Legalize / United Kingdom / Northern Ireland / Act of the Northern Ireland Assembly

Mental Capacity Act (Northern Ireland) 2016

Type Act of the Northern Ireland Assembly

Publication 2016-05-09

Last updated 2022-04-01

State In force

Jurisdiction Northern Ireland

Department Statute Law Database

Source legislation.gov.uk

articles 3

Reform history JSON API

(i) for enabling the court to appoint a suitable person (who may, with his or her consent, be the Official Solicitor) to act in the name of, or on behalf of, or to represent P;

(j) for enabling an application to the court to be disposed of without a hearing;

(k) as to authorising or requiring—

(i) the attendance and examination of persons who lack, or are alleged to lack capacity;

(ii) the provision of information; and

(iii) the production of documents;

(l) for enabling the court to proceed with, or with any part of, a hearing in the absence of P;

(m) for enabling or requiring the proceedings or any part of them to be conducted in private and for enabling the court to determine who is to be admitted when the court sits in private and to exclude specified persons when it sits in public;

(n) as to what may be received as evidence (whether or not admissible apart from the rules) and the way in which it is to be presented;

(o) for the enforcement of orders made and directions given in the proceedings;

(p) as to—

(i) the making of orders for the payment of costs to or by persons attending, as well as persons taking part in, proceedings; and

(ii) the way in which and funds out of which any such costs are to be paid;

(q) the way in which, and funds from which, fees are to be paid;

(r) as to the termination of proceedings, whether on the death or recovery of P or otherwise, and the exercise, pending the termination of the proceedings, of powers exercisable under this Part in relation to P's—

(i) care, treatment or personal welfare; or

(ii) property or affairs;

(s) for charging fees and costs upon P's estate;

(t) for the payment of fees and costs within a specified time of P's death or the conclusion of the proceedings.

(3) Rules of court may also make provision as to appeals from decisions of the court in such proceedings, including provision—

(a) that where a decision of the court is made by a person exercising the jurisdiction of the court by virtue of rules made under subsection (2)(h), an appeal from that decision lies to a judge of the court of a specified description and not to the Court of Appeal;

(b) that, in specified cases, an appeal from a decision of the court may not be made without leave;

(d) as to any requirements to be met before leave is granted;

(e) that where a judge of the court makes a decision on an appeal, no appeal may be made to the Court of Appeal from that decision unless the Court of Appeal considers that—

(i) the appeal would raise an important point of principle or practice; or

(ii) there is some other compelling reason for the Court of Appeal to hear it;

(f) as to any considerations to be taken into account in relation to granting or refusing leave to appeal.

(4) A charge, created by virtue of subsection (2)(s), upon the estate of a person is not to cause any interest of that person in any property to fail or determine or to be prevented from recommencing.

(5) In this section “specified” means specified by the rules.

PART 7 — PUBLIC GUARDIAN AND COURT VISITORS

Public Guardian

The Public Guardian

125

(1) The Department of Justice must appoint an officer, to be known as the Public Guardian.

(2) The Department of Justice may pay to the Public Guardian such salary and allowances as it may determine.

(3) A determination under subsection (2) requires the approval of the Department of Finance.

(4) The Department of Justice may, after consulting the Public Guardian—

(a) provide the Public Guardian with such officers and staff, or

(b) enter into such contracts with other persons for the provision (by them or their sub-contractors) of officers, staff or services,

as it considers necessary for the proper performance of the Public Guardian's functions.

(5) Any functions of the Public Guardian may, to the extent authorised by the Public Guardian, be performed by any of the Public Guardian's officers.

Functions of the Public Guardian

126

(1) The Public Guardian has the following functions—

(a) establishing and maintaining a register of lasting powers of attorney;

(b) establishing and maintaining a register of orders appointing deputies;

(d) directing a Court Visitor to visit—

(i) a person who is an attorney under a lasting power of attorney,

(ii) a deputy appointed by the court, or

(iii) a person who proposes to grant or has granted a lasting power of attorney or for whom a deputy is appointed (“P”),

and to make a report to the Public Guardian on such matters as the Public Guardian may direct;

(e) receiving security which the court requires a person to give for the performance of functions;

(f) receiving reports from persons who are attorneys under lasting powers of attorney and deputies appointed by the court;

(g) reporting to the court on such matters relating to proceedings under this Act (except proceedings under Part 10) as the court requires;

(h) dealing with representations (including complaints) about the way in which powers of an attorney under a lasting power of attorney or of a deputy appointed by the court are being exercised;

(i) publishing (in any way the Public Guardian considers appropriate) any information the Public Guardian considers appropriate about the performance of the Public Guardian's functions.

