House of Lords Amendments

House of Lords

Session 2006 - 07
Internet Publications
Other Bills before Parliament

Mental Health Bill [HL]

Mental Health Bill [HL]
marshalled list of motions and amendments to be moved on
consideration of commons amendments
[The page and line references are to Bill 76, the bill as first printed for the Commons]
Clause 3
1
Page 2, leave out lines 22 to 30 and insert—

“(3)
Dependence on alcohol or drugs is not considered to be a disorder or

disability of the mind for the purposes of subsection (2) above.”
Baroness Barker to move, as an amendment to the motion that this House do

agree with the Commons in their Amendment 1, at end insert “and do propose

the following consequential amendment to the bill—
1A
Page 5, line 8, at end insert—

“(aa)
respect for diversity generally including, in particular,

diversity of religion, culture and sexual orientation (within

the meaning of section 35 of the Equality Act 2006),”
Clause 4
2
Leave out Clause 4
Clause 5
3
Page 3, line 13, leave out from “is” to end of line 14 and insert “appropriate in his

case, taking into account the nature and degree of the mental disorder and all other

circumstances of his case.”
Clause 6
4
Leave out Clause 6

Baroness Murphy to move, as an amendment to the motion that this House do

agree with the Commons in their Amendment 4, at end insert “but do propose

the following amendment in lieu of the words so left out of the Bill—

HL Bill 83—I 54/2

(  2  )
4A
Page 6, line 19, at end insert—

“( )
after subsection (5) insert—

“(5A)
But the responsible clinician may not furnish a report under

subsection (3) above unless a person—

(a)
who has been professionally concerned with the

patient’s medical treatment; but

(b)
who belongs to a profession other than that to which

the responsible clinician belongs,


states in writing that he agrees that the conditions set out in

subsection (4) above are satisfied.”””
Clause 8
5
Page 4, line 28, at end insert—

“( )
In the following provisions, for the words from “, having regard to” to the

end substitute “it is appropriate for the treatment to be given.”—

(a)
section 57(2)(b) (certification of second opinion where treatment

requires consent and a second opinion), and

(b)
section 58(3)(b) (certification of second opinion where treatment

requires consent or a second opinion).”
6
Page 4, line 31, leave out from “is” to end of line 32 and insert “appropriate in his

case, taking into account the nature and degree of the mental disorder and all other

circumstances of his case.”
Clause 9
7
Page 4, line 34, leave out “In section 145(1) of the 1983 Act (interpretation)” and

insert—

“(1)
Section 145 of the 1983 Act is amended as follows.

(2)
In subsection (1)”
8
Page 4, line 36, after “care” insert “(but see also subsection (4) below)”
9
Page 4, line 36, at end insert—

“(3)
After subsection (3) insert—

“(4)
Any reference in this Act to medical treatment, in relation to

mental disorder, shall be construed as a reference to medical

treatment the purpose of which is to alleviate, or prevent a

worsening of, the disorder or one or more of its symptoms

or manifestations.””
Clause 14
10
Page 9, line 13, leave out “approved clinician” and insert “responsible clinician (if

there is one) or the person”
11
Page 9, line 14, leave out “at the end insert “nor the responsible clinician” and insert

“for the words from “, and of those persons” to the end substitute “but, of those

persons—

(a)
one shall be a nurse and the other shall be neither a nurse

nor a registered medical practitioner; and

(  3  )

(b)
neither shall be the responsible clinician (if there is one) or

the person in charge of the treatment in question.””
12
Page 9, line 21, at beginning insert ““responsible clinician or the”
13
Page 9, line 22, leave out “at the end insert “nor the responsible clinician” and insert

“for the words from “, and of those persons” to the end substitute “but, of those

persons—

(a)
one shall be a nurse and the other shall be neither a nurse

nor a registered medical practitioner; and

(b)
neither shall be the responsible clinician or the approved

clinician in charge of the treatment in question.””
14
Page 10, leave out lines 2 to 7 and insert—

“(1A)
References in this Part of this Act to the approved clinician in charge

of a patient’s treatment shall, where the treatment in question is a

form of treatment to which section 57 above applies, be construed

as references to the person in charge of the treatment.”
Clause 24
15
Leave out Clause 24
Clause 30
16
Page 18, line 23, after “(3)” insert “, (3A)”
17
Page 18, line 24, at end insert—

