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Report Stage Proceedings: 18th June 2007                

383

 

Mental Health Bill [Lords], continued

 
 

(a)    

notify the managers of the hospital in which the patient is

 

detained of that person’s wish and of that person’s name and

 

address, and

 

(b)    

notify that person of the name and address of the hospital.

 

(4)    

Subsection (5) applies if a person who appears to the local probation

 

board mentioned in section 42(2) to be the victim of the offence or to

 

act for the victim of the offence, subsequently to his wishes being

 

ascertained under section 42(2), expressed a wish to do something

 

specified in subsection (2)(a) or (b).

 

(5)    

The local probation board mentioned in section 42(2) must take all

 

reasonable steps—

 

(a)    

to ascertain whether the transfer direction given in respect of

 

the patient continues in force and whether a community

 

treatment order is in force in respect of him, and

 

(b)    

if the board ascertains that the transfer direction does continue

 

in force—

 

(i)    

to notify the managers of the relevant hospital of that

 

person’s wish, and

 

(ii)    

to notify that person of the name and address of the

 

hospital.

 

(6)    

The relevant hospital has the meaning given in section 36A(6).”

 

12         

In section 43 (the title to which becomes “Representations where restriction

 

direction made”), in subsection (1), for “if section 42 applies” substitute “if, in

 

a case where section 42 applies, the transfer direction in respect of the patient

 

was given with a restriction direction”.

 

13         

After section 43 insert—

 

“43A  

Representations where restriction direction not given

 

(1)    

This section applies if, in a case where section 42 applies, the transfer

 

direction in respect of the patient was given without a restriction

 

direction.

 

(2)    

Subsection (3) applies if—

 

(a)    

a person makes representations about a matter specified in

 

section 42(3) to the managers of the relevant hospital, and

 

(b)    

it appears to the managers that the person is the victim of the

 

offence or acts for the victim of the offence.

 

(3)    

The managers must forward the representations to the persons

 

responsible for determining the matter.

 

(4)    

The responsible clinician must inform the managers of the relevant

 

hospital if he is considering making—

 

(a)    

an order for discharge in respect of the patient under section

 

23(2) of the Mental Health Act 1983,

 

(b)    

a community treatment order in respect of him, or

 

(c)    

an order under section 17B(4) of the Mental Health Act 1983

 

to vary the conditions specified in a community treatment

 

order in force in respect of the patient.

 

(5)    

Any person who has power to make an order for discharge in respect

 

of the patient under section 23(3) of the Mental Health Act 1983 must


 
 

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Mental Health Bill [Lords], continued

 
 

inform the managers of the relevant hospital if he is considering

 

making that order.

 

(6)    

A Mental Health Review Tribunal must inform the managers of the

 

relevant hospital if—

 

(a)    

an application is made to the tribunal under section 66 or 69

 

of the Mental Health Act 1983, or

 

(b)    

the patient’s case is referred to the tribunal under section 67 of

 

that Act.

 

(7)    

Subsection (8) applies if—

 

(a)    

the managers of the relevant hospital receive information

 

under subsection (4), (5) or (6), and

 

(b)    

a person who appears to the managers to be the victim of the

 

offence or to act for the victim of the offence—

 

(i)    

when his wishes were ascertained under section

 

42(2), expressed a wish to make representations about

 

a matter specified in section 42(3), or

 

(ii)    

has made representations about such a matter to the

 

managers of the hospital in which the patient was, at

 

the time in question, detained.

 

(8)    

The managers of the relevant hospital must provide the information to

 

the person.

 

(9)    

The relevant hospital has the meaning given in section 36A(6).”

 

14         

In section 44 (the title to which becomes “Information where restriction

 

direction made”), in subsection (1), for “if section 42 applies” substitute “if, in

 

a case where section 42 applies, the transfer direction in respect of the patient

 

was given with a restriction direction”.

 

15         

After section 44 insert —

 

“44A  

Information where restriction direction not given

 

(1)    

This section applies if, in a case where section 42 applies, the transfer

 

direction in respect of the patient was given without a restriction

 

direction.

