Mental Health Bill [HL]

House of Commons

Session 2006 - 07
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Other Bills before Parliament

Mental Health Bill [HL]

Mental Health Bill [HL]
Schedule 6 — Mental Capacity Act 2005: new Schedule A1
121

      (2)
The National Assembly for Wales are the supervisory body.
      (3)
But if a Primary Care Trust commissions the relevant care or
treatment, that Trust is the supervisory body.
Supervisory bodies: care homes
181   (1)
The identity of the supervisory body is determined under this
5
paragraph in cases where the relevant care home is situated in
England or in Wales.
      (2)
The supervisory body are the local authority for the area in which
the relevant person is ordinarily resident.
      (3)
But if the relevant person is not ordinarily resident in the area of a
10
local authority, the supervisory body are the local authority for the
area in which the care home is situated.
      (4)
In relation to England “local authority” means—
(a)
the council of a county;
(b)
the council of a district for which there is no county
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council;
(c)
the council of a London borough;
(d)
the Common Council of the City of London;
(e)
the Council of the Isles of Scilly.
      (5)
In relation to Wales “local authority” means the council of a county
20
or county borough.
      (6)
If a care home is situated in the areas of two (or more) local
authorities, it is to be regarded for the purposes of sub-paragraph
(3) as situated in whichever of the areas the greater (or greatest)
part of the care home is situated.
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182   (1)
Subsections (5) and (6) of section 24 of the National Assistance Act
1948 (deemed place of ordinary residence) apply to any
determination of where a person is ordinarily resident for the
purposes of paragraph 181 as those subsections apply to such a
determination for the purposes specified in those subsections.
30
      (2)
In the application of section 24(6) of the 1948 Act by virtue of
subsection (1), section 24(6) is to be read as if it referred to a
hospital vested in a Local Health Board as well as to hospitals
vested in the Secretary of State and the other bodies mentioned in
section 24(6).
35
      (3)
Any question arising as to the ordinary residence of a person is to
be determined by the Secretary of State or by the National
Assembly for Wales.
      (4)
The Secretary of State and the National Assembly must make and
publish arrangements for determining which cases are to be dealt
40
with by the Secretary of State and which are to be dealt with by the
National Assembly.
      (5)
Those arrangements may include provision for the Secretary of
State and the National Assembly to agree, in relation to any
question that has arisen, which of them is to deal with the case.
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Mental Health Bill [HL]
Schedule 6 — Mental Capacity Act 2005: new Schedule A1
122

      (6)
Regulations may make provision about arrangements that are to
have effect before, upon, or after the determination of any
question as to the ordinary residence of a person.
      (7)
The regulations may, in particular, authorise or require a local
authority to do any or all of the following things—
5
(a)
to act as supervisory body even though it may wish to
dispute that it is the supervisory body;
(b)
to become the supervisory body in place of another local
authority;
(c)
to recover from another local authority expenditure
10
incurred in exercising functions as the supervisory body.
Same body managing authority and supervisory body
183   (1)
This paragraph applies if, in connection with a particular person’s
detention as a resident in a hospital or care home, the same body
are both—
15
(a)
the managing authority of the relevant hospital or care
home, and
(b)
the supervisory body.
      (2)
The fact that a single body are acting in both capacities does not
prevent the body from carrying out functions under this Schedule
20
in each capacity.
      (3)
But, in such a case, this Schedule has effect subject to any
modifications contained in regulations that may be made for this
purpose.
Interested persons
25
184
Each of the following is an interested person—
(a)
the relevant person’s spouse or civil partner;
(b)
where the relevant person and another person of the
opposite sex are not married to each other but are living
together as husband and wife: the other person;
30
(c)
where the relevant person and another person of the same
sex are not civil partners of each other but are living
together as if they were civil partners: the other person;
(d)
the relevant person’s children and step-children;
(e)
the relevant person’s parents and step-parents;
35
(f)
the relevant person’s brothers and sisters, half-brothers
and half-sisters, and stepbrothers and stepsisters;
(g)
the relevant person’s grandparents;
(h)
a deputy appointed for the relevant person by the court;
(i)
a donee of a lasting power of attorney granted by the
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relevant person.
185   (1)
An interested person consulted by the best interests assessor is any
person whose name is stated in the relevant best interests
assessment in accordance with paragraph 40 (interested persons
whom the assessor consulted in carrying out the assessment).
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Mental Health Bill [HL]
Schedule 7 — Mental Capacity Act 2005: new Schedule 1A
123

