Mental Health Bill [HL]
SECOND
MARSHALLED
LIST OF AMENDMENTS
TO BE MOVED
ON REPORT
The amendments have been marshalled in accordance with the Order of 5th February 2007, as follows—
Clause 21
Schedule 2
Clauses 22 to 26
Schedules 3 and 4
Clauses 27 to 33
Schedule 5
Clauses 34 to 39 | Schedules 6 to 8
Clauses 40 to 42
Schedule 9
Clauses 43 and 44
Schedule 10
Clauses 45 to 48 |
[Amendments marked * are new or have been altered]
Amendment
No.
| | LORD WILLIAMSON OF HORTON
BARONESS MURPHY
EARL HOWE
BARONESS MEACHER |
| 25 | Insert the following new Clause— |
| | "Children and young people |
| | After section 142 of the 1983 Act insert— |
| "142A | Admission to age appropriate setting |
| | In the case of an application for admission for assessment and treatment for a mental disorder, whether voluntary or not, in the case of any child or young person under the age of 18 years, a clinician with specialist training in child or adolescent mental health shall assess the needs of the child or young person and a PCT or equivalent health board shall provide for such services and accommodation as are sufficient for the particular needs of that child or young person. |
| 142B | Medical assessment by a CAMHS specialist prior to imposition of compulsion for a child or young person |
| | In the case of a minor under the age of 18, who is admitted for assessment under section 2 or admitted for treatment under section 3, one recommendation as specified in these sections shall, except in an emergency where no child or adolescent mental health specialist is available, be made by a qualified child and adolescent registered medical practitioner. |
| | Wherever under any provision of this Act a responsible clinician is to be appointed if the patient is a minor under 18 that clinician shall, except in an emergency where no child and adolescent mental health specialist is available, be a child and adolescent mental health specialist."" |
| 26 | Insert the following new Clause— |
| (1) | The 1983 Act is amended as follows. |
| (2) | In section 11 (general provisions as to applications), after subsection (1) insert— |
| "(1A) | No application mentioned in subsection (1) above shall be made by an approved mental health professional if the circumstances are such that there would be a potential conflict of interest for the purposes of regulations under section 12A below." |
| (3) | In section 12 (general provisions as to medical recommendations), in subsection (1), after "this Part of this Act" insert "or a guardianship application". |
| (4) | In that section, for subsections (3) to (7) substitute— |
| "(3) | No medical recommendation shall be given for the purposes of an application mentioned in subsection (1) above if the circumstances are such that there would be a potential conflict of interest for the purposes of regulations under section 12A below." |
| (5) | After that section insert— |
| "12A | Conflicts of interest |
| (1) | The appropriate national authority may make regulations as to the circumstances in which there would be a potential conflict of interest such that— |
| (a) | an approved mental health professional shall not make an application mentioned in section 11(1) above; |
| (b) | a registered medical practitioner shall not give a recommendation for the purposes of an application mentioned in section 12(1) above. |
| (2) | Regulations under subsection (1) above may make— |
| (a) | provision for the prohibitions in paragraphs (a) and (b) of that subsection to be subject to specified exceptions; |
| (b) | different provision for different cases; and |
| (c) | transitional, consequential, incidental or supplemental provision. |
| (3) | In subsection (1) above, "the appropriate national authority" means— |
| (a) | in relation to applications in which admission is sought to a hospital in England or to guardianship applications in respect of which the area of the relevant local social services authority is in England, the Secretary of State; |
| (b) | in relation to applications in which admission is sought to a hospital in Wales or to guardianship applications in respect of which the area of the relevant local social services authority is in Wales, the Welsh Ministers. |
| (4) | References in this section to the relevant local social services authority, in relation to a guardianship application, are references to the local social services authority named in the application as guardian or (as the case may be) the local social services authority for the area in which the person so named resides." |
| (6) | In section 13 (duty to make applications for admission or guardianship), in subsection (5), after "section 11(4) above" insert "or of regulations under section 12A above"." |
| | EARL HOWE
LORD CARLILE OF BERRIEW
LORD RAMSBOTHAM |
| 27 | Insert the following new Clause— |
| | "Duty of Secretary of State |
| | In section 47(1) (removal to hospital of persons serving sentences of imprisonment, etc.) of the 1983 Act leave out the words after paragraph (b) to the end of that subsection and insert "the Secretary of State must by warrant direct that that person be removed and detained in such a hospital as may be specified in the direction, and a direction under this section shall be known as "a transfer direction""." |
| | LORD CARLILE OF BERRIEW
EARL HOWE
LORD RAMSBOTHAM |
| 28 | Insert the following new Clause— |
"CHAPTER 2A
| | Criminal justice system amendments |
| | Court Mental Health Report for those remanded on bail |
| | Before section 35 (remand to hospital for report on accused's mental condition) of the 1983 Act, insert— |
