A Bill to make provision to amend the Mental Health Act 1983 in relation to mentally disordered persons; and for connected purposes.
The information below was generated through an automated process and is for information purposes only.
This is not the latest version of the Bill
Available Versions
| Date | Debate |
|---|---|
| Tuesday 14th October 2025 | Report stage |
| Date | Debate |
|---|---|
| Tuesday 24th June 2025 | Committee stage: 9th sitting |
| Thursday 19th June 2025 | Committee stage: 8th sitting |
| Thursday 19th June 2025 | Committee stage: 7th sitting |
| Tuesday 17th June 2025 | Committee stage: 6th sitting |
| Tuesday 17th June 2025 | Committee stage: 5th sitting |
| Thursday 12th June 2025 | Committee stage: 4th sitting |
| Thursday 12th June 2025 | Committee stage: 3rd sitting |
| Tuesday 10th June 2025 | Committee stage: 2nd sitting |
| Tuesday 10th June 2025 | Committee stage: 1st sitting |
| Date | Debate |
|---|---|
| Wednesday 23rd April 2025 | 3rd reading |
| Date | Debate |
|---|---|
| Monday 31st March 2025 | Report stage part two |
| Monday 31st March 2025 | Report stage part one |
| Date | Debate |
|---|---|
| Monday 27th January 2025 | Committee stage part two |
| Monday 27th January 2025 | Committee stage part one |
| Wednesday 22nd January 2025 | Committee stage part two |
| Wednesday 22nd January 2025 | Committee stage part one |
| Monday 20th January 2025 | Committee stage part two |
| Monday 20th January 2025 | Committee stage part one |
| Tuesday 14th January 2025 | Committee stage part two |
| Tuesday 14th January 2025 | Committee stage part one |
Relevant Documents
Your selections will update the bill and amendment list to show only amendments matching your chosen criteria.
This glossary explains the colour coding used to indicate the type of amendment.
| Type | Description |
|---|---|
| Black center indicates Government or Bill Sponsor amendment | |
| Front Bench Amendment from any Opposition Party indicated by party colour | |
| Back Bench Amendment from any MP - Outline Colour indicates party |
Page 1
Code of practice
Source Bill 225 EN 2024-25
28. Under section 118 the Secretary of State in relation to England and Welsh ministers in relation to Wales are required to prepare a Code of Practice to guide decision-makers listed in section 118(1), which must be consulted on and be presented to Parliament or the Senedd for scrutiny. Section 118 sets out that the Code must include a statement of the principles which the Secretary of State, in relation to England, thinks should inform particular decisions under the Act, and that in preparing the statement of principles the Secretary of State shall, in particular, ensure that a specific list of matters is addressed. The requirement in relation to the statement of principles does not currently apply to Wales.
29. Clause 1 amends section 118 so that the statement of principles must, in particular, include the four principles developed by the Independent Review, in partnership with people with lived experience. These principles are choice and autonomy, least restriction, therapeutic benefit, and the person as an individual. Clause 1 also sets out a number of matters, which must be addressed in the Code, in relation to each of the four principles.
30. The effect of this change is that Secretary of State in relation to England, and Welsh ministers, in relation to Wales, will be required to include the four principles in the statement of principles in the Code of Practice, and that these principles should inform relevant decisions under the Act. Those who under section 118 2D must have regard to the Code, must also have regard for the statement of principles in the Code and therefore will be required to have regard for the four principles when making decisions under the Act.
Source Bill 225 EN 2024-25
31. Clause 2 amends section 118 of the Act to extend to Wales the same requirement to include a statement of principles in the Code, and include in the Code the same principles and ensure the Code addresses the same specific matters in relation to each principle, as is required in relation to the Code in England.
32. The effect of this change is that Welsh Ministers will be required to include the four principles (choice and autonomy, least restriction, therapeutic benefit, and the person as an individual), and ensure the Code addresses the same specified matters in relation to each of the four principles, when preparing the Mental Health Act Code of Practice for Wales. Those who under section 118 2D must have regard to the code, must also have regard to the statement of principles in the code and therefore will be required to have regard for the four principles when making decisions under the Act.
33. The Welsh code is already required to undergo Welsh Parliamentary scrutiny, but the clause also updates the position in relation to the Parliamentary scrutiny procedure in Wales, in relation to the Welsh Code.
Page 2
Page 3
Autism and learning disability
Source Bill 225 EN 2024-25
34. Currently, people with a learning disability and autistic people can be detained for both assessment and treatment under section 2 of the Act. People with a learning disability may also be detained for treatment under section 3 when their learning disability is associated with abnormally aggressive and seriously irresponsible conduct. This qualification does not apply to autistic people. We have seen that some people with a learning disability and autistic people can be subject to lengthy detentions, which may not provide a therapeutic benefit. Clause 3 and Schedule 1 include new definitions in the Act and make amendments using those definitions throughout the Act. These amendments have the effect of removing, for the purposes of Part 2 of the Act, people with a learning disability and autistic people from the scope of the conditions for which a person can be detained for compulsory treatment under section 3. People with a learning disability and autistic people will only be able to be detained for treatment under Part 2 of the Act if they satisfy the conditions set out in section 3 of the Act, which includes that they have a co-occurring mental disorder which is not learning disability or autism.
35. This change in how the Act applies to patients with a learning disability and autistic people under Part 2 of the Act seeks to ensure that people are only admitted when they have a mental disorder that warrants hospital treatment, which has a reasonable prospect of providing a therapeutic benefit for their mental disorder. The proposed changes also mean that it will no longer be possible to place a person with a learning disability or an autistic person on a CTO unless they have a co-occurring mental health condition that meets the detention criteria. This is supported by the guiding principle of least restriction.
36. The changes to the way the Act applies to people with a learning disability and autistic people detained for assessment or treatment will not apply under Part 3 of the Act (i.e. individuals accused of, or serving a sentence for committing a crime). For this cohort of people, the only alternative to detention in hospital is detention in prison. Consultation with experts following the publication of the 2021 White Paper found that, on balance, detention in hospital is considered more appropriate in the majority of cases than detention in prison, to ensure that people in this cohort are able to access the specialist support they may need. The Ministry of Justice is satisfied that the current application of the detention criteria to people with a learning disability and autistic people detained under Part 3 of the Act enables professionals to make the right decisions for people in this cohort, including where this requires diversion from criminal justice settings into a hospital setting.
37. Clause 3 amends section 1 of the Act. Subsection (2) modifies the meaning of mental disorder under the Act by including new definitions of \
34. Currently, people with a learning disability and autistic people can be detained for both assessment and treatment under section 2 of the Act. People with a learning disability may also be detained for treatment under section 3 when their learning disability is associated with abnormally aggressive and seriously irresponsible conduct. This qualification does not apply to autistic people. We have seen that some people with a learning disability and autistic people can be subject to lengthy detentions, which may not provide a therapeutic benefit. Clause 3 and Schedule 1 include new definitions in the Act and make amendments using those definitions throughout the Act. These amendments have the effect of removing, for the purposes of Part 2 of the Act, people with a learning disability and autistic people from the scope of the conditions for which a person can be detained for compulsory treatment under section 3. People with a learning disability and autistic people will only be able to be detained for treatment under Part 2 of the Act if they satisfy the conditions set out in section 3 of the Act, which includes that they have a co-occurring mental disorder which is not learning disability or autism.
35. This change in how the Act applies to patients with a learning disability and autistic people under Part 2 of the Act seeks to ensure that people are only admitted when they have a mental disorder that warrants hospital treatment, which has a reasonable prospect of providing a therapeutic benefit for their mental disorder. The proposed changes also mean that it will no longer be possible to place a person with a learning disability or an autistic person on a CTO unless they have a co-occurring mental health condition that meets the detention criteria. This is supported by the guiding principle of least restriction.
36. The changes to the way the Act applies to people with a learning disability and autistic people detained for assessment or treatment will not apply under Part 3 of the Act (i.e. individuals accused of, or serving a sentence for committing a crime). For this cohort of people, the only alternative to detention in hospital is detention in prison. Consultation with experts following the publication of the 2021 White Paper found that, on balance, detention in hospital is considered more appropriate in the majority of cases than detention in prison, to ensure that people in this cohort are able to access the specialist support they may need. The Ministry of Justice is satisfied that the current application of the detention criteria to people with a learning disability and autistic people detained under Part 3 of the Act enables professionals to make the right decisions for people in this cohort, including where this requires diversion from criminal justice settings into a hospital setting.
37. Clause 3 amends section 1 of the Act. Subsection (2) modifies the meaning of mental disorder under the Act by including new definitions of “autism”, “learning disability” and “psychiatric disorder". Autism and psychiatric disorder were not previously defined in the Act. "Psychiatric disorder" is a new term which covers mental disorder other than learning disability or autism. The definition of “learning disability" is also amended to remove reference to "social functioning", drawing a greater distinction between learning disability and the new definition "autism". Schedule 1 then makes amendments across the Act, to apply these new definitions. The effect of this is that people with a learning disability and autistic people will not be able to be detained for compulsory treatment under section 3 of the Act unless they have a psychiatric disorder, which by the definition, excludes learning disability and autism. They will also no longer be able to be made subject to community treatment orders under section 17A.
38. Subsection (2)(b) inserts a new subsection (2A) in section 1 of the Act which sets out that, for the purposes of the Act, a person's learning disability has “serious behavioural consequences” if it is associated with abnormally aggressive or seriously irresponsible conduct by the person. This currently applies, for the purposes of Part 2, in relation to people with a learning disability in respect of section 3 detention for treatment, section 7 guardianship, section 17A community treatment order, renewals of authority under those provisions and Tribunal discharge criteria from those provisions. Under the changes made by Schedule 1, it will only apply in relation to guardianship. The Bill makes no change to the way the "serious behavioural consequences” threshold applies in respect of people with learning disability under Part 3 of the Act because there is no change to the way the Act applies to them for the purposes of the Part 3 detention criteria.
39. Subsection (2)(c) omits the previous definition of learning disability under subsection (4) of the Act.
40. Subsection (3) inserts definitions of “autism”, “learning disability”, “psychiatric disorder" and "serious behavioural consequences" into section 145 of the Act.
41. Subsection (4) explains the effect of the Schedule 1 amendments to the Act. Schedule 1 amends section 3 of the Act to prevent individuals from being detained on the basis of their learning disability or autism. It also makes related changes in relation to the application of the Act to autism and learning disability.
