Clause 6: renewal of detention

47.     Clause 6 is included in the Bill as a result of an amendment which the Government opposed. The effect of the clause is to prevent a patient's responsible clinician (RC) (whether they are a doctor or a member of another profession) renewing the patient's detention unless they have agreement that the criteria for renewal are met from a registered medical practitioner who has examined the patient. The registered medical practitioner must have been professionally concerned with the medical treatment of the patient or, if no such practitioner is available, the registered medical practitioner must be an approved clinician (AC). (An explanation of the role of the RC can be found under Chapter 2.)

Clause 7: further cases in which appropriate treatment test is to apply

48.     Clause 7 also adds the same restated treatability test described under clause 5 above into three other sets of detention criteria in Part 3 of the 1983 Act, by inserting the same requirement that appropriate medical treatment be available. The criteria affected are those in sections 36 (remand for treatment), 48 (transfer of unsentenced prisoners) and section 51(6) (hospital orders where it is impractical or inappropriate to bring a detainee before the court). These provisions do not at present apply to patients suffering from psychopathic disorder or mental impairment and so they do not include the current form of the treatability test to be abolished clause 5. As a result, the restated treatability test will be an additional requirement in these sections, rather than a replacement for an existing test.

Clause 8: appropriate treatment test in Part 4 of the 1983 Act

49.     Part 4 of the Act is largely concerned with the medical treatment of patients liable to be detained under the Act. Clause 8 adds a new subsection (3) to section 64, which explains that in Part 4, references to it being appropriate for treatment to be given are references to treatment being likely to alleviate or prevent a deterioration in the patient's condition. This is relevant only to the new sections 58A (electro-convulsive therapy (ECT), etc..) and 64C (certification requirement - community patients) introduced by clauses 30 and 35 below, respectively. Clause 8 as it stands is the result of amendments which the Government opposed in the House of Lords.

Clause 9: change in definition of "medical treatment"

50.     Clause 9 amends the definition of medical treatment in section 145(1) to read:

"medical treatment includes nursing, psychological intervention, and specialist mental health habilitation, rehabilitation and care".

51.     Accordingly, the definition covers medical treatment in its normal sense as well as the other forms of treatment mentioned. Practical examples of psychological interventions include cognitive therapy, behaviour therapy and counselling. "Habilitation" and "rehabilitation" are used in practice to describe the use of specialised services provided by professional staff including nurses, psychologists, therapists and social workers which are designed to improve or modify patients' physical and mental abilities and social functioning. That can, for example, include helping patients learn to eat by themselves or to communicate for the first time, or preparing them for a return to normal community living. The distinction between habilitation and rehabilitation depends in practice on the extent of patients' existing abilities - "rehabilitation" is appropriate only where the patients are relearning skills or abilities they have had before.

Summary of effect of amendments in Chapter 1 of Part 1 (other than the impaired decision-making test in clause 4):

Key: MI = mental illness, MM = mental impairment, PD = psychopathic disorder, SMM = severe mental impairment

Note: the impaired decision-making test in clause 4 applies only to applications for detention under sections 2 and 3.

Clause 10: the fundamental principles

52.     Clause 10 amends section 118 to insert new subsections into the existing provision regarding the requirement to have a Mental Health Act Code of Practice.

53.     Clause 10 requires the Secretary of State to include in the Code of Practice a statement of principles that he or she thinks should inform decisions made under the Act.

54.     The clause contains a list of issues that needs to be addressed in the preparation of the statement of principles. In preparing the statement of principles the Secretary of State must also have regard to the desirability of ensuring the efficient use of resources and the equitable distribution of services.

55.     The responsibility for the Code of Practice in Wales is, as a result of the Government of Wales Act 2006, transferred to Welsh Ministers. The amendments made by this clause will apply to Welsh Ministers.

56.     Clause 10 provides that the people listed in section 118(1)(a) and (b) shall have regard to the Code of Practice. This is to confirm in statute the status of the Code of Practice, as elaborated on by the House of Lords in the case of Regina v Ashworth Hospital Authority (now Mersey Care National Health Service Trust) ex parte Munjaz [2005] UKHL 58. Those people listed in section 118(1)(a) and (b) are registered medical practitioners, managers, and staff of hospitals, independent hospitals and care homes, and approved social workers dealing with patients admitted to hospital, or on guardianship or SCT under the Act; and registered medical practitioners and members of other professions dealing with patients suffering from a mental disorder.