      (2)
The relevant best interests assessment is the most recent best
interests assessment carried out in connection with the standard
authorisation in question (whether the assessment was carried out
under Part 4 or Part 8).
186
Where this Schedule imposes on a person a duty towards an
5
interested person, the duty does not apply if the person on whom
the duty is imposed—
(a)
is not aware of the interested person’s identity or of a way
of contacting him, and
(b)
cannot reasonably ascertain it.”.
10
Schedule 7
Section 45

Mental Capacity Act 2005: new Schedule 1A

After Schedule 1 to the Mental Capacity Act 2005 (c. 9) insert—
“Schedule 1A
Persons ineligible to be deprived of liberty by this Act
15
Part 1
Ineligible persons
Application
1
This Schedule applies for the purposes of—
(a)
section 16A, and
20
(b)
paragraph 17 of Schedule A1.
Determining ineligibility
2
A person (“P”) is ineligible to be deprived of liberty by this Act
(“ineligible”) if—
(a)
P falls within one of the cases set out in the second column
25
of the following table, and
(b)
the corresponding entry in the third column of the table —
or the provision, or one of the provisions, referred to in that
entry — provides that he is ineligible.

Status of P
Determination

30

of ineligibility

P is—

(a)
subject to the hospital treatment regime,

Case A
and
P is ineligible.

(b)
detained in a hospital under that

35

regime.

Mental Health Bill [HL]
Schedule 7 — Mental Capacity Act 2005: new Schedule 1A
124

Status of P
Determination

of ineligibility

P is—

(a)
subject to the hospital treatment regime,

Case B
but
See paragraphs 3 and 4.

5

(b)
not detained in a hospital under that

regime.

Case C
P is subject to the community treatment regime.
See paragraphs 3 and 4.

Case D
P is subject to the guardianship regime.
See paragraphs 3 and 5.

P is—

10

(a)
within the scope of the Mental Health

Case E
Act, but
See paragraph 5.

(b)
not subject to any of the mental health

regimes.

Authorised course of action not in accordance with regime
15
3     (1)
This paragraph applies in cases B, C and D in the table in
paragraph 2.
      (2)
P is ineligible if the authorised course of action is not in accordance
with a requirement which the relevant regime imposes.
      (3)
That includes any requirement as to where P is, or is not, to reside.
20
      (4)
The relevant regime is the mental health regime to which P is
subject.
Treatment for mental disorder in a hospital
4     (1)
This paragraph applies in cases B and C in the table in paragraph
2.
25
      (2)
P is ineligible if the relevant care or treatment consists in whole or
in part of medical treatment for mental disorder in a hospital.
P objects to being a mental health patient etc
5     (1)
This paragraph applies in cases D and E in the table in paragraph
2.
30
      (2)
P is ineligible if the following conditions are met.
      (3)
The first condition is that the relevant instrument authorises P to
be a mental health patient.
      (4)
The second condition is that P objects—
(a)
to being a mental health patient, or
35
(b)
to being given some or all of the mental health treatment.
      (5)
The third condition is that a donee or deputy has not made a valid
decision to consent to each matter to which P objects.

Mental Health Bill [HL]
Schedule 7 — Mental Capacity Act 2005: new Schedule 1A
125

      (6)
In determining whether or not P objects to something, regard must
be had to all the circumstances (so far as they are reasonably
ascertainable), including the following—
(a)
P’s behaviour;
(b)
P’s wishes and feelings;
5
(c)
P’s views, beliefs and values.
      (7)
But regard is to be had to circumstances from the past only so far
as it is still appropriate to have regard to them.
Part 2
Interpretation
10
Application
6
This Part applies for the purposes of this Schedule.
Mental health regimes
7
The mental health regimes are—
(a)
the hospital treatment regime,
15
(b)
the community treatment regime, and
(c)
the guardianship regime.
Hospital treatment regime
8     (1)
P is subject to the hospital treatment regime if he is subject to—
(a)
a hospital treatment obligation under the relevant
20
enactment, or
(b)
an obligation under another England and Wales
enactment which has the same effect as a hospital
treatment obligation.
      (2)
But where P is subject to any such obligation, he is to be regarded
25
as not subject to the hospital treatment regime during any period
when he is subject to the community treatment regime.
      (3)
A hospital treatment obligation is an application, order or
direction of a kind listed in the first column of the following table.
      (4)
In relation to a hospital treatment obligation, the relevant
30
enactment is the enactment in the Mental Health Act which is
referred to in the corresponding entry in the second column of the
following table.

