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Mental Health Bill [HL]


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

109

 

158   (1)  

Directions under paragraph 156 must be given in regulations.

      (2)  

Directions under paragraph 157 may be given—

(a)   

in regulations, or

(b)   

by instrument in writing.

159        

The power under paragraph 156 or paragraph 157 to give

5

directions includes power to vary or revoke directions given

under that paragraph.

Notices

160        

Any notice under this Schedule must be in writing.

Regulations

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161   (1)  

This paragraph applies to all regulations under this Schedule,

except regulations under paragraph 153, 154, 158 or 174.

      (2)  

It is for the Secretary of State to make such regulations in relation

to authorisations under this Schedule which relate to hospitals

and care homes situated in England.

15

      (3)  

It is for the National Assembly for Wales to make such regulations

in relation to authorisations under this Schedule which relate to

hospitals and care homes situated in Wales.

162        

It is for the Secretary of State to make regulations under paragraph

153.

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163        

It is for the National Assembly for Wales to make regulations

under paragraph 154 or 158.

164   (1)  

This paragraph applies to regulations under paragraph 174.

      (2)  

It is for the Secretary of State to make such regulations in relation

to cases where a question as to the ordinary residence of a person

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is to be determined by the Secretary of State.

      (3)  

It is for the National Assembly for Wales to make such regulations

in relation to cases where a question as to the ordinary residence

of a person is to be determined by the National Assembly.

Part 13

30

Interpretation

Introduction

165        

This Part applies for the purposes of this Schedule.

Hospitals and their managing authorities

166   (1)  

“Hospital” means—

35

(a)   

an NHS hospital, or

(b)   

an independent hospital.

      (2)  

“NHS hospital” means—

 

 

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

110

 

(a)   

a health service hospital as defined by section 275 of the

National Health Service Act 2006 or section 206 of the

National Health Service (Wales) Act 2006, or

(b)   

a hospital as defined by section 206 of the National Health

Service (Wales) Act 2006 vested in a Local Health Board.

5

      (3)  

“Independent hospital” means a hospital as defined by section 2 of

the Care Standards Act 2000 which is not an NHS hospital.

167   (1)  

“Managing authority”, in relation to an NHS hospital, means—

(a)   

if the hospital—

(i)   

is vested in the appropriate national authority for

10

the purposes of its functions under the National

Health Service Act 2006 or of the National Health

Service (Wales) Act 2006, or

(ii)   

consists of any accommodation provided by a local

authority and used as a hospital by or on behalf of

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the appropriate national authority under either of

those Acts,

   

the Primary Care Trust, Strategic Health Authority, Local

Health Board or Special Health Authority responsible for

the administration of the hospital;

20

(b)   

if the hospital is vested in a Primary Care Trust, National

Health Service trust or NHS foundation trust, that trust;

(c)   

if the hospital is vested in a Local Health Board, that Board.

      (2)  

For this purpose the appropriate national authority is—

(a)   

in relation to England: the Secretary of State;

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(b)   

in relation to Wales: the National Assembly for Wales;

(c)   

in relation to England and Wales: the Secretary of State and

the National Assembly acting jointly.

168        

“Managing authority”, in relation to an independent hospital,

means the person registered, or required to be registered, under

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Part 2 of the Care Standards Act 2000 in respect of the hospital.

Care homes and their managing authorities

169        

“Care home” has the meaning given by section 3 of the Care

Standards Act 2000.

170        

“Managing authority”, in relation to a care home, means the

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person registered, or required to be registered, under Part 2 of the

Care Standards Act 2000 in respect of the care home.

Supervisory bodies: hospitals

171   (1)  

The identity of the supervisory body is determined under this

paragraph in cases where the relevant hospital is situated in

40

England.

      (2)  

If a Primary Care Trust commissions the relevant care or

treatment, that Trust is the supervisory body.

 

 

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

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      (3)  

If the National Assembly for Wales or a Local Health Board

commission the relevant care or treatment, the National Assembly

are the supervisory body.

      (4)  

In any other case, the supervisory body are the Primary Care Trust

for the area in which the relevant hospital is situated.

5

      (5)  

If a hospital is situated in the areas of two (or more) Primary Care

Trusts, it is to be regarded for the purposes of sub-paragraph (4)

as situated in whichever of the areas the greater (or greatest) part

of the hospital is situated.

172   (1)  

The identity of the supervisory body is determined under this

10

paragraph in cases where the relevant hospital is situated in

Wales.

