2)(b), omit the words “45B(2), 46(3),”, and

(3) The provisions of section 66 above as applied by section 40(4) above are subject to subsection (4) below. (4) If the initial detention period has not elapsed when the relevant application period begins, the right of a hospital order patient to make an application by virtue of paragraph (ca) or (cb) of section 66(1) above shall be exercisable only during whatever remains of the relevant application period after the initial detention period has elapsed. (5) In subsection (4) above— (a) “hospital order patient” means a patient who is subject to a hospital order, excluding a patient of a kind mentioned in paragraph (a) or (b) of subsection (2) above; (b) “the initial detention period”, in relation to a hospital order patient, means the period of six months beginning with the date of the hospital order; and (c) “the relevant application period” means the relevant period mentioned in paragraph (ca) or (cb), as the case may be, of section 66(2) above.

21

(1) Section 72 (powers of tribunals) is amended as follows.

(2) In subsection (1)—

(a) after “this Act” insert “ or is a community patient ”, and

(b) after paragraph (b) insert—

(c) the tribunal shall direct the discharge of a community patient if they are not satisfied— (i) that he is then suffering from mental disorder or mental disorder of a nature or degree which makes it appropriate for him to receive medical treatment; or (ii) that it is necessary for his health or safety or for the protection of other persons that he should receive such treatment; or (iii) that it is necessary that the responsible clinician should be able to exercise the power under section 17E(1) above to recall the patient to hospital; or (iv) that appropriate medical treatment is available for him; or (v) in the case of an application by virtue of paragraph (g) of section 66(1) above, that the patient, if discharged, would be likely to act in a manner dangerous to other persons or to himself.

(3) After subsection (1) insert—

(1A) In determining whether the criterion in subsection (1)(c)(iii) above is met, the tribunal shall, in particular, consider, having regard to the patient's history of mental disorder and any other relevant factors, what risk there would be of a deterioration of the patient's condition if he were to continue not to be detained in a hospital (as a result, for example, of his refusing or neglecting to receive the medical treatment he requires for his mental disorder).

(4) For subsection (3A) substitute—

(3A) Subsection (1) above does not require a tribunal to direct the discharge of a patient just because they think it might be appropriate for the patient to be discharged (subject to the possibility of recall) under a community treatment order; and a tribunal— (a) may recommend that the responsible clinician consider whether to make a community treatment order; and (b) may (but need not) further consider the patient's case if the responsible clinician does not make an order.

22

In section 76 (visiting and examination of patients), in subsection (1), after “this Act” insert “ or a community patient, ”.

23

In section 77 (general provisions concerning tribunal applications), in subsection (3) for the words from “to the tribunal” to the end substitute—

(a) in the case of a patient who is liable to be detained in a hospital, to the tribunal for the area in which that hospital is situated; (b) in the case of a community patient, to the tribunal for the area in which the responsible hospital is situated; (c) in the case of a patient subject to guardianship, to the tribunal for the area in which the patient is residing.

After-care services

24

In section 117 (after-care), in subsection (2) for the words from “patient who is subject” to the end substitute “ community patient while he remains such a patient. ”

Code of practice

25

In section 118 (code of practice), in subsection (1)(a) for “after-care under supervision” substitute “ community patients ”.

General protection of detained patients

26

(1) Section 120 (general protection of detained patients) is amended as follows.

(2) In subsection (1)—

(a) after “liable to be detained under this Act” insert “ or to community patients ”,

(b) in paragraph (a) after “registered establishments” insert “ and community patients in hospitals and establishments of any description and (if access is granted) other places ”, and

(i) in sub-paragraph (i), after “this Act in” insert “ , or recalled under section 17E above to, ”, and

(ii) in sub-paragraph (ii), after “detained” insert “ or is or has been a community patient ”.

(3) In subsection (4)—

Reading this document does not replace reading the official text published on legislation.gov.uk. Contains public sector information licensed under the Open Government Licence v3.0. We assume no responsibility for any inaccuracies arising from the conversion of the original CLML XML to this format.

This text is published under legislation.gov.uk's own terms of reuse, not a Legalize or public-domain licence. legislation.gov.uk
Open Government Licence v3.0 (attribution required)
© Crown and database right. Derived from content available under the Open Government Licence v3.0 from legislation.gov.uk.