“( )
he has attained the age of 18 years;”
18
Page 18, line 30, at end insert—

“(3A)
A patient falls within this subsection if—

(a)
he has not attained the age of 18 years; but

(b)
he has consented to the treatment in question; and

(c)
a registered medical practitioner appointed as aforesaid

(not being the approved clinician in charge of the treatment)

has certified in writing—

(i)
that the patient is capable of understanding the

nature, purpose and likely effects of the treatment

and has consented to it; and

(ii)
that it is appropriate for the treatment to be given.”
19
Page 18, line 32, after “being” insert “the responsible clinician (if there is one) or”
20
Page 18, line 43, leave out sub-paragraph (iii)
21
Page 19, line 4, leave out from “treatment” to end of line 6 and insert “but, of those

persons—

(a)
one shall be a nurse and the other shall be neither a nurse

nor a registered medical practitioner; and

(b)
neither shall be the responsible clinician (if there is one) or

the approved clinician in charge of the treatment in

question.”
22
Page 19, line 6, at end insert—

(  4  )

“(5A)
This section shall not by itself confer sufficient authority for a

patient who falls within section 56(5) above to be given a form of

treatment to which this section applies if he is not capable of

understanding the nature, purpose and likely effects of the

treatment (and cannot therefore consent to it).”
Clause 31
23
Page 19, line 40, leave out “58A(4)” and insert “58A(3A) or (4)”
24
Page 19, line 42, leave out “58A(4)” and insert “58A(3A) or (4)”
25
Page 19, line 44, leave out from “treatment)” to “in” in line 1 on page 20 and insert

“, after subsection (1) insert—

“(1A)
Section 58A above, in so far as it relates to electro-convulsive

therapy by virtue of subsection (1)(a) of that section, shall not apply

to any treatment which falls within paragraph (a) or (b) of

subsection (1) above.

(1B)
Section 58A above, in so far as it relates to a form of treatment

specified by virtue of subsection (1)(b) of that section, shall not

apply to any treatment which falls within such of paragraphs (a) to

(d) of subsection (1) above as may be specified in regulations under

that section.

(1C)
For the purposes of subsection (1B) above, the regulations—

(a)
may make different provision for different cases (and may,

in particular, make different provision for different forms of

treatment);

(b)
may make provision which applies subject to specified

exceptions; and

(c)
may include transitional, consequential, incidental or

supplemental provision.”

( )
In that section,”
26
Page 20, line 4, at end insert—

“( )
In section 64 (supplementary provisions), after subsection (1A) (inserted by

section 14 of this Act) insert—

“(1B)
References in this Part of this Act to the approved clinician in charge

of a patient’s treatment shall, where the treatment in question is a

form of treatment to which section 58A above applies and the

patient falls within section 56(5) above, be construed as references

to the person in charge of the treatment.

(1C)
Regulations made by virtue of section 32(2)(d) above apply for the

purposes of this Part as they apply for the purposes of Part 2 of this

Act.””
27
Page 20, line 4, at end insert—

“( )
In section 28 of the Mental Capacity Act 2005 (c. 9) (Mental Health Act

matters), after subsection (1) insert—

“(1A)
Subsection (1) does not apply in relation to any form of treatment to

which section 58A of that Act (electro-convulsive therapy, etc.)

(  5  )

applies if the patient comes within subsection (5A) of that section

(informal patient under 18 who cannot give consent).””
After Clause 31
28
Insert the following new Clause—

“Withdrawal of consent

(1)
Section 60 of the 1983 Act (withdrawal of consent) is amended as follows.

(2)
After subsection (1) insert—

“(1A)
Subsection (1B) below applies where—

(a)
the consent of a patient to any treatment has been given for

the purposes of section 57, 58 or 58A above; but

(b)
before the completion of the treatment, the patient ceases to

be capable of understanding its nature, purpose and likely

effects.

(1B)
The patient shall, subject to section 62 below, be treated as having

withdrawn his consent, and those sections shall then apply as if the

remainder of the treatment were a separate form of treatment.

(1C)
Subsection (1D) below applies where—

(a)
a certificate has been given under section 58 or 58A above

that a patient is not capable of understanding the nature,

purpose and likely effects of the treatment to which the

certificate applies; but

(b)
before the completion of the treatment, the patient becomes

capable of understanding its nature, purpose and likely

effects.

(1D)
The certificate shall, subject to section 62 below, cease to apply to

the treatment and those sections shall then apply as if the remainder

of the treatment were a separate form of treatment.”

