Be it enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:—
Amendments to Mental Health Act 1983
Mental disorder
Section 1(2) of the 1983 Act (key definitions) is amended as set out in subsections (2) and (3).
For the definitions of “mental disorder” and “mentally disordered” substitute—.
The following definitions are omitted—
those of “severe mental impairment” and “severely mentally impaired”,
those of “mental impairment” and “mentally impaired”, and
that of “psychopathic disorder”.
Schedule 1 (which contains further amendments to the 1983 Act and amendments to other Acts) has effect.
Section 1 of the 1983 Act (application of Act) is amended as follows.
After subsection (2) insert—
After subsection (3) insert—
In section 1 of the 1983 Act (application of Act), for subsection (3) substitute—
Tests for detention etc
The 1983 Act is amended as follows.
In section 3 (admission for treatment)—
in subsection (2), omit paragraph (b) (and the word “and” at the end of that paragraph),
in that subsection, after paragraph (c) insert, and
in subsection (3)(a), for “(b)” substitute “ (d) ”.
In that section, after subsection (3) insert—
In section 20 (renewal of authority to detain), in subsection (4)—
omit paragraph (b) (and the word “and” at the end of that paragraph),
after paragraph (c) insert, and
omit the words from “but, in the case of mental illness” to the end.
In section 37(2) (conditions for exercise of powers of court to order hospital admission or guardianship), in paragraph (a)(i), for the words from “, in the case of psychopathic disorder” to the end substitute “ appropriate medical treatment is available for him; or ”.
In section 45A(2) (conditions for exercise of powers of court to direct hospital admission), for paragraph (c) substitute—
In section 47(1) (conditions for exercise of Secretary of State's powers to direct removal to hospital), in paragraph (b), for the words from “and, in the case of psychopathic disorder” to the end substitute.
In section 72—
in subsection (1)(b) (powers of tribunal to direct discharge of patient not liable to be detained under section 2), after sub-paragraph (ii) insert—, and
omit subsection (2).
In section 73(1) (powers of tribunal to direct discharge of restricted patients), in paragraph (a), for “or (ii)” substitute “ , (ii) or (iia) ”.
In section 145 (interpretation), after subsection (1AA) insert—
The 1983 Act is amended as follows.
In section 48(1) (removal to hospital of immigration detainees etc) after paragraph (b) (inserted by Schedule 1 to this Act) insert.
In section 51(6)(a) (further power to make hospital order) after sub-paragraph (i) (inserted by Schedule 1 to this Act) insert.
Medical treatment
Part 4 of the 1983 Act (consent to treatment) is amended as follows.
In the following provisions, for the words from “, having regard to” to the end substitute “ it is appropriate for the treatment to be given. ”
section 57(2)(b) (certification of second opinion where treatment requires consent and a second opinion), and
section 58(3)(b) (certification of second opinion where treatment requires consent or a second opinion).
In section 64 (supplementary provisions for Part 4), after subsection (2) insert—
Section 145 of the 1983 Act is amended as follows.
In subsection (1), in the definition of “medical treatment”, for the words from “and also” to the end substitute “ psychological intervention and specialist mental health habilitation, rehabilitation and care (but see also subsection (4) below); ”.
After subsection (3) insert—
Fundamental principles
After section 118(2) of the 1983 Act (code of practice) insert—
Approved clinicians and responsible clinicians
Part 2 of the 1983 Act (compulsory admission to hospital and guardianship) is amended as follows.
In section 5 (application in respect of patient already in hospital)—
in subsection (2), after “registered medical practitioner” insert “ or approved clinician ”,
for subsection (3) substitute—, and
in subsection (4), after “a practitioner”, in each place, insert “ or clinician ”.
In section 17 (leave of absence)—
in subsection (1)—
for “responsible medical officer” substitute “ responsible clinician ”, and
for “that officer” substitute “ that clinician ”,
in subsection (3), for “responsible medical officer” substitute “ responsible clinician ”, and
in subsection (4)—
for “responsible medical officer” substitute “ responsible clinician ”, and
for “that officer” substitute “ that clinician ”.
In section 20 (duration of authority)—
in subsections (3) and (5), for “responsible medical officer” substitute “ responsible clinician ”,
after subsection (5) insert—,
in subsection (6), for “appropriate medical officer” substitute “ appropriate practitioner ”, and
omit subsection (10).
In section 21B (patients who are taken into custody or return after more than 28 days)—
in subsections (2) and (3), for “appropriate medical officer” substitute “ appropriate practitioner ”, and
in subsection (10), omit the definition of “appropriate medical officer”.
In section 23(2) (persons who may apply for discharge of patient), in paragraphs (a) and (b), for “responsible medical officer” substitute “ responsible clinician ”.
In section 24 (visiting and examination of patients), in each place, after “registered medical practitioner” insert “ or approved clinician ”.
In section 25(1) (restrictions on discharge by nearest relative)—
for “responsible medical officer” substitute “ responsible clinician ”, and
for “that officer” substitute “ that clinician ”.
In section 34 (interpretation of Part 2 of the 1983 Act), in subsection (1), insert the following definition at the appropriate place—.
In that subsection, for the definition of “the responsible medical officer” substitute—.
Part 3 of the 1983 Act (patients concerned in criminal proceedings) is amended as follows.
In section 35 (remand to hospital for report)—
in subsections (4) and (5), for “registered medical practitioner” substitute “ approved clinician ”, and
in subsection (8), after “registered medical practitioner” insert “ or approved clinician ”.
In section 36 (remand to hospital for treatment)—
in subsection (3), for “registered medical practitioner who would be in charge of his treatment” substitute “ approved clinician who would have overall responsibility for his case ”,
in subsection (4), for “responsible medical officer” substitute “ responsible clinician ”, and
in subsection (7), after “registered medical practitioner” insert “ or approved clinician ”.
In section 37 (hospital and guardianship orders), in subsection (4), for “registered medical practitioner who would be in charge of his treatment” substitute “ approved clinician who would have overall responsibility for his case ”.
In section 38 (interim hospital orders)—
in subsection (4), for “registered medical practitioner who would be in charge of his treatment” substitute “ approved clinician who would have overall responsibility for his case ”, and
in subsection (5), for “responsible medical officer”, in each place, substitute “ responsible clinician ”.
In section 41 (power of courts to restrict discharge from hospital), in subsections (3)(c) and (6), for “responsible medical officer” substitute “ responsible clinician ”.
In section 44(2) (person who is to give evidence in connection with committal to hospital), for “registered medical practitioner who would be in charge of the offender's treatment” substitute “ approved clinician who would have overall responsibility for the offender's case ”.
In section 45A(5) (person who is to give evidence in connection with hospital or limitation direction), for “registered medical practitioner who would be in charge of his treatment” substitute “ approved clinician who would have overall responsibility for his case ”.
In the following provisions, for “responsible medical officer” substitute “ responsible clinician ”
section 45B(3) (requirement to produce report on person subject to hospital and limitation directions), and
section 49(3) (requirement to produce report on person subject to restriction direction).
Part 3 of the 1983 Act (patients concerned in criminal proceedings) is further amended as follows.
In section 50(1) (powers of Secretary of State in respect of prisoners under sentence)—
for “responsible medical officer” substitute “ responsible clinician ”, and
for “registered medical practitioner” substitute “ approved clinician ”.
In section 51 (further provisions as to detained persons)—
in subsection (3)—
for “responsible medical officer” substitute “ responsible clinician ”, and
for “registered medical practitioner” substitute “ approved clinician ”, and
in subsection (4), for “responsible medical officer” substitute “ responsible clinician ”.