42. These changes do not apply for Part 3 patients, who will continue to be liable to be detained pursuant to the previous threshold. Paragraph 8 of Schedule 1 sets out the new definition of "relevant disorder" which applies for Part 3 patients, including autism and learning disability which has serious behavioural consequences. Paragraphs 11(2) to (5) and (10) provide that CTOs are available for these patients, where relevant. Paragraphs 11(6) to (9) provide for renewals of detention for unrestricted hospital order patients. Paragraphs 12 to 15 make consequential changes throughout the treatment provisions of the Act for Part 3 patients. Paragraph 17 clarifies that this definition should apply to discharge assessments by the Tribunal for patients subject to Part 3 detention, and paragraph 18 and 19 provide for the same application for restricted patients. Paragraphs 20 to 25 make transitory modifications to ensure the new definitions are given effect in the event these provisions are commenced before section 7, which provides for the new discharge criteria.
Page 4
Source Bill 225 EN 2024-25
43. Clause 4 inserts a new Part 8A into the Act which contains clauses specific to people with a learning disability and autistic people.
44. People with a learning disability and autistic people can be subject to unnecessarily lengthy detentions, which may not meet their needs and provide little or no therapeutic benefit. NHS England issued guidance regarding the holding of reviews – known as Care (Education) and Treatment Reviews – to focus on reducing unnecessarily long stays in hospital and reducing health inequalities.
45. Care (Education) and Treatment Reviews currently focus on whether a patient with a learning disability or an autistic patient is safe and receiving the right care and treatment. They also assess if individuals have any specific needs for social care, special educational provision, or medical treatment. The Care (Education) and Treatment Review panel makes recommendations to overcome barriers related to these key lines of enquiry.
46. Care (Education) and Treatment Reviews are part of current NHS England policy; however, it has been found that their recommendations are not always being acted upon and there is often no process of follow-up, contributing to the perpetuated detention of people with a learning disability and autistic people, often without therapeutic benefit.
47. New section 125A provides for the making of arrangements for ensuring care, education and treatment review meetings take place for children (i.e. those under 18) and adults with an education, health and care plan under the Children and Families Act 2014 detained under certain sections of the Act. By requiring, education and treatment review meetings to be held, the Bill seeks to ensure that the care, treatment and differing support needs of people with a learning disability and autistic people are identified and recommendations as to how to meet these are made so that barriers to progress are challenged and overcome. This measure supports the principle of the person as an individual.
48. Subsection (1) places a duty on the responsible commissioner to make arrangements for ensuring care, education and treatment review meetings in respect of children and adults with an education, health and care plan detained under the Act (subject to the exceptions set out in this clause) take place. This duty applies to patients who the responsible commissioner considers to be autistic or have a learning disability and who give their consent or, where they lack capacity or competence to consent, the responsible commissioner considers that's in their best interests. This includes certain patients detained under Part 3 of the Act. The Secretary of State is to issue guidance to help support the responsible commissioner in exercising their functions, including guidance on factors to consider when determining whether a care (education) and treatment review may be in a patient's best interests.
49. Subsection (2) explains the purpose of a 'care, education and treatment review meeting'. This makes clear a meeting is to consider whether a patient has certain needs and is also to make certain recommendations. The needs and recommendations set out in this clause are designed to ensure that a holistic view is taken of that person's needs and that the most appropriate care and treatment can be provided.
50. Subsections (3) and (4) give further detail on the arrangements referred to under subsection (1). Subsection (3) sets out that the responsible commissioner must make arrangements for a report to be produced following a care, education and treatment review meeting, setting out the needs identified, and recommendations made, and distributed within 14 days to certain bodies (listed in 125A(3)(b)). The bodies identified in 125A(3)(b) play a vital role in the individual's care and treatment and this provision will mean they will receive important information to assist them in this function. The commissioner may also make arrangements requiring or authorising a copy of the report to be sent to other people in addition to those listed in 125A(3)(b). For example, those who have been involved in the review process or who have an interest in the review recommendations, such as an Independent Mental Health Advocate, Nominated Person, or a professional involved in the patient's care and treatment, subject to the patient's consent.
51. Subsection (4) sets out that the arrangements must ensure that care, education and treatment review meetings take place within certain periods. The initial care, education and treatment review meeting must take place within 14 days, starting with the applicable day. Further care, education and treatment review meetings must take place at least once every 12 months (from the date of that first review), during which time the patient continues to be detained. These are maximum timings, meaning that care, education and treatment review meetings can take place sooner, and at shorter intervals, than set out in the legislation. Secretary of State issued guidance will suggest factors to consider as to whether reviews should happen more frequently in different circumstances.
52. Subsection (5) explains what is meant by 'applicable day', which is the day from when the time for holding a review meeting starts to run. This is determined by when the patient was detained under the Act (not including any emergency period under section 4), or when the responsible commissioner forms the view that the patient is autistic or has a learning disability if that is later.
53. Subsection (6) makes clear that a patient may withdraw consent to the review meeting and to the disclosure of information in accordance with the arrangements under subsection (1). Subsection (7) provides that 'arrangements' under subsection (1) must include provision about how consent may be withdrawn and what is to happen when consent is withdrawn.
54. New section 125B covers the arrangement of care and treatment review meetings for adults, (including adults without an education, health and care plan under the Children and Families Act 2014), detained under the Act (subject to the exceptions set out in this clause). This clause makes similar provisions to that in respect of children and adults with an education, health and care plan set out in 125A, though there are key differences. Subsection (4) sets out that arrangements must ensure that care and treatment review meetings take place within certain periods. The initial care and treatment review meeting must take place within 28 days, starting with the applicable day. As with children, and adults with an education, health and care plan, further care and treatment reviews must take place at least once every 12 months (from the date of the first review), during which the patient continues to be detained. As in 125A(4), these are maximum timings, meaning that in practice, care and treatment review meetings can take place sooner, and at shorter intervals, than set out in the legislation. Again, the provisions also apply to some patients detained under Part 3 of the Act.
55. New section 125C requires that the patient's responsible clinician, the responsible commissioner, integrated care board (ICB) and local authority that receive the report produced following the review must have regard to the recommendations in the report. This provision is designed to ensure that recommendations made as part of the review process are given proper weight when making decisions over the individual's care and treatment. This will help to provide the individual with the most appropriate support based on their needs.
56. As part of NHS England's current Dynamic Support Register and Care (Education) and Treatment Review policy and guidance, local health commissioners are required to work with their local partners, including social care and education, to develop and maintain a register of people with a learning disability and autistic people who are at risk of admission to a mental health hospital. This is known as the Dynamic Support Register. The register supports local systems to identify people at risk of admission, review their needs, and mobilise the right support to prevent the person being admitted to a mental health hospital.
57. New section 125D provides a duty on ICBs to establish and maintain a register of people with a learning disability and autistic people, for whom the ICB is responsible, who are at risk of hospital admission under Part 2.
58. Subsection (1) places a duty on ICBs to establish and maintain a register of people for whom the ICB is responsible and who the ICB considers to be autistic or have a learning disability and who have risk factors for detention under Part 2 of the Act.
59. This clause is designed to help ensure that ICBs can monitor individuals at risk of detention and put in place the necessary preventative measures to help keep people out of hospitals. It also creates a duty for the Secretary of State to set out in regulations the factors which make an individual "at risk" for detention. This will ensure consistency in how ICBs make decisions as to which individuals are eligible for placement on the register.
60. Subsection (1)(c) provides that a person must consent to being included in the register (and to the use of their information under the section) or where they lack capacity or competence to do so, the ICB considers that this is in their best interests.
61. Subsection (2) provides that the local authority in which each person included in the register is ordinarily resident must be specified on the register.
62. Subsections (3)(a) and (b) provide a power for the Secretary of State to make regulations specifying the information that an ICB is to include for each individual's entry in a register and the format and content of registers. Subsections (3)(c) and (d) also provide a power for the Secretary of State to make regulations pertaining to information-gathering by the ICB for the purposes of determining if an individual is eligible for inclusion on the register and onward disclosure of this information. This power is designed to ensure the register is maintained in a consistent manner across ICBs and to enable information to be collected and shared appropriately. Subsection (3)(e) provides that regulations may make provision about the withdrawal of consent by a person to their inclusion in the register.
63. Subsection (4) places a duty on the Secretary of State to, by regulations, specify the description of people for which each ICB is ‘responsible' for the purposes of 125D. This must identify be people in relation to which the board has commissioning functions.
64. Subsection (5) provides that “risk factors for detention under Part 2 of this Act" mean factors which the Secretary of State considers increase the probability of a person being detained under the Part 2 of the Act. An ICB will consider such risk factors when deciding whether an individual is eligible for inclusion on the register.
65. New section 125E provides that ICBs and local authorities must have regard to certain information and the needs of the local 'at risk' population when carrying out certain commissioning duties (as set out in the clause). These clauses will help ensure the right community provisions are in place for people with a learning disability and autistic people to avoid unnecessary admissions to inpatient settings.
66. Subsection (1) provides that when an ICB is exercising its commissioning functions it must have regard to the information included in its register and any other information it obtains under the clause. Further, an ICB must seek to ensure that the needs of people with a learning disability and autistic people can be met without detaining them under Part 2 of the Act. This clause is meant to ensure that an ICB has a particular focus on the needs of people with a learning disability and autistic people who are at risk of detention under Part 2 of the Act when undertaking its commissioning functions.
67. Similarly, subsection (2) places a similar duty on a local authority to have regard to certain information and the above needs when exercising its market function. The intention of this clause is to help ensure the necessary adult social care services are available for people with a learning disability and autistic people who are or may be at risk of admission.
68. Subsection (3) provides that 'market function' has the same meaning as in section 5(1) of the Care Act 2014.
69. New section 125F provides that the Secretary of State must publish guidance about the exercise of functions in relation to care, (education), and treatment reviews, registers and duties relating to the commissioning of services for Part 8A of the Act. Responsible clinicians, responsible commissioners, ICBs, and local authorities must have regard to this guidance when exercising their functions under this part of the Act.
70. New section 125G is to be used when interpreting the meaning of the following terms of Part 8A of the Act: 'commissioning functions', 'local authority', 'NHS commissioning body', 'responsible clinician', 'responsible commissioner', 'social care provision' and 'special educational provision'.
71. Subsection (2) provides that references to a patient who lacks capacity in this Part has the same meaning as in the Mental Capacity Act 2005. Subsections (3) and (4) explain how ordinary residence is determined for the purpose of this Part. a. For the purposes of Part 8A, references to ordinary residence, broadly speaking, reflect the new rules for determining ordinary residence of the purposes of section 117 after-care (see clause 44). When it comes to C(E)TRs, the clauses provide that ordinary residence will need to be identified from the point at which the person was admitted to hospital. For the risk register, ordinary residence will need to be determined from the point at which the person was entered on the register and then kept under review.
