Mental Health Bill [HL] - continued          House of Commons

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246.     The additional public sector costs are estimated to be approximately £22 million in the first full year of implementation: about £10 million for the amendments to the 1983 Act and £12 million for the amendments to the MCA. These costs will rise to about £34 million (£31 million for the 83 Act and £3 million for the MCA) once steady state has been reached after six years.

247.     Most of the costs associated with the amendments to the 1983 Act arise from the introduction of SCT, i.e. the costs associated with supporting people in the community, and from additional tribunals. The costs arising from the amendments to the MCA arise from the provision of safeguards for patients who lack capacity and are deprived of their liberty and who are not under mental health legislation.

248.     There are also some pre-implementation costs and there will be additional costs associated with the use of the order-making power to reduce the referral to the MHRT, which will depend on how the power is used. Detailed costings are set out in the Regulatory Impact Assessment.

249.     The Bill will involve additional public sector manpower of about 260 in the first full year, falling to about 130 once steady state has been reached after six years. Again, details are contained in the Regulatory Impact Assessment.

250.     In addition, the amendments which were inserted by the House of Lords, and which the Government opposed, in relation to age-appropriate treatment would have additional costs.


251.     A Regulatory Impact Assessment has been produced to accompany the Bill and is available on


252.     Section 19 of the Human Rights Act 1998 requires the Minister in charge of a Bill in either House of Parliament to make a statement about the compatibility of the provisions of the Bill with the Convention rights (as defined by section 1 of that Act). The Secretary of State for Health, the Rt. Hon. Patricia Hewitt M.P., has made the following statement: In my view the provisions of the Mental Health Bill are compatible with the Convention rights.

253.     Special attention has been given to ensure that the Bill is fully compliant with Convention rights because mental health patients are a particularly vulnerable group. Although wherever possible people with mental health problems are treated without compulsion, where this is not the case, the necessary curtailment of their rights must be within a legislative framework that is compatible with Convention rights with proper safeguards to protect those rights.

254.     The Bill raises issues under Article 3 (prohibition of inhuman or degrading treatment), Article 5 (right to liberty and security), Article 8 (right to respect for private and family life), Article 14 (prohibition of discrimination) and Article 3 of Protocol 1 (right to free elections).

Criteria for detention

255.     Clauses 4 and 5 amend the criteria for detention in the 1983 Act. In the Government's view, these changes are not required by Article 5, but are compatible with it.

Patient's nearest relative

256.     Clauses 26-29 of the Bill introduce the ability for the patient to apply to the county court to discharge his or her NR and introduces a new ground on which an application may be made which concerns the suitability of the person to be the NR. It is considered that this is compatible with the patient's Article 8 right to respect for private and family life and remedies the finding of incompatibility against the Government in two cases.

Supervised community treatment

257.     Clauses 32-34 and Schedules 3 and 4 introduce the ability to treat patients who have previously been detained in hospital in the community. These provisions engage Articles 5, 8 and 14. A person who is made subject to a CTO can be recalled, or have their CTO revoked, only in a manner, and on a basis, that is compatible with these Convention rights and so as to avoid arbitrariness. The reason for recalling a patient to hospital when the patient is subject to a CTO must be related to the patient's need to be treated in hospital and the interests of the patient's health and safety or the safety of others, in order to ensure the patient's ECHR rights are not breached. Patients who are subject to a CTO are given new rights to apply or have their case automatically referred to the Tribunal to meet the requirements of Article 5.

Mental Health Review Tribunals

258.     The Tribunals in England and Wales will continue to be the forum for review of detention. Clause 36 amends the 1983 Act so that all types of civil cases (including guardianship order patients transferred to hospital, but not Part 3 hospital order patients) are to be referred to the Tribunal by the hospital managers at the expiry of 6 months from the applicable date (generally being the date the patient was initially detained under the 1983 Act) unless an application has already been made, for example by the patient or the patient's NR, or the case has otherwise been referred to the Tribunal. This is compatible with the requirements of Article 5 that detained patients have speedy access to a "court" 3, to decide the lawfulness of detention, and protects the rights of the patient to be free of arbitrary detention.

3      Not necessarily a court of the classic kind. In Benjamin & Wilson v the UK (2003)36 EHRR 1) the court held it must have necessary judicial procedures, appropriate safeguards, and be independent of the parties and the executive.

Restricted patients

259.     Clause 39 will repeal the power for the Crown Court to make a restriction order for a specified period. The effect of the repeal is that restriction orders can no longer be "limited". They will remain in force until discharged by the Secretary of State or the MHRT. Restriction orders engage Article 5 (deprivation of liberty) and specifically Article 5(4), the requirement for an independent judicial review of deprivation of liberty, with power to order discharge, and bring restrictions to an end. That review will continue to be provided unchanged by the Tribunal. The Government's view is that the amendment leaves the provision fully compliant with the ECHR.

