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 6 — Mental Capacity Act 2005: new Schedule A1
87

      (3)
The assessor must have regard to all of the following—
(a)
the conclusions which the mental health assessor has
notified to the best interests assessor in accordance with
paragraph 36(b);
(b)
any relevant needs assessment;
5
(c)
any relevant care plan.
      (4)
A relevant needs assessment is an assessment of the relevant
person’s needs which—
(a)
was carried out in connection with the relevant person
being accommodated in the relevant hospital or care
10
home, and
(b)
was carried out by or on behalf of—
(i)
the managing authority of the relevant hospital or
care home, or
(ii)
the supervisory body.
15
      (5)
A relevant care plan is a care plan which—
(a)
sets out how the relevant person’s needs are to be met
whilst he is accommodated in the relevant hospital or care
home, and
(b)
was drawn up by or on behalf of—
20
(i)
the managing authority of the relevant hospital or
care home, or
(ii)
the supervisory body.
      (6)
The managing authority must give the assessor a copy of—
(a)
any relevant needs assessment carried out by them or on
25
their behalf, or
(b)
any relevant care plan drawn up by them or on their
behalf.
      (7)
The supervisory body must give the assessor a copy of—
(a)
any relevant needs assessment carried out by them or on
30
their behalf, or
(b)
any relevant care plan drawn up by them or on their
behalf.
      (8)
The duties in sub-paragraphs (2) and (3) do not affect any other
duty to consult or to take the views of others into account.
35
40    (1)
This paragraph applies whatever conclusion the best interests
assessment comes to.
      (2)
The assessor must state in the best interests assessment the name
and address of every interested person whom he has consulted in
carrying out the assessment.
40
41
Paragraphs 42 and 43 apply if the best interests assessment comes
to the conclusion that the relevant person meets the best interests
requirement.
42    (1)
The assessor must state in the assessment the maximum
authorisation period.
45

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88

      (2)
The maximum authorisation period is the period which, in the
assessor’s opinion, would be the appropriate maximum period for
the relevant person to be a detained resident under the authority
of the standard authorisation that has been requested.
      (3)
The maximum authorisation period must not exceed 1 year.
5
43
The assessor may include in the assessment recommendations
about conditions to which the standard authorisation is, or is not,
to be subject in accordance with paragraph 53.
44    (1)
This paragraph applies if the best interests assessment comes to
the conclusion that the relevant person does not meet the best
10
interests requirement.
      (2)
If, on the basis of the information taken into account in carrying
out the assessment, it appears to the assessor that there is an
unauthorised deprivation of liberty, he must include a statement
to that effect in the assessment.
15
      (3)
There is an unauthorised deprivation of liberty if the managing
authority of the relevant hospital or care home are already
depriving the relevant person of his liberty without authority of
the kind mentioned in section 4A.
45
The duties with which the best interests assessor must comply are
20
subject to the provision included in appointment regulations
under Part 10 (in particular, provision made under paragraph
146).
Eligibility assessment
46
An eligibility assessment is an assessment of whether the relevant
25
person meets the eligibility requirement.
47    (1)
Regulations may—
(a)
require an eligibility assessor to request a best interests
assessor to provide relevant eligibility information, and
(b)
require the best interests assessor, if such a request is
30
made, to provide such relevant eligibility information as
he may have.
      (2)
In this paragraph—
“best interests assessor” means any person who is carrying
out, or has carried out, a best interests assessment in
35
relation to the relevant person;
“eligibility assessor” means a person carrying out an
eligibility assessment in relation to the relevant person;
“relevant eligibility information” is information relevant to
assessing whether or not the relevant person is ineligible
40
by virtue of paragraph 5 of Schedule 1A.
No refusals assessment
48
A no refusals assessment is an assessment of whether the relevant
person meets the no refusals requirement.

