Mental Health Bill [HL]

House of Commons

Session 2006 - 07
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Mental Health Bill [HL]

Mental Health Bill [HL]
Schedule 5 — Cross-border arrangements
Part 1 — Amendments to Part 6 of 1983 Act
72

(4)
If, immediately before his removal, the patient was liable to be
detained under the 2003 Act by virtue of a transfer for treatment
direction, given while he was serving a sentence of imprisonment
(within the meaning of section 136(9) of that Act) imposed by a court
in Scotland, he shall be treated as if the sentence had been imposed
5
by a court in England and Wales.
(5)
If, immediately before his removal, the patient was subject to a
hospital direction or transfer for treatment direction, the restriction
direction to which he is subject by virtue of subsection (3) above shall
expire on the date on which that hospital direction or transfer for
10
treatment direction (as the case may be) would have expired if he
had not been so removed.
(6)
If, immediately before his removal, the patient was liable to be
detained under the 2003 Act by virtue of a hospital direction, he shall
be treated as if any sentence of imprisonment passed at the time
15
when that hospital direction was made had been imposed by a court
in England and Wales.
(7)
Any directions given by the Scottish Ministers under regulations
made under section 290 of the 2003 Act as to the removal of a patient
to which this section applies shall have effect as if they were given
20
under this Act.
(8)
Subsection (8) of section 80 above applies to a reference in this section
as it applies to one in that section.
(9)
In this section—
“hospital direction” means a direction made under section 59A
25
of the Criminal Procedure (Scotland) Act 1995; and
“transfer for treatment direction” has the meaning given by
section 136 of the 2003 Act.
80C
Removal of patients subject to compulsion in the community from
Scotland
30
(1)
This section applies to a patient if—
(a)
he is subject to an enactment in force in Scotland by virtue of
which regulations under section 289(1) of the Mental Health
(Care and Treatment) (Scotland) Act 2003 apply to him; and
(b)
he is removed to England and Wales under those regulations.
35
(2)
He shall be treated as if on the date of his arrival at the place where
he is to reside in England or Wales—
(a)
he had been admitted to a hospital in England or Wales in
pursuance of an application or order made on that date under
the corresponding enactment; and
40
(b)
a community treatment order had then been made
discharging him from the hospital.
(3)
For these purposes—
(a)
if the enactment to which the patient was subject in Scotland
was an enactment contained in the Mental Health (Care and
45
Treatment) (Scotland) Act 2003, the corresponding
enactment is section 3 of this Act;

Mental Health Bill [HL]
Schedule 5 — Cross-border arrangements
Part 1 — Amendments to Part 6 of 1983 Act
73

(b)
if the enactment to which he was subject in Scotland was an
enactment contained in the Criminal Procedure (Scotland)
Act 1995, the corresponding enactment is section 37 of this
Act.
(4)
“The responsible hospital”, in the case of a patient in respect of whom
5
a community treatment order is in force by virtue of subsection (2)
above, means the hospital to which he is treated as having been
admitted by virtue of that subsection, subject to section 19A above.
(5)
As soon as practicable after the patient’s arrival at the place where he
is to reside in England or Wales, the responsible clinician shall
10
specify the conditions to which he is to be subject for the purposes of
section 17B(1) above, and the conditions shall be deemed to be
specified in the community treatment order.
(6)
But the responsible clinician may only specify conditions under
subsection (5) above which an approved mental health professional
15
agrees should be specified.
80D
Transfer of conditionally discharged patients from Scotland
(1)
This section applies to a patient who is subject to—
(a)
a restriction order under section 59 of the Criminal Procedure
(Scotland) Act 1995; and
20
(b)
a conditional discharge under section 193(7) of the Mental
Health (Care and Treatment) (Scotland) Act 2003 (“the 2003
Act”).
(2)
A transfer of the patient to England and Wales under regulations
made under section 290 of the 2003 Act shall have effect only if the
25
Secretary of State has consented to the transfer.
(3)
If a transfer under those regulations has effect, the patient shall be
treated as if—
(a)
on the date of the transfer he had been conditionally
discharged under section 42 or 73 above; and
30
(b)
he were subject to a hospital order under section 37 above
and a restriction order under section 41 above.
(4)
If the restriction order to which the patient was subject immediately
before the transfer was of limited duration, the restriction order to
which he is subject by virtue of subsection (3) above shall expire on
35
the date on which the first-mentioned order would have expired if
the transfer had not been made.”
      (2)
This paragraph does not extend to Scotland.
Transfer of patients: Northern Ireland
5
In section 81 (removal of patients to Northern Ireland), in subsection (2), for
40
the words from “where he is” to “the corresponding enactment” substitute
“where he is subject to a hospital order and a restriction order or a transfer
direction and a restriction direction under any enactment in this Act, as if he
were subject to a hospital order and a restriction order or a transfer direction
and a restriction direction under the corresponding enactment”.
45