72. The clauses ensure that the following 'deeming rules' under social care legislation should be applied to the determination of ordinary residence: a. In relation to those aged under 18, section 105(6) of the Children Act 1989 (as modified), which means that, broadly, any periods should be disregarded when the person was living in certain forms of accommodation, including residential schools, accommodation provided by a local authority and section 117 accommodation. b. In respect of adults, section 29(1)-(3) of the Care Act 2014, which provide that where a person has needs that can only be met through care home, supported living or shared lives accommodation, and are living in that accommodation, they are treated as ordinarily resident in the area they lived immediately before they moved into this accommodation. C. In respect of adults, section 39(5) of the Care Act 2014, which provides that a person being provided with accommodation under section 117 of the Mental Health Act 1983 is treated as ordinarily resident in the area of the local authority on which the duty under section 117 is imposed.
73. Some examples of how the ordinary rules would apply are provided below: a. Where local authority A provides an adult with care home accommodation in another local authority area (local authority B), the person will remain ordinarily resident in the area of local authority A. This means that for the purposes of the C(E)TR and the risk register their ordinary residence will remain in local authority A. b. Where a child is living at home with their family in the area of local authority A and is moved to a secure children's home in local authority B, their ordinary residence will remain with local authority A for the purposes of the CETR and risk register. Ordinary residence would remain with local authority A even if the child was detained in hospital and discharged into accommodation provided under section 117 of the MHA, in the area of local authority C.
Part 8A
Page 5
Page 6
Page 7
Page 8
Page 9
Page 10
Page 11
Grounds for detention and community treatment orders
Source Bill 225 EN 2024-25
74. Clause 5 amends the criteria for detention under section 2, 3 and 5 of the Act, and the criteria for renewal of detention under section 20 and amends those who can detain under these sections of the Act to constables and authorised persons. This latter change is a change from the current position, whereby, under section 11, applications for compulsory admission of a patient must be made either by the patients' nominated person or by an approved mental health professional. It makes provision as to the level of risk that a patient must pose in order to be detained. This will change the detention criteria to ensure that people can only be detained under these sections if they pose a risk of serious harm either to themselves or to others. This change supports the principle of least restriction, to minimise restrictions on liberty so far as is consistent with ensuring patient wellbeing and safety, and public safety.
75. Apart from aligning the grounds for discharge with the grounds for detention, these changes do not otherwise affect patients who will be detained under Part 3 of the Act, as orders and directions under this Part already have distinct considerations in relation to risks posed by those in the criminal justice system.
76. Clause 5 subsection (2) amends section 2 subsection (2) (admission for assessment) of the Act by introducing risk criteria. The new provisions set out two new tests that must be met to meet the risk criteria for detention: firstly that "serious harm may be caused to the health or safety of the patient or of another person" and secondly that the decision maker must consider "the nature, degree and likelihood of the harm". The timeframe in which harm may occur may also be a relevant consideration when considering the detention criteria and further guidance on this will be provided in the Code of Practice.
77. The purpose of these changes is to provide greater clarity as to the level of risk of harm that a person must present in order to be detained. Firstly, the "serious harm ” test sets out the severity of the harm a patient must pose in order to fulfil the criteria for detention under section 2. The Bill does not define serious harm, further guidance will be provided in the Code of Practice. Secondly, the "nature, degree and likelihood ” test introduces a new requirement that the clinician must consider the likelihood that this harm will occur, when deciding to admit the individual under section 2.
78. Subsection (3) (a) amends section 3 (admission for treatment) of the Act. It inserts new wording on risk in alignment with the changes to section 2 described above. Section 3(2)(c) of the Act is amended so that the previous wording, which sets out that an application for admission for treatment may be made in respect of a patient on the grounds that “it is necessary for the health or safety of the patient or for the protection of other persons that he should receive such treatment and it cannot be provided unless he is detained under this section" in now sets out at subsection (2) (d), "the necessary treatment cannot be provided unless the patient is detained under this Act”. The purpose of this change is to clarify that, in cases where a patient satisfies the criteria for detention under section 2 and section 3, a choice can be made about which is the most appropriate section to use.
79. Subsection (4) amends the risk criteria for section 5 (detention for six hours pending application for admission) of the Act, again in alignment with the changes to section 2 of the Act.
80. Subsection (5) amends the risk criteria for section 20 (renewal of authority for detention of patient detained in pursuance of application for admission for treatment etc) of the Act, in alignment with the changes to section 3 of the Act so that when a patient's detention is renewed, the new criteria will apply. This change will also apply to Part 3 unrestricted patients, to whom section 20 applies with the modifications in Schedule 1 Part 1.
81. Subsection (6) has the effect of ensuring that the amended risk criteria will apply when a Part 3 patient, who is already subject to orders or directions, has their detention renewed.
82. Subsection (7) amends the interpretation provision (section 145) to include a definition of 'authorised persons' who can detain a patient under the amendments made to sections 2, 3 and 5 of the Act. This definition includes a medical practitioner, approved mental health professional, mental health nurse or doctor, or a person of description specified in regulations made by the Secretary of State.
Page 12
Source Bill 225 EN 2024-25
83. CTOs, introduced as part of the Act in 2007, provide that people subject to section 3 of the Act, who may otherwise remain detained, may be discharged into the community providing they follow certain conditions. CTOs are intended to maintain ongoing contact with mental health services to provide support and help prevent relapse. In certain circumstances, patients subject to a CTO may be recalled to hospital under the Act.
84. Clause 6 amends the criteria for making a CTO under section 17A of the Act, and for renewal of CTOs under section 20A, to align with the new risk criteria for detention. Subsection 2 amends section 17A(5) of the Act to set the same threshold of risk for CTOs as the new risk criteria for detention: firstly that “serious harm may be caused to the health or safety of the patient or of another person" and secondly that the decision maker must consider "the nature, degree and likelihood of the harm,". Subsection (3) substitutes the conditions for renewal of a CTO under section 20A(6) of the Act with the new risk criteria in section 17A(5).
85. This clause also sets out a number of conditions which should be met in order to renew a CTO. The responsible clinician must ensure that CTOs align with the code of practice as set out in section 118(2B). A CTO shall have a maximum duration of 12 months. The responsible clinician may extend the duration of a community treatment order beyond 12 months only after- (i) consulting the patient, the patient's nominated persons, and any relevant mental health care professional involved in the patient's treatment or care planning (ii) undertaking a review process to evaluate the ongoing necessity and therapeutic benefit of the community treatment order (iii) consulting a General Medical Council registered psychiatrist regarding the conditions of the community treatment order and obtaining their written agreement that an extension is necessary and in accordance with the principles set out in section 118(2B).
86. A tribunal may recommend that the responsible clinician consider whether to extend, vary, or terminate the duration and conditions of a community treatment order.
87. Where a community treatment order is extended beyond a period of 12 months, the order shall be subject to review at intervals not exceeding six months.
88. At the conclusion of the default period or any extended period, the responsible clinician must undertake a review to assess the effectiveness of the community treatment order in aligning with the code of practice stipulated in section 118(2B).
89. The purpose of these changes is to ensure that CTOs are only used when there is a risk of serious harm. This change is intended to help prevent the inappropriate use of CTOs.
90. Subsection (4) has the effect of ensuring that the amended criteria for CTOs in subsection 2 applies to Part 3 patients who are already subject to orders or directions. Subsection (5) has the effect of applying the amended criteria in subsection (3) to Part 3 patients who are already subject to a CTO when they are considered for renewal of that CTO.
Page 13
Page 14
Source Bill 225 EN 2024-25
91. Clause 7 amends sections 72 and 73 of the Act, which concern the powers of the First-tier Tribunal (Mental Health) and the Mental Health Review Tribunal of Wales (together, the Tribunal) to discharge patients. The changes in clause 7 subsection (2) align the grounds for discharge of a patient by the Tribunal with the revised grounds for detention as provided by clause 4. A Tribunal must discharge a patient where the patient no longer satisfies the revised detention criteria relevant to their detention.
92. The new discharge criteria will apply to unrestricted Part 3 patients, who are discharged under section 72(1)(b), and to restricted patients, who are discharged under section 73, by virtue of clause 7(3). Subsection (4) has the effect of ensuring these provisions will apply for Part 3 patients who are already subject to orders or directions, the next time they come before the Tribunal.
Page 15
Appropriate medical treatment
Source Bill 225 EN 2024-25
93. Clause 8 of the Bill inserts a new requirement into the Act, in line with the principle of therapeutic benefit, that when considering whether medical treatment under the Act is "appropriate" for a patient, consideration must be given to whether there is a reasonable prospect that the outcome of the treatment would have a therapeutic benefit for that patient. The existing definition of "medical treatment" in the Act currently requires any medical treatment for mental disorder to have a therapeutic benefit purpose by virtue of section 145 subsection (4) and the clause moves that definition to the front of the Act, alongside the new definition of "appropriate medical treatment" so that both definitions, and therefore the need for therapeutic benefit to the patient, have a prominent position in the Act. The change will apply to Part 3 patients in the same manner as Part 2.
94. Subsection (2) inserts a new definition of "appropriate medical treatment" into the Act to require that where medical treatment is required under the Act to be "appropriate", the treatment must have a reasonable prospect of alleviating, or preventing the worsening of, the patient's mental disorder or one or more of its symptoms or manifestations, to ensure that therapeutic benefit is considered both in relation to the purpose and likely outcome of the treatment. A “reasonable prospect" is one where there is a reasonable possibility that a patient will derive some benefit from the treatment. This does not require the decision maker to conclude that it is more likely than not that the patient will benefit from the treatment. Further guidance on appropriate medical treatment will be provided in the Code of Practice.
95. This new definition applies to the requirement in the criteria for detention under Part 2 section 3, Part 3, and for CTO under section 17A that 'appropriate treatment' must be available to justify detention. This new definition means that in order for someone to be detained or to be subject to a CTO, there must be a reasonable prospect of the patient's detention or placing on CTO resulting in a therapeutic benefit to the patient, as well as the purpose of the detention or CTO being for a therapeutic benefit.
96. Subsections (3) to (11) of the clause make consequential changes to other provisions of the Act, which make reference to treatment needing to be "appropriate" so that the new definition of "appropriate medical treatment" applies to them.
Page 16
Source Bill 225 EN 2024-25
97. Sections 50 to 53 of the Act provide for the remission of prisoners or other detainees with severe mental health needs back to their prison or other place of detention (or, where relevant, their release) where no effective treatment for the mental disorder can be given. This test differs slightly from the detention criteria in the rest of the Act and is distinguished because these patients in practice may refuse to engage with treatment or behave in a disruptive manner such that treatment cannot practically be given. These provisions allow for remission in cases where treatment is available as a general concept, but the circumstances mean it cannot be given to the patient.