(2) The functions conferred by subsection (1)(c), (d) and (h) may be performed in co-operation with any other person who has functions in relation to the care or treatment of P.

(3) The Department of Justice may by regulations make provision—

(a) conferring on the Public Guardian other functions in connection with this Act;

(b) in connection with the performance by the Public Guardian of his or her functions.

(4) Regulations made under subsection (3)(b) may in particular make provision as to—

(a) the giving of security by deputies appointed by the court and the enforcement and discharge of security so given;

(b) the way in which, and funds into which, fees which may be charged by the Public Guardian under section 116 of the Judicature (Northern Ireland) Act 1978 are to be paid;

(c) the making of reports to the Public Guardian by deputies appointed by the court and others who are directed by the court to carry out any transaction for a person who lacks capacity.

Further powers of the Public Guardian

127

(1) The powers under subsections (2) and (3) may be exercised for the purpose of enabling the Public Guardian to carry out his or her functions in relation to a person (“P”)—

(a) who proposes to grant or has granted a lasting power of attorney; or

(b) for whom a deputy is appointed.

(2) The Public Guardian may visit P and interview P in private.

(3) The Public Guardian may at all reasonable times require the production of, examine and take copies of—

(a) any health record (as defined by section 306), or

(b) any relevant record,

so far as the record relates to P.

(4) But if P has capacity in relation to whether the power under subsection (3) should be exercised, the power may be exercised only with P's consent.

(5) In this section “relevant record” means a record relating to P's care, treatment or personal welfare which is a record of or held by—

(a) an HSC trust or its employees or agents;

(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(d) a Northern Ireland department or its employees or agents;

(e) the managing authority of an independent hospital; or

(f) the managing authority of a care home.

Duty to notify the Public Guardian

128

(1) Where a relevant authority is satisfied—

(a) that a person with whom the authority is concerned lacks capacity in relation to a matter or matters relating to that person's care, treatment, personal welfare or property and affairs,

(b) that any of the powers of the court under section 113 ought to be exercised with respect to that matter or matters, and

it is the duty of that relevant authority to notify the Public Guardian of the situation.

(2) In this section a “relevant authority” means—

(a) an HSC trust;

(b) the Department ;

(d) the managing authority of an independent hospital;

(e) the managing authority of a care home.

(3) In this section “a person with whom the authority is concerned” means—

(a) in relation to an HSC trust, a person within the area of the trust;

(b) in relation to the Department , any person;

(d) in relation to the managing authority of an independent hospital or of a care home, an in-patient or resident in the hospital or care home.

Notifications under section 128: procedure and effect

129

(1) A notification under section 128 must be made within such time and in such form as rules of court may specify.

(2) Where a notification is made under section 128 in relation to any person (“P”), the body or person making the notification must, where practicable, inform P's nominated person.

(3) The Public Guardian, on receipt of a notification in respect of a person under section 128—

(a) must consider whether the Public Guardian should make inquiries into the person's case; and

(b) if the Public Guardian considers that he or she should make inquiries, must seek the leave of the court to make them and, if leave is granted, must make such inquiries as he or she considers appropriate.

(4) Where inquiries have been made under subsection (3) the Public Guardian may, if he or she considers it appropriate to do so, arrange for the bringing of proceedings before the court under section 113.

(5) Inquiries under subsection (3) must be made within the period specified by the court.

Court Visitors

130

(1) A Court Visitor is a person who is appointed by the Department of Justice to—

(a) a panel of Special Visitors; or

(b) a panel of General Visitors.

(2) A person may be appointed to a panel of Special Visitors only if—

(a) the person is a medical practitioner or appears to the Department of Justice to have other suitable qualifications or training; and

(b) the person appears to the Department of Justice to have special knowledge of and experience in relation to persons with impairment of, or disturbance in the functioning of, the mind or brain.

(3) A General Visitor need not have a medical qualification.