In section 52 (further provisions as to persons remanded by magistrates' courts), in subsections (5) and (7), for “responsible medical officer” substitute “ responsible clinician ”.
In section 53(2) (powers of Secretary of State in respect of civil prisoners and persons detained under the Immigration Acts)—
for “responsible medical officer” substitute “ responsible clinician ”, and
for “registered medical practitioner” substitute “ approved clinician ”.
In section 54 (requirements as to medical evidence), for subsection (2) substitute—
In section 55 (interpretation of Part 3), for the definition of “responsible medical officer” in subsection (1) substitute—
In Part 2 of Schedule 1 (modifications in relation to patients subject to special restrictions), in paragraph 3—
in paragraph (b), for “ “the responsible medical officer” and after the words “that officer”” substitute “ “the responsible clinician” and after the words “that clinician””, and
in paragraph (c), for “ “by the responsible medical officer”” substitute “by the responsible clinician”.
Part 4 of the 1983 Act (consent to treatment) is amended as follows.
In section 57 (requirements as to certification for treatment requiring consent and a second opinion)—
in subsection (2)(a), for “responsible medical officer” substitute “ responsible clinician (if there is one) or the person in charge of the treatment in question ”, and
in subsection (3), for the words from “, and of those persons” to the end substitute
In section 58 (requirements as to certification for treatment requiring consent or a second opinion)—
in subsection (3)—
in paragraph (a), for “responsible medical officer” substitute “ approved clinician in charge of it ”, and
in paragraph (b), for “responsible medical officer” substitute “ responsible clinician or the approved clinician in charge of the treatment in question ”, and
in subsection (4), for the words from “, and of those persons” to the end substitute
In section 61 (review of treatment)—
in subsection (1)—
for “by the responsible medical officer” substitute “ by the approved clinician in charge of the treatment ”, and
in paragraph (a), for “responsible medical officer” substitute “ responsible clinician ”,
in subsection (2)(b), for “responsible medical officer” substitute “ responsible clinician ”,
in subsection (3), omit the words “to the responsible medical officer”, and
after that subsection insert—
In section 62(2) (exception to discontinuance of treatment), for “responsible medical officer” substitute “ approved clinician in charge of the treatment ”.
In section 63 (treatment not requiring consent), for “responsible medical officer” substitute “ approved clinician in charge of the treatment ”.
In section 64 (supplementary provisions for Part 4)—
in subsection (1), for the words from “ “the responsible” to “treatment” substitute “the responsible clinician” means the approved clinician with overall responsibility for the case ”, and
after that subsection insert—
Part 5 of the 1983 Act (Mental Health Review Tribunals) is amended as follows.
In the following provisions, after “registered medical practitioner” insert “ or approved clinician ”
section 67(2) (power to visit and examine patient for the purposes of a tribunal reference), and
section 76(1) (power to visit and examine patient for the purposes of a tribunal application).
In section 79 (interpretation of Part 5), in subsection (6), for “, and “the responsible medical officer” means the responsible medical officer,” substitute “ , and “the responsible clinician” means the responsible clinician, ”.
The 1983 Act is amended as follows.
In section 118 (code of practice), in subsection (1)(a), after “registered medical practitioners” insert “ , approved clinicians ”.
In the following provisions, after “registered medical practitioner” insert “ or approved clinician ”
section 120(4)(a) (right of person authorised by Secretary of State etc to visit patients), and
section 121(5)(a) (right of person authorised by Mental Health Act Commission to visit patients).
In section 134 (correspondence of patients), in subsection (1), for “registered medical practitioner in charge of the treatment of the patient” substitute “ approved clinician with overall responsibility for the patient's case ”.
In section 145 (general interpretation), in subsection (1), insert the following definition at the appropriate place—.
In section 116B(5) of the Army Act 1955 (3 & 4 Eliz. 2 c. 18) (provision for person subject to hospital order and restriction order to be remitted for trial, etc)—
for “the responsible medical officer” substitute“ the responsible clinician ”, and
for the words from “In this subsection” to the end substitute—“ In this subsection “responsible clinician” means the responsible clinician within the meaning of Part 3 of the 1983 Act. ”
In section 116B(5) of the Air Force Act 1955 (3 & 4 Eliz. 2 c. 19) (provision for person subject to hospital order and restriction order to be remitted for trial, etc)—
for “the responsible medical officer” substitute“ the responsible clinician ”, and
for the words from “In this subsection” to the end substitute—“ In this subsection “responsible clinician” means the responsible clinician within the meaning of Part 3 of the 1983 Act. ”
In section 63B(5) of the Naval Discipline Act 1957 (c. 53) (provision for person subject to hospital order and restriction order to be remitted for trial, etc)—
for “the responsible medical officer” substitute“ the responsible clinician ”, and
for the words from “In this subsection” to the end substitute—“ In this subsection “responsible clinician” means the responsible clinician within the meaning of Part 3 of the 1983 Act. ”
In section 5A(4) of the Criminal Procedure (Insanity) Act 1964 (c. 84) (provision for person subject to hospital order and restriction order to be remitted for trial, etc), for “the responsible medical officer” substitute “ the responsible clinician ”.
In section 171 of the Armed Forces Act 2006 (c. 52) (remission for trial)—
in subsection (1), for “the responsible medical officer” substitute “ the responsible clinician ”, and
in subsection (4) for the definition of “the responsible medical officer” substitute—
On the commencement of the repeal of an enactment mentioned in subsection (1), (2) or (3) by the Armed Forces Act 2006, that subsection shall also cease to have effect.
In section 12 of the 1983 Act (general provisions as to medical recommendations), after subsection (2) insert—
After section 142 of the 1983 Act, insert—
Approved mental health professionals
For section 114 of the 1983 Act (appointment of approved social workers) and the cross-heading immediately above it substitute—
After section 114 of the 1983 Act insert—
In section 62 of the Care Standards Act 2000 (c. 14) (codes of practice), after subsection (1) insert—
Conflicts of interest in professional roles
The 1983 Act is amended as follows.
In section 11 (general provisions as to applications), after subsection (1) insert—
In section 12 (general provisions as to medical recommendations), in subsection (1), after “this Part of this Act” insert “ or a guardianship application ”.
In that section, for subsections (3) to (7) substitute—
After that section insert—
Patient's nearest relative
Section 29 of the 1983 Act (appointment by court of acting nearest relative) is amended as follows.
In subsection (1), for the words from “the applicant” to the end substitute “ the person specified in the order ”.
After subsection (1) insert—
In subsection (2)—
after “on the application of—” insert—, and
omit the words from “but in relation to” to the end.
In subsection (3)—
in paragraph (c) omit the word “or” at the end of the paragraph, and
after paragraph (d) insert
In subsection (5), for “(3)(a) or (b)” substitute “ (3)(a), (b) or (e) ”.
In subsection (1)—
in paragraph (a), after “in any case, by” insert “ the patient or ”, and
in paragraph (b), for “or paragraph (b)” substitute “ , (b) or (e) ”.
After that subsection insert—
In subsection (2)—
after “or on the application of” insert “ the patient or of ”, and
for the words from “for the first-mentioned person” to the end substitute “ another person for the person having those functions ”.
After that subsection insert—
In subsection (4), for the words from “An order under” to “period is specified” substitute “ An order made on the ground specified in paragraph (c) or (d) of section 29(3) above shall, unless previously discharged under subsection (1) above, cease to have effect as follows ”.