Mental Health Bill [HL]
Schedule 5 — Cross-border arrangements
Part 1 — Amendments to Part 6 of 1983 Act
74

6
After that section insert—
“81ZA
Removal of community patients to Northern Ireland
(1)
Section 81 above shall apply in the case of a community patient as it
applies in the case of a patient who is for the time being liable to be
detained under this Act, as if the community patient were so liable.
5
(2)
Any reference in that section to the application, order or direction by
virtue of which a patient is liable to be detained under this Act shall
be construed, for these purposes, as a reference to the application,
order or direction under this Act in respect of the patient.”
7     (1)
Section 81A (transfer of responsibility for patients to Northern Ireland) is
10
amended as follows.
      (2)
For subsection (1)(a) substitute—
“(a)
is subject to a hospital order under section 37 above and a
restriction order under section 41 above or to a transfer
direction under section 47 above and a restriction direction
15
under section 49 above;”
      (3)
In subsection (2)(b), for “a restriction order or restriction direction”
substitute “a hospital order and a restriction order, or to a transfer direction
and a restriction direction,”.
8
In section 82 (removal to England and Wales of patients from Northern
20
Ireland), in subsection (2), for the words from “where he is” to “the
corresponding enactment” substitute “where he is subject to a hospital order
and a restriction order or a transfer direction and a restriction direction
under any enactment in that Order, as if he were subject to a hospital order
and a restriction order or a transfer direction and a restriction direction
25
under the corresponding enactment”.
9
In section 82A (the title to which becomes “Transfer of responsibility for
conditionally discharged patients to England and Wales from Northern
Ireland), for subsection (2)(b) substitute—
“(b)
as if he were subject to a hospital order under section 37
30
above and a restriction order under section 41 above or to a
transfer direction under section 47 above and a restriction
direction under section 49 above.”
Transfer of patients: Channel Islands and Isle of Man
10
Before section 83A (the title to which becomes “Transfer of responsibility for
35
conditionally discharged patients to Channel Islands or Isle of Man”)
insert—
“83ZA
Removal or transfer of community patients to Channel Islands or Isle
of Man
(1)
Section 83 above shall apply in the case of a community patient as it
40
applies in the case of a patient who is for the time being liable to be
detained under this Act, as if the community patient were so liable.
(2)
But if there are in force in any of the Channel Islands or the Isle of
Man enactments (“relevant enactments”) corresponding or similar to
those relating to community patients in this Act—
45

Mental Health Bill [HL]
Schedule 5 — Cross-border arrangements
Part 1 — Amendments to Part 6 of 1983 Act
75