(4) A Court Visitor—

(a) may be appointed for such term and subject to such conditions, and

(b) may be paid such remuneration and allowances,

as the Department of Justice may determine.

Powers of Court Visitors

131

(1) The powers under subsection (2) and (3) may be exercised for the purpose of enabling a Court Visitor to carry out his or her functions under this Act in relation to a person who lacks capacity.

(2) The Court Visitor may visit the person and interview the person in private.

(3) The Court Visitor may at all reasonable times require the production of, examine and take copies of—

(a) any health record (as defined by section 306), or

(b) any relevant record,

so far as the record relates to the person.

(4) But if the person has capacity in relation to whether the power under subsection (3) should be exercised, the power may be exercised only with his or her consent.

(5) In this section “relevant record” means a record relating to the person's care, treatment or personal welfare which is a record of or held by—

(a) an HSC trust;

(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(d) a Northern Ireland department or its employees or agents;

(e) the managing authority of an independent hospital; or

(f) the managing authority of a care home.

PART 8 — RESEARCH

Approved research projects

Research

132

(1) Intrusive research carried out on, or in relation to, a person who is 16 or over and lacks capacity to consent to it is unlawful unless it is carried out—

(a) as part of an approved research project (see subsection (3)); and

(b) in accordance with sections 135 to 137.

(2) Research is “intrusive” if it is of a kind that would be unlawful if it were carried out—

(a) on or in relation to a person who had capacity to consent to it; but

(b) without that person's consent.

(3) In this section “approved research project” means a research project which is for the time being approved for the purposes of this Part by the appropriate body in accordance with section 134.

(4) In this Part “appropriate body”, in relation to a research project, means the person, committee or other body which is specified in regulations made for the purposes of this subsection as the appropriate body in relation to a project of the kind in question.

(5) Section 133 supplements this section.

Section 132: exception for clinical trials

133

(1) This section applies for the purposes of section 132.

(2) A clinical trial which is subject to the provisions of clinical trials regulations is not to be treated as research.

(3) In subsection (2) “clinical trials regulations” means—

(a) the Medicines for Human Use (Clinical Trials) Regulations 2004 and any other regulations replacing those regulations or amending them; and

(b) any other regulations relating to clinical trials that are designated by regulations made for the purposes of this subsection.

Approval of research projects

134

(1) The appropriate body may approve a research project for the purposes of this Part only if it is satisfied that the following requirements will be met in relation to research carried out as part of the project on, or in relation to, a person who is 16 or over and lacks capacity to consent to taking part in the project (“P”).

(2) The research must be connected with—

(a) an impairing condition affecting P; or

(b) its treatment.

(3) There must be reasonable grounds for believing that research of comparable effectiveness cannot be carried out if the project has to be confined to, or relate only to, persons who have capacity to consent to taking part in it.

(4) The research must—

(a) have the potential to benefit P without imposing on P a burden that is disproportionate to the potential benefit to P; or

(b) be intended to provide knowledge of the causes or treatment of, or of the care of persons affected by, the same or a similar condition.

(5) If the research falls within paragraph (b) of subsection (4) but not within paragraph (a), there must be reasonable grounds for believing—

(a) that the risk to P from taking part in the project is likely to be negligible; and

(b) that nothing done to, or in relation to, P as part of the project will—

(i) interfere with P's freedom of action or privacy in a significant way; or

(ii) be unduly invasive or restrictive.

(6) Without prejudice to subsection (5), there must be reasonable grounds for believing that no serious intervention will be carried out in respect of P as part of the project unless the intervention is one that could lawfully be carried out in respect of P if it were not part of the project (for example, because the conditions of Part 2 are met).

(7) There must be reasonable arrangements in place for ensuring that the requirements of sections 135 to 137 will be met.

(8) In this section—

“impairing condition” means a condition which is (or may be) attributable to, or which causes or contributes to (or may cause or contribute to), an impairment of, or a disturbance in the functioning of, the mind or brain;

“serious intervention” is to be read in accordance with section 63.

Requirement to consult nominated person, carer etc

135

(1) This section applies if a person (“R”)—

(a) is conducting a research project approved under section 134; and

(b) wishes to carry out research, as part of the project, on or in relation to a person (“P”) who is 16 or over and lacks capacity to consent to taking part in the project.