      (2)  

The National Assembly for Wales are the supervisory body.

      (3)  

But if a Primary Care Trust commissions the relevant care or

treatment, that Trust is the supervisory body.

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Supervisory bodies: care homes

173   (1)  

The identity of the supervisory body is determined under this

paragraph in cases where the relevant care home is situated in

England or in Wales.

      (2)  

The supervisory body are the local authority for the area in which

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the relevant person is ordinarily resident.

      (3)  

But if the relevant person is not ordinarily resident in the area of a

local authority, the supervisory body are the local authority for the

area in which the care home is situated.

      (4)  

In relation to England “local authority” means—

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(a)   

the council of a county;

(b)   

the council of a district for which there is no county

council;

(c)   

the council of a London borough;

(d)   

the Common Council of the City of London;

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(e)   

the Council of the Isles of Scilly.

      (5)  

In relation to Wales “local authority” means the council of a county

or county borough.

      (6)  

If a care home is situated in the areas of two (or more) local

authorities, it is to be regarded for the purposes of sub-paragraph

35

(3) as situated in whichever of the areas the greater (or greatest)

part of the care home is situated.

174   (1)  

Subsections (5) and (6) of section 24 of the National Assistance Act

1948 (deemed place of ordinary residence) apply to any

determination of where a person is ordinarily resident for the

40

purposes of paragraph 173 as those subsections apply to such a

determination for the purposes specified in those subsections.

      (2)  

In the application of section 24(6) of the 1948 Act by virtue of

subsection (1), section 24(6) is to be read as if it referred to a

 

 

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

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hospital vested in a Local Health Board as well as to hospitals

vested in the Secretary of State and the other bodies mentioned in

section 24(6).

      (3)  

Any question arising as to the ordinary residence of a person is to

be determined by the Secretary of State or by the National

5

Assembly for Wales.

      (4)  

The Secretary of State and the National Assembly must make and

publish arrangements for determining which cases are to be dealt

with by the Secretary of State and which are to be dealt with by the

National Assembly.

10

      (5)  

Those arrangements may include provision for the Secretary of

State and the National Assembly to agree, in relation to any

question that has arisen, which of them is to deal with the case.

      (6)  

Regulations may make provision about arrangements that are to

have effect before, upon, or after the determination of any

15

question as to the ordinary residence of a person.

      (7)  

The regulations may, in particular, authorise or require a local

authority to do any or all of the following things—

(a)   

to act as supervisory body even though it may wish to

dispute that it is the supervisory body;

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(b)   

to become the supervisory body in place of another local

authority;

(c)   

to recover from another local authority expenditure

incurred in exercising functions as the supervisory body.

Same body managing authority and supervisory body

25

175   (1)  

This paragraph applies if, in connection with a particular person’s

detention as a resident in a hospital or care home, the same body

are both—

(a)   

the managing authority of the relevant hospital or care

home, and

30

(b)   

the supervisory body.

      (2)  

The fact that a single body are acting in both capacities does not

prevent the body from carrying out functions under this Schedule

in each capacity.

      (3)  

But, in such a case, this Schedule has effect subject to any

35

modifications contained in regulations that may be made for this

purpose.

Interested persons

176        

Each of the following is an interested person—

(a)   

the relevant person’s spouse or civil partner;

40

(b)   

where the relevant person and another person of the

opposite sex are not married to each other but are living

together as husband and wife: the other person;

 

 

Mental Health Bill [HL]
Schedule 7 — Mental Capacity Act 2005: new Schedule 1A

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(c)   

where the relevant person and another person of the same

sex are not civil partners of each other but are living

together as if they were civil partners: the other person;

(d)   

the relevant person’s children and step-children;

(e)   

the relevant person’s parents and step-parents;

5

(f)   

the relevant person’s brothers and sisters, half-brothers

and half-sisters, and stepbrothers and stepsisters;

(g)   

the relevant person’s grandparents;

(h)   

a deputy appointed for the relevant person by the court;

(i)   

a donee of a lasting power of attorney granted by the

10

relevant person.

177   (1)  

An interested person consulted by the best interests assessor is any

person whose name is stated in the relevant best interests

assessment in accordance with paragraph 40 (interested persons

whom the assessor consulted in carrying out the assessment).

15

      (2)  

The relevant best interests assessment is the most recent best

interests assessment carried out in connection with the standard

authorisation in question (whether the assessment was carried out

under Part 4 or Part 8).

