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Mental Health Bill [HL]


Mental Health Bill [HL]
Schedule 8 — Amendments relating to new section 4A of,& Schedule A1 to, Mental Capacity Act 2005
Part 2 — Amendments to other Acts

123

 

Section 50: Application to the Court of Protection

9          

In section 50, after subsection (1) insert—

“(1A)   

Nor is permission required for an application to the court under

section 21A by the relevant person’s representative.”

Section 64: Interpretation

5

10    (1)  

Section 64 is amended as follows.

      (2)  

In subsection (1), insert at the appropriate place—

““authorisation under Schedule A1” means either—

(a)   

a standard authorisation under that Schedule, or

(b)   

an urgent authorisation under that Schedule.”

10

      (3)  

In subsection (1), in the definition of “local authority” after ““local

authority”” insert “, except in Schedule A1,”.

      (4)  

After subsection (4) insert—

“(5)   

In this Act, references to deprivation of a person’s liberty have the

same meaning as in Article 5(1) of the Human Rights Convention.

15

(6)   

For the purposes of such references, it does not matter whether a

person is deprived of his liberty by a public authority or not.”

Section 65: Rules, regulations and orders

11    (1)  

Section 65 is amended as follows.

      (2)  

In subsection (4) after “or 41” insert “, or under paragraphs 122, 153 or 155 of

20

Schedule A1,”.

Part 2

Amendments to other Acts

National Assistance Act 1948 (c. 29)

12    (1)  

Section 47 of the National Assistance Act 1948 (removal to suitable premises

25

of persons in need of care and attention) is amended as follows.

      (2)  

After subsection (1) insert—

“(1A)   

But this section does not apply to a person (“P”) in either of the

following cases.

(1B)   

The first case is where an order of the Court of Protection authorises

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the managing authority of a hospital or care home (within the

meaning of Schedule A1 to the Mental Capacity Act 2005) to provide

P with proper care and attention.

(1C)   

The second case is where—

(a)   

an authorisation under Schedule A1 to the Mental Capacity

35

Act 2005 is in force, or

 

 

Mental Health Bill [HL]
Schedule 9 — Transitional provisions and savings

124

 

(b)   

the managing authority of a hospital or care home are under

a duty under paragraph 24 of that Schedule to request a

standard authorisation, and

   

P is, or would be, the relevant person in relation to the

authorisation.”

5

      (3)  

This paragraph does not extend to Scotland.

Local Authority Social Services Act 1970 (c. 42)

13    (1)  

Schedule 1 to the Local Authority Social Services Act 1970 (Social Services

functions of local authorities) is amended as follows.

      (2)  

In the entry relating to the Mental Capacity Act 2005 (c. 9), insert the

10

following entries at the appropriate places—

 

“Section 39A

 

Instructing independent mental capacity advocate

 
   

when giving an urgent authorisation, or making a

 
   

request for a standard authorisation, under

 
   

Schedule A1 to the Act.”

 

15

 

“Section 39C

 

Instructing independent mental capacity advocate

 
   

when no representative for relevant person under

 
   

Part 10 of Schedule A1 to the Act.”

 
 

“Schedule A1

 

Any functions.”

 

Schedule 9

20

Section 41

 

Transitional provisions and savings

Interpretation

1     (1)  

This Schedule is to be read as follows.

      (2)  

Reference to an enactment is to an enactment contained in this Act, unless

otherwise stated.

25

      (3)  

Reference to an enactment contained in the 1983 Act includes reference to

that enactment as applied by section 40(4) of that Act (patients concerned in

criminal proceedings or under sentence).

Authority to detain etc

2     (1)  

The provisions mentioned in sub-paragraph (4) do not affect—

30

(a)   

the authority for the detention or guardianship of a person who is

liable to be detained or subject to guardianship under the 1983 Act

immediately before the date on which those provisions come into

force,

 

 

Mental Health Bill [HL]
Schedule 9 — Transitional provisions and savings

125

 

(b)   

the 1983 Act in relation to any application, order or direction for

admission or removal to a hospital, or any guardianship application

or order, made under that Act before that date or the exercise, before

that date, of any power to remand,

(c)   

the power to make on or after that date an application for the

5

admission of a person to a hospital, or a guardianship application,

where all the recommendations on which the application is to be

founded are signed before that date, or

(d)   

the authority for the detention or guardianship of a person in

pursuance of such an application.