After subsection (4A) (inserted by Schedule 3 to this Act) insert—
In section 66 of the 1983 Act (applications to tribunal), in subsection (1)(h) after “section 29 above” insert “ on the ground specified in paragraph (c) or (d) of subsection (3) of that section ”.
Section 26 of the 1983 Act (definition of “relative” and “nearest relative”) is amended as set out in subsections (2) to (5).
In subsection (1)(a), after “wife” insert “ or civil partner ”.
In subsection (5)—
in paragraph (b) after “wife” insert “ or civil partner ”, and
in paragraph (c) after “wife,” insert “ civil partner, ”.
In subsection (6)—
for “and “wife” include a person who is living with the patient as the patient's husband or wife” substitute “ “ , “wife”and “civil partner” include a person who is living with the patient as the patient's husband or wife or as if they were civil partners”, and
for “unless the husband or wife” substitute “ or a patient in a civil partnership unless the husband, wife or civil partner ”.
In subsection (7)(b), for “unless the husband or wife” substitute “ or a patient in a civil partnership unless the husband, wife or civil partner ”.
In section 27 of the 1983 Act (children and young persons in care), after “wife” insert “ or civil partner ”.
Consent to treatment
After section 58 of the 1983 Act insert—
Part 4 of the 1983 Act (consent to treatment) is amended as follows.
In section 58 (treatment requiring consent or a second opinion)—
in subsection (1)(b), after “section 57 above” insert “ or section 58A(1)(b) below ”, and
in subsection (3)(b), before “has not consented to it” insert “ being so capable ”.
In section 59 (plans of treatment), for “or 58” substitute “ , 58 or 58A ”.
In section 60 (withdrawal of consent), for “or 58”, substitute “ , 58 or 58A ”.
In section 61 (review of treatment)—
in subsection (1), for “or 58(3)(b)” substitute “ , 58(3)(b) or 58A(4) or (5) ”, and
in subsection (3)—
for “or 58(3)(b)” substitute “ , 58(3)(b) or 58A(4) or (5) ”, and
for “and 58” substitute “ , 58 and 58A ”.
In section 62 (urgent treatment), after subsection (1) insert—
In that section, in subsection (2), for “or 58” substitute “ , 58 or 58A ”.
In section 64 (supplementary provisions), after subsection (1A) (inserted by section 12 of this Act) insert—
In section 28 of the Mental Capacity Act 2005 (c. 9) (Mental Health Act matters), after subsection (1) insert—.
Section 60 of the 1983 Act (withdrawal of consent) is amended as follows.
After subsection (1) insert—
In subsection (2), for “subsection (1)” substitute “ subsections (1) to (1D) ”.
Advocacy
Part 10 of the 1983 Act (miscellaneous and supplementary) is amended as follows.
Before section 131 insert—
In section 134 (patients' correspondence), in subsection (3A), for paragraph (b) substitute—
Accommodation, etc.
The 1983 Act is amended as follows.
In section 39 (power of court to request information about hospitals), after subsection (1) insert—
After section 131 insert—
In section 140 (the title to which becomes “Notification of hospitals having arrangements for special cases”), for the words from “for the reception” to the end substitute
The 1983 Act is amended as follows.
After section 17 insert—
After section 20 (the cross-heading immediately above which becomes “Duration of authority and discharge”) insert—
Schedules 3 and 4 (which contain further amendments) have effect.
The 1983 Act is amended as follows.
In section 17 (leave of absence from hospital), after subsection (2) insert—
In Part 2 of Schedule 1 (patients subject to special restrictions), in paragraph 3 after paragraph (a) insert—.
Part 4 of the 1983 Act (consent to treatment) is amended as follows.
For section 56 substitute—
In section 61 (review of treatment), in subsection (1)—
before “a report on” insert “ , or by virtue of section 62A below in accordance with a Part 4A certificate (within the meaning of that section), ”, and
in paragraph (a) for “or 21B(2) above renewing the authority for the detention” substitute “ , 20A(4) or 21B(2) above in respect ”.
After section 62 insert—
After Part 4 of the 1983 Act, insert the following Part—
In section 119 of the 1983 Act (practitioners approved for Part 4 and section 118)—
in subsection (2)—
after “those provisions” insert “ or under Part 4A of this Act ”,
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
in paragraph (b), for “in that home” substitute “ there ”, and
after subsection (2) insert—
In section 121 of the 1983 Act (Mental Health Act Commission), in subsection (2)(b) after “61” insert “ , 64H(5) ”.
The Mental Capacity Act 2005 (c. 9) is amended as follows.
In section 28 (Mental Health Act matters), after subsection (1A) (inserted by section 28 of this Act) insert—
In section 37 (independent mental capacity advocates: provision of serious medical treatment by NHS body), in subsection (2) after “Part 4” insert “ or 4A ”.
The 1983 Act is amended as follows.
Sections 25A to 25J (after-care under supervision) are omitted.
In section 66 (applications to tribunals), in subsection (2)(c), for “cases mentioned in paragraphs (c) and (ga)” substitute “ case mentioned in paragraph (c) ”.
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 ”.
The 1983 Act is amended as follows.
In section 21 (special provision as to patients absent without leave), after subsection (2) insert—
For section 68 substitute—
In section 71 (references by Secretary of State concerning restricted patients), after subsection (3) insert—
In section 143 (general provisions as to regulations, orders and rules)—
in subsection (2)—
after “order made” insert “ by the Secretary of State ”, and
after “54A” insert “ or 68A(7) ”, and
in subsection (3)—
after “made” insert “ by the Secretary of State ”, and
for “68(4)” substitute “ 68A(1) ”.
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)—
in paragraph 2—
for “and 66” substitute “ , 66 and 68 ”, and
for “to 9” substitute “ to 10 ”, and
after paragraph 9 insert—
The 1983 Act is amended as follows.
In section 65 (Mental Health Review Tribunals), for subsections (1) to (1C) substitute—
In section 78 (procedure of tribunals)—
in subsections (2)(a) and (k) and (6), for “chairman” substitute “ President ”,
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
in subsection (4)(a), for “president” substitute “ chairman ”, and
in subsection (6) omit “, if for any reason he is unable to act,”.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Schedule 2 (Mental Health Review Tribunals) is amended as set out in subsections (6) to (9).
For paragraph 3 substitute—
In paragraph 4—
for “chairman”, in each place, substitute “ President ”, and
omit “, if for any reason he is unable to act,”.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
In paragraph 6—
for “chairman”, in each place, substitute “ President ”, and
for “president”, in each place, substitute “ chairman ”.
At the end of section 17 of the 1983 Act (leave of absence) insert—
Schedule 5 (which contains amendments to Part 6 of the 1983 Act and related amendments) has effect.
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”.
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.
In the following provisions omit the words “, made without limitation of time”—
section 44(3) of the 1983 Act (committal to hospital),
section 84(2) of the 1983 Act (removal from Islands), and
section 10(3)(a) of the Colonial Prisoners Removal Act 1884 (c. 31) (criminal lunatics).
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”.
In section 81A(3) of the 1983 Act (transfer of responsibility for patient to Northern Ireland: expiry of restriction order or direction)—
omit (in each place) “restriction order or”, and
omit “order or”.
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”.
But subsections (3) to (6) shall have no effect in respect of—
a restriction order for a specified period made before subsection (1) comes into force, or
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.
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)—
in paragraph (b), after “restriction order”, insert “ , limitation direction ”, and
after “hospital order”, insert “ , hospital direction ”.
In section 127 of the 1983 Act (ill-treatment or wilful neglect of patients), in subsection (3)(b), for “two years” substitute “ five years ”.
