Mental Health Bill [HL] - continued          House of Commons

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Schedule 3: SCT and further amendment of the 1983 Act

139.     Schedule 3 sets out the detailed amendments to the 1983 Act which are needed to enable the introduction of SCT. The ones of particular note are described below.

140.     In relation to absence without leave, under amended section 18(2A), a community patient who has been recalled to hospital can be taken into custody and returned to the hospital (whether the patient has not arrived there or has absconded). Any AMHP, officer on the staff of the hospital, a constable, or anyone authorised in writing by the RC or hospital managers may exercise this power. A community patient cannot be taken into custody after his or her CTO ceases to be in force, or six months have elapsed since the patient was first absent without leave, whichever is the later. (This mirrors the provisions for detained patients and those subject to guardianship.) The authority to take such a patient into custody will therefore last until at least six months after the first day of absence.

141.     If extension of a community patient's CTO does not take effect before the patient's first day of absence without leave, then the period during which the patient can be taken into custody is not extended by the extension of the order.

142.     Sections 21, 21A and 21B are amended to provide certain provisions relating to community patients absent without leave. If a community patient:

  • is absent without leave on the day the patient's CTO would have expired, or during the preceding week, the CTO is extended for a week after the patient returns or is returned to hospital

  • is absent without leave on the day when the 72 hour period for recall is up, the 72-hour period effectively begins again when the patient is taken into custody, or returns voluntarily to the hospital, subject to the time limits as for detained patients

  • returns or is returned to hospital within 28 days of the first day of his or her absence without leave, the RC has a week after the patient's return to carry out the examination and make his or her report for the extension of the CTO, if the CTO would have otherwise expired

  • returns, or is returned, to hospital more than 28 days after the patient was first absent without leave, the RC has a week after the patient's return to examine the patient, and, if the RC decides that the patient meets the criteria for SCT, prepare a report for the hospital managers extending the CTO.

143.     Section 22 is amended so that community patients, like those detained for treatment, who are imprisoned for more than six months (or for successive periods exceeding six months in total) are no longer subject to the Act upon their release.

144.     Community patients can be absolutely discharged from SCT (and therefore liability to recall to hospital), under amended section 23, by the RC, hospital managers of the responsible hospital or by the NR, in the same way as patients can be discharged from detention.

145.     Where the NR makes an order for the discharge of a community patient under amended section 24, any registered medical practitioner can visit or examine the patient and access records relating to the patient, just as for detained patients.

146.     The restriction on discharge by a NR applies to community patients in the same way as it does to detained patients. The NR must give 72 hours notice in writing to the managers if they wish to make the order and the RC can bar the order for discharge from taking effect, if a report is made that certifies that the patient is likely to act in a dangerous manner if discharged from SCT.

147.     An application can be made to the county court to appoint or replace a community patient's NR.

148.     A community patient may apply to the MHRT, under amended section 66, when a CTO is made, when it is revoked, when it is extended after six months or a year (as appropriate) and when an order is extended after the patient has been absent without leave for more than 28 days. A NR may also apply to the MHRT if the NR makes a discharge order which is not put into effect because the RC reports that the patient would be likely to act in a dangerous manner if discharged; or if he or she is displaced by a court order as allowed under section 29(1)(c) or (d) of the 1983 Act. The hospital managers must refer a patient to the MHRT if a CTO is revoked.

149.     Community patients who were under a hospital order before being made subject to a CTO may make an application to the MHRT in the second six months of the patients being subject to the CTO. The power under section 66 to apply to a Tribunal when a CTO is made or revoked cannot be exercised until six months after the date of the hospital order. The NR of such a patient may apply to the MHRT whenever the patient has a right to apply. The Secretary of State can refer a case of a community patient to the MHRT, in the same way as for detained patients. In relation to Wales the power to refer patients has been transferred to the Welsh Ministers.

150.     The MHRT must direct the discharge of a community patient under amended section 72(2)(c) if the MHRT is not satisfied as to any of the following:

  • the patient needs medical treatment for mental disorder for his or her own health or safety, or for the protection of others

  • it is necessary for the patient's health or safety or the protection of others that he or she should be liable to be recalled to hospital for treatment

  • appropriate medical treatment is available for the patient.

