House of Lords portcullis
House of Lords
Session 2007 - 08
Internet Publications
Other Bills before Parliament

Health and Social Care Bill


Health and Social Care Bill
Schedule 3 — Amendments of Mental Health Act 1983

117

 

4     (1)  

Paragraph 2 does not operate to transfer the rights and liabilities under an

individual’s contract of employment if, before the transfer takes effect, the

individual informs the transferor or transferee that the individual objects to

the transfer.

      (2)  

Where an individual does inform the transferor or transferee as specified in

5

sub-paragraph (1), the individual’s contract of employment with the

transferor is terminated immediately before the date on which the transfer

would occur; but the individual is not, for any purpose, to be regarded as

having been dismissed by the transferor.

      (3)  

This paragraph is without prejudice to any right of an individual employed

10

by a transferor to terminate the individual’s contract of employment if (apart

from the change of employer) a substantial change is made to the

individual’s detriment in the individual’s working conditions.

Transitional

5     (1)  

Anything done by or in relation to the transferor for the purposes of or in

15

connection with anything transferred by paragraph 2 which is in effect

immediately before it is transferred is to be treated as if done by or in relation

to the transferee.

      (2)  

There may be continued by or in relation to the transferee anything

(including legal proceedings) relating to anything so transferred which is in

20

the process of being done by or in relation to the transferor immediately

before it is transferred.

      (3)  

A reference to the transferor in any document relating to anything so

transferred is to be taken (so far as necessary for the purposes of or in

consequence of the transfer) as a reference to the transferee.

25

      (4)  

A transfer under paragraph 2 does not affect the validity of anything done

by or in relation to the transferor before the transfer takes effect.

Schedule 3

Section 48

 

Amendments of Mental Health Act 1983

1          

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

30

2          

In section 57 of the MHA (treatment requiring consent and a second

opinion), in subsection (2)(a), for “the Secretary of State” (in both places)

substitute “the regulatory authority”.

3          

In section 58 of the MHA (treatment requiring consent or a second opinion),

in subsection (3)(a), for “the Secretary of State” substitute “the regulatory

35

authority”.

4     (1)  

Section 61 of the MHA (review of treatment) is amended as follows.

      (2)  

For “the Secretary of State” (wherever occurring) substitute “the regulatory

authority”.

      (3)  

In subsection (3), after “to him” insert “(whether in England or Wales)”.

40

 
 

Health and Social Care Bill
Schedule 3 — Amendments of Mental Health Act 1983

118

 

5          

In section 64H of the MHA (certificates: supplementary provision), in

subsections (4) and (5), for “appropriate national authority” substitute

“regulatory authority”.

6     (1)  

Section 118 of the MHA (code of practice) is amended as follows.

      (2)  

In subsection (2), for “appointed for the purposes of this section by the

5

Secretary of State” substitute “appointed for the purposes of this section by

the regulatory authority”.

      (3)  

After subsection (6) insert—

“(7)   

The Care Quality Commission may at any time make proposals to

the Secretary of State as to the content of the code of practice which

10

the Secretary of State must prepare, and from time to time revise,

under this section in relation to England.”

7     (1)  

Section 119 of the MHA (practitioners approved for Part 4 and section 118)

is amended as follows.

      (2)  

In subsection (1)—

15

(a)   

for “The Secretary of State” substitute “The regulatory authority”,

(b)   

for “he” substitute “it”, and

(c)   

for “by him” substitute “by the authority”.

      (3)  

In subsection (2), omit “by the Secretary of State”.

8          

For section 120 of the MHA substitute—

20

“120    

General protection of relevant patients

(1)   

The regulatory authority must keep under review and, where

appropriate, investigate the exercise of the powers and the discharge

of the duties conferred or imposed by this Act so far as relating to the

detention of patients or their reception into guardianship or to

25

relevant patients.

(2)   

Relevant patients are—

(a)   

patients liable to be detained under this Act,

(b)   

community patients, and

(c)   

patients subject to guardianship.

30

(3)   

The regulatory authority must make arrangements for persons

authorised by it to visit and interview relevant patients in private—

(a)   

in the case of relevant patients detained under this Act, in the

place where they are detained, and

(b)   

in the case of other relevant patients, in hospitals and

35

regulated establishments and, if access is granted, other

places.

(4)   

The regulatory authority must also make arrangements for persons

authorised by it to investigate any complaint as to the exercise of the

powers or the discharge of the duties conferred or imposed by this

40

Act in respect of a patient who is or has been detained under this Act

or who is or has been a relevant patient.

(5)   

The arrangements made under subsection (4)—

 
 

Health and Social Care Bill
Schedule 3 — Amendments of Mental Health Act 1983

119

 

(a)   

may exclude matters from investigation in specified

circumstances, and

(b)   

do not require any person exercising functions under the

arrangements to undertake or continue with any

investigation where the person does not consider it

5

appropriate to do so.

(6)   

Where any such complaint as is mentioned in subsection (4) is made

by a Member of Parliament or a member of the National Assembly

for Wales, the results of the investigation must be reported to the

Member of Parliament or member of the Assembly.

