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Mental Health Bill [HL]


Mental Health Bill [HL]
Part 1 — Amendments to Mental Health Act 1983
Chapter 4 — Supervised community treatment

25

 

64F     

Child community patients lacking competence

(1)   

A person is authorised to give relevant treatment to a patient as

mentioned in section 64E(6)(b) above if the conditions in subsections (2)

to (5) below are met.

(2)   

The first condition is that, before giving the treatment, the person takes

5

reasonable steps to establish whether the patient is competent to

consent to the treatment.

(3)   

The second condition is that, when giving the treatment, he reasonably

believes that the patient is not competent to consent to it.

(4)   

The third condition is that—

10

(a)   

he has no reason to believe that the patient objects to being

given the treatment; or

(b)   

he does have reason to believe that the patient so objects, but it

is not necessary to use force against the patient in order to give

the treatment.

15

(5)   

The fourth condition is that—

(a)   

he is the approved clinician in charge of the treatment; or

(b)   

the treatment is given under the direction of that clinician.

64G     

Emergency treatment for patients lacking capacity or competence

(1)   

A person is also authorised to give relevant treatment to a patient as

20

mentioned in section 64C(2)(c) or 64E(6)(b) above if the conditions in

subsections (2) to (4) below are met.

(2)   

The first condition is that, when giving the treatment, the person

reasonably believes that the patient lacks capacity to consent to it or, as

the case may be, is not competent to consent to it.

25

(3)   

The second condition is that the treatment—

(a)   

is immediately necessary to save the patient’s life; or

(b)   

is immediately necessary to prevent a serious deterioration of

the patient’s condition and is not irreversible; or

(c)   

is immediately necessary to alleviate serious suffering by the

30

patient and is not irreversible or hazardous; or

(d)   

is immediately necessary, represents the minimum interference

necessary to prevent the patient from behaving violently or

being a danger to himself or others and is not irreversible or

hazardous.

35

(4)   

The third condition is that if it is necessary to use force against the

patient in order to give the treatment—

(a)   

the treatment needs to be given in order to prevent harm to the

patient; and

(b)   

the use of such force is a proportionate response to the

40

likelihood of the patient’s suffering harm, and to the

seriousness of that harm.

(5)   

Subsection (3) of section 62 above applies for the purposes of this

section as it applies for the purposes of that section.

 
 

Mental Health Bill [HL]
Part 1 — Amendments to Mental Health Act 1983
Chapter 4 — Supervised community treatment

26

 

64H     

Certificates: supplementary provisions

(1)   

A certificate under section 64B(2)(b) or 64E(2)(b) above (a “Part 4A

certificate”) may relate to a plan of treatment under which the patient

is to be given (whether within a specified period or otherwise) one or

more forms of section 58 type treatment.

5

(2)   

A Part 4A certificate shall be in such form as may be prescribed by

regulations made by the appropriate national authority.

(3)   

Before giving a Part 4A certificate, the registered medical practitioner

concerned shall consult two other persons who have been

professionally concerned with the patient’s medical treatment but, of

10

those persons—

(a)   

at least one shall be a person who is not a registered medical

practitioner; and

(b)   

neither shall be the patient’s responsible clinician.

(4)   

The appropriate national authority may at any time give notice

15

directing that a Part 4A certificate shall not apply to treatment given to

a patient after a date specified in the notice, and the relevant section

shall then apply to any such treatment as if that certificate had not been

given.

(5)   

The relevant section is—

20

(a)   

if the patient is not recalled to hospital in accordance with

section 17E above, section 64B or 64E above;

(b)   

if the patient is so recalled or is liable to be detained under this

Act following revocation of the community treatment order

under section 17F above, section 58 above (subject to section

25

62A(2) above).

(6)   

The notice under subsection (4) above shall be given to the approved

clinician in charge of the treatment in question.

(7)   

Subsection (4) above shall not preclude the continuation of any

treatment or of treatment under any plan pending compliance with the

30

relevant section if the approved clinician in charge of the treatment

considers that the discontinuance of the treatment or of treatment

under the plan would cause serious suffering to the patient.

