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
86

      (2)
A supervisory body must keep a written record of each request for
a standard authorisation that is made to them.
Relevant person must be assessed
33    (1)
This paragraph applies if the supervisory body are requested to
give a standard authorisation.
5
      (2)
The supervisory body must secure that all of these assessments are
carried out in relation to the relevant person—
(a)
an age assessment;
(b)
a mental health assessment;
(c)
a mental capacity assessment;
10
(d)
a best interests assessment;
(e)
an eligibility assessment;
(f)
a no refusals assessment.
      (3)
The person who carries out any such assessment is referred to as
the assessor.
15
      (4)
Regulations may be made about the period (or periods) within
which assessors must carry out assessments.
      (5)
This paragraph is subject to paragraphs 49 and 133.
Age assessment
34
An age assessment is an assessment of whether the relevant
20
person meets the age requirement.
Mental health assessment
35
A mental health assessment is an assessment of whether the
relevant person meets the mental health requirement.
36
When carrying out a mental health assessment, the assessor must
25
also—
(a)
consider how (if at all) the relevant person’s mental health
is likely to be affected by his being a detained resident, and
(b)
notify the best interests assessor of his conclusions.
Mental capacity assessment
30
37
A mental capacity assessment is an assessment of whether the
relevant person meets the mental capacity requirement.
Best interests assessment
38
A best interests assessment is an assessment of whether the
relevant person meets the best interests requirement.
35
39    (1)
In carrying out a best interests assessment, the assessor must
comply with the duties in sub-paragraphs (2) and (3).
      (2)
The assessor must consult the managing authority of the relevant
hospital or care home.

Mental Health Bill [HL]
Schedule 6 — Mental Capacity Act 2005: new Schedule A1
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      (3)
The assessor must have regard to all of the following—
(a)
the conclusions which the mental health assessor has
notified to the best interests assessor in accordance with
paragraph 36(b);
(b)
any relevant needs assessment;
5
(c)
any relevant care plan.
      (4)
A relevant needs assessment is an assessment of the relevant
person’s needs which—
(a)
was carried out in connection with the relevant person
being accommodated in the relevant hospital or care
10
home, and
(b)
was carried out by or on behalf of—
(i)
the managing authority of the relevant hospital or
care home, or
(ii)
the supervisory body.
15
      (5)
A relevant care plan is a care plan which—
(a)
sets out how the relevant person’s needs are to be met
whilst he is accommodated in the relevant hospital or care
home, and
(b)
was drawn up by or on behalf of—
20
(i)
the managing authority of the relevant hospital or
care home, or
(ii)
the supervisory body.
      (6)
The managing authority must give the assessor a copy of—
(a)
any relevant needs assessment carried out by them or on
25
their behalf, or
(b)
any relevant care plan drawn up by them or on their
behalf.
      (7)
The supervisory body must give the assessor a copy of—
(a)
any relevant needs assessment carried out by them or on
30
their behalf, or
(b)
any relevant care plan drawn up by them or on their
behalf.
      (8)
The duties in sub-paragraphs (2) and (3) do not affect any other
duty to consult or to take the views of others into account.
35
40    (1)
This paragraph applies whatever conclusion the best interests
assessment comes to.
      (2)
The assessor must state in the best interests assessment the name
and address of every interested person whom he has consulted in
carrying out the assessment.
40
41
Paragraphs 42 and 43 apply if the best interests assessment comes
to the conclusion that the relevant person meets the best interests
requirement.
42    (1)
The assessor must state in the assessment the maximum
authorisation period.
45

Mental Health Bill [HL]
Schedule 6 — Mental Capacity Act 2005: new Schedule A1
88

