Mental Health Bill [HL] 2024-26 Amendments

Amendment Filters

Your selections will update the bill and amendment list to show only amendments matching your chosen criteria.

Amendment Type

Government (1)

Opposition (0)

Backbench (0)

Amendment Status

Agreed ✔ (1)

Display Options

Bill Content
List of Amendments

Page 1

Code of practice

Principles to inform decisions

In section 118 of the Mental Health Act 1983 (duty to prepare code of practice,

including principles which the person making it thinks should inform decisions

under the Act) for subsection (2B) substitute—

“(2B)

The statement of principles must, in particular, include the principles,

and address the matters, specified in the table.

Principle

Matters to be addressed

Choice and autonomy

involvement of patients in decision-making,

and consideration of the views of carers

and other interested parties

Least restriction

minimising restrictions on liberty so far as

consistent with patient wellbeing and

safety and public safety

Therapeutic benefit

effectiveness and appropriateness of

treatment

The person as an

treating patients with dignity and respect

individual

and considering their attributes and past

experiences”

Application of principles to Wales

(1)

Section 118 of the Mental Health Act 1983 is amended as follows.

(2)

In subsection (1), for “Secretary of State” substitute “appropriate national

authority”.

(3)

In subsection (2)—

Page 2

(a)

for “The code” substitute “A code prepared under this section”;

(b)

for “Secretary of State” substitute “appropriate national authority”.

(4)

In subsection (2A)—

(a)

for “The code” substitute “A code prepared under this section”;

(b)

for “Secretary of State” substitute “appropriate national authority”.

(5)

In subsection (2C), for “Secretary of State” substitute “appropriate national

authority”.

(6)

For subsection (2D) substitute—

“(2D)

Any person for whose guidance a code of practice under this section

is prepared or revised must have regard to the code.”

(7)

For subsection (3) substitute—

“(3)

Before preparing a code under this section or making any alteration

in it the appropriate national authority must consult such bodies as

appear to the appropriate national authority to be concerned.”

(8)

In subsection (4), for “the code and of any alteration in the code” substitute

“any code prepared by the Secretary of State under this section and any

alteration in such a code”.

(9)

After subsection (5) insert—

“(5A)

The Welsh Ministers must lay copies of any code prepared by them

under this section or any alteration in such a code before Senedd

Cymru; and if the Senedd passes a resolution requiring the code or

any alteration in it to be withdrawn, the Welsh Ministers must

withdraw the code or alteration, and where they withdraw the code,

must prepare a code in substitution for the one which is withdrawn.

(5B)

No resolution may be passed by Senedd Cymru under subsection (5A)

in respect of a code or revised code after the expiration of the period

of 40 days beginning with the day on which a copy of the code was

laid before the Assembly.

(5C)

For the purposes of subsection (5B) no account is to be taken of any

time during which the Senedd Cymru is dissolved or is in recess for

more than four days.”

(10)

In subsection (6) for “Secretary of State” substitute “appropriate national

authority”.

(11)

After subsection (7) insert—

“(8)

In this section “the appropriate national authority”—

(a)

in relation to England, means the Secretary of State;

(b)

in relation to Wales, means the Welsh Ministers.”

Page 3

Autism and learning disability

Application of the Mental Health Act 1983: autism and learning disability

(1)

The Mental Health Act 1983 is amended as follows.

(2)

In section 1 (application of Act: “mental disorder”)—

(a)

in subsection (2), at the appropriate places insert—

““autism” means a lifelong developmental disorder of the mind

that affects how people perceive, communicate and interact

with others;”;

““learning disability” means a state of arrested or incomplete

development of the mind which includes significant impairment

of intelligence;”;

““psychiatric disorder” means mental disorder other than autism

or learning disability;”;

(b)

for subsections (2A) and (2B) substitute—

“(2A)

For the purposes of this Act, a person’s learning disability has

“serious behavioural consequences” if it is associated with

abnormally aggressive or seriously irresponsible conduct by

the person.”;

(c)

omit subsection (4).

(3)

In section 145 (interpretation of the Mental Health Act 1983), in subsection

(1), at the appropriate places insert—

“autism” has the meaning given in section 1;”;

“learning disability” has the meaning given in section 1;”;

“psychiatric disorder” has the meaning given in section 1;”;

““serious behavioural consequences” , in relation to a person’s learning

disability, is to be read in accordance with section 1 (2A) ;”.

(4)

Schedule 1 amends the Mental Health Act 1983 to—

(a)

prevent people from being detained under section 3 of that Act

(admission for treatment) on the basis of autism or learning disability,

and

(b)

make related changes in relation to the application of that Act to autism

and learning disability.

Page 4

People with autism or learning disability

In the Mental Health Act 1983, after Part 8 insert—

Part 8A

People in England with autism or learning disability

125A

Children and young people with autism or learning disability: reviews

(1)

The responsible commissioner must make arrangements for ensuring

that care, education and treatment review meetings take place in

relation to a patient if—

(a)

the patient is liable to be detained under this Act in a hospital

or registered establishment in England otherwise than—

(i)

by virtue of an emergency application where the second

medical recommendation referred to in section 4(4)(a)

has not been given and received, or

(ii)

by virtue of section 5(2) or (4), 135 or 136 or directions

for detention in a place of safety under section 35(4),

36(3), 37(4), 38(4) or 45A(5),

(b)

the patient is considered by the responsible commissioner to

have autism or a learning disability, and

(c)

the patient—

(i)

is aged under 18, or

(ii)

is aged 18 or over and is a person for whom a plan is

maintained under section 37 of the Children and

Families Act 2014 (education, health and care plans),

and

(d)

either—

(i)

the patient consents to meetings taking place and to the

disclosure of information in accordance with the

arrangements, and to the use of the information in

accordance with this Act, or

(ii)

the patient lacks capacity or competence to give that

consent but the responsible commissioner considers that

it is nonetheless in the patient’s best interests for the

meetings to take place, and information to be disclosed

and used, as mentioned in sub-paragraph (i) .

(2)

In this section “care, education and treatment review meeting” means

a meeting, convened by the responsible commissioner, for the purpose

of reviewing a patient’s case in order to—

(a)

identify any needs of the patient for—

(i)

social care provision,

(ii)

special educational provision, or

(iii)

medical treatment, and

(b)

make recommendations about—

(i)

whether and how any such needs can be met,

Page 5

(ii)

how the patient’s safety can be ensured while they are

liable to be detained,

(iii)

the discharge of the patient from the hospital or

registered establishment under section 23 (where that

section applies in relation to the patient), and

(iv)

how to reduce any risk of the patient being re-admitted

to a hospital or registered establishment following

discharge.

(3)

The arrangements under subsection (1) must include—

(a)

arrangements for the preparation of a report (whether by the

responsible commissioner or another person) setting out the

needs identified, and recommendations made, at each meeting,

(b)

arrangements for the provision of a copy of the report, within

the period of 14 days beginning with the day on which a

meeting takes place, to each of the following persons (other

than any who prepared the report)—

(i)

the responsible commissioner,

(ii)

the patient’s responsible clinician,

(iii)

the integrated care board that will have the duty under

section 117 to provide or arrange for the provision of

after-care services for the patient, and

(iv)

the local authority in whose area the patient is

ordinarily resident.

(The arrangements may also include provision authorising or requiring

a copy of the report to be given to other persons.)

(4)

The arrangements under subsection (1) must include arrangements

for ensuring that—

(a)

the first meeting in relation to the patient takes place within

the period of 14 days beginning with the applicable day, and

(b)

a further meeting takes place at least once in each successive

period of 12 months for which the patient remains liable to be

detained under this Act, beginning with the day on which the

first meeting takes place.

(5)

In subsection (4) “the applicable day” means—

(a)

in relation to a patient who is liable to be detained by virtue

of an emergency application—

(i)

if, when the second medical recommendation referred

to in section 4(4)(a) is received, the patient is considered

by the relevant commissioner to have autism or a

learning disability, the day on which that

recommendation is received;

(ii)

otherwise, the day on which the responsible

commissioner forms the view that the patient has autism

or a learning disability;

(b)

in relation to any other patient—

Page 6

(i)

if, when the patient becomes liable to be detained as

mentioned in subsection (1) (a) , the patient is considered

by the relevant commissioner to have autism or a

learning disability, the day on which the patient

becomes so liable;

(ii)

otherwise, the day on which the responsible

commissioner forms the view that the patient has autism

or a learning disability.

(6)

A patient may withdraw consent to the taking place of meetings and

to the disclosure of information in accordance with arrangements

under subsection (1) .

(7)

The arrangements under subsection (1) must include provision about—

(a)

how consent to the taking place of meetings or the disclosure

of information may be withdrawn;

(b)

what is to happen when consent is withdrawn (which may

include provision about who is to be informed).

125B

Other people with autism or learning disability: reviews

(1)

The responsible commissioner must make arrangements for ensuring

that care and treatment review meetings take place in relation to a

patient if—

(a)

the patient is liable to be detained under this Act in a hospital

or registered establishment in England otherwise than—

(i)

by virtue of an emergency application where the second

medical recommendation referred to in section 4(4)(a)

has not been given and received, or

(ii)

by virtue of section 5(2) or (4), 135 or 136 or directions

for detention in a place of safety under section 35(4),

36(3), 37(4), 38(4) or 45A(5),

(b)

the patient is considered by the responsible commissioner to

have autism or a learning disability,

(c)

the patient is aged 18 or over and is not a person for whom a

plan is maintained under section 37 of the Children and

Families Act 2014 (education, health and care plans), and

(d)

either—

(i)

the patient consents to meetings taking place and to the

disclosure of information in accordance with the

arrangements, and to the use of the information in

accordance with this Act, or

(ii)

the patient lacks capacity to give that consent but the

responsible commissioner considers that it is nonetheless

in the patient’s best interests for the meetings to take

place, and information to be disclosed and used, as

mentioned in sub-paragraph (i) .

Page 7

(2)

In this section “care and treatment review meeting” means a meeting,

convened by the responsible commissioner, for the purpose of

reviewing a patient’s case in order to—

(a)

identify any needs of the patient for—

(i)

social care provision, or

(ii)

medical treatment, and

(b)

make recommendations about—

(i)

whether and how any such needs can be met,

(ii)

how the patient’s safety can be ensured while they are

liable to be detained,

(iii)

the discharge of the patient from the hospital or

registered establishment under section 23 (where that

section applies in relation to the patient), and

(iv)

how to reduce any risk of the patient being re-admitted

to a hospital or registered establishment following

discharge.

(3)

The arrangements under subsection (1) must include arrangements

for—

(a)

the preparation of a report (whether by the responsible

commissioner or another person) setting out the needs

identified, and recommendations made, at each meeting, and

(b)

the provision of a copy of the report, within the period of 14

days beginning with the day on which a meeting takes place,

to each of the following persons (other than any who prepared

the report)—

(i)

the responsible commissioner,

(ii)

the patient’s responsible clinician, and

(iii)

the integrated care board that will have the duty under

section 117 to provide or arrange for the provision of

after-care services for the patient, and

(iv)

the local authority in whose area the patient is

ordinarily resident.

(The arrangements may also include provision authorising or requiring

a copy of the report to be given to other persons.)

(4)

The arrangements under subsection (1) must include arrangements

for ensuring that—

(a)

the first meeting in relation to the patient takes place within

the period of 28 days beginning with the applicable day, and

(b)

a further meeting takes place at least once in each successive

period of 12 months for which the patient remains liable to be

detained under this Act, beginning with the day on which the

first meeting takes place.

(5)

In subsection (4) “the applicable day” has the meaning given by section

125A (5) .

Page 8

(6)

A patient may withdraw consent to the taking place of meetings and

to the disclosure of information in accordance with arrangements

under subsection (1) .

(7)

The arrangements under subsection (1) must include provision about—

(a)

how consent to the taking place of meetings or the disclosure

of information may be withdrawn;

(b)

what is to happen when consent is withdrawn (which may

include provision about who is to be informed).

125C

Reviews: supplementary

In exercising functions in relation to a patient in respect of whom a

review meeting has taken place under section 125A or 125B , the

following must have regard to the recommendations set out in a report

prepared in accordance with that section—

(a)

the patient’s responsible clinician;

(b)

the responsible commissioner;

(c)

the integrated care board to which the report is provided;

(d)

the local authority to which the report is provided.

125D

Registers of people at risk of detention

(1)

Each integrated care board must, in accordance with this section,

establish and maintain a register and include a person in that register

if—

(a)

the person is someone for whom the board has responsibility

for the purposes of this section,

(b)

the person is someone the integrated care board considers—

(i)

to have autism or a learning disability, and

(ii)

to have specified risk factors for detention under Part

2 of this Act, and

(c)

either—

(i)

the person consents to their inclusion in the register

and the use, in accordance with this section, of

information about them, or

(ii)

the person lacks capacity or competence to give that

consent but the board considers that it nonetheless in

their best interests to be included in the register and

for the use, in accordance with this section, of

information about them.

(2)

The register must specify the local authority in whose area each person

included in it is ordinarily resident.

(3)

The Secretary of State may by regulations make provision about—

(a)

the establishment and maintenance of a register under

subsection (1) ;

Page 9

(b)

the information about a person that is to be included in a

(c)

the obtaining by an integrated care board of—

(i)

information for the purpose of determining whether

subsection (1) (b) or (c) applies in relation to a person,

(ii)

information for inclusion in the register;

(d)

the disclosure by or to any person of information included in

a register or obtained by virtue of paragraph (c) ;

(e)

the withdrawal of consent by a person to their inclusion in the

(4)

The Secretary of State must by regulations specify the description of

people for which each integrated care board is “responsible” for the

purpose of this section, who must be people in relation to which the

board has commissioning functions.

(5)

In this section “specified risk factors for detention under Part 2 of this

Act” means factors which are specified in regulations made by the

Secretary of State as factors that the Secretary of State considers

increase the probability of a person being detained under Part 2 of

this Act.

125E

Registers: duties relating to commissioning of services etc

(1)

An integrated care board must, in exercising its commissioning

functions—

(a)

have regard to the information included in its register under

section 125D and any other information obtained by it by virtue

of section 125D (3) (c) , and

(b)

seek to ensure that the needs of people with autism or a

learning disability can be met without detaining them under

Part 2 of this Act.

(2)

A local authority must, in exercising its market function—

(a)

have regard to any information disclosed to it by virtue of

section 125D (3) (d) , and

(b)

seek to ensure that the needs of people with autism or a

learning disability can be met without detaining them under

Part 2 of this Act.

(3)

In this section “market function”, in relation to a local authority, means

its function under section 5(1) of the Care Act 2014 (promoting

diversity and quality in provision of services).

125F

Guidance

(1)

The Secretary of State must publish guidance for the following about

the exercise of their functions under this Part—

(a)

responsible clinicians;

Page 10

(b)

responsible commissioners;

(c)

integrated care boards;

(d)

local authorities.

(2)

The persons referred to in subsection (1) (a) to (d) must have regard

to guidance published under this section.

125G

Interpretation of Part 8A

(1)

In this Part—

“commissioning functions” , in relation to an NHS commissioning

body, means functions of the body in arranging for the

provision of services as part of the health service continued

under section 1(1) of the National Health Service Act 2006;

“local authority” means—

(a)

a county council in England,

(b)

a district council for an area in England for which there

is no county council,

(c)

a London borough council,

(d)

the Common Council of the City of London, or

(e)

the Council of the Isles of Scilly;

“NHS commissioning body” means NHS England or an integrated

care board;

“responsible clinician” has the same meaning as it has in Part 2

(see section 34(1));

“responsible commissioner” , in relation to a patient liable to be

detained in a hospital or registered establishment, means the

NHS commissioning body in pursuance of whose

commissioning functions arrangements are required to be made

for the patient's admission to the hospital or registered

establishment;

“social care provision” has the same meaning as it has in Part 3

of the Children and Families Act 2014 (see section 21 of that

Act);

“special educational provision” has the same meaning as it has

in Part 3 of the Children and Families Act 2014 (see section 21

of that Act).

(2)

References in this Part to a patient who lacks capacity are to a patient

who lacks capacity within the meaning of the Mental Capacity Act

2005.

(3)

In determining the ordinary residence of a person who is aged under

18 for the purposes of section 125A (3) (b) (iv) or 125D (2) , section 105(6)

of the Children Act 1989 applies as if there were inserted after

paragraph (c)—

“(d)

while the child is being provided with accommodation

under section 117 of the Mental Health Act 1983; or

Page 11

(e)

while the child is being provided with accommodation

under the National Health Service Act 2006.”

(4)

A person aged under 18 who—

(a)

does not have an ordinary residence, and

(b)

is living in a place listed in section 105(6) of the Children Act

1989, as modified by subsection (3) of this section,

is to be treated for the purposes of section 125A (3) (b) (iv) or 125D (2)

as ordinarily resident in the area in which they were present

immediately before living in such a place.

(5)

In determining the ordinary residence of a person who is aged 18 or

over for the purposes of section 125A (3) (b) (iv) , 125B (3) (b) (iv) or

125D (2) , section 39(1) to (6) of, and paragraphs 1(1), 2(1) and (2) and

8 of Schedule 1 to, the Care Act 2014 apply.

Grounds for detention and community treatment orders

Grounds for detention

(1)

The Mental Health Act 1983 is amended as follows.

(2)

In section 2 (admission for assessment), in subsection (2)—

(a)

omit the “and” at the end of paragraph (a);

(b)

for paragraph (b) substitute—

“(b)

serious harm may be caused to the health or safety of

the patient or of another person unless the patient is so

detained by a constable or other authorised person; and

(c)

given the nature, degree and likelihood of the harm,

the patient ought to be so detained.”

(3)

In section 3 (admission for treatment)—

(a)

in subsection (2), for paragraphs (c) and (d) substitute—

“(b)

serious harm may be caused to the health or safety of

the patient or of another person unless the patient

receives medical treatment,

(c)

it is necessary, given the nature, degree and likelihood

of the harm, for the patient to receive medical treatment,

(d)

the necessary treatment cannot be provided unless the

patient is detained by a constable or other authorised

person under this Act, and

(e)

appropriate medical treatment is available for the

patient.”;

(b)

in subsection (3)—

(i)

in paragraph (a), for “(d)” substitute “(e)”;

(ii)

in paragraph (b), for “(c)” substitute “(b) to (d)”.

Page 12

(4)

In section 5(4) (detention for six hours pending application for admission),

for paragraph (a) (but not the “and” at the end) substitute—

“(a)

that the patient is suffering from mental disorder to such a

degree that serious harm may be caused to the health or safety

of the patient or of another person unless the patient is

immediately restrained from leaving the hospital by a constable

or other authorised person;”.

(5)

In section 20 (renewal of authority for detention of patient detained in

pursuance of application for admission for treatment etc), in subsection (4),

for paragraphs (c) and (d) substitute—

“(b)

serious harm may be caused to the health or safety of the

patient or of another person unless the patient receives medical

treatment,

(c)

it is necessary, given the nature, degree and likelihood of the

harm, for the patient to receive medical treatment,

(d)

the necessary treatment cannot be provided unless the patient

continues to be liable to be detained, and

(e)

appropriate medical treatment is available for the patient.”

(6)

The amendment made by subsection (5) , so far as relating to persons who

are liable to be detained by virtue of Part 3 of the Mental Health Act 1983,

applies in relation to such a person whether the person became so liable

before or after the coming into force of this section.

(7)

In section 145(1) (interpretation), at the appropriate place insert—

““authorised person” means 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,

who has been trained and equipped to carry out detentions under this

Act and who would not be put at unnecessary risk by carrying out

those functions;”.

Grounds for community treatment orders

(1)

The Mental Health Act 1983 is amended as follows.

(2)

In section 17A (community treatment orders)—

(a)

in subsection (5), for paragraphs (b) to (e) substitute—

“(b)

serious harm may be caused to the health or safety of

the patient or of another person unless the patient

receives medical treatment,

(c)

it is necessary, given the nature, degree and likelihood

of the harm, for the patient to receive medical treatment,

(d)

subject to the patient being liable to be recalled as

mentioned in paragraph (e) , the necessary treatment

can be provided without the patient being detained in

a hospital,

Page 13

(e)

it is necessary that the responsible clinician should be

able to exercise the power under section 17E(1) to recall

the patient to hospital, and

(f)

appropriate medical treatment is available for the

patient.”

(b)

in subsection (6), for “(5)(d)” substitute “(5) (e) ”.

