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]
Part 1 — Amendments to Mental Health Act 1983
Chapter 4 — Supervised community treatment
31

64I
Liability for negligence
Nothing in section 64D, 64F or 64G above excludes a person’s civil
liability for loss or damage, or his criminal liability, resulting from his
negligence in doing anything authorised to be done by that section.
64J
Factors to be considered in determining whether patient objects to
5
treatment
(1)
In assessing for the purposes of this Part whether he has reason to
believe that a patient objects to treatment, a person shall consider all the
circumstances so far as they are reasonably ascertainable, including the
patient’s behaviour, wishes, feelings, views, beliefs and values.
10
(2)
But circumstances from the past shall be considered only so far as it is
still appropriate to consider them.
64K
Interpretation of Part 4A
(1)
This Part of this Act is to be construed as follows.
(2)
References to a patient who lacks capacity are to a patient who lacks
15
capacity within the meaning of the Mental Capacity Act 2005.
(3)
References to a patient who has capacity are to be read accordingly.
(4)
References to a donee are to a donee of a lasting power of attorney
(within the meaning of section 9 of the Mental Capacity Act 2005)
created by the patient, where the donee is acting within the scope of his
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authority and in accordance with that Act.
(5)
References to a deputy are to a deputy appointed for the patient by the
Court of Protection under section 16 of the Mental Capacity Act 2005,
where the deputy is acting within the scope of his authority and in
accordance with that Act.
25
(6)
Reference to the responsible clinician shall be construed as a reference
to the responsible clinician within the meaning of Part 2 of this Act.
(7)
References to a hospital include a registered establishment.
(8)
Section 64(3) above applies for the purposes of this Part of this Act as it
applies for the purposes of Part 4 of this Act.”
30
(2)
In section 119 of the 1983 Act (practitioners approved for Part 4 and section
118)—
(a)
in subsection (2)—
(i)
after “those provisions” insert “or under Part 4A of this Act”,
(ii)
in paragraph (a), for “in a registered establishment” substitute
35
“in a hospital or registered establishment or any community
patient in a hospital or establishment of any description or (if
access is granted) other place”, and
(iii)
in paragraph (b), for “in that home” substitute “there”, and
(b)
after subsection (2) insert—
40
“(3)
In this section, “establishment of any description” shall be
construed in accordance with section 4(8) of the Care Standards
Act 2000.”

Mental Health Bill [HL]
Part 1 — Amendments to Mental Health Act 1983
Chapter 5 — Mental Health Review Tribunals
32

(3)
In section 121 of the 1983 Act (Mental Health Act Commission), in subsection
(2)(b) after “61” insert “, 64H(4)”.
(4)
The Mental Capacity Act 2005 (c. 9) is amended as follows.
(5)
In section 28 (Mental Health Act matters), after subsection (1) insert—
“(1A)
Section 5 does not apply to an act to which section 64B of the Mental
5
Health Act applies (treatment of community patients not recalled to
hospital).”
(6)
In section 37 (independent mental capacity advocates: provision of serious
medical treatment by NHS body), in subsection (2) after “Part 4” insert “or 4A”.
33
Repeal of provisions for after-care under supervision
10
(1)
The 1983 Act is amended as follows.
(2)
Sections 25A to 25J (after-care under supervision) are omitted.
(3)
In section 66 (applications to tribunals), in subsection (2)(c), for “cases
mentioned in paragraphs (c) and (ga)” substitute “case mentioned in
paragraph (c)”.
15
(4)
In Part 1 of Schedule 1 (application of certain provisions to patients subject to
hospital and guardianship orders: patients not subject to special restrictions),
in paragraph 1, for “25C” substitute “26”.
Chapter 5
Mental Health Review Tribunals
20
34
References
(1)
The 1983 Act is amended as follows.
(2)
In section 21 (special provision as to patients absent without leave), after
subsection (2) insert—
“(3)
Where a patient is absent without leave on the day on which (apart
25
from this section) the managers would be required under section 68
below to refer the patient’s case to a Mental Health Review Tribunal,
that requirement shall not apply unless and until—
(a)
the patient is taken into custody under section 18 above and
returned to the hospital where he ought to be; or
30
(b)
the patient returns himself to the hospital where he ought to be
within the period during which he can be taken into custody
under section 18 above.”
(3)
For section 68 substitute—
“68
Duty of managers of hospitals to refer cases to tribunal
35
(1)
This section applies in respect of the following patients—
(a)
a patient who is admitted to a hospital in pursuance of an
application for admission for assessment;
(b)
a patient who is admitted to a hospital in pursuance of an
application for admission for treatment;
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Mental Health Bill [HL]
Part 1 — Amendments to Mental Health Act 1983
Chapter 5 — Mental Health Review Tribunals
33