| "34A | Remand on bail for a mental health report |
| (1) | In relation to the Crown Court, this section applies to a person who— |
| (a) | has been sent for trial before the court for an offence punishable with imprisonment and has not yet been sentenced or otherwise dealt with for it (unless he has been convicted of the offence and the sentence is fixed by law), |
| (b) | has been committed to the court to be sentenced for such an offence and has not yet been sectioned or otherwise dealt with for it, or |
| (c) | has been committed to the court under section 43 and has not yet been dealt with under that section. |
| (2) | In relation to a magistrates' court, this section applies to a person who has appeared before the court charged with an offence punishable on summary conviction with imprisonment and has not yet been sentenced or otherwise dealt with for it. |
| (3) | Subsections (4) and (5) apply if the court— |
| (a) | remands on bail a person to whom this section applies, and |
| (b) | is satisfied on the evidence of a registered medical practitioner that there is reason to suspect that the person is suffering from mental disorder. |
| (4) | The court may require the appropriate authority to arrange for an approved clinician to prepare a report on— |
| (a) | the person's mental condition, or |
| (b) | the appropriate medical treatment for that condition, |
| | (or both) in order to assist the court in dealing with the person for the offence. |
| (5) | The court may specify any particular matters which are to be included in the report (including an assessment of the risk posed by the person to members of the public)."" |
| 29 | Insert the following new Clause— |
| | "Resolving disputes as to receiving hospitals |
| (1) | The 1983 Act is amended as follows. |
| (2) | In section 35 (remand to hospital for report on accused's mental condition), after subsection (4), insert— |
| "(4A) | Where a court has remanded an accused person under this section and hospital trusts cannot agree to which hospital a person should be sent, the Secretary of State shall resolve the dispute." |
| (3) | In section 36 (remand of accused person to hospital for treatment), after subsection (3), insert— |
| "(3A) | Where a court has remanded an accused person under this section and hospital trusts cannot agree to which hospital a person should be sent, the Secretary of State shall resolve the dispute."" |
| 30 | Insert the following new Clause— |
| | "Electro-convulsive therapy, etc. |
| | After section 58 of the 1983 Act insert— |
| "58A | Electro-convulsive therapy, etc. |
| (1) | This section applies to the following forms of medical treatment for mental disorder— |
| (a) | electro-convulsive therapy; and |
| (b) | such other forms of treatment as may be specified for the purposes of this section by regulations made by the appropriate national authority. |
| (2) | Subject to section 62 below, a patient shall be not be given any form of treatment to which this section applies unless he falls within subsection (3) or (4) below. |
| (3) | A patient falls within this subsection if— |
| (a) | he has consented to the treatment in question; and |
| (b) | either the approved clinician in charge of it or a registered medical practitioner appointed as mentioned in section 58(3) above has certified in writing that the patient is capable of understanding the nature, purpose and likely effects of the treatment and has consented to it. |
| (4) | A patient falls within this subsection if a registered medical practitioner appointed as aforesaid (not being the approved clinician in charge of the treatment in question) has certified in writing— |
| (a) | that the patient is not capable of understanding the nature, purpose and likely effects of the treatment; but |
| (b) | that it is appropriate for the treatment to be given; and |
| (c) | that giving him the treatment would not conflict with— |
| (i) | an advance decision which the registered medical practitioner concerned is satisfied is valid and applicable; |
| (ii) | a decision made by a donee or deputy or by the Court of Protection; or |
| (iii) | an order of a court. |
| (5) | Before giving a certificate under subsection (4) above the registered medical practitioner concerned shall consult two other persons who have been professionally concerned with the patient's medical treatment, and of those persons one shall be a nurse and the other shall be neither a nurse nor a registered medical practitioner nor the responsible clinician. |
| (6) | Before making any regulations for the purposes of this section, the appropriate national authority shall consult such bodies as appear to it to be concerned. |
| (a) | a reference to an advance decision is to an advance decision (within the meaning of the Mental Capacity Act 2005) made by the patient; |
| (b) | "valid and applicable", in relation to such a decision, means valid and applicable to the treatment in question in accordance with section 25 of that Act; |
| (c) | a reference to a donee is to a donee of a lasting power of attorney (within the meaning of section 9 of that Act) created by the patient, where the donee is acting within the scope of his authority and in accordance with that Act; and |
| (d) | a reference to a deputy is to a deputy appointed for the patient by the Court of Protection under section 16 of that Act, where the deputy is acting within the scope of his authority and in accordance with that Act. |
| (8) | In this section, "the appropriate national authority" means— |
| (a) | in a case where the treatment in question would, if given, be given in England, the Secretary of State; |