98. Clause 9 retains the 'can be given' aspect of the test but standardises the type of treatment to 'appropriate medical treatment' for consistency with the rest of the Act. In practice, this change has no practical or legal effect and is technical in nature.
Page 17
The responsible clinician
Source Bill 225 EN 2024-25
99. A responsible clinician is an approved clinician (a mental health professional, usually a consultant psychiatrist, approved by, or on behalf of, the Secretary of State for the purposes of the Mental Health Act, with statutory roles and responsibilities). The responsible clinician has the overall responsibility for a patient's case under the Act. Certain decisions, such as renewing a patient's detention or placing a patient on supervised community treatment, can only be taken by the responsible clinician.
100. Clause 10 makes two amendments to section 34 subsection (1) (Interpretation of Part 2) of the Act which contains definitions of certain terms used within the Act. The amendments are firstly (a), which adds a new term "relevant hospital", to mean either the hospital that a patient is liable to be detained in or, for a patient on a CTO, the hospital which is responsible for them, and secondly (b), which extends the definition of “responsible clinician" to specify that the responsible clinician has overall responsibility for a patient's care as now, but with the added provision that this is because the managers of the "relevant hospital" have nominated the responsible clinician.
101. Subsections (3) to (6) then make consequential amendments throughout the Act to apply this extended definition of the responsible clinician.
102. The amendment to the definition of "responsible clinician" to refer to a nomination by the hospital managers seeks simply to clarify the current position in relation to how a responsible clinician is assigned overall responsibility for a patient's care and makes no practical change to the role of a responsible clinician or how they are appointed. This is intended to clarify the distinction between the definition and role of the responsible clinician and the new definition of "community clinician" who will have an increased role in relation to patients on CTOs. The responsible clinician would retain overall responsibility for the patient's case. Further detail on the role of the community clinician can be found at clause 21 (Consultation of the community clinician).
Treatment
Source Bill 225 EN 2024-25
104. Clause 11 amends the Act to insert section 56A. This introduces a duty on the approved clinician in charge of the patient's treatment to consider certain matters and take a number of steps when deciding whether to give treatment under Part 4. The duty applies to all treatment given under Part 4 of the Act to any patient, including patients who are consenting, lacking capacity or competence to consent, or withholding consent to treatment.
105. The duty or 'clinical checklist' includes, among other things, the need to consider the patient's past and present wishes and feelings as far as reasonably ascertainable, take reasonably practicable steps to assist and to encourage the patient to participate in treatment decisions, consult those people close to the patient, and identify and evaluate any alternative forms of medical treatment (see subsection (1)). The intention of this clause is to help ensure that, as far as possible, clinical decisions are tailored to the patient's wishes, preferences, and individual needs (including those expressed in the past, for example in an Advance Choice Document or any other relevant written statement made by the patient when they had the relevant capacity), in line with the guiding principle of choice and autonomy. This is to address the fact that some patients have reported in the past that that their wishes have not been given proper consideration, or that insufficient efforts have been made to establish what it is that they want.
106. Subsection (2) of the duty means that, where the patient lacks the relevant capacity or competence, the clinician must in addition to the matters mentioned in subsection (1)- consider any wishes, feelings, views or beliefs they think the patient might have had, if they had the relevant capacity or competence to consent to treatment. This is to ensure that, even where a patient is considered to lack capacity or competence to consent to treatment, efforts are still made to personalise their treatment by, for example, looking at their medical history or past expressions of their wishes and feelings (e.g. those recorded in an Advance Choice Document or any other relevant written statement made by the patient when they had the relevant capacity).
107. Clause 11 also amends other provisions in Part 4 so that, where certification of any treatment is required under the Act, the second opinion appointed doctor or, if applicable, the approved clinician, must confirm in writing whether treatment was given in accordance with the duty under s.56A (sub (3)-(5)) (i.e. the clinical checklist). This is to ensure that the new clinical checklist is followed and that there is written evidence of it having been completed by the approved clinician in charge of the patient's treatment.
Page 18
Page 19
Source Bill 225 EN 2024-25
108. Clause 12 amends the Act by inserting new section 56(B) to clarify the role of the regulatory authority (the Care Quality Commission (CQC) in England and in Wales, the Care Inspectorate Wales) in appointing a second opinion appointed doctor, referred to currently in the Act as a 'registered medical practitioner appointed for the purposes of this Part of the Act by the regulatory authority'.
109. The second opinion appointed doctor acts independently, and under the Bill's measures will be responsible for assessing if, for instance, the patient's compulsory treatment has a therapeutic benefit (in line with the new definition of appropriate treatment in clause 8). In addition, they will need to assess if the new duty on clinicians to follow a clinical checklist, which includes (among other things) consideration of the patient's past and present wishes and preferences and an evaluation of available treatment alternatives, has been followed. By making it the responsibility of the second opinion appointed doctor to provide an independent check on whether these new and important safeguards are upheld, we further embed the principles of therapeutic benefit and choice and autonomy in clinical decision making.
Page 20
Page 21
Source Bill 225 EN 2024-25
112. Clause 13 amends the Act to insert section 57A. This introduces new safeguards for patients who are refusing medical treatment either with capacity or competence at the time, or in a valid and applicable advance decision (which may be expressed as part of someone's Advance Choice Document), or where treatment is in conflict with a decision made by a donee or deputy or the Court of Protection (see subsection (1)). These safeguards only apply to medical treatment for mental disorder falling in the scope of section 58, and those that may be specified in regulations made under section 58 subsection (1)(a). The intention of these new safeguards, particularly those that recognise well-established provisions that exist in the Mental Capacity Act 2005, is to strengthen the patient's influence over their care and treatment, thereby further supporting the principle of choice and autonomy.
113. Section 57A, subsection (3) sets out that, where section 57A applies, and the urgent circumstances under section 62 are not met, then the patient may not be given any forms of medical treatment unless there is a 'compelling reason' to give the treatment and a second opinion appointed doctor has provided certification. In this context, 'compelling reason' constitutes either that no other alternative forms of appropriate medical treatment are available for the patient's mental disorder, or that alternative forms of appropriate medical treatment are available, but the patient has not consented, or they are in conflict with a valid and applicable advance decision, or a decision made by a donee or deputy or the Court of Protection (see subsection (4)). The intention of this part of the clause is to ensure that the approved clinician gives proper consideration to all other avenues of medical treatment that they consider viable, with a view to finding a medication that the patient is content with (or is likely to be content with, where the patient lacks capacity or competence).
114. Where the clinician in charge of the patient's treatment considers that the 'compelling reason' test is met, a certificate provided by the second opinion appointed doctor must confirm the following in order for treatment to be given: that the treatment in question is appropriate (under the new definition of "appropriate medical treatment" in clause 8); that the decision to give treatment was made by the approved clinician in line with the new duty to follow a clinical checklist under section 56A; and that in respect of any available alternative treatment either the patient has not given valid consent or that they appear to conflict with a valid and applicable advance decision or a decision made by a donee or deputy or the Court of Protection. It should be noted that, in line with current practice relating to section 58 certificates, the second opinion appointed doctor's certificate may relate to a plan of treatment including one or more forms of treatment or classes or treatment. The exact contents of the certificate will depend on the nature of the patient's refusal and wider circumstances. Subsection (5) further requires that the second opinion appointed doctor must consult two other people who have been professionally concerned with the patient's medical treatment, as part of the certification process. These changes to the second opinion appointed doctor's responsibilities enhance their role in enforcing new safeguards which support the principles of choice and autonomy and therapeutic benefit.
115. This clause requires that the approved clinician secures the second opinion appointed doctor's certification before treatment is given. This is a significant change from the current legislation, which allows for the use of compulsory medication for a period of three months before assessment by a second opinion appointed doctor is required. By making it so that the second opinion appointed doctor's certification is necessary before medication can be administered in the face of the patient's refusal or the decision of a donee or deputy or the Court of Protection, the intention is that treating clinicians place more value on finding a medication that is acceptable to the patient. A potential result from this is that we see a reduction in the use of compulsory medical treatment where this is in conflict with a patient's refusal and where there isn't a good rationale for administering compulsory treatment, which we know has a negative impact on patient experience.
patient
Page 22
Page 23
Source Bill 225 EN 2024-25
116. Clause 14 amends section 58 of the Act to shorten the 'three-month time-period', after which certification must be provided, to two months. This new time period applies where the patient has capacity or competence in respect of the treatment and consents; or where the patient lacks capacity/competence in respect of the treatment (and there is no conflict with any valid and applicable advance decision, or a decision made by a donee or deputy or by the Court of Protection). By bringing forward the second opinion appointed doctor's assessment to two months, the use of compulsory medication where the patient lacks capacity/competence to consent, receives independent scrutiny at an earlier point in the patient's treatment course. This helps to ensure that the patient's right to self-determination is being upheld and that the treatment is delivering a therapeutic benefit.
117. Where a patient lacks capacity or competence to consent and the compelling reasons test applies within the first two months of medical treatment, to avoid the second opinion appointed doctor's providing two separate certificates (i.e. one to certify the absence of capacity or competence at two months and one to certify treatment under section 57A), the second opinion appointed doctor is able to provide a single combined certificate covering both issues. This may help to streamline responsibilities on the second opinion appointed doctor's service and minimise administrative burden.
Source Bill 225 EN 2024-25
118. This clause amends section 58A (which currently only applies to electro-convulsive therapy) such that it is no longer the role of the second opinion appointed doctor to certify that the decision to administer electro-convulsive therapy is not in conflict with any valid and applicable advance decision, or a decision of an attorney or deputy or the Court of Protection. Instead, this will need to be established by the patient's approved clinician, who will then decide if referral to a second opinion appointed doctor is applicable. This is different to the approach taken under section 57A, where the second opinion appointed doctor is required to certify the presence of valid and applicable advance decision, or decision of an attorney or deputy or the court, before treatment can be given. The main reason for this difference is that, in the case of section 57A, the contents of the advance decision or decision of an attorney or deputy or the court are integral to establishing if a certificate should be issued to permit the use of compulsory treatment, while in the case electro-convulsive therapy the simple presence of an advance decision, or decision of an attorney or deputy or court to refuse electro-convulsive therapy should prevent the use of this treatment.
119. If the approved clinician finds that treatment would not conflict with any of the above, but that the patient lacks capacity to consent, then the second opinion appointed doctor must certify the following before treatment can be given: that the patient lacks capacity to consent; that the treatment is appropriate; and that the decision to give treatment was made in line with section 56A. Compared to the second opinion appointed doctor's current role, under the Bill they will have to apply the new definition of appropriate medical treatment (see clause 7), which puts a greater emphasis on ensuring therapeutic benefit to the patient, and they will need to ascertain if the treating approved clinician has followed the new clinical checklist in coming to their decision to administer electro-convulsive therapy, thereby helping to embed the guiding principle of choice and autonomy.
