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Notices of Amendments: 13th June 2007                  

1206

 

Mental Health Bill[ [], continued

 
 

130B  

Arrangements under section 130A

 

(1)    

The help available to a qualifying patient under arrangements under

 

section 130A above shall include help in obtaining information about and

 

understanding—

40

(a)    

the provisions of this Act by virtue of which he is a qualifying

 

patient;

 

(b)    

any conditions or restrictions to which he is subject by virtue of

 

this Act;

 

(c)    

what (if any) medical treatment is given to him or is proposed or

45

discussed in his case;

 

(d)    

why it is given, proposed or discussed;

 

(e)    

the authority under which it is, or would be, given; and

 

(f)    

the requirements of this Act which apply, or would apply, in

 

connection with the giving of the treatment to him.

50

(2)    

The help available under the arrangements to a qualifying patient shall

 

also include—

 

(a)    

help in obtaining information about and understanding any rights

 

which may be exercised under this Act by or in relation to him;

 

and

55

(b)    

help (by way of representation or otherwise) in exercising those

 

rights.

 

(3)    

For the purpose of providing help to a patient in accordance with the

 

arrangements, an independent mental health advocate may—

 

(a)    

visit and interview the patient in private;

60

(b)    

visit and interview any person who is professionally concerned

 

with his medical treatment;

 

(c)    

require the production of and inspect any records relating to his

 

detention or treatment in any hospital or registered establishment

 

or to any after-care services provided for him under section 117

 

above;

65

(d)    

require the production of and inspect any records of, or held by,

 

a local social services authority which relate to him.

 

(4)    

But an independent mental health advocate is not entitled to the

 

production of, or to inspect, records in reliance on subsection (3)(c) or (d)

70

above unless—

 

(a)    

in a case where the patient has capacity or is competent to

 

consent, he does consent; or

 

(b)    

in any other case, the production or inspection would not conflict

 

with a decision made by a donee or deputy or the Court of

75

Protection and the person holding the records, having regard to

 

such matters as may be prescribed in regulations under section

 

130A above, considers that—

 

(i)    

the records may be relevant to the help to be provided by

 

the advocate; and

80

(ii)    

the production or inspection is appropriate.

 

(5)    

For the purpose of providing help to a patient in accordance with the

 

arrangements, an independent mental health advocate shall comply with

 

any reasonable request made to him by any of the following for him to

 

visit and interview the patient—


 
 

Notices of Amendments: 13th June 2007                  

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Mental Health Bill[ [], continued

 

85

(a)    

the person (if any) appearing to the advocate to be the patient’s

 

nearest relative;

 

(b)    

the responsible clinician for the purposes of this Act;

 

(c)    

an approved mental health professional.

 

(6)    

But nothing in this Act prevents the patient from declining to be provided

90

with help under the arrangements.

 

(7)    

In subsection (4) above—

 

(a)    

the reference to a patient who has capacity is to be read in

 

accordance with the Mental Capacity Act 2005;

 

(b)    

the reference to a donee is to a donee of a lasting power of

95

attorney (within the meaning of section 9 of that Act) created by

 

the patient, where the donee is acting within the scope of his

 

authority and in accordance with that Act;

 

(c)    

the reference to a deputy is to a deputy appointed for the patient

 

by the Court of Protection under section 16 of that Act, where the

100

deputy is acting within the scope of his authority and in

 

accordance with that Act.

 

130C  

Section 130A: supplemental

 

(1)    

This section applies for the purposes of section 130A above.

 

(2)    

A patient is a qualifying patient if he is—

105

(a)    

liable to be detained under this Act (otherwise than by virtue of

 

section 4 or 5(2) or (4) above or section 135 or 136 below);

 

(b)    

subject to guardianship under this Act; or

 

(c)    

a community patient.

 

(3)    

A patient is also a qualifying patient if—

110

(a)    

not being a qualifying patient falling within subsection (2)

 

above, he discusses with a registered medical practitioner or

 

approved clinician the possibility of being given a form of

 

treatment to which section 57 above applies; or

 

(b)    

not having attained the age of 18 years and not being a qualifying

115

patient falling within subsection (2) above, he discusses with a

 

registered medical practitioner or approved clinician the

 

possibility of being given a form of treatment to which section

 

58A above applies.

