Mental Health Bill [HL]

House of Commons

Session 2006 - 07
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Mental Health Bill [HL]

Mental Health Bill [HL]
Schedule 6 — Mental Capacity Act 2005: new Schedule A1
79

      (3)
The second condition is that a standard or urgent authorisation is
in force.
      (4)
The third condition is that the standard or urgent authorisation
relates—
(a)
to P, and
5
(b)
to the hospital or care home in which P is detained.
Authorisation to deprive P of liberty
2
The managing authority of the hospital or care home may deprive
P of his liberty by detaining him as mentioned in paragraph 1(2).
No liability for acts done for purpose of depriving P of liberty
10
3     (1)
This paragraph applies to any act which a person (“D”) does for
the purpose of detaining P as mentioned in paragraph 1(2).
      (2)
D does not incur any liability in relation to the act that he would
not have incurred if P—
(a)
had had capacity to consent in relation to D’s doing the act,
15
and
(b)
had consented to D’s doing the act.
No protection for negligent acts etc
4     (1)
Paragraphs 2 and 3 do not exclude a person’s civil liability for loss
or damage, or his criminal liability, resulting from his negligence
20
in doing any thing.
      (2)
Paragraphs 2 and 3 do not authorise a person to do anything
otherwise than for the purpose of the standard or urgent
authorisation that is in force.
      (3)
In a case where a standard authorisation is in force, paragraphs 2
25
and 3 do not authorise a person to do anything which does not
comply with the conditions (if any) included in the authorisation.
Part 2
Interpretation: main terms
Introduction
30
5
This Part applies for the purposes of this Schedule.
Detained resident
6
“Detained resident” means a person detained in a hospital or care
home — for the purpose of being given care or treatment — in
circumstances which amount to deprivation of the person’s
35
liberty.
Relevant person etc
7
In relation to a person who is, or is to be, a detained resident—

Mental Health Bill [HL]
Schedule 6 — Mental Capacity Act 2005: new Schedule A1
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“relevant person” means the person in question;
“relevant hospital or care home” means the hospital or care
home in question;
“relevant care or treatment” means the care or treatment in
question.
5
Authorisations
8
“Standard authorisation” means an authorisation given under
Part 4.
9
“Urgent authorisation” means an authorisation given under Part
5.
10
10
“Authorisation under this Schedule” means either of the
following—
(a)
a standard authorisation;
(b)
an urgent authorisation.
11    (1)
The purpose of a standard authorisation is the purpose which is
15
stated in the authorisation in accordance with paragraph 55(d).
      (2)
The purpose of an urgent authorisation is the purpose which is
stated in the authorisation in accordance with paragraph 80(d).
Part 3
The qualifying requirements
20
The qualifying requirements
12    (1)
These are the qualifying requirements referred to in this
Schedule—
(a)
the age requirement;
(b)
the mental health requirement;
25
(c)
the mental capacity requirement;
(d)
the best interests requirement;
(e)
the eligibility requirement;
(f)
the no refusals requirement.
      (2)
Any question of whether a person who is, or is to be, a detained
30
resident meets the qualifying requirements is to be determined in
accordance with this Part.
      (3)
In a case where—
(a)
the question of whether a person meets a particular
qualifying requirement arises in relation to the giving of a
35
standard authorisation, and
(b)
any circumstances relevant to determining that question
are expected to change between the time when the
determination is made and the time when the
authorisation is expected to come into force,
40

those circumstances are to be taken into account as they are
expected to be at the later time.

Mental Health Bill [HL]
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The age requirement
13
The relevant person meets the age requirement if he has reached
18.
The mental health requirement
14    (1)
The relevant person meets the mental health requirement if he is
5
suffering from mental disorder (within the meaning of the Mental
Health Act, but disregarding any exclusion for persons with
learning disability).
      (2)
An exclusion for persons with learning disability is any provision
of the Mental Health Act which provides for a person with
10
learning disability not to be regarded as suffering from mental
disorder for one or more purposes of that Act.
The mental capacity requirement
15
The relevant person meets the mental capacity requirement if he
lacks capacity in relation to the question whether or not he should
15
be accommodated in the relevant hospital or care home for the
purpose of being given the relevant care or treatment.
The best interests requirement
16    (1)
The relevant person meets the best interests requirement if all of
the following conditions are met.
20
      (2)
The first condition is that the relevant person is, or is to be, a
detained resident.
      (3)
The second condition is that it is in the best interests of the relevant
person for him to be a detained resident.
      (4)
The third condition is that, in order to prevent harm to the relevant
25
person, it is necessary for him to be a detained resident.
      (5)
The fourth condition is that it is a proportionate response to—
(a)
the likelihood of the relevant person suffering harm, and
(b)
the seriousness of that harm,