CHAPTER 2 - PROFESSIONAL ROLES

Overview

57.     Chapter 2 provides for roles which are central to the operation of the 1983 Act potentially to be performed by a wider range of professionals than at present. In particular, it replaces the role of the RMO with that of the RC and the ASW with the AMHP.

58.     Under the 1983 Act, the RMO is the registered medical practitioner in charge of the treatment of the patient. As such, the RMO has various designated functions, including deciding when patients can be discharged and allowed out on leave. The identity of the RMO is a question of fact in the circumstances (except in respect of guardianship where the RMO is the person appointed as such by the local social services authority (LSSA)). In practice, RMOs are usually consultant psychiatrists.

59.     By contrast, the RC may be any practitioner who has been approved for that purpose (an AC - see below). Approval need not be restricted to medical practitioners, and may be extended to practitioners from other professions, such as nursing, psychology, occupational therapy and social work. RCs will take over most of the functions of RMOs, although some functions currently reserved to RMOs may be taken instead by another AC, not just the RC. RCs will also have certain new functions in relation to SCT.

60.     Similarly, Chapter 2 replaces the ASW with the AMHP. Under section 114 of the 1983 Act, an LSSA is required to appoint a sufficient number of ASWs to carry out key functions. These include making applications to admit patients for assessment, treatment or guardianship.

61.     AMHPs will take on the functions of the ASWs, including the function of making applications for admission and detention in hospital under Part 2 of the 1983 Act. Like RCs, they are also to have certain new functions in relation to SCT. As well as social workers a wider group of professionals, for example nurses, occupational therapists and psychologists, will potentially be eligible for approval as AMHPs as long as individuals have the right skills, experience and training.

Clause 11: amendments to Part 2 of the 1983 Act

62.     Clause 11 makes a number of amendments to Part 2 of the 1983 Act (compulsory admission to hospital and guardianship) to substitute the RC for the RMO. It inserts a definition for the RC, which essentially defines the RC as the AC with overall responsibility for a patient's case (although there is a slightly different definition in relation to patients subject to guardianship). In other words, all RCs will be taken from a pool of ACs who have been approved as capable of fulfilling the responsibilities of the RC role.

63.     Clause 11 also amends section 5(2) and (3) of the 1983 Act so that an AC, in addition to a registered medical practitioner, may hold an inpatient for up to 72 hours from the time a report is furnished to the hospital managers if the AC thinks an application for admission under the Act should be made.

Clause 12: amendments to Part 3 of the 1983 Act

64.     Clause 12 makes similar amendments to Part 3 of the 1983 Act (patients concerned in criminal proceedings etc). It also provides that certain functions currently restricted to registered medical practitioners (who need not be RMOs) will in future be exercisable as well, or instead, by ACs. For example, it will be possible for an AC as well as any registered medical practitioner to be responsible for the report on the medical condition of a person remanded to hospital for that purpose under section 35. The clause does not, however, change the requirements for courts to have evidence from registered medical practitioners before deciding to impose a hospital order or make other orders or remands under Part 3.

Clause 13: further amendments to Part 3 of the 1983 Act

65.     Clause 13 makes further similar amendments to Part 3 of the 1983 Act (patients concerned in criminal proceedings etc). As well as replacing references to RMOs with RCs, it provides that certain functions restricted to registered medical practitioners may be exercised instead by ACs. For example, under section 50(1), the Secretary of State will be able to return a patient subject to a restricted transfer direction under section 47 to prison, or discharge the patient under supervision, if he or she is notified either by the patient's RC or another AC (rather than only another registered medical practitioner) that the patient no longer needs treatment in hospital or appropriate treatment is no longer available.

Clause 14: amendments to Part 4 of the 1983 Act

66.     Clause 14 makes similar amendments to Part 4 of the 1983 Act (consent to treatment). In particular, it amends sections 57, 58 and 63. Section 57 concerns treatment that requires the patient's consent and a second opinion (such as psychosurgery). Section 58 concerns treatment requiring the patient's consent or a second opinion. Section 63 covers treatment that can be imposed without the patient's consent (such as medication within the first 3 months and nursing care).