(8)   

In this section, “the appropriate national authority” means—

(a)   

in relation to community patients in respect of whom the

35

responsible hospital is in England, the Secretary of State;

(b)   

in relation to community patients in respect of whom the

responsible hospital is in Wales, the Welsh Ministers.

64I     

Liability for negligence

Nothing in section 64D, 64F or 64G above excludes a person’s civil

40

liability for loss or damage, or his criminal liability, resulting from his

negligence in doing anything authorised to be done by that section.

64J     

Factors to be considered in determining whether patient objects to

treatment

(1)   

In assessing for the purposes of this Part whether he has reason to

45

believe that a patient objects to treatment, a person shall consider all the

 
 

Mental Health Bill [HL]
Part 1 — Amendments to Mental Health Act 1983
Chapter 4 — Supervised community treatment

27

 

circumstances so far as they are reasonably ascertainable, including the

patient’s behaviour, wishes, feelings, views, beliefs and values.

(2)   

But circumstances from the past shall be considered only so far as it is

still appropriate to consider them.

64K     

Interpretation of Part 4A

5

(1)   

This Part of this Act is to be construed as follows.

(2)   

References to a patient who lacks capacity are to a patient who lacks

capacity within the meaning of the Mental Capacity Act 2005.

(3)   

References to a patient who has capacity are to be read accordingly.

(4)   

References to a donee are to a donee of a lasting power of attorney

10

(within the meaning of section 9 of the Mental Capacity Act 2005)

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

authority and in accordance with that Act.

(5)   

References to a deputy are to a deputy appointed for the patient by the

Court of Protection under section 16 of the Mental Capacity Act 2005,

15

where the deputy is acting within the scope of his authority and in

accordance with that Act.

(6)   

Reference to the responsible clinician shall be construed as a reference

to the responsible clinician within the meaning of Part 2 of this Act.

(7)   

References to a hospital include a registered establishment.

20

(8)   

Section 64(3) above applies for the purposes of this Part of this Act as it

applies for the purposes of Part 4 of this Act.”

(2)   

In section 119 of the 1983 Act (practitioners approved for Part 4 and section

118)—

(a)   

in subsection (2)—

25

(i)   

after “those provisions” insert “or under Part 4A of this Act”,

(ii)   

in paragraph (a), for “in a registered establishment” substitute

“in a hospital or registered establishment or any community

patient in a hospital or establishment of any description or (if

access is granted) other place”, and

30

(iii)   

in paragraph (b), for “in that home” substitute “there”, and

(b)   

after subsection (2) insert—

“(3)   

In this section, “establishment of any description” shall be

construed in accordance with section 4(8) of the Care Standards

Act 2000.”

35

(3)   

In section 121 of the 1983 Act (Mental Health Act Commission), in subsection

(2)(b) after “61” insert “, 64H(4)”.

(4)   

The Mental Capacity Act 2005 (c. 9) is amended as follows.

(5)   

In section 28 (Mental Health Act matters), after subsection (1) insert—

“(1A)   

Section 5 does not apply to an act to which section 64B of the Mental

40

Health Act applies (treatment of community patients not recalled to

hospital).”

 
 

Mental Health Bill [HL]
Part 1 — Amendments to Mental Health Act 1983
Chapter 5 — Mental Health Review Tribunals

28

 

(6)   

In section 37 (independent mental capacity advocates: provision of serious

medical treatment by NHS body), in subsection (2) after “Part 4” insert “or 4A”.

29      

Repeal of provisions for after-care under supervision

(1)   

The 1983 Act is amended as follows.

(2)   

Sections 25A to 25J (after-care under supervision) are omitted.

5

(3)   

In section 66 (applications to tribunals), in subsection (2)(c), for “cases

mentioned in paragraphs (c) and (ga)” substitute “case mentioned in

paragraph (c)”.

(4)   

In Part 1 of Schedule 1 (application of certain provisions to patients subject to

hospital and guardianship orders: patients not subject to special restrictions),

10

in paragraph 1, for “25C” substitute “26”.

Chapter 5

Mental Health Review Tribunals

30      

References

(1)   

The 1983 Act is amended as follows.

