House of Commons Public Bill Committee Proceedings

House of Commons

Session 2006 - 07
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Other Bills before Parliament

361

House of Commons

Monday 18th June 2007

Report Stage Proceedings

Mental Health Bill [Lords], As Amended

[First day]

NEW CLAUSES relating to advocacy and to other safeguards for patients

and new clauses, new schedules and amendments relating to victims’

rights and to patients involved in criminal proceedings

Independent mental health advocates

Ms Secretary Hewitt

Tim Loughton

Angela Browning

Mr Tim Boswell

Mr Charles Walker

James Duddridge

Added  NC3

To move the following Clause:—

‘(1)
Part 10 of the 1983 Act (miscellaneous and supplementary) is amended as

follows.

(2)
Before section 131 insert—

“130A
Independent mental health advocates
5
(1)
The appropriate national authority shall make such arrangements as it

considers reasonable to enable persons (“independent mental health

advocates”) to be available to help qualifying patients.

(2)
The appropriate national authority may by regulations make provision as

to the appointment of persons as independent mental health advocates.
10
(3)
The regulations may, in particular, provide—

(a)
that a person may act as an independent mental health advocate

only in such circumstances, or only subject to such conditions, as

may be specified in the regulations;

(b)
for the appointment of a person as an independent mental health
15
advocate to be subject to approval in accordance with the

regulations.

(4)
In making arrangements under this section, the appropriate national

authority shall have regard to the principle that any help available to a

patient under the arrangements should, so far as practicable, be provided

Report Stage Proceedings: 18th June 2007
362

Mental Health Bill [Lords], continued

20
by a person who is independent of any person who is professionally

concerned with the patient’s medical treatment.

(5)
For the purposes of subsection (4) above, a person is not to be regarded

as professionally concerned with a patient’s medical treatment merely

because he is representing him in accordance with arrangements—
25
(a)
under section 35 of the Mental Capacity Act 2005; or

(b)
of a description specified in regulations under this section.

(6)
Arrangements under this section may include provision for payments to

be made to, or in relation to, persons carrying out functions in accordance

with the arrangements.
30
(7)
Regulations under this section—

(a)
may make different provision for different cases;

(b)
may make provision which applies subject to specified

exceptions;

(c)
may include transitional, consequential, incidental or
35
supplemental provision.

130B
Arrangements under section 130A

(1)
The help available to a qualifying patient under arrangements under

section 130A above shall include help in obtaining information about and

understanding—
40
(a)
the provisions of this Act by virtue of which he is a qualifying

patient;

(b)
any conditions or restrictions to which he is subject by virtue of

this Act;

(c)
what (if any) medical treatment is given to him or is proposed or
45
discussed in his case;

(d)
why it is given, proposed or discussed;

(e)
the authority under which it is, or would be, given; and

(f)
the requirements of this Act which apply, or would apply, in

connection with the giving of the treatment to him.
50
(2)
The help available under the arrangements to a qualifying patient shall

also include—

(a)
help in obtaining information about and understanding any rights

which may be exercised under this Act by or in relation to him;

and
55
(b)
help (by way of representation or otherwise) in exercising those

rights.

(3)
For the purpose of providing help to a patient in accordance with the

arrangements, an independent mental health advocate may—

(a)
visit and interview the patient in private;
60
(b)
visit and interview any person who is professionally concerned

with his medical treatment;

(c)
require the production of and inspect any records relating to his

detention or treatment in any hospital or registered establishment

or to any after-care services provided for him under section 117

above;
65
(d)
require the production of and inspect any records of, or held by,

a local social services authority which relate to him.

Report Stage Proceedings: 18th June 2007
363

Mental Health Bill [Lords], continued

(4)
But an independent mental health advocate is not entitled to the

production of, or to inspect, records in reliance on subsection (3)(c) or (d)
70
above unless—

(a)
in a case where the patient has capacity or is competent to

consent, he does consent; or

(b)
in any other case, the production or inspection would not conflict

with a decision made by a donee or deputy or the Court of
75
Protection and the person holding the records, having regard to

such matters as may be prescribed in regulations under section

130A above, considers that—

(i)
the records may be relevant to the help to be provided by

the advocate; and
80
(ii)
the production or inspection is appropriate.

(5)
For the purpose of providing help to a patient in accordance with the

arrangements, an independent mental health advocate shall comply with

any reasonable request made to him by any of the following for him to

visit and interview the patient—
85
(a)
the person (if any) appearing to the advocate to be the patient’s

nearest relative;

(b)
the responsible clinician for the purposes of this Act;

(c)
an approved mental health professional.

