Mental Health Bill [HL]

House of Commons

Session 2006 - 07
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Other Bills before Parliament

Mental Health Bill [HL]

Mental Health Bill [HL]
Schedule 7 — Mental Capacity Act 2005: new Schedule 1A
122

Interested persons
184
Each of the following is an interested person—
(a)
the relevant person’s spouse or civil partner;
(b)
where the relevant person and another person of the
opposite sex are not married to each other but are living
5
together as husband and wife: the other person;
(c)
where the relevant person and another person of the same
sex are not civil partners of each other but are living
together as if they were civil partners: the other person;
(d)
the relevant person’s children and step-children;
10
(e)
the relevant person’s parents and step-parents;
(f)
the relevant person’s brothers and sisters, half-brothers
and half-sisters, and stepbrothers and stepsisters;
(g)
the relevant person’s grandparents;
(h)
a deputy appointed for the relevant person by the court;
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(i)
a donee of a lasting power of attorney granted by the
relevant person.
185   (1)
An interested person consulted by the best interests assessor is any
person whose name is stated in the relevant best interests
assessment in accordance with paragraph 40 (interested persons
20
whom the assessor consulted in carrying out the assessment).
      (2)
The relevant best interests assessment is the most recent best
interests assessment carried out in connection with the standard
authorisation in question (whether the assessment was carried out
under Part 4 or Part 8).
25
186
Where this Schedule imposes on a person a duty towards an
interested person, the duty does not apply if the person on whom
the duty is imposed—
(a)
is not aware of the interested person’s identity or of a way
of contacting him, and
30
(b)
cannot reasonably ascertain it.”.
Schedule 7
Section 47

Mental Capacity Act 2005: new Schedule 1A

After Schedule 1 to the Mental Capacity Act 2005 (c. 9) insert—
“Schedule 1A
35
Persons ineligible to be deprived of liberty by this Act
Part 1
Ineligible persons
Application
1
This Schedule applies for the purposes of—
40

Mental Health Bill [HL]
Schedule 7 — Mental Capacity Act 2005: new Schedule 1A
123

(a)
section 16A, and
(b)
paragraph 17 of Schedule A1.
Determining ineligibility
2
A person (“P”) is ineligible to be deprived of liberty by this Act
(“ineligible”) if—
5
(a)
P falls within one of the cases set out in the second column
of the following table, and
(b)
the corresponding entry in the third column of the table —
or the provision, or one of the provisions, referred to in that
entry — provides that he is ineligible.
10

Status of P
Determination

of ineligibility

P is—

(a)
subject to the hospital treatment regime,

Case A
and
P is ineligible.

15

(b)
detained in a hospital under that

regime.

P is—

(a)
subject to the hospital treatment regime,

Case B
but
See paragraphs 3 and 4.

20

(b)
not detained in a hospital under that

regime.

Case C
P is subject to the community treatment regime.
See paragraphs 3 and 4.

Case D
P is subject to the guardianship regime.
See paragraphs 3 and 5.

P is—

25

(a)
within the scope of the Mental Health

Case E
Act, but
See paragraph 5.

(b)
not subject to any of the mental health

regimes.

Authorised course of action not in accordance with regime
30
3     (1)
This paragraph applies in cases B, C and D in the table in
paragraph 2.
      (2)
P is ineligible if the authorised course of action is not in accordance
with a requirement which the relevant regime imposes.
      (3)
That includes any requirement as to where P is, or is not, to reside.
35
      (4)
The relevant regime is the mental health regime to which P is
subject.

