Mental Health (Approval Functions) Bill

These notes refer to the Mental Health (Approval Functions) Bill

as introduced in the House of Commons on 30 October 2012 [Bill 83]

Explanatory Notes


1. These explanatory notes relate to the Mental Health (Approval Functions) Bill as introduced in the House of Commons on 30 October 2012. They have been prepared by the Department of Health in order to assist the reader of the Bill and to inform debate on it. They do not form part of the Bill and have not been endorsed by Parliament.

2. The notes need to be read in conjunction with the Bill. They are not, and are not meant to be, a comprehensive description of the Bill. So where a clause or part of a clause does not seem to require any explanation or comment, none is given.


3. A technical issue has been identified in the way doctors have been approved for the purpose of enabling them to make medical recommendations about admitting mentally disordered patients to hospital and detaining them for their own health or safety or for the protection of the public under the Mental Health Act 1983. That issue applies in four regions (North East, Yorkshire and Humber, West Midlands and East Midlands).

4. The purpose of the Mental Health (Approved Functions) Bill is to give retrospective validation to any approvals of practitioners or clinicians given under the Mental Health Act 1983 and hence ensure the lawfulness of any detention or other action taken on the basis that the approval was properly given.

5. The Mental Health Act 1983 makes provision for applications to be made for the admission to or detention in a hospital of those who are suffering from mental disorder where it is for their own health or safety or for the protection of others. The purpose of such admission and detention is

Bill 83-EN


to enable the individual concerned to be assessed or treated in an appropriate environment. In order for a person to be detained in hospital for assessment or treatment, an application must be made to the managers of the hospital in question and supported by written recommendations from two doctors (one of whom must be an approved practitioner or an approved clinician) who have personally examined the patient, along with an approved mental health professional (usually a social worker). Approved practitioners and approved clinicians also have a number of other functions under the Mental Health Act 1983.

6. Under the Mental Health Act, the function of approving practitioners under section 12, and clinicians under section 145, is vested in the Secretary of State1. Directions2 (in the case of approved clinicians) and regulations3 (in the case of practitioners) allow for the approval functions to be carried out by strategic health authorities (SHAs).

1 In relation to Wales, Welsh Ministers approve "approved clinicians".

2 Mental Health Act 1983 Approved Clinicians (General) (Amendment) Directions 2009.

3 The National Health Service (Functions of Strategic Health Authorities and Primary Care Trusts and Administration Arrangements) (England) Regulations 2002 (SI 2002/2375).

7. SHAs have no legal power to delegate the exercise of the approval functions to other bodies. In spite of this, four SHAs (North East, Yorkshire and Humber, West Midlands and East Midlands) have delegated the exercise of the approval functions to other bodies. This has meant that these bodies have granted approvals but had no legal power to do so. The SHAs have recently rectified the position for all future approvals.

Why is fast-tracking necessary?

8. The fact that the bodies granting the approvals had no power to do so means there is a procedural irregularity involving the approval of these doctors. There is no suggestion that the hospitalisation or detention of patients (or anything else done in reliance on the doctors’ recommendations) has been clinically inappropriate; nor that the doctors so approved are anything other than properly qualified to make the recommendations, having the requisite special experience in the diagnosis or treatment of mental disorder. Proper medical evidence was given by properly qualified doctors.

What is the justification for fast-tracking each element of the Bill ?

9. In reaching the decision to introduce legislation to rectify the situation, the Government reviewed the situation with lawyers, clinicians and NHS managers and looked at possible alternatives to introducing retrospective legislation. All consulted were unequivocal in stressing the urgent need for the legal status of any detention of patients to be regularised, in the interests of those patients, their families, those caring for them and the wider public. Re-assessment was considered of up to 5,000 patients detained by the relevant SHAs but was not feasible, given the practicalities of carrying out the assessments in accordance with the requirements of the Mental Health Act in a timely manner and in a way that would ensure the safety of patients, practitioners and the public.

What efforts have been made to ensure the amount of time made available for parliamentary scrutiny has been maximised ?

10. The Bill is being published on the same day it is introduced and arrangements are being made for amendments to be accepted in advance of second reading in the House of Commons.

To what extent have interested parties and outside groups been given an opportunity to influence the policy proposal?

11. The Department last week considered the possibility of re-assessing all the patients concerned, if in the absence of a legislative solution this became necessary as a result of the lawfulness of detentions being in question. We were advised by the NHS, and the Royal College of Pyschiatrists, that this would not be feasible, given the number of people (up to 5,000) concerned.

Does the Bill include a sunset clause (as well as any appropriate renewal procedure)? If not, why do the Government judge that their inclusion is not app r opriate?