67.     The clause amends the provisions of Part 4 so that the AC in charge of the treatment in question has the functions previously held by the RMO, for example signing a certificate to say that a patient is capable and willing to consent to the treatment. In the majority of cases the AC in charge of the treatment will be the patient's RC, but where, for example, the RC is not qualified to make decisions about a particular treatment (e.g. medication if the RC is not a doctor or a nurse prescriber, then an appropriately qualified AC will be in charge of that treatment, with the RC continuing to retain overall responsibility for the patient's case).

68.     Sections 57 and 58 are also amended to provide that an AC in charge of the treatment in question cannot be the registered medical practitioner to give the second opinion required by those sections. Similarly, the RC cannot be either of the two other persons that this registered medical practitioner consults. This is to ensure that there is an independent assessment of whether treatment should be given.

Clause 15: amendments to Part 5 of the 1983 Act

69.     Clause 15 makes similar amendments to Part 5 of the 1983 Act (Mental Health Review Tribunals). For example, it amends sections 67(2) and 76(1) so that an AC as well as a registered medical practitioner can visit and examine the patient for the purposes of a tribunal reference and tribunal application under those provisions.

Clause 16: amendments to other provisions of the 1983 Act

70.     Clause 16 makes related amendments to other provisions of the 1983 Act. In particular, it inserts into section 145 a definition of an AC. The Secretary of State and Welsh Ministers will have the function of approving persons to be approved clinicians in relation to England and Wales respectively. It is envisaged that this function will be delegated to appropriate NHS bodies. The professions whose members may be approved and the type of skill and experience required will be set out in directions by the Secretary of State and Welsh Ministers.

Clause 17: amendments of other Acts

71.     Clause 17 makes consequential amendments to the Army Act 1955, the Air Force Act

1955, the Naval Discipline Act 1957, the Criminal Procedure (Insanity) Act 1964 and

the Armed Forces Act 2006 to replace the term "responsible medical officer" with the

term "responsible clinician", where it is mentioned in those Acts.

Clause 18: certain registered medical practitioners to be treated as approved under section 12 of the 1983 Act

72.     Clause 18 amends section 12 of the 1983 Act so that a registered medical practitioner who has been approved as an AC is also approved for the purposes of section 12. Under section 12 of the 1983 Act, at least one of the two doctors recommending detention must be a practitioner who has been approved by the Secretary of State as having special experience in the diagnosis or treatment of mental disorder (in relation to Wales the function of approving practitioners is transferred to the Welsh Ministers under the Government of Wales Act 2006). It is intended that the competencies a registered medical practitioner will require in order to be approved as an AC will be such that they will have the "special experience in the diagnosis or treatment of mental disorder" required for section 12 approval. ACs who are not registered medical practitioners will not be deemed to be section 12 approved.

Clause 19: regulations as to approvals in relation to England and Wales

73.     Clause 19 inserts a new section 142A into the 1983 Act which gives the Secretary of State, jointly with Welsh Ministers, the power to set out in regulations the circumstances in which approval in England under section 12 of the Act, and approval as an AC should be considered to mean approval in Wales as well, and vice versa.

Clause 20: approved mental health professionals

74.     Clause 20 substitutes a new section 114 in the 1983 Act. It replaces the role of ASWs with that of AMHPs. This will mean that a wider group of professionals, such as nurses, occupational therapists and chartered psychologists will be able to carry out the ASW's functions as long as individuals have the right skills, experience and training, and are approved by an LSSA to do so. A registered medical practitioner is specifically prohibited from being approved to act as an AMHP. This means that there will be a mix of professional perspectives at the point in time when a decision is being made regarding a patient's detention. This does not prevent all those involved from being employed by the NHS, but the skills and training required of AMHPs aim to ensure that they provide an independent social perspective.

75.     The definition of an ASW in section 145(1) of the 1983 Act is replaced by the definition of an AMHP in section 114 (see paragraph 11 of Schedule 2). Unlike with ASWs, there is now no requirement that an AMHP be an officer (employee) of an LSSA.

76.     LSSAs will approve AMHPs. In doing so they must be satisfied that the individual has appropriate competence in dealing with persons who are suffering from mental disorder and comply with any directions issued by the Secretary of State if the authority's area is in England, or by Welsh Ministers if the authority's area is in Wales.

