House of Commons - Explanatory Note

Mental Health Bill [HL] - continued	House of Commons

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Clause 46: Welsh Ministers: procedure for instruments

185. Clause 46 amends the provisions in section 143 of the 1983 Act which make provision in relation to the exercise of regulation, order and rule making powers. In particular it provides the procedure to be applied when such powers are exercised by the Welsh Ministers.

PART 2 - AMENDMENTS TO MENTAL CAPACITY ACT 2005

Clause 47: Mental Capacity Act 2005: deprivation of liberty

186. Clause 47 inserts new sections 4A, 4B and 16A into the MCA. This makes it lawful to deprive a person of their liberty only if a standard or urgent authorisation under Schedule A1 to the MCA is in force or if it is a consequence of giving effect to an order of the Court of Protection on a personal welfare matter, in accordance with the provisions of the MCA. If there is a question about whether a person may be lawfully deprived of their liberty and the authorisation is to enable life sustaining treatment or treatment believed necessary to prevent a serious deterioration in the person's condition, a person may be detained while a decision is sought from the Court of Protection.

187. New Schedule A1 to the MCA (inserted by Schedule 6) sets out the detailed procedures and requirements relating to standard and urgent authorisations of deprivation of liberty in hospitals or care homes. These procedures apply to care or treatment funded publicly or privately. The reason that authorisation may only apply to hospitals or care homes is that the Government considers that it would only rarely be justifiable to deprive a person of liberty in their best interests in any other setting. Deprivation of liberty in other settings would be lawful if it were a consequence of giving effect to an order of the Court of Protection on a personal welfare matter, in accordance with the provisions of the MCA.

188. Deprivation of liberty is defined as having the same meaning as in Article 5(1) of the ECHR (see paragraph 10(4) of Schedule 8 to the Bill). In its judgment in HLvUK, the European Court of Human Rights said that the difference between restriction or deprivation of liberty is one of degree or intensity rather than of nature or substance and therefore, in order to determine whether a person is being deprived of liberty, there must be an assessment of the specific factors in each individual case eg the type, duration, effects and manner of implementation of the measure in question and its impact on the person. Guidance on identifying deprivation of liberty will be included in amendments to the MCA Code of Practice to reflect the amendments to the MCA.

189. An authorisation does not entitle the hospital or care home to do anything other than for the purpose of the authorisation. The reason for this provision is that the authorisation procedure is to ensure the lawfulness of deprivation of liberty. It is not directly concerned with the provision of care or treatment to people who lack capacity to consent: this is governed by the existing provisions of the MCA except where the provisions of mental health legislation apply.

190. Part 3 of the new Schedule A1 sets out the qualifying requirements that must be met before a standard authorisation can be given to detain a person as a resident in a hospital or care home in circumstances which amount to deprivation of their liberty.

191. The person must:

be aged 18 or over (the age requirement)

be suffering from a mental disorder within the meaning of the 1983 Act (the mental health requirement), and

lack capacity to decide whether or not they should be a resident in the hospital or care home (the mental capacity requirement) .

192. The deprivation of liberty authorised must also be:

in the best interests of the person

necessary in order to prevent harm to him or her, and

a proportionate response to the likelihood of suffering harm and the seriousness of that harm (the best interests requirement).

193. A person must also meet the eligibility requirement, which relates to cases where a person is, or might be made, subject to the 1983 Act. Grounds for ineligibility are in new Schedule 1A to the MCA (inserted by Schedule 7). In summary, a person is ineligible if they are already subject to the 1983 Act in one of the following circumstances:

they are actually detained in hospital under the main powers of detention in the 1983 Act (or treated as such)

they are on leave of absence from detention or subject to guardianship, SCT or conditional discharge and in connection with that are subject to a measure (such as a requirement to live in a particular place) which would be inconsistent with the authorisation if granted. This means that a person who is subject to the 1983 Act but who is not in hospital could receive the Bournewood safeguards. This might be necessary for example if a person subject to guardianship who normally lived at home needed respite care in a care home

they are on leave of absence from detention, or subject to SCT or conditional discharge and the authorisation, if given, would be for deprivation of liberty in a hospital for the purposes of treatment for mental disorder. This means that a Bournewood authorisation cannot be used as an alternative to the procedures for recall in the 1983 Act.