(3)

In section 17B (conditions) after subsection (7) insert—

“(8)

The responsible clinician must ensure that community treatment orders

align with the code of practice as set out in section 118(2B).

(9)

A community treatment order shall have a maximum duration of 12

months, subject to the following provisions—

(a)

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);

(b)

community treatment orders with a duration of less than 12

months are not subject to the review process set out in

subsection (9)(a)(ii);

(c)

a tribunal may recommend that the responsible clinician

consider whether to extend, vary, or terminate the duration

and conditions of a community treatment order.

(10)

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, in accordance with the procedure set out in

subsection 9(a).

(11)

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).

(4)

In section 20A (community treatment period)—

(a)

in subsection (4)(b), for “conditions set out in subsection (6) below are

satisfied” substitute “criteria in section 17A(5) are met”;

(b)

omit subsection (6);

Page 14

(c)

for subsection (7) substitute—

“(7)

Subsection (6) of section 17A applies for the purposes of

subsection (4)(b) of this section as it applies for the purposes

of subsection (4)(a) of that section.”;

(d)

in subsection (8)(a), for “conditions set out in subsection (6) above are

satisfied” substitute “criteria in section 17A(5) are met”.

(5)

The amendments made by subsection (2) , so far as relating to persons who

are liable to be detained by virtue of Part 3 of the Mental Health Act 1983,

apply in relation to such a person whether the person became so liable before

or after the coming into force of this section.

(6)

The amendments made by subsection (4) , so far as relating to persons who

are subject to community treatment orders (within the meaning given by

section 17A of the Mental Health Act 1983) by virtue of Part 3 of that Act,

apply in relation to such a person whether the person became subject to a

community treatment order before or after the coming into force of this section.

Grounds for discharge by tribunal

(1)

The Mental Health Act 1983 is amended as follows.

(2)

In section 72 (powers of tribunals)—

(a)

in subsection (1)(a), for sub-paragraphs (i) and (ii) substitute “that the

grounds in section 2(2) are made out;”;

(b)

in subsection (1)(b), for sub-paragraphs (i) to (iia) (but not the “or” at

the end) substitute—

“(i)

that the conditions in section 20(4) are met;”;

(c)

in subsection (1)(c), for sub-paragraphs (i) to (iv) (but not the “or” at

the end) substitute—

“(i)

that the criteria in section 17A(5) are met;”;

(d)

in subsection (1A), for “whether the criterion in subsection (1)(c)(iii)

above” substitute “for the purposes of subsection (1)(c) (i) whether the

criterion in section 17A(5) (e) ”.

(3)

In section 73 (power to discharge restricted patients), in subsection (1)(a), for

“as to the matters mentioned in paragraph (b)(i), (ii) or (iia) of section 72(1)

above” substitute “that the conditions in section 20(4) are met”.

(4)

The amendments made by this section—

(a)

so far as relating to persons who are liable to be detained by virtue

of Part 3 of the Mental Health Act 1983, apply in relation to such a

person whether the person became so liable before or after the coming

into force of this section;

(b)

so far as relating to persons who are subject to community treatment

orders (within the meaning given by section 17A of the Mental Health

Act 1983) by virtue of Part 3 of that Act, apply in relation to such a

person whether the person became subject to a community treatment

order before or after the coming into force of this section.

Page 15

Appropriate medical treatment

Appropriate medical treatment: therapeutic benefit

(1)

The Mental Health Act 1983 is amended as follows.

(2)

In Part 1—

(a)

for the Part heading substitute “Introductory”;

(b)

after section 1 insert—

“1A

“Appropriate medical treatment”

In this Act—

(a)

references to appropriate medical treatment, in relation

to a person suffering from mental disorder, are

references to medical treatment which, taking into

account the nature and degree of the disorder and all

other circumstances—

(i)

has a reasonable prospect of alleviating, or

preventing the worsening of, the disorder or one

or more of its symptoms or manifestations, and

(ii)

is appropriate in the person’s case;

(b)

references to medical treatment, in relation to mental

disorder, are references to medical treatment the

purpose of which is to alleviate, or prevent a worsening

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

manifestations.”;

(c)

in section 3 (admission for treatment) omit subsection (4).

(3)

In section 57 (treatment requiring consent and a second opinion), in subsection

(2)(b), for “it is appropriate for the treatment to be given” substitute “the

treatment constitutes appropriate medical treatment”.

(4)

In section 58 (treatment requiring consent or a second opinion), in subsection

(3)(b), for “it is appropriate for the treatment to be given” substitute “the

treatment constitutes appropriate medical treatment”.

(5)

In section 58A (electro-convulsive therapy etc), in subsection (4)(c), for

sub-paragraph (ii) substitute—

“(ii)

that the treatment constitutes appropriate medical

treatment.”

(6)

In section 62A (treatment on recall of community patient or revocation of

order), in subsection (5)(a)—

(a)

omit “it is appropriate for”;

(b)

for “to be given to the patient” substitute “constitute appropriate

medical treatment”.

(7)

In section 63 (treatment not requiring consent)—

(a)

the existing text becomes subsection (1);

Page 16

(b)

in that subsection, after “patient”, insert “who is liable to be detained

in pursuance of an application for admission for assessment”;

(c)

after that subsection insert—

“(2)

The consent of any other patient is not required for any medical

treatment given to the patient for such disorder, not being a

form of treatment to which section 57, 58 or 58A above applies,

if—

(a)

the treatment is given by or under the direction of the

approved clinician in charge of the treatment, and

(b)

the approved clinician in charge of the treatment

considers that the treatment constitutes appropriate

medical treatment.”.

(8)

In section 64 (supplementary provisions for Part 4) omit subsection (3).

(9)

In section 64C (section 64B: supplemental), in subsection (4)(a), for “it is

appropriate for the treatment to be given or for the treatment to be” substitute

“the treatment constitutes appropriate medical treatment or constitutes

appropriate medical treatment if”.

(10)

In section 64K (interpretation of Part 4A) omit subsection (8).

(11)

In section 145 (interpretation)—

(a)

in subsection (1)—

(i)

at the appropriate place insert—

““appropriate medical treatment” is to be read in accordance

with section 1A (a) ;”;

(ii)

in the definition of “medical treatment”, for “(but see also

subsection (4) below)” substitute “; and references to medical

treatment are to be read in accordance with section 1A (b) ”;

(b)

omit subsection (1AB);

(c)

omit subsection (4).

Remission or release of prisoners etc from hospital: treatment condition

In the Mental Health Act 1983, in the following places, for “effective” substitute

“appropriate medical”—

section 50(1) (prisoners under sentence);

section 51(3)(b) and (4)(b) (detained persons);

section 52(5)(b) (persons remanded by magistrates’ courts);

section 53(2)(b) (civil prisoners and persons detained under the

Immigration Acts).

Page 17

The responsible clinician

Nomination of the responsible clinician

(1)

The Mental Health Act 1983 is amended as follows.

(2)

In section 34(1) (interpretation of Part 2)—

(a)

at the appropriate place insert—

““the relevant hospital” means—

(a)

in relation to a patient who is liable to be detained in

a hospital, that hospital;

(b)

in relation to a community patient, the responsible

hospital;”;

(b)

in the definition of “the responsible clinician”, in paragraph (a), for

“with” substitute “nominated by the managers of the relevant hospital

to have”.

(3)

In the following places, after “would” insert “be nominated by the managers

of the hospital to”—

section 36(3) (remand for treatment only if admission is arranged);

section 37(4) (hospital order to be made only if admission is arranged);

section 38(4) (interim hospital order to be made only if admission is

arranged);

section 44(2) (evidence for admission to hospital by magistrates’ court);

section 45A(5) (hospital direction and limitation direction to be made

only if admission is arranged).

(4)

In section 55(1) (interpretation of Part 3), in the definition of “responsible

clinician”, for “with” substitute “nominated by the managers of the hospital

to have”.

(5)

In section 64 (supplementary provisions for Part 4), for subsection (1)

substitute—

“(1)

In this Part—

“hospital” includes a registered establishment;

“responsible clinician” means the responsible clinician within the

meaning of Part 2 (see section 34(1)).”

(6)

In section 134(1), in the words after paragraph (b), for “with” substitute

“nominated by the managers of the hospital to have”.

Treatment

Making treatment decisions

(1)

The Mental Health Act 1983 is amended as follows.

Page 18

(2)

After section 56 insert—

“56A

Making treatment decisions

(1)

In deciding whether to give medical treatment to a patient by virtue

of this Part, the approved clinician in charge of the treatment must—

(a)

identify and evaluate any alternative forms of medical treatment

available for the patient;

(b)

take such steps as are reasonably practicable to assist and

encourage the patient to participate, as fully as possible, in the

decision-making process;

(c)

not rely merely on—

(i)

the patient's age or appearance, or

(ii)

a condition of the patient’s, or an aspect of the patient’s

behaviour, which might lead others to make unjustified

assumptions about what medical treatment might be

appropriate for the patient;

(d)

consider the patient’s past and present wishes, feelings, beliefs

and values, so far as it is reasonable to regard them as relevant

and so far as they are reasonably ascertainable;

(e)

consider the relevant views of the following, so far as they are

reasonably ascertainable—

(i)

anyone named by the patient as someone to be

consulted on the decision in question, or decisions of

that kind;

(ii)

the patient’s nominated person and any independent

mental health advocate from whom the patient is

receiving help by virtue of section 130A or 130E;

(iii)

any donee or deputy for the patient;

(iv)

any other person who cares for the patient or is

interested in the patient’s welfare and whom the

approved clinician considers it appropriate to consult;

(f)

consider all other circumstances of which the approved clinician

is aware and which it would be reasonable to regard as

relevant.

(2)

Where the patient lacks capacity in relation to matters that, in the

opinion of the approved clinician, are relevant to the decision, the

approved clinician must also consider any wishes, feelings, views and

beliefs that the clinician thinks the patient would have in relation to

those matters but for the lack of capacity (including any relevant

written statement made by the patient when they had capacity).

(3)

In subsection (1) (e) , “relevant views” means—

(a)

views about the nature of the patient’s past and present wishes,

feelings, beliefs and values,

(b)

where the patient lacks capacity in relation to matters that, in

the opinion of the approved clinician, are relevant to the

decision, views about the nature of the wishes, feelings, views

Page 19

and beliefs the patient would have in relation to those matters

but for the lack of capacity, and

(c)

views about whether the medical treatment should be given

to the patient.”

(3)

In section 57 (treatment requiring consent and a second opinion), in subsection

(2)(b), at the end insert “, and that the decision to give the treatment was

made by the person in charge of the treatment in accordance with section

56A ”.

(4)

In section 58 (treatment requiring consent or a second opinion)—

(a)

in subsection (3)(a), at the end (but before the “; or”) insert “, and that

the decision to give the treatment was made by the approved clinician

in charge of the treatment in accordance with section 56A ”;

(b)

in subsection (3)(b), at the end insert “, and that the decision to give

the treatment was made by the approved clinician in charge of the

treatment in accordance with section 56A ”.

(5)

In section 58A (electro-convulsive therapy etc)—

(a)

in subsection (3)(c), at the end insert “, and that the decision to give

the treatment was made by the approved clinician in charge of the

treatment in accordance with section 56A ”;

(b)

in subsection (4)(c)—

(i)

omit the “and” at the end of sub-paragraph (i);

(ii)

at the end of sub-paragraph (ii) insert “; and”;

(iii)

after sub-paragraph (ii) insert—

“(iii)

that the decision to give the treatment

was made by the approved clinician in

charge of the treatment in accordance

with section 56A .”

Appointment of doctors to provide second opinions

(1)

The Mental Health Act 1983 is amended as follows.

(2)

After section 56A (inserted by section 11 of this Act) insert—

“56B

Appointment of doctors to provide second opinions

(1)

Where, in relation to a patient, a function under this Part is to be

performed by a “second opinion appointed doctor” (whether because

this Part requires it to be so performed or because a decision has been

made under this Part that it will be so performed)—

(a)

the relevant person must request that the regulatory authority

appoint a person to perform the function in relation to the

patient, and

(b)

on receiving the request, the regulatory authority must, as soon

as reasonably practicable (subject to section 62ZA (8) ), appoint

a person to perform the function in relation to the patient.

(2)

The person appointed by the regulatory authority—

Page 20

(a)

must be a registered medical practitioner, and

(b)

must not be the patient’s responsible clinician or the person

in charge of the treatment that is to be given to the patient.

(3)

In this section “the relevant person” means—

(a)

if there is a responsible clinician for the patient, the responsible

clinician;

(b)

otherwise, the person in charge of the treatment that is to be

given to the patient.”

(3)

In section 57 (treatment requiring consent and a second opinion)—

(a)

in subsection (2)(a), for the words from the beginning to “question)”

substitute “a second opinion appointed doctor”;

(b)

in subsection (2)(b), for the words from the beginning to “above”

substitute “the second opinion appointed doctor”;

(c)

in subsection (3), for “the registered medical practitioner concerned”

substitute “the second opinion appointed doctor”.

(4)

In section 58 (treatment requiring consent or a second opinion)—

(a)

in subsection (3)(a), for the words from “a registered” to “authority”

substitute “a second opinion appointed doctor”;

(b)

in subsection (3)(b), for the words from the beginning to “question)”

substitute “a second opinion appointed doctor”.

(5)

In section 58A (electro-convulsive therapy etc)—

(a)

in subsection (3)(c), for the words from “a registered” to “above”

substitute “a second opinion appointed doctor”;

(b)

in subsection (4)(c), for the words from the beginning to “treatment)”

substitute “a second opinion appointed doctor”;

(c)

in subsection (6), in the words before paragraph (a), for “the registered

medical practitioner” substitute “the second opinion appointed doctor”.

(6)

In section 64 (supplementary provisions for Part 4), in subsection (1) (as

substituted by section 10 of this Act), at the appropriate place insert—

““second opinion appointed doctor” is to be read in accordance with

section 56B”.

(7)

In section 64C (section 64B: supplemental)—

(a)

in subsection (4)(a), for the words from the beginning to “treatment)”

substitute “a second opinion appointed doctor”;

(b)

after subsection (9) insert—

“(10)

In this section “second opinion appointed doctor” has the same

meaning as in Part 4 (see section 64).”

(8)

In section 119 (practitioners approved for Part 4 and section 118), in subsection

(1), after “Act” insert “(see section 56B )”.

Page 21

Medicine etc: treatment conflicting with a decision by or on behalf of a

patient

(1)

The Mental Health Act 1983 is amended as follows.

(2)

After section 57 insert—

“57A

Treatment without consent requiring a second opinion and a

compelling reason

(1)

This section applies to the forms of medical treatment for relevant

disorder mentioned in subsection (2) where—

(a)

the patient has capacity to consent to the treatment but has not

consented to it, or

(b)

the patient lacks capacity to consent to the treatment, and the

giving of the treatment would conflict with—

(i)

a valid and applicable advance decision, or

(ii)

a decision of a donee or deputy or the Court of

Protection.

(2)

The forms of medical treatment referred to in subsection (1) are—

(a)

such forms of treatment as may be specified in regulations

made under section 58(1)(a);

(b)

the administration of medicine to a patient by any means (not

being a form of treatment specified under section 57, section

58(1)(a) or section 58A(1)(b)) at any time during a period for

which the patient is liable to be detained as a patient to whom

this Part of this Act applies.

(3)

Where this section applies, and subject to section 62, a patient may

not be given any of those forms of medical treatment unless there is

a compelling reason to give treatment of that form and a second

opinion appointed doctor has certified in writing—

(a)

that the treatment constitutes appropriate medical treatment,

(b)

that the decision to give the treatment was made by the

approved clinician in charge of the treatment in accordance

with section 56A , and

(c)

that, in relation to the form of treatment and any alternative

forms of appropriate medical treatment that are available for

the patient’s relevant disorder (taking each form of treatment

separately)—

(i)

the patient has capacity to consent but has not

consented, or

(ii)

the patient lacks capacity to consent and it appears to

the second opinion appointed doctor that there is a

decision mentioned in subsection (1) (b) (i) or (ii) which,

if valid, would conflict with the giving of the treatment.

(4)

For the purposes of this section there is a “compelling reason” to give

a form of medical treatment to a patient if—

Page 22

(a)

alternative forms of appropriate medical treatment are available

for the patient’s relevant disorder but, in relation to each of

those forms—

(i)

the patient has not consented, or

(ii)

the patient lacks capacity to consent and the giving of

the treatment would conflict with a decision mentioned

in subsection (1) (b) (i) or (ii) , or

(b)

no alternative forms of appropriate medical treatment are

available for the patient’s relevant disorder.

(5)

Before giving a certificate under subsection (3) the second opinion

appointed doctor must consult two other persons who have been

professionally concerned with the patient’s medical treatment but, of

those persons—

(a)

one must be a nurse and the other must be neither a nurse nor

a registered medical practitioner, and

(b)

neither may be the responsible clinician or the approved

clinician in charge of the treatment in question.”

(3)

In section 58 (treatment requiring consent or a second opinion)—

(a)

before subsection (1) insert—

“(A1)

This section applies to the forms of medical treatment for

relevant disorder mentioned in subsection (1) where—

(a)

the patient has capacity to consent to the treatment and

has consented to it, or

(b)

the patient lacks capacity to consent to the treatment

and the giving of the treatment would not conflict

with—

(i)

any valid and applicable advance decision, or

(ii)

any decision of a donee or deputy or the Court

of Protection.”;

(b)

in subsection (1), for the words before paragraph (a) substitute “The

forms of medical treatment referred to in subsection (A1) are—”;

(c)

in subsection (3)(b) omit “or being so capable has not consented to it”.

(4)

In section 59 (plans of treatment), after “57” insert “, 57A”.

(5)

In section 60 (withdrawal of consent), in subsection (1C)(a), after “section”

insert “57A,”.

(6)

In section 62 (urgent treatment), in subsection (2), after “57” insert “, 57A”.

(7)

In section 63 (treatment not requiring consent), for the words from “not”, in

the second place it occurs, to “applies” substitute “where none of sections 57

to 58A apply”.

(8)

In section 64C (section 64B: supplemental)—

(a)

for subsection (3) substitute—

“(3)

Relevant treatment is—

(a)

section 58 type treatment if it is—

Page 23

(i)

treatment of a form which, at the time when it

is given to the patient, is specified under section

58(1)(a), or

(ii)

the administration of medicine to the patient by

any means (not being a form of treatment

specified under section 57, section 58(1)(a) or

section 58A(1)(b)) if a period equal to or longer

than the section 58 period has elapsed since the

first occasion, during the relevant period, when

medicine was administered to the patient by any

means for relevant disorder;

(b)

section 58A type treatment if it is—

(i)

electro-convulsive therapy, or

(ii)

treatment of a form which, at the time when it

is given to the patient, is specified under section

58A(1)(b).

(3A)

For the purposes of subsection (3)—

(a)

the “section 58 period” is the period which, at the time

when the treatment is given to the patient, is specified

under section 58(1)(b);

(b)

the “relevant period” is the period during which the

patient has continuously been a patient to whom this

Part applies.”;

(b)

in subsection (6), for “subsection (1)(a) of that section” substitute

“subsection (3) (b) (i) of this section”;

(c)

in subsection (7)—

(i)

for “subsection (1)(b) of that section” substitute “subsection

(3) (b) (ii) of this section”;

(ii)

for “that section”, in the second place it occurs, substitute

“section 58A(1)(b)”.

Medicine etc: treatment in other circumstances

In section 58 of the Mental Health Act 1983 (treatment requiring consent or

a second opinion)—

(a)

in subsection (1)(b), for “three” substitute “two”;

(b)

in subsection (3)(a), after “has consented to it” insert “, that the

treatment constitutes appropriate medical treatment”;

(c)

in subsection (4), for “(3)(b) above the registered medical practitioner

concerned” substitute “(3) the person giving the certificate”.

Electro-convulsive therapy etc

In section 58A of the Mental Health Act 1983 (electro-convulsive therapy etc),

for subsection (5) substitute—

“(5)

A patient falls within this subsection if—

Page 24

(a)

the patient lacks capacity to consent to the treatment and the

giving of the treatment would not conflict with—

(i)

any valid and applicable advance decision, or

(ii)

any decision of a donee or deputy or the Court of

Protection, and

(b)

a second opinion appointed doctor has certified in writing—

(i)

that the patient lacks capacity to consent to the

treatment,

(ii)

that the treatment constitutes appropriate medical

treatment, and

(iii)

that the decision to give the treatment was made by

the approved clinician in charge of the treatment in

accordance with section 56A .”

