House of Commons Amendments

House of Commons

Session 2006 - 07
Internet Publications
Other Bills before Parliament

Consideration of Bill: 18th June 2007
1321

Mental Health Bill–[Lords], continued

Ms Secretary Hewitt

61

Page  132,  line  13  [Schedule  8],  at end insert—

‘39D
Person subject to Schedule A1 without paid representative

(1)
This section applies if—

(a)
an authorisation under Schedule A1 is in force in relation to a

person (“P”),

(b)
P has a representative (“R”) appointed under Part 10 of

Schedule A1, and

(c)
R is not being paid under regulations under Part 10 of

Schedule A1 for acting as P’s representative.

(2)
The supervisory body must instruct an independent mental capacity

advocate to represent P in any of the following cases.

(3)
The first case is where P makes a request to the supervisory body to

instruct an advocate.

(4)
The second case is where R makes a request to the supervisory body

to instruct an advocate.

(5)
The third case is where the supervisory body have reason to believe

one or more of the following—

(a)
that, without the help of an advocate, P and R would be unable

to exercise one or both of the relevant rights;

(b)
that P and R have each failed to exercise a relevant right when

it would have been reasonable to exercise it;

(c)
that P and R are each unlikely to exercise a relevant right when

it would be reasonable to exercise it.

(6)
The duty in subsection (2) is subject to section 39E.

(7)
If an advocate is appointed under this section, the advocate is, in

particular, to take such steps as are practicable to help P and R to

understand the following matters—

(a)
the effect of the authorisation;

(b)
the purpose of the authorisation;

(c)
the duration of the authorisation;

(d)
any conditions to which the authorisation is subject;

(e)
the reasons why each assessor who carried out an assessment

in connection with the request for the authorisation, or in

connection with a review of the authorisation, decided that P

met the qualifying requirement in question;

(f)
the relevant rights;

(g)
how to exercise the relevant rights.

(8)
The advocate is, in particular, to take such steps as are practicable to

help P or R—

(a)
to exercise the right to apply to court, if it appears to the

advocate that P or R wishes to exercise that right, or

(b)
to exercise the right of review, if it appears to the advocate that

P or R wishes to exercise that right.

(9)
If the advocate helps P or R to exercise the right of review—

Consideration of Bill: 18th June 2007
1322

Mental Health Bill–[Lords], continued

(a)
the advocate may make submissions to the supervisory body

on the question of whether a qualifying requirement is

reviewable;

(b)
the advocate may give information, or make submissions, to

any assessor carrying out a review assessment.

(10)
In this section—

“relevant rights” means—

(a)
the right to apply to court, and

(b)
the right of review;

“right to apply to court” means the right to make an application to the

court to exercise its jurisdiction under section 21A;

“right of review” means the right under Part 8 of Schedule A1 to request

a review.

39E
Limitation on duty to instruct advocate under section 39D

(1)
This section applies if an advocate is already representing P in

accordance with an instruction under section 39D.

(2)
Section 39D(2) does not require another advocate to be instructed,

unless the following conditions are met.

(3)
The first condition is that the existing advocate was instructed—

(a)
because of a request by R, or

(b)
because the supervisory body had reason to believe one or

more of the things in section 39D(5).

(4)
The second condition is that the other advocate would be instructed

because of a request by P.” ’.

Ms Secretary Hewitt

62

Page  132,  line  15  [Schedule  8],  after ‘40’, insert ‘(as substituted by section

[Independent mental capacity advocacy service: exceptions] of this Act)’.

Ms Secretary Hewitt

63

Page  132,  line  17  [Schedule  8],  leave out from ‘for’ to end of line 18 and insert ‘“or

39(4) or (5)” substitute “, 39(4) or (5), 39A(3), 39C(3) or 39D(2)”.’.

Ms Secretary Hewitt

64

Page  132,  line  22  [Schedule  8],  leave out from ‘matters’ to end of line 23 and insert

‘to which a duty mentioned in subsection (1) relates.”’.

Consideration of Bill: 18th June 2007
1323

Mental Health Bill–[Lords], continued

Ms Secretary Hewitt

65

Page  134,  line  18  [Schedule  8],  at end insert—

“Section 39D
Instructing independent mental capacity

advocate when representative for relevant

person under Part 10 of Schedule A1 to the Act

is not being paid.”