      (2)
The maximum authorisation period is the shorter of these
periods—
(a)
the period which, in the assessor’s opinion, would be the
appropriate maximum period for the relevant person to be
a detained resident under the standard authorisation that
5
has been requested;
(b)
1 year, or such shorter period as may be prescribed in
regulations.
      (3)
Regulations under sub-paragraph (2)(b)—
(a)
need not provide for a shorter period to apply in relation
10
to all standard authorisations;
(b)
may provide for different periods to apply in relation to
different kinds of standard authorisations.
      (4)
Before making regulations under sub-paragraph (2)(b) the
Secretary of State must consult all of the following—
15
(a)
each body required by regulations under paragraph 161 to
monitor and report on the operation of this Schedule in
relation to England;
(b)
such other persons as the Secretary of State considers it
appropriate to consult.
20
      (5)
Before making regulations under sub-paragraph (2)(b) the
National Assembly for Wales must consult all of the following—
(a)
each person or body directed under paragraph 162(2) to
carry out any function of the Assembly of monitoring and
reporting on the operation of this Schedule in relation to
25
Wales;
(b)
such other persons as the Assembly considers it
appropriate to consult.
43
The assessor may include in the assessment recommendations
about conditions to which the standard authorisation is, or is not,
30
to be subject in accordance with paragraph 53.
44    (1)
This paragraph applies if the best interests assessment comes to
the conclusion that the relevant person does not meet the best
interests requirement.
      (2)
If, on the basis of the information taken into account in carrying
35
out the assessment, it appears to the assessor that there is an
unauthorised deprivation of liberty, he must include a statement
to that effect in the assessment.
      (3)
There is an unauthorised deprivation of liberty if the managing
authority of the relevant hospital or care home are already
40
depriving the relevant person of his liberty without authority of
the kind mentioned in section 4A.
45
The duties with which the best interests assessor must comply are
subject to the provision included in appointment regulations
under Part 10 (in particular, provision made under paragraph
45
146).

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Eligibility assessment
46
An eligibility assessment is an assessment of whether the relevant
person meets the eligibility requirement.
47    (1)
Regulations may—
(a)
require an eligibility assessor to request a best interests
5
assessor to provide relevant eligibility information, and
(b)
require the best interests assessor, if such a request is
made, to provide such relevant eligibility information as
he may have.
      (2)
In this paragraph—
10
“best interests assessor” means any person who is carrying
out, or has carried out, a best interests assessment in
relation to the relevant person;
“eligibility assessor” means a person carrying out an
eligibility assessment in relation to the relevant person;
15
“relevant eligibility information” is information relevant to
assessing whether or not the relevant person is ineligible
by virtue of paragraph 5 of Schedule 1A.
No refusals assessment
48
A no refusals assessment is an assessment of whether the relevant
20
person meets the no refusals requirement.
Equivalent assessment already carried out
49    (1)
The supervisory body are not required by paragraph 33 to secure
that a particular kind of assessment (“the required assessment”) is
carried out in relation to the relevant person if the following
25
conditions are met.
      (2)
The first condition is that the supervisory body have a written
copy of an assessment of the relevant person (“the existing
assessment”) that has already been carried out.
      (3)
The second condition is that the existing assessment complies with
30
all requirements under this Schedule with which the required
assessment would have to comply (if it were carried out).
      (4)
The third condition is that the existing assessment was carried out
within the previous 12 months; but this condition need not be met
if the required assessment is an age assessment.
35
      (5)
The fourth condition is that the supervisory body are satisfied that
there is no reason why the existing assessment may no longer be
accurate.
      (6)
If the required assessment is a best interests assessment, in
satisfying themselves as mentioned in sub-paragraph (5), the
40
supervisory body must take into account any information given,
or submissions made, by—
(a)
the relevant person’s representative, or
(b)
any section 39C IMCA.

Mental Health Bill [HL]
Schedule 6 — Mental Capacity Act 2005: new Schedule A1
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      (7)
It does not matter whether the existing assessment was carried out
in connection with a request for a standard authorisation or for
some other purpose.
      (8)
If, because of this paragraph, the supervisory body are not
required by paragraph 33 to secure that the required assessment is
5
carried out, the existing assessment is to be treated for the
purposes of this Schedule—
(a)
as an assessment of the same kind as the required
assessment, and
(b)
as having been carried out under paragraph 33 in
10
connection with the request for the standard authorisation.
Duty to give authorisation
50    (1)
The supervisory body must give a standard authorisation if—
(a)
all assessments are positive, and
(b)
the supervisory body have written copies of all those
15
assessments.
      (2)
The supervisory body must not give a standard authorisation
except in accordance with sub-paragraph (1).
      (3)
All assessments are positive if each assessment carried out under
paragraph 33 has come to the conclusion that the relevant person
20
meets the qualifying requirement to which the assessment relates.
Terms of authorisation
51    (1)
If the supervisory body are required to give a standard
authorisation, they must decide the period during which the
authorisation is to be in force.
25
      (2)
That period must not exceed the maximum authorisation period
stated in the best interests assessment.
52
A standard authorisation may provide for the authorisation to
come into force at a time after it is given.
53    (1)
A standard authorisation may be given subject to conditions.
30
      (2)
Before deciding whether to give the authorisation subject to
conditions, the supervisory body must have regard to any
recommendations in the best interests assessment about such
conditions.
      (3)
The managing authority of the relevant hospital or care home
35
must ensure that any conditions are complied with.
Form of authorisation
54
A standard authorisation must be in writing.
55    (1)
A standard authorisation must state the following things—
(a)
the name of the relevant person;
40
(b)
the name of the relevant hospital or care home;
(c)
the period during which the authorisation is to be in force;

