House of Commons - Amendments

Mental Health Bill [Lords] *- continued*	House of Commons

back to previous text

Ms Rosie Winterton

Schedule 10, page 138, line 31, column 2, at end insert—

	‘In section 32(2)(c), the words “or to after-care under supervision”. In section 34— (a) in subsection (1), the definitions of “the community responsible medical officer” and “the supervisor”, and (b) subsection (1A).
	In section 66(1)— (a) paragraphs (ga), (gb) and (gc) (and the word “or” at the end of each of those paragraphs), and (b) in sub-paragraph (i), the words from “or, in the cases” to the end.
	In section 66(2)— (a) in paragraph (d), the words “and (gb)”, and (b) paragraph (fa).
	In section 67(1), the words “or to after-care under supervision”.’.

Ms Rosie Winterton

Schedule 10, page 138, line 32, column 2, at end insert—

	‘Section 72(4A).
	In section 76(1), the words from “or to after-care” to “leaves hospital)”.
	Section 117(2A).
	Section 127(2A).
	In section 145— (a) in subsection (1), the definitions of “the responsible after-care bodies” and “supervision application”, and (b) subsection (1A).’.

Ms Rosie Winterton

Schedule 10, page 138, line 34, column 2, at end insert—

‘In Part 1 of Schedule 1— (a) in paragraph 2, the words “, 25A, 25B”, and (b) paragraph 8A.’.

Ms Rosie Winterton

Schedule 10, page 138, line 34, at end insert—

‘Mental Health (Patients in the Community) Act 1995 (c. 52)

Section 1(1).
In Schedule 1— (a) in paragraph 2, paragraph (c) (and the word “and” immediately preceding it), (b) in paragraph 11, paragraph (a) (and the word “and” at the end of that paragraph), and (c) paragraphs 3, 4, 6, 7, 8(2), 10(1) to (3), 12, 13, 18 and 20.’.

Ms Rosie Winterton

Schedule 10, page 138, line 36, at end insert—

‘National Health Service Reform and Health Care Professions Act 2002 (c. 17)	In Schedule 2, paragraphs 43 to 45.
Civil Partnership Act 2004 (c. 33)	In Schedule 27, in paragraph 86, paragraph (b) (and the word “and” immediately preceding it).’.

Ms Rosie Winterton

Clause 53, page 45, line 38, leave out ‘54 and’ and insert ‘[Commencement of section [Repeal of provisions for after-care under supervision]] to’.

Ms Rosie Winterton

Clause 53, page 46, line 10, after ‘(4)(b)’, insert ‘(including provision within section [Commencement of section [Repeal of provisions for after-care under supervision]])’.

Ms Rosie Winterton

Clause 55, page 46, line 22, leave out subsection (2).

new clauses

Repeal of provisions for after-care under supervision

Ms Rosie Winterton

NC12

To move the following Clause:—

‘(1) The 1983 Act is amended as follows.

(2) Sections 25A to 25J (after-care under supervision) are omitted.

(3) In section 66 (applications to tribunals), in subsection (2)(c), for “cases mentioned in paragraphs (c) and (ga)” substitute “case mentioned in paragraph (c)”.

(4) In Part 1 of Schedule 1 (application of certain provisions to patients subject to hospital and guardianship orders: patients not subject to special restrictions), in paragraph 1, for “25C” substitute “26”.’.

Commencement of section [Repeal of provisions for after-care under supervision]

Ms Rosie Winterton

NC13

To move the following Clause:—

‘(1) An order under section 53 providing for the commencement of section [Repeal of provisions for after-care under supervision] may, in particular, provide—

(a) for that section not to apply to or affect a patient who is subject to after-care under supervision immediately before that commencement, and

(b) for the patient to cease to be subject to after-care under supervision, and for his case to be dealt with, in accordance with provision made by the order.

(2) The order may require—

(a) a Primary Care Trust or Local Health Board to secure that the patient is examined by a registered medical practitioner of a description specified in the order;

(b) the registered medical practitioner to examine the patient with a view to making a decision about his case by reference to criteria specified in the order.