Review of treatment

(1)

The Mental Health Act 1983 is amended as follows.

(2)

In section 61 (review of treatment)—

(a)

in subsection (1)—

(i)

in the words before paragraph (a), for “58(3)(b) or 58A(4) or

(5)” substitute “57A(3), 58(3)(b) or 58A(5)”;

(ii)

in paragraph (a), after “patient” insert “, except that, in the case

of a patient who is liable to be detained in pursuance of an

application for admission for treatment, no report is required

under this subsection on the first occasion on which the

responsible clinician furnishes a report under section 20(3) in

respect of them”;

(b)

after subsection (1) insert—

“(1A)

Where a patient is given treatment in accordance with section

58(3)(a) or 58A(3) or (4), a report on the treatment and the

patient’s condition must be given by the approved clinician in

charge of the treatment to the regulatory authority at any time,

if so required by the regulatory authority.

(1B)

In relation to a patient to whom paragraph 5B or 5D of Part 1

of Schedule 1 applies, subsection (1) has effect as if, in

paragraph (a), for the words “application for admission for

treatment” there were substituted “order under Part 3 of this

Act”.

(1C)

In relation to a patient to whom paragraph 5C or 6 of Part 1

of Schedule 1 applies, subsection (1) has effect as if, in

paragraph (a), the words from “, except that” to the end of that

paragraph were omitted.”;

(c)

in subsection (3)—

(i)

for “58(3)(b)” substitute “57A(3), 58(3)”;

(ii)

for “58A(4)” substitute “58A(3), (4)”;

(iii)

for “sections 57” substitute “sections 57, 57A”.

Page 25

(3)

In section 55, in subsection (4), after “section 42 above or” insert “section

61 (1B) or”.

Urgent treatment to alleviate serious suffering

In section 62 of the Mental Health Act 1983 (urgent treatment)—

(a)

in subsection (1), for “Sections 57 and 58” substitute “Section 57”;

(b)

after subsection (1) insert—

“(1ZA)

Sections 57A and 58 do not apply to—

(a)

any treatment which falls within paragraphs (a), (b) or

(d) of subsection (1), or

(b)

any treatment which falls within paragraph (c) of

subsection (1) and is given to a patient who lacks

capacity to consent to the treatment.”

Urgent electro-convulsive therapy etc

(1)

The Mental Health Act 1983 is amended as follows.

(2)

In section 58A (electro-convulsive therapy etc), in subsection (2), for “section

62” substitute “section 62ZA”.

(3)

In section 62 (urgent treatment) omit subsections (1A) to (1C).

(4)

After section 62 insert—

“62ZA

Urgent treatment: electro-convulsive therapy, etc.

(1)

This section applies instead of section 58A—

(a)

to any treatment with electro-convulsive therapy where—

(i)

the treatment is immediately necessary to save the

patient’s life, or

(ii)

the treatment is not irreversible and is immediately

necessary to prevent a serious deterioration of the

patient’s condition;

(b)

to any treatment of a form specified under section 58A(1)(b),

where the treatment falls within such of paragraphs (a) to (d)

of section 62(1) as may be specified in regulations under section

58A(1)(b).

(2)

The treatment may be given to a patient who has capacity to consent

to the treatment only if—

(a)

the patient has consented to it, or

(b)

the patient has not consented but a certificate has been given

by a second opinion appointed doctor under subsection (4) .

(3)

The treatment may be given to a patient who lacks capacity to consent

to the treatment only if—

(a)

the giving of the treatment would not conflict with any of the

following—

(i)

a valid and applicable advance decision, or

Page 26

(ii)

a decision of a donee or deputy or the Court of

Protection, or

(b)

the giving of the treatment would conflict with such a decision

but a certificate has been given by a second opinion appointed

doctor under subsection (5) .

(4)

A certificate under this subsection is a certificate stating—

(a)

that the patient has capacity to consent to the treatment but

has not consented to it,

(b)

that the decision to give the treatment was made by the

approved clinician in charge of the treatment in accordance

with section 56A ,

(c)

where the treatment is electro-convulsive therapy, that the

treatment—

(i)

is immediately necessary to save the patient’s life, or

(ii)

is not irreversible and is immediately necessary to

prevent a serious deterioration of the patient’s condition,

and

(d)

where the treatment is of a form specified under section

58A(1)(b), which of the paragraphs of section 62(1) it falls

within (see subsection (1) (b) ).

(5)

A certificate under this subsection is a certificate stating —

(a)

that the patient lacks capacity to consent to the treatment and

it appears to the second opinion appointed doctor that there

is a decision mentioned in subsection (3) (a) or (b) which, if

valid, would conflict with the giving of the treatment,

(b)

that the decision to give the treatment was made by the

approved clinician in charge of the treatment in accordance

with section 56A ,

(c)

where the treatment is electro-convulsive therapy, that the

treatment—

(i)

is immediately necessary to save the patient’s life, or

(ii)

is not irreversible and is immediately necessary to

prevent a serious deterioration of the patient’s condition,

and

(d)

where the treatment is of a form specified under section

58A(1)(b), which of the paragraphs of section 62(1) it falls

within (see subsection (1) (b) ).

(6)

Before giving a certificate under this section, the second opinion

appointed doctor must, if it is practicable to do so within any period

specified under section 62ZC (1) , consult—

(a)

a nurse who has been professionally concerned with the

patient's medical treatment and is neither the responsible

clinician nor the approved clinician in charge of the treatment

in question, and

(b)

the patient’s nominated person.

Page 27

(7)

Any request under section 56B for the appointment of a second opinion

doctor in relation to the function of giving a certificate under this

section must be made by the relevant person (within the meaning of

section 56B ) as soon as reasonably practicable.

(8)

The regulatory authority must, on receiving such a request, make the

appointment under section 56B as soon as practicable.

(9)

Subsection (3) of section 62 applies for the purposes of this section as

it applies for the purposes of that section.

62ZB

Life-saving section 62ZA treatment: modified procedure in exceptional

circumstances

(1)

Where—

(a)

a request is made to the regulatory authority under section

56B for the appointment of a second opinion doctor to perform

the function of giving a certificate under section 62ZA in

relation to any treatment, and

(b)

the regulatory authority determines that there are exceptional

circumstances which mean that there will be a delay in

appointing a second opinion doctor,

a function of a second opinion appointed doctor under section 62ZA

in relation to the giving of a certificate containing a statement under

subsection (4) (c) (i) or (5) (c) (i) of that section may be performed, instead,

by the approved clinician in charge of that treatment.

(2)

But no treatment may be given in reliance on a certificate given by

the approved clinician by virtue of subsection (1) once the second

opinion doctor has been appointed under section 56B .

(3)

Each time a patient is given treatment in reliance on a certificate given

by the approved clinician by virtue of subsection (1) , the managers of

the hospital or registered establishment in which the treatment is given

must notify the regulatory authority of that treatment as soon as

reasonably practicable.

(4)

The regulatory authority’s annual report under section 120D must

include—

(a)

a statement of how many times the regulatory authority has

made a determination under subsection (1) (b) in the period to

which the report relates and a summary of the reasons why

any determinations have been made, and

(b)

a statement of how many times during that period treatment

has been given in reliance on a certificate issued by virtue of

subsection (1) .

62ZC

Section

(1)

The appropriate national authority may by regulations impose duties

on—

Page 28

(a)

the managers of hospitals or registered establishments,

(b)

approved clinicians, or

(c)

the regulatory authority,

for the purpose of ensuring that a certificate given under section 62ZA

is given within a period specified in the regulations.

(2)

Regulations under this section may make—

(a)

provision subject to specified exceptions;

(b)

different provision for different cases;

(c)

transitional, consequential, incidental or supplemental

provision.”

(5)

In section 64 (supplementary provisions for Part 4), in subsection (1) (as

substituted by section 10 of this Act), at the appropriate place insert—

““the appropriate national authority” has the meaning given by section

58A(10);”.

(6)

In section 118 (code of practice), in subsection (1), after paragraph (d) (as

inserted by Schedule 3 to this Act) insert—

“(e)

for the guidance of the regulatory authority in relation to its

functions under or by virtue of Part 4; and”.

Remote assessment for treatment

(1)

Section 119 (practitioners approved for Part 4 and section 118) is amended

as follows.

(2)

In subsection (2)(a), for the first “and” substitute “or”.

(3)

After subsection (2) insert—

“(2A)

A person authorised by subsection (2) to carry out an interview or

examination may, to the extent that they consider appropriate, carry

it out—

(a)

by live audio link, or

(b)

by live video link.”

(4)

In subsection (3), before the definition of “regulated establishment” insert—

““live audio link” , in relation to the carrying out of an interview or

examination, means a live telephone link or other arrangement which

enables the patient and the person carrying out the interview or

examination to hear one another;

“live video link” , in relation to the carrying out of an interview or

examination, means a live television link or other arrangement which

enables the patient and the person carrying out the interview or

examination to see and hear one another;”.

Capacity to consent to treatment

(1)

The Mental Health Act 1983 is amended as follows.

Page 29

(2)

In section 57 (treatment requiring consent and a second opinion), in subsection

(2)(a), for “is capable of understanding the nature, purpose and likely effects

of” substitute “has capacity to consent to”.

(3)

In section 58 (treatment requiring consent or a second opinion), in subsection

(3)—

(a)

in paragraph (a), for “is capable of understanding its nature, purpose

and likely effects” substitute “has capacity to consent to it”;

(b)

in paragraph (b), for “is not capable of understanding the nature,

purpose and likely effects of” substitute “lacks capacity to consent to”.

(4)

In section 58A (electro-convulsive therapy etc)—

(a)

in subsection (3)(c), for “is capable of understanding the nature,

purpose and likely effects of” substitute “has capacity to consent to”;

(b)

in subsection (4)(c), for sub-paragraph (i) (but not the “and” at the

end) substitute—

“(i)

that the patient has capacity to consent to the

treatment and has consented to it,”;

(c)

in subsection (7), for the words from “is not” to the end substitute

“lacks capacity to consent to the treatment”;

(d)

omit subsection (9).

(5)

In section 60 (withdrawal of consent)—

(a)

in subsection (1A)(b), for the words from “be” to the end substitute

“have capacity to consent to the treatment”;

(b)

in subsection (1C)—

(i)

in paragraph (a), for the words from “is not” to “effects of”

substitute “lacks capacity to consent to”;

(ii)

in paragraph (b), for the words from “becomes” to the end

substitute “gains capacity to consent to that treatment”.

(6)

In section 64 (supplementary provisions for Part 4), after subsection (1B)

insert—

“(1BA)

In relation to a patient who is aged under 16, references in this Part

to capacity are to be read as references to competence.

(1BB)

In relation to a patient who is aged 16 or over—

(a)

references in this Part to lacking capacity are to lacking capacity

within the meaning of the Mental Capacity Act 2005, and

(b)

references in this Part to having, ceasing to have or gaining

capacity are to be read accordingly.

(1BC)

References in this Part—

(a)

to an advance decision are to an advance decision (within the

meaning of the Mental Capacity Act 2005) made by the patient;

(b)

to a donee are to a donee of a lasting power of attorney (within

the meaning of section 9 of the Mental Capacity Act 2005)

created by the patient, where the donee is acting within the

scope of their authority and in accordance with that Act;

Page 30

(c)

to a deputy are to a deputy appointed for the patient by the

Court of Protection under section 16 of the Mental Capacity

Act 2005, where the deputy is acting within the scope of their

authority and in accordance with that Act.

(1BD)

In this Part “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 Mental Capacity Act 2005.”

Care and treatment plans

In the Mental Health Act 1983, in Part 10, before section 130A insert—

“130ZA

Care and treatment plans for patients in England

(1)

The appropriate practitioner must prepare a care and treatment plan

for a patient to whom this section applies.

(2)

This section applies to a patient who—

(a)

is liable to be detained under this Act in a hospital or registered

establishment in England otherwise than—

(i)

by virtue of an emergency application where the second

medical recommendation referred to in section 4(4)(a)

has not been given and received, or

(ii)

by virtue of section 5(2) or (4), 135 or 136 or directions

for detention in a place of safety under section 35(4),

36(3), 37(4), 38(4) or 45A(5),

(b)

is subject to guardianship under this Act, if the area of the

responsible local social services authority is in England, or

(c)

is a community patient, if the responsible hospital is in England.

(3)

A “care and treatment plan” is a document—

(a)

containing a plan, made in accordance with regulations made

by the Secretary of State, for meeting the patient’s needs arising

from or related to mental disorder, and

(b)

containing, or to which is attached, any other information

authorised or required by the regulations.

(4)

The information authorised or required to be included in, or attached

to, a care and treatment plan by virtue of regulations under subsection

(3) may include—

(a)

information about people with whom a patient has a

relationship or other connection, or to whom a care and

treatment plan is relevant, for purposes related to—

(i)

the meeting of the patient’s needs mentioned in

subsection (3) (a) , or

(ii)

the review or revision of the care and treatment plan;

(b)

any information contained in a report prepared in accordance

with section 125A or 125B .

(5)

The appropriate practitioner must review a care and treatment plan—

Page 31

(a)

following any meeting relating to the patient under section

125A or 125B ;

(b)

following any change in the relevant patient’s condition or

circumstances which the appropriate practitioner considers

significant;

(c)

if the appropriate practitioner is considering whether the

relevant patient should—

(i)

become liable to be detained by virtue of a different

provision of this Act,

(ii)

become subject to guardianship under this Act,

(iii)

become a community patient, or

(iv)

be discharged under section 23;

(d)

if the appropriate practitioner is notified that the patient’s case

is to be considered by a tribunal under this Act;

(e)

if requested to do so by virtue of section 130ZB (3) ;

(f)

if reasonably requested to do so by—

(i)

the relevant patient;

(ii)

anyone named by the relevant patient as someone to

be consulted about their care and treatment plan;

(iii)

the relevant patient’s nominated person;

(iv)

any independent mental health advocate from whom

the relevant patient is receiving help by virtue of section

130A;

(v)

any donee or deputy for the relevant patient;

(vi)

any other person who cares for the relevant patient or

is interested in the relevant patient’s welfare.

(6)

When preparing or reviewing a care and treatment plan, the

appropriate practitioner must, if it is practicable and appropriate to

do so, consult the persons mentioned in subsection (5) (f) .

(7)

The Secretary of State may by regulations make provision—

(a)

requiring a care and treatment plan to be revised in specified

circumstances;

(b)

specifying, in relation to cases in which a care and treatment

plan must be prepared, reviewed or revised, when that must

be done.

(8)

The Secretary of State may by regulations make provision about—

(a)

disclosure of information contained in a care and treatment

plan;

(b)

disclosure of other information for the purposes of functions

under this section.

(9)

Regulations under this section may make—

(a)

provision subject to specified exceptions;

(b)

different provision for different cases;

(c)

transitional, consequential, incidental or supplemental provision.

Page 32

(10)

References in this section—

(a)

to a donee for a patient are to a donee of a lasting power of

attorney (within the meaning of section 9 of the Mental

Capacity Act 2005) created by the patient;

(b)

to a deputy for a patient are to a deputy appointed for the

patient by the Court of Protection under section 16 of the

Mental Capacity Act 2005;

(c)

to the responsible local social services authority—

(i)

in relation to a patient who is subject to guardianship

in pursuance of a guardianship application, are to be

read in accordance with section 34(3);

(ii)

in relation to a patient who is subject to guardianship

in pursuance of a guardianship order under section 37,

are to the local social services authority specified in the

order.

(11)

In this section “the appropriate practitioner” has the same meaning

as in Part 2 (see section 34(1)).

130ZB

Care and treatment plans: monitoring

(1)

The managers of a hospital or registered establishment in England

must make arrangements for the monitoring of compliance with the

duties imposed by section 130ZA in relation to relevant patients for

whom the managers are responsible.

(2)

A local social services authority whose area is in England must make

arrangements for the monitoring of compliance with the duties imposed

by section 130ZA in relation to relevant patients for whom the

authority is the responsible local social services authority.

(3)

Arrangements under subsection (1) or (2) must include arrangements

for the appropriate practitioner, in relation to a relevant patient, to be

requested to review the patient’s care and treatment plan where the

managers or local social services authority (as the case may be) consider

that the care and treatment plan should be reviewed.

(4)

For the purposes of subsection (1) the managers of a hospital or

registered establishment are “responsible” for a relevant patient if the

patient—

(a)

is liable to be detained under this Act in the hospital or

registered establishment, or

(b)

is a community patient for whom the hospital or registered

establishment is the responsible hospital.

(5)

The reference in subsection (2) to the responsible local social services

authority is to be read in accordance with section 130ZA (10) (c) .

(6)

In this section—

“the appropriate practitioner” has the same meaning as in Part 2

(see section 34(1));

Page 33

“care and treatment plan” has the meaning given by section

130ZA (3) ;

“relevant patient” means a patient to whom section 130ZA

applies.”

Community treatment orders

Consultation of the community clinician

(1)

The Mental Health Act 1983 is amended as follows.

(2)

In section 17A(4) (grounds for making community treatment orders)—

(a)

omit the “and” at the end of paragraph (a);

(b)

for paragraph (b) substitute—

“(b)

an approved mental health professional states in

writing—

(i)

that they agree that the relevant criteria are met;

and

(ii)

that it is appropriate to make the order; and

(c)

where the responsible clinician is not the community

clinician, the community clinician states in writing that

they agree that the relevant criteria are met.”

(3)

In section 17B (conditions of community treatment orders)—

(a)

in subsection (2), for the words from “approved” to “above” substitute

“relevant professionals”;

(b)

after subsection (5) insert—

“(5A)

Where the responsible clinician is not the community clinician,

the responsible clinician must consult the community clinician

before varying or suspending conditions specified in a

community treatment order, unless consultation would involve

unreasonable delay.”;

(c)

after subsection (7) insert—

“(8)

In this section “the relevant professionals” means—

(a)

the approved mental health professional making the

statement required by section 17A(4)(b), and

(b)

where section 17A(4)(c) applies, the community

clinician.”

(4)

In section 17E (power to recall a community patient to hospital), after

subsection (2) insert—

“(2A)

Where the responsible clinician is not the community clinician, the

responsible clinician must consult the community clinician before

recalling a community patient to hospital, unless consultation would

involve unreasonable delay.”

Page 34

(5)

In section 17F (powers in respect of recalled patients), after subsection (4)

insert—

“(4A)

Where the responsible clinician is not the community clinician, the

responsible clinician must consult the community clinician before

revoking a community treatment order, unless consultation would

involve unreasonable delay.”

(6)

In section 20A (community treatment period)—

(a)

in subsection (4)(b), for “under subsection (8) below is made,” substitute

“has been made—

“(i)

under subsection (8), and

(ii)

where the responsible clinician is not the

community clinician, under subsection (8A),”;

(b)

in subsection (8), after “(4)” insert “(b)(i)”;

(c)

after subsection (8) insert—

“(8A)

The statement referred to in subsection (4)(b)(ii) is a statement

in writing by the community clinician that it appears to the

community clinician that the conditions set out in subsection

(6) are satisfied.”;

(d)

omit subsection (9).

(7)

In section 34(1) (interpretation of Part 2), at the appropriate place insert—

““the community clinician” means—

(a)

in relation to a patient who is liable to be detained in a hospital

in pursuance of an application for admission for treatment, the

approved clinician who would oversee the patient’s care if

they were to become a community patient;

(b)

in relation to a community patient, the approved clinician

overseeing the patient’s care as a community patient;”.

(8)

In section 80C (removal of patients subject to compulsion in the community

from Scotland)—

(a)

in subsection (6), for “an approved mental health professional agrees”

substitute “the relevant professionals agree”;

(b)

after subsection (6) insert—

“(7)

In this section “the relevant professionals” means—

(a)

an approved mental health professional, and

(b)

where the responsible clinician is not the community

clinician, the community clinician.”

(9)

In section 85ZA (responsibility for community patients transferred from

Channel Islands or Isle of Man)—

(a)

in subsection (5), for “an approved mental health professional agrees”

substitute “the relevant professionals agree”;

(b)

after subsection (5) insert—

“(6)

In this section “the relevant professionals” means—

Page 35

(a)

an approved mental health professional, and

(b)

where the responsible clinician is not the community

clinician, the community clinician.”