Page 24
Source Bill 225 EN 2024-25
120. Clause 16 makes changes to section 61 of the Act to set out the timing at which a report must be provided by the approved clinician to the regulatory authority (in England the CQC, in Wales the Healthcare Inspectorate Wales (HIW)) on the patient's treatment and their condition, where they are not consenting to treatment, so that it is after six months, then six months, then 12 months, within two months of these timeframes. This includes Part 3 patients who have been transferred from guardianship under section 19 regulations, and Part 3 patients who have had a community treatment order revoked after 6 months has passed since their hospital order (new 61(1B). Part 3 CTO-revoked patients within 6 months of their hospital order, and all other Part 3 patients, will retain their existing reporting periods (new 61(1C), bringing all patients into line. This is in line with the current legislation, which requires that a report is provided at the point of each detention renewal, as per section 20, with the exception of the first renewal of section which under the Bill would be at 3 months for relevant cohorts.
121. This clause also gives the regulatory authority the power to require that the approved clinician provides them with a report on the patient's treatment and their condition, where the patient is found to be consenting to treatment falling under section 58A and section 58. If the regulatory authority identifies any concerns, they have the power to require further reports from the approved clinician.
Page 25
Source Bill 225 EN 2024-25
122. Clause 17 removes the power to administer urgent treatment to patients with the relevant capacity or competence on the basis that it is considered immediately necessary to alleviate serious suffering by the patient, as is currently permissible under section 62 of the Act. In practice, this change allows patients who have capacity or competence at the time to decide on the degree of suffering they are willing to accept, strengthening the patient's right to self-determination and thereby further embedding the principle of choice and autonomy. This change does not apply to patients who lack the relevant capacity, including those who made an advance decision. This clause otherwise seeks to maintain the ability to administer compulsory medication in urgent circumstances, providing a backstop for exceptional situations.
Source Bill 225 EN 2024-25
123. Clause 18 inserts new section 62ZA, which introduces additional safeguards for patients where the approved clinician wishes to overrule their refusal of urgent section 58A treatments (currently just electro-convulsive therapy) made with capacity/competence, either at the time or in a valid and applicable advance decision, or where the urgent treatment would conflict with the valid decision of a donee or deputy, or a decision of the Court of Protection.
124. Subsection (2) permits an approved clinician to administer treatment if the patient has consented with capacity or if the patient has refused with capacity but, a second opinion appointed doctor has certified the treatment. Subsection (3) permits treatment if the patient lacks capacity to consent or if the patient lacks capacity, but the treatment conflicts with a valid and applicable advance decision, or a decision of a donee, deputy or the Court of Protection and a second opinion appointed doctor has certified the treatment.
125. According to subsection (4) and subsection (5) the certificate must confirm the following: the patient's capacity/competence and that the decision to give treatment conflicts with their refusal either made at the time or in a valid and applicable advance decision or by a donee or deputy or the Court of Protection; that the decision to give treatment was made by the clinician in charge in accordance with section 56A; and that the relevant urgent criteria in section 62 are met. Current legislation allows urgent electro-convulsive therapy to be administered by the approved clinician without the certification of a second opinion appointed doctor. By requiring the external scrutiny of a second opinion appointed doctor where treatment is being given in the face of a refusal, the patient's autonomy is further protected, and it is better ensured that urgent electro-convulsive therapy is only administered when there is a strong justification for doing so. We recognise that, again, this approach diverges from the changes made under Clause 15. That is because, in this case, the presence of an advance decision does not prevent the use of treatment, and the contents of the advance decision may be important to establishing if a certificate should be issued to permit the use of compulsory treatment.
126. Subsection (6) requires that, before giving a certificate, the second opinion appointed doctor must, if practicable to do so, consult with a nurse who has been professionally concerned with the patient's medical treatment, who is neither the responsible clinician nor the approved clinician in charge of the treatment in question, as well as the patient's nominated person (see clause 23). Consultation with the nurse is to provide a clinical perspective on the patient's condition and the necessity of the treatment in question, which is separate to that of the approved clinician's. Consultation with the Nominated Person is so that the second opinion appointed doctor can independently gain an understanding of the patient's wishes and feeling, beliefs and values, particularly where the patient is too unwell to engage with the second opinion appointed doctor at the time.
127. Due to the urgent nature of the second opinion appointed doctor's role, subsection (7) states that the request must be made as soon as is reasonably practicable, so that the regulatory authority (in England the CQC, in Wales the Healthcare Inspectorate Wales (HIW)) can, in turn, appoint a second opinion appointed doctor as soon as possible.
128. Clause 18 inserts new section 62ZB which sets out that, where the regulatory authority determines that there are exceptional circumstances, which mean that there will be a delay in appointing a second opinion doctor, the second opinion function may be carried out instead by the approved clinician in charge of the patient's treatment. The appropriate clinician must consider the treatment immediately necessary to save the patient's life. Treatment is no longer permitted in reliance on a certificate given by the approved clinician once a second opinion doctor has been appointed under section 56B. The reason for this 'back-stop' is to allow for treatment to go ahead, in the rare instances where the second opinion appointed doctor is unexpectedly prevented from undertaking their role and it is not possible to appoint another second opinion appointed doctor in a safe time period.
129. To ensure that these limited occasions are monitored, each time a patient is given treatment in reliance on a certificate given by the approved clinician, the managers of the hospital or registered establishment in which the treatment is given must notify the regulator as soon as reasonably practicable. The regulator must then report on this in their annual report under section 120D, as set out in subsection (4). Specifically, they must report on the number of times there was a delay in appointing a second opinion appointed doctor, the reasons for this, and how many times the hospital administered treatment in reliance on a certificate given by the approved clinician.
130. Section 62ZC gives the appropriate national authority the power to impose duties on the following by way of regulations: (a) the managers of hospitals or registered establishments; (b) approved clinicians, or (c) the regulatory authority, for the purpose of ensuring that the second opinion appointed doctor's certificate of treatment is given within a specified time period. This is to ensure that the second opinion appointed doctor's assessment is undertaken within a safe time period, such that the patient is not put at undue risk. Regulations under this section may make provision to specific exceptions, such as applying section 62ZA to certain types of treatment under section 58A but not others, and for different cases, such as where the patient lacks the capacity or competence to consent to the treatment. This is because, while currently section 58A applies to electro-convulsive therapy only, if existing regulations are used to insert other treatments under this section, then such treatments may not necessitate the same second opinion appointed doctor certification process as for electro-convulsive therapy. Similarly, it may make sense to only provide for second opinion appointed doctor certification within specific timeframes in particular circumstances.
Page 26
Page 27
Page 28
Source Bill 225 EN 2024-25
131. Under the Act and the Bill, second opinion appointed doctors, or other people appointed by the regulator, are responsible for conducting interviews or examinations for the purpose of carrying out second opinion functions in relation to a person's treatment. This clause makes clear that interview and examination is permitted to take place remotely by live video or audio-link in relation to these functions, where this is considered appropriate. Where this is not the case, in-person interview or examination should take place. The intention of this 'hybrid' approach is to improve the effectiveness of the second opinion service under the Act.
Source Bill 225 EN 2024-25
132. Under the current Act, the patient's mental capacity or competence to consent to or refuse treatment is expressed by reference to whether the patient is "capable of understanding the nature, purpose and likely effects" of that treatment. In clinical practice, this is understood to refer to capacity or competence. This position is confirmed in the Code of Practice. Clause 20 amends this wording to references to 'capacity or competence to consent'. While this amendment is not expected to create a practical change in clinical approaches to assessing capacity or competence, this change provides clarity by confirming the shared legal concepts between the Act and the Mental Capacity Act 2005 Act (the 2005 Act). It also brings Part 4 in line with Part 4A of the Act, which already adopts this terminology.
133. Subsection (6) provides that references in the Bill to “capacity" are applicable to patients who are aged 16 or older, references to “competence" are applicable to patients under the age of 16.
134. Subsection (6) also clarifies that references to an advance decision made by a patient are within the meaning of the 2005 Act. References to "valid and applicable", in relation to an advance decision, means valid and applicable to the treatment in question in accordance with section 25 of the 2005 Act. References to a “donee" are to a donee of a lasting power of attorney created by the patient, within the meaning of section 9 of the 2005 Act, where the donee is acting within the scope of their authority and in accordance with that Act. References to a “deputy” are to a deputy appointed for the patient by the Court of Protection under section 16 of the 2005 Act, where the deputy is acting within the scope of their authority and in accordance with that Act. By cross referencing the 2005 Act, the Bill gives recognition to pre-existing and well-established concepts that seek to provide people with the power to inform their future care and treatment, in case at a later date they are too unwell and lack the capacity to make treatment decisions.
Page 29
Page 30
Source Bill 225 EN 2024-25
135. The Bill will introduce statutory care and treatment plans with respect to all patients formally detained under the Act, excluding those under short term sections (e.g. section 5(2) which allows detention for 72 hours only). This applies to England only, as there is similar provision already in place in Wales. The main purpose of the new statutory plan is to ensure that all relevant patients have a clear and personalised strategy in place describing what is needed to progress them towards recovery and their timely discharge from the Act.
136. Subsection (1) requires that the appropriate practitioner, as defined in section 34, prepares a care and treatment plan, in respect of all eligible patients. Subsection (2) identifies the groups of patients to which the requirement to prepare a care and treatment plan applies, including: those liable to be detained in England excluding under certain provisions, patients who are subject to guardianship where the relevant local authority is England, and patients being under a CTO, with a responsible hospital in England. This excludes patients detained under “short-term" sections (sections 4, 5 subsection (2) or (4),) detention in a place of safety under emergency powers in sections 135 or 136 of the Act, or where there is a direction for Part 3 patients under section 35 subsection (4), 36 subsection (3), 37 subsection (4), 38 subsection (4) or 45A subsection (5), as these patients are not detained long enough to obtain a benefit from a plan.
137. Subsection (3) defines the care and treatment plan as a document containing a plan for meeting the patient's needs, arising from or related to their mental disorder, made in accordance with regulations made by the Secretary of State. The scope of the plan is to include meeting the patient's needs in relation to their care, treatment, leave, and eventual discharge, as well as wider relevant issues such as those relating to the patient's life in the community, for example, their employment and accommodation where this helps meet their needs that arise from or relate to their mental disorder. In addition, the plan may also contain other information, for example, how the patient's communication needs will be met). By setting out what these plans are to contain, the aim is to create a consistent framework that clinicians must follow when preparing a care and treatment plan, thereby helping to ensure that patient's plans are sufficiently comprehensive, while also making them comparable, so they can be more easily quality assured.