 

(4)    

Where a patient who is a qualifying patient falling within subsection (3)

120

above is informed that the treatment concerned is proposed in his case,

 

he remains a qualifying patient falling within that subsection until—

 

(a)    

the proposal is withdrawn; or

 

(b)    

the treatment is completed or discontinued.

 

(5)    

References to the appropriate national authority are—

125

(a)    

in relation to a qualifying patient in England, to the Secretary of

 

State;

 

(b)    

in relation to a qualifying patient in Wales, to the Welsh

 

Ministers.

130

(6)    

For the purposes of subsection (5) above—

 

(a)    

a qualifying patient falling within subsection (2)(a) above is to be

 

regarded as being in the territory in which the hospital or


 
 

Notices of Amendments: 13th June 2007                  

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Mental Health Bill[ [], continued

 
 

registered establishment in which he is liable to be detained is

 

situated;

135

(b)    

a qualifying patient falling within subsection (2)(b) above is to

 

be regarded as being in the territory in which the area of the

 

responsible local social services authority within the meaning of

 

section 34(3) above is situated;

 

(c)    

a qualifying patient falling within subsection (2)(c) above is to be

140

regarded as being in the territory in which the responsible

 

hospital is situated;

 

(d)    

a qualifying patient falling within subsection (3) above is to be

 

regarded as being in the territory determined in accordance with

 

arrangements made for the purposes of this paragraph, and

145

published, by the Secretary of State and the Welsh Ministers.

 

130D  

Duty to give information about independent mental health advocates

 

(1)    

The responsible person in relation to a qualifying patient (within the

 

meaning given by section 130C above) shall take such steps as are

 

practicable to ensure that the patient understands—

150

(a)    

that help is available to him from an independent mental health

 

advocate; and

 

(b)    

how he can obtain that help.

 

(2)    

In subsection (1) above, “the responsible person” means—

 

(a)    

in relation to a qualifying patient falling within section

155

130C(2)(a) above (other than one also falling within paragraph

 

(b) below), the managers of the hospital or registered

 

establishment in which he is liable to be detained;

 

(b)    

in relation to a qualifying patient falling within section

 

130C(2)(a) above and conditionally discharged by virtue of

160

section 42(2), 73 or 74 above, the responsible clinician;

 

(c)    

in relation to a qualifying patient falling within section

 

130C(2)(b) above, the responsible local social services authority

 

within the meaning of section 34(3) above;

 

(d)    

in relation to a qualifying patient falling within section 30C(2)(c)

165

above, the managers of the responsible hospital;

 

(e)    

in relation to a qualifying patient falling within section 130C(3)

 

above, the registered medical practitioner or approved clinician

 

with whom the patient first discusses the possibility of being

 

given the treatment concerned.

170

(3)    

The steps to be taken under subsection (1) above shall be taken—

 

(a)    

where the responsible person falls within subsection (2)(a)

 

above, as soon as practicable after the patient becomes liable to

 

be detained;

 

(b)    

where the responsible person falls within subsection (2)(b)

175

above, as soon as practicable after the conditional discharge;

 

(c)    

where the responsible person falls within subsection (2)(c)

 

above, as soon as practicable after the patient becomes subject to

 

guardianship;

 

(d)    

where the responsible person falls within subsection (2)(d)

180

above, as soon as practicable after the patient becomes a

 

community patient;


 
 

Notices of Amendments: 13th June 2007                  

1209

 

Mental Health Bill[ [], continued

 
 

(e)    

where the responsible person falls within subsection (2)(e)

 

above, while the discussion with the patient is taking place or as

 

soon as practicable thereafter.

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(4)    

The steps to be taken under subsection (1) above shall include giving the

 

requisite information both orally and in writing.

 

(5)    

The responsible person in relation to a qualifying patient falling within

 

section 130C(2) above (other than a patient liable to be detained by virtue

 

of Part 3 of this Act) shall, except where the patient otherwise requests,

190

take such steps as are practicable to furnish the person (if any) appearing

 

to the responsible person to be the patient’s nearest relative with a copy

 

of any information given to the patient in writing under subsection (1)

 

above.

 

(6)    

The steps to be taken under subsection (5) above shall be taken when the

195

information concerned is given to the patient or within a reasonable time

 

thereafter.”