10

(7)   

For the purposes of a review or investigation under subsection (1) or

the exercise of functions under arrangements made under this

section, a person authorised by the regulatory authority may at any

reasonable time—

(a)   

visit and interview in private any patient in a hospital or

15

regulated establishment,

(b)   

if the authorised person is a registered medical practitioner or

approved clinician, examine the patient in private there, and

(c)   

require the production of and inspect any records relating to

the detention or treatment of any person who is or has been

20

detained under this Act or who is or has been a community

patient or a patient subject to guardianship.

(8)   

The regulatory authority may make provision for the payment of

remuneration, allowances, pensions or gratuities to or in respect of

persons exercising functions in relation to any review or

25

investigation for which it is responsible under subsection (1) or

functions under arrangements made by it under this section.

(9)   

In this section “regulated establishment” means—

(a)   

an establishment in respect of which a person is registered

under Part 2 of the Care Standards Act 2000, or

30

(b)   

premises used for the carrying on of a regulated activity

(within the meaning of Part 1 of the Health and Social Care

Act 2008) in respect of which a person is registered under

Chapter 2 of that Part.”

9          

After section 120 of the MHA insert—

35

“120A   

 Investigation reports

(1)   

The regulatory authority may publish a report of a review or

investigation carried out by it under section 120(1).

(2)   

The Secretary of State may by regulations make provision as to the

procedure to be followed in respect of the making of representations

40

to the Care Quality Commission before the publication of a report by

the Commission under subsection (1).

(3)   

The Secretary of State must consult the Care Quality Commission

before making any such regulations.

(4)   

The Welsh Ministers may by regulations make provision as to the

45

procedure to be followed in respect of the making of representations

 
 

Health and Social Care Bill
Schedule 3 — Amendments of Mental Health Act 1983

120

 

to them before the publication of a report by them under subsection

(1).

120B    

Action statements

(1)   

The regulatory authority may direct a person mentioned in

subsection (2) to publish a statement as to the action the person

5

proposes to take as a result of a review or investigation under section

120(1).

(2)   

The persons are—

(a)   

the managers of a hospital within the meaning of Part 2 of

this Act;

10

(b)   

a local social services authority;

(c)   

persons of any other description prescribed in regulations.

(3)   

Regulations may make further provision about the content and

publication of statements under this section.

(4)   

“Regulations” means regulations made—

15

(a)   

by the Secretary of State, in relation to England;

(b)   

by the Welsh Ministers, in relation to Wales.

120C    

Provision of information

(1)   

This section applies to the following persons—

(a)   

the managers of a hospital within the meaning of Part 2 of

20

this Act;

(b)   

a local social services authority;

(c)   

persons of any other description prescribed in regulations.

(2)   

A person to whom this section applies must provide the regulatory

authority with such information as the authority may reasonably

25

request for or in connection with the exercise of its functions under

section 120.

(3)   

A person to whom this section applies must provide a person

authorised under section 120 with such information as the person so

authorised may reasonably request for or in connection with the

30

exercise of functions under arrangements made under that section.

(4)   

This section is in addition to the requirements of section 120(7)(c).

(5)   

“Information” includes documents and records.

(6)   

“Regulations” means regulations made—

(a)   

by the Secretary of State, in relation to England;

35

(b)   

by the Welsh Ministers, in relation to Wales.

120D    

Annual reports

(1)   

The regulatory authority must publish an annual report on its

activities in the exercise of its functions under this Act.

(2)   

The report must be published as soon as possible after the end of

40

each financial year.

(3)   

The Care Quality Commission must send a copy of its annual report

to the Secretary of State who must lay the copy before Parliament.

 
 

Health and Social Care Bill
Schedule 3 — Amendments of Mental Health Act 1983

121

 

(4)   

The Welsh Ministers must lay a copy of their annual report before the

National Assembly for Wales.

(5)   

In this section “financial year” means—

(a)   

the period beginning with the date on which section 48 of the

Health and Social Care Act 2008 comes into force and ending

5

with the next 31 March following that date, and

(b)   

each successive period of 12 months ending with 31 March.”

10         

In section 129 of the MHA (obstruction), in subsection (1), after paragraph

(c) insert—

“(ca)   

fails to comply with a request made under section 120C; or”.

10

11    (1)  

Section 134 of the MHA (correspondence of patients) is amended as follows.

      (2)  

In subsection (3), after paragraph (c) insert—

“(ca)   

the Care Quality Commission;”.

      (3)  

In subsection (6), for “section 121(7) and (8) above” substitute “section

134A(1) to (4)”.

15

      (4)  

In subsection (9), after “this section” insert “and section 134A”.

12         

After section 134 of the MHA insert—

“134A   

 Review of decisions to withhold correspondence

(1)   

The regulatory authority must review any decision to withhold a

postal packet (or anything contained in it) under subsection (1)(b) or

20

(2) of section 134 if an application for a review of the decision is

made—

(a)   

in a case under subsection (1)(b) of that section, by the

patient; or

(b)   

in a case under subsection (2) of that section, either by the

25

patient or by the person by whom the postal packet was sent.