15

(2)   

In section 21 (special provision as to patients absent without leave), after

subsection (2) insert—

“(3)   

Where a patient is absent without leave on the day on which (apart

from this section) the managers would be required under section 68

below to refer the patient’s case to a Mental Health Review Tribunal,

20

that requirement shall not apply unless and until—

(a)   

the patient is taken into custody under section 18 above and

returned to the hospital where he ought to be; or

(b)   

the patient returns himself to the hospital where he ought to be

within the period during which he can be taken into custody

25

under section 18 above.”

(3)   

For section 68 substitute—

“68     

Duty of managers of hospitals to refer cases to tribunal

(1)   

This section applies in respect of the following patients—

(a)   

a patient who is admitted to a hospital in pursuance of an

30

application for admission for assessment;

(b)   

a patient who is admitted to a hospital in pursuance of an

application for admission for treatment;

(c)   

a community patient;

(d)   

a patient whose community treatment order is revoked under

35

section 17F above;

(e)   

a patient who is transferred from guardianship to a hospital in

pursuance of regulations made under section 19 above.

(2)   

On expiry of the period of six months beginning with the applicable

day, the managers of the hospital shall refer the patient’s case to a

40

Mental Health Review Tribunal.

 
 

Mental Health Bill [HL]
Part 1 — Amendments to Mental Health Act 1983
Chapter 5 — Mental Health Review Tribunals

29

 

(3)   

But they shall not do so if during that period—

(a)   

any right has been exercised by or in respect of the patient by

virtue of any of paragraphs (b), (ca), (cb), (e), (g) and (h) of

section 66(1) above;

(b)   

a reference has been made in respect of the patient under

5

section 67(1) above, not being a reference made while the

patient is or was liable to be detained in pursuance of an

application for admission for assessment; or

(c)   

a reference has been made in respect of the patient under

subsection (7) below.

10

(4)   

A person who applies to a tribunal but subsequently withdraws his

application shall be treated for these purposes as not having exercised

his right to apply, and if he withdraws his application on a date after

expiry of the period mentioned in subsection (2) above, the managers

shall refer the patient’s case as soon as possible after that date.

15

(5)   

In subsection (2) above, “the applicable day” means—

(a)   

in the case of a patient who is admitted to a hospital in

pursuance of an application for admission for assessment, the

day on which the patient was so admitted;

(b)   

in the case of a patient who is admitted to a hospital in

20

pursuance of an application for admission for treatment—

(i)   

the day on which the patient was so admitted; or

(ii)   

if, when he was so admitted, he was already liable to be

detained in pursuance of an application for admission

for assessment, the day on which he was originally

25

admitted in pursuance of the application for admission

for assessment;

(c)   

in the case of a community patient or a patient whose

community treatment order is revoked under section 17F

above, the day mentioned in sub-paragraph (i) or (ii), as the case

30

may be, of paragraph (b) above;

(d)   

in the case of a patient who is transferred from guardianship to

a hospital, the day on which he was so transferred.

(6)   

The managers of the hospital shall also refer the patient’s case to a

Mental Health Review Tribunal if a period of more than three years (or,

35

if the patient has not attained the age of 16 years, one year) has elapsed

since his case was last considered by such a tribunal, whether on his

own application or otherwise.

(7)   

If, in the case of a community patient, the community treatment order

is revoked under section 17F above, the managers of the hospital shall

40

also refer the patient’s case to a Mental Health Review Tribunal as soon

as possible after the order is revoked.

(8)   

For the purposes of furnishing information for the purposes of a

reference under this section, a registered medical practitioner or

approved clinician authorised by or on behalf of the patient may at any

45

reasonable time—

(a)   

visit and examine the patient in private; and

(b)   

require the production of and inspect any records relating to the

detention or treatment of the patient in any hospital or any

after-care services provided for him under section 117 below.

50

 
 

Mental Health Bill [HL]
Part 1 — Amendments to Mental Health Act 1983
Chapter 5 — Mental Health Review Tribunals

30

 

(9)   

Reference in this section to the managers of the hospital—

(a)   

in relation to a community patient, is to the managers of the

responsible hospital;

(b)   

in relation to any other patient, is to the managers of the hospital

in which he is liable to be detained.

5

68A     

Power to reduce periods under section 68

(1)   

The appropriate national authority may from time to time by order

amend subsection (2) or (6) of section 68 above so as to substitute for a

period mentioned there such shorter period as is specified in the order.