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Equivalent assessment already carried out
49    (1)
The supervisory body are not required by paragraph 33 to secure
that a particular kind of assessment (“the required assessment”) is
carried out in relation to the relevant person if the following
conditions are met.
5
      (2)
The first condition is that the supervisory body have a written
copy of an assessment of the relevant person (“the existing
assessment”) that has already been carried out.
      (3)
The second condition is that the existing assessment complies with
all requirements under this Schedule with which the required
10
assessment would have to comply (if it were carried out).
      (4)
The third condition is that the existing assessment was carried out
within the previous 12 months; but this condition need not be met
if the required assessment is an age assessment.
      (5)
The fourth condition is that the supervisory body are satisfied that
15
there is no reason why the existing assessment may no longer be
accurate.
      (6)
If the required assessment is a best interests assessment, in
satisfying themselves as mentioned in sub-paragraph (5), the
supervisory body must take into account any information given,
20
or submissions made, by—
(a)
the relevant person’s representative, or
(b)
any section 39C IMCA.
      (7)
It does not matter whether the existing assessment was carried out
in connection with a request for a standard authorisation or for
25
some other purpose.
      (8)
If, because of this paragraph, the supervisory body are not
required by paragraph 33 to secure that the required assessment is
carried out, the existing assessment is to be treated for the
purposes of this Schedule—
30
(a)
as an assessment of the same kind as the required
assessment, and
(b)
as having been carried out under paragraph 33 in
connection with the request for the standard authorisation.
Duty to give authorisation
35
50    (1)
The supervisory body must give a standard authorisation if—
(a)
all assessments are positive, and
(b)
the supervisory body have written copies of all those
assessments.
      (2)
The supervisory body must not give a standard authorisation
40
except in accordance with sub-paragraph (1).
      (3)
All assessments are positive if each assessment carried out under
paragraph 33 has come to the conclusion that the relevant person
meets the qualifying requirement to which the assessment relates.

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Terms of authorisation
51    (1)
If the supervisory body are required to give a standard
authorisation, they must decide the period during which the
authorisation is to be in force.
      (2)
That period must not exceed the maximum authorisation period
5
stated in the best interests assessment.
52
A standard authorisation may provide for the authorisation to
come into force at a time after it is given.
53    (1)
A standard authorisation may be given subject to conditions.
      (2)
Before deciding whether to give the authorisation subject to
10
conditions, the supervisory body must have regard to any
recommendations in the best interests assessment about such
conditions.
      (3)
The managing authority of the relevant hospital or care home
must ensure that any conditions are complied with.
15
Form of authorisation
54
A standard authorisation must be in writing.
55    (1)
A standard authorisation must state the following things—
(a)
the name of the relevant person;
(b)
the name of the relevant hospital or care home;
20
(c)
the period during which the authorisation is to be in force;
(d)
the purpose for which the authorisation is given;
(e)
any conditions subject to which the authorisation is given;
(f)
the reason why each qualifying requirement is met.
      (2)
The statement of the reason why the eligibility requirement is met
25
must be framed by reference to the cases in the table in paragraph
2 of Schedule 1A.
56    (1)
If the name of the relevant hospital or care home changes, the
standard authorisation is to be read as if it stated the current name
of the hospital or care home.
30
      (2)
But sub-paragraph (1) is subject to any provision relating to the
change of name which is made in any enactment or in any
instrument made under an enactment.
Duty to give information about decision
57    (1)
This paragraph applies if—
35
(a)
a request is made for a standard authorisation, and
(b)
the supervisory body are required by paragraph 50(1) to
give the standard authorisation.
      (2)
The supervisory body must give a copy of the authorisation to
each of the following—
40
(a)
the relevant person’s representative;

Mental Health Bill [HL]
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(b)
the managing authority of the relevant hospital or care
home;
(c)
the relevant person;
(d)
any section 39A IMCA;
(e)
every interested person consulted by the best interests
5
assessor.
      (3)
The supervisory body must comply with this paragraph as soon as
practicable after they give the standard authorisation.
58    (1)
This paragraph applies if—
(a)
a request is made for a standard authorisation, and
10
(b)
the supervisory body are prohibited by paragraph 50(2)
from giving the standard authorisation.
      (2)
The supervisory body must give notice, stating that they are
prohibited from giving the authorisation, to each of the
following—
15
(a)
the managing authority of the relevant hospital or care
home;
(b)
the relevant person;
(c)
any section 39A IMCA;
(d)
every interested person consulted by the best interests
20
assessor.
      (3)
The supervisory body must comply with this paragraph as soon as
practicable after it becomes apparent to them that they are
prohibited from giving the authorisation.
Duty to give information about effect of authorisation
25
59    (1)
This paragraph applies if a standard authorisation is given.
      (2)
The managing authority of the relevant hospital or care home
must take such steps as are practicable to ensure that the relevant
person understands all of the following—
(a)
the effect of the authorisation;
30
(b)
the right under section 21A to make an application to the
court;
(c)
the right under Part 8 to request a review.
      (3)
Those steps must be taken as soon as is practicable after the
authorisation is given.
35
      (4)
Those steps must include the giving of appropriate information
both orally and in writing.
      (5)
Any written information given to the relevant person must also be
given by the managing authority to the relevant person’s
representative.
40
      (6)
They must give the information to the representative as soon as is
practicable after it is given to the relevant person.