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(d)
the purpose for which the authorisation is given;
(e)
any conditions subject to which the authorisation is given;
(f)
the reason why each qualifying requirement is met.
      (2)
The statement of the reason why the eligibility requirement is met
must be framed by reference to the cases in the table in paragraph
5
2 of Schedule 1A.
56    (1)
If the name of the relevant hospital or care home changes, the
standard authorisation is to be read as if it stated the current name
of the hospital or care home.
      (2)
But sub-paragraph (1) is subject to any provision relating to the
10
change of name which is made in any enactment or in any
instrument made under an enactment.
Duty to give information about decision
57    (1)
This paragraph applies if—
(a)
a request is made for a standard authorisation, and
15
(b)
the supervisory body are required by paragraph 50(1) to
give the standard authorisation.
      (2)
The supervisory body must give a copy of the authorisation to
each of the following—
(a)
the relevant person’s representative;
20
(b)
the managing authority of the relevant hospital or care
home;
(c)
the relevant person;
(d)
any section 39A IMCA;
(e)
every interested person consulted by the best interests
25
assessor.
      (3)
The supervisory body must comply with this paragraph as soon as
practicable after they give the standard authorisation.
58    (1)
This paragraph applies if—
(a)
a request is made for a standard authorisation, and
30
(b)
the supervisory body are prohibited by paragraph 50(2)
from giving the standard authorisation.
      (2)
The supervisory body must give notice, stating that they are
prohibited from giving the authorisation, to each of the
following—
35
(a)
the managing authority of the relevant hospital or care
home;
(b)
the relevant person;
(c)
any section 39A IMCA;
(d)
every interested person consulted by the best interests
40
assessor.
      (3)
The supervisory body must comply with this paragraph as soon as
practicable after it becomes apparent to them that they are
prohibited from giving the authorisation.

Mental Health Bill [HL]
Schedule 6 — Mental Capacity Act 2005: new Schedule A1
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Duty to give information about effect of authorisation
59    (1)
This paragraph applies if a standard authorisation is given.
      (2)
The managing authority of the relevant hospital or care home
must take such steps as are practicable to ensure that the relevant
person understands all of the following—
5
(a)
the effect of the authorisation;
(b)
the right to make an application to the court to exercise its
jurisdiction under section 21A;
(c)
the right under Part 8 to request a review.
      (3)
Those steps must be taken as soon as is practicable after the
10
authorisation is given.
      (4)
Those steps must include the giving of appropriate information
both orally and in writing.
      (5)
Any written information given to the relevant person must also be
given by the managing authority to the relevant person’s
15
representative.
      (6)
They must give the information to the representative as soon as is
practicable after it is given to the relevant person.
Records of authorisations
60
A supervisory body must keep a written record of all of the
20
following information—
(a)
the standard authorisations that they have given;
(b)
the requests for standard authorisations in response to
which they have not given an authorisation;
(c)
in relation to each standard authorisation given: the
25
matters stated in the authorisation in accordance with
paragraph 55.
Variation of an authorisation
61    (1)
A standard authorisation may not be varied except in accordance
with Part 7 or 8.
30
      (2)
This paragraph does not affect the powers of the Court of
Protection or of any other court.
Effect of decision about request made under paragraph 25 or 30
62    (1)
This paragraph applies where the managing authority request a
new standard authorisation under either of the following—
35
(a)
paragraph 25 (change in place of detention);
(b)
paragraph 30 (existing authorisation subject to review).
      (2)
If the supervisory body are required by paragraph 50(1) to give the
new authorisation, the existing authorisation terminates at the
time when the new authorisation comes into force.
40