(2) R must take reasonable steps to identify a person who—

(a) otherwise than in a professional capacity, is engaged in caring for P or is interested in P's welfare; and

(b) is prepared to be consulted by R under this section.

(3) If R is unable to identify such a person R must, in accordance with guidance issued by the Department, appoint a person who—

(a) is prepared to be consulted by R under this section; and

(b) has no connection with the project.

(4) R must provide the person identified under subsection (2), or appointed under subsection (3), with information about the project and ask that person—

(a) for advice as to whether P should take part in the project; and

(b) what, in that person's opinion, P's wishes and feelings about taking part in the project would be likely to be if P had capacity in relation to the matter.

(5) If, at any time, the person consulted advises R that in that person's opinion P's wishes and feelings would be likely to lead P to decline to take part in the project (or to wish to withdraw from it) if P had capacity in relation to the matter, R must ensure—

(a) if P is not already taking part in the project, that P does not take part in it;

(b) if P is taking part in the project, that P is withdrawn from it.

(6) Subsection (5)(b) does not require treatment that P has been receiving as part of the project to be discontinued if the treatment can lawfully be carried out despite P having withdrawn from the project.

(7) In subsection (2)(a) “in a professional capacity” means under a contract of employment, under any other contract with any person, or as a volunteer for any organisation.

(8) The fact that a person within subsection (2)(a) is—

(a) an attorney under a lasting power of attorney, or an enduring power of attorney, granted by P,

(b) P's deputy, or

does not prevent that person from being the person consulted under this section.

(9) This section is subject to section 136 (urgent treatment).

Section 135: exception for urgent treatment

136

(1) This section applies if—

(a) section 135 applies;

(b) treatment is being, or is about to be, provided for P as a matter of urgency; and

(i) it is also necessary to take action for the purposes of the research as a matter of urgency; but

(ii) it is not practicable to consult under section 135.

(2) R may take the action if—

(a) R has the agreement of a medical practitioner who is not involved in the organisation or conduct of the research project; or

(b) where it is not practicable in the time available to obtain that agreement, R acts in accordance with a procedure approved by the appropriate body at the time when the research project was approved under section 134.

(3) But R may not continue to act in reliance on subsection (2) if R has reasonable grounds for believing that it is no longer necessary to take the action as a matter of urgency.

Additional safeguards

137

(1) This section applies in relation to a person (“P”) who is 16 or over and is taking part in a research project approved under section 134 even though P lacks capacity to consent to taking part.

(2) Nothing may be done to, or in relation to, P in the course of the research—

(a) to which P appears to object (whether by showing signs of resistance or otherwise) except where what is being done is intended to protect P from harm or to reduce or prevent pain or discomfort; or

(b) which is the carrying out or continuation of treatment of P and would be contrary to—

(i) an effective advance decision to refuse treatment which has been made by P, or

(ii) any other form of statement made by P and not subsequently withdrawn,

of which the person conducting the research project (“R”) is aware.

(3) The interests of P must be assumed to outweigh those of science and society.

(4) If P indicates (in any way) a wish to be withdrawn from the project P must be withdrawn without delay.

(5) P must be withdrawn from the project, without delay, if at any time R has reasonable grounds for believing that any requirement set out in section 134(2) to (7) is no longer met in relation to research being carried out on, or in relation to, P.

(6) Subsections (4) and (5) do not require treatment that P has been receiving as part of the project to be discontinued if the treatment can lawfully be carried out despite P having withdrawn from the project.

(7) In this section—

(a) “an effective advance decision to refuse treatment” means a decision which, under the common law relating to advance decisions, has the same effect as if at the material time P—

(i) refused consent to the treatment's being carried out or continued; and

(ii) had capacity to refuse that consent; and

(b) “the material time” means the time when the question arises whether the treatment should be carried out or continued.

Transitional cases

Loss of capacity during research project: transitional cases

138

(1) This section applies where a person who is 16 or over (“P”)—

(a) consented to take part in a research project begun before the coming into operation of section 132; and

(b) before the conclusion of the project, loses capacity to consent to continue to take part in it.

(2) Regulations may provide that, despite P's loss of capacity, research of a prescribed kind may be carried out on, or in relation to, P if—

(a) the project satisfies prescribed requirements;

(b) any information or material relating to P which is used in the research is of a prescribed description and was obtained before P's loss of capacity; and

(c) the person conducting the project takes in relation to P such steps as may be prescribed for the purpose of protecting P.