(2)   

An application under subsection (1) must be made within 6 months

of receipt by the applicant of the notice referred to in section 134(6).

(3)   

On an application under subsection (1), the regulatory authority may

direct that the postal packet (or anything contained in it) is not to be

30

withheld.

(4)   

The managers of the hospital concerned must comply with any such

direction.

(5)   

The Secretary of State may by regulations make provision in

connection with the making to and determination by the Care

35

Quality Commission of applications under subsection (1), including

provision for the production to the Commission of any postal packet

which is the subject of such an application.

(6)   

The Welsh Ministers may by regulations make provision in

connection with the making to them of applications under

40

subsection (1), including provision for the production to them of any

postal packet which is the subject of such an application.”

13         

In section 145 of the MHA (general interpretation), in subsection (1), insert

 
 

Health and Social Care Bill
Schedule 4 — Interaction with other authorities
Part 1 — Interpretation

122

 

at the appropriate place—

“ “the regulatory authority” means—

(a)   

in relation to England, the Care Quality Commission;

(b)   

in relation to Wales, the Welsh Ministers;”.

Schedule 4

5

Section 62

 

Interaction with other authorities

Part 1

Interpretation

Inspection authorities

1     (1)  

In this Schedule references to inspection authorities are to be read in

10

accordance with sub-paragraph (2) or (3), as the case may be.

      (2)  

For the purposes of paragraph 5 or 6 the inspection authorities are—

(a)   

Her Majesty’s Chief Inspector of Prisons,

(b)   

Her Majesty’s Chief Inspector of Constabulary,

(c)   

Her Majesty’s Chief Inspector of the Crown Prosecution Service,

15

(d)   

Her Majesty’s Chief Inspector of the National Probation Service for

England and Wales,

(e)   

Her Majesty’s Chief Inspector of Court Administration,

(f)   

Her Majesty’s Chief Inspector of Education, Children’s Services and

Skills, and

20

(g)   

the Audit Commission for Local Authorities and the National Health

Service in England.

      (3)  

For the purposes of paragraph 7 the inspection authorities are—

(a)   

Her Majesty’s Chief Inspector of Prisons,

(b)   

Her Majesty’s Inspectors of Constabulary,

25

(c)   

Her Majesty’s Chief Inspector of the Crown Prosecution Service,

(d)   

Her Majesty’s Inspectorate of the National Probation Service for

England and Wales,

(e)   

Her Majesty’s Inspectorate of Court Administration,

(f)   

Her Majesty’s Chief Inspector of Education, Children’s Services and

30

Skills, and

(g)   

the Audit Commission for Local Authorities and the National Health

Service in England.

Inspection functions

2          

In this Schedule “inspection functions” means functions relating to, or

35

connected with, inspections carried out by the Commission under section

56.

Public authorities

3     (1)  

In this Schedule “public authority”—

 
 

Health and Social Care Bill
Schedule 4 — Interaction with other authorities
Part 2 — Exercise of functions

123

 

(a)   

includes any person certain of whose functions are functions of a

public nature, but

(b)   

does not include either House of Parliament or a person exercising

functions in connection with proceedings in Parliament.

      (2)  

Subject to paragraph 9(3), references in this Schedule to a public authority do

5

not include a public authority outside the United Kingdom.

      (3)  

In relation to a particular act, a person is not a public authority by virtue of

sub-paragraph (1) if the nature of the act is private.

Part 2

Exercise of functions

10

Delegation of inspection functions to public authorities

4     (1)  

The Commission may delegate any of its inspection functions (to such extent

as it may determine) to another public authority.

      (2)  

If the carrying out of an inspection is delegated under sub-paragraph (1) it is

nevertheless to be regarded for the purposes of any enactment as carried out

15

by the Commission.

Inspection programmes and inspection frameworks

5     (1)  

The Commission must from time to time, or at such times as the Secretary of

State may specify by order, prepare—

(a)   

a document setting out what inspections it proposes to carry out (an

20

“inspection programme”), and

(b)   

a document setting out the manner in which it proposes to exercise

its functions of inspecting and reporting (an “inspection

framework”).

      (2)  

Before preparing an inspection programme or an inspection framework the

25

Commission must consult—

(a)   

the Secretary of State,

(b)   

the inspection authorities, and

(c)   

any other person or body specified by an order made by the

Secretary of State,

30

           

and it must send to each of those persons or bodies a copy of each

programme or framework once it is prepared.

      (3)  

The Secretary of State may by order specify the form that inspection

programmes or inspection frameworks are to take.

      (4)  

The Commission may determine that any document or combination of

35

documents prepared for the purposes of any other enactment or enactments

is to be treated as a document prepared for the purposes of sub-paragraph

(1)(b) (so long as any requirements applying under or by virtue of this

paragraph are complied with in relation to the document or documents

concerned).

40

      (5)  

Nothing in any inspection programme or inspection framework is to be read

as preventing the Commission from making visits without notice.

 
 

 
previous section contents continue
 
House of Lords home page Houses of Parliament home page House of Commons home page search page enquiries

© Parliamentary copyright 2008
Revised 23 May 2008