Mental Health Bill [HL]

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Session 2006 - 07
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Mental Health Bill [HL]

Mental Health Bill [HL]
Part 1 — Amendments to Mental Health Act 1983
Chapter 8 — Miscellaneous
40

Chapter 8
Miscellaneous
41
Offence of ill-treatment: increase in maximum penalty on conviction on
indictment
In section 127 of the 1983 Act (ill-treatment or wilful neglect of patients), in
5
subsection (3)(b), for “two years” substitute “five years”.
42
Informal admission of patients aged 16 or 17
In section 131 of the 1983 Act (informal admission of patients), for subsection
(2) substitute—
“(2)
Subsections (3) and (4) below apply in the case of a patient aged 16 or
10
17 years who has capacity to consent to the making of such
arrangements as are mentioned in subsection (1) above.
(3)
If the patient consents to the making of the arrangements, they may be
made, carried out and determined on the basis of that consent even
though there are one or more persons who have parental responsibility
15
for him.
(4)
If the patient does not consent to the making of the arrangements, they
may not be made, carried out or determined on the basis of the consent
of a person who has parental responsibility for him.
(5)
In this section—
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(a)
the reference to a patient who has capacity is to be read in
accordance with the Mental Capacity Act 2005; and
(b)
“parental responsibility” has the same meaning as in the
Children Act 1989.”
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Places of safety
25
(1)
The 1983 Act is amended as follows.
(2)
In section 135 (warrant to search for and remove patients), after subsection (3)
insert—
“(3A)
A constable, an approved mental health professional or a person
authorised by either of them for the purposes of this subsection may,
30
before the end of the period of 72 hours mentioned in subsection (3)
above, take a person detained in a place of safety under that subsection
to one or more other places of safety.
(3B)
A person taken to a place of safety under subsection (3A) above may be
detained there for a period ending no later than the end of the period of
35
72 hours mentioned in subsection (3) above.”
(3)
In section 136 (mentally disordered persons found in public places), after
subsection (2) insert—
“(3)
A constable, an approved mental health professional or a person
authorised by either of them for the purposes of this subsection may,
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before the end of the period of 72 hours mentioned in subsection (2)

Mental Health Bill [HL]
Part 1 — Amendments to Mental Health Act 1983
Chapter 8 — Miscellaneous
41

above, take a person detained in a place of safety under that subsection
to one or more other places of safety.
(4)
A person taken to a place of a safety under subsection (3) above may be
detained there for a purpose mentioned in subsection (2) above for a
period ending no later than the end of the period of 72 hours mentioned
5
in that subsection.”
44
Delegation of powers of managers of NHS foundation trusts
(1)
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
10
whom is neither an executive director of the board nor an employee of the
trust.”
(2)
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)”.
15
(3)
After section 142D of the 1983 Act (inserted by section 24 of this Act), insert—
“142E
Delegation of powers of managers of NHS foundation trusts
(1)
The constitution of an NHS foundation trust may not provide for a
function under this Act to be delegated otherwise than in accordance
with provision made by or under this Act.
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(2)
Paragraph 15(3) of Schedule 7 to the National Health Service Act 2006
(which provides that the powers of a public benefit corporation may be
delegated to a committee of directors or to an executive director) shall
have effect subject to this section.”
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Local Health Boards
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(1)
The 1983 Act is amended as follows.
(2)
In section 19(3) (removal of patients), after “NHS foundation trust”, in each
place, insert “, Local Health Board”.
(3)
In section 145(1) (interpretation)—
(a)
in the definition of “hospital”, after paragraph (b) insert “; and
30
(c)
any hospital as defined by section 206 of the National
Health Service (Wales) Act 2006 which is vested in a
Local Health Board;”, and
(b)
in the definition of “the managers”, after paragraph (bc) insert—
“(bd)
in relation to a hospital vested in a Local Health Board,
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the Board;”.
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Welsh Ministers: procedure for instruments
(1)
Section 143 of the 1983 Act (general provisions as to regulations, orders and
rules) is amended as follows.
(2)
In subsection (2), for “or rules made” substitute “made by the Secretary of State,
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or rules made,”.