138. The plan is also intended to provide evidence about important clinical decisions, such as the reasons behind the individual's detention, as well as evidence of how the patient and those close to them have been included in care and treatment decisions. This is to ensure greater transparency and scrutiny around clinical decision making, such that detention and the use of restrictive practice (e.g. compulsory treatment and seclusion) is only used when there is a robust justification. The Independent Review of the Mental Health Act described the new statutory care and treatment plan as the 'cornerstone' of the reforms, delivering on all four of the guiding principles: choice and autonomy; least restriction; therapeutic benefit; and the person as an individual.
139. Pursuant to subsection (4), the regulations may include 'information' about those with whom the patient has a relationship, or other connection, or those to whom the plan is relevant, if this information is for purposes related to meeting the patient's needs, or for the purposes of reviewing or revising the plan or is information contained in a report produced under new section 125A or 125B (as introduced by clause 4). For example, if the patient has a learning disability, the plan could include how adjustments will be made to communicate information to the patient appropriately e.g. details of someone who will do this, or information relating to the family members the patient wishes to be involved in their care and any updates to their plan (see subsection 4). For patients detained under Part 3 of the Act, this may also include other information related to the victim(s) of the crime the patient has been accused or convicted of, and any criminal justice involvement such as Multi Agency Public Protection Arrangements to protect members of the public.
140. Subsection (5) introduces requirements around when the plan should be reviewed, such as if the appropriate practitioner is notified that the patient's case is to be considered at a Tribunal hearing, following a care education and treatment review meeting (relevant for patients with a learning disability or autistic patients – see clause 4, or when certain people, including the patient or their Nominated Person - see clause 23, make a reasonable request). By setting out clear trigger points, the aim is that the appropriate practitioner keeps the plan up to date and ensures that it reflects the circumstances of the patient's case.
141. Subsection (6) requires that when the practitioner prepares or reviews the plan that, where practicable and appropriate, they do so in consultation with the patient, and others, such as family members engaged in the welfare of the individual, the patient's nominated person, and their independent mental health advocate. The intention is that the plan is prepared in direct collaboration with the patient, or where they are not well enough to engage, those close to them, so that the plan is built around the patient's wishes, preferences, and individual needs, as far as possible, thereby reflecting the principle of choice and autonomy.
142. Subsection (7) gives the Secretary of State the power to make regulations regarding the circumstances under which a patient's plan should be revised and specifying where a plan is to be prepared, reviewed or revised, when that is to be done.
143. Subsection (8) gives the Secretary of State the power to make regulations regarding the disclosure of information contained in the patient's plan, or information held for the purposes of meeting the requirements associated with the plan. For example, this might include the sharing of information regarding the patient or those who the patient wishes to be involved and consulted on their care, between inpatient and community services, to help facilitate the safe and effective discharge of the patient.
144. Subsection (9) specifies that the provisions made in regulations under section 130ZA may be specific to certain groups of patients, or different cases, or transitional, consequential, incidental or supplemental provision. For example, provisions may be made specifically in relation to restricted patients, who are subject to controls by the Secretary of State for Justice, which do not apply to civil patients.
145. The clause inserts new section 130ZB, which sets out how patients' plans will be monitored, to ensure that everyone has a care and treatment plan and that these are made in accordance with the legislation to help ensure they are sufficiently comprehensive and up to date. Subsections (1) and (2) impose requirements on the managers of a hospital (within the meaning of section 145) or a registered establishment in England, or a local social services authority, whichever is relevant, to make arrangements to ensure that plans are prepared in accordance with the relevant duties imposed by section 130ZA. If the responsible authority considers that a patient's plan should be reviewed, they should also make arrangements for the appropriate practitioner in charge of the plan to be requested to review it (subsection (3)).
Page 31
Page 32
Page 33
Community treatment orders
Source Bill 225 EN 2024-25
146. Clause 22 amends section 17A of the Act to require the community clinician responsible for overseeing the patient's care as a community patient, to be involved in decisions regarding the use and operation of CTOs. This covers the decision to make a person subject to a CTO, to vary or suspend conditions made under a CTO, to recall to hospital a patient subject to a CTO, and to revoke a CTO after a patient has been so recalled.
147. In introducing a further professional opinion and check on whether people really need the support of a CTO and in requiring more evidence that a person otherwise presents a risk, or needs the CTO to support a benefit to their mental health, the principle of least restriction and therapeutic benefit is supported.
148. The clause makes a new distinction between a patient's responsible clinician with overall responsibility for them including in hospital, and a community clinician, with the responsibility for the patient in the community, and the clause imposes specific duties on the latter, where the community clinician is not the responsible clinician. Clause 22 subsection 7 amends section 34(1) (interpretation of Part 2) of the Act in order to provide a definition of the community clinician as the approved clinician (as defined in section 145 subsection (1) of the Act overseeing the patient's care as a community patient, or who would oversee the patient's care if they were to become a community patient.
149. Subsection (2) amends section 17A(4) of the Act, to require that, where the responsible clinician is not the clinician who will have care for the patient in the community after discharge, then that community clinician must also agree in writing that the CTO criteria are met. This achieves two aims – continuity of care of the patient from the hospital into the community and additional professional oversight.
150. Subsection (3)(a) amends section 17B(2) of the Act so that a CTO may only specify conditions with the agreement of the community clinician, in addition to the AMHP, as is currently required under section 17B(2).
151. Subsection (3)(b) inserts new subsection 17B(5A), which adds a new requirement that a patient's responsible clinician must consult a community clinician who has been involved with the patient's medical treatment in the community, unless the responsible clinician has so been involved, before varying or suspending conditions made as part of a CTO, unless consultation would involve unreasonable delay. The intention is that the opinion of a community clinician is considered in these circumstances by the hospital responsible clinician.
152. Subsection (4) inserts new subsection 17E(2A) in relation to recalls to require that where the responsible clinician is not the community clinician, before a responsible clinician recalls a patient under a CTO to hospital to provide medical treatment for medical disorder or to manage a risk of harm to the patient or others, they must first consult the community clinician unless consultation would involve unreasonable delay.
153. Subsection (5) inserts new subsection 17F(4A) to require that, after a patient has been recalled to hospital, and before a responsible clinician revokes the CTO to place the patient back on a hospital section, they must first consult the community clinician unless consultation would involve unreasonable delay.
154. Subsection (6) makes amendments to section 20A to require that, when extending a patient's CTO period, the responsible clinician, if they are not the community clinician, must secure a statement in writing from the community clinician that they are satisfied that the CTO criteria in section 20(A)6 are satisfied.
155. Subsections (8) and (9) amend section 80C (removal of patients subject to compulsion in the community from Scotland) and section 85ZA (responsibility for community patients transferred from Channel Islands or Isle of Man). Currently, these sections state that as soon as practicable after the patient's arrival at the place where they are to reside in England or Wales, the responsible clinician shall specify the conditions to which they are to be subject to the CTO. Subsections (8), (9) and (10) add that that these conditions must be that which the AMHP, as currently, and community clinician have agreed should be specified.
Page 34
Page 35
Source Bill 225 EN 2024-25
156. The responsible clinician can add, vary or suspend conditions to a person's CTO to require that the person should fulfil particular criteria. This may include, for example, living in a certain place, attending appointments with mental health professionals, or not taking drugs and drinking alcohol. Recall to hospital should not solely be based on whether a person follows these conditions; rather it should be dependent on whether, in the opinion of the responsible clinician, the patient requires medical treatment in hospital for his mental disorder and there would be a risk of serious harm to the health or safety of the patient or to other persons if the patient were not recalled to hospital for that purpose. However, people on a CTO are often unaware of this and the conditions given to a CTO can therefore be seen as coercive or overly restrictive as not following them can be wrongly understood to be grounds for recall to hospital.
157. Clause 23 makes two amendments in relation to the conditions that a person subject to a CTO may be required to follow.
158. Subsection (1) deletes the words "or appropriate" from the phrase "necessary or appropriate" in section 17B(2), to provide that conditions can only be imposed when they are necessary to serve one or more of the purposes specified.
159. Subsection (2) inserts section 72(3B), which provides a new power for the Tribunal to recommend that the responsible clinician reconsiders whether a particular CTO condition is necessary, in cases where the Tribunal has decided not to discharge a patient from a CTO under section 72(1) of the Act.
Nominated persons
Source Bill 225 EN 2024-25
160. Clause 24 introduces a new statutory role to the Act- the nominated person – to replace the nearest relative. The Act currently provides for the role of the nearest relative. It sets out a hierarchical list of 'relatives' and includes a number of rules for identifying the nearest relative from this list. The Independent Review highlighted that service users and stakeholders consistently found the current model of family and carer involvement outdated and insufficient. This was found to be particularly true of the current nearest relative provisions.
161. The general intention of this reform is that, in place of the nearest relative, a patient would be able to personally select the nominated person to represent them and exercise the relevant statutory functions which the Bill extends. This supports the policy objective of improving support for detained patients and is linked to the wider policy intention to ensure that the views, experiences and expertise of patients are taken into account more fully and more seriously in their care and treatment, by allowing an individual to express their wishes through someone they know and trust. In doing so, these measures support the principle of choice and autonomy.
162. Following the reforms, a nominated person can be selected by the patient at any time when they have capacity / competence to do so. Typically, it is envisaged that nominations would be made: a. In advance of the detention – this could be done via a document that has been signed by the person, the nominated person and 'validated' by a health or social care professional. This would include for instance when a patient has been admitted to hospital informally. b. At the time of the Act assessment – the AMHP would be required to check if a valid nomination has been made, and if not (assuming that the person has the relevant capacity/competence), they could explain what the nomination process involves and see if the person wanted to make a nomination. c. Following detention – a patient would be able to nominate someone to be their nominated person at any time when they have capacity / competence to do so (by following the same process that applies to a nomination in advance of the detention).
163. If someone lacks the relevant capacity / competence to make a nomination at the point of detention or at any other time, and has not previously nominated anyone, a nominated person can be appointed by an AMHP. This nominated person can be in place until the person has the relevant capacity / competence to make their own nomination and does so.
164. The nearest relative currently has a number of important rights and functions under the Act, including: a. The right to require an assessment to be made with a view to admitting the patient to hospital (section 13(4)). b. The right to apply for compulsory admission or guardianship (sections 2,3,4 and 7). C. The right to be consulted or informed before an AMHP makes an application for detention under section 3 or guardianship (section 11(3)-(4)). d. The right to object to section 3 admission or guardianship (section 11(4)). e. The right to order discharge of the patient (sections 23 and 25). f. The right to information given to the detained patient or patient subject to supervised community treatment (section 132(4)). g. The right to apply to the Tribunal (sections 66 and 68(1).