(6)
But nothing in this Act prevents the patient from declining to be provided
90
with help under the arrangements.

(7)
In subsection (4) above—

(a)
the reference to a patient who has capacity is to be read in

accordance with the Mental Capacity Act 2005;

(b)
the reference to a donee is to a donee of a lasting power of
95
attorney (within the meaning of section 9 of that Act) created by

the patient, where the donee is acting within the scope of his

authority and in accordance with that Act;

(c)
the reference to a deputy is to a deputy appointed for the patient

by the Court of Protection under section 16 of that Act, where the
100
deputy is acting within the scope of his authority and in

accordance with that Act.

130C
Section 130A: supplemental

(1)
This section applies for the purposes of section 130A above.

(2)
A patient is a qualifying patient if he is—
105
(a)
liable to be detained under this Act (otherwise than by virtue of

section 4 or 5(2) or (4) above or section 135 or 136 below);

(b)
subject to guardianship under this Act; or

(c)
a community patient.

(3)
A patient is also a qualifying patient if—
110
(a)
not being a qualifying patient falling within subsection (2)

above, he discusses with a registered medical practitioner or

approved clinician the possibility of being given a form of

treatment to which section 57 above applies; or

(b)
not having attained the age of 18 years and not being a qualifying
115
patient falling within subsection (2) above, he discusses with a

registered medical practitioner or approved clinician the

Report Stage Proceedings: 18th June 2007
364

Mental Health Bill [Lords], continued

possibility of being given a form of treatment to which section

58A above applies.

(4)
Where a patient who is a qualifying patient falling within subsection (3)
120
above is informed that the treatment concerned is proposed in his case,

he remains a qualifying patient falling within that subsection until—

(a)
the proposal is withdrawn; or

(b)
the treatment is completed or discontinued.

(5)
References to the appropriate national authority are—
125
(a)
in relation to a qualifying patient in England, to the Secretary of

State;

(b)
in relation to a qualifying patient in Wales, to the Welsh

Ministers.
130
(6)
For the purposes of subsection (5) above—

(a)
a qualifying patient falling within subsection (2)(a) above is to be

regarded as being in the territory in which the hospital or

registered establishment in which he is liable to be detained is

situated;
135
(b)
a qualifying patient falling within subsection (2)(b) above is to

be regarded as being in the territory in which the area of the

responsible local social services authority within the meaning of

section 34(3) above is situated;

(c)
a qualifying patient falling within subsection (2)(c) above is to be
140
regarded as being in the territory in which the responsible

hospital is situated;

(d)
a qualifying patient falling within subsection (3) above is to be

regarded as being in the territory determined in accordance with

arrangements made for the purposes of this paragraph, and
145
published, by the Secretary of State and the Welsh Ministers.

130D
Duty to give information about independent mental health advocates

(1)
The responsible person in relation to a qualifying patient (within the

meaning given by section 130C above) shall take such steps as are

practicable to ensure that the patient understands—
150
(a)
that help is available to him from an independent mental health

advocate; and

(b)
how he can obtain that help.

(2)
In subsection (1) above, “the responsible person” means—

(a)
in relation to a qualifying patient falling within section
155
130C(2)(a) above (other than one also falling within paragraph

(b) below), the managers of the hospital or registered

establishment in which he is liable to be detained;

(b)
in relation to a qualifying patient falling within section

130C(2)(a) above and conditionally discharged by virtue of
160
section 42(2), 73 or 74 above, the responsible clinician;

(c)
in relation to a qualifying patient falling within section

130C(2)(b) above, the responsible local social services authority

within the meaning of section 34(3) above;

(d)
in relation to a qualifying patient falling within section 30C(2)(c)
165
above, the managers of the responsible hospital;

Report Stage Proceedings: 18th June 2007
365

Mental Health Bill [Lords], continued

(e)
in relation to a qualifying patient falling within section 130C(3)

above, the registered medical practitioner or approved clinician

with whom the patient first discusses the possibility of being

given the treatment concerned.
170
(3)
The steps to be taken under subsection (1) above shall be taken—

(a)
where the responsible person falls within subsection (2)(a)

above, as soon as practicable after the patient becomes liable to

be detained;

(b)
where the responsible person falls within subsection (2)(b)
175
above, as soon as practicable after the conditional discharge;

(c)
where the responsible person falls within subsection (2)(c)

above, as soon as practicable after the patient becomes subject to

guardianship;

(d)
where the responsible person falls within subsection (2)(d)
180
above, as soon as practicable after the patient becomes a

community patient;

(e)
where the responsible person falls within subsection (2)(e)

above, while the discussion with the patient is taking place or as

soon as practicable thereafter.
185
(4)
The steps to be taken under subsection (1) above shall include giving the

requisite information both orally and in writing.