The MHRT has a new power (section 72(3A)) in respect of a patient detained under section 3 of the Act, or subject to a hospital order or direction. The MHRT may recommend that the RC consider if a CTO for the patient should be made, where it does not discharge such a patient. When considering whether to discharge a patient the MHRT need not direct the discharge of a patient just because they think SCT might be appropriate for the patient.

151.     The special procedures in section 141 of the 1983 Act to be followed if an MP (or a member of the National Assembly for Wales, Scottish Parliament or Northern Ireland Assembly) is detained on the grounds of mental disorder do not apply to community patients.

CHAPTER 5 - MENTAL HEALTH REVIEW TRIBUNALS

Clause 36: references to Mental Health Review Tribunal (MHRT)

152.     The MHRT is an independent judicial body with the power to order the discharge of a patient from detention for assessment and/or treatment and from guardianship under the 1983 Act. The MHRT reviews a patient's case either on application from the patient or the patient's NR, on referral from the Secretary of State (which function in relation to Wales has been transferred to the Welsh Ministers) or, if the MHRT has not reviewed the case within a given period, on referral by hospital managers. Under the 1983 Act, section 68 sets out the provisions for when hospital managers must make a referral. Clause 36 amends this section so that it applies to a wider group of patients (those who are still subject to section 2 at the point of referral and patients who are on a CTO).

153.     Under the 1983 Act, hospital managers are required to refer a patient's case to the MHRT at six months from the beginning of the detention for treatment or the patient's transfer from guardianship to hospital if the patient has not applied for a tribunal themselves, if an application has not been made on their behalf or if they have not been referred to the MHRT by the Secretary of State. Under clause 36, hospital managers will be required to refer the patient at six months from the day on which the patient was first detained, whether under section 2 for assessment, section 3 for treatment, or the day on which they were detained in hospital following a transfer from guardianship (this is defined as the "applicable day" at section 68(5)). This will make the referral period the same for all patients whether they have first been detained for treatment or for assessment. This six month time period can be reduced by order of the Secretary of State or Welsh Ministers under section 68A. The provision enables the order to include any consequential details that may be required to ensure that patients who are transferred from England to Wales or vice versa between the period of referral in one territory and the other do not miss out on a referral to the MHRT by virtue of the transfer.

154.     Clause 36 also removes the requirement that hospital managers are only under a duty to make a subsequent referral to the MHRT upon the renewal of patient's detention. Under the 1983 Act, hospital managers are required to refer patients whose authority for detention has been renewed if three years have passed (or one year for patients aged under 16 years) and the MHRT has not reviewed the case in that time. In practice, it can be up to four years before a patient's case is considered by the MHRT if the patient does not apply, because a renewal only happens once a year, and the referral cannot take place until the detention is next renewed. By removing the link between renewal and subsequent referrals, the only requirement for subsequent referrals is that the MHRT has not considered the patient's case in three years (or one year if the patient is under 16). The order making power at section 68A will also enable the three year and one year period to be reduced. As a further consequence, patients who are absent without leave (AWOL) at the point at which they should be referred to the MHRT (the three year time period has passed) must be referred on their return to hospital.

155.     The provision allowing a registered medical practitioner to visit and examine the patient for the purposes of gathering information in preparation for the MHRT is extended to allow ACs to visit and examine, and is extended to cover patients who are on a CTO.

156.     Finally the clause amends Schedule 1 to the 1983 Act to ensure that the new provisions continue to apply where appropriate to unrestricted Part 3 patients (i.e. mentally disordered offenders not subject to the special restrictions under section 41 of the 1983 Act). Only those Part 3 patients who are transferred from a guardianship order to a hospital order qualify for a referral by the hospital managers after the first six months. Part 3 patients placed on a hospital order will not be entitled to a referral in the first six months of their detention, as their initial detention has been subject to judicial consideration by the sentencing court and they cannot themselves apply to the MHRT in that period. The referral at three years will extend to all Part 3 patients detained in hospital or on SCT and not subject to restrictions.

