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Mental Health Bill [HL]


Mental Health Bill [HL]
Part 1 — Amendments to Mental Health Act 1983
Chapter 7 — Restricted patients

32

 

(b)   

in subsection (2)(a), for “any other” substitute “the other”,

(c)   

in subsections (2)(b) and (4)(b), for “another” substitute “the other”,

(d)   

in subsection (4)(a), for “president” substitute “chairman”, and

(e)   

in subsection (6) omit “, if for any reason he is unable to act,”.

(4)   

In section 79 (interpretation of Part 5), for subsection (7) substitute—

5

“(7)   

For the purposes of this Part of this Act—

(a)   

the area of the Mental Health Review Tribunal for England is

England; and

(b)   

the area of the Mental Health Review Tribunal for Wales is

Wales.”

10

(5)   

Schedule 2 (Mental Health Review Tribunals) is amended as set out in

subsections (6) to (9).

(6)   

For paragraph 3 substitute—

“3    (1)  

The Lord Chancellor shall appoint one of the legal members of the

Mental Health Review Tribunal for England to be the President of

15

that tribunal.

      (2)  

The Lord Chancellor shall appoint one of the legal members of the

Mental Health Review Tribunal for Wales to be the President of that

tribunal.”

(7)   

In paragraph 4—

20

(a)   

for “chairman”, in each place, substitute “President”, and

(b)   

omit “, if for any reason he is unable to act,”.

(8)   

In paragraph 5—

(a)   

for “any area” substitute “one area”, and

(b)   

for “any other” substitute “the other”.

25

(9)   

In paragraph 6—

(a)   

for “chairman”, in each place, substitute “President”, and

(b)   

for “president”, in each place, substitute “chairman”.

Chapter 6

Cross-border patients

30

32      

Cross-border arrangements

Schedule 5 (which contains amendments to Part 6 of the 1983 Act and related

amendments) has effect.

Chapter 7

Restricted patients

35

33      

Restriction orders

(1)   

In section 41(1) of the 1983 Act (restriction orders) omit the words “, either

without limit of time or during such period as may be specified in the order”.

 
 

Mental Health Bill [HL]
Part 1 — Amendments to Mental Health Act 1983
Chapter 8 — Miscellaneous

33

 

(2)   

In section 42(4)(b) of the 1983 Act (powers in respect of patients subject to

restriction orders) omit the words from “, and, if the restriction order was made

for a specified period,” to the end.

(3)   

In the following provisions omit the words “, made without limitation of

time”—

5

(a)   

section 44(3) of the 1983 Act (committal to hospital),

(b)   

section 84(2) of the 1983 Act (removal from Islands), and

(c)   

section 10(3)(a) of the Colonial Prisoners Removal Act 1884 (c. 31)

(criminal lunatics).

(4)   

In section 81(7) of the 1983 Act (removal to Northern Ireland: expiry of

10

restriction order or direction) omit (in each place) “restriction order or”.

(5)   

In section 81A(3) of the 1983 Act (transfer of responsibility for patient to

Northern Ireland: expiry of restriction order or direction)—

(a)   

omit (in each place) “restriction order or”, and

(b)   

omit “order or”.

15

(6)   

In section 91(2) of the 1983 Act (patients removed from England and Wales:

revival of order on return) omit the words “at any time before the end of the

period for which those orders would have continued in force”.

(7)   

But subsections (3) to (6) shall have no effect in respect of—

(a)   

a restriction order for a specified period made before subsection (1)

20

comes into force, or

(b)   

an order made outside England and Wales which is treated under the

1983 Act as if it were a restriction order for a specified period.

34      

Conditionally discharged patients subject to limitation directions

In section 75(3) of the 1983 Act (power of Mental Health Review Tribunal to

25

direct that restriction order, etc. is to cease to have effect)—

(a)   

in paragraph (b), after “restriction order”, insert “, limitation direction”,

and

(b)   

after “hospital order”, insert “, hospital direction”.

Chapter 8

30

Miscellaneous

35      

Delegation of powers of managers of NHS foundation trusts

(1)   

In section 23(6) of the 1983 Act (delegation of NHS foundation trust’s power to

discharge patients), for the words from “non-executive directors” to the end

substitute “persons authorised by the board of the trust in that behalf each of

35

whom is neither an executive director of the board nor an employee of the

trust.”

(2)   

In section 32(3) of the 1983 Act (power to make provision about how hospital

managers’ functions under Part 2 of that Act are to be exercised), after “23(4)”

insert “and (6)”.

40

 
 

Mental Health Bill [HL]
Part 1 — Amendments to Mental Health Act 1983
Chapter 8 — Miscellaneous

34

 

(3)   

After section 142A of the 1983 Act (inserted by section 16 of this Act), insert—

“142B   

Delegation of powers of managers of NHS foundation trusts

(1)   

The constitution of an NHS foundation trust may not provide for a

function under this Act to be delegated otherwise than in accordance

with provision made by or under this Act.

5

(2)   

Paragraph 15(3) of Schedule 7 to the National Health Service Act 2006

(which provides that the powers of a public benefit corporation may be

delegated to a committee of directors or to an executive director) shall

have effect subject to this section.”

