Mental Health Bill [HL]

House of Commons

Session 2006 - 07
Internet Publications
Other Bills before Parliament

Mental Health Bill [HL]

Mental Health Bill [HL]
Part 1 — Amendments to Mental Health Act 1983
Chapter 2 — Professional roles
13

19
Approval of courses etc for approved mental health professionals
After section 114 of the 1983 Act insert—
“114A
Approval of courses etc for approved mental health professionals
(1)
The relevant Council may, in accordance with rules made by it,
approve courses for persons who are or wish to become approved
5
mental health professionals.
(2)
For that purpose—
(a)
subsections (2) to (4)(a) and (7) of section 63 of the Care
Standards Act 2000 apply as they apply to approvals given,
rules made and courses approved under that section; and
10
(b)
sections 66 and 71 of that Act apply accordingly.
(3)
In subsection (1), “the relevant Council” means—
(a)
in relation to persons who are or wish to become approved to
act as approved mental health professionals by a local social
services authority whose area is in England, the General Social
15
Care Council;
(b)
in relation to persons who are or wish to become approved to
act as approved mental health professionals by a local social
services authority whose area is in Wales, the Care Council for
Wales.
20
(4)
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.
(5)
The General Social Care Council and the Care Council for Wales may
also carry out, or assist other persons in carrying out, research into
25
matters relevant to training for approved mental health professionals.”
20
Amendment to section 62 of Care Standards Act 2000
In section 62 of the Care Standards Act 2000 (c. 14) (codes of practice), after
subsection (1) insert—
“(1A)
The codes may also lay down standards of conduct and practice
30
expected of social workers when carrying out the functions of an
approved mental health professional (as defined in section 114 of the
Mental Health Act 1983).”
21
Approved mental health professionals: further amendments
Schedule 2 (which contains amendments in connection with section 18) has
35
effect.
Conflicts of interest in professional roles
22
Conflicts of interest
(1)
The 1983 Act is amended as follows.
(2)
In section 11 (general provisions as to applications), after subsection (1)
40

Mental Health Bill [HL]
Part 1 — Amendments to Mental Health Act 1983
Chapter 2 — Professional roles
14

insert—
“(1A)
No application mentioned in subsection (1) above shall be made by an
approved mental health professional if the circumstances are such that
there would be a potential conflict of interest for the purposes of
regulations under section 12A below.”
5
(3)
In section 12 (general provisions as to medical recommendations), in
subsection (1), after “this Part of this Act” insert “or a guardianship
application”.
(4)
In that section, for subsections (3) to (7) substitute—
“(3)
No medical recommendation shall be given for the purposes of an
10
application mentioned in subsection (1) above if the circumstances are
such that there would be a potential conflict of interest for the purposes
of regulations under section 12A below.”
(5)
After that section insert—
“12A
Conflicts of interest
15
(1)
The appropriate national authority may make regulations as to the
circumstances in which there would be a potential conflict of interest
such that—
(a)
an approved mental health professional shall not make an
application mentioned in section 11(1) above;
20
(b)
a registered medical practitioner shall not give a
recommendation for the purposes of an application mentioned
in section 12(1) above.
(2)
Regulations under subsection (1) above may make—
(a)
provision for the prohibitions in paragraphs (a) and (b) of that
25
subsection to be subject to specified exceptions;
(b)
different provision for different cases; and
(c)
transitional, consequential, incidental or supplemental
provision.
(3)
In subsection (1) above, “the appropriate national authority” means—
30
(a)
in relation to applications in which admission is sought to a
hospital in England or to guardianship applications in respect
of which the area of the relevant local social services authority
is in England, the Secretary of State;
(b)
in relation to applications in which admission is sought to a
35
hospital in Wales or to guardianship applications in respect of
which the area of the relevant local social services authority is in
Wales, the Welsh Ministers.
(4)
References in this section to the relevant local social services authority,
in relation to a guardianship application, are references to the local
40
social services authority named in the application as guardian or (as the
case may be) the local social services authority for the area in which the
person so named resides.”
(6)
In section 13 (duty to make applications for admission or guardianship), in
subsection (5), after “section 11(4) above” insert “or of regulations under
45
section 12A above”.

Mental Health Bill [HL]
Part 1 — Amendments to Mental Health Act 1983
Chapter 3 — Safeguards for patients
15