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Records of authorisations
60
A supervisory body must keep a written record of all of the
following information—
(a)
the standard authorisations that they have given;
(b)
the requests for standard authorisations in response to
5
which they have not given an authorisation;
(c)
in relation to each standard authorisation given: the
matters stated in the authorisation in accordance with
paragraph 55.
Variation of an authorisation
10
61    (1)
A standard authorisation may not be varied except in accordance
with Part 7 or 8.
      (2)
This paragraph does not affect the powers of the Court of
Protection or of any other court.
Effect of decision about request made under paragraph 25 or 30
15
62    (1)
This paragraph applies where the managing authority request a
new standard authorisation under either of the following—
(a)
paragraph 25 (change in place of detention);
(b)
paragraph 30 (existing authorisation subject to review).
      (2)
If the supervisory body are required by paragraph 50(1) to give the
20
new authorisation, the existing authorisation terminates at the
time when the new authorisation comes into force.
      (3)
If the supervisory body are prohibited by paragraph 50(2) from
giving the new authorisation, there is no effect on the existing
authorisation’s continuation in force.
25
When an authorisation is in force
63    (1)
A standard authorisation comes into force when it is given.
      (2)
But if the authorisation provides for it to come into force at a later
time, it comes into force at that time.
64    (1)
A standard authorisation ceases to be in force at the end of the
30
period stated in the authorisation in accordance with paragraph
55(c).
      (2)
But if the authorisation terminates before then in accordance with
paragraph 62(2) or any other provision of this Schedule, it ceases
to be in force when the termination takes effect.
35
      (3)
This paragraph does not affect the powers of the Court of
Protection or of any other court.
65    (1)
This paragraph applies if a standard authorisation ceases to be in
force.
      (2)
The supervisory body must give notice that the authorisation has
40
ceased to be in force.

Mental Health Bill [HL]
Schedule 6 — Mental Capacity Act 2005: new Schedule A1
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      (3)
The supervisory body must give that notice to all of the
following—
(a)
the managing authority of the relevant hospital or care
home;
(b)
the relevant person;
5
(c)
the relevant person’s representative;
(d)
every interested person consulted by the best interests
assessor.
      (4)
The supervisory body must give that notice as soon as practicable
after the authorisation ceases to be in force.
10
When a request for a standard authorisation is “disposed of”
66
A request for a standard authorisation is to be regarded for the
purposes of this Schedule as disposed of if the supervisory body
have given—
(a)
a copy of the authorisation in accordance with paragraph
15
57, or
(b)
notice in accordance with paragraph 58.
Right of third party to require consideration of whether authorisation needed
67
For the purposes of paragraphs 68 to 73 there is an unauthorised
deprivation of liberty if—
20
(a)
a person is already a detained resident in a hospital or care
home, and
(b)
the detention of the person is not authorised as mentioned
in section 4A.
68    (1)
If the following conditions are met, an eligible person may request
25
the supervisory body to decide whether or not there is an
unauthorised deprivation of liberty.
      (2)
The first condition is that the eligible person has notified the
managing authority of the relevant hospital or care home that it
appears to the eligible person that there is an unauthorised
30
deprivation of liberty.
      (3)
The second condition is that the eligible person has asked the
managing authority to request a standard authorisation in relation
to the detention of the relevant person.
      (4)
The third condition is that the managing authority has not
35
requested a standard authorisation within a reasonable period
after the eligible person asks it to do so.
      (5)
In this paragraph “eligible person” means any person other than
the managing authority of the relevant hospital or care home.
69    (1)
This paragraph applies if an eligible person requests the
40
supervisory body to decide whether or not there is an
unauthorised deprivation of liberty.