Clause 37: organisation of the MHRT

157.     Clause 37 replaces the existing multiple regional Tribunals with two Tribunals, one for England and one for Wales. In addition, it renames the role of chairman of each of the Tribunals as president. The Tribunal for England and the Tribunal for Wales will each have a president. The term "president" as it is currently used under the 1983 Act to refer to the chair of a Tribunal constituted for particular proceedings will be replaced with "chairman".

CHAPTER 6 - CROSS-BORDER PATIENTS

Clause 38: cross-border arrangements

158.     Clause 38 covers the cross-border leave and transfer of patients. Clause 38(1) adds two new subsections to section 17 of the 1983 Act. They will apply to patients from Scotland, Northern Ireland, the Isle of Man and the Channel Islands who wish to visit England and Wales and who the clinician has determined must (for the patient's own interests, or for the protection of others) remain in custody during the leave of absence. The new subsections will ensure that patients from these jurisdictions who visit England and Wales on escorted leave may be conveyed, kept in custody or detained by their escort while in England and Wales, and re-taken in the event that they escape.

159.     Clause 38(2) gives effect to Schedule 5. The 1983 Act already provides for detained patients to be transferred from England and Wales to Scotland, Northern Ireland, the Channel Islands, and the Isle of Man and vice versa (except Scotland). The removal of patients from Scotland is dealt with under the Mental Health (Care and Treatment) (Scotland) Act 2003, regulations made under that Act and the Mental Health (Care and Treatment) (Scotland) Act 2003 (Consequential Provisions) Order 2005 (SI 2005/2078) ("the Consequential Provisions Order").

160.     The amendments in Schedule 5 of the Bill provide for community patients to be similarly transferred. It also provides for detained patients to be transferred from Scotland to England and Wales and accordingly repeals the relevant provisions in the Consequential Provisions Order dealing with transfers from Scotland.

161.     Transfers are only undertaken when they are in the patient's interests. For example, a patient may be transferred from Scotland to England when he or she is detained under mental health legislation in Edinburgh but normally lives in London and a transfer would enable friends and family to visit him or her on a more regular basis.

162.     No provision is made in respect of the transfer of patients under guardianship in England and Wales as Scotland no longer has the equivalent of mental health guardianship.

163.     For patients transferring from Scotland to England and Wales the date of their hospital admission in England or Wales (for detained patients) and their date of arrival at their place of residence (for community patients) will be the date on which an application is deemed to have been made in England and Wales. As soon as practicable after the arrival of a community patient in England and Wales a CTO should be made and it will be deemed to be dated from the day of the patient's arrival. A community patient transferred from Scotland to England and Wales will not be detained in hospital following their transfer prior to becoming a community patient in England and Wales. For example if a patient detained under section 3 in hospital in Scotland is transferred to England or Wales on 5 April, they will be treated as if they had been admitted to hospital in England or Wales on 5 April. A community patient transferred from Scotland to England or Wales and arriving at their place of residence in England or Wales on 10 April will have a CTO made in England or Wales and dated 10 April. The dates of 5 April and 10 April will therefore be the start dates under the 1983 Act for each patient. This date is significant because it determines when, for example, a patient's case must be referred by the hospital managers to the MHRT (under section 68 as amended by clause 36).

164.     No provision is made in the Bill for the transfer of community patients from Northern Ireland as there is currently no provision for community patients in Northern Ireland. Should this be introduced, provision can be made for transfers by Order in Council.

165.     Schedule 5 also amends sections 83 and 85 (which provide for detained patients to be transferred from England and Wales to the Channel Islands and the Isle of Man and vice versa) of the 1983 Act to provide for community patients to be transferred from England and Wales to the Channel Islands and the Isle of Man and vice versa. Similar arrangements to those set out for patients transferring from Scotland will apply to patients transferring to England and Wales from the Channel Islands or the Isle of Man for deeming their date of arrival and the date of the CTO. At present the Channel Islands and the Isle of Man do not have legislation enabling patients to be treated in the community under arrangements similar to SCT so this provision would not, as things stand, have any effect in relation to the Channel Islands and the Isle of Man.