Chapter 3
Safeguards for patients
Patient’s nearest relative
23
Extension of power to appoint acting nearest relative
(1)
Section 29 of the 1983 Act (appointment by court of acting nearest relative) is
5
amended as follows.
(2)
In subsection (1), for the words from “the applicant” to the end substitute “the
person specified in the order”.
(3)
After subsection (1) insert—
“(1A)
If the court decides to make an order on an application under
10
subsection (1) above, the following rules have effect for the purposes of
specifying a person in the order—
(a)
if a person is nominated in the application to act as the patient’s
nearest relative and that person is, in the opinion of the court, a
suitable person to act as such and is willing to do so, the court
15
shall specify that person (or, if there are two or more such
persons, such one of them as the court thinks fit);
(b)
otherwise, the court shall specify such person as is, in its
opinion, a suitable person to act as the patient’s nearest relative
and is willing to do so.”
20
(4)
In subsection (2)—
(a)
after “on the application of—” insert—
“(za)
the patient;”, and
(b)
omit the words from “but in relation to” to the end.
(5)
In subsection (3)—
25
(a)
in paragraph (c) omit the word “or” at the end of the paragraph, and
(b)
after paragraph (d) insert “; or
(e)
that the nearest relative of the patient is otherwise not a
suitable person to act as such.”
(6)
In subsection (5), for “(3)(a) or (b)” substitute “(3)(a), (b) or (e)”.
30
24
Discharge and variation of orders appointing nearest relative
(1)
Section 30 of the 1983 Act (discharge and variation of orders under section 29)
is amended as follows.
(2)
In subsection (1)—
(a)
in paragraph (a), after “in any case, by” insert “the patient or”, and
35
(b)
in paragraph (b), for “or paragraph (b)” substitute “, (b) or (e)”.
(3)
After that subsection insert—
“(1A)
But, in the case of an order made on the ground specified in paragraph
(e) of section 29(3) above, an application may not be made under
subsection (1)(b) above by the person who was the nearest relative of
40

Mental Health Bill [HL]
Part 1 — Amendments to Mental Health Act 1983
Chapter 3 — Safeguards for patients
16

the patient when the order was made except with leave of the county
court.”
(4)
In subsection (2)—
(a)
after “or on the application of” insert “the patient or of”, and
(b)
for the words from “for the first-mentioned person” to the end
5
substitute “another person for the person having those functions”.
(5)
After that subsection insert—
“(2A)
If the court decides to vary an order on an application under subsection
(2) above, the following rules have effect for the purposes of
substituting another person—
10
(a)
if a person is nominated in the application to act as the patient’s
nearest relative and that person is, in the opinion of the court, a
suitable person to act as such and is willing to do so, the court
shall specify that person (or, if there are two or more such
persons, such one of them as the court thinks fit);
15
(b)
otherwise, the court shall specify such person as is, in its
opinion, a suitable person to act as the patient’s nearest relative
and is willing to do so.”
(6)
In subsection (4), for the words from “An order under” to “period is specified”
substitute “An order made on the ground specified in paragraph (c) or (d) of
20
section 29(3) above shall, unless previously discharged under subsection (1)
above, cease to have effect as follows”.
(7)
After subsection (4A) (inserted by Schedule 3 to this Act) insert—
“(4B)
An order made on the ground specified in paragraph (a), (b) or (e) of
section 29(3) above shall—
25
(a)
if a period was specified under section 29(5) above, cease to
have effect on expiry of that period, unless previously
discharged under subsection (1) above;
(b)
if no such period was specified, remain in force until it is
discharged under subsection (1) above.”
30
25
Restriction of nearest relative’s right to apply to tribunal
In section 66 of the 1983 Act (applications to tribunal), in subsection (1)(h) after
“section 29 above” insert “on the ground specified in paragraph (c) or (d) of
subsection (3) of that section”.
26
Civil partners
35
(1)
Section 26 of the 1983 Act (definition of “relative” and “nearest relative”) is
amended as set out in subsections (2) to (5).
(2)
In subsection (1)(a), after “wife” insert “or civil partner”.
(3)
In subsection (5)—
(a)
in paragraph (b) after “wife” insert “or civil partner”, and
40
(b)
in paragraph (c) after “wife,” insert “civil partner,”.
(4)
In subsection (6)—

Mental Health Bill [HL]
Part 1 — Amendments to Mental Health Act 1983
Chapter 3 — Safeguards for patients
17

(a)
for “and “wife” include a person who is living with the patient as the
patient’s husband or wife” substitute “, “wife” and “civil partner”
include a person who is living with the patient as the patient’s husband
or wife or as if they were civil partners”, and
(b)
for “unless the husband or wife” substitute “or a patient in a civil
5
partnership unless the husband, wife or civil partner”.
(5)
In subsection (7)(b), for “unless the husband or wife” substitute “or a patient in
a civil partnership unless the husband, wife or civil partner”.
(6)
In section 27 of the 1983 Act (children and young persons in care), after “wife”
insert “or civil partner”.
10
Consent to treatment
27
Electro-convulsive therapy, etc.
After section 58 of the 1983 Act insert—
“58A
Electro-convulsive therapy, etc.
(1)
This section applies to the following forms of medical treatment for
15
mental disorder—
(a)
electro-convulsive therapy; and
(b)
such other forms of treatment as may be specified for the
purposes of this section by regulations made by the appropriate
national authority.
20
(2)
Subject to section 62 below, a patient shall be not be given any form of
treatment to which this section applies unless he falls within subsection
(3) or (4) below.
(3)
A patient falls within this subsection if—
(a)
he has consented to the treatment in question; and
25
(b)
either the approved clinician in charge of it or a registered
medical practitioner appointed as mentioned in section 58(3)
above has certified in writing that the patient is capable of
understanding the nature, purpose and likely effects of the
treatment and has consented to it.
30
(4)
A patient falls within this subsection if a registered medical practitioner
appointed as aforesaid (not being the approved clinician in charge of
the treatment in question) has certified in writing—
(a)
that the patient is not capable of understanding the nature,
purpose and likely effects of the treatment; but
35
(b)
that it is appropriate for the treatment to be given; and
(c)
that giving him the treatment would not conflict with—
(i)
an advance decision which the registered medical
practitioner concerned is satisfied is valid and
applicable;
40
(ii)
a decision made by a donee or deputy or by the Court of
Protection; or
(iii)
an order of a court.