(10)

In section 92 (interpretation of Part 6), after subsection (1A) insert—

“(1B)

References in this Part to the community clinician are to be construed

as references to the community clinician within the meaning of Part

2.”

Conditions of community treatment orders

(1)

In section 17B(2) of the Mental Health Act 1983 (conditions of community

treatment orders) omit “or appropriate”.

(2)

In section 72 of that Act (powers of tribunals), after subsection (3A) insert—

“(3B)

Where a tribunal does not direct the discharge of a community patient,

the tribunal may recommend that the responsible clinician reconsider

whether a condition specified in the community treatment order is

necessary.”

Nominated persons

Nominated person

Schedule 2 contains amendments of the Mental Health Act 1983 which—

(a)

make provision about the appointment of a nominated person for a

patient,

(b)

transfer to nominated persons functions currently conferred on patients’

nearest relatives, and

(c)

confer functions on nominated persons for certain patients concerned

in criminal proceedings.

Applications for admission or guardianship: role of nominated person

(1)

The Mental Health Act 1983 is amended as follows.

(2)

In section 11 (general provisions about applications for admission or

guardianship), for subsection (4) substitute—

“(4)

Before an approved mental health professional makes an application

for admission for treatment or a guardianship application in respect

of a patient who appears to have a nominated person, the professional

must consult that person.

(4A)

But the consultation requirement imposed by subsection (4) does not

apply if it appears to the approved mental health professional that

consultation—

(a)

is not reasonably practicable, or

(b)

would involve unreasonable delay.

Page 36

(4B)

A patient’s nominated person may object to the making of an

application for admission for treatment or the making of a

guardianship application by an approved mental health professional

by—

(a)

notifying the professional, or

(b)

notifying the local social services authority on whose behalf

the professional is acting.

(4C)

Where a nominated person objects under subsection (4B) 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 approved

mental health professional, 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 the patient.”

(3)

In section 20 (duration of authority)—

(a)

in subsection (5)—

(i)

the words from “one” to the end become paragraph (a), and

(ii)

after that paragraph insert “; and

“(b)

if the patient appears to have a nominated

person, the nominated person.”;

(b)

after subsection (6) insert—

“(6A)

Before furnishing a report under subsection (6), the appropriate

practitioner must, if the patient appears to have a nominated

person, consult that person.”

(4)

In section 66 (applications to tribunals), in subsection (1), after sub-paragraph

(i) insert—

“(ia)

in the cases mentioned in paragraphs (b) and (c) where

the application was made despite an objection under

section 11 (4B) , by the patient’s nominated person;”.

Discharge of patients: role of nominated person

In section 25 of the Mental Health Act 1983 (restrictions on discharge by

nearest relative)—

(a)

in the heading, for “nearest relative” substitute “nominated person”;

(b)

in subsection (1)—

(i)

in the words before paragraph (a), for “nearest relative”

substitute “nominated person”;

(ii)

in paragraphs (a) and (b), for “relative” substitute “nominated

person”;

(iii)

in paragraph (b) for “six months” substitute “three months”;

(c)

in subsection (2), for “nearest relative” substitute “nominated person”;

Community treatment orders: role of nominated person

(1)

The Mental Health Act 1983 is amended as follows.

Page 37

(2)

After section 17A insert—

“17AA

Community treatment orders: role of nominated person

(1)

Before the responsible clinician makes a community treatment order

in respect of a patient who appears to have a nominated person, the

responsible clinician must consult that person.

(2)

But the consultation requirement imposed by subsection (1) does not

apply if it appears to the responsible clinician that consultation—

(a)

is not reasonably practicable, or

(b)

would involve unreasonable delay.

(3)

A patient’s nominated person may object to the making of a

community treatment order by notifying the responsible clinician.

(4)

Where the nominated person objects under subsection (3) , the

community treatment order may not be made unless the responsible

clinician certifies in writing that—

(a)

in the opinion of the responsible clinician, the patient should

be discharged from hospital, and

(b)

the patient, if so discharged without a community treatment

order being in force, would be likely to act in a manner that

is dangerous to other persons or to the patient.”

(3)

In the heading to section 17B, after “Conditions” insert “to be included in

community treatment orders”.

(4)

In section 20A (community treatment period and extensions), after subsection

(8A) (as inserted by section 22 of this Act) insert—

“(8B)

Before making a statement under subsection (8)(b) in respect of a

patient who appears to have a nominated person, the approved mental

health professional must consult the nominated person, unless

consultation—

(a)

is not reasonably practicable, or

(b)

would involve unreasonable delay.”

(5)

In section 66 (applications to tribunals), in subsection (1), after sub-paragraph

(ia) (inserted by section 27 of this Act) insert—

“(ib)

in the case mentioned in paragraph (ca) where the

application was made despite an objection under section

17AA (3) , by the patient’s nominated person;”.

(6)

In Part 1 of Schedule 1 (application of certain provisions to patients subject

to hospital and guardianship orders: patients not subject to special restrictions),

in paragraph 1, before “17B,” (as inserted by Schedule 1 to this Act) insert

“17AA,”.

Page 38

Transfer of patients: role of nominated person

In section 19 of the Mental Health Act 1983 (transfer of patients), after

subsection (3) insert—

“(3A)

Before deciding to transfer a patient between hospitals in pursuance

of regulations under subsection (1), or in pursuance of subsection (3),

the person responsible for taking that decision must consult the

patient’s nominated person (if any), unless consultation—

(a)

is not reasonably practicable, or

(b)

would involve unreasonable delay.”

Detention periods

Detention periods

(1)

The Mental Health Act 1983 is amended as follows.

(2)

In section 19 (regulations as to transfers of patients), after subsection (2)

insert—

“(2A)

But, in the case of a patient falling within subsection (2)(d), section 20

has effect as if the patient had been admitted to hospital in pursuance

of an application for admission for treatment on the day on which the

patient is transferred.”

(3)

In section 20 (duration of authority)—

(a)

for subsections (1) and (2) substitute—

“(1)

Subject to the following provisions of this Part—

(a)

a patient admitted to hospital in pursuance of an

application for admission for treatment may be detained

in a hospital for a period not exceeding three months

beginning with the day on which the patient was so

admitted, but may not be so detained for any longer

period unless the authority for the patient’s detention

is renewed under this section;

(b)

a patient placed under guardianship in pursuance of a

guardianship application may be kept under

guardianship for a period not exceeding six months

beginning with the day on which the guardianship

application was accepted, but may not be so kept for

any longer period unless the authority for the patient’s

guardianship is renewed under this section.

(2)

Authority for the detention of a patient may, unless the patient

has previously been discharged under section 23, be renewed—

(a)

from the expiration of the period referred to in

subsection (1)(a), for a further period of three months;

(b)

from the expiration of any period of renewal under

paragraph (a), for a further period of six months;

Page 39

(c)

from the expiration of any period of renewal under

paragraph (b), for a further period of one year, and so

on for periods of one year at a time.

(2A)

Authority for the guardianship of a patient may, unless the

patient has previously been discharged under section 23, be

renewed—

(a)

from the expiration of the period referred to in

subsection (1)(b), for a further period of six months;

(b)

from the expiration of any period of renewal under

paragraph (a), for a further period of one year, and so

on for periods of one year at a time.”;

(b)

in subsection (8), after “subsection (2)” insert “or (2A) ”.

(4)

In section 21B (patients who are taken into custody or return after more than

28 days)—

(a)

in subsection (5), after “20(2)” insert “or (2A) ”;

(b)

in subsection (6)(b), after “20(2)” insert “or (2A) ”.

(5)

In Part 1 of Schedule 1 (application of certain provisions to patients subject

to hospital and guardianship orders)—

(a)

in paragraph 2, at the end insert “(subject to any qualifications

expressed in those paragraphs)”;

(b)

in paragraph 2B, for paragraph (c) substitute—

“(c)

subsection (5) is to be omitted.”;

(c)

in paragraph 5—

(i)

for “section 19(2)” substitute “section 19—

“(a)

in subsection (2)”;

(ii)

at the end insert—

“(b)

subsection (2A) is to be omitted.”;

(d)

after paragraph 5A insert—

“5B

(1)

The modifications of section 20 made by this paragraph

apply in relation to a patient transferred from guardianship

to a hospital in pursuance of regulations made under section

19.

(2)

In section 20(1)(a)—

(a)

for “in pursuance of an application for admission for

treatment” there is to be substituted “as a result of

being transferred in pursuance of regulations under

section 19 ”;

(b)

for “admitted”, in the second place it occurs, there is

to be substituted “transferred”.

(1)

The modifications of section 20 made by this paragraph

apply in relation to a patient in respect of whom a

community treatment order was revoked under section 17F

Page 40

within the period of six months beginning with the date of

the relevant order or direction under Part 3.

(2)

In section 20(1)(a)—

(a)

for “application for admission for treatment” there is

to be substituted “order or direction under Part 3 of

this Act”;

(b)

for “three months” there is to be substituted “six

months”;

(c)

for “day on which the patient was so admitted” there

is to be substituted “day on which the community

treatment order in respect of the patient was

revoked”.

(3)

In section 20(2)—

(a)

in paragraph (a), for “three months” there is to be

substituted “six months”;

(b)

in paragraph (b), for “six months” there is to be

substituted “one year”.

(1)

The modifications of section 20 made by this paragraph

apply in relation to a patient in respect of whom a

community treatment order was revoked under section 17F

after the end of the period of six months beginning with the

date of the relevant order or direction under Part 3.

(2)

In section 20(1)(a)—

(a)

for “application for admission for treatment” there is

to be substituted “order or direction under Part 3 of

this Act”;

(b)

for “day on which the patient was so admitted” there

is to be substituted “day on which the community

treatment order in respect of the patient was

revoked”.”;

(e)

for paragraph 6 substitute—

“6

(1)

The modifications of section 20 made by this paragraph

apply in relation to a patient where none of paragraphs 5B

to 5D applies.

(2)

In section 20(1)—

(a)

in paragraph (a)—

(i)

for “application for admission for treatment”

there is to be substituted “order or direction

under Part 3 of this Act”;

(ii)

for “three months” there is to be substituted

“six months”;

(iii)

for “day on which the patient was so

admitted” there is to be substituted “date of

the relevant order or direction under Part 3

of this Act”;

Page 41

(b)

in paragraph (b)—

(i)

for “a guardianship application” there is to

be substituted “an order under Part 3 of this

Act”;

(ii)

for “day on which the guardianship

application was accepted” there is to be

substituted “date of the relevant order under

Part 3 of this Act”.

(3)

In section 20(2)—

(a)

in paragraph (a), for “three months” there is to be

substituted “six months”;

(b)

in paragraph (b), for “six months” there is to be

substituted “one year”.”

(6)

In Part 2 of Schedule 1 (application of certain provisions to patients subject

to special restrictions), in paragraph 5, after paragraph (b) insert—

“(ba)

subsection (2A) is to be omitted;”.

(7)

In Schedule 5 (transitional and saving provisions), in paragraph 9 omit

sub-paragraph (2).

Periods for applications and references to tribunal

Periods for tribunal applications

(1)

In section 66 of the Mental Health Act 1983 (applications to tribunals), in

subsection (2)—

(a)

in paragraph (a), for “14 days” substitute “21 days”;

(b)

in paragraph (b), for “six months” substitute “three months”.

(2)

In section 75 of the Mental Health Act 1983 (applications and references

concerning conditionally discharged restricted patients)—

(a)

in subsection (1), after “above” insert “(“conditionally discharged”)”;

(b)

in subsection (2)—

(i)

in the words before paragraph (a), for “as aforesaid but”

substitute “, is not subject to conditions amounting to a

deprivation of liberty and”;

(ii)

in paragraph (a), for the words from “beginning” to

“discharged”, substitute “beginning—

“(i)

in the case of a patient who has

previously been subject to conditions

amounting to a deprivation of liberty,

with the date on which the patient most

recently ceased to be subject to such

conditions, and

(ii)

in any other case, with the date on which

the patient was conditionally

discharged”;

Page 42

(c)

after subsection (2) insert—

“(2A)

Where a restricted patient has been conditionally discharged,

is subject to conditions amounting to a deprivation of liberty

and has not been recalled to hospital, the patient may apply

to the appropriate tribunal—

(a)

in the period between the expiration of six months and

the expiration of 12 months beginning with the date on

which the patient most recently became subject to

conditions amounting to a deprivation of liberty

(whether or not that was the date on which the patient

was conditionally discharged), and

(b)

in any subsequent period of two years.”

References to tribunal

(1)

The Mental Health Act 1983 is amended as follows.

(2)

In section 17G (effect of revoking community treatment order), in subsection

(5), after “section 20” insert “and section 68”.

(3)

In section 19(2A) (as inserted by section 29 of this Act) for “has” substitute

“and section 68 have”.

(4)

In section 68 (duty of managers of hospitals to refer cases to tribunal)—

(a)

in subsection (1) omit paragraphs (d) and (e);

(b)

in subsection (2), for “the period of six months beginning with the

applicable day” substitute “a relevant period”;

(c)

in subsection (3)—

(i)

in the words before paragraph (a), for “that” substitute “the

relevant”;

(ii)

in paragraph (a), after “(e),” insert “(f), (fza), (fa), (faa),”;

(iii)

in paragraph (c), for “(7)” substitute “(6)”;

(d)

in subsection (4), for “period mentioned in subsection (2) above”

substitute “relevant period”;

(e)

after subsection (4) insert—

“(4A)

In this section “relevant period” means—

(a)

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

in pursuance of an application for admission for

assessment, the period of three months beginning with

the applicable day;

(b)

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

pursuance of an application for admission for

treatment—

(i)

the period of three months beginning with the

applicable day;

(ii)

the period between the expiry of three months

and the expiry of 12 months beginning with the

applicable day;

Page 43

(iii)

each subsequent period of 12 months;

(c)

in the case of a community patient—

(i)

the period of six months beginning with the

applicable day;

(ii)

the period between the expiry of six months and

the expiry of 12 months beginning with the

applicable day;

(iii)

each subsequent period of 12 months.”;

(f)

in subsection (5)—

(i)

in the words before paragraph (a), for “(2) above” substitute

“ (4A) ”;

(ii)

in paragraph (c), for the words from “or a patient” to the end

substitute “, the day on which the community treatment order

was made”;

(iii)

omit paragraph (d);

(g)

for subsection (6) substitute—

“(6)

The managers of the hospital must also refer the patient’s case

to the appropriate tribunal if—

(a)

the patient’s case has not been considered by such a

tribunal within the last 12 months, whether on the

patient’s own application or otherwise, and

(b)

there is no pending application or reference to the

appropriate tribunal in relation to the patient’s case.”;

(h)

omit subsection (7).

(5)

Omit section 68A.

(6)

In section 143 (general provisions as to regulations, orders and rules)—

(a)

in subsection (2)(b), as inserted by section 38 of this Act, omit “or

68A(7)”;

(b)

in subsection (3) omit “, 68A(1)”;

(c)

in subsection (3C) omit “, or an order under section 68A(7) above,”;

(d)

omit subsection (3D).

(7)

In Part 1 of Schedule 1 (application of certain provisions to patients subject

to hospital and guardianship orders), in paragraph 10—

(a)

the existing text becomes sub-paragraph (1);

(b)

in sub-paragraph (1), for paragraph (b) substitute—

“(b)

subsections (2) to (5) are to apply if—

(i)

the patient falls within paragraph (b) of

subsection (1) as a result of being—

(A)

a patient who was transferred from

guardianship to hospital in pursuance

of regulations made under section 19,

(B)

a patient in respect of whom a

community treatment order was

Page 44

revoked, where the revocation took

place after the end of the period of six

months beginning with the date of the

relevant order or direction under Part

3 of this Act, or

(ii)

the patient falls within paragraph (c) of

subsection (1),

but otherwise are not to apply.”;

(c)

after sub-paragraph (1) insert—

“(2)

In the application of subsections (2) to (5) of section 68 by

virtue of sub-paragraph (1) (b) , those subsections apply as if

the patient had been admitted to hospital in pursuance of

an application for admission for treatment on the day on

which the patient was transferred or the community

treatment order was revoked.”

References: restricted patients subject to deprivation of liberty conditions

(1)

The Mental Health Act 1983 is amended as follows.

(2)

In section 71 (references by Secretary of State concerning restricted patients)—

(a)

in subsection (3A), for the words from “include” to the end substitute

“make—

“(a)

provision subject to specified exceptions,

(b)

different provision for different cases or areas, and

(c)

transitional, consequential, incidental or supplemental

provision.”;

(b)

after subsection (4) insert—

“(4A)

Sections 73 and 74 do not apply to a reference under subsection

(1) in respect of a patient who has been conditionally

discharged and not recalled to hospital but on any such

reference the tribunal may—

(a)

vary any condition to which the patient is subject in

connection with the patient’s discharge or impose any

condition which might have been imposed in connection

with their discharge, or

(b)

direct that the restriction order, limitation direction or

restriction direction to which the patient is subject ceases

to have effect,

and if the tribunal gives a direction under paragraph (b) the

patient ceases to be liable to be detained by virtue of the

relevant hospital order, hospital direction or transfer direction.

(4B)

Conditions amounting to a deprivation of liberty may be

imposed under subsection (4A) (a) only if the tribunal is

satisfied—

(a)

that conditions amounting to a deprivation of the

patient’s liberty are necessary for the protection of

Page 45

another person from serious harm while the patient

remains discharged from hospital, and

(b)

that for the patient to remain discharged subject to those

conditions would be no less beneficial to their mental

health than for them to be recalled to hospital.”

(3)

In section 75 (applications and references concerning conditionally discharged

restricted patients)—

(a)

after subsection (2A) (as inserted by section 30 (2) (c) of this Act) insert—

“(2C)

Where a restricted patient has been conditionally discharged,

is subject to conditions amounting to a deprivation of liberty

and has not been recalled to hospital, the Secretary of State

must refer the patient’s case to the appropriate tribunal on the

expiry of—

(a)

the period of 12 months beginning with the date on

which the patient most recently became subject to

conditions amounting to a deprivation of liberty

(whether or not that was the date on which the patient

was conditionally discharged), and

(b)

each subsequent period of two years.

(2D)

The Secretary of State is not required to make a reference under

subsection (2C) if the patient’s case was considered by the

appropriate tribunal during the period in question.

(2E)

The Secretary of State must refer to the appropriate tribunal

the case of any restricted patient who has been conditionally

discharged, is subject to conditions amounting to a deprivation

of liberty and has not been recalled to hospital if—

(a)

the patient’s case has not been considered by the

appropriate tribunal within the last four years, and

(b)

there is no pending application or reference to the

appropriate tribunal in relation to the patient’s case.

(2F)

The Secretary of State may by order vary the length of a period

mentioned in subsection (2C) or (2E) .

(2G)

An order under subsection (2F) may make—

(a)

provision subject to specified exceptions;

(b)

different provision for different cases or areas;

(c)

transitional, consequential, incidental or supplemental

provision.

(2H)

Any reference under subsection (2C) or (2E) must be made to

the tribunal for the area in which the patient resides.

(2I)

References in this section to the patient’s case being considered

by the appropriate tribunal are to the patient’s case being

considered by the appropriate tribunal on the patient’s own

application or otherwise.”;

(b)

in subsection (3)—

Page 46

(i)

after “subsection (2) above” insert “, or any reference under

subsection (2C) or (2E) ”;

(ii)

after “such application” insert “or reference”;

(c)

after subsection (3) insert—

“(4)

Conditions amounting to a deprivation of liberty may be

imposed under subsection (3)(a) only if the tribunal is

satisfied—

(a)

that conditions amounting to a deprivation of the

patient’s liberty are necessary for the protection of

another person from serious harm while the patient

remains discharged from hospital, and

(b)

that for the patient to remain discharged subject to those

conditions would be no less beneficial to their mental

health than for them to be recalled to hospital.”

(4)

In section 143 (general provisions as to regulations, orders and rules), in

subsection (3), for “or 71(3)” substitute “, 71(3) or 75 (2E) ”.

(5)

The amendments made by this section apply in relation to any person who

is a restricted patient within the meaning given by subsection (1) of section

79 of the Mental Health Act 1983, or is treated as a restricted patient as a

result of that subsection, whether the person became such a patient (or treated

as such a patient) before or after the coming into force of this section.

References: restricted patients not subject to deprivation of liberty conditions

(1)

The Mental Health Act 1983 is amended as follows.