(c)
a community patient;
(d)
a patient whose community treatment order is revoked under
section 17F above;
(e)
a patient who is transferred from guardianship to a hospital in
pursuance of regulations made under section 19 above.
5
(2)
On expiry of the period of six months beginning with the applicable
day, the managers of the hospital shall refer the patient’s case to a
Mental Health Review Tribunal.
(3)
But they shall not do so if during that period—
(a)
any right has been exercised by or in respect of the patient by
10
virtue of any of paragraphs (b), (ca), (cb), (e), (g) and (h) of
section 66(1) above;
(b)
a reference has been made in respect of the patient under
section 67(1) above, not being a reference made while the
patient is or was liable to be detained in pursuance of an
15
application for admission for assessment; or
(c)
a reference has been made in respect of the patient under
subsection (7) below.
(4)
A person who applies to a tribunal but subsequently withdraws his
application shall be treated for these purposes as not having exercised
20
his right to apply, and if he withdraws his application on a date after
expiry of the period mentioned in subsection (2) above, the managers
shall refer the patient’s case as soon as possible after that date.
(5)
In subsection (2) above, “the applicable day” means—
(a)
in the case of a patient who is admitted to a hospital in
25
pursuance of an application for admission for assessment, the
day on which the patient was so admitted;
(b)
in the case of a patient who is admitted to a hospital in
pursuance of an application for admission for treatment—
(i)
the day on which the patient was so admitted; or
30
(ii)
if, when he was so admitted, he was already liable to be
detained in pursuance of an application for admission
for assessment, the day on which he was originally
admitted in pursuance of the application for admission
for assessment;
35
(c)
in the case of a community patient or a patient whose
community treatment order is revoked under section 17F
above, the day mentioned in sub-paragraph (i) or (ii), as the case
may be, of paragraph (b) above;
(d)
in the case of a patient who is transferred from guardianship to
40
a hospital, the day on which he was so transferred.
(6)
The managers of the hospital shall also refer the patient’s case to a
Mental Health Review Tribunal if a period of more than three years (or,
if the patient has not attained the age of 16 years, one year) has elapsed
since his case was last considered by such a tribunal, whether on his
45
own application or otherwise.
(7)
If, in the case of a community patient, the community treatment order
is revoked under section 17F above, the managers of the hospital shall

Mental Health Bill [HL]
Part 1 — Amendments to Mental Health Act 1983
Chapter 5 — Mental Health Review Tribunals
34

