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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

27

 

64I     

Liability for negligence

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

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

5

treatment

(1)   

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

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

circumstances so far as they are reasonably ascertainable, including the

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

10

(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

(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

15

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

(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

20

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,

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

accordance with that Act.

25

(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.

(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.”

30

(2)   

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

118)—

(a)   

in subsection (2)—

(i)   

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

(ii)   

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

35

“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

(iii)   

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

(b)   

after subsection (2) insert—

40

“(3)   

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

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

Act 2000.”

 
 

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

28

 

(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

5

Health Act applies (treatment of community patients not recalled to

hospital).”

(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”.

30      

Repeal of provisions for after-care under supervision

10

(1)   

The 1983 Act is amended as follows.

(2)   

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

(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)”.

15

(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),

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

Chapter 5

Mental Health Review Tribunals

20

31      

References

(1)   

The 1983 Act is amended as follows.

(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

25

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

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

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

30

(b)   

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

within the period during which he can be taken into custody

under section 18 above.”

(3)   

For section 68 substitute—

“68     

Duty of managers of hospitals to refer cases to tribunal

35

(1)   

This section applies in respect of the following patients—

(a)   

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

application for admission for assessment;

(b)   

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

application for admission for treatment;

40

 
 

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

29

 

(c)   

a community patient;

(d)   

a patient whose community treatment order is revoked under

section 17F above;

(e)   

a patient who is transferred from guardianship to a hospital in

pursuance of regulations made under section 19 above.

5

(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

Mental Health Review Tribunal.

(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

10

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

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

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

15

application for admission for assessment; or

(c)   

a reference has been made in respect of the patient under

subsection (7) below.

(4)   

A person who applies to a tribunal but subsequently withdraws his

application shall be treated for these purposes as not having exercised

20

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.

(5)   

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

(a)   

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

25

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

pursuance of an application for admission for treatment—

(i)   

the day on which the patient was so admitted; or

30

(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

admitted in pursuance of the application for admission

for assessment;

35

(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

may be, of paragraph (b) above;

(d)   

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

40

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,

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

45

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

 
 

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

30

 

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

5

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.

10

(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.

15

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

20

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

25

(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

30

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;

35

(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

40

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

45

authorise the managers of a hospital determined in accordance with the

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

 
 

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

31

 

(6)   

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

order—

(a)   

may make different provision for different cases;

(b)   

may make provision which applies subject to specified

exceptions.

5

(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

consequence of the order as it thinks fit.

(8)   

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

10

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;

(b)   

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

15

(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

State thinks fit.”

20

(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

(b)   

in subsection (3)—

25

(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

restrictions)—

30

(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—

“10        

In section 68—

35

(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.”

32      

Organisation

40

(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—

 
 

Mental Health Bill [HL]
Part 1 — Amendments to Mental Health Act 1983
Chapter 6 — Cross-border patients

32

 

(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.”

5

(3)   

In section 78 (procedure of tribunals)—

(a)   

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

“President”,

(b)   

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

(c)   

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

10

(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—

“(7)   

For the purposes of this Part of this Act—

(a)   

the area of the Mental Health Review Tribunal for England is

15

England; and

(b)   

the area of the Mental Health Review Tribunal for Wales is

Wales.”

(5)   

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

subsections (6) to (9).

20

(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

that tribunal.

      (2)  

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

25

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

tribunal.”

(7)   

In paragraph 4—

(a)   

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

(b)   

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

30

(8)   

In paragraph 5—

(a)   

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

(b)   

for “any other” substitute “the other”.

(9)   

In paragraph 6—

(a)   

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

35

(b)   

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

Chapter 6

Cross-border patients

33      

Cross-border arrangements

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

40

amendments) has effect.

 
 

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

33

 

Chapter 7

Restricted patients

34      

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”.

5

(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”—

10

(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

15

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”.

20

(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)

25

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.

35      

Conditionally discharged patients subject to limitation directions

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

30

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

35

Miscellaneous

36      

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

40

 
 

 
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