194. A person is also ineligible if the authorisation would be for deprivation of liberty in a hospital for the purposes of treatment for mental disorder, the person concerned would otherwise meet the criteria for detention under Part 2 of the 1983 Act and the person objects to being detained in the hospital or to some or all of the treatment.

195. In deciding whether a person objects consideration must be given to the circumstances including his or her behaviour, wishes, views, beliefs, feelings and values, including those expressed in the past to the extent that they remain relevant. This will inevitably call for a judgment on the part of the relevant decision-maker. The fact that a person cannot (or does not) express a view (or otherwise communicate an objection) does not of itself mean that the person should not be taken to object.

196. The purpose of this provision is to treat people in this situation as if they had capacity to consent but are refusing to be admitted to (or stay in) hospital or are not consenting to the treatment for mental disorder they are to be given there. In such cases, they would either have to be detained under the 1983 Act, or another way of giving treatment would have to be found.

197. A person's objections will not make them ineligible if a donee of Lasting Power of Attorney (an "attorney") or a deputy appointed by the Court of Protection (or the Court of Protection itself) has made a valid decision to consent to the hospitalisation and treatment on their behalf.

198. For consistency, the Court of Protection may not make an order which would lead to a person being deprived of their liberty if the person is ineligible under the new Schedule 1A.

199. A person must also meet the no refusals requirement. There are refusals if:

the authorisation sought is for the purposes of treatment or care covered by a valid and applicable advance decision by the person (an advance decision being a decision to refuse treatment at a later date, made in anticipation of not having capacity to make the decision at the time in question), or

it would conflict with a valid decision by an attorney or a deputy on their behalf (or a relevant decision of the Court of Protection).

200. Again, the purpose of this requirement is to treat people in this position as if they had capacity to refuse consent to the proposed course of action.

201. Part 4 of the new Schedule A1 sets out the requirements and procedure for requesting and granting a standard authorisation. The managing authority of a hospital or care home must request authorisation from the supervisory body if a person who meets or is likely to meet all of the qualifying requirements is, or is likely to be, detained as a resident in that hospital or care home in circumstances which amount to deprivation of their liberty. The reason for placing this duty with the managing authority is that it is the hospital or care home which would be at risk of civil or criminal penalties for depriving a person of liberty without authorisation. The managing authority of a hospital or care home must keep written records of requests for authorisation made and the reasons for them. Information required to be given with a request may be specified in regulations.

202. Provision is also made for a third party to seek to initiate the standard authorisation assessment process. Where anybody is concerned that a person may be deprived of their liberty without the protection of the safeguards, and they have asked the managing authority to apply for an authorisation but the managing authority have not done so, they can make application to the supervisory body. The supervisory body must appoint somebody who would be suitable and eligible to be a best interests assessor in the case to assess whether the person is deprived of liberty. If there is nobody to consult among family and friends, an Independent Mental Capacity Advocate (IMCA) would also be appointed to support and represent the person.

203. If the outcome of the assessment is that there is an unauthorised deprivation of liberty, then the full assessment process would be completed as if an authorisation had been applied for. If the managing authority consider that the care regime should continue while the assessments are carried out, they will be required to issue an urgent authorisation and to obtain a standard authorisation within seven days.

204. In any case where a standard authorisation is requested, the supervisory body would be:

in the case of a care home the local authority where the person is ordinarily resident, or where the care home is situated.

in the case of a hospital the PCT which commissions the care, or Welsh Ministers if the care is commissioned by them.

The managing authority means:

the PCT, Strategic Health Authority, LHB, Special Health Authority, NHS trust or NHSFT in relation to an NHS hospital requesting an authorisation

the person registered under the Care Standards Act 2000 in respect of an independent hospital requesting an authorisation, or

the person registered in respect of that home under Part 2 of the Care Standards Act 2000 in relation to a care home requesting an authorisation .