12. It does not include a sunset clause because the Bill is clear it is only retrospective in extent.

Are mechanisms for effective post legislative scrutiny and review in place? If not, why do the Government judge that their inclusion is not appropriate?

13. The legislation is immediate and retrospective, so the impact of the Bill will be immediately clear.

Has an assessment been made as to whether existing legislation is sufficient to deal with any or all the issues in question?

14. Yes. Although we believe that there are good arguments that detentions under the Mental Health Act were and are lawful, it is important that there should be no doubt about this. The legal advice is that this should be resolved through emergency retrospective legislation. That is why, in relation to past approvals under the Act, we have decided that the irregularity should be corrected by emergency retrospective legislation. We also consider that legislation is needed because this clarity is essential, and will be expected by Parliament and the public.

Have the relevant Parliamentary committees been given the opportunity to scrutinise the legislation ?

15. Given the need to introduce legislation as quickly as possible, it has not been possible to formally discuss with Parliamentary Committees.

territorial extent

16. The Bill extends to the whole of the United Kingdom .

Clause 1:

18. Clause 1 validates retrospectively any approval of a registered medical practitioner or an approved clinician given before the Bill obtains Royal Assent. This means that approvals given by bodies to which an SHA had no power to delegate these approval functions will be treated as if they had always been legally granted. The Bill will only have effect in relation to any approval given before Royal Assent (and so does not affect what SHAs or any other bodies can do in the future).

Clause 2:

19. Subsection (1) provides for the Bill to come into force on Royal Assent. The Bill operates only on approvals given before this date and so it would not make sense to delay commencement.

20. Subsection (2) provides for the Bill to extend to the whole of the United Kingdom. Although the approvals to which clause 1 relates can be given only in relation to detention etc of patients in England or Wales, it is possible that a patient detained in England or Wales might need to be transferred to Scotland or Northern Ireland for detention there. It therefore needs to be part of the law of Scotland and Northern Ireland that the detention in England or Wales was validly authorised, to avoid calling into question the validity of the continued detention in Scotland or Northern Ireland.

financial effects of the bill

2 1 . There will be no financial effects as a result of the Bill


2 2 . There will be no impact on public service manpower as a result of the Bill.


2 3 . The provisions contained within this Bill do not require an Impact Assessment.

european convention on human rights

24. The Government considers that the Mental Health (Approval Functions) Bill is compatible with the European Convention on Human Rights ("ECHR"). Accordingly, the Minister in charge of the Bill, Secretary Jeremy Hunt, has made a statement under section 19(1)(a) of the Human Rights Act 1998 to this effect.

25. Further explanation of the key human rights issues is provided below. Reference to articles are to articles of the ECHR.

Article 5 (right to liberty and security)

26. It might be argued that the procedural irregularity in relation to approvals resulted in unlawful detention – although the Department considers that there are good arguments that the detentions involving these particular approval processes were and are lawful. If, though, it were to be argued that there had been unlawful detention, it might also be argued that Article 5(5) of the ECHR is engaged (enforceable right to compensation for unlawful detention).

27. However in this case, any argument that the detention was unlawful will be nullified by the effect of the Bill which validates any approval of a practitioner or an approved clinician retrospectively and in consequence any cause of action for compensation is removed. The Government does not consider therefore that Article 5(5) is engaged. However, in practice, even if the detentions were found to be technically unlawful, it is unlikely that patients would have been awarded more than nominal compensation because it would be argued strongly that they were rightly detained, by properly qualified staff using appropriate criteria.

Article 1 Protocol 1 (protection of property)

28. It might be argued that a claim in relation to arguably unlawful detention is a possession for Article 1 Protocol 1 purposes. However, we would argue that it is in the public interest to interfere with any possible Article 1 Protocol 1 rights, and, in the circumstances, wholly justified. It is essential that there is certainty about the position, above all, for the patients concerned, but also for the staff who care for them and for the public. Furthermore, in practice, even if the detentions were found to be technically unlawful prior to the proposed retrospective legislation coming into force (a position which the Government does not accept), as indicated above, it is unlikely that patients would have been awarded more than nominal compensation1 given that they were rightly detained, by properly qualified staff using appropriate criteria.

1 Lumba v Secretary of State for the Home Department [2011] 4 All ER 1.

Article 8 (r ight to respect for private and family life)

29 If in fact the detention of patients had been unlawful (which the Government, as indicated, does not accept), then the retrospective validation of such detention could be argued to be a breach of Article 8(2) because it interfered with the right to private and family life. However, against this, and given that the patients appear to have been properly detained on the basis of the medical diagnosis, we would argue that any such interference was justified as being in accordance with the law and necessary in a democratic society for the protection of health – and also, in some cases, in the interests of public safety (as permitted by Article 8(2)).


30 . The Bill will commence on the date of Royal Assent.

Prepared 30th October 2012