10

      (2)  

But those provisions do apply to the following events occurring on or after

that date—

(a)   

any renewal of the authority for the person’s detention or

guardianship,

(b)   

any consideration of his case by a Mental Health Review Tribunal,

15

and

(c)   

any decision about the exercise of any power to discharge him from

detention or guardianship.

      (3)  

Sub-paragraph (2)(b) is subject to paragraph 4.

      (4)  

The provisions are—

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(a)   

section 1 and Schedule 1 (removal of categories of mental disorder),

(b)   

section 2 (special provision for persons with learning disability),

(c)   

section 3 (dependence on alcohol or drugs),

(d)   

section 4 (replacement of “treatability” and “care” tests with

appropriate treatment test),

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(e)   

section 5 (addition of appropriate treatment test),

(f)   

section 7 (definition of “medical treatment”), and

(g)   

the repeals in Schedule 10 which are consequential on any of those

sections or that Schedule.

Consent to treatment

30

3          

The amendments made by section 6 (appropriate treatment test in Part 4 of

the 1983 Act) do not affect the application of a certificate under section

57(2)(b) or 58(3)(b) of the 1983 Act given before the date on which the

amendments come into force.

Reclassification of patients

35

4          

The amendment made by paragraph 13 of Schedule 1 and the repeal in

Schedule 10 of section 66(1)(d) and (fb) of the 1983 Act (which concern a

patient’s right to apply to a Mental Health Review Tribunal following a

report about the form of his mental disorder) do not affect any right to apply

in consequence of a report furnished before the date on which the

40

amendment and repeal come into force.

Supervised community treatment

5          

Section 25 and the amendments and repeals in Schedules 3 and 10 which are

consequential on that section apply to a patient who is liable to be detained

under the 1983 Act immediately before the date on which that section and

45

 

 

Mental Health Bill [HL]
Schedule 9 — Transitional provisions and savings

126

 

those amendments and repeals come into force, as they apply to a patient

who becomes so liable on or after that date.

Nearest relative

6     (1)  

Subsections (2), (3) and (4)(b) of section 21 (extension of power to appoint

acting nearest relative) do not apply to the making of an order under section

5

29 of the 1983 Act on or after the date on which those provisions come into

force, if the application for the order was made before that date.

      (2)  

Subsections (6) and (7) of section 22 (duration of orders appointing nearest

relative) do not affect—

(a)   

any order made under section 29 of the 1983 Act before the date on

10

which those subsections come into force, or

(b)   

any order made under that section on or after that date if the

application for it was made before that date.

      (3)  

But subsections (2)(a), (4) and (5) of section 22 (applications for discharge

and variation) do apply in relation to an order mentioned in sub-paragraph

15

(2)(a) or (b).

      (4)  

Section 23 (restriction of nearest relative’s right to apply to tribunal) does not

apply in relation to an order mentioned in sub-paragraph (2)(a) or (b).

7     (1)  

If, by virtue of section 24 (civil partners) coming into force, a person ceases

to be a patient’s nearest relative, this does not affect—

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(a)   

any application to a Mental Health Review Tribunal under the 1983

Act made by that person, but not determined or withdrawn, before

the date on which that section comes into force,

(b)   

any notice under section 25 of that Act given by that person before

that date, or

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(c)   

any application to a county court under section 30(1) of that Act

made by that person, but not determined or withdrawn, before that

date.

      (2)  

But section 24 does apply to the determination on or after that date of any

application under section 29 or 30 of the 1983 Act made before that date.

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Applications and references to Mental Health Review Tribunal

8     (1)  

The amendments made by section 30 apply in relation to a patient who is

liable to be detained under the 1983 Act immediately before the date on

which the amendments come into force as they apply in relation to one who

becomes so liable on or after that date.

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      (2)  

The repeal in paragraph 20(b) of Schedule 3 of the reference in section

69(2)(b) of the 1983 Act to section 45B(2) of that Act (which concerns the right

of a patient subject to a hospital direction to apply to a Mental Health Review

Tribunal in the period of six months beginning with the date of the direction)

does not affect any right to apply by virtue of a hospital direction dated

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before the date on which the repeal comes into force.

 

 

 
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Revised 17 November 2006