165. The existing nearest relative powers listed in the paragraph above will be transferred to the nominated person role. In addition, the nominated person would be given the following new powers and rights: a. A right to be consulted about statutory care and treatment plans. b. A right to be consulted about transfers between hospitals, and renewals and extensions to the patient's detention or CTO; and C. The power to object to the use of a CTO.
166. Currently, if the nearest relative exercises one of their powers (e.g., the ability to block admission), but the AMHP believes the grounds for this are unreasonable, the only means of overruling them is to remove or displace them as the nearest relative. This can prevent the nearest relative from continuing in their statutory role in supporting the patient while they are detained, even though they may be best equipped to protect and promote the patient's interests.
167. As the nominated person will have been identified by the patient as someone they wish to be involved in representing them when detained under the Act, the Bill seeks to provide that the nominated person's use of a power can sometimes be temporarily overruled, but that this does not require the nominated person being removed or displaced altogether, to ensure that where appropriate they continue to have a role in the patient's care and treatment while they are detained.
168. The nominated person powers to which overruling would apply are the following: a. The right to object to section 3 admission or guardianship; b. The new right to object to the use of a CTO; and C. The right to order discharge of the patient from detention, CTO, or guardianship.
169. The process in which the use of a nominated person power can be overruled is via section 25 of the Act (i.e. the barring order). Currently, under section 23, the nearest relative can order a patient's discharge from detention or from a CTO (where this follows detention under section 3). The nearest relative must give 72 hours' notice in writing to the hospital.
170. The nearest relative's order may be barred if, within the 72 hours, the patient's responsible clinician provides a written ‘barring' report that they consider that the patient, if so discharged, 'would be likely to act in a manner dangerous to other persons or to himself' (under section 25).
171. The barring report prevents the nearest relative from ordering discharge at any time in the six months following the date of the report. This time period has been amended by the Bill to three months in order to align with the updated detention periods set out in these reforms. This is set out under clause 26.
172. Under section 66, if the patient is detained under section 3 or on a CTO following section 3, then the nearest relative may, within 28 days of the barring report being issued, apply to the Tribunal for the patient's discharge instead.
173. All of the above relating to the barring order will apply for the nominated person.
174. Clause 24 introduces Schedule 2 and describes its contents. The Schedule deals with the appointment of a nominated person and transfers existing functions conferred on the nearest relative. The new functions conferred on a nominated person are provided for by clauses 24 to 28.
175. Schedule 2 inserts section 30A and section 30B into the Act.
176. New section 30A introduces new Schedule A1 into the Act which confers the power to appoint a nominated person for a patient for the purposes of this Act and makes provision about the duration of the appointment.
177. New section 30B 'Power of court to terminate appointment of nominated person' replaces section 29, which sets out the procedure for displacement of a nearest relative. It provides that the county court may make an order terminating the appointment of a nominated person. An order may be made on the application of the patient, an AMHP, or any person engaged in caring for the patient or interested in the patient's welfare.
178. An application for an order under this section may only be made on the grounds that - a. The nominated person unreasonably objects to the making of an application for admission for treatment, or a guardianship application in respect of the patient; b. The nominated person has, without due regard to the welfare of the patient or the interests of the public, exercised the power to discharge the patient under this Part of the Act or is likely to do so; C. The nominated person unreasonably objects to the making of a CTO in respect of the patient; d. The patient has done anything which is clearly inconsistent with the nominated person remaining the patient's nominated person. This is intended to ensure that the person does not become locked-in with a nomination they wouldn't want. For example, where the patient clearly does not like their nominated person but lacks capacity to revoke them, and the criteria for displacement are not met; e. The nominated person lacks the capacity or competence to act as a nominated person; and f. The nominated person is otherwise not a suitable person to act as a nominated person.
179. Where an order under this section terminates the appointment of a nominated person for a patient, the person is disqualified from being re-appointed, for the period specified by the court in the order.
180. Schedule A1 concerns the appointment of a nominated person by a patient. A person (the "patient") may appoint a person to act as their nominated person for the purposes of the Act.
Source Bill 225 EN 2024-25
204. Clause 25 subsection (2) inserts references to the nominated person into section 11 so that the AMHP should be required to consult the nominated person before they make an application for admission for treatment or guardianship (unless it is not reasonably practicable, or it would involve unreasonable delay). This also amends section 20, requiring the responsible clinician/appropriate practitioner to consult the nominated person before providing a report for the purposes of renewal of detention or guardianship.
205. The nominated person can object to the making of an application for admission for treatment or the making of a guardianship application by notifying the AMHP or the local social services authority on whose behalf the professional is acting. Where a nominated person objects to the making of an application, the application may be made only if it is accompanied by a report certifying that in the opinion of the AMHP, the patient if not admitted for treatment or received into guardianship, would be likely to act in a manner that is dangerous to other persons or to themselves. The changes in the Bill allow the AMHP to make use of the barring order on this occasion as AMHPs are professionally fit to judge whether the patient would act in a dangerous manner if they were not admitted or received into guardianship.
206. Section 66, which refers to the nearest relative's right to apply to the Tribunal for the patient's discharge, is also being amended to apply to the nominated person and apply where their objection to detention, and guardianship is being overruled.
Page 36
Source Bill 225 EN 2024-25
207. Clause 26 substitutes the word nominated person for nearest relative in section 25 of the Act (restrictions on discharge by nearest relative). The current time limit of six months (i.e. the nearest relative cannot make another order for the discharge of the patient during six months within the date of the report) is also changed to three months. This is to reflect the changes in detention periods from six months to three months (see clause 29: Detention periods).
Source Bill 225 EN 2024-25
208. This clause inserts the new section 17AA 'Community treatment orders: role of nominated person'. Before the responsible clinician makes a CTO, they must consult the patient's nominated person (unless it is not reasonably practicable, or it would involve unreasonable delay). Currently, the nearest relative should be informed of the patient being put on a CTO but there is no requirement to consult with them on the decision, meaning that they currently cannot object to this. Under the reforms, a patient's nominated person may object to the making of a CTO by notifying the responsible clinician.
209. Where the nominated person objects to the making of a CTO by notifying the responsible clinician, the CTO may not be made unless the responsible clinician certifies in writing that it is their opinion that the patient should be discharged and if discharged without a CTO being in force, the patient would be likely to act in a manner that is dangerous to other persons or to themselves (i.e. the barring order would apply).
210. Section 66, which refers to the nearest relative's right to apply to the Tribunal, is also amended to cover objections by the nominated person under section 17AA(3) (making a CTO) (subsection(5)).
Page 37
Page 38
Source Bill 225 EN 2024-25
211. Currently the nearest relative should be informed if the patient needs to be transferred from one hospital to another but there is no requirement to consult with the nearest relative on the decision, meaning that the nearest relative currently cannot object to this. Clause 28 establishes a new right for nominated persons to be consulted about transfers between hospitals. It amends section 19 so that before deciding to transfer a patient between hospitals, the person responsible for taking that decision must consult the patient's nominated person, unless consultation is not reasonably practicable or would involve unreasonable delay.
Detention periods
Source Bill 225 EN 2024-25
212. Clause 29 shortens the period that a patient admitted to hospital may be kept in detention for treatment. This change will mean that a patient's initial detention period will expire sooner and if the patient's detention is to continue it must be reviewed and renewed more frequently. This clause is informed by the principle of least restriction and therapeutic benefit.
213. Subsection (2) inserts a new subsection (2A) into section 19 of the Act. The effect of this provision is to treat guardianship patients who are transferred to hospital, for the purpose of section 20, as having been admitted for treatment on the date that they are transferred.
214. Subsection (3) substitutes section 20 subsection (1) and (2) of the Act and also inserts a new section 20(2A). Amended section 20 subsection (1)(a) provides that a patient may not be kept in detention for treatment for longer than three months without the authority for the patient's detention being renewed. Amended section 20 subsection (1)(b) retains the six-month initial detention period for guardianship patients.
215. The new section 20 subsection (2) of the Act will provide for shorter detention periods where the authority for detention from the expiration of the period referred to in section 20(1)(a) is renewed. Relevantly, the new section 20 subsection (2)(a) provides that the authority for a patient who is detained in hospital for treatment, can be renewed for a further three months. This amendment shortens the subsequent detention period from six months to three months. Section 20 subsection (2)(b) provides that the authority for detention from the expiration of the period referred to in section 20 (2)(a) may only be renewed for a further six months. This shortens the subsequent detention period from one year to six months. Thereafter, section 20 subsection (2)(c) allows for the authority to detain a patient for treatment to be renewed for successive periods of one year.
216. The new subsection (2A) retains the existing periods of renewal for guardianship. Unlike detention for treatment and CTOs, concerns have not been raised around the renewal periods for guardianship. The authority to detain a patient under guardianship can be renewed after the initial six months of detention for a further period of six months, and thereafter for successive periods of one year.
217. Clause 28 subsection (4) amends section 21B to insert references to the new section 20 subsection (2A) at sections 21B subsection (5) and (6)(b) so that the section cross refers where appropriate to the new amended detention period provisions.
218. Clause 29 subsection (5) amends Part 1 of Schedule 1 of the Act, which applies the provisions of Part 2 of the Act, with modifications to unrestricted Part 3 patients. The effect of these amendments is to apply the shortened detention periods under section 20 subsection (1) and (2) to unrestricted Part 3 patients who have been transferred from guardianship to hospital (new paragraph 5B of Schedule 1 Part 1) or whose CTO is revoked, and the revocation occurs more than six months after the original hospital order was made (new paragraph 5D of Schedule 1 Part 1). For all other unrestricted Part 3 patients (including those whose CTO is revoked, and the revocation occurs less than six months after the original hospital order was made, via new paragraph 5C to Schedule 1 Part 1) the periods under section 20 subsection (1) and (2) are modified, so that the initial detention period for these cohort of patients remains six months (new paragraph 6 of Schedule 1 Part 1). This is because hospital orders are made by the sentencing court and as such the initial detention for these patients will have been subject to a robust judicial-led process. Where such patient's detention is to continue, the authority for detention can be renewed for a further six months and thereafter yearly. Paragraph 5(c)(ii) and 6 have the effect of ensuring that renewal periods for transferred guardianship patients run from date of transfer.
219. Clause 29 subsection (6) amends Part 2 of Schedule 1, paragraph 5, which applies certain provisions of Part 2 of the Act with modifications to restricted Part 3 patients.
Page 39
Page 40
Page 41
Periods for applications and references to tribunal
Source Bill 225 EN 2024-25
220. In England, the First-tier Tribunal (Mental Health), which is part of the Health, Education and Social Care Chamber of the First-tier Tribunal and, in Wales, the Mental Health Review Tribunal for Wales (together the “the Tribunal"), are independent judicial bodies which have the power to direct the discharge of a patient or recommend the discharge of certain offender patients subject to special restrictions, where it considers that the patient should no longer be detained under the Act.