In section 131 of the 1983 Act (informal admission of patients), for subsection (2) substitute—
The 1983 Act is amended as follows.
In section 135 (warrant to search for and remove patients), after subsection (3) insert—
In section 136 (mentally disordered persons found in public places), after subsection (2) insert—
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. ”
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) ”.
After section 142A of the 1983 Act (inserted by section 17 of this Act), insert—
The 1983 Act is amended as follows.
In section 19(3) (removal of patients), after “NHS foundation trust”, in each place, insert “ , Local Health Board ”.
In section 145(1) (interpretation)—
in the definition of “hospital”, after paragraph (b) insert, and
in the definition of “the managers”, after paragraph (bc) insert—.
Section 143 of the 1983 Act (general provisions as to regulations, orders and rules) is amended as follows.
In subsection (2), for “or rules made” substitute “ made by the Secretary of State, or rules made, ”.
After subsection (3) insert—
Amendments to other Acts
Schedule 6 (which makes amendments to Chapter 2 of Part 3 of the Domestic Violence, Crime and Victims Act 2004 (c. 28)) has effect.
For section 40 of the Mental Capacity Act 2005 (c. 9) (independent mental capacity advocacy service: exceptions) substitute—
The Mental Capacity Act 2005 (c. 9) is amended as follows.
After section 4 insert—
After section 16 insert—
Omit the following provisions (which make specific provision about deprivation of liberty)—
section 6(5);
section 11(6);
section 20(13).
Schedule 7 (which inserts the new Schedule A1 into the Mental Capacity Act 2005 (c. 9)) has effect.
Schedule 8 (which inserts the new Schedule 1A into the Mental Capacity Act 2005) has effect.
Schedule 9 (which makes other amendments to the Mental Capacity Act 2005 and to other Acts) has effect.
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.
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—
had been conferred on the Assembly constituted by GOWA 1998 by an Act passed before the end of the initial period, and
were exercisable by that Assembly immediately before the end of the initial period.
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)—
paragraphs 34 and 35of Schedule 11 to the Government of Wales Act 2006 do not apply; and
subsections (11) and (12) apply instead.
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.
Subject to that, a relevant statutory instrument is subject to annulment in pursuance of a resolution of the National Assembly for Wales.
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).
In section 20 of the Mental Capacity Act 2005 (c. 9) (restrictions on deputies), in subsection (11)(a), for “or” substitute “ and ”.
General
In this Act “the 1983 Act” means the Mental Health Act 1983 (c. 20).
Schedule 10 (which contains transitional provisions and savings) has effect.
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.
An order under subsection (1) may, in particular—
amend or repeal any provision of an Act passed before, or in the same Session as, this Act;
amend or revoke any provision of subordinate legislation made before the passing of this Act;
include transitional or saving provision in connection with the coming into force of provision made by the order.
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 by the Secretary of State only with agreement of the Welsh Ministers, and
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).
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.
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.
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.
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.
In subsection (2), “subordinate legislation” has the same meaning as in the Interpretation Act 1978 (c. 30).
The enactments mentioned in Schedule 11 are repealed or revoked to the extent specified.
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.
Section 51 comes into force in accordance with provision made by the Lord Chancellor by order made by statutory instrument.
An order under this section may—
make different provision for different purposes (including different provision for different areas and different provision for different descriptions of patient);
include transitional or saving provision.
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.
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.
for that section not to apply to or affect a patient who is subject to after-care under supervision immediately before that commencement, and
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.
The order may require—
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;
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.
The order may require the registered medical practitioner, having complied with provision made by virtue of subsection (2)(b)—
to discharge the patient,
to recommend that he be detained in hospital,
to recommend that he be received into guardianship, or
to make a community treatment order in respect of him.
The order may, in respect of a recommendation made by virtue of subsection (3)(b) or (c)—
provide that the recommendation is to be made to a local social services authority determined in accordance with the order;
provide that the recommendation is to be made in accordance with any other requirements specified in the order;
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.
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—
that he agrees with the decision made by the practitioner about the patient's case, and
that it is appropriate to make the order.
An order requiring a registered medical practitioner to make a community treatment order in respect of a patient shall include provision about—
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
the effect of its revocation (including, in particular, provision for detention under section 3 of the 1983 Act).
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.
Provision made by virtue of subsection (7) may, in particular—
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;
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).
An expression used in this section and in the 1983 Act has the same meaning in this section as it has in that Act.
The provisions of this Act which amend other enactments have the same extent as the enactments which they amend.
But subsection (1) is subject to—
paragraph 35 of Schedule 3,
paragraphs 3, 4 and 20 of Schedule 5, and
paragraph 12 of Schedule 9.
Section 54 extends to the United Kingdom.
This Act may be cited as the Mental Health Act 2007.
Categories of mental disorder: further amendments etc
Amendments to 1983 Act
The 1983 Act is amended as follows.
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 ”.
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”.
In section 20 (renewal of detention or guardianship)—
in subsection (4)(a), for “mental illness, severe mental impairment, psychopathic disorder or mental impairment, and his mental disorder is” substitute “ mental disorder ”, and
in subsection (7)(a), for “mental illness, severe mental impairment, psychopathic disorder or mental impairment and his mental disorder is” substitute “ mental disorder ”.
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 ”.
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—.
In section 37 (power to order hospital admission or guardianship)—
in subsection (2)(a), for “mental illness, psychopathic disorder, severe mental impairment or mental impairment” substitute “ mental disorder ”, and
in subsection (3), omit the words “as being a person suffering from mental illness or severe mental impairment”.
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 ”.
In section 45A(2) (conditions for exercise of power to direct hospital admission), in paragraph (a), for “psychopathic disorder” substitute “ mental disorder ”.
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 ”.
In section 48 (further power to make transfer direction)—
in subsection (1), for the words from “that person is suffering” to “such treatment,” substitute—, and
in subsection (3), for “to (4)” substitute “ and (3) ”.
In section 51(6) (further power to make hospital order), in paragraph (a), for the words from “the detainee” to the end substitute—.
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) ”.
In section 72 (powers of tribunals)—
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 ”,
in subsection (4)(a), for “mental illness, psychopathic disorder, severe mental impairment or mental impairment” substitute “ mental disorder ”, and
in subsection (6), for “(5)” substitute “ (4) ”.
Section 86 (application of power to remove alien patients) is amended as follows.
In subsection (1), for “mental illness” substitute “ mental disorder ”.
After subsection (3) insert—
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
In section 145(1) (interpretation), for the definitions of “mental disorder”, “severe mental impairment”, “mental impairment” and “psychopathic disorder” substitute—.
Amendments to other Acts
Juries Act 1974
Part 1 of Schedule 1 to the Juries Act 1974 (c. 23) (mentally disordered persons) is amended as follows.
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 ”.
Omit paragraph 4(1).
Contempt of Court Act 1981
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
The Family Law Act 1996 (c. 27) is amended as follows.
In section 48 (remand for medical examination and report), in subsection (4)—
for “mental illness or severe mental impairment” substitute “ mental disorder within the meaning of the Mental Health Act 1983 ”,
for “the Mental Health Act 1983” substitute “ that Act ”, and
for “section 35 of the Act of 1983” substitute “ that section ”.
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
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Care Standards Act 2000
In section 121 of the Care Standards Act 2000 (c. 14) (general interpretation), in subsection (1), for the definition of “mental disorder” substitute—.
Mental Capacity Act 2005
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.
In sub-paragraph (1), omit the words “(within the meaning of the Mental Health Act)”.