for him to be a detained resident.
30
The eligibility requirement
17    (1)
The relevant person meets the eligibility requirement unless he is
ineligible to be deprived of liberty by this Act.
      (2)
Schedule 1A applies for the purpose of determining whether or
not P is ineligible to be deprived of liberty by this Act.
35
The no refusals requirement
18
The relevant person meets the no refusals requirement unless
there is a refusal within the meaning of paragraph 19 or 20.
19    (1)
There is a refusal if these conditions are met—

Mental Health Bill [HL]
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(a)
the relevant person has made an advance decision;
(b)
the advance decision is valid;
(c)
the advance decision is applicable to some or all of the
relevant treatment.
      (2)
Expressions used in this paragraph and any of sections 24, 25 or 26
5
have the same meaning in this paragraph as in that section.
20    (1)
There is a refusal if it would be in conflict with a valid decision of
a donee or deputy for the relevant person to be accommodated in
the relevant hospital or care home for the purpose of receiving
some or all of the relevant care or treatment—
10
(a)
in circumstances which amount to deprivation of the
person’s liberty, or
(b)
at all.
      (2)
A donee is a donee of a lasting power of attorney granted by the
relevant person.
15
      (3)
A decision of a donee or deputy is valid if it is made—
(a)
within the scope of his authority as donee or deputy, and
(b)
in accordance with Part 1 of this Act.
Part 4
Standard authorisations
20
Supervisory body to give authorisation
21
Only the supervisory body may give a standard authorisation.
22
The supervisory body may not give a standard authorisation
unless—
(a)
the managing authority of the relevant hospital or care
25
home have requested it, or
(b)
paragraph 71 applies (right of third party to require
consideration of whether authorisation needed).
23
The managing authority may not make a request for a standard
authorisation unless—
30
(a)
they are required to do so by paragraph 24 (as read with
paragraphs 27 to 29),
(b)
they are required to do so by paragraph 25 (as read with
paragraph 28), or
(c)
they are permitted to do so by paragraph 30.
35
Duty to request authorisation: basic cases
24    (1)
The managing authority must request a standard authorisation in
any of the following cases.
      (2)
The first case is where it appears to the managing authority that
the relevant person—
40
(a)
is not yet accommodated in the relevant hospital or care
home,

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(b)
is likely — at some time within the next 28 days — to be a
detained resident in the relevant hospital or care home,
and
(c)
is likely—
(i)
at that time, or
5
(ii)
at some later time within the next 28 days,

to meet all of the qualifying requirements.
      (3)
The second case is where it appears to the managing authority that
the relevant person—
(a)
is already accommodated in the relevant hospital or care
10
home,
(b)
is likely — at some time within the next 28 days — to be a
detained resident in the relevant hospital or care home,
and
(c)
is likely—
15
(i)
at that time, or
(ii)
at some later time within the next 28 days,

to meet all of the qualifying requirements.
      (4)
The third case is where it appears to the managing authority that
the relevant person—
20
(a)
is a detained resident in the relevant hospital or care home,
and
(b)
meets all of the qualifying requirements, or is likely to do
so at some time within the next 28 days.
      (5)
This paragraph is subject to paragraphs 27 to 29.
25
Duty to request authorisation: change in place of detention
25    (1)
The relevant managing authority must request a standard
authorisation if it appears to them that these conditions are met.
      (2)
The first condition is that a standard authorisation—
(a)
has been given, and
30
(b)
has not ceased to be in force.
      (3)
The second condition is that there is, or is to be, a change in the
place of detention.
      (4)
This paragraph is subject to paragraph 28.
26    (1)
This paragraph applies for the purposes of paragraph 25.
35
      (2)
There is a change in the place of detention if the relevant person—
(a)
ceases to be a detained resident in the stated hospital or
care home, and
(b)
becomes a detained resident in a different hospital or care
home (“the new hospital or care home”).
40
      (3)
The stated hospital or care home is the hospital or care home to
which the standard authorisation relates.
      (4)
The relevant managing authority are the managing authority of
the new hospital or care home.

