Explanatory Notes

Mental health and mental capacity

24 The Bill introduces temporary amendments to the Mental Health Act 1983, the Mental Health (Care and Treatment) (Scotland) Act 2003, the Criminal Procedure (Scotland) Act 1995, the Mental Health (Northern Ireland) Order 1986, the Mental Capacity Act (Northern Ireland) 2016 and associated subordinate legislation. The amendments allow certain functions relating to the detention and treatment of patients to be satisfied by fewer doctors’ opinions or certifications. Temporary amendments also allow for the extension or removal of certain time limits relating to the detention and transfer of patients.

25 Further provisions will temporarily amend current provisions in respect of defendants and prisoners with a mental health condition. It will reduce the number of doctors’ opinions required and modify time limits for detention and movement between court, prison and hospital. This will enable them to be admitted to hospital for treatment where there might otherwise be delay owing to shortage of qualified staff in a pandemic.

26 In Scotland, provisions will also permit the reduction in the number of members required to constitute a mental health tribunal and permit a tribunal to make a decision without holding an oral hearing.

27 In Northern Ireland, provisions temporarily amend the Mental Health (Northern Ireland) Order 1986 and the Mental Capacity Act (Northern Ireland) 2016 to allow for social workers, other than approved social workers, to carry out certain statutory functions in relation to detention and deprivation of liberty. The provisions will also temporarily amend the timelines for carrying out examinations and reports and the operation of the trust panel.

28 Also, in Northern Ireland, further provisions temporarily amend parts relating to criminal proceedings and transfers from prisons to healthcare facilities, and longer time periods for assessment and detention in criminal and civil justice settings relating to mentally ill persons and persons who lack mental capacity.


Prepared 18th March 2020