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Mental Health Bill [HL]


Mental Health Bill [HL]
Schedule 5 — Cross-border arrangements
Part 1 — Amendments to Part 6 of 1983 Act

67

 

(b)   

if the enactment to which he was subject in Scotland was an

enactment contained in the Criminal Procedure (Scotland)

Act 1995, the corresponding enactment is section 37 of this

Act.

(4)   

“The responsible hospital”, in the case of a patient in respect of whom

5

a community treatment order is in force by virtue of subsection (2)

above, means the hospital to which he is treated as having been

admitted by virtue of that subsection, subject to section 19A above.

(5)   

As soon as practicable after the patient’s arrival at the place where he

is to reside in England or Wales, the responsible clinician shall

10

specify the conditions to which he is to be subject for the purposes of

section 17B(1) above, and the conditions shall be deemed to be

specified in the community treatment order.

(6)   

But the responsible clinician may only specify conditions under

subsection (5) above which an approved mental health professional

15

agrees should be specified.

80D     

Transfer of conditionally discharged patients from Scotland

(1)   

This section applies to a patient who is subject to—

(a)   

a restriction order under section 59 of the Criminal Procedure

(Scotland) Act 1995; and

20

(b)   

a conditional discharge under section 193(7) of the Mental

Health (Care and Treatment) (Scotland) Act 2003 (“the 2003

Act”).

(2)   

A transfer of the patient to England and Wales under regulations

made under section 290 of the 2003 Act shall have effect only if the

25

Secretary of State has consented to the transfer.

(3)   

If a transfer under those regulations has effect, the patient shall be

treated as if—

(a)   

on the date of the transfer he had been conditionally

discharged under section 42 or 73 above; and

30

(b)   

he were subject to a hospital order under section 37 above

and a restriction order under section 41 above.

(4)   

If the restriction order to which the patient was subject immediately

before the transfer was of limited duration, the restriction order to

which he is subject by virtue of subsection (3) above shall expire on

35

the date on which the first-mentioned order would have expired if

the transfer had not been made.”

      (2)  

This paragraph does not extend to Scotland.

Transfer of patients: Northern Ireland

5          

In section 81 (removal of patients to Northern Ireland), in subsection (2), for

40

the words from “where he is” to “the corresponding enactment” substitute

“where he is subject to a hospital order and a restriction order or a transfer

direction and a restriction direction under any enactment in this Act, as if he

were subject to a hospital order and a restriction order or a transfer direction

and a restriction direction under the corresponding enactment”.

45

 

 

Mental Health Bill [HL]
Schedule 5 — Cross-border arrangements
Part 1 — Amendments to Part 6 of 1983 Act

68

 

6          

After that section insert—

“81ZA   

Removal of community patients to Northern Ireland

(1)   

Section 81 above shall apply in the case of a community patient as it

applies in the case of a patient who is for the time being liable to be

detained under this Act, as if the community patient were so liable.

5

(2)   

Any reference in that section to the application, order or direction by

virtue of which a patient is liable to be detained under this Act shall

be construed, for these purposes, as a reference to the application,

order or direction under this Act in respect of the patient.”

7     (1)  

Section 81A (transfer of responsibility for patients to Northern Ireland) is

10

amended as follows.

      (2)  

For subsection (1)(a) substitute—

“(a)   

is subject to a hospital order under section 37 above and a

restriction order under section 41 above or to a transfer

direction under section 47 above and a restriction direction

15

under section 49 above;”

      (3)  

In subsection (2)(b), for “a restriction order or restriction direction”

substitute “a hospital order and a restriction order, or to a transfer direction

and a restriction direction,”.

8          

In section 82 (removal to England and Wales of patients from Northern

20

Ireland), in subsection (2), for the words from “where he is” to “the

corresponding enactment” substitute “where he is subject to a hospital order

and a restriction order or a transfer direction and a restriction direction

under any enactment in that Order, as if he were subject to a hospital order

and a restriction order or a transfer direction and a restriction direction

25

under the corresponding enactment”.

9          

In section 82A (the title to which becomes “Transfer of responsibility for

conditionally discharged patients to England and Wales from Northern

Ireland), for subsection (2)(b) substitute—

“(b)   

as if he were subject to a hospital order under section 37

30

above and a restriction order under section 41 above or to a

transfer direction under section 47 above and a restriction

direction under section 49 above.”

Transfer of patients: Channel Islands and Isle of Man

10         

Before section 83A (the title to which becomes “Transfer of responsibility for

35

conditionally discharged patients to Channel Islands or Isle of Man”)

insert—

“83ZA   

Removal or transfer of community patients to Channel Islands or Isle

of Man

(1)   

Section 83 above shall apply in the case of a community patient as it

40

applies in the case of a patient who is for the time being liable to be

detained under this Act, as if the community patient were so liable.

(2)   

But if there are in force in any of the Channel Islands or the Isle of

Man enactments (“relevant enactments”) corresponding or similar to

those relating to community patients in this Act—

45

 

 

Mental Health Bill [HL]
Schedule 5 — Cross-border arrangements
Part 1 — Amendments to Part 6 of 1983 Act

69

 

(a)   

subsection (1) above shall not apply as regards that island;

and

(b)   

subsections (3) to (6) below shall apply instead.