After sub-paragraph (1) insert—
National Health Service Act 2006
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
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
In section 27 of the Police and Justice Act 2006 (c. 48) (anti-social behaviour injunctions: power of arrest and remand), in subsection (11)—
for “mental illness or severe mental impairment” substitute “ mental disorder within the meaning of the Mental Health Act 1983 ”, and
for “the Mental Health Act 1983 (c. 20)” substitute “ that Act ”.
Approved mental health professionals: further amendments to 1983 Act
The 1983 Act is amended as follows.
In the following provisions, for “approved social worker” substitute “ approved mental health professional ”
section 4(2) (admission for assessment in cases of emergency), and
section 8(1)(c) (effect of guardianship application).
Section 10 (transfer of guardianship) is amended as follows.
In subsection (3), for “approved social worker” substitute “ approved mental health professional acting on behalf of the local social services authority ”.
After subsection (4) insert—
Section 11 (general provisions as to applications) is amended as follows.
In subsection (1), for “approved social worker” substitute “ approved mental health professional ”.
In subsection (3), for “approved social worker, that social worker” substitute “ approved mental health professional, that professional ”.
For subsection (4) substitute—
Section 13 (the title to which becomes “Duty of approved mental health professionals to make applications for admission or guardianship”) is amended as follows.
For subsection (1) substitute—
In subsection (2), for “approved social worker” substitute “ approved mental health professional ”.
For subsection (3) substitute—
In subsection (4)—
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
for “that approved social worker” substitute “ that professional ”.
In subsection (5)—
for “approved social worker”, in each place, substitute “ approved mental health professional ”, and
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 ”.
In section 14 (social reports), for “a social worker” substitute “ an approved mental health professional ”.
In the following provisions, for “approved social worker” substitute “ approved mental health professional ”
section 18(1) (return of patients absent without leave),
section 21B(3)(b) (consultation before furnishing report),
section 29(2)(c) (application for appointment of acting nearest relative),
section 40(1)(a) (power to convey patient),
section 87(1) (power to take Northern Ireland patient into custody),
section 88(3) (power to take England and Wales patient into custody), in the first place it occurs, and
section 89(1) (power to take Channel Islands or Isle of Man patient into custody).
For section 115 substitute—
In section 118(1)(a) (application of code of practice), for “approved social workers” substitute “ approved mental health professionals ”.
In the following provisions, for “approved social worker” substitute “ approved mental health professional ”section 135(1) and (4) (warrant to search for and remove patient), section 136(2) (detention of person removed to a place of safety), and section 138(1)(a) (retaking of patients escaping from custody).
Section 145 (interpretation) is amended as follows.
In subsection (1), for the definition of “approved social worker” substitute—.
After subsection (1AB) (inserted by section 4 of this Act) insert—
Supervised community treatment: further amendments to 1983 Act
The 1983 Act is amended as follows.
Application in respect of patient already in hospital
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
Section 18 (return and readmission of patients absent without leave) is amended as follows.
After subsection (2) insert—
In subsection (4)—
in paragraph (b), after “guardianship” insert “ or, in the case of a community patient, the community treatment order is in force ”, and
omit the words from “and, in determining” to the end.
After subsection (4) insert—
After subsection (6) insert—
Assignment of responsibility for community patients
After section 19 insert—
Renewal of authority to detain patients
In section 20 (duration of authority)—
in subsection (2), after “discharged” insert “ under section 23 below ”, and
in subsections (3) and (6), after “discharge the patient” insert “ under section 23 below ”.
Special provisions as to patients absent without leave
Section 21 (special provisions as to patients absent without leave) is amended as follows.
In subsection (1)—
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
after “liable or subject” insert “ , or the order shall not cease to be in force, ”.
After subsection (3) (inserted by section 37 of this Act) insert—
In section 21A (patients who are taken into custody or return within 28 days), after subsection (3) insert—
Section 21B (patients who are taken into custody or return after more than 28 days) is amended as follows.
In subsection (2), after “ought to be” insert “ (his “return day”) ”.
In subsection (3), after “detained” insert “ or is a community patient ”.
For subsection (4) substitute—
After subsection (4) insert—
After subsection (6) insert—
After subsection (7) insert—
In subsection (10)—
for the definition of “the appropriate body” substitute—, and
for the definition of “the relevant conditions” substitute—
Patients sentenced to imprisonment etc
For section 22 substitute—
Discharge
Section 23 (discharge of patients) is amended as follows.
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 ”.
After subsection (1) insert—
In subsection (2), after paragraph (b) insert—
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Section 24 (visiting and examination of patients) is amended as follows.
In subsection (1), after “this Act” insert “ , or who is a community patient, ”.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Section 25 (restrictions on discharge by nearest relative) is amended as follows.
In subsection (1), after “shall not be made” insert “ under section 23 above ”.
After that subsection insert—
In subsection (2), after “treatment” insert “ , or in respect of a community patient, ”.
Orders appointing acting nearest relative
In section 29 (appointment by court of acting nearest relative), in subsection (3)(d) omit the words “from hospital or guardianship”.
In subsection (4), for paragraphs (a) and (b) substitute—
After subsection (4) insert—
Regulations for purposes of Part 2
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
Section 33 (special provisions as to wards of court) is amended as follows.
In subsection (2), after “admission under this Part of this Act” insert “ or is a community patient ”.
For subsection (4) substitute—
Restricted patients
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
Section 66 (applications to tribunals) is amended as follows.
In subsection (1)—
after paragraph (c) insert—,
in paragraph (f), after “discharged” insert “ under section 23 above ”,
after that paragraph insert—,
after paragraph (fa) insert—,
in paragraph (g), after “treatment” insert “ or a community patient ”, and
in paragraph (h), after “this Act” insert “ or who is a community patient ”.
In subsection (2)—
after paragraph (c) insert—, and
after paragraph (f) insert—.
After subsection (2) insert—
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 ”.
In section 69 (applications to tribunals concerning patients subject to hospital and guardianship orders)—
in subsection (1), for paragraph (a) substitute—,
in subsection (2)(b), omit the words “45B(2), 46(3),”, and
after subsection (2) insert—
Section 72 (powers of tribunals) is amended as follows.
In subsection (1)—
after “this Act” insert “ or is a community patient ”, and
after paragraph (b) insert—
After subsection (1) insert—
For subsection (3A) substitute—
In section 76 (visiting and examination of patients), in subsection (1), after “this Act” insert “ or a community patient, ”.
In section 77 (general provisions concerning tribunal applications), in subsection (3) for the words from “to the tribunal” to the end substitute—
After-care services
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
In section 118 (code of practice), in subsection (1)(a) for “after-care under supervision” substitute “ community patients ”.
General protection of detained patients
Section 120 (general protection of detained patients) is amended as follows.
In subsection (1)—
after “liable to be detained under this Act” insert “ or to community patients ”,
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
in paragraph (b)—
in sub-paragraph (i), after “this Act in” insert “ , or recalled under section 17E above to, ”, and
in sub-paragraph (ii), after “detained” insert “ or is or has been a community patient ”.
In subsection (4)—
in paragraph (a), for “registered establishment” substitute “ hospital or establishment of any description ”, and
in paragraph (b), for “in a registered establishment” substitute “ under this Act or who is or has been a community patient ”.
After subsection (7) insert—
In section 121 (Mental Health Act Commission), in subsection (4), for the words from “not liable” to the end substitute “ neither liable to be detained under this Act nor community patients ”.
Offences
In section 128 (assisting patients to absent themselves without leave, etc), in subsection (1) after “under this Act” insert “ or is a community patient ”.