178        

Where this Schedule imposes on a person a duty towards an

20

interested person, the duty does not apply if the person on whom

the duty is imposed—

(a)   

is not aware of the interested person’s identity or of a way

of contacting him, and

(b)   

cannot reasonably ascertain it.”.

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Schedule 7

Section 38

 

Mental Capacity Act 2005: new Schedule 1A

           

After Schedule 1 to the Mental Capacity Act 2005 (c. 9) insert—

“Schedule 1A

Persons ineligible to be deprived of liberty by this Act

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Part 1

Ineligible persons

Application

1          

This Schedule applies for the purposes of—

(a)   

section 16A, and

35

(b)   

paragraph 17 of Schedule A1.

Determining ineligibility

2          

A person (“P”) is ineligible to be deprived of liberty by this Act

(“ineligible”) if—

 

 

Mental Health Bill [HL]
Schedule 7 — Mental Capacity Act 2005: new Schedule 1A

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(a)   

P falls within one of the cases set out in the second column

of the following table, and

(b)   

the corresponding entry in the third column of the table —

or the provision, or one of the provisions, referred to in that

entry — provides that he is ineligible.

5

  

Status of P

Determination

 
   

of ineligibility

 
 


P is—


 
 


(a)   

subject to the hospital treatment regime,


 
 

Case A

and

P is ineligible.

 

10

  

(b)   

detained in a hospital under that

  
  

regime.

  
 


P is—


 
 


(a)   

subject to the hospital treatment regime,


 
 

Case B

but

See paragraphs 3 and 4.

 

15

  

(b)   

not detained in a hospital under that

  
  

regime.

  
 

Case C

P is subject to the community treatment regime.

See paragraphs 3 and 4.

 
 

Case D

P is subject to the guardianship regime.

See paragraphs 3 and 5.

 
 


P is—


 

20

 


(a)   

within the scope of the Mental Health


 
 

Case E

Act, but

See paragraph 5.

 
  

(b)   

not subject to any of the mental health

  
  

regimes.

  

Authorised course of action not in accordance with regime

25

3     (1)  

This paragraph applies in cases B, C and D in the table in

paragraph 2.

      (2)  

P is ineligible if the authorised course of action is not in accordance

with a requirement which the relevant regime imposes.

      (3)  

That includes any requirement as to where P is, or is not, to reside.

30

      (4)  

The relevant regime is the mental health regime to which P is

subject.

Treatment for mental disorder in a hospital

4     (1)  

This paragraph applies in cases B and C in the table in paragraph

2.

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      (2)  

P is ineligible if the relevant care or treatment consists in whole or

in part of medical treatment for mental disorder in a hospital.

 

 

Mental Health Bill [HL]
Schedule 7 — Mental Capacity Act 2005: new Schedule 1A

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P objects to being a mental health patient etc

5     (1)  

This paragraph applies in cases D and E in the table in paragraph

2.

      (2)  

P is ineligible if the following conditions are met.

      (3)  

The first condition is that the relevant instrument authorises P to

5

be a mental health patient.

      (4)  

The second condition is that P objects—

(a)   

to being a mental health patient, or

(b)   

to being given some or all of the mental health treatment.

      (5)  

The third condition is that a donee or deputy has not made a valid

10

decision to consent to each matter to which P objects.

      (6)  

In determining whether or not P objects to something, regard must

be had to all the circumstances (so far as they are reasonably

ascertainable), including the following—

(a)   

P’s behaviour;

15

(b)   

P’s wishes and feelings;

(c)   

P’s views, beliefs and values.

      (7)  

But regard is to be had to circumstances from the past only so far

as it is still appropriate to have regard to them.

Part 2

20

Interpretation

Application

6          

This Part applies for the purposes of this Schedule.

Mental health regimes

7          

The mental health regimes are—

25

(a)   

the hospital treatment regime,

(b)   

the community treatment regime, and

(c)   

the guardianship regime.

Hospital treatment regime

8     (1)  

P is subject to the hospital treatment regime if he is subject to—

30

(a)   

a hospital treatment obligation under the relevant

enactment, or

(b)   

an obligation under another England and Wales

enactment which has the same effect as a hospital

treatment obligation.

35

      (2)  

But where P is subject to any such obligation, he is to be regarded

as not subject to the hospital treatment regime during any period

when he is subject to the community treatment regime.

 

 

 
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Revised 17 November 2006