205. An authorisation cannot be given unless relevant assessments have been commissioned by the supervisory body that conclude that all of the qualifying requirements listed in Part 3 of the new Schedule A1 are met. Regulations will specify who can carry out assessments, covering the need for more than one assessor, professional skills, training and competence required and independence from decisions about providing or commissioning care to the person, and the timeframe within which assessments must be completed. The mental health and best interests assessments must be carried out by different assessors. It is the responsibility of the supervisory body to appoint assessors who are eligible and who are suitable, having regard to the person to be assessed.

206. The best interests assessment must take account of any relevant needs assessment or care plan, and of the opinion of the mental health assessor on the impact of the proposed course of action on the person's mental health. In carrying out the best interests assessment, the assessor must consult the managing authority of the hospital or care home.

207. The best interests assessor will also be required, under section 4(7) of the MCA, to take into account the views of:

anyone named by the person as someone to be consulted

anyone engaged in caring for the person or interested in his or her welfare

any donee of a lasting power of attorney granted by the person, and

any deputy appointed for the person by the court.

208. The best interests assessor must record the name and address of every interested person consulted as they will be entitled to information about the outcome of the request for authorisation (spouse, civil partner, and close family are defined as interested persons). If the best interests assessment recommends authorisation, the assessor must state the maximum authorisation period which may not be for more than one year. The best interests assessor may recommend conditions to be attached to the authorisation.

209. If the best interests assessor concludes that deprivation of liberty is not in the person's best interests but becomes aware that they are already being deprived of their liberty, they must draw this to the attention of the supervisory body. The supervisory body are then required to notify the managing authority of the relevant hospital or care home, the relevant person, any section 39A IMCA and any interested person consulted by the best interests assessor.

210. Assessments must be made as soon as possible after application and regulations may be made to specify the time period for completing the assessment process. If existing equivalent assessments have been carried out within the past year they may be used if the supervisory body are satisfied there is no reason that they may no longer be accurate. If the person is unbefriended, defined in the MCA as having no one to speak for them who is not paid to provide care, an IMCA will be appointed to support and represent them during the assessment process.

211. If any of the assessments conclude that the person does not meet the criteria for an authorisation to be issued the supervisory body must turn down the request for authorisation. The assessment process will be discontinued if any of the assessments reach the conclusion that the person does not meet one of the qualifying requirements. The supervisory body must inform the hospital or care home management, the person concerned, any IMCA appointed and all interested persons consulted by the best interests assessor of the decision and the reasons. This is so that all with an interest are aware that the person may not lawfully be deprived of their liberty.

212. It is the duty of the supervisory body to give the authorisation if all of the assessors recommend it. The supervisory body must:

set the period of the authorisation, which may not be longer than the maximum period identified in the best interests assessment

issue the authorisation in writing, stating the period for which it is valid, the purpose for which it is given, and the reason why each qualifying requirement is met

if appropriate attach conditions to the authorisation, taking account of the recommendations of the best interests assessor

appoint someone to act as the persons representative during the authorisation.

provide a copy of the authorisation to the managing authority of the care home or hospital, the person who is being deprived of liberty and their representative, any IMCA who has been involved and any other interested person consulted by the best interests assessor, and in due course to notify them when a standard authorisation ceases to be in force

keep written records.

213. If an authorisation is granted to deprive a person of their liberty then the managing authority of the hospital or care home must (if acting on that authorisation):

ensure that any conditions are complied with,

take all practicable steps to ensure that the person understands the effect of the authorisation, their right to appeal to the Court of Protection and their right to request a review,

give the same information to the person's representative,

keep the person's case under consideration and request a review if necessary (see below).

214. If an authorisation is granted, the supervisory body will appoint a person to be the relevant person's representative as soon as practicable (Part 10 of the new Schedule A1). They must appoint someone who they consider will:

maintain contact with the relevant person

support and represent them in matters concerning the authorisation, including requesting a review or applying to the Court of Protection on their behalf.