(3) The order may require the registered medical practitioner, having complied with provision made by virtue of subsection (2)(b)—

(a) to discharge the patient,

(b) to recommend that he be detained in hospital,

(d) to make a community treatment order in respect of him.

(4) The order may, in respect of a recommendation made by virtue of subsection (3)(b) or (c)—

(a) provide that the recommendation is to be made to a local social services authority determined in accordance with the order;

(b) provide that the recommendation is to be made in accordance with any other requirements specified in the order;

(c) require the local social services authority determined in accordance with paragraph (a), in response to the recommendation, to make arrangements for an approved mental health professional to consider the patient’s case on their behalf.

(5) The order may provide that a registered medical practitioner shall not make a community treatment order in respect of a patient unless an approved mental health professional states in writing—

(a) that he agrees with the decision made by the practitioner about the patient’s case, and

(b) that it is appropriate to make the order.

(6) An order requiring a registered medical practitioner to make a community treatment order in respect of a patient shall include provision about—

(a) the effect of the community treatment order (in particular, replacing after-care under supervision with a contingent requirement to attend, and be detained at, a hospital), and

(b) the effect of its revocation (including, in particular, provision for detention under section 3 of the 1983 Act).

(7) The order may modify a provision of the 1983 Act in its application in relation to a patient who is subject to after-care under supervision immediately before the commencement of section [Repeal of provisions for after-care under supervision].

(8) Provision made by virtue of subsection (7) may, in particular—

(a) modify any of sections 25A to 25J of the 1983 Act in their application in relation to a patient for so long as he is, by virtue of subsection (1)(a), subject to after-care under supervision after the commencement of section [Repeal of provisions for after-care under supervision];

(b) modify any of sections 17A to 17G, 20A and 20B of that Act (inserted by section 32 of this Act) in their application in relation to a patient in respect of whom a community treatment order is made by virtue of subsection (3)(d).

(9) A reference in this section to section [Repeal of provisions for after-care under supervision] includes the amendments and repeals in Schedules 3 and 10 consequential on that section.

(10) An expression used in this section and in the 1983 Act has the same meaning in this section as it has in that Act.’.

Independent mental health advocacy

Sandra Gidley
Tim Loughton
Dr John Pugh
Angela Browning
Mr Tim Boswell
Mr Charles Walker

NC1

To move the following Clause:—

‘(1) The 1983 Act is amended as follows.

(2) After section 59 insert—

“59A Independent mental health advocacy etc.,

(1) The appropriate authority must arrange, to such extent as it considers necessary to meet all reasonable requirements, for help from persons to be known as independent mental health advocates, to be available to qualifying patients.

(2) The help available under the arrangements must include—

(a) help in obtaining information about and understanding—

(i) what medical treatment is being provided to the patient,

(ii) why it is being provided,

(iii) under what authority it is being provided,

(iv) the requirements of this Act which apply in connection with the patient’s treatment, and

(v) the rights which can be exercised by or in respect of him under this Act, and

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

(3) An independent mental health advocate authorised by a patient or his nearest relative on his behalf may at any reasonable time, for the purpose of providing, in accordance with the arrangements, help requested by the patient or his nearest relative, meet the patient in private.

(4) The appropriate authority may by regulations provide that a person may act as an independent mental health advocate only—

(a) if requirements specified in the regulations are met in respect of him; or

(b) if requirements specified in the regulations are met in respect of any person with whom arrangements are made for him to act as an independent mental health advocate; or

(5) In making arrangements under this section, the appropriate authority must have regard to the principle that the provision of help under the arrangement should, so far as practicable, be independent of any person responsible for the patient’s treatment.

(6) This section applies in respect of the following patients—

(a) a patient who is liable to be detained by virtue of an application for admission for assessment or an application for admission for treatment under Part II of this Act;

(b) a community patient;

(i) in the execution of a warrant under section 135; or

(ii) by a constable under section 136,

(d) an accused person within the meaning of section 35 remanded under that section to hospital for a report on his mental condition;

(e) an accused person within the meaning of section 36 remanded under that section to hospital for treatment;

(f) a patient in respect of whom there is in force—

(i) a hospital order,

(ii) a transfer direction,

(iii) a hospital direction,

(g) a patient, not being liable to be detained under this Act, who is asked to consent to any form of treatment to which section 57 applies.’.