(5)
The responsible person in relation to a qualifying patient falling within

section 130C(2) above (other than a patient liable to be detained by virtue

of Part 3 of this Act) shall, except where the patient otherwise requests,
190
take such steps as are practicable to furnish the person (if any) appearing

to the responsible person to be the patient’s nearest relative with a copy

of any information given to the patient in writing under subsection (1)

above.

(6)
The steps to be taken under subsection (5) above shall be taken when the
195
information concerned is given to the patient or within a reasonable time

thereafter.”

(3)
In section 134 (patients’ correspondence), in subsection (3A), for paragraph (b)

substitute—

“(b)
“independent advocacy services” means services provided
200
under—

(i)
arrangements under section 130A above;

(ii)
arrangements under section 248 of the National Health

Service Act 2006 or section 187 of the National Health

Service (Wales) Act 2006; or
205
(iii)
arrangements of a description prescribed as mentioned

in paragraph (a) above.”’.

As Amendments to Ms Secretary Hewitt’s proposed New Clause (Independent mental

health advocates) (NC3):—

Sandra Gidley

Not called  (a)

Line  7,  at end insert—

Report Stage Proceedings: 18th June 2007
366

Mental Health Bill [Lords], continued

‘(1A)
The appropriate national authority must ensure that help under arrangements

made under subsection (1) is available to a qualifying patient from the point at

which he undergoes any assessment for the purposes of this Act.’.

Sandra Gidley

Not called  (b)

Line  118,  at end insert ‘, or is admitted to, or remains in, a hospital, or registered

establishment in pusuance of such arrangements as are mentioned in section

131(1).’.

Sandra Gidley

Not called  (c)

Line  118,  at end insert—

‘(3A)
A patient is also a qualifying patient if he is about to undergo, or has undergone,

any assessment for the purposes of this Act.’.

Independent mental capacity advocacy service: exceptions

Ms Secretary Hewitt

Tim Loughton

Angela Browning

Mr Tim Boswell

Mr Charles Walker

James Duddridge

Added  NC5

To move the following Clause:—

‘For section 40 of the Mental Capacity Act 2005 (c. 9) (independent mental

capacity advocacy service: exceptions) substitute—

“40
Exceptions

The duty imposed by section 37(3), 38(3) or (4) or 39(4) or (5) does not

apply where there is—

(a)
a person nominated by P (in whatever manner) as a person to be

consulted on matters to which that duty relates,

(b)
a donee of a lasting power of attorney created by P who is

authorised to make decisions in relation to those matters, or

(c)
a deputy appointed by the court for P with power to make

decisions in relation to those matters.”.’

Withdrawal of consent

Ms Secretary Hewitt

Added  NC6

To move the following Clause:—

Report Stage Proceedings: 18th June 2007
367

Mental Health Bill [Lords], continued

‘(1)
Section 60 of the 1983 Act (withdrawal of consent) is amended as follows.

(2)
After subsection (1) insert—

“(1A)
Subsection (1B) below applies where—

(a)
the consent of a patient to any treatment has been given for the

purposes of section 57, 58 or 58A above; but

(b)
before the completion of the treatment, the patient ceases to be

capable of understanding its nature, purpose and likely effects.

(1B)
The patient shall, subject to section 62 below, be treated as having

withdrawn his consent, and those sections shall then apply as if the

remainder of the treatment were a separate form of treatment.

(1C)
Subsection (1D) below applies where—

(a)
a certificate has been given under section 58 or 58A above that a

patient is not capable of understanding the nature, purpose and

likely effects of the treatment to which the certificate applies; but

(b)
before the completion of the treatment, the patient becomes

capable of understanding its nature, purpose and likely effects.

(1D)
The certificate shall, subject to section 62 below, cease to apply to the

treatment and those sections shall then apply as if the remainder of the

treatment were a separate form of treatment.”

(3)
In subsection (2), for “subsection (1)” substitute “subsections (1) to (1D)”.’.

Victims’ rights

Ms Secretary Hewitt

Tim Loughton

Angela Browning

Mr Tim Boswell

Mr Charles Walker

James Duddridge

Added  NC7

To move the following Clause:—

‘Schedule [Victims’ rights] (which makes amendments to Chapter 2 of Part 3 of

the Domestic Violence, Crime and Victims Act 2004 (c. 28)) has effect.’.

Advance decisions and advance statements

David Taylor

Lynne Jones

Not selected  NC2

To move the following Clause:—

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

(2)
After section 76 (visiting and examinations of patients) insert—