The person concerned and their representative have right of access to the Court of Protection to challenge an authorisation. Any other person with a concern may apply to the Court for permission to be heard.

215. Regulations may be made regarding the selection, appointment, suspension and termination of representatives but only the following can select a person to be appointed as representative:

the relevant person if they have capacity

an attorney or deputy (if it is within the scope of their authority)

a best interests assessor

the supervisory body.

216. If there is a section 39C IMCA appointed for a person who is the subject of a Bournewood authorisation, for example to represent them until a new appointment is made after the appointment of their representative is ended, all the provisions relating to the relevant person's representative will apply to the section 39C IMCA.

217. If there is a both a section 39A IMCA and a representative appointed, the duties and powers of the IMCA do not apply except for the power of challenge. However, the IMCA must take the views of the person's representative into account before exercising any power of challenge.

218. Urgent authorisations (Part 5 of the new Schedule A1) may be given by the managing authority of a care home or hospital to provide a lawful basis for the deprivation of liberty where it is urgently required and where the qualifying requirements listed in Part 3 of the new Schedule A1 appear to be met, whilst a standard authorisation is being obtained. An urgent authorisation can only last for a maximum of 7 days unless in exceptional circumstances it is extended to 14 days by the supervisory body. An urgent authorisation must be in writing and the managing authority must keep a written record of their reasons for giving an urgent authorisation. The managing authority is required to take all practicable steps (verbally and in writing) to ensure that the person understands the effect of the authorisation and their right to apply to the Court of Protection and to notify any IMCA when an urgent authorisation is given.

219. The supervisory body may grant a request to extend an urgent authorisation for up to a further 7 days if there are exceptional reasons why it has not been possible to decide on a request for standard authorisation and it is essential that detention continues. This might occur for example if the best interests assessor has not been able to contact someone they are required to consult and considers that they cannot reach a judgment without doing so. An urgent authorisation ceases to be in force at the end of the period specified or earlier if a decision is reached on the application for a standard authorisation. The supervisory body must inform the relevant person and any IMCA involved when an urgent authorisation ceases to be in force.

220. The purpose of Part 6 of the new Schedule A1 is to provide a procedure for the authorisation to be suspended if the person becomes ineligible, for reasons other than their own objection, for less than 28 days. This is to allow for short periods of treatment under the 1983 Act.

221. If the person is to move to a different hospital or care home, the new managing authority must request a new authorisation, provided that the new detention would not be under the 1983 Act. The effect of this is that an authorisation will not be transferable to a new facility and a move, which is a significant change in the person's circumstances, will trigger a fresh assessment of whether the deprivation of liberty is in the person's best interests.

222. If the person does not move but the supervisory body changes, for example because of changes in a local authority or PCT boundary, the managing authority must apply for a variation of the authorisation, provided that none of the grounds for review are met (Part 7 of the new Schedule A1). The new supervisory body must make the variation if it is satisfied that these conditions are met and must notify the relevant person and their representative, managing authority and the former supervisory body. In urgent cases the variation can be made by the managing authority but must be confirmed by the supervisory body.

223. The supervisory body may review (Part 8 of the new Schedule A1) a standard authorisation at any time and must do so if requested to by the relevant person, his or her representative or the managing authority of the care home or hospital. The qualifying requirements are reviewable if:

the person does not meet one or more of the qualifying requirements, or

the reason that they meet one of the qualifying requirements is not the reason stated in the authorisation, or

there has been a change in the relevant person's case and because of that change it would be appropriate to change the authorisation conditions (best interests requirement only).

224. The managing authority is required to request such a review if it appears to it that there has been such a change in the person's circumstances. The relevant person or their representative may request a review at any time.

225. The supervisory body must first decide if any of the qualifying requirements appear to be reviewable. If not there is no further action. If one or more of the age, mental health, mental capacity, objections element of eligibility or no refusals requirements are reviewable, the supervisory body must commission review assessment(s). This may lead to the authorisation being terminated or to a change in the reason recorded that the person meets one of the requirements.