Duty to inform patient of the right of access to an advocate

Sandra Gidley
Tim Loughton
Dr John Pugh
Angela Browning
Mr Tim Boswell
Mr Charles Walker

NC2

To move the following Clause:—

‘(1) The 1983 Act is amended as follows—

(2) After section 59A, inserted by this Act, insert—

“59B Duty to inform patient of advocacy provision

(1) The appropriate authority shall have a duty to inform a qualifying patient of the right to seek the services of an independent mental health advocate as soon as is reasonably practicable after the patient becomes a qualifying patient and thereafter, at reasonable intervals—

(a) at all points where decisions are made about care and treatment;

(b) on the use of interventions to manage behaviour;

(c) in any case where an allegation of abuse, including offences relating to sections 38 to 41 of the Sexual Offences Act 2003, is made by a qualifying patient.

(2) In any case where it is proposed that treatment specified by regulations made by the Secretary of State pursuant to section 58(1)(a) should be given to a patient, the appropriate authority shall have a duty to inform, or as the case may be, remind the patient of the right to seek the services of an independent mental health advocate—

(a) before the patient is asked to consent to the specified treatment; or

(b) before a certificate has been given under section 58(3)(b).

(3) In the case of a patient who is a qualifying patient by the virtue of section 59A(6)(g) the appropriate authority shall have a duty to inform, or as the case may be, remind the patient of the right to seek the services of an independent mental health advocate before he is given any form of treatment to which section 57 applies.’.

Duty to assess needs

Sandra Gidley
Tim Loughton
Dr John Pugh
Angela Browning
Mr Tim Boswell
Mr Charles Walker

NC3

To move the following Clause:—

‘(1) The 1983 Act is amended as follows—

(2) After section 1 insert—

“1A Assessment of needs for health and social care services

(1) Where it appears to a local authority or a health authority that—

(a) any person with a mental disorder for whom they may provide or arrange for the provision of community care services may be in need of any such services, or

(b) any person with a mental disorder may be in need of services which are commissioned by the health authority in respect of mentally disordered persons—

the authority and the health authority shall carry out a joint assessment of his needs for those services; and having regard to the results of that assessment, shall then decide whether his needs call for the provision by them of any such services.

(2) Where a local authority or health authority receives a request for an assessment under subsection (1) in writing by—

(a) the person with mental disorder,

(b) the carer, (as defined under section 1 of the Carers and Disabled Children Act 2000(c.16)),

(d) an approved mental health professional

the authorities must comply with subsection (3) below.

(3) The requirement referred to in subsection (2) above is to give notice, before the expiry of the period of 14 days beginning with the day on which the request is received, to the person who made the request of whether the health authority and local authority intends to undertake the assessment; and if the intention is not to undertake the assessment, of the reason why that is the case.”.’.

Advance decisions and advance statements

Sandra Gidley
Tim Loughton
Dr John Pugh
Angela Browning
Mr Tim Boswell
Mr Charles Walker

NC4

To move the following Clause:—

‘(1) The 1983 Act is amended as follows.

(2) After section 76 (visiting and examination of patients) insert—

“76A Advance decisions and advance statements

(1) In this Act—

(a) reference to an advance decision is to an advance decision (within the meaning of the Mental Capacity Act 2005(c.9)) made by the patient, and

(b) “valid and applicable” in relation to such a decision means valid and applicable to the treatment in question in accordance with section 25 of that Act.

(2) If an advance decision is found to be valid and applicable to the treatment regulated by Part 4 of the 1983 Act, the person providing the treatment shall have regard to the advance decision.

(3) Where a decision is made which is inconsistent with a valid and applicable advance decision by the person providing treatment, that person must comply with the requirements set out in subsection (4) below.

