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
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      (3)
If the supervisory body are prohibited by paragraph 50(2) from
giving the new authorisation, there is no effect on the existing
authorisation’s continuation in force.
When an authorisation is in force
63    (1)
A standard authorisation comes into force when it is given.
5
      (2)
But if the authorisation provides for it to come into force at a later
time, it comes into force at that time.
64    (1)
A standard authorisation ceases to be in force at the end of the
period stated in the authorisation in accordance with paragraph
55(c).
10
      (2)
But if the authorisation terminates before then in accordance with
paragraph 62(2) or any other provision of this Schedule, it ceases
to be in force when the termination takes effect.
      (3)
This paragraph does not affect the powers of the Court of
Protection or of any other court.
15
65    (1)
This paragraph applies if a standard authorisation ceases to be in
force.
      (2)
The supervisory body must give notice that the authorisation has
ceased to be in force.
      (3)
The supervisory body must give that notice to all of the
20
following—
(a)
the managing authority of the relevant hospital or care
home;
(b)
the relevant person;
(c)
the relevant person’s representative;
25
(d)
every interested person consulted by the best interests
assessor.
      (4)
The supervisory body must give that notice as soon as practicable
after the authorisation ceases to be in force.
When a request for a standard authorisation is “disposed of”
30
66
A request for a standard authorisation is to be regarded for the
purposes of this Schedule as disposed of if the supervisory body
have given—
(a)
a copy of the authorisation in accordance with paragraph
57, or
35
(b)
notice in accordance with paragraph 58.
Right of third party to require consideration of whether authorisation needed
67
For the purposes of paragraphs 68 to 73 there is an unauthorised
deprivation of liberty if—
(a)
a person is already a detained resident in a hospital or care
40
home, and

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(b)
the detention of the person is not authorised as mentioned
in section 4A.
68    (1)
If the following conditions are met, an eligible person may request
the supervisory body to decide whether or not there is an
unauthorised deprivation of liberty.
5
      (2)
The first condition is that the eligible person has notified the
managing authority of the relevant hospital or care home that it
appears to the eligible person that there is an unauthorised
deprivation of liberty.
      (3)
The second condition is that the eligible person has asked the
10
managing authority to request a standard authorisation in relation
to the detention of the relevant person.
      (4)
The third condition is that the managing authority has not
requested a standard authorisation within a reasonable period
after the eligible person asks it to do so.
15
      (5)
In this paragraph “eligible person” means any person other than
the managing authority of the relevant hospital or care home.
69    (1)
This paragraph applies if an eligible person requests the
supervisory body to decide whether or not there is an
unauthorised deprivation of liberty.
20
      (2)
The supervisory body must select and appoint a person to carry
out an assessment of whether or not the relevant person is a
detained resident.
      (3)
But the supervisory body need not select and appoint a person to
carry out such an assessment in either of these cases.
25
      (4)
The first case is where it appears to the supervisory body that the
request by the eligible person is frivolous or vexatious.
      (5)
The second case is where it appears to the supervisory body that—
(a)
the question of whether or not there is an unauthorised
deprivation of liberty has already been decided, and
30
(b)
since that decision, there has been no change of
circumstances which would merit the question being
decided again.
      (6)
The supervisory body must not select and appoint a person to
carry out an assessment under this paragraph unless it appears to
35
the supervisory body that the person would be—
(a)
suitable to carry out a best interests assessment (if one
were obtained in connection with a request for a standard
authorisation relating to the relevant person), and
(b)
eligible to carry out such a best interests assessment.
40
      (7)
The supervisory body must notify the persons specified in sub-
paragraph (8)—
(a)
that the supervisory body have been requested to decide
whether or not there is an unauthorised deprivation of
liberty;
45