36      

Local Health Boards

10

(1)   

The 1983 Act is amended as follows.

(2)   

In section 19(3) (removal of patients), after “NHS foundation trust”, in each

place, insert “, Local Health Board”.

(3)   

In section 145(1) (interpretation)—

(a)   

in the definition of “hospital”, after paragraph (b) insert “; and

15

(c)   

any hospital as defined by section 206 of the National

Health Service (Wales) Act 2006 which is vested in a

Local Health Board;”, and

(b)   

in the definition of “the managers”, after paragraph (bc) insert—

“(bd)   

in relation to a hospital vested in a Local Health Board,

20

the Board;”.

37      

Welsh Ministers: procedure for instruments

(1)   

Section 143 of the 1983 Act (general provisions as to regulations, orders and

rules) is amended as follows.

(2)   

In subsection (2), for “or rules made” substitute “made by the Secretary of State,

25

or rules made,”.

(3)   

After subsection (3) insert—

“(3A)   

Subsections (3B) to (3D) apply where power to make regulations or an

order under this Act is conferred on the Welsh Ministers (other than by

or by virtue of the Government of Wales Act 2006).

30

(3B)   

Any power of the Welsh Ministers to make regulations or an order shall

be exercisable by statutory instrument.

(3C)   

Any statutory instrument containing regulations, or an order under

section 68A(7) above, made by the Welsh Ministers shall be subject to

annulment in pursuance of a resolution of the National Assembly for

35

Wales.

(3D)   

No order shall be made under section 68A(1) above by the Welsh

Ministers unless a draft of it has been approved by a resolution of the

National Assembly for Wales.

(3E)   

In this section—

40

(a)   

references to the Secretary of State include the Secretary of State

and the Welsh Ministers acting jointly; and

 
 

Mental Health Bill [HL]
Part 2 — Amendments to Mental Capacity Act 2005

35

 

(b)   

references to the Welsh Ministers include the Welsh Ministers

and the Secretary of State acting jointly.”

Part 2

Amendments to Mental Capacity Act 2005

38      

Mental Capacity Act 2005: deprivation of liberty

5

(1)   

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

(2)   

After section 4 insert—

“4A     

Restriction on deprivation of liberty

(1)   

This Act does not authorise any person (“D”) to deprive any other

person (“P”) of his liberty.

10

(2)   

But that is subject to—

(a)   

the following provisions of this section, and

(b)   

section 4B.

(3)   

D may deprive P of his liberty if, by doing so, D is giving effect to a

relevant decision of the court.

15

(4)   

A relevant decision of the court is a decision made by an order under

section 16(2)(a) in relation to a matter concerning P’s personal welfare.

(5)   

D may deprive P of his liberty if the deprivation is authorised by

Schedule A1 (hospital and care home residents: deprivation of liberty).

4B      

Deprivation of liberty necessary for life-sustaining treatment etc

20

(1)   

If the following conditions are met, D is authorised to deprive P of his

liberty while a decision as respects any relevant issue is sought from the

court.

(2)   

The first condition is that there is a question about whether D is

authorised to deprive P of his liberty under section 4A.

25

(3)   

The second condition is that the deprivation of liberty—

(a)   

is wholly or partly for the purpose of—

(i)   

giving P life-sustaining treatment, or

(ii)   

doing any vital act, or

(b)   

consists wholly or partly of—

30

(i)   

giving P life-sustaining treatment, or

(ii)   

doing any vital act.

(4)   

The third condition is that the deprivation of liberty is necessary in

order to—

(a)   

give the life-sustaining treatment, or

35

(b)   

do the vital act.

(5)   

A vital act is any act which the person doing it reasonably believes to

be necessary to prevent a serious deterioration in P’s condition.”

 
 

Mental Health Bill [HL]
Part 2 — Amendments to Mental Capacity Act 2005

36

 

(3)   

After section 16 insert—

“16A    

Section 16 powers: Mental Health Act patients etc

(1)   

If a person is ineligible to be deprived of liberty by this Act, the court

may not include in a welfare order provision which authorises the

person to be deprived of his liberty.

5

(2)   

If—

(a)   

a welfare order includes provision which authorises a person to

be deprived of his liberty, and

(b)   

that person becomes ineligible to be deprived of liberty by this

Act,

10

   

the provision ceases to have effect for as long as the person remains

ineligible.

(3)   

Nothing in subsection (2) affects the power of the court under section

16(7) to vary or discharge the welfare order.

(4)   

For the purposes of this section—

15

(a)   

Schedule 1A applies for determining whether or not P is

ineligible to be deprived of liberty by this Act;

(b)   

“welfare order” means an order under section 16(2)(a).”

(4)   

Omit the following provisions (which make specific provision about

deprivation of liberty)—

20

(a)   

section 6(5);

(b)   

section 11(6);

(c)   

section 20(13).

(5)   

Schedule 6 (which inserts the new Schedule A1 into the Mental Capacity Act

2005 (c. 9)) has effect.

25

(6)   

Schedule 7 (which inserts the new Schedule 1A into the Mental Capacity Act

2005) has effect.