(4) Those requirements are—

(a) the circumstances in which treatment was provided and the reason for it should be recorded in writing; and

(b) a copy of that record should be supplied to

(i) the patient

(ii) the patient’s nearest relative and another copy placed in the patients medical notes.

(5) A person performing a function under this Act shall consider, so far as reasonably ascertainable the patient’s past and present wishes and feelings (and in particular any relevant written statement made by him when he had capacity.”.

(3) In section 63 (treatment not requiring consent), at the end, insert—

“(2) When deciding what treatment to give, the approved clinician in charge of the treatment shall consider so far as reasonably ascertainable the patient’s past and present wishes and feelings (and in particular any relevant written statement made by him when he had capacity), and shall record any treatments requested by the patient in the patient’s medical record, and if that treatment is not given shall record the reasons for this.”.’.

Seclusion

Dr John Pugh
Tim Loughton
Sandra Gidley
Angela Browning
Mr Tim Boswell
Mr Charles Walker

NC5

To move the following Clause:—

‘(1) The 1983 Act is amended as follows.

(2) After section 142 insert—

“142A Use of seclusion and other forms of behaviour management

(1) This section applies to the use of seclusion, mechanical restraint or other interventions to manage disturbed behaviour as may be specified for the purposes of this section by regulations made by the Secretary of State.

(2) For the purposes of this Act, seclusion means the removal of a patient without consent from normal levels of association or freedom of movement for the protection of others from significant harm.

(3) A patient shall not be so removed except for the purpose stated in subsection (2) above.

(4) A patient shall not be subject to any form of intervention to which this section applies, except in accordance with regulations.

(5) The Secretary of State shall make regulations prescribing—

(a) circumstances under which any form of intervention to which this section applies may be used;

(b) reporting requirements on the use of any such intervention;

(d) scrutiny of the use of such interventions; and

(e) circumstances under which patients subject to such interventions must be visited by persons authorised by the Commission.

(6) Before making any regulations for the purposes of this section the Secretary of State shall consult such bodies as appear to him to be concerned”.’.

Right to move hospital

Tim Loughton
Sandra Gidley
Angela Browning
Dr John Pugh
Mr Tim Boswell
Mr Charles Walker

NC6

To move the following Clause:—

‘(1) The 1983 Act is amended as follows—

(2) After section 19 (Regulations as to transfer of patients) of the 1983 Act insert—

“19A The right to move hospital

(1) All patients and their families must be informed that a patient can apply to move from one hospital to another if there is a good reason to do so, taking into account their family, culture or medical needs and wishes.

(2) All applications by patients shall be recorded.

(3) If an application is refused written reasons shall be provided to the applicant, and subject to the wishes of the patient, to the nearest relative and any relatives (as defined in section 26) as the patient shall specify.”.’.

Authority to treat community patients

Angela Browning
Tim Loughton
Dr John Pugh
Mr Tim Boswell
Sandra Gidley
Mr Charles Walker

NC14

To move the following Clause:—

‘(1) The 1983 Act is amended as follows.

(2) In section 58(3) after first “patient” insert “who is liable to be detained under this Act”.

(3) After section 58 insert—

“58A Consent to treatment of community patients

(1) Subject to section 62A below, a community patient who has not been recalled to hospital shall not be given any form of treatment to which this section applies unless—

(a) he has consented to that treatment and either the approved clinician in charge of that treatment or a registered medical practitioner appointed for the purposes of this Part of this Act has certified in writing that the patient is capable of understanding its nature, purpose and likely effect and has consented to it; or

(b) a registered medical practitioner appointed as aforesaid (not being the approved clinician in charge of the treatment in question) has certified in writing that—

(i) the patient is not capable of understanding the nature, purpose or likely effects of that treatment; and

(ii) he has either no reason to believe that the patient objects to being given the treatment, or he does have reason to believe that patient so objects, but it is not necessary to use force against the patient in order to give the treatment; and

(iii) he is satisfied that the treatment does not conflict with a valid and applicable advance decision, or a decision made by a donee or deputy or the Court of Protection; and

(iv) having regard to the likelihood of its alleviating or preventing a deterioration of his condition, the treatment should be given.