Mental Health Bill [HL]
Schedule 6 — Mental Capacity Act 2005: new Schedule A1
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(b)
of their decision whether or not to select and appoint a
person to carry out an assessment under this paragraph;
(c)
if their decision is to select and appoint a person, of the
person appointed.
      (8)
The persons referred to in sub-paragraph (7) are—
5
(a)
the eligible person who made the request under paragraph
68;
(b)
the person to whom the request relates;
(c)
the managing authority of the relevant hospital or care
home;
10
(d)
any section 39A IMCA.
70    (1)
Regulations may be made about the period within which an
assessment under paragraph 69 must be carried out.
      (2)
Regulations made under paragraph 129(3) apply in relation to the
selection and appointment of a person under paragraph 69 as they
15
apply to the selection of a person under paragraph 129 to carry out
a best interests assessment.
      (3)
The following provisions apply to an assessment under paragraph
69 as they apply to an assessment carried out in connection with a
request for a standard authorisation—
20
(a)
paragraph 131 (examination and copying of records);
(b)
paragraph 132 (representations);
(c)
paragraphs 134 and 135(1) and (2) (duty to keep records
and give copies).
      (4)
The copies of the assessment which the supervisory body are
25
required to give under paragraph 135(2) must be given as soon as
practicable after the supervisory body are themselves given a copy
of the assessment.
71    (1)
This paragraph applies if—
(a)
the supervisory body obtain an assessment under
30
paragraph 69,
(b)
the assessment comes to the conclusion that the relevant
person is a detained resident, and
(c)
it appears to the supervisory body that the detention of the
person is not authorised as mentioned in section 4A.
35
      (2)
This Schedule (including Part 5) applies as if the managing
authority of the relevant hospital or care home had, in accordance
with Part 4, requested the supervisory body to give a standard
authorisation in relation to the relevant person.
      (3)
The managing authority of the relevant hospital or care home
40
must supply the supervisory body with the information (if any)
which the managing authority would, by virtue of paragraph 31,
have had to include in a request for a standard authorisation.
      (4)
The supervisory body must notify the persons specified in
paragraph 69(8)—
45
(a)
of the outcome of the assessment obtained under
paragraph 69, and

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(b)
that this Schedule applies as mentioned in sub-paragraph
(2).
72    (1)
This paragraph applies if—
(a)
the supervisory body obtain an assessment under
paragraph 69, and
5
(b)
the assessment comes to the conclusion that the relevant
person is not a detained resident.
      (2)
The supervisory body must notify the persons specified in
paragraph 69(8) of the outcome of the assessment.
73    (1)
This paragraph applies if—
10
(a)
the supervisory body obtain an assessment under
paragraph 69,
(b)
the assessment comes to the conclusion that the relevant
person is a detained resident, and
(c)
it appears to the supervisory body that the detention of the
15
person is authorised as mentioned in section 4A.
      (2)
The supervisory body must notify the persons specified in
paragraph 69(8)—
(a)
of the outcome of the assessment, and
(b)
that it appears to the supervisory body that the detention
20
is authorised.
Part 5
Urgent authorisations
Managing authority to give authorisation
74
Only the managing authority of the relevant hospital or care home
25
may give an urgent authorisation.
75
The managing authority may give an urgent authorisation only if
they are required to do so by paragraph 76 (as read with
paragraph 77).
Duty to give authorisation
30
76    (1)
The managing authority must give an urgent authorisation in
either of the following cases.
      (2)
The first case is where—
(a)
the managing authority are required to make a request
under paragraph 24 or 25 for a standard authorisation, and
35
(b)
they believe that the need for the relevant person to be a
detained resident is so urgent that it is appropriate for the
detention to begin before they make the request.
      (3)
The second case is where—
(a)
the managing authority have made a request under
40
paragraph 24 or 25 for a standard authorisation, and

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(b)
they believe that the need for the relevant person to be a
detained resident is so urgent that it is appropriate for the
detention to begin before the request is disposed of.
      (4)
References in this paragraph to the detention of the relevant
person are references to the detention to which paragraph 24 or 25
5
relates.
      (5)
This paragraph is subject to paragraph 77.
77    (1)
This paragraph applies where the managing authority have given
an urgent authorisation (“the original authorisation”) in
connection with a case where a person is, or is to be, a detained
10
resident (“the existing detention”).
      (2)
No new urgent authorisation is to be given under paragraph 76 in
connection with the existing detention.
      (3)
But the managing authority may request the supervisory body to
extend the duration of the original authorisation.
15
      (4)
Only one request under sub-paragraph (3) may be made in
relation to the original authorisation.
      (5)
Paragraphs 84 to 86 apply to any request made under sub-
paragraph (3).
Terms of authorisation
20
78    (1)
If the managing authority decide to give an urgent authorisation,
they must decide the period during which the authorisation is to
be in force.
      (2)
That period must not exceed 7 days.
Form of authorisation
25
79
An urgent authorisation must be in writing.
80
An urgent authorisation must state the following things—
(a)
the name of the relevant person;
(b)
the name of the relevant hospital or care home;
(c)
the period during which the authorisation is to be in force;
30
(d)
the purpose for which the authorisation is given.
81    (1)
If the name of the relevant hospital or care home changes, the
urgent 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
35
change of name which is made in any enactment or in any
instrument made under an enactment.
Duty to keep records and give copies
82    (1)
This paragraph applies if an urgent authorisation is given.