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Other authority for detention: request for authorisation
27    (1)
This paragraph applies if, by virtue of section 4A(3), a decision of
the court authorises the relevant person to be a detained resident.
      (2)
Paragraph 24 does not require a request for a standard
authorisation to be made in relation to that detention unless these
5
conditions are met.
      (3)
The first condition is that the standard authorisation would be in
force at a time immediately after the expiry of the other authority.
      (4)
The second condition is that the standard authorisation would not
be in force at any time on or before the expiry of the other
10
authority.
      (5)
The third condition is that it would, in the managing authority’s
view, be unreasonable to delay making the request until a time
nearer the expiry of the other authority.
      (6)
In this paragraph—
15
(a)
the other authority is—
(i)
the decision mentioned in sub-paragraph (1), or
(ii)
any further decision of the court which, by virtue of
section 4A(3), authorises, or is expected to
authorise, the relevant person to be a detained
20
resident;
(b)
the expiry of the other authority is the time when the other
authority is expected to cease to authorise the relevant
person to be a detained resident.
Request refused: no further request unless change of circumstances
25
28    (1)
This paragraph applies if—
(a)
a managing authority request a standard authorisation
under paragraph 24 or 25, and
(b)
the supervisory body are prohibited by paragraph 50(2)
from giving the authorisation.
30
      (2)
Paragraph 24 or 25 does not require that managing authority to
make a new request for a standard authorisation unless it appears
to the managing authority that—
(a)
there has been a change in the relevant person’s case, and
(b)
because of that change, the supervisory body are likely to
35
give a standard authorisation if requested.
Authorisation given: request for further authorisation
29    (1)
This paragraph applies if a standard authorisation—
(a)
has been given in relation to the detention of the relevant
person, and
40
(b)
that authorisation (“the existing authorisation”) has not
ceased to be in force.

Mental Health Bill [HL]
Schedule 6 — Mental Capacity Act 2005: new Schedule A1
85

      (2)
Paragraph 24 does not require a new request for a standard
authorisation (“the new authorisation”) to be made unless these
conditions are met.
      (3)
The first condition is that the new authorisation would be in force
at a time immediately after the expiry of the existing authorisation.
5
      (4)
The second condition is that the new authorisation would not be
in force at any time on or before the expiry of the existing
authorisation.
      (5)
The third condition is that it would, in the managing authority’s
view, be unreasonable to delay making the request until a time
10
nearer the expiry of the existing authorisation.
      (6)
The expiry of the existing authorisation is the time when it is
expected to cease to be in force.
Power to request authorisation
30    (1)
This paragraph applies if—
15
(a)
a standard authorisation has been given in relation to the
detention of the relevant person,
(b)
that authorisation (“the existing authorisation”) has not
ceased to be in force,
(c)
the requirement under paragraph 24 to make a request for
20
a new standard authorisation does not apply, because of
paragraph 29, and
(d)
a review of the existing authorisation has been requested,
or is being carried out, in accordance with Part 8.
      (2)
The managing authority may request a new standard
25
authorisation which would be in force on or before the expiry of
the existing authorisation; but only if it would also be in force
immediately after that expiry.
      (3)
The expiry of the existing authorisation is the time when it is
expected to cease to be in force.
30
      (4)
Further provision relating to cases where a request is made under
this paragraph can be found in—
(a)
paragraph 62 (effect of decision about request), and
(b)
paragraph 124 (effect of request on Part 8 review).
Information included in request
35
31
A request for a standard authorisation must include the
information (if any) required by regulations.
Records of requests
32    (1)
The managing authority of a hospital or care home must keep a
written record of—
40
(a)
each request that they make for a standard authorisation,
and
(b)
the reasons for making each request.