| Mental Health Bill [Lords] - continued | House of Commons |
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Duty to assess needs Sandra Gidley
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)), (c) the person who is or who would be the nearest relative, or (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
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
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; (c) review of such interventions with a view to bringing the intervention to an end; (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
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
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”, (c) after subsection (2) insert— “(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.”.’. Advanced decision (nearest relative) Mr David Kidney NC15 To move the following Clause:— ‘(1) The 1983 Act is amended as follows. (2) After section 26(4) insert— “(4A) Where a patient has made an advance decision 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 decision’ means a decision made by a patient (‘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 (4A) a decision may be regarded as expressing a choice of nearest relative even though expressed in layman’s terms. (4D) P may withdraw or alter an advance decision at any time when he has capacity to do so. (4E) A withdrawal (including a partial withdrawal) need not be in writing. (4F) An alteration of an advance decision need not be in writing. (4G) An advance decision does not affect the liability which a person may incur for carrying out or continuing a treatment in relation to P unless the decision is at the material time valid. (4H) An advance decision 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 decision remaining his fixed decision. (4I) A decision or statement complies with this subsection 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. (4J) The court may make a declaration as to whether an advance decision— (a) exists; and (b) is valid; (4K) Nothing in an apparent advance decision stops a person— (a) providing life-sustaining treatment, or (b) doing any act he reasonably believes to be necessary to prevent a serious deterioration in P’s condition, while a decision as respects any relevant issue is sought from the court.”.’. Treatment requiring consent (administration of medicine) Tim Loughton
NC16 To move the following Clause:— ‘(1) Section 58 of the 1983 Act is amended as follows. (2) In subsection (1)(b) leave out “three months” and insert “two months”.’. Removal to hospital of persons serving sentences of imprisonment Tim Loughton
NC17 To move the following Clause:— ‘(1) The 1983 Act is amended as follows. (2) In section 47 (Removal to hospital of persons serving sentences of imprisonment, etc) in subsection (1) leave out from “Secretary of State” to the end of the subsection and insert— “must by warrant direct that that person be removed and detained in such hospital as may be specified in the direction: and a direction under this section shall be known as “a transfer direction”.’. Local arrangements for assessment, conveyance and admission of urgent cases Ann Coffey NC18 To move the following Clause:— ‘In the 1983 Act, for Section 140 (Notification of hospitals) substitute— “140 Local arrangements for assessment, conveyance and admission of urgent cases (1) It shall be the duty of every Primary Care Trust, in conjunction with— (a) the NHS Trusts contracted to provide in-patient mental health services and ambulance services within its area, (b) the police authority or authorities within its area, and (c) the local social services authority or authorities within its area, to prepare, publish and maintain a comprehensive, up-to-date scheme for the safe, timely and effective management of the cases of patients within its area who may require urgent admission to hospital for treatment for mental disorder, whether under this Act or otherwise. (2) This scheme shall include details of— (a) the arrangements for the assessment of urgent cases and for ensuring the safety of the patient, carers, those carrying out the assessment and any other persons present during the assessment, (b) the arrangements for obtaining a bed, if required, and the criteria for determining the relative priority of urgent cases awaiting admission, (c) the arrangements for ensuring safe custody and conveyance of patients who need to be admitted to hospital under Section 6(1) of this Act, (d) agreed time-limits for response by the bodies listed in 1 (a-c) above in cases of urgency where there is a serious risk to the safety of the patient or others.’”. Responsibility for conveyance to hospital Ann Coffey NC19 To move the following Clause:— ‘(1) The 1983 Act is amended as follows. (2) In Section 11(2) after “sought”, insert “or in the case of a National Health Service patient, to the NHS Trust responsible for hospital provision”. (3) In Section 6(1) for “applicant, or any person authorised by the applicant” substitute “the body to which the application is addressed, or any person authorised by that body” and for “convey him to the hospital” substitute “convey him to the hospital identified by that body as being able to receive him.”’. Nearest relative (named persons) Sandra Gidley
NC20 To move the following Clause:— ‘(1) Section 26 of the 1983 Act (“definitions of relative” and “nearest relative”) is amended as follows. (2) In the cross-heading preceding Section 26 after “functions of relatives” insert “, persons acting as relatives”. (3) Before subsection (1) insert— “(A1) In this Part of the Act “named person” means any person— (a) described in subsection (1) below; or (b) not described in subsection (1) below who is the patient’s carer; who has been nominated by the patient in accordance with subsection (1A) below. (B1) In this Part of the Act “carer” has the same meaning as in Section 1(1)(a) of the Carers and Disabled Children Act 2000.”. (4) After subsection (1) insert— “(1A) A person is a named person in accordance with this subsection if— (a) the nomination is signed by the nominator and the named person; (b) the nominator’s and named person’s signatures are witnessed by two prescribed persons; (c) each prescribed person certifies that, in the opinion of the prescribed person, the nominator— (i) understands that the effect of nominating a person to be the named person will give him the role of nearest relative; and (ii) has not been subjected to any undue influence in making the nomination; (d) each prescribed person certifies that, in the opinion of the prescribed person, the named person— (i) understands and is capable of performing the functions of the nearest relative; and (ii) has not been subjected to any undue influence in agreeing to the nomination; (e) the nomination has been forwarded to and registered with the local social services authority; (f) in this part a prescribed person is— (i) an Approved Mental Health Professional, (ii) an Approved Clinician, (iii) a provider of reserved legal service, (iv) an Independent Mental Capacity Advocate. (1B) A nomination under subsection (1A) above may be revoked by the nominator in accordance with subsection (1D) below. (1C) The nomination of a named person is revoked in accordance with this subsection if— (a) the revocation is signed by the nominator; (b) the nominator’s signature is witnessed by a prescribed person; (c) the prescribed person certifies that, in the opinion of the prescribed person, the nominator— (i) understands the effect of revoking the appointment of a person as named person; and (ii) has not been subjected to any undue influence in making the revocation. (1D) The nomination of a named person shall be effective notwithstanding the nominator’s becoming, after making the nomination, incapable. (1E) A person nominated under subsection (1) above may decline to be the nominator’s named person by giving notice to— (a) the nominator; and (b) the local social services authority in which the nominator resides, to that effect.”. (5) For subsection (3) substitute— “(3) In this Part of the Act, subject to the provisions of this section and to the following provisions of this Part of this Act, the “nearest relative” means, in descending order— (a) the named person, (b) the person first described in subsection (1) above who is for the time being surviving, relatives of the whole blood being preferred to relatives of the same description of the halfblood and the elder of eldest of two or more relatives described in any paragraph of that subsection being preferred to the other or others of those relatives, regardless of sex.”. (6) In Section 26(4) after “his nearest relative”, insert “under subsection 3(b) above”. (7) In Section 26(5) leave out “(3)” and insert “(3)(b)”.’. |
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| © Parliamentary copyright 2007 | Prepared: 15 May 2007 |