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      (2)
The managing authority must keep a written record of why they
have given the urgent authorisation.
      (3)
As soon as practicable after giving the authorisation, the
managing authority must give a copy of the authorisation to all of
the following—
5
(a)
the relevant person;
(b)
any section 39A IMCA.
Duty to give information about authorisation
83    (1)
This paragraph applies if an urgent authorisation is given.
      (2)
The managing authority of the relevant hospital or care home
10
must take such steps as are practicable to ensure that the relevant
person understands all of the following—
(a)
the effect of the authorisation;
(b)
the right to make an application to the court to exercise its
jurisdiction under section 21A.
15
      (3)
Those steps must be taken as soon as is practicable after the
authorisation is given.
      (4)
Those steps must include the giving of appropriate information
both orally and in writing.
Request for extension of duration
20
84    (1)
This paragraph applies if the managing authority make a request
under paragraph 77 for the supervisory body to extend the
duration of the original authorisation.
      (2)
The managing authority must keep a written record of why they
have made the request.
25
      (3)
The managing authority must give the relevant person notice that
they have made the request.
      (4)
The supervisory body may extend the duration of the original
authorisation if it appears to them that—
(a)
the managing authority have made the required request
30
for a standard authorisation,
(b)
there are exceptional reasons why it has not yet been
possible for that request to be disposed of, and
(c)
it is essential for the existing detention to continue until the
request is disposed of.
35
      (5)
The supervisory body must keep a written record that the request
has been made to them.
      (6)
In this paragraph and paragraphs 85 and 86—
(a)
“original authorisation” and “existing detention” have the
same meaning as in paragraph 77;
40
(b)
the required request for a standard authorisation is the
request that is referred to in paragraph 76(2) or (3).

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85    (1)
This paragraph applies if, under paragraph 84, the supervisory
body decide to extend the duration of the original authorisation.
      (2)
The supervisory body must decide the period of the extension.
      (3)
That period must not exceed 7 days.
      (4)
The supervisory body must give the managing authority notice
5
stating the period of the extension.
      (5)
The managing authority must then vary the original authorisation
so that it states the extended duration.
      (6)
Paragraphs 82(3) and 83 apply (with the necessary modifications)
to the variation of the original authorisation as they apply to the
10
giving of an urgent authorisation.
      (7)
The supervisory body must keep a written record of—
(a)
the outcome of the request, and
(b)
the period of the extension.
86    (1)
This paragraph applies if, under paragraph 84, the supervisory
15
body decide not to extend the duration of the original
authorisation.
      (2)
The supervisory body must give the managing authority notice
stating—
(a)
the decision, and
20
(b)
their reasons for making it.
      (3)
The managing authority must give a copy of that notice to all of
the following—
(a)
the relevant person;
(b)
any section 39A IMCA.
25
      (4)
The supervisory body must keep a written record of the outcome
of the request.
No variation
87    (1)
An urgent authorisation may not be varied except in accordance
with paragraph 85.
30
      (2)
This paragraph does not affect the powers of the Court of
Protection or of any other court.
When an authorisation is in force
88
An urgent authorisation comes into force when it is given.
89    (1)
An urgent authorisation ceases to be in force at the end of the
35
period stated in the authorisation in accordance with paragraph
80(c) (subject to any variation in accordance with paragraph 85).
      (2)
But if the required request is disposed of before the end of that
period, the urgent authorisation ceases to be in force as follows.