166.     Schedule 5 also amends section 88 of the 1983 Act, which provides for patients absent from hospitals in England and Wales to be taken into custody and returned to England and Wales, to apply to Northern Ireland only. The Channel Islands and the Isle of Man have powers of their own, which they can use to return patients from England and Wales. Scotland can make regulations on such matters under section 309 (Patients from other jurisdictions) of the Mental Health (Care and Treatment) (Scotland) Act 2003.

CHAPTER 7 - RESTRICTED PATIENTS

Clause 39: restriction orders

167.     Clause 39 amends section 41 of the 1983 Act to remove the power of the Crown Court to make restriction orders under section 41 for a limited period. Instead, such orders will remain in force until they are discharged by the Home Secretary or the MHRT. The clause also makes consequential changes to other provisions of the 1983 Act.

Clause 40: conditionally discharged patients subject to limitation directions

168.     Clause 40 makes an amendment to section 75(3) of the 1983 Act so that, on the application of a patient who has been conditionally discharged from hospital while subject to hospital and limitation directions, the MHRT may direct that the patient's limitation direction is to cease to have effect, in which case the patient's hospital direction will also cease to have effect, and the patient will be absolutely discharged. Hospital and limitation directions may be imposed by the Crown Court in accordance with section 45A of the 1983 Act where the court considers it appropriate to direct the prisoner's detention in hospital for medical treatment as well as passing a prison sentence.

CHAPTER 8 MISCELLANEOUS

Clause 41 - Offence of ill-treatment: increase in maximum penalty on conviction on indictment

169.     Clause 41 increases the maximum penalty for imprisonment on conviction on indictment for the ill treatment of patients offence (section 127) in the 1983 Act. The maximum penalty on imprisonment on summary conviction for the same offence will increase from six months to one year on the commencement of sections 154 and 282 of the Criminal Justice Act 2003. The maximum penalties on summary conviction for the offences at sections 126 (Forgery, false statements etc) and 128 (assisting patients to absent themselves without leave etc) of the 1983 Act will also increase on the commencement of those provisions of the 2003 Act.

Clause 42 - Informal admission of patients aged 16 or 17

170.     Clause 42 amends section 131 (Informal admission of patients) of the 1983 Act so that in the case of patients aged 16 or 17 years who have the capacity to consent to the making of arrangements for their admittance to hospital or registered establishment for treatment for mental disorder on an informal basis, they can consent (or not consent) to such arrangements and their decision cannot be overridden by a person with parental responsibility for them.

171.     If the patient consents to the making of arrangements they can be informally admitted to hospital and their consent cannot be overridden by a person with parental responsibility for them. If the patient does not consent to the making of arrangements they cannot be informally admitted on the basis of consent from a person with parental responsibility for them but they could be admitted to hospital for compulsory treatment under the 1983 Act if they meet the relevant criteria.

Clause 43: places of safety

172.     Under section 135(1) of the 1983 Act, the police can, on the authority of a magistrate, enter premises and remove a person who may have a mental disorder to a place of safety. Under section 136 of the 1983 Act, the police can remove from a public place to a place of safety a person who appears to have a mental disorder and to need immediate help. In both instances, the person can be detained at the place of safety for up to 72 hours. Clause 43 amends sections 135 and 136 of the 1983 Act to enable a person detained at a place of safety to be transferred to another one, subject to the overall time limit for detention of 72 hours. A place of safety is defined in section 135(6) of the 1983 Act.

Clause 44: delegation of powers of managers of NHS foundation trusts

173.     Clause 44 amends section 23 of the 1983 Act in relation to the delegation by National Health Service foundation trusts (NHSFTs) of their power to discharge patients from compulsion under the Act.

174.     Section 23 gives the managers of hospitals the power to discharge patients who are liable to be detained. (This power is only exercisable with the consent of the Secretary of State (in practice the Home Secretary) in the case of patients subject to special restrictions under Part 3 of the Act.) Paragraph 10 of Schedule 3 extends the managers' powers to include a power to discharge patients subject to CTOs for whom the hospital is responsible. See clause 32 above for an explanation of CTOs.