77.     The directions may contain different criteria for approval for AMHPs in England and Wales. So an AMHP approved by an LSSA in England may only act on behalf of an English LSSA, and an AMHP approved by a Welsh LSSA may only act on behalf of a Welsh LSSA. This means a Welsh LSSA cannot arrange for an English-approved AMHP to act on their behalf and vice versa. However, it does not mean that a Welsh-approved AMHP cannot make an application to admit a patient in England or convey a patient in England and vice versa. It is also possible for an AMHP with the appropriate competencies to be approved in both territories.

Clause 21: approval of courses etc for approved mental health professionals

78.     Clause 21 inserts a new section 114A into the 1983 Act in relation to the approval of courses for AMHPs. This allows the General Social Care Council (GSCC) and the Care Council for Wales (CCW), which are the statutory bodies set up to regulate the social work profession, to approve courses for the training of English and Welsh AMHPs respectively, regardless of the trainees' profession. To ensure that AMHPs from different professional backgrounds continue to be regulated by their own professional bodies, section 114A(4) states that the functions of an approved mental health professional shall not be considered to be "relevant social work" for the purposes of Part 4 of the Care Standards Act 2000. Part 4 of the Care Standards Act 2000 requires the GSCC and CCW to provide codes of practice for social care workers, which includes "a person who engages in relevant social work". "Relevant social work" is defined as "social work which is required in connection with any health, education or social services provided by any person". Making clear that AMHP functions are not "relevant social work" for the purposes of Part 4 of the Care Standards Act means that the GSCC's and CCW's codes of practice do not apply to AMHPs who are not social workers.

Clause 22: amendments to section 62 of the Care Standards Act 2000

79.     Although AMHP functions are not to be considered "relevant social work" for the purposes of Part 4 of the Care Standards Act 2000, clause 22 provides that the GSCC's and CCW's codes of practice will continue to apply to social workers when carrying out AMHP functions.

Clause 23: approved mental health professionals - further amendments and Schedule 2

80.     Clause 23 introduces Schedule 2 which makes further amendments to the 1983 Act in relation to ASWs.

81.     ASWs are responsible for assessing whether an application for a patient's admission under the Act should be made. They arrange and co-ordinate the assessment, taking into account all factors to determine if detention in hospital is the best option for a patient or if there is a less restrictive alternative. The Bill allows assessments for admission to be undertaken by an AMHP, who might, for example, be a nurse, occupational therapist or chartered psychologist, as well as a social worker. Paragraph 5 of Schedule 2 amongst other things amends section 13(1) of the 1983 Act so that LSSAs who have reason to think that an application for admission to hospital or a guardianship application may need to be made in respect of a patient within their area shall have a duty to arrange for an AMHP to consider the patient's case on their behalf. Where a patient is detained for assessment under section 2, and the LSSA that arranged for an AMHP to consider that admission has reason to think that an application for treatment may be needed under section 3, new subsections (1B) and (1C) of section 13 place a duty on that LSSA to arrange for an AMHP to consider the patient's case on their behalf. The duties under sections 13(1), (1B) and (1C) do not prevent another LSSA from arranging for an AMHP to consider a patient's case. Subsection (5) of section 13, as amended by paragraph (6) of Schedule 2, makes clear that any other LSSA also has the power to do so. The effect of the amendments to section 13 is to provide for LSSAs to continue to have a role in ensuring that there is an adequate AMHP service, whether they choose to run the AMHP service or enter into agreements with other LSSAs and/or NHS organisations.

82.     Because AMHPs will no longer always be employed by a LSSA, section 145 is amended to provide in new subsection (1AC) that references to an AMHP in the 1983 Act are generally to be read as ones to an AMHP carrying out their functions on behalf of a LSSA. This is to retain the link between the AMHP and an LSSA even though the AMHP no longer needs to be employed by an LSSA.

Clause 24 - Children and young people

83.     This clause is included in the Bill as a result of an amendment which the Government opposed. Clause 24 inserts new sections 142B, 142C and 142D into the 1983 Act.

84.     Section 142B provides that a clinician with specialist training in child or adolescent mental health shall assess, at the time of an application for assessment and treatment for a mental disorder on a voluntary or compulsory basis, the needs of all under 18s, and a PCT for England (and equivalent health board for Wales) shall provide such services and accommodation as meet the needs of that child or adolescent.