 

(2)    

The responsible clinician must inform the managers of the relevant

 

hospital—

 

(a)    

whether he is to make an order for discharge in respect of the

 

patient under section 23(2) of the Mental Health Act 1983;

 

(b)    

whether he is to make a community treatment order in respect

 

of the patient;

 

(c)    

if a community treatment order is to be made in respect of the

 

patient, what conditions are to be specified in the order;

 

(d)    

if a community treatment order is in force in respect of the

 

patient, of any variation to be made under section 17B(4) of

 

the Mental Health Act 1983 of the conditions specified in the

 

order;

 

(e)    

if a community treatment order in respect of the patient is to

 

cease to be in force, of the date on which it is to cease to be in

 

force;

 

(f)    

if, following the examination of the patient under section 20

 

of the Mental Health Act 1983, it does not appear to the

 

responsible clinician that the conditions set out in subsection


 
 

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Mental Health Bill [Lords], continued

 
 

(4) of that section are satisfied, of the date on which the

 

authority for the patient’s detention is to expire.

 

(3)    

Any person who has power to make an order for discharge in respect

 

of the patient under section 23(3) of the Mental Health Act 1983 must

 

inform the managers of the relevant hospital if he is to make that order.

 

(4)    

Subsection (5) applies if—

 

(a)    

an application is made to a Mental Health Review Tribunal

 

under section 66 or 69 of the Mental Health Act 1983,

 

(b)    

the patient’s case is referred to a Mental Health Review

 

Tribunal under section 67 of that Act, or

 

(c)    

the managers of the relevant hospital refer the patient’s case

 

to a Mental Health Review Tribunal under section 68 of that

 

Act.

 

(5)    

The tribunal must inform the managers of the relevant hospital if it

 

directs that the patient be discharged.

 

(6)    

Subsection (7) applies if a person who appears to the managers of the

 

relevant hospital to be the victim of the offence or to act for the victim

 

of the offence—

 

(a)    

when his wishes were ascertained under section 42(2),

 

expressed a wish to receive the information specified in

 

section 42(4), or

 

(b)    

has subsequently informed the managers of the relevant

 

hospital that he wishes to receive that information.

 

(7)    

The managers of the relevant hospital order must take all reasonable

 

steps—

 

(a)    

to inform that person whether the patient is to be discharged

 

under section 23 or 72 of the Mental Health Act 1983;

 

(b)    

to inform that person whether a community treatment order is

 

to be made in respect of the patient;

 

(c)    

if a community treatment order is to be made in respect of the

 

patient and is to specify conditions which relate to contact

 

with the victim or his family, to provide that person with

 

details of those conditions;

 

(d)    

if a community treatment order is in force in respect of the

 

patient and the conditions specified in the order are to be

 

varied under section 17B(4) of the Mental Health Act 1983, to

 

provide that person with details of any variation which relates

 

to contact with the victim or his family;

 

(e)    

if a community treatment order in respect of the patient is to

 

cease to be in force, to inform that person of the date on which

 

it is to cease to be in force;

 

(f)    

if, following the examination of the patient under section 20

 

of the Mental Health Act 1983, the authority for the patient’s

 

detention is not to be renewed, to inform that person of the

 

date on which the authority is to expire;

 

(g)    

to provide that person with such other information as the

 

managers of the relevant hospital consider appropriate in all

 

the circumstances of the case.

 

(8)    

The relevant hospital has the meaning given by section 36A(6).


 
 

Report Stage Proceedings: 18th June 2007                

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Mental Health Bill [Lords], continued

 
 

44B    

Removal of restriction

 

(1)    

This section applies if, in a case where section 42 applies—

 

(a)    

the transfer direction in respect of the patient was given with

 

a restriction direction, and

 

(b)    

the restriction direction ceases to be in force while the transfer

 

direction continues in force.

 

(2)    

Subsection (3) applies if a person who appears to the relevant local

 

probation board to be the victim of the offence or to act for the victim

 

of the offence—

 

(a)    

when his wishes were ascertained under section 42(2),

 

expressed a wish to make representations about a matter

 

specified in section 42(3) or to receive the information

 

specified in section 42(4), or

 

(b)    

has subsequently informed the relevant local probation board

 

that he wishes to make representations about such a matter or

 

to receive that information.

 

(3)    

The relevant local probation board must take all reasonable steps—

 

(a)    

to notify the managers of the relevant hospital of an address at

 

which that person may be contacted;

 

(b)    

to notify that person of the name and address of the hospital.