Duty to give information
In section 132 (duty of managers of hospitals to give information to detained patients), in subsection (2) for “nursing home” substitute “ establishment ”.
After section 132 insert—
In section 133 (duty of managers of hospitals to inform nearest relatives of discharge), after subsection (1) insert—
Retaking of patients escaping from custody
In section 138 (retaking of patients escaping from custody), in subsection (1)(b) after “under this Act,” insert “ or a community patient who was recalled to hospital under section 17E above, ”.
Members of Parliament suffering from mental disorder
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Interpretation
Section 145 (interpretation) is amended as follows.
In subsection (1), in the definition of “absent without leave”, after “related expressions” insert “ (including expressions relating to a patient's liability to be returned to a hospital or other place) ”.
In that subsection, at the appropriate places insert—.
In subsection (3), after “guardianship” insert “ or a community patient ”.
Extent
In section 146 (application to Scotland), omit the words from “128” to “guardianship)”.
This paragraph does not extend to Scotland.
Application of certain provisions to patients concerned in criminal proceedings
In Schedule 1 (application of certain provisions to patients subject to hospital and guardianship orders), Part 1 (patients not subject to special restrictions) is amended as follows.
In paragraph 1, after “17” insert “ to 17C, 17E, 17F, 20A ”.
In paragraph 2—
for “18, 19, 20” substitute “ 17D, 17G, 18 to 20, 20B ”, and
for “paragraphs 3” substitute “ paragraphs 2A ”.
After paragraph 2 insert—
After paragraph 5 insert—
After paragraph 6 insert—
In paragraph 8(b), for “and (b)” substitute “ to (c) ”.
Part 2 of that Schedule (patients subject to special restrictions) is amended as follows.
In paragraph 2, for “17 to 19” substitute “ 17, 18, 19 ”.
For paragraph 6 substitute—
Supervised community treatment: amendments to other Acts
Administration of Justice Act 1960
After section 5 of the Administration of Justice Act 1960 (c. 65) insert—
Criminal Appeal Act 1968
The Criminal Appeal Act 1968 (c. 19) is amended as follows.
In section 8 (supplementary provisions as to retrial), after subsection (3A) insert—
After section 37 insert—
Courts-Martial (Appeals) Act 1968
The Courts-Martial (Appeals) Act 1968 (c. 20) is amended as follows.
In section 20 (implementation of authority for retrial etc), after subsection (4) insert—
In section 43 (detention of accused), after subsection (3) insert—
After that section insert—
Juries Act 1974
In Schedule 1 to the Juries Act 1974 (c. 23) (mentally disordered persons and persons disqualified from serving), at the end of paragraph 2 insert “ or subject to a community treatment order under section 17A of that Act ”.
Cross-border arrangements
Amendments to Part 6 of 1983 Act
Introduction
Part 6 of the 1983 Act is amended as set out in this Part of this Schedule.
Transfer of patients: Scotland
In section 80 (removal of patients to Scotland) (the cross-heading immediately above which becomes “Removal to and from Scotland”), in subsection (1), omit the words “or subject to guardianship” and the words “or, as the case may be, for receiving him into guardianship”.
After that section insert—
This paragraph does not extend to Scotland.
After section 80A (the title to which becomes ( “ Transfer of responsibility for conditionally discharged patients to Scotland ”) insert—
This paragraph does not extend to Scotland.
Transfer of patients: Northern Ireland
In section 81 (removal of patients to Northern Ireland), in subsection (2), for the words from “where he is” to “the corresponding enactment” substitute “ where he is subject to a hospital order and a restriction order or a transfer direction and a restriction direction under any enactment in this Act, as if he were subject to a hospital order and a restriction order or a transfer direction and a restriction direction under the corresponding enactment ”.
After that section insert—
Section 81A (transfer of responsibility for patients to Northern Ireland) is amended as follows.
For subsection (1)(a) substitute—
In subsection (2)(b), for “a restriction order or restriction direction” substitute “ a hospital order and a restriction order, or to a transfer direction and a restriction direction, ”.
In section 82 (removal to England and Wales of patients from Northern Ireland), in subsection (2), for the words from “where he is” to “the corresponding enactment” substitute “ where he is subject to a hospital order and a restriction order or a transfer direction and a restriction direction under any enactment in that Order, as if he were subject to a hospital order and a restriction order or a transfer direction and a restriction direction under the corresponding enactment ”.
In section 82A (the title to which becomes “Transfer of responsibility for conditionally discharged patients to England and Wales from Northern Ireland), for subsection (2)(b) substitute—
Transfer of patients: Channel Islands and Isle of Man
Before section 83A (the title to which becomes “Transfer of responsibility for conditionally discharged patients to Channel Islands or Isle of Man”) insert—
In section 85 (patients removed from Channel Islands or Isle of Man), in subsection (2), for “to a restriction order or restriction direction” substitute “ to a hospital order and a restriction order or to a hospital direction and a limitation direction or to a transfer direction and a restriction direction ”.
Before section 85A (the title to which becomes “Responsibility for conditionally discharged patients transferred from Channel Islands or Isle of Man”) insert—
Section 85A is amended as follows.
For subsection (2)(b) substitute—
In subsection (3) after “restriction order” insert “ , limitation direction ”.
Patients absent from hospitals in England and Wales
Section 88 (patients absent from hospitals in England and Wales) is amended as follows.
In subsection (1) for the words from “any other part” to the end substitute “ Northern Ireland ”.
For subsection (2) substitute—
In subsection (3) omit the following—
the words “to Scotland or Northern Ireland”,
paragraph (a), and
in paragraph (b), the words “in Northern Ireland,”.
Regulations for purposes of Part 6
In section 90 (regulations for purposes of Part 6), for the words from “and to regulations” to the end substitute “ , so far as this Part of this Act applies to patients removed to England and Wales or for whom responsibility is transferred to England and Wales. ”
General provisions as to patients removed from England and Wales
In section 91 (general provisions as to patients removed from England and Wales), after subsection (2) insert—
Interpretation
In section 92 (interpretation of Part 6), after subsection (1) insert—
Related amendments
The 1983 Act
In section 69 of the 1983 Act (applications to tribunals concerning patients subject to hospital and guardianship orders), in subsection (2)(a)—
after “hospital order” insert “ , hospital direction ”, and
for the words from “, 82(2) or” to the end substitute “ or section 80B(2), 82(2) or 85(2) below. ”
Section 79 of that Act (interpretation of Part 5) is amended as follows.
In subsection (1), for paragraph (c) substitute—.
In subsection (5)—
after “the relevant hospital order,” insert “ the relevant hospital direction, ”,
after “the restriction order” insert “ , the limitation direction ”,
after “the hospital order,” insert “ hospital direction, ”, and
after “restriction order,” insert “ limitation direction, ”.
After that subsection insert—
In section 146 (application to Scotland), omit the words from “88” to “138)”.
This paragraph does not extend to Scotland.
Mental Health (Care and Treatment) (Scotland) Act 2003 (Consequential Provisions) Order 2005 (S.I. 2005/2078)
The Mental Health (Care and Treatment) (Scotland) Act 2003 (Consequential Provisions) Order 2005 is amended as follows.
Omit the following provisions—
article 1(5),
article 2, and
article 3.
In article 8 (the title to which becomes “Patients absent from hospitals or other places in Scotland”), in paragraph (1)(b), for “290” substitute “ 289, 290, 309, 309A ”.
In article 12(2), for “2 to 11” substitute “ 4 to 11 ”.