(3)   

If it appears to the appropriate national authority, in the case of a

community patient, that the conditions mentioned in subsection (4)

5

below are met, the authority may authorise the transfer of

responsibility for him to the island in question.

(4)   

The conditions are—

(a)   

a transfer under subsection (3) above is in the patient’s

interests; and

10

(b)   

arrangements have been made for dealing with him under

the relevant enactments.

(5)   

But the authority may not act under subsection (3) above while the

patient is recalled to hospital under section 17E above.

(6)   

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

15

(a)   

in relation to a community patient in respect of whom the

responsible hospital is in England, the Secretary of State;

(b)   

in relation to a community patient in respect of whom the

responsible hospital is in Wales, the Welsh Ministers.”

11         

In section 85 (patients removed from Channel Islands or Isle of Man), in

20

subsection (2), for “to a restriction order or restriction direction” substitute

“to a hospital order and a restriction order or to a hospital direction and a

limitation direction or to a transfer direction and a restriction direction”.

12         

Before section 85A (the title to which becomes “Responsibility for

conditionally discharged patients transferred from Channel Islands or Isle of

25

Man”) insert—

“85ZA   

Responsibility for community patients transferred from Channel

Islands or Isle of Man

(1)   

This section shall have effect if there are in force in any of the

Channel Islands or the Isle of Man enactments (“relevant

30

enactments”) corresponding or similar to those relating to

community patients in this Act.

(2)   

If responsibility for a patient is transferred to England and Wales

under a provision corresponding to section 83ZA(3) above, he shall

be treated as if on the date of his arrival at the place where he is to

35

reside in England or Wales—

(a)   

he had been admitted to the hospital in pursuance of an

application made, or an order or direction made or given, on

that date under the enactment in force in England and Wales

which most closely corresponds to the relevant enactments;

40

and

(b)   

a community treatment order had then been made

discharging him from the hospital.

(3)   

“The responsible hospital”, in his case, means the hospital to which

he is treated as having been admitted by virtue of subsection (2)

45

above, subject to section 19A above.

 

 

Mental Health Bill [HL]
Schedule 5 — Cross-border arrangements
Part 1 — Amendments to Part 6 of 1983 Act

70

 

(4)   

As soon as practicable after the patient’s arrival at the place where he

is to reside in England or Wales, the responsible clinician shall

specify the conditions to which he is to be subject for the purposes of

section 17B(1) above, and the conditions shall be deemed to be

specified in the community treatment order.

5

(5)   

But the responsible clinician may only specify conditions under

subsection (4) above which an approved mental health professional

agrees should be specified.”

13    (1)  

Section 85A is amended as follows.

      (2)  

For subsection (2)(b) substitute—

10

“(b)   

as if he were subject to a hospital order under section 37

above and a restriction order under section 41 above, or to a

hospital direction and a limitation direction under section

45A above, or to a transfer direction under section 47 above

and a restriction direction under section 49 above.”

15

      (3)  

In subsection (3) after “restriction order” insert “, limitation direction”.

Patients absent from hospitals in England and Wales

14    (1)  

Section 88 (patients absent from hospitals in England and Wales) is amended

as follows.

      (2)  

In subsection (1) for the words from “any other part” to the end substitute

20

“Scotland or Northern Ireland”.

      (3)  

For subsection (2) substitute—

“(2)   

For the purposes of the enactments referred to in subsection (1)

above in their application by virtue of this section, the expression

“constable” includes—

25

(a)   

in Scotland, a Scottish constable;

(b)   

in Northern Ireland, an officer or constable of the Police

Service of Northern Ireland.”

      (4)  

In subsection (3) omit the words “to Scotland or Northern Ireland”.

Regulations for purposes of Part 6

30

15         

In section 90 (regulations for purposes of Part 6), for the words from “and to

regulations” to the end substitute “, so far as this Part of this Act applies to

patients removed to England and Wales or for whom responsibility is

transferred to England and Wales.”

General provisions as to patients removed from England and Wales

35

16         

In section 91 (general provisions as to patients removed from England and

Wales), after subsection (2) insert—

“(2A)   

Where responsibility for a community patient is transferred to a

jurisdiction outside England and Wales (or such a patient is removed

outside England and Wales) in pursuance of arrangements under

40

this Part of this Act, the application, order or direction mentioned in

subsection (1) above in force in respect of him shall cease to have

 

 

Mental Health Bill [HL]
Schedule 5 — Cross-border arrangements
Part 2 — Related amendments

71

 

effect on the date on which responsibility is so transferred (or he is so

removed) in pursuance of those arrangements.”

Interpretation

17         

In section 92 (interpretation of Part 6), after subsection (1) insert—

“(1A)   

References in this Part of this Act to the responsible clinician shall be

5

construed as references to the responsible clinician within the

meaning of Part 2 of this Act.”

Part 2

Related amendments

The 1983 Act

10

18         

In section 69 of the 1983 Act (applications to tribunals concerning patients

subject to hospital and guardianship orders), in subsection (2)(a)—

(a)   

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

(b)   

for the words from “, 82(2) or” to the end substitute “or section

80B(2), 82(2) or 85(2) below.”