175.     The Act does not set out any specific procedure which hospital managers must follow when considering whether to discharge patients. But managers will generally offer to hold an oral hearing when requested to do so by patients, where patients contest the renewal of their detention by their RMO (in future their RC), or where a NR's discharge order is blocked under section 25 on the grounds that the patient is likely to act in a dangerous manner if discharged. Where renewal is not opposed, the managers may consider the case for the patient's discharge on the papers, without a hearing.

176.     Section 145 of the Act provides that the managers of a NHS hospital are normally the body in which the hospital is vested. In practice, this generally means a National Health Service trust, or (in England) a primary care trust (PCT) or an NHSFT. (Clause 45 below adds Local Health Boards (LHBs) in Wales to this list.)

177.     These bodies do not have to take discharge decisions themselves. Section 23 allows them to delegate the exercise of their discharge power. NHS trusts may delegate this function to three or more people who are either directors of the trust (including the Chairman) or members of a committee or subcommittee of the trust, provided that the people in question are not employees of the trust. The rules for PCTs are effectively the same. In practice, these trusts usually delegate their function to a combination of non-executive directors and a panel of people specially recruited for the task. This latter group are often known as "associate hospital managers". By contrast, section 23(6) permits NHSFTs to delegate discharge decisions only to non-executive directors of the trust. Accordingly they cannot delegate to associate hospital managers.

178.     Subsection (1) of this clause amends section 23 of the 1983 Act to give NHSFTs greater flexibility. Specifically, it will allow them to delegate discharge decisions to any three or more people authorised by the board of the trust, provided those persons are neither executive directors nor employees of the trust. The effect is to give NHSFTs powers to delegate their discharge powers similar to those enjoyed by NHS trusts. Subsection (2) amends section 32, so that the powers in that section to make regulations (which may include regulations permitting the delegation of hospital managers' functions by NHS bodies) are subject to the revised section 23(6).

179.     Subsection (3) inserts a new section 142E into the 1983 Act which provides that the constitution of an NHSFT may not permit functions under the 1983 Act to be delegated except in accordance with the Act itself or provision made under it and that paragraph 15(3) of Schedule 7 to the National Health Service Act 2006 ("the 2006 Act") is to have effect subject to that provision. Schedule 7 of the 2006 Act sets out mandatory requirements for the contents of an NHSFT's constitution. In particular, paragraph 15(2) requires the constitution to provide for the powers of the NHSFT to be exercisable by its Board. Paragraph 15(3) then provides that the constitution may allow for the Board to delegate powers to committees of directors or to individual executive directors.

180.     The effect of the new section 142E is that an NHSFT's constitution may not permit its functions under the 1983 Act to be delegated to executive directors or committees of directors unless that is permitted by or under the 1983 Act itself. But the constitution may permit delegation to other people where that is allowed by or under the 1983 Act.

Clause 45: Local Health Boards

181.     Clause 45 adds a reference to LHBs to the definition of "the managers" of hospitals in section 145(1) of the 1983 Act. Hospital managers have a variety of functions under the 1983 Act and the definition of "the managers" identifies the body or people who are the managers of each hospital, depending on who owns or runs it.

182.     LHBs are statutory NHS bodies established by the National Assembly for Wales under section 16BA of the National Health Service Act 1977 or by Welsh Ministers under section 11 of the National Health Service (Wales) Act 2006.

183.     Most hospitals in Wales are vested in NHS trusts, but in Powys they are vested in the LHB for that area. At present, LHBs are not specifically mentioned in the definition of "the managers". Subsection (3) of the amendment accordingly provides that, for the purposes of the 1983 Act, LHBs are the managers of hospitals vested in those Boards.

184.     Subsection (2) makes an equivalent addition to section 19(3) of the 1983 Act. That subsection allows NHS bodies who are the managers of more than one hospital to move patients liable to be detained in one of their hospitals to another one. The effect of the amendment will be to make clear that LHBs may also move such patients between their hospitals.

 
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Prepared: 23 March 2007