(3)
In subsection (2), for “subsection (1)” substitute “subsections (1) to (1D)”.”
29
Insert the following new Clause—

“Independent mental health advocates

(1)
Part 10 of the 1983 Act (miscellaneous and supplementary) is amended as

follows.

(2)
Before section 131 insert—

“130A
Independent mental health advocates

(1)
The appropriate national authority shall make such arrangements

as it considers reasonable to enable persons (“independent mental

health advocates”) to be available to help qualifying patients.

(2)
The appropriate national authority may by regulations make

provision as to the appointment of persons as independent mental

health advocates.

(3)
The regulations may, in particular, provide—

(  6  )

(a)
that a person may act as an independent mental health

advocate only in such circumstances, or only subject to such

conditions, as may be specified in the regulations;

(b)
for the appointment of a person as an independent mental

health advocate to be subject to approval in accordance with

the regulations.

(4)
In making arrangements under this section, the appropriate

national authority shall have regard to the principle that any help

available to a patient under the arrangements should, so far as

practicable, be provided by a person who is independent of any

person who is professionally concerned with the patient’s medical

treatment.

(5)
For the purposes of subsection (4) above, a person is not to be

regarded as professionally concerned with a patient’s medical

treatment merely because he is representing him in accordance

with arrangements—

(a)
under section 35 of the Mental Capacity Act 2005; or

(b)
of a description specified in regulations under this section.

(6)
Arrangements under this section may include provision for

payments to be made to, or in relation to, persons carrying out

functions in accordance with the arrangements.

(7)
Regulations under this section—

(a)
may make different provision for different cases;

(b)
may make provision which applies subject to specified

exceptions;

(c)
may include transitional, consequential, incidental or

supplemental provision.

130B
Arrangements under section 130A

(1)
The help available to a qualifying patient under arrangements

under section 130A above shall include help in obtaining

information about and understanding—

(a)
the provisions of this Act by virtue of which he is a

qualifying patient;

(b)
any conditions or restrictions to which he is subject by

virtue of this Act;

(c)
what (if any) medical treatment is given to him or is

proposed or discussed in his case;

(d)
why it is given, proposed or discussed;

(e)
the authority under which it is, or would be, given; and

(f)
the requirements of this Act which apply, or would apply,

in connection with the giving of the treatment to him.

(2)
The help available under the arrangements to a qualifying patient

shall also include—

(a)
help in obtaining information about and understanding any

rights which may be exercised under this Act by or in

relation to him; and

(b)
help (by way of representation or otherwise) in exercising

those rights.

(  7  )

(3)
For the purpose of providing help to a patient in accordance with

the arrangements, an independent mental health advocate may—

(a)
visit and interview the patient in private;

(b)
visit and interview any person who is professionally

concerned with his medical treatment;

(c)
require the production of and inspect any records relating to

his detention or treatment in any hospital or registered

establishment or to any after-care services provided for him

under section 117 above;

(d)
require the production of and inspect any records of, or held

by, a local social services authority which relate to him.

(4)
But an independent mental health advocate is not entitled to the

production of, or to inspect, records in reliance on subsection (3)(c)

or (d) above unless—

(a)
in a case where the patient has capacity or is competent to

consent, he does consent; or

(b)
in any other case, the production or inspection would not

conflict with a decision made by a donee or deputy or the

Court of Protection and the person holding the records,

having regard to such matters as may be prescribed in

regulations under section 130A above, considers that—

(i)
the records may be relevant to the help to be

provided by the advocate; and

(ii)
the production or inspection is appropriate.

(5)
For the purpose of providing help to a patient in accordance with

the arrangements, an independent mental health advocate shall

comply with any reasonable request made to him by any of the

following for him to visit and interview the patient—

(a)
the person (if any) appearing to the advocate to be the

patient’s nearest relative;

(b)
the responsible clinician for the purposes of this Act;

(c)
an approved mental health professional.

(6)
But nothing in this Act prevents the patient from declining to be

provided with help under the arrangements.

(7)
In subsection (4) above—

(a)
the reference to a patient who has capacity is to be read in

accordance with the Mental Capacity Act 2005;

(b)
the 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;

(c)
the 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.

130C
Section 130A: supplemental

(1)
This section applies for the purposes of section 130A above.

(2)
A patient is a qualifying patient if he is—