Hospital treatment obligation
Relevant

enactment

35

Application for admission for assessment
Section 2

Application for admission for assessment
Section 4

Application for admission for treatment
Section 3

Mental Health Bill [HL]
Schedule 7 — Mental Capacity Act 2005: new Schedule 1A
126

Hospital treatment obligation
Relevant

enactment

Order for remand to hospital
Section 35

Order for remand to hospital
Section 36

Hospital order
Section 37

5

Interim hospital order
Section 38

Order for detention in hospital
Section 44

Hospital direction
Section 45A

Transfer direction
Section 47

Transfer direction
Section 48

10

Hospital order
Section 51

Community treatment regime
9
P is subject to the community treatment regime if he is subject to—
(a)
a community treatment order under section 17A of the
Mental Health Act, or
15
(b)
an obligation under another England and Wales
enactment which has the same effect as a community
treatment order.
Guardianship regime
10
P is subject to the guardianship regime if he is subject to—
20
(a)
a guardianship application under section 7 of the Mental
Health Act,
(b)
a guardianship order under section 37 of the Mental
Health Act, or
(c)
an obligation under another England and Wales
25
enactment which has the same effect as a guardianship
application or guardianship order.
England and Wales enactments
11    (1)
An England and Wales enactment is an enactment which extends
to England and Wales (whether or not it also extends elsewhere).
30
      (2)
It does not matter if the enactment is in the Mental Health Act or
not.
P within scope of Mental Health Act
12    (1)
P is within the scope of the Mental Health Act if—
(a)
an application in respect of P could be made under section
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2 or 3 of the Mental Health Act, and

Mental Health Bill [HL]
Schedule 7 — Mental Capacity Act 2005: new Schedule 1A
127

(b)
P could be detained in a hospital in pursuance of such an
application, were one made.
      (2)
The following provisions of this paragraph apply when
determining whether an application in respect of P could be made
under section 2 or 3 of the Mental Health Act.
5
      (3)
If the grounds in section 2(2) of the Mental Health Act are met in
P’s case, it is to be assumed that the recommendations referred to
in section 2(3) of that Act have been given.
      (4)
If the grounds in section 3(2) of the Mental Health Act are met in
P’s case, it is to be assumed that the recommendations referred to
10
in section 3(3) of that Act have been given.
      (5)
In determining whether the ground in section 3(2)(c) of the Mental
Health Act is met in P’s case, it is to be assumed that the treatment
referred to in section 3(2)(c) cannot be provided under this Act.
Authorised course of action, relevant care or treatment & relevant instrument
15
13
In a case where this Schedule applies for the purposes of section
16A—
“authorised course of action” means any course of action
amounting to deprivation of liberty which the order under
section 16(2)(a) authorises;
20
“relevant care or treatment” means any care or treatment
which—
(a)
comprises, or forms part of, the authorised course of
action, or
(b)
is to be given in connection with the authorised
25
course of action;
“relevant instrument” means the order under section 16(2)(a).
14
In a case where this Schedule applies for the purposes of
paragraph 17 of Schedule A1—
“authorised course of action” means the accommodation of
30
the relevant person in the relevant hospital or care home
for the purpose of being given the relevant care or
treatment;
“relevant care or treatment” has the same meaning as in
Schedule A1;
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“relevant instrument” means the standard authorisation
under Schedule A1.
15    (1)
This paragraph applies where the question whether a person is
ineligible to be deprived of liberty by this Act is relevant to either
of these decisions—
40
(a)
whether or not to include particular provision (“the
proposed provision”) in an order under section 16(2)(a);
(b)
whether or not to give a standard authorisation under
Schedule A1.
      (2)
A reference in this Schedule to the authorised course of action or
45
the relevant care or treatment is to be read as a reference to that
thing as it would be if—