(2)

In section 71 (references by Secretary of State concerning restricted patients),

for subsection (2) substitute—

“(2)

The Secretary of State must refer to the appropriate tribunal the case

of any restricted patient detained in a hospital if—

(a)

the patient’s case has not been considered by the appropriate

tribunal within the last 12 months, whether on the patient’s

own application or otherwise, and

(b)

there is no pending application or reference to the appropriate

tribunal in relation to the patient’s case.”

(3)

In section 75 (applications and references concerning conditionally discharged

restricted patients)—

(a)

before subsection (2C) (as inserted by section 32 (3) (a) of this Act)

insert—

“(2B)

Where a restricted patient has been conditionally discharged,

is not subject to conditions amounting to a deprivation of

liberty and has not been recalled to hospital, the Secretary of

State must refer the patient’s case to the appropriate tribunal

on the expiry of—

(a)

the period of two years beginning—

Page 47

(i)

in the case of a patient who has previously been

subject to conditions amounting to a deprivation

of liberty, with the date on which the patient

most recently ceased to be subject to such

conditions, and

(ii)

in any other case, with the date on which the

patient was conditionally discharged, and

(b)

each subsequent period of four years.”;

(b)

in subsection (2D), after “subsection” insert “ (2B) or”;

(c)

in subsection (2E) omit “, is subject to conditions amounting to a

deprivation of liberty”;

(d)

in subsection (2F), after “subsection” insert “ (2B) ,”;

(e)

in subsection (2H), after “subsection” insert “ (2B) ,”;

(f)

in subsection (3), after “subsection”, in the second place it occurs, insert

“ (2B) ,”.

(4)

The amendments made by this section apply in relation to any person who

is a restricted patient within the meaning given by subsection (1) of section

79 of the Mental Health Act 1983, or is treated as a restricted patient as a

result of that subsection, whether the person became such a patient (or treated

as such a patient) before or after the coming into force of this section.

Discharge: process

Discharge: process

In section 23 of the Mental Health Act 1983 (discharge of patients), after

subsection (2) insert—

“(2A)

Before making an order for discharge by virtue of subsection (2)(a),

the responsible clinician must consult a person—

(a)

who has been professionally concerned with the patient’s

medical treatment, and

(b)

who belongs to a profession other than that to which the

responsible clinician belongs.

(2B)

Before making an order for discharge by virtue of subsection (2)(b)—

(a)

the responsible clinician must consult a person—

(i)

who has been professionally concerned with the

patient’s care or treatment, and

(ii)

who belongs to a profession other than that to which

the responsible clinician belongs;

(b)

the responsible local social services authority must ensure that

whoever is taking the decision for the authority consults a

person who has been professionally concerned with the patient's

care or treatment (whether or not a member of staff of the

authority);

(c)

the patient’s nominated person must consult the responsible

local social services authority.

Page 48

(2C)

Before making an order for discharge by virtue of subsection (2)(c)—

(a)

the responsible clinician must, if they are not the community

clinician, consult the community clinician;

(b)

the hospital managers must consult the community clinician.”

Ascertaining and learning from patients’ experiences of hospital treatment

After section 23 of the Mental Health Act 1983 (discharge of patients) insert—

“23A

Ascertaining and learning from patients’ experiences of hospital

treatment

(1)

A patient who has been detained under this Part of this Act must,

within 30 days of their discharge, be offered a consultation with an

independent mental health advocate to review their experiences of

hospital treatment.

(2)

A report from any consultation undertaken pursuant to subsection (1)

shall be produced by the independent mental health advocate in

partnership with the patient.

(3)

The report referred to in subsection (2) shall be provided to the

managers of the hospital within 14 days of its completion.

(4)

The managers of the hospital shall publish each year a report setting

out what they have learned from patients’ experiences at the hospital,

and the actions they have taken.”

Patients concerned in criminal proceedings or under sentence

Conditional discharge subject to deprivation of liberty conditions

(1)

The Mental Health Act 1983 is amended as follows.

(2)

In section 42 (powers of Secretary of State in respect of patients subject to

restriction orders), after subsection (2) insert—

“(2A)

Conditions amounting to a deprivation of a patient’s liberty may be

imposed under subsection (2) if the Secretary of State is satisfied that

those conditions are necessary for the protection of the public from

serious harm.”

(3)

In section 73 (power of tribunal to discharge patients subject to restriction

orders)—

(a)

in subsection (2)—

(i)

omit the “but” at the end of paragraph (a);

(ii)

at the end of paragraph (b), after “apply” insert “; and

“(c)

the tribunal—

(i)

is not satisfied that conditions amounting

to a deprivation of the patient’s liberty

would be necessary for the protection of

another person from serious harm, if the

Page 49

patient were discharged from hospital;

(ii)

is satisfied that conditions amounting to

a deprivation of the patient’s liberty

would be necessary for the protection of

another person from serious harm if the

patient were discharged from hospital,

and is also satisfied that for the patient

to be discharged subject to those

conditions would be no less beneficial to

their mental health than for them to

remain in hospital”;

(b)

after subsection (5) insert—

“(5A)

Conditions amounting to a deprivation of a patient’s liberty

may be imposed by the tribunal under subsection (4)(b) only

where the tribunal is satisfied as to the matters mentioned in

subsection (2)(c)(ii).

(5B)

Conditions amounting to a deprivation of a patient’s liberty

may be imposed by the Secretary of State under subsection

(4)(b) or (5) only where the Secretary of State is satisfied that

those conditions are necessary for the protection of the public

from serious harm.”

(4)

In section 145(1) (interpretation), at the appropriate place insert—

““deprivation of liberty” and related expressions are to be construed in

accordance with section 64(5) and (6) of the Mental Capacity Act 2005;”.

(5)

The amendments made by this section apply in relation to any person who

is a restricted patient within the meaning given by subsection (1) of section

79 of the Mental Health Act 1983, or is treated as a restricted patient as a

result of that subsection, whether the person became such a patient (or treated

as such a patient) before or after the coming into force of this section.

Transfers of prisoners and others to hospital: conditions

(1)

The Mental Health Act 1983 is amended as follows.

(2)

In section 47 (removal to hospital of persons serving sentences of imprisonment

etc) for subsection (1)(c) substitute—

“(c)

that appropriate medical treatment can be given for the relevant

disorder from which the person is suffering;”.

(3)

In section 48 (removal to hospital of other prisoners)—

(a)

for subsection (1)(c) substitute—

“(c)

appropriate medical treatment can be given for the

relevant disorder from which the person is suffering;”;

(b)

in subsection (2), for paragraph (d) substitute—

“(d)

persons detained under—

Page 50

(i)

the Immigration Act 1971,

(ii)

section 62 of the Nationality, Immigration and

Asylum Act 2002 (detention by Secretary of

State),

(iii)

section 36 of the UK Borders Act 2007 (detention

of offenders for deportation), or

(iv)

regulation 32 of the Immigration (European

Economic Area) Regulations 2016 (S.I. 2016/1052)

(which are saved by the Citizens’ Rights

(Restrictions of Rights of Entry and Residence)

(EU Exit) Regulations 2020 (S.I. 2020/1210)).”

Transfers of prisoners and others to hospital: time limits

(1)

The Mental Health Act 1983 is amended as follows.

(2)

After section 47 insert—

“47A

Hospital treatment for prisoners: 28 day transfer period

(1)

As soon as practicable after a relevant referring body makes an initial

request for a medical report in relation to a person serving a sentence

of imprisonment (“P”), the body must give a referral notice to the

persons specified in subsection (3) .

(2)

For the purposes of this section—

(a)

a request is an “initial request” for a medical report if it is the

first request for a report by a registered medical practitioner

on whether the conditions in section 47(1) are satisfied in

relation to P at a particular time;

(b)

“referral notice” means a notice—

(i)

stating that an initial request has been made in relation

to P, and

(ii)

specifying the date on which the initial request was

made;

(c)

“relevant referring body” means—

(i)

in relation to a person serving a sentence of

imprisonment in England, a person who is a “service

provider” within the meaning given by section 12ZA(9)

of the National Health Service Act 2006 or provides

“NHS medical services” within the meaning given by

section 14Z31(5) of that Act;

(ii)

in relation to a person serving a sentence of

imprisonment in Wales, a Local Health Board.

(3)

The persons to whom the referral notice must be given (“the notified

authorities”) are—

(a)

the Secretary of State;

(b)

the relevant detention authority (see section 48B );

Page 51

(c)

as many of the following (other than the relevant referring

body) as the relevant referring body considers likely to have

functions in relation to P in the event that the Secretary of State

gives a direction under section 47—

(i)

NHS England;

(ii)

integrated care boards;

(iii)

National Health Service trusts established under section

18 of the National Health Service (Wales) Act 2006;

(iv)

Local Health Boards;

(v)

service providers within the meaning given by section

12ZA(9) of the National Health Service Act 2006.

(4)

When exercising functions in relation to P, the relevant referring body

and the notified authorities must seek to ensure that, absent exceptional

circumstances, the following all happen within the period of 28 days

beginning with the date of the initial request—

(a)

a decision is taken as to whether to make a direction under

section 47 in respect of P;

(b)

if a decision is taken to make such a direction, the direction is

made, and

(c)

where the direction is made, P is removed to and detained in

a hospital in pursuance of the direction.

(5)

For the purposes of subsection (4) the following are not (together or

separately) “exceptional circumstances”—

(a)

a shortage of hospital accommodation;

(b)

a shortage of hospital staff;

unless occurring as a result of other exceptional circumstances.”

(3)

After section 48 insert—

“48A

Hospital treatment for other prisoners: 28 day transfer period

(1)

As soon as practicable after a relevant referring body makes an initial

request for a medical report in relation to a person (“P”) to whom

section 48 applies, the body must give a referral notice to the persons

specified in subsection (3) .

(2)

For the purposes of this section—

(a)

a request is an “initial request” for a medical report if it is the

first request for a report by a registered medical practitioner

on whether the conditions in section 48(1) are satisfied in

relation to P at a particular time;

(b)

“referral notice” means a notice—

(i)

stating that an initial request has been made in relation

to P, and

(ii)

specifying the date on which the initial request was

made;

(c)

“relevant referring body” means—

Page 52

(i)

in relation to a person to whom section 48 applies and

who is detained or remanded at a place in England, a

person who is a “service provider” within the meaning

given by section 12ZA(9) of the National Health Service

Act 2006 or provides “NHS medical services” within

the meaning given by section 14Z31(5) of that Act;

(ii)

in relation to a person to whom section 48 applies and

who is detained or remanded at a place in Wales, a

Local Health Board.

(3)

The persons to whom the referral notice must be given (“the notified

authorities”) are—

(a)

the Secretary of State;

(b)

the relevant detention authority (see section 48B );

(c)

as many of the following (other than the relevant referring

body) as the relevant referring body considers likely to have

functions in relation to P in the event that the Secretary of State

gives a direction under section 48—

(i)

NHS England;

(ii)

integrated care boards;

(iii)

National Health Service trusts established under section

18 of the National Health Service (Wales) Act 2006;

(iv)

Local Health Boards;

(v)

service providers within the meaning given by section

12ZA(9) of the National Health Service Act 2006.

(4)

When exercising functions in relation to P, the relevant referring body

and the notified authorities must seek to ensure that, absent exceptional

circumstances, the following all happen within the period of 28 days

beginning with the date of the initial request—

(a)

a decision is taken as to whether to make a direction under

section 48 in respect of P;

(b)

if a decision is taken to make such a direction, the direction is

made, and

(c)

where the direction is made, P is removed to and detained in

a hospital in pursuance of the direction.

(5)

For the purposes of subsection (4) the following are not (together or

separately) “exceptional circumstances”—

(a)

a shortage of hospital accommodation;

(b)

a shortage of hospital staff;

unless occurring as a result of other exceptional circumstances.”

(4)

After section 48A (inserted by subsection (3)) insert—

“48B

Sections 47A and 48A: supplementary

(1)

For the purposes of sections 47A and 48A , “the relevant detention

authority”, in relation to a referral notice (within the meaning of the

section in question), has the meaning given by the table. Where, on the day the referral

Page 53

The relevant detention authority is

notice is sent, P is detained or

remanded in

a prison

the governor or director of the

prison

a young offender institution

the governor or director of the

institution

a secure training centre

the governor or director of the

centre

a secure children’s home

the registered manager of the home

a removal centre

the manager of the centre

a short-term holding facility

the manager of the facility

pre-departure accommodation

the manager of the accommodation

(2)

In this section—

“pre-departure accommodation” has the meaning given by section

147 of the Immigration and Asylum Act 1999;

“registered manager” , in relation to a secure children’s home,

means a person who is registered under Part 2 of the Care

Standards Act 2000 as the manager of the home;

“removal centre” has the meaning given by section 147 of the

Immigration and Asylum Act 1999;

“secure children’s home” has the meaning given by section 102(11)

of the Legal Aid, Sentencing and Punishment of Offenders Act

2012;

“secure training centre” has the meaning given by section 43(1)(d)

of the Prison Act 1952;

“short-term holding facility” has the meaning given by section

147 of the Immigration and Asylum Act 1999;

“young offender institution” has the meaning given by section

43(1)(aa) of the Prison Act 1952.

(3)

The Secretary of State may by regulations—

(a)

amend this section or section 47A or 48A so as to change the

persons—

(i)

who are subject to the duty to give a referral notice

under section 47A (1) or 48A (1) , or

(ii)

to whom a referral notice must be given under

subsection 47A (3) or 48A (3) ;

(b)

amend the period in 47A (4) or 48A (4) .”

(5)

In section 143 (general provisions as to regulations, orders and rules)—

Page 54

(a)

for subsection (2) substitute—

“(2)

The following are subject to annulment in pursuance of a

resolution of either House of Parliament—

(a)

any Order in Council under this Act;

(b)

any order made by the Secretary of State under section

54A or 68A(7);

(c)

any statutory instrument containing regulations made

by the Secretary of State under this Act, other than

regulations made under section 48B (3) ;

(d)

any statutory instrument containing rules made under

this Act.”;

(b)

after subsection (3) insert—

“(3ZA)

A statutory instrument containing regulations under section

48B (3) (whether alone or with other provision) may not be

made unless a draft of the instrument has been laid before and

approved by a resolution of each House of Parliament.”

Transfer directions for persons detained in youth detention accommodation

(1)

In section 48 of the Mental Health Act 1983 (removal to hospital of other

prisoners), in subsection (2)(a), for “remand centre” substitute “remanded to

youth detention accommodation under section 91 of the Legal Aid, Sentencing

and Punishment of Offenders Act 2012”.

(2)

In Schedule 8 to the Criminal Justice and Court Services Act 2000 (repeals),

in the table, omit the entry relating to section 48(2)(a) of the Mental Health

Act 1983.

Minor amendment

In Part 1 of Schedule 1 to the Mental Health Act 1983 (application of certain

provisions to patients subject to hospital and guardianship orders who are

not subject to special restrictions), in paragraph 9(b), for the words from “and

(g)” to ““(g)”,” substitute “, (d) and (g)”.

Help and information for patients

Independent mental health advocates

Schedule 3 contains amendments relating to independent mental health

advocates, including amendments which—

(a)

provide for informal patients to qualify for help from independent

mental health advocates;

(b)

impose duties on hospital managers and others to notify providers of

advocacy services about qualifying patients;

(c)

impose duties on providers of advocacy services to arrange for certain

patients to be interviewed to find out whether they want to use those

services.

Page 55

Information about complaints for detained patients

In section 132 of the Mental Health Act 1983 (duty of managers of hospitals

to give information to detained patients)—

(a)

in subsection (2) omit the words from “and those steps” to the end;

(b)

after subsection (2) insert—

“(2A)

The managers of a hospital or registered establishment in which

a patient is detained under this Act must also take such steps

as are practicable to ensure that the patient understands how

to exercise any right the patient has to make complaints about—

(a)

the carrying out of functions under this Act;

(b)

any medical treatment for mental disorder received

during the patient’s detention;

(c)

the outcome of any complaint referred to in paragraph

(b) .

(2B)

Where a patient is detained under any provision of this Act,

the steps under subsections (2) and (2A) must be taken —

(a)

as soon as practicable after the commencement of the

patient’s detention under the provision in question, and

(b)

again—

(i)

if the patient is a restricted patient within the

meaning given by subsection (1) of section 79,

or is treated as mentioned in paragraph (a) or

the end of each successive period of twelve

months beginning with the day on which the

patient became a restricted patient or was first

so treated (as the case may be);

(ii)

otherwise, as soon as practicable after any report

is furnished under section 20 in respect of the

patient.”;

(c)

in subsection (3), for “and (2)” substitute “, (2) and (2A) ”;

(d)

in subsection (4), for “and (2)” substitute “, (2) and (2A) ”.

Information about complaints for community patients

In section 132A of the Mental Health Act 1983 (duty of managers of hospitals

to give information to community patients), in subsection (1)—

(a)

omit the “and” at the end of paragraph (a);

(b)

after paragraph (b) insert—

“(c)

how to exercise any right the patient has to make

complaints about—

(i)

the carrying out of functions under this Act;

(ii)

any medical treatment for mental disorder

received while the patient is a community

patient;

Page 56

(iii)

the outcome of any complaint referred to in

sub-paragraph (ii) ;”;

(c)

at the end insert “and again as soon as practicable after any report is

furnished under section 20A in respect of the patient”.

Information for conditionally discharged patients

After section 132A of the Mental Health Act 1983 insert—

“132B

Duty of managers of hospitals to give information to conditionally

discharged patients

(1)

Where a patient is discharged from a hospital or registered

establishment under section 42(2), 73 or 74 and the discharge is a

conditional discharge, the managers of the hospital or registered

establishment must take such steps as are practicable to ensure that

the patient understands—

(a)

under which provision the patient is conditionally discharged

and the effect of that provision;

(b)

the effect of the provisions of this Act applying to patients who

are conditionally discharged under that provision;

(c)

what rights of applying to a tribunal are available to the patient

while the patient is conditionally discharged;

(d)

how to exercise any right the patient has to make complaints

about—

(i)

the carrying out of functions under this Act;

(ii)

any medical treatment for mental disorder received

while the patient is conditionally discharged;

(iii)

the outcome of any complaint referred to in

sub-paragraph (ii) .

(2)

Those steps must be taken as soon as practicable.

(3)

The steps to be taken under subsection (1) must include giving the

requisite information both orally and in writing.

(4)

The managers of the hospital or registered establishment must, except

where the patient otherwise requests, take such steps as are practicable

to furnish the patient’s nominated person with a copy of any

information given to the patient in writing under subsection (1) .

(5)

Those steps must be taken when the information is given to the patient

or within a reasonable time thereafter.”

Advance choice documents

(1)

The Mental Health Act 1983 is amended as follows.

Page 57

(2)

After section 130L insert—

“130M

Advance choice documents: England

(1)

NHS England and each integrated care board must make such

arrangements as it considers appropriate for—

(a)

making information about advance choice documents available

to people for whom it is responsible for the purposes of this

section, and

(b)

helping such of those people as it considers appropriate to

create advance choice documents.

(2)

For the purposes of this section—

(a)

NHS England is “responsible” for any people for whom it is

required to arrange the provision of services or facilities by

virtue of section 3B(1)(c) of the National Health Service Act

2006 (prisoners etc);

(b)

an integrated care board is “responsible” for anyone not within

paragraph (a) who falls within the group of people for whom

the board has core responsibility (as to which, see section 14Z31

of the National Health Service Act 2006).

(3)

An “advance choice document” is a written statement made by a

qualifying person specifying their decisions, wishes or feelings about

any relevant matter that may arise in the event that—

(a)

at some future time—

(i)

consideration is given to the person’s admission to

hospital or a registered establishment as an in-patient

either for medical treatment for mental disorder or for

assessment in relation to mental disorder, or

(ii)

the person is detained under this Act, or given medical

treatment for mental disorder as an in-patient in

hospital, and

(b)

at that time, the person lacks capacity or competence in relation

to that matter.

(4)

For the purposes of subsection (3) —

(a)

“qualifying person” means a person who has capacity or

competence to make the statement,

(b)

“relevant matter”, in relation to a qualifying person, means a

matter relating to, or arising as a consequence of—

(i)

consideration of an application for the person’s

admission for assessment or treatment, or

(ii)

the person’s detention under this Act, or their medical

treatment for a mental disorder as an in-patient in

hospital, and

(c)

a reference to lacking capacity is to lacking capacity within the

meaning of the Mental Capacity Act 2005; and a reference to

having capacity is to be read accordingly.