(7)   

Schedule 8 (which makes other amendments to the Mental Capacity Act 2005

and to other Acts) has effect.

(8)   

In subsection (9)—

30

“GOWA 1998” means the Government of Wales Act 1998 (c. 38);

“GOWA 2006” means the Government of Wales Act 2006 (c. 32);

“initial period” has the same meaning as in Schedule 11 to GOWA 2006.

(9)   

If this Act is passed after the end of the initial period, the functions conferred

on the National Assembly for Wales by virtue of any provision of this Part of

35

this Act are to be treated for the purposes of Schedule 11 to GOWA 2006 as if

they—

(a)   

had been conferred on the Assembly constituted by GOWA 1998 by an

Act passed before the end of the initial period, and

(b)   

were exercisable by that Assembly immediately before the end of the

40

initial period.

(10)   

If relevant functions are transferred to the Welsh Ministers (whether by virtue

of subsection (9) or otherwise), any relevant regulations made after the transfer

are subject to annulment in pursuance of a resolution of the National Assembly

for Wales.

45

 
 

Mental Health Bill [HL]
Part 3 — General

37

 

(11)   

In subsection (10)—

“relevant functions” means functions conferred by a provision of

Schedule A1 to the Mental Capacity Act 2005 (c. 9) specified in the first

column of the following table;

“relevant regulations”, in relation to relevant functions, means

5

regulations made under the provision of that Schedule specified in the

corresponding entry in the second column of the table.

 

Provision conferring function

Provision conferring

 
  

regulation-making power

 
 

Paragraph 154 (making regulations

Paragraph 154 (power to make

 

10

 

about monitoring)

regulations about monitoring)

 
 

Paragraph 156 (giving directions

Paragraph 158 (power to make

 
 

about supervisory functions)

regulations containing directions)

 

39      

Amendment to section 20(11) of Mental Capacity Act 2005

In section 20 of the Mental Capacity Act 2005 (restrictions on deputies), in

15

subsection (11)(a), for “or” substitute “and”.

Part 3

General

40      

Meaning of “1983 Act”

In this Act “the 1983 Act” means the Mental Health Act 1983 (c. 20).

20

41      

Transitional provisions and savings

Schedule 9 (which contains transitional provisions and savings) has effect.

42      

Consequential provisions

(1)   

The Secretary of State may by order made by statutory instrument make

supplementary, incidental or consequential provision for the purposes of, in

25

consequence of, or for giving full effect to a provision of this Act.

(2)   

An order under subsection (1) may, in particular—

(a)   

amend or repeal any provision of an Act passed before, or in the same

Session as, this Act;

(b)   

amend or revoke any provision of subordinate legislation made before

30

the passing of this Act;

(c)   

include transitional or saving provision in connection with the coming

into force of provision made by the order.

(3)   

In relation to provision which deals with matters with respect to which

functions are exercisable by the Welsh Ministers—

35

(a)   

the power under subsection (1) is exercisable by the Secretary of State

only with agreement of the Welsh Ministers, and

 
 

Mental Health Bill [HL]
Part 3 — General

38

 

(b)   

the power under that subsection is also exercisable by the Welsh

Ministers except that provision may not be made by virtue of

subsection (2)(a).

(4)   

The amendments that may be made by virtue of subsection (2) are in addition

to those made by or by virtue of any other provision of this Act.

5

(5)   

A statutory instrument containing an order under subsection (1) which makes

provision by virtue of subsection (2)(a) may not be made unless a draft of the

instrument has been laid before and approved by a resolution of each House of

Parliament.

(6)   

A statutory instrument containing any other order under subsection (1) made

10

by the Secretary of State is subject to annulment in pursuance of a resolution of

either House of Parliament.

(7)   

A statutory instrument containing an order under subsection (1) made by the

Welsh Ministers is subject to annulment in pursuance of a resolution of the

National Assembly for Wales.

15

(8)   

In subsection (2), “subordinate legislation” has the same meaning as in the

Interpretation Act 1978 (c. 30).

43      

Repeals and revocations

The enactments mentioned in Schedule 10 are repealed or revoked to the extent

specified.

20

44      

Commencement

(1)   

This Act (other than sections 39 to 41 (and Schedule 9), this section and sections

45 to 47) comes into force in accordance with provision made by the Secretary

of State by order made by statutory instrument.

(2)   

In relation to provision which deals with matters with respect to which

25

functions are exercisable by the Welsh Ministers, the power under subsection

(1) is exercisable only with their agreement.

(3)   

Section 39 comes into force in accordance with provision made by the Lord

Chancellor by order made by statutory instrument.

(4)   

An order under this section may—

30

(a)   

make different provision for different purposes or different areas;

(b)   

include transitional or saving provision.

(5)   

The provision which may be made by virtue of subsection (4)(b) includes

provision modifying the application of a provision of this Act pending the

commencement of a provision of another enactment.

35

45      

Commencement of section 29

(1)   

An order under section 44 providing for the commencement of section 29 may,

in particular, provide—

(a)   

for that section not to apply to or affect a patient who is subject to after-

care under supervision immediately before that commencement, and

40

 
 

 
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