Ms Secretary Hewitt

66

Page  136,  line  41  [Schedule  9],  at end insert—

‘Independent mental health advocates

    (1)
Section [Independent mental health advocates]—

(a)
applies to a patient who is liable to be detained under the 1983 Act

immediately before the commencement date as it applies to a patient

who becomes so liable on or after that date;

(b)
applies to a patient who is subject to guardianship under that Act

immediately before the commencement date as it applies to a patient

who becomes so subject on or after that date;

(c)
applies to a patient who is a community patient under that Act

immediately before the commencement date as it applies to a patient

who becomes a community patient on or after that date.

      (2)
For the purposes of the provisions inserted by that section, a patient is to be

treated as a qualifying patient within section 130C(3) of the 1983 Act if—

(a)
not being a formal patient, he discussed before the commencement

date with a registered medical practitioner or approved clinician the

possibility of being given a form of treatment to which section 57 of

that Act applies, and

(b)
sub-paragraph (4) or (5) applies in relation to him.

      (3)
A patient is also to be treated for those purposes as a qualifying patient within

section 130C(3) of the 1983 Act if—

(a)
not having attained the age of 18 years and not being a formal patient,

he discussed before the commencement date with a registered medical

practitioner or approved clinician the possibility of being given a form

of treatment to which section 58A of that Act applies, and

(b)
sub-paragraph (4) or (5) applies in relation to him.

      (4)
This sub-paragraph applies in relation to the patient if, immediately before the

commencement date, he has yet to be informed whether or not the treatment is

proposed in his case.

      (5)
This sub-paragraph applies in relation to the patient if, immediately before the

commencement date—

(a)
he has been informed that the treatment is proposed in his case,

(b)
the proposal has not been withdrawn, and

(c)
the treatment has not been completed or discontinued.

      (6)
A qualifying patient in relation to whom sub-paragraph (4) applies and who is

informed on or after the commencement date that the treatment is proposed in

Consideration of Bill: 18th June 2007
1324

Mental Health Bill–[Lords], continued

his case, or in relation to whom sub-paragraph (5) applies, remains a qualifying

patient until—

(a)
the proposal is withdrawn, or

(b)
the treatment is completed or discontinued.

      (7)
In relation to a patient who is a qualifying patient within section 130C(3) of the

1983 Act by virtue of this paragraph, the responsible person under section

130D of that Act is to be the person with overall responsibility for the patient’s

case (and subsection (2)(e) of that section is to be read accordingly).

      (8)
Sub-paragraph (9) applies in relation to a patient—

(a)
who is a qualifying patient within section 130C(2) of the 1983 Act by

virtue of being a formal patient immediately before the

commencement date, or

(b)
who is a qualifying patient within section 130C(3) of that Act by virtue

of this paragraph.

      (9)
The steps to be taken under subsection (1) of section 130D of that Act are to

be taken on, or as soon as practicable after, the commencement date (and

subsection (3) of that section is to be read accordingly).

    (10)
In this paragraph—

“approved clinician” has the same meaning as in the 1983 Act,

“the commencement date” means the date on which section [Independent

mental health advocates] comes into force, and

“formal patient” means a patient who is—

(a)
liable to be detained under the 1983 Act (otherwise than by virtue

of section 4, 5(2) or (4), 135 or 136 of that Act),

(b)
subject to guardianship under that Act, or

(c)
a community patient under that Act.’.

Ms Secretary Hewitt

67

Title,  line  1,  after ‘1983’, insert ‘, the Domestic Violence, Crime and Victims Act 2004’.

Ms Secretary Hewitt

68

Title,  line  2,  after ‘persons;’, insert ‘to amend section 40 of the Mental Capacity Act

2005;’.

Consideration of Bill: 18th June 2007
1325

Mental Health Bill–[Lords], continued

New Clauses and amendments relating to children (other than those

relating to supervised community treatment); amendments relating to

professional roles

Accommodation, etc.

Ms Secretary Hewitt

Tim Loughton

Angela Browning

Mr Tim Boswell

Mr Charles Walker

James Duddridge

Total signatories: 9

NC4

To move the following Clause:—

‘(1)
The 1983 Act is amended as follows.

(2)
In section 39 (power of court to request information about hospitals), after

subsection (1) insert—

“(1A)
In relation to a person who has not attained the age of 18 years,

subsection (1) above shall have effect as if the reference to the making of

a hospital order included a reference to a remand under section 35 or 36

above or the making of an order under section 44 below.

(1B)
Where the person concerned has not attained the age of 18 years, the

information which may be requested under subsection (1) above

includes, in particular, information about the availability of

accommodation or facilities designed so as to be specially suitable for

patients who have not attained the age of 18 years.”