Page 58

130N

Advance choice documents: Wales

(1)

Each Local Health Board must make such arrangements in relation to

its area as it considers appropriate for—

(a)

making available information about advance choice documents,

and

(b)

helping such of those people as it considers appropriate to

create advance choice documents.

(2)

In this section “advance choice document” has the meaning given by

section 130M (3) .”

(3)

In section 118 (code of practice), in subsection (1), after paragraph (e) (as

inserted by section 18 of this Act) insert—

“(f)

for the guidance of NHS England, integrated care boards and

Local Health Boards in relation to their functions under section

130M or 130N .””

After-care

Tribunal power to recommend after-care

(1)

Section 72 of the Mental Health Act 1983 (powers of tribunals) is amended

as follows.

(2)

In subsection (3)(a), for the words from “he” to “guardianship” substitute—

“(i)

the patient be granted leave of absence;

(ii)

the patient be transferred to another hospital or into

guardianship; or

(iii)

the responsible after-care bodies make plans for the

provision of after-care services for the patient”.

(3)

After subsection (7) insert—

“(8)

In this section—

“after-care services” means after-care services provided or

arranged under section 117;

“the responsible after-care bodies” , in relation to a patient, means

the bodies that will have the duty under section 117 to provide

after-care services for the patient.”

After-care services

(1)

Section 117 of the Mental Health Act 1983 (after-care) is amended as follows.

(2)

In subsection (2), after “authority”, in the second place it occurs, insert “jointly

give notice in writing to the person stating that they”.

(3)

After subsection (3) insert—

“(3A)

In applying subsection (3) for the purpose of determining the local

social services authority in relation to a person—

Page 59

(a)

section 105(6) of the Children Act 1989—

(i)

applies for the purpose of determining the person’s

ordinary residence at any time when they were aged

under 18, and

(ii)

in its application for that purpose, is to be read as if

there were inserted, after paragraph (c)—

“(d)

while the child is being provided with

accommodation under section 117 of the

Mental Health Act 1983; or

(e)

while the child is being provided

with accommodation under any of the

following—

the National Health Service Act

2006;

the National Health Service (Wales)

Act 2006;

the National Health Service

(Scotland) Act 1978;

the Health and Personal Social

Services (Northern Ireland) Order

1972 (S.I. 1972/1265 (N.I. 14));

the Health and Social Care

(Reform) Act (Northern Ireland)

2009; or

(f)

which is referred to in section 194(6) of

the Social Services and Well-being

(Wales) Act 2014 (anaw‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌ 4).”;

(b)

the following provisions apply for the purpose of determining

the person’s ordinary residence at any time when they were

aged 18 or over—

(i)

section 39(1) to (6) of, and paragraphs 1(1), 2(1) and (2)

and 8 of Schedule 1 to, the Care Act 2014;

(ii)

section 194(1) to (3) of the Social Services and Well-being

(Wales) Act 2014 (anaw‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌ 4).

Miscellaneous

Tribunal powers in guardianship cases: burden of proof

In section 72(4) of the Mental Health Act 1983 (powers of tribunals in relation

to guardianship cases)—

(a)

in the opening words, after “it is” insert “not”;

(b)

in paragraph (a) omit “not”;

(c)

in paragraph (b) omit “not”.

Page 60

Removal of police stations and prisons as places of safety

(1)

The Mental Health Act 1983 is amended as follows.

(2)

In section 55 (interpretation of Part 3), in subsection (1), for the definition of

“place of safety” substitute—

““place of safety” —

(a)

in relation to a person who is not a child or young person,

means any hospital the managers of which are willing

temporarily to receive that person;

(b)

in relation to a child or young person, has the same meaning

as in the Children and Young Persons Act 1933 except that it

does not include a police station;”.

(3)

The amendment made by subsection (2) does not apply in relation to any

directions given under sections 35(4), 36(3), 37(4), 38(4) or 45A(5) before the

coming into force of that subsection.

(4)

In section 135 (warrant to search for and remove patients)—

(a)

in subsection (6) omit “a police station,”;

(b)

in subsection (7), before paragraph (a) insert—

“(za)

a police station may not be regarded as a suitable

place;”;

(c)

omit subsection (8).

(5)

In section 136 (removal etc of mentally disordered persons without a warrant)

omit subsection (5).

(6)

Omit section 136A (use of police stations as places of safety).

(7)

In section 136B (extension of detention) omit subsection (3).

Removal of patients by authorised persons

(1)

The Mental Health Act 1983 is amended as follows.

(2)

In section 135 (warrant to search for and remove patients)—

(a)

in subsection (1), after “constable”, insert “or authorised person”;

(b)

in subsection (1A), after “constable”, insert “or authorised person”;

(c)

in closing words of subsection (2), after “constable”, insert “or

authorised person”;

(d)

in subsection (3ZA)(a)(ii), after “constable”, insert “or authorised

person”;

(e)

in subsection (7)(b), after “constable”, insert “or authorised person”.

(3)

In section 136 (removal etc of mentally disordered persons without a

warrant)—

(a)

in subsection (1), after each instance of “constable”, insert “or

authorised person”;

(b)

in subsection (1A), after “constable”, insert “or authorised person”;

(c)

in subsection (1B), after “constable”, insert “or authorised person”;

Page 61

(d)

in subsection (2A)(a)(ii), after “constable”, insert “or authorised person”.

Remand for a person’s own protection etc

(1)

Schedule 1 to the Bail Act 1976 (persons entitled to bail: supplementary

provisions) is amended as follows.

(2)

In Part 1 of that Schedule (defendants accused or convicted of imprisonable

offences), for paragraph 3 substitute—

“3

(1)

The defendant need not be granted bail if—

(a)

the defendant has attained the age of 18, and

(b)

the court is satisfied, otherwise than by reason only of

concerns about the defendant’s mental health, that the

defendant should be kept in custody for their own protection.

(2)

The defendant need not be granted bail if—

(a)

the defendant is a child or young person, and

(b)

the court is satisfied that the defendant should be kept in

custody for their own welfare.”

(3)

In Part 1A of that Schedule (defendants accused or convicted of imprisonable

offences to which Part 1 does not apply), for paragraph 5 substitute—

“5

(1)

The defendant need not be granted bail if—

(a)

the defendant has attained the age of 18, and

(b)

the court is satisfied, otherwise than by reason only of

concerns about the defendant’s mental health, that the

defendant should be kept in custody for their own protection.

(2)

The defendant need not be granted bail if—

(a)

the defendant is a child or young person, and

(b)

the court is satisfied that the defendant should be kept in

custody for their own welfare.”

(4)

In Part 2 of that Schedule (defendants accused or convicted of

non-imprisonable offences), for paragraph 3 substitute—

“3

(1)

The defendant need not be granted bail if—

(a)

the defendant has attained the age of 18, and

(b)

the court is satisfied, otherwise than by reason only of

concerns about the defendant’s mental health, that the

defendant should be kept in custody for their own protection.

(2)

The defendant need not be granted bail if—

(a)

the defendant is a child or young person, and

(b)

the court is satisfied that the defendant should be kept in

custody for their own welfare.”

(5)

The amendments made by this section apply in relation to any person who

is before a court after the coming into force of this section.

Page 62

Removal of interim remand patients to and from Channel Islands or Isle of

Man

(1)

The Mental Health Act 1983 is amended as follows.

(2)

In section 83 (removal of patients to Channel Islands or Isle of Man) omit

“(otherwise than by virtue of section 35, 36 or 38 above)”.

(3)

In section 85 (patients removed from Channel Islands or Isle of Man)—

(a)

in subsection (1) omit “(other than section 35, 36 or 38 above)”;

(b)

in subsection (2), after “shall” insert “(subject to subsection (2A))”;

(c)

after subsection (2) insert—

“(2A)

In relation to a patient treated by virtue of subsection (2) as

liable to be detained under section 35, 36 or 38, this Act is to

be read with the modifications set out in Schedule A2.”

(4)

In section 91 (general provisions as to patients removed from England and

Wales), in subsection (1) omit “(other than section 35, 36 or 38 above)”.

(5)

After Schedule A1 (inserted by Schedule 2 to this Act) insert—

“Schedule A2

Section 85 (2A)

Interim remand patients from Channel Islands or Isle of Man:

modifications of this Act

Modifications of section 35

(1)

In relation to a patient who is treated by virtue of section 85(2) as

admitted to hospital in pursuance of an order made under section

35(1) (remand to hospital for report on accused’s mental condition),

section 35 applies with the modifications set out in this paragraph.

(2)

Subsection (2) is to be omitted.

(3)

References to an “accused person” are to be read as references to

the patient referred to in sub-paragraph (1).

(4)

References to “the court” are to be read as references to whichever

of—

(i)

the Crown Court, and

(ii)

a magistrates’ court,

has functions most closely corresponding to those of the court under

whose order or direction the patient was liable to be detained

immediately before the patient’s removal to England and Wales.

(5)

In subsection (5) for the words from the beginning to “him” there

is to be substituted “The court may further remand an accused

person”.

(6)

After subsection (5) there is to be inserted—

“(5A)

The court may also further remand an accused person if it

has been notified by the Secretary of State that—

Page 63

(a)

the person is the subject of criminal proceedings in

any of the Channel Islands or the Isle of Man, and

(b)

the Secretary of State is considering exercising the

power in section 83 in relation to the accused person.”

(7)

For subsection (7) there is to be substituted—

“(7)

A remand under this section has effect for 28 days.

(7A)

Further periods of remand by the court may not be for more

than 28 days at a time and an accused person may not be

remanded for more than 12 weeks in all.

(7B)

Where the court further remands an accused person it must

notify the Secretary of State of the period for which the

person is further remanded.

(7C)

The court may at any time recommend to the Secretary of

State that the accused person be returned to the island from

which the person was removed.”

(8)

In subsection (8), for “his remand to be terminated under subsection

(7)” there is to be substituted “a recommendation to be made under

subsection (7C)”.

(9)

In subsection (10), the words from “that remanded him” to the end

are to be omitted.

Modifications of section 36

(1)

Section 36 (remand of accused person to hospital for treatment)

applies—

(a)

in relation to a patient who is treated by virtue of section

85(2) as admitted to hospital in pursuance of an order made

under section 35(1) (remand to hospital for report on

accused’s mental condition), with the modifications set out

in sub-paragraphs (2) to (8) ;

(b)

in relation to a patient who—

(i)

was treated by virtue of section 85(2) as admitted to

hospital in pursuance of an order made under section

35(1), and

(ii)

is subsequently remanded under section 36(1) as it

applies by virtue of paragraph (a) ,

with the modifications set out in sub-paragraphs (3) to (8) ;

(c)

in relation to a patient who is treated by virtue of section

85(2) as admitted to hospital in pursuance of an order made

under section 36(1), with the modifications set out in

sub-paragraphs (3) to (8) .

(2)

In subsection (1), in the words before paragaph (a), for “, instead

of remanding an accused person in custody, remand him” there is

to be substituted “remand an accused person”.

(3)

Subsection (2) is to be omitted.

Page 64

(4)

References to an “accused person” are to be read as references to

the patient referred to in sub-paragraph (1) (a) , (b) or (c) .

(5)

In subsection (4), for “warranted” there is to be substituted

“warranted—

“(a)

because the court has been notified by the Secretary

of State that—

(i)

the person is the subject of criminal

proceedings in any of the Channel Islands or

the Isle of Man, and

(ii)

the Secretary of State is considering exercising

the power in section 83 in relation to the

accused person, or

(b)

for other reasons”.

(6)

For subsection (6) there is to be substituted—

“(6)

A remand under this section has effect for 28 days.

(6A)

Further periods of remand by the court may not be for more

than 28 days at a time and an accused person may not be

remanded for more than 12 weeks in all.

(6B)

Where the court further remands an accused person it must

notify the Secretary of State of the period for which the

person is further remanded.

(6C)

The court may at any time recommend to the Secretary of

State that the accused person be returned to the island from

which the person was removed.”

(7)

In subsection (7) for “his remand to be terminated under subsection

(6)” there is to be substituted “a recommendation to be made under

subsection (6C) ”;

(8)

Subsection (8) is to be read as applying subsection (10) of section

35 as modified by paragraph 1 (9) of this Schedule.

Modifications of section 38

(1)

In relation to a patient who is treated by virtue of section 85(2) as

admitted to hospital in pursuance of an order made under section

38(1) (interim hospital orders), section 38 applies with the

modifications set out in this paragraph.

(2)

Subsection (2) is to be omitted.

(3)

References to “the court” are to be read as references to whichever

of—

(i)

the Crown Court, and

(ii)

a magistrates’ court,

Page 65

has functions most closely corresponding to those of the court under

whose order or direction the patient was liable to be detained

immediately before the patient’s removal to England and Wales.

(4)

In subsection (5)—

(a)

in paragraph (b), for “warranted” there is to be substituted

“warranted—

“(i)

because the court has been notified by

the Secretary of State that—

(A)

the offender is the subject of

criminal proceedings in any

of the Channel Islands or the

Isle of Man, and

(B)

the Secretary of State is

considering exercising the

power in section 83 in

relation to the offender, or

(ii)

for other reasons”;

(b)

in the words after paragraph (b), the words from “and” to

the end are to be omitted.

(5)

After subsection (5) there is to be inserted—

“(5A)

Where the court renews the interim hospital order it must

notify the Secretary of State of the period for which it is

renewed.

(5B)

The court may at any time recommend to the Secretary of

State that the offender be returned to the island from which

the offender was removed.”

(6)

In subsection (7), the words from “that made the order” to the end

are to be omitted.

Modification of section 83

In relation to a patient referred to in paragraph 1 (1) , 2 (1) or 3 (1) , in

section 83 (removal of patients to Channel Islands or Isle of Man),

for “in the interests of the patient” there is to be substituted

“appropriate”.

Data protection

After section 142B of the Mental Health Act 1983 insert—

“142C

Data protection

(1)

This section applies to a duty or power to process information that is

imposed or conferred by or under any provision of this Act.

(2)

A duty or power to which this section applies does not require or

authorise the processing of information which would contravene the

data protection legislation (but the duty or power is to be taken into

Page 66

account in determining whether the processing would contravene that

legislation).

(3)

In this section “the data protection legislation” has the same meaning

as in the Data Protection Act 2018 (see section 3 of that Act).”

Review of duty to notify incidents

(1)

The Secretary of State must carry out a review into—

(a)

whether regulation 18 of the Care Quality Commission (Registration)

Regulations 2009 (S.I.2009/3112) (duty to notify incidents) ought to

be extended to require a notification to be given in any other cases in

which a person under the age of 18 is admitted to a hospital or

registered establishment for medical treatment for, or assessment in

relation to, mental disorder, and

(b)

whether the time period mentioned in regulation 18(2)(h) of those

Regulations remains appropriate.

(2)

The Secretary of State must prepare and publish a report setting out the

conclusions of the review.

(3)

The Secretary of State must lay a copy of the report before Parliament.

(4)

The report must be laid and published before the end of the period of 2 years

beginning with the day on which this Act is passed.

(5)

In this section the following expressions have the meaning given by section

145 of the Mental Health Act 1983—

“hospital” ;

“medical treatment” ;

“mental disorder” ;

“registered establishment” .

General

Power of Secretary of State to make consequential provision

(1)

The Secretary of State may by regulations made by statutory instrument make

provision that is consequential on this Act.

(2)

Regulations under this section may amend, repeal or revoke provision made

by or under primary legislation passed—

(a)

before this Act, or

(b)

later in the same session of Parliament as this Act.

(3)

In this section “primary legislation” means—

(a)

an Act, or

(b)

an Act or Measure of Senedd Cymru.

(4)

A statutory instrument containing (alone or with other provision) regulations

under this section that amend or repeal provision made by primary legislation

Page 67

may not be made unless a draft of the instrument has been laid before, and

approved by a resolution of, each House of Parliament.

(5)

Any other statutory instrument containing regulations under this section is

subject to annulment in pursuance of a resolution of either House of

Parliament.

Power of Welsh Ministers to make consequential provision

(1)

The Welsh Ministers may by regulations made by statutory instrument make

provision that is consequential on this Act.

(2)

The only provision that may be made by virtue of this section is provision

that would be within the legislative competence of Senedd Cymru if contained

in an Act of the Senedd.

(3)

Regulations under this section may amend, repeal or revoke provision made

by or under primary legislation passed—

(a)

before this Act, or

(b)

later in the same session of Parliament as this Act.

(4)

In this section “primary legislation” means—

(a)

an Act, or

(b)

an Act or Measure of Senedd Cymru.

(5)

A statutory instrument containing (alone or with other provision) regulations

under this section that amend or repeal provision made by primary legislation

may not be made unless a draft of the instrument has been laid before, and

approved by a resolution of, Senedd Cymru.

(6)

Any other statutory instrument containing regulations under this section is

subject to annulment in pursuance of a resolution of Senedd Cymru.

Extent

(1)

An amendment or repeal made by this Act has the same extent as the

provision amended or repealed.

(2)

This section, section 55 and sections 58 and 59 extend to England and Wales,

Scotland and Northern Ireland.

Commencement

(1)

Sections 30 (2) , 32 , 36 , 37 (1) and (3) (b) , 39 and 40 come into force at the end

of the period of two months beginning with the day on which this Act is

passed.

(2)

Sections 55 to 57 , this section and section 59 come into force on the day on

which this Act is passed.

(3)

Except as mentioned in subsections (1) and (2) , this Act comes into force on

such day as the Secretary of State may by regulations appoint.

(4)

Regulations under this section are to be made by statutory instrument.

Page 68

(5)

Different days may be appointed under subsection (3) for different purposes.

(6)

The Secretary of State may by regulations make transitional or saving provision

in connection with the coming into force of any provision of this Act.

(7)

The power to make regulations under subsection (6) includes power to make

different provision for different purposes.

(8)

Transitional and savings made by regulations under subsection (6) are

additional, and without prejudice, to those made by any other provision of

this Act.

Short title

This Act may be cited as the Mental Health Act 2025.

Page 69

Schedules

Schedule 1

section 3 (4)

Application of the 1983 Act to autism and learning disability: amendments

and transitory provision

Amendments of Part 2 of the Mental Health Act 1983

Part 2 of the Mental Health Act 1983 (compulsory admission to hospital

and guardianship) is amended as follows.

In section 3 (admission for treatment), in subsection (2), for paragraph (a)

substitute—

“(a)

the patient is suffering from psychiatric disorder of a nature

or degree which makes it appropriate for the patient to

receive medical treatment in a hospital,”.

In section 7 (application for guardianship), in subsection (2), for paragraph

(a) substitute—

“(a)

the patient is suffering from—

(i)

psychiatric disorder,

(ii)

autism, or

(iii)

learning disability which has serious behavioural

consequences,

of a nature or degree which warrants the patient’s reception

into guardianship under this section, and”.

(1)

Section 17A (community treatment orders) is amended as follows.

(2)

In subsection (5), for paragraph (a) substitute—

“(a)

the patient is suffering from psychiatric disorder of a nature

or degree which makes it appropriate for the patient to

receive medical treatment,”.

(3)

In subsection (6), for “mental”, in both places it occurs, substitute

“psychiatric”.

In section 17E (power to recall community patient to hospital), in subsection

(1)(a), for “mental” substitute “psychiatric”.

(1)

Section 20 (renewal of authority in relation to admission for treatment and

guardianship) is amended as follows.

(2)

In subsection (4) (admission for treatment), for paragraph (a) substitute—

“(a)

the patient is suffering from psychiatric disorder of a nature

or degree which makes it appropriate for the patient to

receive medical treatment in a hospital,”.

Page 70

(3)

In subsection (7) (guardianship), for paragraph (a) substitute—

“(a)

the patient is suffering from—

(i)

psychiatric disorder,

(ii)

autism, or

(iii)

learning disability which has serious behavioural

consequences,

of a nature or degree which warrants the patient’s reception

into guardianship, and”.

Amendments of Part 3 of the Mental Health Act 1983

Part 3 of the Mental Health Act 1983 (patients concerned in criminal

proceedings or under sentence) is amended as follows.

Before the italic heading before section 35 insert—

“Application of Part 3: “relevant disorder”

34A

Application of Part 3: “relevant disorder”

In this Part “relevant disorder” means—

(a)

psychiatric disorder,

(b)

autism, or

(c)

learning disability which has serious behavioural

consequences.”