 

(4)    

While the transfer direction continues in force, the patient is to be

 

regarded as a patient in respect of whom a transfer direction was given

 

without a restriction direction; and sections 43A and 44A are to apply

 

in relation to him accordingly.

 

(5)    

The relevant hospital has the meaning given in section 36A(6).

 

(6)    

The relevant local probation board has the meaning given in section

 

43(8).”

 

Interpretation

 

16  (1)  

Section 45 (the title to which becomes “Interpretation: sections 35 to 44B”) is

 

amended as follows.

 

      (2)  

In subsection (1)—

 

(a)    

for “44” substitute “44B”, and

 

(b)    

at the appropriate places insert—

 

““community treatment order” has the meaning given in section

 

17A of the Mental Health Act 1983;”,

 

““the managers” has the meaning given in section 145 of the Mental

 

Health Act 1983;”,

 

““responsible clinician” means the responsible clinician for the

 

purposes of Part 3 of the Mental Health Act 1983;”, and

 

““responsible hospital” has the meaning given in section 17A of the

 

Mental Health Act 1983;”.

 

      (3)  

In subsection (2), for “44” substitute “44B”.

 

      (4)  

After subsection (2) insert—

 

“(3)    

A reference in sections 35 to 44B to a place in which a person is

 

detained includes a reference to a place in which he is liable to be

 

detained under the Mental Health Act 1983.


 
 

Report Stage Proceedings: 18th June 2007                

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Mental Health Bill [Lords], continued

 
 

(4)    

For the purposes of section 32(3) of that Act (regulations as to

 

delegation of managers’ functions, etc.) as applied by Parts 1 and 2 of

 

Schedule 1 to that Act, a function conferred on the managers of a

 

hospital under sections 35 to 44B of this Act is to be treated as a

 

function of theirs under Part 3 of that Act.”’.

 


 

Ms Secretary Hewitt

 

Agreed to  51

 

Page  89,  line  44  [Schedule  6],  at end insert ‘, or

 

(c)    

any section 39D IMCA.’.

 


 

Ms Secretary Hewitt

 

Agreed to  52

 

Page  92,  line  9  [Schedule  6],  at end insert—

 

‘(d)    

the right to have a section 39D IMCA appointed;

 

(e)    

how to have a section 39D IMCA appointed.’.

 

Ms Secretary Hewitt

 

Agreed to  53

 

Page  92,  line  18  [Schedule  6],  at end insert—

 

    ‘(7)  

Sub-paragraph (8) applies if the managing authority is notified that a section

 

39D IMCA has been appointed.

 

      (8)  

As soon as is practicable after being notified, the managing authority must give

 

the section 39D IMCA a copy of the written information given in accordance

 

with sub-paragraph (4).’.

 


 

Ms Secretary Hewitt

 

Agreed to  54

 

Page  101,  line  22  [Schedule  6],  at end insert—

 

‘(ba)    

any section 39D IMCA;’.

 


 

Ms Secretary Hewitt

 

Agreed to  55

 

Page  108,  line  22  [Schedule  6],  at end insert—

 

‘(d)    

any section 39D IMCA.’.

 



 
 

Report Stage Proceedings: 18th June 2007                

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Mental Health Bill [Lords], continued

 
 

Ms Secretary Hewitt

 

Agreed to  56

 

Page  111,  line  26  [Schedule  6],  at end insert—

 

‘(d)    

any section 39D IMCA.’.

 


 

Ms Secretary Hewitt

 

Agreed to  57

 

Page  116,  line  9  [Schedule  6],  at end insert—

 

‘156A    

A section 39D IMCA is an independent mental capacity advocate appointed

 

under section 39D.’.

 

Ms Secretary Hewitt

 

Agreed to  58

 

Page  116,  line  10  [Schedule  6],  at end insert ‘or a section 39D IMCA.’.

 


 

Ms Secretary Hewitt

 

Agreed to  60

 

Page  129,  line  41  [Schedule  8],  leave out from ‘subsection (1)’ to end and insert

 

‘after “relate” insert “or persons who fall within section 39A, 39C or 39D”.’.

 


 

Ms Secretary Hewitt

 

Agreed to  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—


 
 

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Mental Health Bill [Lords], continued

 
 

(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—

 

(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


 
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