(a)
subsection (1) above shall not apply as regards that island;
and
(b)
subsections (3) to (6) below shall apply instead.
(3)
If it appears to the appropriate national authority, in the case of a
community patient, that the conditions mentioned in subsection (4)
5
below are met, the authority may authorise the transfer of
responsibility for him to the island in question.
(4)
The conditions are—
(a)
a transfer under subsection (3) above is in the patient’s
interests; and
10
(b)
arrangements have been made for dealing with him under
the relevant enactments.
(5)
But the authority may not act under subsection (3) above while the
patient is recalled to hospital under section 17E above.
(6)
In this section, “the appropriate national authority” means—
15
(a)
in relation to a community patient in respect of whom the
responsible hospital is in England, the Secretary of State;
(b)
in relation to a community patient in respect of whom the
responsible hospital is in Wales, the Welsh Ministers.”
11
In section 85 (patients removed from Channel Islands or Isle of Man), in
20
subsection (2), for “to a restriction order or restriction direction” substitute
“to a hospital order and a restriction order or to a hospital direction and a
limitation direction or to a transfer direction and a restriction direction”.
12
Before section 85A (the title to which becomes “Responsibility for
conditionally discharged patients transferred from Channel Islands or Isle of
25
Man”) insert—
“85ZA
Responsibility for community patients transferred from Channel
Islands or Isle of Man
(1)
This section shall have effect if there are in force in any of the
Channel Islands or the Isle of Man enactments (“relevant
30
enactments”) corresponding or similar to those relating to
community patients in this Act.
(2)
If responsibility for a patient is transferred to England and Wales
under a provision corresponding to section 83ZA(3) above, he shall
be treated as if on the date of his arrival at the place where he is to
35
reside in England or Wales—
(a)
he had been admitted to the hospital in pursuance of an
application made, or an order or direction made or given, on
that date under the enactment in force in England and Wales
which most closely corresponds to the relevant enactments;
40
and
(b)
a community treatment order had then been made
discharging him from the hospital.
(3)
“The responsible hospital”, in his case, means the hospital to which
he is treated as having been admitted by virtue of subsection (2)
45
above, subject to section 19A above.

Mental Health Bill [HL]
Schedule 5 — Cross-border arrangements
Part 1 — Amendments to Part 6 of 1983 Act
76

(4)
As soon as practicable after the patient’s arrival at the place where he
is to reside in England or Wales, the responsible clinician shall
specify the conditions to which he is to be subject for the purposes of
section 17B(1) above, and the conditions shall be deemed to be
specified in the community treatment order.
5
(5)
But the responsible clinician may only specify conditions under
subsection (4) above which an approved mental health professional
agrees should be specified.”
13    (1)
Section 85A is amended as follows.
      (2)
For subsection (2)(b) substitute—
10
“(b)
as if he were subject to a hospital order under section 37
above and a restriction order under section 41 above, or to a
hospital direction and a limitation direction under section
45A above, or to a transfer direction under section 47 above
and a restriction direction under section 49 above.”
15
      (3)
In subsection (3) after “restriction order” insert “, limitation direction”.
Patients absent from hospitals in England and Wales
14    (1)
Section 88 (patients absent from hospitals in England and Wales) is amended
as follows.
      (2)
In subsection (1) for the words from “any other part” to the end substitute
20
“Northern Ireland”.
      (3)
For subsection (2) substitute—
“(2)
For the purposes of the enactments referred to in subsection (1)
above in their application by virtue of this section, the expression
“constable” includes an officer or constable of the Police Service of
25
Northern Ireland.”
      (4)
In subsection (3) omit the following—
(a)
the words “to Scotland or Northern Ireland”,
(b)
paragraph (a), and
(c)
in paragraph (b), the words “in Northern Ireland,”.
30
Regulations for purposes of Part 6
15
In section 90 (regulations for purposes of Part 6), for the words from “and to
regulations” to the end substitute “, so far as this Part of this Act applies to
patients removed to England and Wales or for whom responsibility is
transferred to England and Wales.”
35
General provisions as to patients removed from England and Wales
16
In section 91 (general provisions as to patients removed from England and
Wales), after subsection (2) insert—
“(2A)
Where responsibility for a community patient is transferred to a
jurisdiction outside England and Wales (or such a patient is removed
40
outside England and Wales) in pursuance of arrangements under
this Part of this Act, the application, order or direction mentioned in