also refer the patient’s case to a Mental Health Review Tribunal as soon
as possible after the order is revoked.
(8)
For the purposes of furnishing information for the purposes of a
reference under this section, a registered medical practitioner or
approved clinician authorised by or on behalf of the patient may at any
5
reasonable time—
(a)
visit and examine the patient in private; and
(b)
require the production of and inspect any records relating to the
detention or treatment of the patient in any hospital or any
after-care services provided for him under section 117 below.
10
(9)
Reference in this section to the managers of the hospital—
(a)
in relation to a community patient, is to the managers of the
responsible hospital;
(b)
in relation to any other patient, is to the managers of the hospital
in which he is liable to be detained.
15
68A
Power to reduce periods under section 68
(1)
The appropriate national authority may from time to time by order
amend subsection (2) or (6) of section 68 above so as to substitute for a
period mentioned there such shorter period as is specified in the order.
(2)
The order may include such transitional, consequential, incidental or
20
supplemental provision as the appropriate national authority thinks fit.
(3)
The order may, in particular, make provision for a case where—
(a)
a patient in respect of whom subsection (1) of section 68 above
applies is, or is about to be, transferred from England to Wales
or from Wales to England; and
25
(b)
the period by reference to which subsection (2) or (6) of that
section operates for the purposes of the patient’s case is not the
same in one territory as it is in the other.
(4)
A patient is transferred from one territory to the other if—
(a)
he is transferred from a hospital, or from guardianship, in one
30
territory to a hospital in the other in pursuance of regulations
made under section 19 above;
(b)
he is removed under subsection (3) of that section from a
hospital or accommodation in one territory to a hospital or
accommodation in the other;
35
(c)
he is a community patient responsibility for whom is assigned
from a hospital in one territory to a hospital in the other in
pursuance of regulations made under section 19A above;
(d)
on the revocation of a community treatment order in respect of
him under section 17F above he is detained in a hospital in the
40
territory other than the one in which the responsible hospital
was situated; or
(e)
he is transferred or removed under section 123 below from a
hospital in one territory to a hospital in the other.
(5)
Provision made by virtue of subsection (3) above may require or
45
authorise the managers of a hospital determined in accordance with the
order to refer the patient’s case to a Mental Health Review Tribunal.

Mental Health Bill [HL]
Part 1 — Amendments to Mental Health Act 1983
Chapter 5 — Mental Health Review Tribunals
35

(6)
In so far as making provision by virtue of subsection (3) above, the
order—
(a)
may make different provision for different cases;
(b)
may make provision which applies subject to specified
exceptions.
5
(7)
Where the appropriate national authority for one territory makes an
order under subsection (1) above, the appropriate national authority
for the other territory may by order make such provision in
consequence of the order as it thinks fit.
(8)
An order made under subsection (7) above may, in particular, make
10
provision for a case within subsection (3) above (and subsections (4) to
(6) above shall apply accordingly).
(9)
In this section, “the appropriate national authority” means—
(a)
in relation to a hospital in England, the Secretary of State;
(b)
in relation to a hospital in Wales, the Welsh Ministers.”
15
(4)
In section 71 (references by Secretary of State concerning restricted patients),
after subsection (3) insert—
“(3A)
An order under subsection (3) above may include such transitional,
consequential, incidental or supplemental provision as the Secretary of
State thinks fit.”
20
(5)
In section 143 (general provisions as to regulations, orders and rules)—
(a)
in subsection (2)—
(i)
after “order made” insert “by the Secretary of State”, and
(ii)
after “54A” insert “or 68A(7)”, and
(b)
in subsection (3)—
25
(i)
after “made” insert “by the Secretary of State”, and
(ii)
for “68(4)” substitute “68A(1)”.
(6)
In Part 1 of Schedule 1 to that Act (application of certain provisions to patients
subject to hospital and guardianship orders: patients not subject to special
restrictions)—
30
(a)
in paragraph 2—
(i)
for “and 66” substitute “, 66 and 68”, and
(ii)
for “to 9” substitute “to 10”, and
(b)
after paragraph 9 insert—
“10
In section 68—
35
(a)
in subsection (1) paragraph (a) shall be omitted; and
(b)
subsections (2) to (5) shall apply if the patient falls
within paragraph (e) of subsection (1), but not
otherwise.”
35
Organisation
40
(1)
The 1983 Act is amended as follows.
(2)
In section 65 (Mental Health Review Tribunals), for subsections (1) to (1C)
substitute—
“(1)
There shall be—

Mental Health Bill [HL]
Part 1 — Amendments to Mental Health Act 1983
Chapter 5 — Mental Health Review Tribunals
36