226. If the best interests assessment appears to be reviewable the supervisory body must obtain a best interests review assessment unless the only ground for review is variation of conditions and the change in circumstances is not significant. The best interests review assessment may lead to the authorisation being terminated or to a change in the reason recorded that the person meets the best interests requirement or a change in the conditions attached to the authorisation.

227. When the review is complete, the supervisory body must inform the managing authority of the hospital or care home, the relevant person and their representative.

228. The managing authority may apply for a further authorisation to begin when the existing authorisation expires. If that is the case the full assessment process is repeated.

229. The Secretary of State and Welsh Ministers may make regulations conferring a duty on a body to monitor the operation of the Bournewood safeguards.

230. It is for the Secretary of State to make regulations under the new Schedule A1 in relation to English authorisations (where the supervisory body is a PCT or local authority in England) and for Welsh Ministers to make regulations in relation to Welsh authorisations (where the supervisory body is Welsh Ministers or a local authority in Wales) and for the Welsh Ministers to direct a LHB to exercise the functions of a supervisory body (Part 13 of the new Schedule A1).

Clause 48: amendment of section 20(11) of the Mental Capacity Act 2005

231. This clause amends section 20(11)(a) of the MCA. It replaces the word "or" with "and". The amendment corrects a drafting error.

PART 3 - GENERAL

Clauses 49-55

232. This Part sets out general provisions for the Bill. Particular points to note are set out below.

233. Clause 51 allows the Secretary of State to make minor supplementary, incidental or consequential amendments to relevant provisions of other Acts and subordinate legislation by means of an order. This is to ensure that provisions in other Acts and subordinate legislation are consistent with the changes contained in the 1983 Act, as amended by this Bill. Amendments made to primary legislation under the order making power will be subject to affirmative resolution. This is the usual procedure. Amendments made to secondary legislation under the order making power contained in clause 50 will be subject to negative resolution in both Houses. The Secretary of State will require the agreement of the Welsh Ministers to make these amendments, to the extent that they relate to matters in respect of which functions are exercised by the Welsh Ministers.

234. Clause 53 (commencement) provides that the provisions of the Bill (other than clauses 48 to 50 (and Schedule 9), clause 53 itself and clauses 54 and 55) are to be brought into force on a day appointed for the purpose by the Secretary of State by order. This would require the agreement of the Welsh Ministers to the extent that it relates to matters in respect of which functions are exercised by the Welsh Ministers. Clause 48, which amends the MCA, will be brought into force on a day appointed by order made by the Lord Chancellor. Clauses 49 (meaning of "1983 Act"), 50 and Schedule 9 (transitional provisions and savings), 53 (commencement), 54 (extent) and 55 (short title) will come into effect on the day the Bill is passed and becomes an Act. Orders made under clause 53(1) are made by statutory instrument and, by virtue of subsection (6), are subject to the negative resolution procedure if they include transitional or saving provision.

235. An order under subsection (1) of clause 53 may, by virtue of subsections (4)(b) and (5), make transitional provision to modify the application of the Bill once enacted pending the commencement of the provisions of another enactment. This power will be used to make temporary modifications to the amendments being made in Schedule 4 to the Administration of Justice Act 1960, the Courts-Martial (Appeals) Act 1968 and the Criminal Appeal Act 1968. The modifications will be necessary in order to (a) reflect the existing definition of "relevant time" in section 20(5) of the Courts-Martial (Appeals) Act pending its repeal and replacement by a new definition, for which the Armed Forces Act 2006 provides; (b) provide for the retention of the role of the Defence Council under the Courts-Martial (Appeals) Act pending its replacement by that of the Director of Service Prosecutions, for which the Armed Forces Act provides; and (c) provide for the retention of the role of the House of Lords in the Administration of Justice Act, the Criminal Appeal Act and the Courts-Martial (Appeals) Act pending its replacement by the Supreme Court, for which the Constitutional Reform Act 2005 provides.

236. Clause 54 (extent) provides that the amendments contained in the Bill will have the same extent as the enactments they amend (subject to subsection (2)).