Members of Parliament and members of the devolved assemblies

260.     Section 141 of the 1983 Act provides for the seats of Members of Parliament and the devolved assemblies to be vacated where the members is detained under mental health legislation. At present this applies only where the member is detained on the grounds of mental illness. Schedule 1 extends this to mental disorder generally. This engages Article 3 of Protocol 1 which has been interpreted to include a right to stand for electoral office. The Government's view is that this interference pursues a legitimate aim, namely the removal of a member in specified circumstances when he or she is suffering from mental disorder, and is proportionate.

Amendments to the Mental Capacity Act 2005

261.     Part 2 of the Bill engages the Article 5 right to liberty and security, the Article 8 right to respect for private and family life and the Article 14 prohibition of discrimination Part 2 of the Bill sets out to remedy the finding of incompatibility with the ECHR by the European Court in the case of HL v United Kingdom, commonly known as the "Bournewood gap". There is provision in the Bill to set out a procedure in law and provide relevant safeguards to close the "Bournewood gap". This is achieved by amending the MCA to permit authorisation of deprivation of liberty if certain qualifying requirements are met. It is the Government's view that this makes provisions fully compliant with the relevant articles of the ECHR.


262.     The commencement clause (clause 53) provides for the Act to be commenced by order of the Secretary of State, with the agreement of Welsh Ministers.

Annex A

Functions of Welsh Ministers

Clause/SectionFunction Description
25 / 12APower to prescribe by regulations the circumstances in which there could be a conflict of interest for AMHPs in making an application under the Act, or registered medical practitioners in making a recommendation for detention under the Act
32 / 17F(2)Power to prescribe by regulations the circumstances in which and conditions subject to which a recalled patient may be transferred to any hospital.
Schedule 3 / 19A(1)Power to prescribe by regulations the circumstances in which and conditions subject to which a community patient may be assigned to any hospital.
32 / 20A(4)(b)
Power to prescribe by regulations the form of the report which a RC must furnish to hospital managers, where it appears to that clinician that the conditions in section 20A(6) have been met.
30 / 58APower to prescribe by regulation other forms of treatment, in addition to electro-convulsive therapy, to which new section 58A may apply
35 / 64H(2)Power to prescribe by regulations the form of the "Part 4A certificate"
Schedule 3 / 67(1)Power to refer the case of any community patient to the MHRT.
36 / 68A(1)Power to shorten by order the time periods set out in sections 68(2) and (6), within which hospital managers must refer patients' cases to the MHRT.
36 / 68A(2)Power to include in any order made under section 68A(1) such transitional, consequential, incidental or supplemental provision as the Assembly thinks fit as a result of such order being made
Schedule 5 / 80ZA(1)If it appears that specified conditions are met, power to authorise the transfer of responsibility for a community patient to a hospital in Scotland.
Schedule 5 / 81ZAIf it appears that specified conditions are met, power to authorise the transfer of responsibility for a community patient to a hospital in Northern Ireland.
Schedule 5 / 83ZA(3)If it appears that specified conditions are met, power to authorise the transfer of responsibility for a community patient to a hospital in the Channel Islands or the Isle of Man as the case may be.
20 / 114(4) & (5)Power to give directions to local social services authorities (whose areas are within Wales) in relation to the approval of Approved Mental Health Professionals. The direction may include such matters as the length of approvals, conditions attaching to approvals and the factors to be taken into account in determining whether a person has appropriate competence to act as an AMHP.
20 / 114(6)Power to vary or revoke directions made under section 114(4).
19 / 142APower, exercisable jointly with the Secretary of State, to make regulations as to the territorial extent of approval for section 12 doctors and approved clinicians
16 / 145(1)
The function of approving persons to act as ACs for the purposes of the Act.


Schedule 6 /
Schedule A1 to the Mental Capacity Act
Para 21
The function of supervisory body with power to give standard authorisation to deprive persons of liberty
Para 31Power to prescribe in regulations information required in request for standard authorisations
Para 33Power to prescribe in regulations the timescales for assessors to carry out assessments for standard authorisations
Para 47Power to provide in regulations a requirement that eligibility assessors require best interests assessors to provide relevant eligibility information.
Para 84Power to extend the period of urgent authorisation
Para 102The function of reviewing standard authorisations
Para 129
Power to include in regulations provision about the selection and eligibility of persons to be appointed as assessors
Para 130Power to prescribe in regulations as to the number and kind of person that may carry out assessments, including their qualifications, experience and independence. The regulations may also require assessors to hold liability insurance.
Para 138 to 152Power to make regulations about the selection and appointment of representatives
Para 162Power to make regulations to enable monitoring and reporting on the operation of provisions, and to direct one or more persons or bodies to monitor and report on the operation of the provisions.
Para 163Power to make regulations requiring the supervisory body and managing authority to disclose information.
Para 164Power to direct LHBs to exercise supervisory functions
Para 165Power to make directions and regulations about the exercise of supervisory functions.
Para 172Power to determine questions arising as to residence and to make regulations about the determination of residence (as set out in Para 182)
Para 183Power to make regulations about the carrying out of functions where the supervisory body and managing authority are the same body
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Prepared: 23 March 2007