Mental Health Bill [HL]
Schedule 7 — Mental Capacity Act 2005: new Schedule 1A
124

Treatment for mental disorder in a hospital
4     (1)
This paragraph applies in cases B and C in the table in paragraph
2.
      (2)
P is ineligible if the relevant care or treatment consists in whole or
in part of medical treatment for mental disorder in a hospital.
5
P objects to being a mental health patient etc
5     (1)
This paragraph applies in cases D and E in the table in paragraph
2.
      (2)
P is ineligible if the following conditions are met.
      (3)
The first condition is that the relevant instrument authorises P to
10
be a mental health patient.
      (4)
The second condition is that P objects—
(a)
to being a mental health patient, or
(b)
to being given some or all of the mental health treatment.
      (5)
The third condition is that a donee or deputy has not made a valid
15
decision to consent to each matter to which P objects.
      (6)
In determining whether or not P objects to something, regard must
be had to all the circumstances (so far as they are reasonably
ascertainable), including the following—
(a)
P’s behaviour;
20
(b)
P’s wishes and feelings;
(c)
P’s views, beliefs and values.
      (7)
But regard is to be had to circumstances from the past only so far
as it is still appropriate to have regard to them.
Part 2
25
Interpretation
Application
6
This Part applies for the purposes of this Schedule.
Mental health regimes
7
The mental health regimes are—
30
(a)
the hospital treatment regime,
(b)
the community treatment regime, and
(c)
the guardianship regime.
Hospital treatment regime
8     (1)
P is subject to the hospital treatment regime if he is subject to—
35
(a)
a hospital treatment obligation under the relevant
enactment, or

Mental Health Bill [HL]
Schedule 7 — Mental Capacity Act 2005: new Schedule 1A
125

(b)
an obligation under another England and Wales
enactment which has the same effect as a hospital
treatment obligation.
      (2)
But where P is subject to any such obligation, he is to be regarded
as not subject to the hospital treatment regime during any period
5
when he is subject to the community treatment regime.
      (3)
A hospital treatment obligation is an application, order or
direction of a kind listed in the first column of the following table.
      (4)
In relation to a hospital treatment obligation, the relevant
enactment is the enactment in the Mental Health Act which is
10
referred to in the corresponding entry in the second column of the
following table.

Hospital treatment obligation
Relevant

enactment

Application for admission for assessment
Section 2

15

Application for admission for assessment
Section 4

Application for admission for treatment
Section 3

Order for remand to hospital
Section 35

Order for remand to hospital
Section 36

Hospital order
Section 37

20

Interim hospital order
Section 38

Order for detention in hospital
Section 44

Hospital direction
Section 45A

Transfer direction
Section 47

Transfer direction
Section 48

25

Hospital order
Section 51

Community treatment regime
9
P is subject to the community treatment regime if he is subject to—
(a)
a community treatment order under section 17A of the
Mental Health Act, or
30
(b)
an obligation under another England and Wales
enactment which has the same effect as a community
treatment order.
Guardianship regime
10
P is subject to the guardianship regime if he is subject to—
35
(a)
a guardianship application under section 7 of the Mental
Health Act,

Mental Health Bill [HL]
Schedule 7 — Mental Capacity Act 2005: new Schedule 1A
126

(b)
a guardianship order under section 37 of the Mental
Health Act, or
(c)
an obligation under another England and Wales
enactment which has the same effect as a guardianship
application or guardianship order.
5
England and Wales enactments
11    (1)
An England and Wales enactment is an enactment which extends
to England and Wales (whether or not it also extends elsewhere).
      (2)
It does not matter if the enactment is in the Mental Health Act or
not.
10
P within scope of Mental Health Act
12    (1)
P is within the scope of the Mental Health Act if—
(a)
an application in respect of P could be made under section
2 or 3 of the Mental Health Act, and
(b)
P could be detained in a hospital in pursuance of such an
15
application, were one made.
      (2)
The following provisions of this paragraph apply when
determining whether an application in respect of P could be made
under section 2 or 3 of the Mental Health Act.
      (3)
If the grounds in section 2(2) of the Mental Health Act are met in
20
P’s case, it is to be assumed that the recommendations referred to
in section 2(3) of that Act have been given.
      (4)
If the grounds in section 3(2) of the Mental Health Act are met in
P’s case, it is to be assumed that the recommendations referred to
in section 3(3) of that Act have been given.
25
      (5)
In determining whether the ground in section 3(2)(c) of the Mental
Health Act is met in P’s case, it is to be assumed that the treatment
referred to in section 3(2)(c) cannot be provided under this Act.
Authorised course of action, relevant care or treatment & relevant instrument
13
In a case where this Schedule applies for the purposes of section
30
16A—
“authorised course of action” means any course of action
amounting to deprivation of liberty which the order under
section 16(2)(a) authorises;
“relevant care or treatment” means any care or treatment
35
which—
(a)
comprises, or forms part of, the authorised course of
action, or
(b)
is to be given in connection with the authorised
course of action;
40
“relevant instrument” means the order under section 16(2)(a).
14
In a case where this Schedule applies for the purposes of
paragraph 17 of Schedule A1—