Victims' rights
Introduction
Chapter 2 of Part 3 of the Domestic Violence, Crime and Victims Act 2004 (c. 28) (provision of information to victims of restricted patients under the 1983 Act, etc.) is amended as set out in this Schedule.
Hospital orders (with or without restriction orders)
Section 36 (victims' rights: preliminary) is amended as follows.
In subsection (3), for “with a restriction order” substitute “ , whether with or without a restriction order, ”.
In subsection (5)—
in paragraph (a), after “discharge from hospital” insert “ while a restriction order is in force in respect of him ”, and
after paragraph (b) insert.
After section 36 insert—
After section 37 insert—
After section 38 insert —
Hospital directions and limitation directions
In section 39 (victims' rights: preliminary), in subsection (3)—
in paragraph (a), after “discharge from hospital” insert “ while he is subject to a limitation direction ”, and
after that paragraph insert—.
After section 41 insert—
Transfer directions (with or without restriction directions)
Section 42 (victims' rights: preliminary) is amended as follows.
In subsection (1)(c), for “and a restriction direction in respect of him” substitute “ in respect of the offender (whether or not he also gives a restriction direction in respect of the offender) ”.
In subsection (3)—
in paragraph (a), after “discharge from hospital” insert “ at a time when a restriction direction is in force in respect of him ”, and
after paragraph (b) insert.
After section 42 insert—
After section 43 insert—
After section 44 insert —
Interpretation
In subsection (1)—
for “44” substitute “ 44B ”, and
at the appropriate places insert—,,, and.
In subsection (2), for “44” substitute “ 44B ”.
After subsection (2) insert—
Mental Capacity Act 2005: new Schedule A1
Before Schedule 1 to the Mental Capacity Act 2005 (c. 9) insert—.
Mental Capacity Act 2005: new Schedule 1A
After Schedule 1 to the Mental Capacity Act 2005 (c. 9) insert—.
Amendments relating to new section 4A of, & Schedule A1 to, Mental Capacity Act 2005
Other amendments to Mental Capacity Act 2005
Introduction
The Mental Capacity Act 2005 (c. 9) is amended as set out in this Part of this Schedule.
New section 21A
After section 21 insert—
Section 35: Appointment of independent mental capacity advocates
In section 35, in subsection (1) after “relate” insert “ or persons who fall within section 39A, 39C or 39D ”.
Section 38: IMCAs and provision of accommodation by NHS body
Section 38 is amended as follows.
After subsection (2) insert—
After subsection (9) insert—
Section 39: IMCAs and provision of accommodation by local authority
Section 39 is amended as follows.
After subsection (3) insert—
After subsection (6) insert—
New section 39A
After section 39 insert—
Section 40: Exceptions to duty to appoint IMCAs
The provision of section 40 becomes subsection (1) of section 40.
In subsection (1) for “or 39(4) or (5)” substitute“ , 39(4) or (5), 39A(3), 39C(3) or 39D(2) ”.
After subsection (1) insert—
Section 42: Codes of practice
Section 42 is amended as follows.
In subsection (1), after paragraph (f) insert—.
In subsection (4), after paragraph (d) insert—.
Section 50: Application to the Court of Protection
In section 50, after subsection (1) insert—
Section 64: Interpretation
Section 64 is amended as follows.
In subsection (1), insert at the appropriate place—
In subsection (1), in the definition of “local authority” after “ “local authority”” insert“ , except in Schedule A1, ”.
After subsection (4) insert—
Section 65: Rules, regulations and orders
Section 65 is amended as follows.
After subsection (4) insert—
Amendments to other Acts
National Assistance Act 1948 (c. 29)
Section 47 of the National Assistance Act 1948 (removal to suitable premises of persons in need of care and attention) is amended as follows.
After subsection (1) insert—
This paragraph does not extend to Scotland.
Local Authority Social Services Act 1970 (c. 42)
Schedule 1 to the Local Authority Social Services Act 1970 (Social Services functions of local authorities) is amended as follows.
In the entry relating to the Mental Capacity Act 2005 (c. 9), insert the following entries at the appropriate places—
Transitional provisions and savings
Interpretation
This Schedule is to be read as follows.
Reference to an enactment is to an enactment contained in this Act, unless otherwise stated.
Reference to an enactment contained in the 1983 Act includes reference to that enactment as applied by section 40(4) of that Act (patients concerned in criminal proceedings or under sentence).
Authority to detain etc
The provisions mentioned in sub-paragraph (4) do not affect—
the authority for the detention or guardianship of a person who is liable to be detained or subject to guardianship under the 1983 Act immediately before the date on which those provisions come into force,
the 1983 Act in relation to any application, order or direction for admission or removal to a hospital, or any guardianship application or order, made under that Act before that date or the exercise, before that date, of any power to remand,
the power to make on or after that date an application for the admission of a person to a hospital, or a guardianship application, where all the recommendations on which the application is to be founded are signed before that date, or
the authority for the detention or guardianship of a person in pursuance of such an application.
But those provisions do apply to the following events occurring on or after that date—
any renewal of the authority for the person's detention or guardianship,
any consideration of his case by the First-tier Tribunal or the Mental Health Review Tribunal for Wales, and
any decision about the exercise of any power to discharge him from detention or guardianship.
Sub-paragraph (2)(b) is subject to paragraph 4.
The provisions are—
section 2 (special provision for persons with learning disability),
section 3 (exclusions),
section 4 (replacement of “treatability” and “care” tests with appropriate treatment test),
section 5 (addition of appropriate treatment test),
section 7 (definition of “medical treatment”), and
the repeals in Schedule 11 which are consequential on any of those sections or that Schedule.
Consent to treatment
relates to electro-convulsive therapy (by virtue of regulations under subsection (1)(a) of that section), and
is given before the date on which those amendments come into force.
But any certificate under section 58(3)(b) of the 1983 Act that the patient has not consented to electro-convulsive therapy ceases to apply when those amendments come into force.
Reclassification of patients
The amendment made by paragraph 13 of Schedule 1 and the repeal in Schedule 11 of section 66(1)(d) and (fb) of the 1983 Act (which concern a patient's right to apply to a Mental Health Review Tribunal following a report about the form of his mental disorder) do not affect any right to apply in consequence of a report furnished before the date on which the amendment and repeal come into force.
Supervised community treatment
Section 32 and the amendments and repeals in Schedules 3 and 11 which are consequential on that section apply to a patient who is liable to be detained under the 1983 Act immediately before the date on which that section and those amendments and repeals come into force, as they apply to a patient who becomes so liable on or after that date.
Nearest relative
Subsections (6) and (7) of section 24 (duration of orders appointing nearest relative) do not affect—
any order made under section 29 of the 1983 Act before the date on which those subsections come into force, or
any order made under that section on or after that date if the application for it was made before that date.
But subsections (2)(a), (4) and (5) of section 24 (applications for discharge and variation) do apply in relation to an order mentioned in sub-paragraph (2)(a) or (b).
Section 25 (restriction of nearest relative's right to apply to tribunal) does not apply in relation to an order mentioned in sub-paragraph (2)(a) or (b).
If, by virtue of section 26 (civil partners) coming into force, a person ceases to be a patient's nearest relative, this does not affect—
any application to a Mental Health Review Tribunal under the 1983 Act made by that person, but not determined or withdrawn, before the date on which that section comes into force,
any notice under section 25 of that Act given by that person before that date, or
any application to a county court under section 30(1) of that Act made by that person, but not determined or withdrawn, before that date.