Mental Health Bill [HL]
Schedule 5 — Cross-border arrangements
Part 2 — Related amendments
77

subsection (1) above in force in respect of him shall cease to have
effect on the date on which responsibility is so transferred (or he is so
removed) in pursuance of those arrangements.”
Interpretation
17
In section 92 (interpretation of Part 6), after subsection (1) insert—
5
“(1A)
References in this Part of this Act to the responsible clinician shall be
construed as references to the responsible clinician within the
meaning of Part 2 of this Act.”
Part 2
Related amendments
10
The 1983 Act
18
In section 69 of the 1983 Act (applications to tribunals concerning patients
subject to hospital and guardianship orders), in subsection (2)(a)—
(a)
after “hospital order” insert “, hospital direction”, and
(b)
for the words from “, 82(2) or” to the end substitute “or section
15
80B(2), 82(2) or 85(2) below.”
19    (1)
Section 79 of that Act (interpretation of Part 5) is amended as follows.
      (2)
In subsection (1), for paragraph (c) substitute—
“(c)
is treated as subject to a hospital order and a restriction order,
or to a hospital direction and a limitation direction, or to a
20
transfer direction and a restriction direction, by virtue of any
provision of Part 6 of this Act (except section 80D(3), 82A(2)
or 85A(2) below),”.
      (3)
In subsection (5)—
(a)
after “the relevant hospital order,” insert “the relevant hospital
25
direction,”,
(b)
after “the restriction order” insert “, the limitation direction”,
(c)
after “the hospital order,” insert “hospital direction,”, and
(d)
after “restriction order,” insert “limitation direction,”.
      (4)
After that subsection insert—
30
“(5A)
Section 75 above shall, subject to the modifications in subsection (5C)
below, have effect in relation to a qualifying patient as it has effect in
relation to a restricted patient who is conditionally discharged under
section 42(2), 73 or 74 above.
(5B)
A patient is a qualifying patient if he is treated by virtue of section
35
80D(3), 82A(2) or 85A(2) below as if he had been conditionally
discharged and were subject to a hospital order and a restriction
order, or to a hospital direction and a limitation direction, or to a
transfer direction and a restriction direction.
(5C)
The modifications mentioned in subsection (5A) above are—
40
(a)
references to the relevant hospital order, hospital direction or
transfer direction, or to the restriction order, limitation

Mental Health Bill [HL]
Schedule 6 — Mental Capacity Act 2005: new Schedule A1
78

direction or restriction direction to which the patient is
subject, shall be construed as references to the hospital order,
hospital direction or transfer direction, or restriction order,
limitation direction or restriction direction, to which the
patient is treated as subject by virtue of section 80D(3), 82A(2)
5
or 85A(2) below; and
(b)
the reference to the date on which the patient was
conditionally discharged shall be construed as a reference to
the date on which he was treated as conditionally discharged
by virtue of a provision mentioned in paragraph (a) above.”
10
20    (1)
In section 146 (application to Scotland), omit the words from “88” to “138)”.
      (2)
This paragraph does not extend to Scotland.
Mental Health (Care and Treatment) (Scotland) Act 2003 (Consequential Provisions) Order
2005 (S.I. 2005/2078)
21    (1)
The Mental Health (Care and Treatment) (Scotland) Act 2003 (Consequential
15
Provisions) Order 2005 is amended as follows.
      (2)
Omit the following provisions—
(a)
article 1(5),
(b)
article 2, and
(c)
article 3.
20
      (3)
In article 8 (the title to which becomes “Patients absent from hospitals or
other places in Scotland”), in paragraph (1)(b), for “290” substitute “289, 290,
309, 309A”.
      (4)
In article 12(2), for “2 to 11” substitute “4 to 11”.
Schedule 6
25
Section 45

Mental Capacity Act 2005: new Schedule A1

Before Schedule 1 to the Mental Capacity Act 2005 (c. 9) insert—
“Schedule A1
Hospital and care home residents: deprivation of liberty
Part 1
30
Authorisation to deprive residents of liberty etc
Application of Part
1     (1)
This Part applies if the following conditions are met.
      (2)
The first condition is that a person (“P”) is detained in a hospital or
care home — for the purpose of being given care or treatment —
35
in circumstances which amount to deprivation of the person’s
liberty.