Mental Health Bill [HL]
Part 2 — Amendments to Mental Capacity Act 2005
42

(3)
After subsection (3) insert—
“(3A)
Subsections (3B) to (3D) apply where power to make regulations or an
order under this Act is conferred on the Welsh Ministers (other than by
or by virtue of the Government of Wales Act 2006).
(3B)
Any power of the Welsh Ministers to make regulations or an order shall
5
be exercisable by statutory instrument.
(3C)
Any statutory instrument containing regulations, or an order under
section 68A(7) above, made by the Welsh Ministers shall be subject to
annulment in pursuance of a resolution of the National Assembly for
Wales.
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(3D)
No order shall be made under section 68A(1) above by the Welsh
Ministers unless a draft of it has been approved by a resolution of the
National Assembly for Wales.
(3E)
In this section—
(a)
references to the Secretary of State include the Secretary of State
15
and the Welsh Ministers acting jointly; and
(b)
references to the Welsh Ministers include the Welsh Ministers
and the Secretary of State acting jointly.”
Part 2
Amendments to Mental Capacity Act 2005
20
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Mental Capacity Act 2005: deprivation of liberty
(1)
The Mental Capacity Act 2005 (c. 9) is amended as follows.
(2)
After section 4 insert—
“4A
Restriction on deprivation of liberty
(1)
This Act does not authorise any person (“D”) to deprive any other
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person (“P”) of his liberty.
(2)
But that is subject to—
(a)
the following provisions of this section, and
(b)
section 4B.
(3)
D may deprive P of his liberty if, by doing so, D is giving effect to a
30
relevant decision of the court.
(4)
A relevant decision of the court is a decision made by an order under
section 16(2)(a) in relation to a matter concerning P’s personal welfare.
(5)
D may deprive P of his liberty if the deprivation is authorised by
Schedule A1 (hospital and care home residents: deprivation of liberty).
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4B
Deprivation of liberty necessary for life-sustaining treatment etc
(1)
If the following conditions are met, D is authorised to deprive P of his
liberty while a decision as respects any relevant issue is sought from the
court.

Mental Health Bill [HL]
Part 2 — Amendments to Mental Capacity Act 2005
43

(2)
The first condition is that there is a question about whether D is
authorised to deprive P of his liberty under section 4A.
(3)
The second condition is that the deprivation of liberty—
(a)
is wholly or partly for the purpose of—
(i)
giving P life-sustaining treatment, or
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(ii)
doing any vital act, or
(b)
consists wholly or partly of—
(i)
giving P life-sustaining treatment, or
(ii)
doing any vital act.
(4)
The third condition is that the deprivation of liberty is necessary in
10
order to—
(a)
give the life-sustaining treatment, or
(b)
do the vital act.
(5)
A vital act is any act which the person doing it reasonably believes to
be necessary to prevent a serious deterioration in P’s condition.”
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(3)
After section 16 insert—
“16A
Section 16 powers: Mental Health Act patients etc
(1)
If a person is ineligible to be deprived of liberty by this Act, the court
may not include in a welfare order provision which authorises the
person to be deprived of his liberty.
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(2)
If—
(a)
a welfare order includes provision which authorises a person to
be deprived of his liberty, and
(b)
that person becomes ineligible to be deprived of liberty by this
Act,
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the provision ceases to have effect for as long as the person remains
ineligible.
(3)
Nothing in subsection (2) affects the power of the court under section
16(7) to vary or discharge the welfare order.
(4)
For the purposes of this section—
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(a)
Schedule 1A applies for determining whether or not P is
ineligible to be deprived of liberty by this Act;
(b)
“welfare order” means an order under section 16(2)(a).”
(4)
Omit the following provisions (which make specific provision about
deprivation of liberty)—
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(a)
section 6(5);
(b)
section 11(6);
(c)
section 20(13).
(5)
Schedule 6 (which inserts the new Schedule A1 into the Mental Capacity Act
2005 (c. 9)) has effect.
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(6)
Schedule 7 (which inserts the new Schedule 1A into the Mental Capacity Act
2005) has effect.
(7)
Schedule 8 (which makes other amendments to the Mental Capacity Act 2005
and to other Acts) has effect.

Mental Health Bill [HL]
Part 3 — General
44

(8)
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.
(9)
If this Act is passed after the end of the initial period, the functions conferred
5
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—
(a)
had been conferred on the Assembly constituted by GOWA 1998 by an
Act passed before the end of the initial period, and
10
(b)
were exercisable by that Assembly immediately before the end of the
initial period.
(10)
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)—
15
(a)
paragraphs 34 and 35 of Schedule 11 to the Government of Wales Act
2006 do not apply; and
(b)
subsections (11) and (12) apply instead.
(11)
If a relevant statutory instrument contains regulations under paragraph 129,
162 or 163 of Schedule A1 to the Mental Capacity Act 2005 (whether or not it
20
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.
(12)
Subject to that, a relevant statutory instrument is subject to annulment in
pursuance of a resolution of the National Assembly for Wales.
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(13)
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).
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Amendment to section 20(11) of Mental Capacity Act 2005
In section 20 of the Mental Capacity Act 2005 (c. 9) (restrictions on deputies), in
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subsection (11)(a), for “or” substitute “and”.
Part 3
General
49
Meaning of “1983 Act”
In this Act “the 1983 Act” means the Mental Health Act 1983 (c. 20).
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50
Transitional provisions and savings
Schedule 9 (which contains transitional provisions and savings) has effect.