 

(3)    

In section 134 (patients’ correspondence), in subsection (3A), for paragraph (b)

 

substitute—

 

“(b)    

“independent advocacy services” means services provided

200

under—

 

(i)    

arrangements under section 130A above;

 

(ii)    

arrangements under section 248 of the National Health

 

Service Act 2006 or section 187 of the National Health

 

Service (Wales) Act 2006; or

205

(iii)    

arrangements of a description prescribed as mentioned

 

in paragraph (a) above.”’.

 

As an Amendment to Ms Secretary Hewitt’s proposed New Clause (Independent

 

Mental Health advocates) (NC3):—

 

Sandra Gidley

 

(a)

 

Line  7,  at end insert—

 

‘(1A)    

The appropriate national authority must ensure that help under arrangements

 

made under subsection (1) is available to a qualifying patient from the point at

 

which he undergoes any assessment for the purposes of this Act.’.

 

Sandra Gidley

 

(b)

 

Line  118,  at end insert ‘, or is admitted to, or remains in, a hospital, or registered

 

establishment in pusuance of such arrangements as are mentioned in section

 

131(1).’.

 

Sandra Gidley

 

(c)

 

Line  118,  at end insert—

 

‘(3A)    

A patient is also a qualifying patient if he is about to undergo, or has undergone,

 

any assessment for the purposes of this Act.’.


 
 

Notices of Amendments: 13th June 2007                  

1210

 

Mental Health Bill[ [], continued

 
 

Membership of Mental Health Review Tribunals

 

Sandra Gidley

 

NC16

 

To move the following Clause:—

 

‘In Section 78 of the 1983 Act after subsection (9) insert—

 

“(10)    

The Lord Chancellor must provide for the membership of Mental Health

 

Review Tribunals to include the following groups—

 

(a)    

people from diverse cultural communities;

 

(b)    

service users; and

 

(c)    

carers.”.’.

 

Nomination of carer as nearest relative

 

Lynne Jones

 

NC17

 

To move the following Clause:—

 

‘(1)    

The 1983 Act is amended as follows.

 

(2)    

After section 26(4) insert—

 

“(4A)    

Where a person has made an advance nomination with regard to the

 

choice of a relative or other person to be his nearest relative, his nearest

 

relative shall, subject to the power of the court under section 29 to

 

appoint an acting nearest relative, be determined by giving preference to

 

that choice.

 

(4B)    

“Advance nomination” means a nomination made by a person (“P”), after

 

he has reached 18 and when he has capacity to do so and in contemplation

 

that he shall become subject to any act or decision exercisable under the

 

provisions of this Act that his choice of nearest relative shall take

 

precedence over the provisions of subsection (3).

 

(4C)    

For the purposes of subsection (4B) P’s nomination must be his carer as

 

defined by section 1(1)(a) of the Carer’s and Disabled Children Act 2000.

 

(4D)    

For the purposes of section (4B) nomination cannot be made or

 

withdrawn if P is subject to an order under this Act.

 

(4E)    

An advance nomination is not valid if P—

 

(a)    

has withdrawn the decision at a time when he had capacity to do

 

so, or

 

(b)    

has done anything else clearly inconsistent with the advance

 

nomination remaining his fixed decision.

 

(4F)    

An advance nomination is valid only if—

 

(a)    

it is in writing,

 

(b)    

it is signed by P or by another person in P’s presence and by P’s

 

direction,

 

(c)    

the signature is made or acknowledged by P in the presence of a

 

witness, and

 

(d)    

the witness signs it, or acknowledges his signature, in P’s

 

presence.


 
 

Notices of Amendments: 13th June 2007                  

1211

 

Mental Health Bill[ [], continued

 
 

(4G)    

The court may make a declaration as to whether an advance

 

nomination—

 

(a)    

exists; and

 

(b)    

is valid.”.’.

 

Lynne Jones

 

104

 

Page  15,  line  27  [Clause  23],  leave out ‘or’.

 

Lynne Jones

 

105

 

Page  15,  line  29  [Clause  23],  at end insert ‘because his appointment poses a risk to

 

the health or well-being of the patient; or

 

(f)    

that in the reasonable opinion of the patient the person is not

 

appropriate.’.

 


 
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