In the following places, for “mental” substitute “relevant”—

section 35 (3) (a) (remand to hospital for report);

section 36 (1) (a) (remand to hospital for treatment);

section 37 (2) (a) (orders for hospital admission or guardianship), in

each place it occurs;

section 38 (1) (a) and (b) (interim hospital orders);

section 45A (2) (a) and (b) (conditions on hospital admission);

section 47 (1) (a) and (b) (removal to hospital of prisoners under

sentence, etc);

section 48 (1) (a) (removal to hospital of other prisoners);

section 50 (1) (sentenced prisoners: power to remit or release);

section 51 (3) (a) , (4)(a) and (6)(a) (detainees: powers to remit or release);

section 52 (5) (a) (accused persons: magistrates’ court’s power);

section 53 (2) (a) (civil prisoners and immigration detainees).

In section 55 (interpretation)—

(a)

in subsection (1), at the appropriate place insert—

““relevant disorder” has the meaning given by section 34A ;”;

Page 71

(b)

in subsection (4), after “69(1)” insert “or 72 (1ZA) ”.

(1)

In Schedule 1 (application of certain provisions to patients subject to hospital

and guardianship orders), Part 1 (patients not subject to special restrictions)

is amended as follows.

(2)

In paragraph 1—

(a)

for “to 17C, 17E, 17F,” substitute “, 17B, 17C,”;

(b)

omit “20A,”.

(3)

In paragraph 2—

(a)

for “17D, 17G,” substitute “17A, 17D to 17G,”;

(b)

for “2A” substitute “2ZA”;

(c)

omit “20,”.

(4)

After paragraph 2 insert—

“2ZA

In section 17A—

(a)

in subsection (5)(a), for “psychiatric disorder” there is to

be substituted “relevant disorder (within the meaning

given by section 34A )”;

(b)

in subsection (6), for “psychiatric disorder”, in both places

it occurs, there is to be substituted “relevant disorder

(within the meaning given by section 34A )”.

2ZB

In section 17E, in subsection (1)(a), for “psychiatric disorder” there

is to be substituted “relevant disorder (within the meaning given

by section 34A )”.”

(5)

After paragraph 2A insert—

“2AA

In section 17F, after subsection (4) there is to be inserted—

“(4A)

Section 3(2) as it applies for the purposes of subsection

(4)(a) is to be read as if the reference to psychiatric

disorder were a reference to relevant disorder (within the

meaning given by section 34A ).”

(6)

In paragraph 5B (as inserted by section 29 of this Act), after sub-paragraph

(2) insert—

“(3)

In section 20(4)(a), for “psychiatric disorder” there is to be

substituted “relevant disorder (within the meaning given by

section 34A )”.”

(7)

In paragraph 5C (as inserted by section 29 of this Act), after sub-paragraph

(3) insert—

“(4)

In section 20(4)(a), for “psychiatric disorder” there is to be

substituted “relevant disorder (within the meaning given by

section 34A )”.”

Page 72

(8)

In paragraph 5D (as inserted by section 29 of this Act), after sub-paragraph

(2) insert—

“(3)

In section 20(4)(a), for “psychiatric disorder” there is to be

substituted “relevant disorder (within the meaning given by

section 34A )”.”

(9)

In paragraph 6 (as substituted by section 29 of this Act), after sub-paragraph

(3) insert—

“(4)

In section 20(4)(a), for “psychiatric disorder” there is to be

substituted “relevant disorder (within the meaning given by

section 34A )”.”

(10)

After paragraph 6 insert—

“6ZA

In section 20A, after subsection (10) there is to be inserted—

“(11)

Section 17A(5) as it applies for the purposes of subsection

(4)(b) is to be read as if the reference to psychiatric

disorder were a reference to relevant disorder (within the

meaning given by section 34A ).”

Amendments of Part 4 of the Mental Health Act 1983

Part 4 of the Mental Health Act 1983 (consent to treatment) is amended as

follows.

In section 56 (patients to whom Part 4 applies)—

(a)

for the heading substitute “Application of Part 4 : patients and

disorders”;

(b)

after subsection (5) insert—

“(6)

In this Part “relevant disorder”—

(a)

in relation to—

(i)

a patient falling within subsection (3) where

the patient is liable to be detained by virtue

of section 3,

(ii)

a patient falling within subsection (3), where

the patient is liable to be detained by virtue

of section 20(4), otherwise than as that

provision applies by virtue of Part 1 of

Schedule 1, or

(iii)

a patient falling within subsection (4),

means psychiatric disorder;

(b)

in relation to any other patient, means mental

disorder.”

In the following places, for “mental”, substitute “relevant”—

section 58(1)(b) (administration of medicine requiring consent or a

second opinion);

Page 73

section 63 (treatment not requiring consent).

Amendments of Part 4A of the Mental Health Act 1983

In Part 4A of the Mental Health Act 1983 (treatment of community patients

not recalled to hospital), for section 64A substitute—

“64A

Meaning of “relevant treatment”

(1)

In this Part of this Act “relevant treatment”—

(a)

in relation to a Part 3 community patient, means medical

treatment which—

(i)

is for the relevant disorder from which the patient is

suffering, and

(ii)

is not a form of treatment to which section 57 applies,

and

(b)

in relation to any other community patient, means medical

treatment which—

(i)

is for the psychiatric disorder from which the patient

is suffering, and

(ii)

is not a form of treatment to which section 57 applies.

(2)

In subsection (1)(a)—

“Part 3 community patient” means a person who is a

community patient by virtue of a community treatment order

under section 17A as applied by Part 1 of Schedule 1;

“relevant disorder” has the meaning given by section 34A .”

Amendments of Part 5 of the Mental Health Act 1983

Part 5 of the Mental Health Act 1983 (tribunals) is amended as followed.

(1)

Section 72 (grounds for discharge by tribunal) is amended as follows.

(2)

After subsection (1) insert—

“(1ZA)

In relation to a patient admitted to hospital in pursuance of a

hospital order (see section 55(4)), section 20(4) is to be read, for the

purposes of subsection (1)(b), as if the reference to psychiatric

disorder were a reference to relevant disorder (within the meaning

given by section 34A ).”

(3)

In subsection (1A), for “mental”, in both places it occurs, substitute

“psychiatric”.

(4)

After subsection (1A) insert—

“(1B)

In relation to a person who is a community patient by virtue of a

community treatment order under section 17A as applied by Part

1 of Schedule 1—

(a)

for the purposes of subsection (1)(c), section 17A(5) is to be

read as if the reference to psychiatric disorder were a

Page 74

reference to relevant disorder (within the meaning given by

section 34A ), and

(b)

subsection (1A) is to be read as if the references to psychiatric

disorder were references to relevant disorder (within the

meaning given by section 34A ).”

(5)

In subsection (4) (guardianship), in paragraph (a), for “mental disorder”

substitute—

“(i)

psychiatric disorder,

(ii)

autism, or

(iii)

learning disability which has serious behavioural

consequences”.

In section 73 (power to discharge restricted patients), after subsection (8)

insert—

“(9)

Subsection (4) of section 20 is to be read, for the purposes of this

section, as if the reference to psychiatric disorder in paragraph (a)

of that subsection were a reference to relevant disorder (within the

meaning given by section 34A ).”

In section 74 (restricted patients subject to restriction directions), in

subsection (6), for “(8)” substitute “(9)”.

Transitory modifications of the Mental Health Act 1983

Pending the coming into force of section 6 (4) (b) of this Act, section 20A(6)(a)

of the Mental Health Act 1983 is to be read as if—

(a)

in relation to a patient admitted to hospital in pursuance of a

hospital order (read in accordance with section 55(4) of the Mental

Health Act 1983), as if for “mental” there were substituted “relevant”;

(b)

in relation to any other patient, for “mental” there were substituted

“psychiatric”.

(1)

Pending the coming into force of section 7 (2) of this Act, section 72(1)(b)

and (c) and (1A) of the Mental Health Act 1983 are to be read—

(a)

in relation to a patient admitted to hospital in pursuance of a

hospital order (read in accordance with section 55(4) of the Mental

Health Act 1983) or a Part 3 community patient, as if, for “mental”,

in each place it occurs, there were substituted “relevant”;

(b)

in relation to any other patient as if for “mental”, in each place it

occurs, there were substituted “psychiatric”.

(2)

In sub-paragraph (1)(a) “Part 3 community patient” means a person who

is a community patient by virtue of a community treatment order under

section 17A as applied by Part 1 of Schedule 1 to the Mental Health Act

1983.

Pending the coming into force of section 7 (3) of this Act, section 72(1)(b)

of the Mental Health Act 1983 is to be read, for the purposes of section 73

of that Act, as modified by paragraph 21 (1) (a) of this Schedule.

Page 75

Pending the coming into force of section 8 (8) of this Act, section 64(3) of

the Mental Health Act 1983 is to be read as if for “mental” there were

substituted “relevant”.

Pending the coming into force of section 13 (3) (b) of this Act, section 58(1)

of the Mental Health Act 1983 is to be read as if, in the words before

paragraph (a), for “mental”, there were substituted “relevant”.

Pending the coming into force of section 29 (5) (d) and (e) of this Act, section

20 of the Mental Health Act 1983 is to be read as if for “psychiatric” there

were substituted “relevant”.

Schedule 2

Section 24

Nominated persons

Part 1

Appointment etc

The Mental Health Act 1983 is amended as follows.

Before section 31 and the italic heading before that section insert—

“Nominated persons: appointment and removal

30A

Nominated person

Schedule A1 —

(a)

confers power to appoint a nominated person for a patient

for the purposes of this Act, and

(b)

makes provision about the duration of an appointment of a

nominated person.

30B

Power of court to terminate appointment of nominated person

(1)

The county court may, on an application made in accordance with

the provisions of this section, make an order terminating the

appointment of a nominated person for a patient.

(2)

An order under this section may be made on the application of—

(a)

the patient,

(b)

an approved mental health professional, or

(c)

any person engaged in caring for the patient or interested

in the patient’s welfare.

(3)

An application for an order under this section may only be made

on the grounds that—

Page 76

(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 this Act

or is likely to do so;

(c)

the nominated person unreasonably objects to the making

of a community treatment order 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;

(e)

the nominated person lacks the capacity or competence to

act as a nominated person;

(f)

the nominated person is otherwise not a suitable person to

act as a nominated person.

(4)

If, immediately before the expiry of the period for which a patient

is liable to be detained by virtue of an application for admission

for assessment, an application under this section, which is an

application made on the ground specified in subsection (3) (a) or

(b) , is pending in respect of the patient, that period is extended—

(a)

in any case, until the application under this section has been

finally disposed of, and

(b)

if an order is made in pursuance of the application under

this section, for a further period of seven days.

(5)

For the purposes of subsection (4) —

(a)

an application under this section is “pending” until it is

finally disposed of, and

(b)

an application under this section is “finally disposed of”—

(i)

when the time allowed for appealing against court’s

decision expires without an appeal being brought, or

(ii)

where an appeal is brought within that time, when

the appeal has been heard or withdrawn.

(6)

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.

(7)

In this section “patient” includes any person by or for whom a

nominated person is appointed.”

Page 77

Before Schedule 1 insert—

“Schedule A1

Section 30A

Nominated person

Part 1

Appointment of nominated person by a patient

Right of patients etc to appoint nominated person

A person (the “patient”) may appoint another person to act as

their nominated person for the purposes of this Act.

Who can be appointed by a patient as a nominated person?

(1)

A person is eligible to be appointed as a nominated person under

this Part of this Schedule only if the person—

(a)

is an individual who meets the age requirement (see

sub-paragraph (2) ), and

(b)

is not disqualified by section 30B (6) (disqualification as a

result of court order terminating previous appointment

as a nominated person).

(2)

The table sets out the age requirement for a nominated person

who is an individual.

Where the patient is:

The nominated person must be:

16 or over

Under 16

18 or over

Appointment formalities

(1)

The appointment of a nominated person under this Part of this

Schedule is valid only if—

(a)

the person is eligible to be appointed as a nominated

person,

(b)

the appointment is made by an instrument in writing

signed by the patient in the presence of a health or care

professional or independent mental health advocate (“the

witness”),

(c)

the nominated person has signed a statement that they—

(i)

meet the age requirement (see paragraph 2 (2) ), and

(ii)

agree to act as the nominated person, and

(d)

the witness has signed a statement that—

Page 78

(i)

the instrument appointing the nominated person

was signed by the patient in the presence of the

witness,

(ii)

the witness has no reason to think that the patient

lacks capacity or competence to make the

appointment,

(iii)

the witness has no reason to think that the

nominated person lacks capacity or competence to

act as a nominated person,

(iv)

the witness has no reason to think that any fraud

or undue pressure has been used to induce the

patient to make the appointment, and

(v)

the witness has no reason to think that the

nominated person is unsuitable to act as a

nominated person.

Duration of appointment

The appointment of a nominated person under this Part of this

Schedule ceases to have effect if—

(a)

the nominated person dies;

(b)

the patient appoints a different nominated person;

(c)

the patient terminates the appointment under paragraph

5 ;

(d)

the nominated person resigns under paragraph 6 ;

(e)

the county court terminates the appointment under section

30B .

Termination of appointment by patient

(1)

The appointment of a nominated person under this Part of this

Schedule may be terminated by the patient giving the nominated

person written notice.

(2)

The notice must be—

(a)

signed by the patient in the presence of a health or care

professional or independent mental health advocate (“the

witness”), and

(b)

contain a statement, signed by the witness, that—

(i)

the notice was signed by the patient in the presence

of the witness,

(ii)

the witness has no reason to think that the patient

lacks capacity or competence to terminate the

appointment, and

(iii)

the witness has no reason to think that any fraud

or undue pressure has been used to induce the

patient to terminate the appointment.

Page 79

Resignation of nominated person

(1)

A nominated person appointed under this Part of this Schedule

may resign by giving written notice to the patient and at least

one of the persons mentioned in sub-paragraph (2).

(2)

The persons are—

(a)

an approved mental health professional;

(b)

the patient’s responsible clinician (if any);

(c)

in relation to a patient who is—

(i)

liable to be detained in pursuance of an application

for admission for assessment or treatment,

(ii)

the subject of an application for admission for

assessment or treatment, or

(iii)

a community patient,

the relevant managers;

(d)

in relation to a patient who is—

(i)

subject to guardianship in pursuance of a

guardianship application, or

(ii)

the subject of a guardianship application,

the relevant local social services authority.

(3)

The notice must be signed by the nominated person.

Part 2

Appointment of nominated person by an approved mental health

professional

Power of approved mental health professional to appoint nominated person

(1)

Where an approved mental health professional reasonably believes

that a relevant patient—

(a)

lacks capacity or is not competent to appoint a nominated

person, and

(b)

has not appointed a person under Part 1 of this Schedule

to act as their nominated person,

the professional may appoint a person to act as the patient’s

nominated person for the purposes of this Act.

(2)

In this Schedule “relevant patient” means a person—

(a)

who is liable to be detained in pursuance of an application

for admission for assessment or treatment,

(b)

who is the subject of an application for admission for

assessment or treatment,

(c)

in relation to whom an approved mental health

professional is considering making an application for

admission for assessment or treatment,

Page 80

(d)

who is a community patient,

(e)

who is subject to guardianship in pursuance of a

guardianship application,

(f)

who is the subject of a guardianship application, or

(g)

in relation to whom an approved mental health

professional is considering making a guardianship

application.

Who can be appointed by an approved mental health professional as a nominated

person?

A person is eligible to be appointed as a nominated person under

this Part of this Schedule only if the person—

(a)

is an individual who meets the age requirement (see

paragraph 2 (2) ) or is a local authority, and

(b)

is not disqualified by 30B (6) (disqualification as a result

of court order terminating previous appointment as a

nominated person).

Selection of nominated person

(1)

This paragraph applies where an approved mental health

professional is deciding who to appoint as a nominated person

for a relevant patient who is aged 18 or over.

(2)

If the relevant patient has a competent donee or deputy who is

willing to act as the nominated person, the approved mental

health professional must appoint the donee or deputy.

(3)

In any other case, the approved mental health professional must,

in deciding who to appoint, take into account the relevant

patient’s past and present wishes and feelings so far as reasonably

ascertainable.

(4)

In this paragraph—

(a)

“donee” means a donee of a lasting power of attorney

(within the meaning of section 9 of Mental Capacity Act

2005) created by the patient;

(b)

“deputy” means a deputy appointed for the patient by

the Court of Protection under section 16 of that Act;

(c)

a donee or deputy is “competent” if the scope of the

authority conferred on them as donee or deputy would

extend to taking decisions of the kind taken by a

nominated person.

(1)

This paragraph applies where an approved mental health

professional is deciding who to appoint as a nominated person

for a relevant patient who is aged 16 or 17.

Page 81

(2)

If a local authority has parental responsibility for the relevant

patient, the approved mental health professional must appoint

that local authority.

(3)

If no local authority has parental responsibility for the relevant

patient but the relevant patient has a competent deputy who is

willing to act as the nominated person, the approved mental

health professional must appoint the deputy.

(4)

In any case in which sub-paragraphs (2) and (3) do not identify

who is to be appointed, the approved mental health professional

must, in deciding who to appoint, take into account the relevant

patient’s past and present wishes and feelings so far as reasonably

ascertainable.

(5)

In this paragraph—

(a)

“deputy” means a deputy appointed for the patient by

the Court of Protection under section 16 of that Act;

(b)

a deputy is “competent” if the scope of the authority

conferred on them as donee or deputy would extend to

taking decisions of the kind taken by a nominated person.

(1)

This paragraph applies where an approved mental health

professional is deciding who to appoint as a nominated person

for a relevant patient who is aged under 16.

(2)

If a local authority has parental responsibility for the relevant

patient, the approved mental health professional must appoint

that local authority.

(3)

Where sub-paragraph (2) does not apply, the approved mental

health professional must appoint as a nominated person—

(a)

a guardian who has been appointed for the relevant

patient,

(b)

a person who is named in a child arrangements order, as

defined by section 8 of the Children Act 1989, as a person

with whom the relevant patient is to live, or

(c)

a person who has parental responsibility for the relevant

patient.

(4)

In this paragraph “guardian” includes a special guardian within

the meaning of the Children Act 1989 but does not include a

guardian under section 7 of that Act.

(5)

Where there is more than one person identified as a potential

nominated person in sub-paragraph (3) (a) , (b) or (c) then the

approved mental health professional must in deciding who to

appoint—

(a)

take into account the relevant patient’s past and present

wishes and feelings so far as reasonably ascertainable, or

Page 82

(b)

where it has not been possible to ascertain the relevant

patient’s past and present wishes, preference must be

given to the eldest person.

(6)

In any case in which sub-paragraphs (2) and [sub-paragraph

removed] do not identify who is to be appointed, the approved

mental health professional must, in deciding who to appoint, take

into account the relevant patient’s past and present wishes and

feelings so far as reasonably ascertainable.

Appointment formalities

The appointment of a nominated person by an approved mental

health professional is valid only if—

(a)

the person is eligible to be appointed as a nominated

person (see paragraph 8 ),

(b)

the person agrees to act as the nominated person, and

(c)

the appointment is made by an instrument in writing and

signed by the professional.

Notification of appointment

(1)

Where an approved mental health professional appoints a

nominated person under this Part of this Schedule, the

professional must—

(a)

if the appointment relates to a relevant patient falling

within paragraph 7 (2) (a) to (d) , notify the relevant

managers;

(b)

if the appointment relates to a relevant patient falling

within paragraph 7 (2) (e) to (g) , notify the relevant local

social services authority.

(2)

A person who is notified under sub-paragraph (1) of the

appointment of a nominated person must take such steps as the

person considers appropriate to inform the relevant patient of

the appointment.

Duration of appointment

The appointment of a nominated person under this Part of this

Schedule ceases to have effect if—

(a)

the nominated person dies;

(b)

an approved mental health professional appoints a

different nominated person for the relevant patient;

(c)

an approved mental health professional terminates the

appointment under paragraph 15 ;

(d)

the relevant patient terminates the appointment under

paragraph 16 ;

(e)

the nominated person resigns under paragraph 17 ;

Page 83

(f)

the county court terminates the appointment under section

30B ;

(g)

the relevant patient appoints a different nominated person

under Part 1 of this Schedule;

(h)

the person for whom the nominated person was appointed

ceases to be a relevant patient.