Independent mental health advocates
Section 30—
applies to a patient who is liable to be detained under the 1983 Act immediately before the commencement date as it applies to a patient who becomes so liable on or after that date;
applies to a patient who is subject to guardianship under that Act immediately before the commencement date as it applies to a patient who becomes so subject on or after that date;
applies to a patient who is a community patient under that Act immediately before the commencement date as it applies to a patient who becomes a community patient on or after that date.
For the purposes of the provisions inserted by that section, a patient is to be treated as a qualifying patient within section 130C(3) of the 1983 Act if—
not being a formal patient, he discussed before the commencement date with a registered medical practitioner or approved clinician the possibility of being given a form of treatment to which section 57 of that Act applies, and
sub-paragraph (4) or (5) applies in relation to him.
A patient is also to be treated for those purposes as a qualifying patient within section 130C(3) of the 1983 Act if—
not having attained the age of 18 years and not being a formal patient, he discussed before the commencement date with a registered medical practitioner or approved clinician the possibility of being given a form of treatment to which section 58A of that Act applies, and
sub-paragraph (4) or (5) applies in relation to him.
This sub-paragraph applies in relation to the patient if, immediately before the commencement date, he has yet to be informed whether or not the treatment is proposed in his case.
This sub-paragraph applies in relation to the patient if, immediately before the commencement date—
he has been informed that the treatment is proposed in his case,
the proposal has not been withdrawn, and
the treatment has not been completed or discontinued.
A qualifying patient in relation to whom sub-paragraph (4) applies and who is informed on or after the commencement date that the treatment is proposed in his case, or in relation to whom sub-paragraph (5) applies, remains a qualifying patient until—
the proposal is withdrawn, or
the treatment is completed or discontinued.
In relation to a patient who is a qualifying patient within section 130C(3) of the 1983 Act by virtue of this paragraph, the responsible person under section 130D of that Act is to be the person with overall responsibility for the patient's case (and subsection (2)(e) of that section is to be read accordingly).
Sub-paragraph (9) applies in relation to a patient—
who is a qualifying patient within section 130C(2) of the 1983 Act by virtue of being a formal patient immediately before the commencement date, or
who is a qualifying patient within section 130C(3) of that Act by virtue of this paragraph.
The steps to be taken under subsection (1) of section 130D of that Act are to be taken on, or as soon as practicable after, the commencement date (and subsection (3) of that section is to be read accordingly).
In this paragraph—“approved clinician” has the same meaning as in the 1983 Act,“the commencement date” means the date on which section 30 comes into force, and“formal patient” means a patient who is—liable to be detained under the 1983 Act (otherwise than by virtue of section 4, 5(2) or (4), 135 or 136 of that Act), subject to guardianship under that Act, or a community patient under that Act.
Applications and references to Mental Health Review Tribunal
The amendments made by section 37 apply in relation to a patient who is liable to be detained under the 1983 Act immediately before the date on which the amendments come into force as they apply in relation to one who becomes so liable on or after that date.
The repeal in paragraph 20(b) of Schedule 3 of the reference in section 69(2)(b) of the 1983 Act to section 45B(2) of that Act (which concerns the right of a patient subject to a hospital direction to apply to a Mental Health Review Tribunal in the period of six months beginning with the date of the direction) does not affect any right to apply by virtue of a hospital direction dated before the date on which the repeal comes into force.
Repeals and revocations
Removal of categories of mental disorder
In section 1(2), the definitions of—“severe mental impairment” and “severely mentally impaired”,“mental impairment” and “mentally impaired”, and“psychopathic disorder”.
In section 7(2)(a), the words “, being mental illness, severe mental impairment, psychopathic disorder or mental impairment and his mental disorder is”.
Section 11(6).
In section 15(3), the words from “; but this subsection” to the end.
Section 16.
Section 20(9).
Section 21B(8) and (9).
In section 37—in subsection (3), the words “as being a person suffering from mental illness or severe mental impairment”, and subsection (7).
In section 45A, subsections (10) and (11).
Section 47(4).
Section 55(3).
In section 66(1), paragraphs (d) and (fb) (and the word “or” at the end of those paragraphs).
Section 72(5).
Section 92(3).
In Part 1 of Schedule 1—in paragraph 2, the word “16,”, paragraph 3, and in paragraph 6, paragraph (b) (and the word “and” immediately preceding it).
In Schedule 5—in paragraph 37(5), the words from “, and he shall be so treated” to the end, and paragraph 39.
Replacement of “treatability” and “care” tests
In section 3(2), paragraph (b) (and the word “and” at the end of that paragraph).
In section 20(4)—paragraph (b) (and the word “and” at the end of that paragraph), and the words from “but, in the case of mental illness” to the end.
Section 72(2).
Approved clinicians and responsible clinicians
Section 20(10).
In section 21B(10), the definition of “appropriate medical officer”.
In section 61(3), the words “to the responsible medical officer”.
Safeguards for patients
In section 29—in subsection (2), the words from “but in relation to” to the end, and in subsection (3), the word “or” at the end of paragraph (c).
Supervised community treatment
In section 18(4), the words from “and, in determining” to the end.
Sections 25A to 25J.
In section 29(3)(d), the words “from hospital or guardianship”.
In section 32(2)(c), the words “or to after-care under supervision”.
In section 34—in subsection (1), the definitions of “the community responsible medical officer” and “the supervisor”, and subsection (1A).
In section 66(1)—paragraphs (ga), (gb) and (gc) (and the word “or” at the end of each of those paragraphs), and in sub-paragraph (i), the words from “or, in the cases” to the end.
In section 66(2)—in paragraph (d), the words “and (gb)”, and paragraph (fa).
In section 67(1), the words “or to after-care under supervision”.
In section 69(2)(b), the words “45B(2), 46(3),”.
Section 72(4A).
In section 76(1), the words from “or to after-care” to “leaves hospital)”.
Section 117(2A).
Section 127(2A).
In section 145—in subsection (1), the definitions of “the responsible after-care bodies” and “supervision application”, and subsection (1A).
In section 146, the words from “128” to “guardianship)”.
In Part 1 of Schedule 1—in paragraph 2, the words “, 25A, 25B”, and paragraph 8A.
Section 1(1).
In Schedule 1—in paragraph 2, paragraph (c) (and the word “and” immediately preceding it), in paragraph 11, paragraph (a) (and the word “and” at the end of that paragraph), and paragraphs 3, 4, 6, 7, 8(2), 10(1) to (3), 12, 13, 18 and 20.
Organisation of tribunals
In section 78(6), the words “, if for any reason he is unable to act,”.
In section 143(2), the words “or 65”.
In paragraph 4 of Schedule 2, the words “, if for any reason he is unable to act,”.
Cross-border arrangements
In section 80(1), the words “or subject to guardianship” and the words “or, as the case may be, for receiving him into guardianship”.
In section 88(3)—the words “to Scotland or Northern Ireland”, paragraph (a), and in paragraph (b), the words “in Northern Ireland,”.
In section 146, the words from “88” to “138)”.
Articles 1(5), 2 and 3.
In Schedule 1, paragraph 2(5).
Restricted patients
In section 41(1), the words “, either without limit of time or during such period as may be specified in the order”.
In section 42(4)(b), the words from “, and, if the restriction order was made for a specified period,” to the end.
In section 44(3), the words “, made without limitation of time”.
In section 81(7), the words “restriction order or” in each place,
In section 81A(3)—the words “restriction order or” in each place, and the words “order or”.
In section 84(2), the words “, made without limitation of time”.
In section 91(2), the words “at any time before the end of the period for which those orders would have continued in force”.
Miscellaneous
Deprivation of liberty
Section 6(5).
Section 11(6).
Section 20(13).