(2) Where a patient who has been liable to detention under this Act has been administered medication for mental disorder to which this section applies for less than three months prior to becoming a community patient, the period mentioned in subsection (1)(b) shall be read to extend for no longer than one month beginning with the day on which the community treatment order is made.

(3) The Secretary of State may by order vary the length of the period mentioned in subsection (2).

(4) Certification under subsection (1)(b) may take place whilst a patient remains liable to be detained, but will not come into force until the responsible clinician discharges the patient from detention in hospital under the terms of section 17A(1) above.

(5) Before giving a certificate under subsection (1)(b) the registered medical practitioner shall consult two other persons, who have been professionally concerned with the patient’s treatment, but of those persons—

(a) at least one shall be a person who is not a registered medical practitioner; and

(b) neither shall be the patient’s responsible clinician or the approved clinician in charge of the treatment in question.

(6) In section 61(1) leave out ‘or 58(3)(b)’ and insert ‘58(3)(b), or 58A(1)(b)’.

(7) In section 61(1)(a) after ‘20(3)’ insert ‘, 20A(4)’.

(8) In section 61(3) for ‘responsible medical officer’ substitute ‘approved clinician in charge of the treatment in question’.

(9) In section 61(3), leave out ‘or 58(3)(b)’ and insert ‘58(3)(b), or 58A(1)(b)’.”.

(4) After section 62(2) insert—

“(2A) Section 62A below shall not preclude the continuation of any treatment or of treatment under any plan pending compliance with section 58 where a community patient is recalled to hospital or a community treatment order is revoked and—

(a) the patient is capable of understanding the nature, purpose and likely effect of that treatment and has consented to it; or

(b) the patient is not capable of understanding the nature, purpose and likely effect of that treatment, but it is not necessary to use force against the patient in order to give the treatment.”.

(5) After section 62 (Urgent Treatment) insert—

“62A Treatment on recall of community patient or revocation of order

(1) This section applies where—

(a) a community patient is recalled to hospital under section 17E above; or

(b) a patient is liable to be detained under this Act following the revocation of a community treatment order under section 17F above in respect of him.

(2) Subject to section 62, a patient to whom this section applies shall not be given any form of treatment to which section 58 applies without its certification under section 58(3) following that recall or revocation.”.

(6) In section 64 (supplementary provisions for Part IV) after subsection (2) insert—

“(3) In this Part of this Act, references to ‘not capable of understanding the nature, purpose and likely effects of treatment’ are to be read in accordance with the test established under section 3 of the Mental Capacity Act 2005 (c. 9).

(4) References to a donee are to a donee of a lasting power of attorney (within the meaning of section 9 of the Mental Capacity Act 2005) created by the patient, where the donee is acting within the scope of his authority and in accordance with that Act.

(5) References to a deputy are to a deputy appointed for the patient by the Court of Protection under section 16 of the Mental Capacity Act 2005, where the deputy is acting within the scope of his authority and in accordance with that Act.

(6) Reference to the responsible clinician shall be construed as a reference to the responsible clinician within the meaning of Part 2 of this Act.

(7) References to a hospital include a registered establishment.”.

(7) In section 119 (practitioners approved for Part 4 and section 118)—

(a) in subsection (2)(a) for “registered establishment” substitute “hospital or registered establishment or any community patient in a hospital or establishment of any description or (if access is granted) other place”,

(b) in subsection (2)(b), leave out “in that home” and insert “there”,

“(3) In this section, ‘establishment of any description’ shall be construed in accordance with section 4(8) of the Care Standards Act 2000.”.

(8) The Mental Capacity Act 2005 (c. 9) is amended as follows.

(9) In section 28 (Mental Health Act matters) after subsection (1) insert—

“(1A) Section 5 does not apply to an act to which section 58A of the Mental Health Act 2007 (c. ) applies.”.’.

Prepared: 8 May 2007