237. It has been agreed with the Office of the Solicitor to the Scottish Executive and the Office of the Solicitor to the Advocate General that the amendments in the Bill which extend to Scotland, in so far as they relate to devolved matters, do not engage the Sewel Convention. Those amendments include the amendment to section 80 (removal of patients to Scotland), contained in paragraph 2 of Schedule 5. As the amendment merely involves a repeal in a devolved area in Scotland, consequential on a change of substance in the same subject area in England and Wales, the Sewel Convention is not engaged.

238. Subsection (2) sets out a handful of qualifications to the general proposition in subsection (1).

239. Paragraph (a) of subsection (2) refers to paragraph 35 of Schedule 3. Paragraph 35 amends section 146 of the 1983 Act so as to provide that section 128 does not extend to Scotland. Paragraph (b) refers to paragraph 20 of Schedule 5. Paragraph 20 amends section 146 of the 1983 Act so as to provide that section 88 (and so far as applied by that section sections 18,22 and 138) does not extend to Scotland. Both sections 128 and 88 will no longer apply in Scotland as a result of their repeal by the Adult Support and Protection (Scotland) Bill (a Bill before the Scottish Parliament) which amends the 1983 Act in relation to Scotland. That Bill is due to receive Royal Assent in March 2007 and come into force in Spring 2008. It will repeal sections 88 and 128, and repeal the references to these provisions in section 146 of the 1983 Act, but only as a matter of Scottish law.

240. Section 88 (patients absent from hospitals in England and Wales) currently provides for the taking into custody in Scotland of persons who are subject to measures in England and Wales in the 1983 Act and who escape from hospital there, fail to return at the end of a period of leave of absence or escape in other specified circumstances. Provision is made in the Mental Health (Care and Treatment) (Scotland) Act 2003 to deal with such matters in regulations made under section 309 (Patients from other jurisdictions) and so it is no longer necessary to have provision in the 1983 Act which extends to Scotland about this matter.

241. Section 128 (Assisting patients to absent themselves without leave etc) of the 1983 Act makes provision for the offence of assisting patients subject to measures under the Mental Health Act 1983 to escape from custody or absent themselves without leave. This has been replaced in Scotland by the application of section 316 (Inducing and assisting absconding etc) of the Mental Health (Care and Treatment) (Scotland) Act 2003 to such patients, so again it is no longer necessary to have provision in the 1983 Act.

242. Section 146 (Application to Scotland) of the 1983 Act lists the provisions of the 1983 Act which extend to Scotland. Sections 88 and 128 are at present included in section 146 as provisions which do extend to Scotland, and thus require amendment now this is no longer to be the case

243. Paragraph (b) of subsection (2) of clause 54 also refers to paragraphs 3, 4 and 19A of Schedule 5. Those paragraphs insert new sections 80ZA, 80B, 80C and 80D, which make provision about the transfer of patients to and from Scotland. There is nothing in any of those sections which needs to form part of the law of Scotland in order for them to operate properly. But section 80 (after which section 80ZA is to be inserted) and section 80A (after which sections 80B to 80D are to be inserted) each extend to Scotland. So it might be arguable that the new sections also extend to Scotland. Paragraphs 3(2) and 4(2) of Schedule 5 remove any such doubt.

244. Paragraph (c) of subsection (2) of clause 54 refers to paragraph 12 of Schedule 8. Paragraph 12 amends section 47 of the National Assistance Act 1948 (which makes provision in respect of those in particular need of care and attention) to take account of a change made by the Bill to the MCA. Section 47 of the National Assistance Act will no longer apply in Scotland as a result of its repeal by Schedule 2 to the Adult Support and Protection (Scotland) Bill (see paragraph 239). As such, the amendment to section 47 does not need to extend to Scotland. Subsection (3) of paragraph 12 makes provision for this.

245. Subsection (3) provides that section 51 extends to the United Kingdom so as to ensure that consequential amendments made in reliance on that section can extend to Scotland or Northern Ireland if the provisions being amended also extend there.

PUBLIC SECTOR FINANCIAL COST AND PUBLIC SECTOR MANPOWER

Prepared: 23 March 2007