| (b) | in a case where the treatment in question would, if given, be given in Wales, the Welsh Ministers."" |
| 31 | Insert the following new Clause— |
| | "Section (Electro-convulsive therapy, etc.): supplemental |
| (1) | Part 4 of the 1983 Act (consent to treatment) is amended as follows. |
| (2) | In section 58 (treatment requiring consent or a second opinion)— |
| (a) | in subsection (1)(b), after "section 57 above" insert "or section 58A(1)(b) below", and |
| (b) | in subsection (3)(b), before "has not consented to it" insert "being so capable". |
| (3) | In section 59 (plans of treatment), for "or 58" substitute ", 58 or 58A". |
| (4) | In section 60 (withdrawal of consent), for "or 58", substitute ", 58 or 58A". |
| (5) | In section 61 (review of treatment)— |
| (a) | in subsection (1), for "or 58(3)(b)" substitute ", 58(3)(b) or 58A(4)", and |
| (i) | for "or 58(3)(b)" substitute ", 58(3)(b) or 58A(4)", and |
| (ii) | for "and 58" substitute ", 58 and 58A". |
| (6) | In section 62 (urgent treatment)— |
| (a) | in subsection (1), for "and 58" substitute ", 58 and 58A", and |
| (b) | in subsection (2), for "or 58" substitute ", 58 or 58A". |
| (7) | In section 63 (treatment not requiring consent), for ", not being treatment falling within section 57 or 58 above," substitute ", not being a form of treatment to which section 57, 58 or 58A above applies"." |
| | LORD WILLIAMSON OF HORTON
BARONESS MURPHY
BARONESS HOWELLS OF ST DAVIDS |
| 32 | Insert the following new Clause— |
| | "Independent mental health advocacy: young persons |
| | After section 125 of the 1983 Act insert— |
| "125C | Independent mental health advocacy: young persons |
| (1) | The appropriate authority must arrange, to such extent as it considers necessary to meet all reasonable requirements, for help from persons to be known as independent mental health advocates, to be available for patients aged 18 years or under. |
| (2) | The help available under the arrangements must include— |
| (a) | help in obtaining information about and understanding— |
| (i) | what medical treatment is being provided to the patient; |
| (ii) | why it is being provided; |
| (iii) | under what authority it is being provided; |
| (iv) | the requirements of this Act which apply in connection with the patient's treatment; and |
| (v) | the rights which can be exercised by or in respect of him under this Act, and |
| (b) | help (by way of representation or otherwise) in exercising those rights."" |
| | BARONESS BARKER
BARONESS NEUBERGER |
| 33A | Insert the following new Clause— |
| (1) | Section 26 of the 1983 Act (definitions of "relative" and "nearest relative") is amended as follows. |
| (2) | In the cross-heading preceding section 26 after "functions of relatives" insert ", persons acting as relatives". |
| (3) | Before subsection (1) insert— |
| "(A1) | In this Part of the Act "named person" means— |
| (a) | any person described in subsection (1) below; or |
| (b) | any person not described in subsection (1) below who is the patient's carer, |
| | who has been nominated by the patient in accordance with subsection (1A) below. |
| (B1) | In this Part of the Act "carer" has the same meaning as in section 1(1)(a) of the Carers and Disabled Children Act 2000." |
| (4) | After subsection (1) insert— |
| "(1A) | A person is a named person in accordance with this subsection if— |
| (a) | the nomination is signed by the nominator; |
| (b) | the nominator's signature is witnessed by a prescribed person; |
| (c) | the prescribed person certifies that, in the opinion of the prescribed person, the nominator— |
| (i) | understands that the effect of nominating a person to be the named person will give him the role of nearest relative; and |
| (ii) | has not been subjected to any undue influence in making the nomination. |
| (1B) | A nomination under subsection (1) above may be revoked by the nominator in accordance with subsection (3) below. |
| (1C) | The nomination of a named person is revoked in accordance with this subsection if— |
| (a) | the revocation is signed by the nominator; |
| (b) | the nominator's signature is witnessed by a prescribed person; and |
| (c) | the prescribed person certifies that, in the opinion of the prescribed person, the nominator— |
| (i) | understands the effect of revoking the appointment of a person as named person; and |
| (ii) | has not been subjected to any undue influence in making the revocation. |
| (1D) | The nomination of a named person shall be effective notwithstanding the nominator's becoming, after making the nomination, incapable. |
| (1E) | A person nominated under subsection (1) above may decline to be the nominator's named person by giving notice to that effect to— |
| (b) | the local authority for the area in which the nominator resides." |
| (5) | For subsection (3) substitute— |
| "(3) | In this Part of this Act, subject to the provisions of this section and to the following provisions of this Part of this Act, the "nearest relative" means, in descending order— |
| (b) | the person first described in subsection (1) above who is for the time being surviving, relatives of the whole blood being preferred to relatives of the same description of the halfblood and the elder or eldest of two or more relatives described in any paragraph of that subsection being preferred to the other or others of those relatives, regardless of sex." |
| (6) | In section 26(4) after "his nearest relative" insert "under subsection 3(b) above". |
| (7) | In section 26(5) for "(3)" substitute "(3)(b)"." |
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