15

19    (1)  

Section 79 of that Act (interpretation of Part 5) is amended as follows.

      (2)  

In subsection (1), for paragraph (c) substitute—

“(c)   

is treated as subject to a hospital order and a restriction order,

or to a hospital direction and a limitation direction, or to a

transfer direction and a restriction direction, by virtue of any

20

provision of Part 6 of this Act (except section 80D(3), 82A(2)

or 85A(2) below),”.

      (3)  

In subsection (5)—

(a)   

after “the relevant hospital order,” insert “the relevant hospital

direction,”,

25

(b)   

after “the restriction order” insert “, the limitation direction”,

(c)   

after “the hospital order,” insert “hospital direction,”, and

(d)   

after “restriction order,” insert “limitation direction,”.

      (4)  

After that subsection insert—

“(5A)   

Section 75 above shall, subject to the modifications in subsection (5C)

30

below, have effect in relation to a qualifying patient as it has effect in

relation to a restricted patient who is conditionally discharged under

section 42(2), 73 or 74 above.

(5B)   

A patient is a qualifying patient if he is treated by virtue of section

80D(3), 82A(2) or 85A(2) below as if he had been conditionally

35

discharged and were subject to a hospital order and a restriction

order, or to a hospital direction and a limitation direction, or to a

transfer direction and a restriction direction.

(5C)   

The modifications mentioned in subsection (5A) above are—

(a)   

references to the relevant hospital order, hospital direction or

40

transfer direction, or to the restriction order, limitation

direction or restriction direction to which the patient is

 

 

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

72

 

subject, shall be construed as references to the hospital order,

hospital direction or transfer direction, or restriction order,

limitation direction or restriction direction, to which the

patient is treated as subject by virtue of section 80D(3), 82A(2)

or 85A(2) below; and

5

(b)   

the reference to the date on which the patient was

conditionally discharged shall be construed as a reference to

the date on which he was treated as conditionally discharged

by virtue of a provision mentioned in paragraph (a) above.”

Mental Health (Care and Treatment) (Scotland) Act 2003 (Consequential Provisions) Order

10

2005 (S.I. 2005/2078)

20    (1)  

The Mental Health (Care and Treatment) (Scotland) Act 2003 (Consequential

Provisions) Order 2005 is amended as follows.

      (2)  

Omit the following provisions—

(a)   

article 1(5),

15

(b)   

article 2, and

(c)   

article 3.

      (3)  

In article 8 (the title to which becomes “Patients absent from hospitals or

other places in Scotland”), in paragraph (1)(b), after “section” insert “289,”.

      (4)  

In article 12(2), for “2 to 11” substitute “4 to 11”.

20

Schedule 6

Section 38

 

Mental Capacity Act 2005: new Schedule A1

           

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

“Schedule A1

Hospital and care home residents: deprivation of liberty

25

Part 1

Authorisation to deprive residents of liberty etc

Application of Part

1     (1)  

This Part applies if the following conditions are met.

      (2)  

The first condition is that a person (“P”) is detained in a hospital or

30

care home — for the purpose of being given care or treatment —

in circumstances which amount to deprivation of the person’s

liberty.

      (3)  

The second condition is that a standard or urgent authorisation is

in force.

35

      (4)  

The third condition is that the standard or urgent authorisation

relates—

(a)   

to P, and

 

 

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

73

 

(b)   

to the hospital or care home in which P is detained.

Authorisation to deprive P of liberty

2          

The managing authority of the hospital or care home may deprive

P of his liberty by detaining him as mentioned in paragraph 1(2).

No liability for acts done for purpose of depriving P of liberty

5

3     (1)  

This paragraph applies to any act which a person (“D”) does for

the purpose of detaining P as mentioned in paragraph 1(2).

      (2)  

D does not incur any liability in relation to the act that he would

not have incurred if P—

(a)   

had had capacity to consent in relation to D’s doing the act,

10

and

(b)   

had consented to D’s doing the act.

No protection for negligent acts etc

4     (1)  

Paragraphs 2 and 3 do not exclude a person’s civil liability for loss

or damage, or his criminal liability, resulting from his negligence

15

in doing any thing.

      (2)  

Paragraphs 2 and 3 do not authorise a person to do anything

otherwise than for the purpose of the standard or urgent

authorisation that is in force.

      (3)  

In a case where a standard authorisation is in force, paragraphs 2

20

and 3 do not authorise a person to do anything which does not

comply with the conditions (if any) included in the authorisation.

Part 2

Interpretation: main terms

Introduction

25

5          

This Part applies for the purposes of this Schedule.

Detained resident

6          

“Detained resident” means a person detained in a hospital or care

home — for the purpose of being given care or treatment — in

circumstances which amount to deprivation of the person’s

30

liberty.

Relevant person etc

7          

In relation to a person who is, or is to be, a detained resident—

“relevant person” means the person in question;

“relevant hospital or care home” means the hospital or care

35

home in question;

“relevant care or treatment” means the care or treatment in

question.

 

 

 
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