(2)   

The order may include such transitional, consequential, incidental or

10

supplemental provision as the appropriate national authority thinks fit.

(3)   

The order may, in particular, make provision for a case where—

(a)   

a patient in respect of whom subsection (1) of section 68 above

applies is, or is about to be, transferred from England to Wales

or from Wales to England; and

15

(b)   

the period by reference to which subsection (2) or (6) of that

section operates for the purposes of the patient’s case is not the

same in one territory as it is in the other.

(4)   

A patient is transferred from one territory to the other if—

(a)   

he is transferred from a hospital, or from guardianship, in one

20

territory to a hospital in the other in pursuance of regulations

made under section 19 above;

(b)   

he is removed under subsection (3) of that section from a

hospital or accommodation in one territory to a hospital or

accommodation in the other;

25

(c)   

he is a community patient responsibility for whom is assigned

from a hospital in one territory to a hospital in the other in

pursuance of regulations made under section 19A above;

(d)   

on the revocation of a community treatment order in respect of

him under section 17F above he is detained in a hospital in the

30

territory other than the one in which the responsible hospital

was situated; or

(e)   

he is transferred or removed under section 123 below from a

hospital in one territory to a hospital in the other.

(5)   

Provision made by virtue of subsection (3) above may require or

35

authorise the managers of a hospital determined in accordance with the

order to refer the patient’s case to a Mental Health Review Tribunal.

(6)   

In so far as making provision by virtue of subsection (3) above, the

order—

(a)   

may make different provision for different cases;

40

(b)   

may make provision which applies subject to specified

exceptions.

(7)   

Where the appropriate national authority for one territory makes an

order under subsection (1) above, the appropriate national authority

for the other territory may by order make such provision in

45

consequence of the order as it thinks fit.

 
 

Mental Health Bill [HL]
Part 1 — Amendments to Mental Health Act 1983
Chapter 5 — Mental Health Review Tribunals

31

 

(8)   

An order made under subsection (7) above may, in particular, make

provision for a case within subsection (3) above (and subsections (4) to

(6) above shall apply accordingly).

(9)   

In this section, “the appropriate national authority” means—

(a)   

in relation to a hospital in England, the Secretary of State;

5

(b)   

in relation to a hospital in Wales, the Welsh Ministers.”

(4)   

In section 71 (references by Secretary of State concerning restricted patients),

after subsection (3) insert—

“(3A)   

An order under subsection (3) above may include such transitional,

consequential, incidental or supplemental provision as the Secretary of

10

State thinks fit.”

(5)   

In section 143 (general provisions as to regulations, orders and rules)—

(a)   

in subsection (2)—

(i)   

after “order made” insert “by the Secretary of State”, and

(ii)   

after “54A” insert “or 68A(7)”, and

15

(b)   

in subsection (3)—

(i)   

after “made” insert “by the Secretary of State”, and

(ii)   

for “68(4)” substitute “68A(1)”.

(6)   

In Part 1 of Schedule 1 to that Act (application of certain provisions to patients

subject to hospital and guardianship orders: patients not subject to special

20

restrictions)—

(a)   

in paragraph 2—

(i)   

for “and 66” substitute “, 66 and 68”, and

(ii)   

for “to 9” substitute “to 10”,

(b)   

after paragraph 9 insert—

25

“10        

In section 68—

(a)   

in subsection (1) paragraph (a) shall be omitted; and

(b)   

subsections (2) to (5) shall apply if the patient falls

within paragraph (e) of subsection (1), but not

otherwise.”

30

31      

Organisation

(1)   

The 1983 Act is amended as follows.

(2)   

In section 65 (Mental Health Review Tribunals), for subsections (1) to (1C)

substitute—

“(1)   

There shall be—

35

(a)   

a Mental Health Review Tribunal for England; and

(b)   

a Mental Health Review Tribunal for Wales.

(1A)   

The purpose of the Mental Health Review Tribunals is to deal with

applications and references by and in respect of patients under the

provisions of this Act.”

40

(3)   

In section 78 (procedure of tribunals)—

(a)   

in subsections (2)(a) and (k) and (6), for “chairman” substitute

“President”,

 
 

 
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