(3)
After section 131 insert—

“131A
Accommodation, etc. for children

(1)
This section applies in respect of any patient who has not attained the age

of 18 years and who—

(a)
is liable to be detained in a hospital under this Act; or

(b)
is admitted to, or remains in, a hospital in pursuance of such

arrangements as are mentioned in section 131(1) above.

(2)
The managers of the hospital shall ensure that the patient’s environment

in the hospital is suitable having regard to his age (subject to his needs).

(3)
For the purpose of deciding how to fulfil the duty under subsection (2)

above, the managers shall consult a person who appears to them to have

knowledge or experience of cases involving patients who have not

attained the age of 18 years which makes him suitable to be consulted.

(4)
In this section, “hospital” includes a registered establishment.”

(4)
In section 140 (the title to which becomes “Notification of hospitals having

arrangements for special cases”), for the words from “for the reception” to the end

substitute “—

(a)
for the reception of patients in cases of special urgency;

Consideration of Bill: 18th June 2007
1326

Mental Health Bill–[Lords], continued

(b)
for the provision of accommodation or facilities designed so as

to be specially suitable for patients who have not attained the age

of 18 years.”’.

Age appropriate treatment

Mr Andrew Dismore

Dr Evan Harris

nc8

To move the following Clause:—

‘After section 131 of the 1983 Act (Informal admission of patients) insert—

“131A
Admission to age appropriate setting and age appropriate treatment

(1)
In the case of any child or young person under the age of 18 years who is

admitted to any hospital or registered establishment for treatment for

mental disorder, whether informally or otherwise, the responsible

Primary Care Trust or Local Health Board shall , at the time of admission

or as soon as reasonably practicable thereafter, appoint a registered

medical practitioner or clinical psychologist with specialist training in

child or adolescent mental health to assess the healthcare needs of the

child or young person.

(2)
It shall be the duty of the responsible Primary Care Trust or Local Health

Board to provide the child or young person admitted to a hospital or

registered establishment in accordance with subsection (1) with such

healthcare services (whether by way of suitable hospital accommodation,

specialist medical services or otherwise) as necessary to meet the

healthcare needs as assessed under subsection (1).

(3)
In this section the ‘responsible Primary Care Trust or Local Health

Board’ means the Primary Care Trust or Health Authority responsible for

providing healthcare services to the child or young person under the

National Health Service Act 2006 (c. 41).”’.

Mr Andrew Dismore

Dr Evan Harris

70

Page  5,  line  37  [Clause  9],  at end insert—

‘(aa)
in subsection (3)—

(i)
after paragraph (a) insert—

“(aa)
to arrange for the patient to be examined by the

registered medical practitioner or chartered

clinical psychologist who has been

professionally concerned with the medical

treatment of the patient; or if no such

practitioner is available, a registered medical

Consideration of Bill: 18th June 2007
1327

Mental Health Bill–[Lords], continued

practitioner or chartered clinical psychologist

who is an approved clinician; and,”

(ii)
in paragraph (b), for “if it appears to him that the conditions set

out in subsection (4) are satisfied, to” substitute “if the

responsible clinician and the medical practitioner or chartered

clinical psychologist (as the case may be) agree that the

requirements of subsection (4) are satisfied, the responsible

clinician shall”’.

Tim Loughton

Dr John Pugh

Angela Browning

Sandra Gidley

Mr Tim Boswell

Mr Charles Walker

Total signatories: 8

93

Page  5,  line  37  [Clause  9],  at end insert—

‘( )
In subsection (3), leave out from end of paragraph (b) to end of subsection and

insert—

“(3A)
Where a report under subsection (3) above is furnished in respect of a

patient the managers shall arrange for an approved clinician who is a

member of a different profession to that of the responsible clinician to

examine the patient;

(3B)
If it appears to him that the conditions set out in subsection (4) below are

satisfied the approved clinician shall furnish to the managers of the

hospital where the patient is detained a report to that effect in the

prescribed form and where such a report is furnished in respect of a

patient the managers shall, unless they discharge the patient, cause him

to be informed.”.’.

Tim Loughton

Dr John Pugh

Angela Browning

Sandra Gidley

Mr Tim Boswell

Mr Charles Walker

Total signatories: 8

94

Page  5,  line  40  [Clause  9],  at end insert—

‘( )
After subsection (4) insert—

“(4A)
At least one of the two clinicians mentioned in subsection (3) must be

qualified by training and experience to provide objective medical

expertise of mental disorder.

(4B)
Objective medical expertise of mental disorder shall have the same

meaning as in Winterwerp v The Netherlands (1979-80) 2 EHRR 387.”.’.