Mental Health Bill [HL]
Schedule 7 — Mental Capacity Act 2005: new Schedule 1A
127

“authorised course of action” means the accommodation of
the relevant person in the relevant hospital or care home
for the purpose of being given the relevant care or
treatment;
“relevant care or treatment” has the same meaning as in
5
Schedule A1;
“relevant instrument” means the standard authorisation
under Schedule A1.
15    (1)
This paragraph applies where the question whether a person is
ineligible to be deprived of liberty by this Act is relevant to either
10
of these decisions—
(a)
whether or not to include particular provision (“the
proposed provision”) in an order under section 16(2)(a);
(b)
whether or not to give a standard authorisation under
Schedule A1.
15
      (2)
A reference in this Schedule to the authorised course of action or
the relevant care or treatment is to be read as a reference to that
thing as it would be if—
(a)
the proposed provision were included in the order, or
(b)
the standard authorisation were given.
20
      (3)
A reference in this Schedule to the relevant instrument is to be
read as follows—
(a)
where the relevant instrument is an order under section
16(2)(a): as a reference to the order as it would be if the
proposed provision were included in it;
25
(b)
where the relevant instrument is a standard authorisation:
as a reference to the standard authorisation as it would be
if it were given.
Expressions used in paragraph 5
16    (1)
These expressions have the meanings given—
30
“donee” means a donee of a lasting power of attorney
granted by P;
“mental health patient” means a person accommodated in a
hospital for the purpose of being given medical treatment
for mental disorder;
35
“mental health treatment” means the medical treatment for
mental disorder referred to in the definition of “mental
health patient”.
      (2)
A decision of a donee or deputy is valid if it is made—
(a)
within the scope of his authority as donee or deputy, and
40
(b)
in accordance with Part 1 of this Act.
Expressions with same meaning as in Mental Health Act
17    (1)
“Hospital” has the same meaning as in Part 2 of the Mental Health
Act.
      (2)
“Medical treatment” has the same meaning as in the Mental
45
Health Act.

Mental Health Bill [HL]
Schedule 8 — Amendments relating to new section 4A of,& Schedule A1 to, Mental Capacity Act 2005
Part 1 — Other amendments to Mental Capacity Act 2005
128

      (3)
“Mental disorder” has the same meaning as in Schedule A1 (see
paragraph 14).”.
Schedule 8
Section 47

Amendments relating to new section 4A of,
& Schedule A1 to, Mental Capacity Act 2005
5
Part 1
Other amendments to Mental Capacity Act 2005
Introduction
1
The Mental Capacity Act 2005 (c. 9) is amended as set out in this Part of this
Schedule.
10
New section 21A
2
After section 21 insert—
“Powers of the court in relation to Schedule A1
21A
Powers of court in relation to Schedule A1
(1)
This section applies if either of the following has been given under
15
Schedule A1—
(a)
a standard authorisation;
(b)
an urgent authorisation.
(2)
Where a standard authorisation has been given, the court may
determine any question relating to any of the following matters—
20
(a)
whether the relevant person meets one or more of the
qualifying requirements;
(b)
the period during which the standard authorisation is to be in
force;
(c)
the purpose for which the standard authorisation is given;
25
(d)
the conditions subject to which the standard authorisation is
given.
(3)
If the court determines any question under subsection (2), the court
may make an order—
(a)
varying or terminating the standard authorisation, or
30
(b)
directing the supervisory body to vary or terminate the
standard authorisation.
(4)
Where an urgent authorisation has been given, the court may
determine any question relating to any of the following matters—
(a)
whether the urgent authorisation should have been given;
35
(b)
the period during which the urgent authorisation is to be in
force;
(c)
the purpose for which the urgent authorisation is given.