(a)
a Mental Health Review Tribunal for England; and
(b)
a Mental Health Review Tribunal for Wales.
(1A)
The purpose of the Mental Health Review Tribunals is to deal with
applications and references by and in respect of patients under the
provisions of this Act.”
5
(3)
In section 78 (procedure of tribunals)—
(a)
in subsections (2)(a) and (k) and (6), for “chairman” substitute
“President”,
(b)
in subsection (2)(a), for “any other” substitute “the other”,
(c)
in subsections (2)(b) and (4)(b), for “another” substitute “the other”,
10
(d)
in subsection (4)(a), for “president” substitute “chairman”, and
(e)
in subsection (6) omit “, if for any reason he is unable to act,”.
(4)
In section 79 (interpretation of Part 5), for subsection (7) substitute—
“(7)
For the purposes of this Part of this Act—
(a)
the area of the Mental Health Review Tribunal for England is
15
England; and
(b)
the area of the Mental Health Review Tribunal for Wales is
Wales.”
(5)
Schedule 2 (Mental Health Review Tribunals) is amended as set out in
subsections (6) to (9).
20
(6)
For paragraph 3 substitute—
“3    (1)
The Lord Chancellor shall appoint one of the legal members of the
Mental Health Review Tribunal for England to be the President of
that tribunal.
      (2)
The Lord Chancellor shall appoint one of the legal members of the
25
Mental Health Review Tribunal for Wales to be the President of that
tribunal.”
(7)
In paragraph 4—
(a)
for “chairman”, in each place, substitute “President”, and
(b)
omit “, if for any reason he is unable to act,”.
30
(8)
In paragraph 5—
(a)
for “any area” substitute “one area”, and
(b)
for “any other” substitute “the other”.
(9)
In paragraph 6—
(a)
for “chairman”, in each place, substitute “President”, and
35
(b)
for “president”, in each place, substitute “chairman”.

Mental Health Bill [HL]
Part 1 — Amendments to Mental Health Act 1983
Chapter 7 — Restricted patients
37

Chapter 6
Cross-border patients
36
Cross-border arrangements
(1)
At the end of section 17 of the 1983 Act (leave of absence) insert—
“(6)
Subsection (7) below applies to a person who is granted leave by or by
5
virtue of a provision—
(a)
in force in Scotland, Northern Ireland, any of the Channel
Islands or the Isle of Man; and
(b)
corresponding to subsection (1) above.
(7)
For the purpose of giving effect to a direction or condition imposed by
10
virtue of a provision corresponding to subsection (3) above, the person
may be conveyed to a place in, or kept in custody or detained at a place
of safety in, England and Wales by a person authorised in that behalf
by the direction or condition.”
(2)
Schedule 5 (which contains amendments to Part 6 of the 1983 Act and related
15
amendments) has effect.
Chapter 7
Restricted patients
37
Restriction orders
(1)
In section 41(1) of the 1983 Act (restriction orders) omit the words “, either
20
without limit of time or during such period as may be specified in the order”.
(2)
In section 42(4)(b) of the 1983 Act (powers in respect of patients subject to
restriction orders) omit the words from “, and, if the restriction order was made
for a specified period,” to the end.
(3)
In the following provisions omit the words “, made without limitation of
25
time”—
(a)
section 44(3) of the 1983 Act (committal to hospital),
(b)
section 84(2) of the 1983 Act (removal from Islands), and
(c)
section 10(3)(a) of the Colonial Prisoners Removal Act 1884 (c. 31)
(criminal lunatics).
30
(4)
In section 81(7) of the 1983 Act (removal to Northern Ireland: expiry of
restriction order or direction) omit (in each place) “restriction order or”.
(5)
In section 81A(3) of the 1983 Act (transfer of responsibility for patient to
Northern Ireland: expiry of restriction order or direction)—
(a)
omit (in each place) “restriction order or”, and
35
(b)
omit “order or”.
(6)
In section 91(2) of the 1983 Act (patients removed from England and Wales:
revival of order on return) omit the words “at any time before the end of the
period for which those orders would have continued in force”.
(7)
But subsections (3) to (6) shall have no effect in respect of—
40