Mental Health Bill [HL]
Part 1 — Amendments to Mental Health Act 1983
Chapter 3 — Safeguards for patients
18

(5)
Before giving a certificate under subsection (4) above the registered
medical practitioner concerned shall consult two other persons who
have been professionally concerned with the patient’s medical
treatment (neither of whom shall be the responsible clinician or the
approved clinician in charge of the treatment in question), and of those
5
persons one shall be a nurse and the other shall be neither a nurse nor
a registered medical practitioner.
(6)
Before making any regulations for the purposes of this section, the
appropriate national authority shall consult such bodies as appear to it
to be concerned.
10
(7)
In this section—
(a)
a reference to an advance decision is to an advance decision
(within the meaning of the Mental Capacity Act 2005) made by
the patient;
(b)
“valid and applicable”, in relation to such a decision, means
15
valid and applicable to the treatment in question in accordance
with section 25 of that Act;
(c)
a reference to a donee is to a donee of a lasting power of attorney
(within the meaning of section 9 of that Act) created by the
patient, where the donee is acting within the scope of his
20
authority and in accordance with that Act; and
(d)
a reference to a deputy is to a deputy appointed for the patient
by the Court of Protection under section 16 of that Act, where
the deputy is acting within the scope of his authority and in
accordance with that Act.
25
(8)
In this section, “the appropriate national authority” means—
(a)
in a case where the treatment in question would, if given, be
given in England, the Secretary of State;
(b)
in a case where the treatment in question would, if given, be
given in Wales, the Welsh Ministers.”
30
28
Section 27: supplemental
(1)
Part 4 of the 1983 Act (consent to treatment) is amended as follows.
(2)
In section 58 (treatment requiring consent or a second opinion)—
(a)
in subsection (1)(b), after “section 57 above” insert “or section 58A(1)(b)
below”, and
35
(b)
in subsection (3)(b), before “has not consented to it” insert “being so
capable”.
(3)
In section 59 (plans of treatment), for “or 58” substitute “, 58 or 58A”.
(4)
In section 60 (withdrawal of consent), for “or 58”, substitute “, 58 or 58A”.
(5)
In section 61 (review of treatment)—
40
(a)
in subsection (1), for “or 58(3)(b)” substitute “, 58(3)(b) or 58A(4)”, and
(b)
in subsection (3)—
(i)
for “or 58(3)(b)” substitute “, 58(3)(b) or 58A(4)”, and
(ii)
for “and 58” substitute “, 58 and 58A”.
(6)
In section 62 (urgent treatment)—
45

Mental Health Bill [HL]
Part 1 — Amendments to Mental Health Act 1983
Chapter 4 — Supervised community treatment
19

(a)
in subsection (1), for “and 58” substitute “, 58 and 58A”, and
(b)
in subsection (2), for “or 58” substitute “, 58 or 58A”.
(7)
In section 63 (treatment not requiring consent), for “, not being treatment
falling within section 57 or 58 above,” substitute “, not being a form of
treatment to which section 57, 58 or 58A above applies,”.
5
Chapter 4
Supervised community treatment
29
Community treatment orders, etc
(1)
The 1983 Act is amended as follows.
(2)
After section 17 insert—
10
“17A
Community treatment orders
(1)
The responsible clinician may by order in writing discharge a detained
patient from hospital subject to his being liable to recall in accordance
with section 17E below.
(2)
A detained patient is a patient who is liable to be detained in a hospital
15
in pursuance of an application for admission for treatment.
(3)
An order under subsection (1) above is referred to in this Act as a
“community treatment order”.
(4)
The responsible clinician may not make a community treatment order
unless—
20
(a)
in his opinion, the relevant criteria are met; and
(b)
an approved mental health professional states in writing—
(i)
that he agrees with that opinion; and
(ii)
that it is appropriate to make the order.
(5)
The relevant criteria are—
25
(a)
the patient is suffering from mental disorder of a nature or
degree which makes it appropriate for him to receive medical
treatment;
(b)
it is necessary for his health or safety or for the protection of
other persons that he should receive such treatment;
30
(c)
subject to his being liable to be recalled as mentioned in
paragraph (d) below, such treatment can be provided without
his continuing to be detained in a hospital;
(d)
it is necessary for his health or safety or for the protection of
other persons that he should be liable to be recalled to hospital
35
for medical treatment; and
(e)
appropriate medical treatment is available for him.
(6)
In this Act—
“community patient” means a patient in respect of whom a
community treatment order is in force;
40