Termination of appointment by approved mental health professional

(1)

Where an approved mental health professional has appointed a

nominated person for a relevant patient, an approved mental

health professional may terminate the appointment by giving

written notice to the nominated person and the patient.

(2)

The appointment may only be terminated on the grounds that—

(a)

the person lacks capacity to exercise the functions of a

nominated person,

(b)

the person is otherwise not a suitable person to act as the

nominated person, or

(c)

the relevant patient has regained capacity or competence

to appoint a nominated person under Part 1 of this

Schedule.

(3)

Where an approved mental health professional terminates the

appointment of a nominated person under this Part of this

Schedule, the professional must—

(a)

if the appointment relates to a relevant patient falling

within paragraph 7 (2) (a) to (d) , notify the relevant

managers;

(b)

if the appointment relates to a relevant patient falling

within paragraph 7 (2) (e) to (g) , notify the relevant local

social services authority.

Termination of appointment by relevant patient

(1)

The appointment of a nominated person under this Part of this

Schedule may be terminated by the relevant patient giving the

nominated person written notice.

(2)

The notice must be—

(a)

signed by the relevant patient in the presence of a health

or care professional or independent mental health advocate

(“the witness”), and

(b)

contain a statement, signed by the witness, that—

(i)

the notice was signed by the patient in the presence

of the witness,

(ii)

the witness has no reason to think that the patient

lacks capacity or competence to terminate the

appointment, and

Page 84

(iii)

the witness has no reason to think that any fraud

or undue pressure has been used to induce the

patient to terminate the appointment.

Resignation of nominated person

(1)

A nominated person appointed by an approved mental health

professional may resign by giving written notice to the patient

and at least one of the persons mentioned in sub-paragraph (2).

(2)

The persons are—

(a)

an approved mental health professional;

(b)

the relevant patient’s responsible clinician (if any);

(c)

in relation to a relevant patient falling within paragraph

7 (2) (a) , (b) or (d) , the relevant managers;

(d)

in relation to a relevant patient falling within paragraph

7 (2) (e) or (f) , the relevant local social services authority.

(3)

The notice must be signed by the nominated person.

Part 3

Definitions

“Health or care professional”

In this Schedule “health or care professional” means—

(a)

a registered medical practitioner;

(b)

a registered nurse or midwife;

(c)

a person registered as a member of a profession to which

the Health and Social Work Professions Order 2001 (S.I.

2002/254) for the time being extends;

(d)

a person registered as a social worker in the register

maintained by Social Work England under section 39(1)

of the Children and Social Work Act 2017;

(e)

a person registered as a social worker in the register

maintained by Social Care Wales under section 80 of the

Regulation and Inspection of Social Care (Wales) Act 2016

(anaw 2).

“Independent mental health advocate”

In this Schedule “independent mental health advocate”, in relation

to a person appointing a nominated person, means an

independent mental health advocate appointed under

arrangements made under section 130A or 130E.

“Capacity”

In relation to a person who has attained the age of 16 years—

Page 85

(a)

references in this Schedule to lacking capacity are to

lacking capacity within the meaning of the Mental

Capacity Act 2005, and

(b)

references in this Schedule to having, ceasing to have or

gaining capacity are to be read accordingly.

“Relevant managers”

References in this Schedule to “the relevant managers” are—

(a)

in relation to a patient who is liable to be detained under

this Act in a hospital or registered establishment, the

managers of the hospital or registered establishment;

(b)

in relation to a patient who is the subject of an application

for admission for assessment or treatment, the managers

of the hospital or registered establishment to which

admission is sought;

(c)

in relation to a patient in relation to whom an approved

mental health professional is considering making an

application for admission for assessment or treatment, the

managers of the hospital or registered establishment to

which admission would be sought;

(d)

in relation to a community patient, the managers of the

responsible hospital.

“Relevant local social services authority”

References in this Schedule to “the relevant local social services

authority” are—

(a)

in relation to a person who is subject to guardianship—

(i)

where the patient is subject to the guardianship of

a local social services authority, to that authority;

(ii)

where the patient is subject to the guardianship of

a person other than a local social services authority,

to the local social services authority for the area

in which that person resides;

(b)

in relation to a person who is the subject of a guardianship

application, or in relation to whom an approved mental

health professional is considering making a guardianship

application—

(i)

where the application names or would name a

local social services authority as guardian, to that

authority;

(ii)

where the application names or would name a

person other than a local social services authority

as guardian, to the local social services authority

for the area in which the person named as

guardian resides.

Page 86

“Relevant patient”

In this Schedule “relevant patient” has the meaning given by

paragraph 7 (2) .”

Part 2

Functions of nominated person

The Mental Health Act 1983 is amended as follows.

In section 4 (admission for assessment in cases of emergency), in subsection

(2), for “the nearest relative of the patient” substitute “the patient’s

nominated person”.

(1)

Section 11 (general provisions as to applications) is amended as follows.

(2)

In subsection (1), for “the nearest relative of the patient” substitute “the

patient’s nominated person”.

(3)

In subsection (3)—

(a)

for “the nearest relative of the patient” substitute “the patient’s

nominated person”;

(b)

for “the nearest relative” substitute “the nominated person”.

In section 13 (duty of approved mental health professionals to make

applications for admission or guardianship), in subsection (4), for “the

nearest relative”, in both places it occurs, substitute “the nominated person”.

In section 14 (social reports), for “nearest relative” substitute “nominated

person”.

In section 23 (discharge of patients), in subsection (2)(a), (b) and (c), for

“the nearest relative of the patient” substitute “the patient’s nominated

person”.

In section 24 (visiting and examination of patient), in subsection (1), for

“the nearest relative”, in both places it occurs, substitute “the nominated

person”.

Omit sections 26 to 30 and the italic heading before section 26.

In section 32 (regulations for purposes of Part), in subsection (2)—

(a)

at the end of paragraph (c) insert “and”;

(b)

omit paragraph (e) and the “and” before it.

In section 33 (special provisions as to wards of court), in subsection (2), for

“nearest relative” substitute “nominated person”.

In section 66 (applications to tribunals), in subsection (1), in sub-paragraph

(ii), for “his nearest relative” substitute “the patient’s nominated person”.

In section 69 (applications to tribunals concerning patients subject to hospital

and guardianship orders), in subsection (1)(a) and (b)(ii), for “the nearest

relative of the patient” substitute “the patient’s nominated person”.

Page 87

In section 116 (welfare of certain hospital patients), in subsection (2) omit

paragraph (c) and the “or” before it.

In section 118 (code of practice), in subsection (1)—

(a)

omit the “and” at the end of paragraph (a);

(b)

after paragraph (b) insert—

“(c)

for the guidance of nominated persons in relation to

their functions under this Act and for the guidance

of health or care professionals within the meaning of

paragraph 17 of Schedule A1 in respect of their

functions under that Schedule;”.

In section 130B (arrangements in relation to independent mental advocates:

England), in subsection (5)(a), for “nearest relative” substitute “nominated

person”.

In section 130D (duty to give information about independent mental health

advocates), in subsection (5), for “nearest relative” substitute “nominated

person”.

In section 130H (independent mental health advocates for Wales:

supplementary powers and duties), in subsection (3)(b), for “nearest relative”

substitute “nominated person”.

In section 130K (duty to give information about independent mental health

advocates to Welsh qualifying compulsory patients), in subsection (6)(a),

for “nearest relative” substitute “nominated person”.

In section 132 (duty of managers of hospitals to give information to detained

patients), in subsection (4), for “nearest relative” substitute “nominated

person”.

In section 132A (duty of managers of hospitals to give information to

community patients), in subsection (3), for “nearest relative” substitute

“nominated person”.

(1)

Section 133 (duty of managers of hospitals to give information to community

patients) is amended as follows.

(2)

In the heading for “nearest relatives” substitute “nominated persons”.

(3)

In subsection (1)—

(a)

for “nearest relative”, in the first place it occurs, substitute

“nominated person”;

(b)

for “nearest relative of the patient” substitute “patient’s nominated

person”.

(4)

In subsections (1B) and (2), for “nearest relative” substitute “nominated

person”.

(1)

Section 145(1) (interpretation) is amended as follows.

(2)

Omit the definition of “nearest relative”.

Page 88

(3)

At the appropriate place insert—

““nominated person” , in relation to a patient, means a person for the

time being appointed by or for the patient under Schedule A1;”.

Part 3

Patients concerned in criminal proceedings etc: functions of nominated

person

The Mental Health Act 1983 is amended as follows.

After section 36 (but before the italic heading after that section) insert—

“36A

Remands to hospital: nominated person

Sections 30A and 30B and Schedule A1 (nominated person) apply

in relation to a person remanded to hospital under section 35 or 36

as they apply in relation to a person subject to an order under

section 41 (see section 41(3) and Part 2 of Schedule 1).”

In section 38 (interim hospital orders), after subsection (7) insert—

“(8)

Sections 30A and 30B and Schedule A1 (nominated person) apply

in relation to an offender subject to an interim hospital order as

they apply in relation to a person subject to an order under section

41 (see section 41(3) and Part 2 of Schedule 1).”

In Part 1 of Schedule 1 (application of certain provisions to patients subject

to hospital and guardianship orders who are not subject to special

restrictions)—

(a)

in paragraph 1, for “26 to 28” substitute “ 30A ”;

(b)

in paragraph 2—

(i)

after “23” insert “, 30B ”;

(ii)

after “68” insert “and Schedule A1 ”;

(iii)

for “10” substitute “ 11 ”;

(c)

in paragraph 8(b), for “nearest relative” substitute “nominated

person”;

(d)

after paragraph 8 insert—

“8ZA

In section 30B —

(a)

in subsection (2) (b) the reference to an approved

mental health professional is to be read as a

reference to the responsible clinician;

(b)

in subsection (3) , paragraphs (a) and (b) are to be

omitted.”;

(e)

in paragraph 9 for “paragraph (ii)” substitute “paragraphs (ia), (ib)

and (ii)”;

Page 89

(f)

after paragraph 10 insert—

“11

In Schedule A1 , references to an approved mental health

professional are to be read as references to the responsible

clinician.”

In Part 2 of Schedule 1 (application of certain provisions to patients subject

to hospital and guardianship orders who are subject to special restrictions)—

(a)

in paragraph 1, after “Sections” insert “ 30A ,”;

(b)

in paragraph 2—

(i)

after “23” insert “, 30B ”;

(ii)

after “34” insert “and Schedule A1 ”;

(iii)

for “8” substitute “ 9 ”;

(c)

in paragraph 5—

(i)

omit the “and” at the end of paragraph (b);

(ii)

at the end of paragraph (c) insert “and

“(d)

in subsection (3A), after paragraph (a) there

is to be inserted—

“(za)

is inappropriate,”;

(d)

in paragraph 7(b)(i), for “the nearest relative of the patient” substitute

“the patient’s nominated person”;

(e)

after paragraph 7 insert—

“7A

In section 30B —

(a)

in subsection (2) (b) the reference to an approved

mental health professional is to be read as a

reference to the responsible clinician;

(b)

in subsection (3) , paragraphs (a) to (c) are to be

omitted.”;

(f)

after paragraph 8 insert—

“9

In Schedule A1 , references to an approved mental health

professional are to be read as references to the responsible

clinician.”

Schedule 3

section 41

Independent mental health advocates

The Mental Health Act 1983 is amended as follows.

(1)

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

Page 90

(2)

In subsection (1), after paragraph (c) (as inserted by Schedule 2 to this Act)

insert—

“(d)

for the guidance of independent mental health advocates

appointed under arrangements made under section 130A or

130E;”.

(3)

Omit subsection (1A).

(1)

Section 130A (independent mental health advocates) is amended as follows.

(2)

In subsection (1), for “qualifying patients” substitute “English qualifying

patients”.

(3)

After subsection (1) insert—

“(1A)

In this Part “English qualifying patient” means—

(a)

an English qualifying compulsory patient (see section 130C),

(b)

an English qualifying informal patient (see section 130CA ).”

(1)

Section 130B (arrangements under section 130A) is amended as follows.

(2)

In subsection (1), for “a qualifying patient”, in both places it occurs,

substitute “an English qualifying compulsory patient”.

(3)

In subsection (2)—

(a)

for “a qualifying patient” substitute “an English qualifying

compulsory patient”;

(b)

omit the “and” at the end of paragraph (a);

(c)

after paragraph (b) insert—

“(c)

help (by way of representation or otherwise)—

(i)

for patients who wish to become involved, or

more involved, in decisions made about their

care or treatment, or care or treatment

generally; and

(ii)

for patients who wish to complain about their

care or treatment; and

(d)

the provision of information about other services

which are or may be available to the patient.”

(4)

After subsection (2) insert—

“(2A)

The help available to an English qualifying informal patient under

arrangements under section 130A must include help in obtaining

information about and understanding–

(a)

what (if any) medical treatment is given to the patient or is

proposed or discussed in the patient’s case,

(b)

why it is given, proposed or discussed, and

(c)

the authority under which it is, or would be, given.

Page 91

(2B)

The help available under the arrangements to an English qualifying

informal patient must also include—

(a)

help (by way of representation or otherwise)—

(i)

for patients who wish to become involved, or more

involved, in decisions made about their care or

treatment, or care or treatment generally, and

(ii)

for patients who wish to complain about their care

or treatment, and

(b)

the provision of information about other services which are

or may be available to the patient.

(2C)

Arrangements under section 130A must require a provider of

advocacy services, on becoming aware of an English qualifying

compulsory patient for whom they are responsible, to arrange for

an independent mental health advocate to visit and interview the

patient (if possible) with a view to determining—

(a)

whether the patient has the capacity or is competent to take

a decision about whether to receive help from an

independent mental health advocate,

(b)

if the patient does have that capacity or competence, whether

the patient wishes to receive such help, and

(c)

if the patient does not have that capacity or competence,

whether it is nonetheless in the patient’s best interests to

receive such help (which, if so, is to be provided under the

arrangements).

(2D)

For the purposes of subsection (2C) —

(a)

“provider of advocacy services” means a person required by

arrangements under section 130A to make available the

services of independent mental health advocates, and

(b)

a provider of advocacy services is “responsible” for an

English qualifying compulsory patient if the arrangements

require the provider to make available the services of an

independent mental health advocate to help that patient.”

(5)

In subsection (3), for “the arrangements” substitute “arrangements under

section 130A”.

(6)

In subsection (6) for “declining to be provided with” substitute “refusing

consent to the provision of”.

(7)

After subsection (6) insert—

“(6A)

A reference in this section to a patient who has capacity is to be

read in accordance with the Mental Capacity Act 2005.””.

(8)

In subsection (7) omit paragraph (a).

(1)

Section 130C (section 130A: supplemental) is amended as follows.

(2)

For the heading, substitute ““English qualifying compulsory patients””.

Page 92

(3)

Omit subsection (1).

(4)

In subsection (2) for “A patient is a qualifying patient” substitute “For the

purposes of this Part a patient is an English qualifying compulsory patient”.

(5)

In subsection (3)—

(a)

in the words before paragraph (a), for “A patient is also a qualifying

patient” substitute “For the purposes of this Part a patient is also

an English qualifying compulsory patient”;

(b)

in paragraphs (a) and (b), for “a qualifying patient” substitute “an

English qualifying compulsory patient”.

(6)

In subsection (4), for “a qualifying patient”, in both places it occurs,

substitute “an English qualifying compulsory patient”.

(7)

Omit subsections (4A) and (4B).

After section 130C insert—

“130CA

“English qualifying informal patients”

For the purposes of this Part a patient is an “English qualifying

informal patient” if—

(a)

the patient is an in-patient at a hospital or registered

establishment situated in England,

(b)

the patient is receiving treatment for, or assessment in

relation to, mental disorder at the hospital or registered

establishment, and

(c)

no application, order, direction or report renders the patient

liable to be detained under this Act.

130CB

Local social services authority responsible for making

arrangements under section 130A(1)

(1)

For the purposes of section 130A(1) a local social services authority

is responsible for an English qualifying patient if—

(a)

in the case of an English qualifying compulsory patient

falling within section 130C(2)(a), the hospital or registered

establishment in which the patient is liable to be detained

is situated in that authority’s area;

(b)

in the case of an English qualifying compulsory patient

falling within section 130C(2)(b), that authority is the

responsible local social services authority within the meaning

of section 34(3);

(c)

in the case of an English qualifying compulsory patient

falling within section 130C(2)(c), the responsible hospital is

situated in that authority’s area;

(d)

in the case of an English qualifying compulsory patient

falling within section 130C(3)—

(i)

in a case where the patient has capacity or is

competent to do so, the patient nominates that

Page 93

authority as responsible for the purposes of section

130A, or

(ii)

in any other case, a donee or deputy or the Court of

Protection, or a person engaged in caring for the

patient or interested in the patient’s welfare,

nominates that authority on the patient’s behalf as

responsible for the purposes of that section;

(e)

in the case of an English qualifying informal patient, the

hospital or registered establishment to which the patient is

admitted as an in-patient is situated in that authority’s area.

(2)

In subsection (1) (d) —

(a)

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

accordance with the Mental Capacity Act 2005;

(b)

the reference to a donee is to a donee of a lasting power of

attorney (within the meaning of section 9 of that Act) created

by the patient, where the donee is acting within the scope

of their authority and in accordance with that Act;

(c)

the reference to a deputy is to a deputy appointed for the

patient by the Court of Protection under section 16 of that

Act, where the deputy is acting within the scope of the their

authority and in accordance with that Act.

130CC

Duty to notify providers of person’s eligibility for advocacy

services

(1)

The responsible person in relation to an English qualifying patient

must take such steps as are practicable to give the appropriate

provider of advocacy services the required information about the

patient.

(2)

In this section “the responsible person” means—

(a)

in relation to an English qualifying compulsory patient falling

within section 130C(2)(a), the managers of the hospital or

registered establishment in which the patient is liable to be

detained;

(b)

in relation to an English qualifying compulsory patient falling

within section 130C(2)(b), the responsible local social services

authority within the meaning of section 34(3);

(c)

in relation to an English qualifying compulsory patient falling

within section 130C(2)(c), the managers of the responsible

hospital;

(d)

in relation to an English qualifying compulsory patient falling

within section 130C(3), the managers of the hospital or

registered establishment in which the treatment would be

given;

Page 94

(e)

in relation to an English qualifying informal patient, the

managers of the hospital or registered establishment to which

the patient is admitted as an in-patient.

(3)

In this section “appropriate provider of advocacy services”, in

relation to a patient, means the person required by arrangements

under section 130A to make available the services of an independent

mental health advocate to help that patient.

(4)

In this section “the required information”, in relation to a patient,

means such information relating to the patient as may be prescribed

in regulations made by the Secretary of State.”

For section 130D substitute—

“130DA

Duty to give information to English qualifying informal patients

(1)

The responsible person in relation to an English qualifying informal

patient must take such steps as are practicable to ensure that the

patient understands—

(a)

that help is available to the patient from an independent

mental health advocate, and

(b)

how the patient can obtain that help.

(2)

In this section “the responsible person”, in relation to an English

qualifying informal patient, means the managers of the hospital or

registered establishment to which the patient is admitted as an

in-patient.

(3)

The steps to be taken under subsection (1) must be taken as soon

as practicable after the patient becomes an English qualifying

informal patient.

(4)

The steps that must be taken under subsection (1) include giving

the requisite information both orally and in writing.

(5)

The responsible person in relation to an English qualifying informal

patient must, except where the patient otherwise requests, take such

steps as are practicable to give the person (if any) appearing to the

responsible person to be the patient’s nominated person a copy of

any information given to the patient in writing under subsection

(1) .

(6)

The steps to be taken under subsection (5) must be taken when the

information concerned is given to the patient or within a reasonable

time thereafter.”

Sort by: Group by:

Amendments

Government Amendment

Tabled: 14 Apr 2025
HL Bill 93 Running list of amendments – 14 April 2025

This amendment was AGREED

Clause 30, page 41, line 24, at end insert—
“(c) in paragraph (e), for “six months” substitute “three months”.”

Type: Government

Signatures: 1

Baroness Merron (Lab - Life peer) - 14 Apr 2025

Parliamentary Under-Secretary (Department of Health and Social Care)

Member's explanatory statement

This amendment is consequential on clause 29(2) of the Bill and changes the period within which an application to the tribunal may be made where a patient is transferred from guardianship to a hospital to align that period with the initial detention period in relation to the patient.