221. A patient's detention is reviewed by the Tribunal on application by or on behalf of the patient, on referral from the Secretary of State (or in Wales by Welsh Ministers) or on referral by hospital managers for certain patients, where a patient's case has not been considered by the Tribunal within a specified period.
222. The Bill extends the period during which a patient may apply to the Tribunal and extends the existing referral system to increase the frequency and widen the group of patients in respect of whom referrals to the Tribunal must be made ("automatic referrals").
223. These changes are intended to ensure patients have greater access to the Tribunal and those patients who lack the ability or initiative to make an application to the Tribunal can benefit from the safeguard of increased independent judicial scrutiny of their detention by the Tribunal on a more regular basis. This measure is informed by the principle of least restriction.
224. Section 66(1) of the Act provides patients detained under Part 2 of the Act, and on certain occasions, their nearest relatives, the right to make an application to the Tribunal to have their detention reviewed. Section 66(2) of the Act sets out the periods for when patients (or their nearest relatives) may make such an application. These periods vary depending on the section of the Act under which a patient is detained.
225. Section 75 of the Act makes provision for the occasions when a referral must be made, or the period an application may be made to the Tribunal, in respect of a restricted patient who has been conditionally discharged.
226. Clause 30 will extend the period in which a patient admitted in pursuance of an application for assessment may apply to the Tribunal to be discharged from detention. Clause 30 also provides conditionally discharged patients the right to apply to the Tribunal for a review of their detention.
227. Subsection (1)(a) amends section 66(2)(a) of the Act (applications to Tribunals) to extend the period in which a patient detained under section 2 of the Act who is detained in hospital pursuant to an application for assessment, can apply to the Tribunal from 14 days to 21 days, beginning with the day on which the patient is admitted.
228. Subsection (1)(b) amends section 66(2)(b) of the Act, to reduce the period in which a patient who is admitted to a hospital under section 3 of the Act in pursuance of an application for admission for treatment, can apply to the Tribunal, from six months to three months. This change reflects the amendments made by clause 28(3), which shortens the initial detention period for patients admitted for treatment under section 3 from six months to three months.
229. Subsection (2)(a) amends section 75(1) to clarify that `conditionally discharged' means a patient who is discharged under section 42(2), 73 or 74 of the Act.
230. Subsection (2)(b) amends section 75(2) to clarify that `conditionally discharged' patients, who are not subject to conditions amounting to a deprivation of liberty under the 2005 Act (“DoL conditions") and who have not been recalled to hospital, have the right to make an application to the Tribunal for a review of their detention between 12 months and two years from the date on which the patient was conditionally discharged or ceased to be subject to DoL conditions, and thereafter every two years.
231. Subsection (2)(c) inserts a new subsection (2A) after section 75(2) of the Act to provide patients who are conditionally discharged and subject to DoL conditions the right to make an application to the Tribunal between six months and 12 months from the date on which the patient became subject to the DoL conditions and thereafter every two years.
Page 42
Source Bill 225 EN 2024-25
232. Section 68 of the Act places a duty on hospital managers to refer patients automatically to the Tribunal in specified circumstances. This section applies to patients who are detained in hospital under Part 2 of the Act, patients detained in hospital under Part 3 of the Act who are not subject to any special restrictions (“unrestricted Part 3 patients"), and patients subject to a community treatment order.
233. Clause 31 amends the Act in relation to automatic referrals by hospital managers for those patients to whom section 68 of the Act applies.
234. Subsection 4(b) amends section 68 subsection (2) of the Act so that the duty on hospital managers to make a referral arises on the expiry of the “relevant period". The "relevant period" is defined by the insertion of a new subsection (4A) to the Act. The "relevant period" varies depending on the type of patient as set out below. Broadly the intended effect is for automatic referrals to immediately follow the expiry of the period in which a patient could make an application to the Tribunal.
235. Subsection (4)(c)(i) and (ii) amends section 68 subsection (3) of the Act so that the duty on a hospital manager to make a referral under the amended section 68 subsection (2) will not arise where a patient has exercised their right to apply as specified by section 68 subsection (3) to the Tribunal during the "relevant period". In these circumstances an automatic referral will not be necessary as the patient's case will have already been considered by the Tribunal.
236. Subsection (4)(e) inserts a new subsection (4A) to the Act to bring forward the automatic referral period. Subparagraph (a) of the new subsection (4A) requires hospital managers to refer patients who are detained pursuant to an application for admission for assessment ("section 2 patients") whose detention has been extended under section 30B(4), to the Tribunal three months from the day on which the patient was detained under section 2 of the Act.
237. Subparagraph (b) of the new subsection (4A) describes the circumstances in which an automatic referral must be made earlier and at more frequent intervals in respect of patients who are admitted for treatment under section 3 ("section 3 patients"). A hospital manager must refer a section 3 patient to the Tribunal, three months from the day on which the patient was first detained under section 3, including any period in which a patient was detained under section 2 for assessment. Where a section 3 patient's detention is renewed, the hospital managers must make a referral to the Tribunal, 12 months from the day on which the patient was first detained and thereafter on any subsequent renewal, a referral must be made on the expiry of each subsequent 12 month period.
238. Subparagraph (c) of the new subsection (4A) describes the circumstances in which an automatic referral must be made in respect of patients who are subject to a CTO (“community patients"). Subsection 4(f)(ii) amends section 68 subsection (5) of the Act so that reference to "the applicable day" in respect to community patients means the date on which the CTO was made. These provisions provide that a hospital manager is under a duty to refer a community patient to the Tribunal on the expiry of six months, 12 months and thereafter every subsequent period of 12 months from the date on which the CTO was made.
239. Subsection (4)(h) removes section 68 subsection (7) of the Act so that there is no longer an automatic referral following the revocation of a CTO. In practice, it was found that this automatic referral was an ineffective safeguard, as often the patient is either back in the community subject to a new CTO or they have reverted to a section 3 patient, before the Tribunal has reviewed their case.
240. Where a patient's CTO is revoked, by virtue of section 17G of the Act (effect of revoking CTO), the patient is treated as if they have been admitted pursuant to an application for admission for treatment. Subsection (2) amends section 17G(5) to include reference to section 68. This amendment allows the automatic referral periods in the new subsection (4A)(b) to apply afresh from the date on which the CTO is revoked. For such patients, a hospital manager will be under a duty to make a referral to the Tribunal on the expiry of three months, 12 months and thereafter each subsequent period of 12 months from the date that the CTO was revoked.
241. Section 19 of the Act governs the regulations that may be prescribed in relation to the transfer of patients. Section 19(2)(d) provides that where a patient is transferred from guardianship to a hospital, they are treated as having been admitted to hospital for treatment from the date that the guardianship application is accepted. Subsection (3) inserts reference to section 68 to the new subsection 19(2A), which is inserted by clause 28 subsection (2) after section 19 subsection (2) of the Act. The effect of this provision is to treat transferred guardianship patients, for the purpose of section 68, as having been admitted for treatment on the date that they are transferred to hospital. This amendment allows the automatic referrals in the new subsection (4A)(b) to apply to transferred guardianship patients. For such patients, an automatic referral will arise on the expiry of three months, 12 months and thereafter each subsequent period of 12 months from the date of the transfer.
242. As revoked CTO patients and patients transferred from guardianship are treated as patients who are admitted to hospital on the date of the revocation or transfer, such patients would fall within section 68 subsection (1)(b) of the Act (admission for treatment). Consequently, section 68(1)(d) and (e) of the Act is repealed by subsection (4)(a) and section 68 subsection (5)(d) is repealed by subsection (4)(f)(iii) as these provisions are no longer necessary.
243. Subsection (7) amends Part 1 of Schedule 1, paragraph 10 of the Act, to ensure that Part 3 guardianship order patients who are transferred to hospital and Part 3 CTO patients whose CTO is revoked and a period of more than six months has passed since the courts first made an order under Part 3 of the Act have the same automatic referral periods as Part 2 patients who have been transferred from guardianship to hospital and Part 2 patients whose CTO has been revoked.
244. Subsection 4(g) amends section 68 subsection (6) of the Act to reduce the automatic referral period from three years to 12 months. The effect is to require hospital managers to refer all Part 2 patients and unrestricted Part 3 patients, to whom section 68 applies, to the
Page 43
Page 44
Page 45
Page 46
Page 47
Discharge: process
Page 48
Patients concerned in criminal proceedings or under sentence
Page 49
Page 50
Page 51
Page 52
Page 53
Page 54
Help and information for patients
Page 55
Page 56
Page 57
Page 58
After-care
Page 59
Page 60
Miscellaneous
Page 61
Page 62
Man
Page 63
Page 64
Page 65
Page 66
Page 67
General
Page 68
Page 69
Schedules
Application of the 1983 Act to autism and learning disability: amendments
and transitory provision
Amendments of Part 2 of the Mental Health Act 1983
Page 70
Amendments of Part 3 of the Mental Health Act 1983
“Application of Part 3: “relevant disorder”
Page 71
Page 72
Amendments of Part 4 of the Mental Health Act 1983
Page 73
Amendments of Part 4A of the Mental Health Act 1983
Amendments of Part 5 of the Mental Health Act 1983
Page 74
Transitory modifications of the Mental Health Act 1983
Page 75
Nominated persons
Part 1
Appointment etc
“Nominated persons: appointment and removal
Page 76
Page 77
Nominated person
Part 1
Appointment of nominated person by a patient
Right of patients etc to appoint nominated person
Who can be appointed by a patient as a nominated person?
Appointment formalities
Page 78
Duration of appointment
Termination of appointment by patient
Page 79
Resignation of nominated person
Part 2
Appointment of nominated person by an approved mental health
professional
Power of approved mental health professional to appoint nominated person
Page 80
Who can be appointed by an approved mental health professional as a nominated
person?
Selection of nominated person
Page 81
Page 82
Appointment formalities
Notification of appointment
Duration of appointment
Page 83
Termination of appointment by approved mental health professional
Termination of appointment by relevant patient
Page 84
Resignation of nominated person
Part 3
Definitions
“Health or care professional”
“Independent mental health advocate”
“Capacity”
Page 85
“Relevant managers”
“Relevant local social services authority”
Page 86
“Relevant patient”
Part 2
Functions of nominated person
Page 87
Page 88
Part 3
Patients concerned in criminal proceedings etc: functions of nominated
person
Page 89
Independent mental health advocates
Page 90
Page 91
Page 92
Page 93
Page 94
No amendments available.