85.     Section 142C provides that a qualified child and adolescent registered medical practitioner shall be one of the two registered medical practitioners required to make a recommendation that a patient under 18 be admitted for assessment or treatment under section 2 or 3, except in an emergency where no child or adolescent mental health specialist is available.

86.     Section 142D provides that the responsible clinician for a patient under 18 shall be a child and adolescent mental health specialist, except in an emergency where no such specialist is available.

Clause 25: conflicts of interest

87.     Clause 25 introduces a power to enable regulations to be made by the Secretary of State in respect of England and the Welsh Ministers in respect of Wales setting out when, because of an actual or apparent conflict of interest:

• an AMHP may not make an application for admission to hospital or guardianship under section 2, 3 or 7 of the Act; and

• a medical practitioner may not provide a medical recommendation accompanying such an application.

The power replaces the provisions of s12(3) to (7), which set out when a medical practitioner may not provide a medical recommendation in support of an application, because of their position either in relation to the applicant, the patient or the other practitioner providing a medical recommendation.

CHAPTER 3 - SAFEGUARDS FOR PATIENTS

Clauses 26-29: Patient's nearest relative

88.     Sections 26-29 of the 1983 Act provide for the role of the nearest relative (NR) of patients. The 1983 Act provides a list of persons who may act in this role, the person appointed usually being the highest in that list, starting with any spouse or, if there is none, the eldest son or daughter, and so on. The NR has certain rights in connection with the care and treatment of a mentally disordered patient under the 1983 Act, including the right to apply for admission to hospital, the right to block an admission for treatment, the right to discharge a patient from compulsion and the right to certain information about the patient. NRs may not exercise their rights in respect of patients subject to special restrictions under Part 3 of the 1983 Act.

89.     Clause 26 introduces a new right for a patient to apply for an order displacing the NR on the same grounds currently in existence for other applicants, and on the additional ground that the NR is unsuitable to act as such. The table below summarises possible grounds for applications and who may make them. The provision also amends the basis upon which a court may make such an order. It changes the requirement that the acting NR be, in the court's opinion, a "proper person" to act as the NR to whether the person is, in the court's opinion, a "suitable" person to act. Clause 26 also amends section 29 to provide that where the person nominated by the applicant is, in the court's opinion, not "suitable" or there is no nomination, the court can appoint any other person it thinks is "suitable".

90.     In this way, an NR who has, for example, in the past subjected a patient to physical abuse, may, upon application to the court by the patient, be removed from exercising the rights of the NR by order of the court. In the application, the patient can nominate another person to act as the NR. Unless the court finds that person to be unsuitable, or decides not to displace the current NR, the person will be made the acting NR.

91.     An application for displacement can also be made by an AMHP, another relative or anyone living with the patient (or if the patient is an in-patient in a hospital, anyone with whom the patient was living before he was admitted). So long as the court orders the displacement of the current NR, then whomever the applicant nominates will be made the acting NR, unless the court finds that person to be unsuitable to act as such.

92.     Clause 27 introduces a new right for the patient to apply to discharge - or vary - an order appointing an acting NR. A NR displaced under the new ground will also be able to apply for such an order, but the NR must first obtain leave of the court. The court can currently appoint an acting NR only for a limited period; clause 27 will allow the court to make an appointment for an indefinite period.

93.     This will therefore enable a person who has been made the acting NR to seek to have that order ended. The order displacing the NR - and appointing an acting NR - continues even when the displaced NR ceases to be the first person in the list of relatives. In these circumstances, the patient can apply to have the court order discharged. The new person at the top of the list will then become the NR.

94.     An application by the displaced NR for the discharge of the order which displaced him as NR will only be heard if the court first agrees. Spurious or malicious applications can therefore be stopped before the patient is brought into the process.

95.     Clause 28 will limit applications to the MHRT from displaced NRs, to those NRs displaced on grounds set out in sections 29(3)(c) or 29(3)(d) (see table above). A person who has been displaced as the NR because he or she is too ill to act, or unsuitable to act, will not have the right to apply to the MHRT. This right will continue to be extended to NRs displaced on other grounds.

96.     Clause 29 amends the list in sections 26 and 27 of the Act of those persons who may act in the role of NR of a patient, by giving a civil partner equal status to a husband or wife.