(3) The regulations may in particular—

(a) make provision about when, for the purposes of the regulations, a project is to be treated as having begun;

(b) include provision similar to any made by sections 134 to 137.

PART 9 — POWER OF POLICE TO REMOVE PERSON TO PLACE OF SAFETY

Power of police to remove person from public place to place of safety

139

(1) If—

(a) a constable finds in a public place a person who appears to the constable to be in immediate need of care or control, and

(b) the constable reasonably believes that the conditions in subsection (2) are met,

the constable may remove that person to a place of safety.

(2) Those conditions are that—

(a) failure to remove the person from the public place would create a risk of serious physical or psychological harm to the person or of serious physical harm to other persons;

(b) removing the person to a place of safety is a proportionate response to the likelihood and seriousness of the harm concerned;

(c) because of an impairment of or disturbance in the functioning of the mind or brain (temporary or permanent, and however caused), the person is unable to make a decision for himself or herself as to whether he or she should be taken to a place of safety; and

(d) removing the person to the place of safety would be in the person's best interests.

(3) The powers conferred by this Part are subject to section 157 (principles).

(4) “Place of safety” and “public place” are defined for the purposes of this Part by section 160.

Information to be given on removal

140

(1) The removal of a person (“R”) from a public place under section 139 is not lawful unless R is informed—

(a) before or at the time of being taken from the public place, or

(b) as soon as practicable after that time,

that R is to be (or is being) removed to a place of safety under section 139.

(2) If R arrives at the place of safety before it is practicable to give R that information, subsection (1) is to be read as requiring R to be informed as soon as practicable that R has been removed to a place of safety under section 139.

(3) Nothing in this section is to be taken to require R to be informed if it was not reasonably practicable to inform R because R escaped before the information could be given.

(4) In consequence of this section, Article 30 of PACE (information to be given on arrest) does not apply in relation to the removal of a person from a public place under section 139.

Search of person on exercise of power to remove

141

(1) Subsection (2) applies where a person in a public place is informed that he or she is to be (or is being) removed to a place of safety under section 139.

(2) The person is to be regarded for the purposes of Article 34 of PACE (search upon arrest) as having been arrested at the time when he or she was so informed.

(3) Where—

(a) a person (“R”) is removed from a public place under section 139, and

(b) it is not practicable to inform R as mentioned in subsection (1) before R is removed from the public place,

R is to be regarded for the purposes of Article 34 of PACE as having been arrested at the time when it was decided to remove R from that place to a place of safety.

(4) Article 34 of PACE applies by virtue of this section as if—

(a) paragraphs (2)(a)(ii) and (b), (6) and (7) were omitted;

(b) in paragraph (3) the reference to evidence were omitted.

Powers of police to detain person removed from public place

Power of police to detain in hospital a person removed from a public place

142

(1) This section applies where a person is taken to a hospital under section 139.

(2) The person may be detained under this section in the hospital by a constable for the purpose of enabling the person to be examined by a medical practitioner and interviewed by an approved social worker, if the constable reasonably believes that the detention conditions are met (see section 144).

(3) If at any time while the person is detained in a hospital under this section it appears to the constable detaining the person that the detention conditions are no longer met, the person must immediately be discharged from detention under this section.

(4) Subsection (3) does not apply if the transfer conditions in section 145 are met and the person is taken to another place of safety under that section.

(5) See also section 146 (maximum period of detention under this Part).

Power to detain in police station a person removed from a public place

143

(1) This section applies where a person is taken to a police station under section 139.

(2) If a custody officer reasonably believes that the detention conditions are met (see section 144), the person may be detained under this section in the police station—

(a) for the purpose of enabling the person to be examined by a medical practitioner and interviewed by an approved social worker;

(b) for the purpose of preventing physical or psychological harm to that person or other persons while any necessary arrangements are made for the person's care or treatment elsewhere.

(3) If at any time while the person is detained under this section it appears to a custody officer that the detention conditions are no longer met, the person must immediately be discharged from detention under this section.

(4) Subsection (3) does not apply if the transfer conditions in section 145 are met and the person is taken to another place of safety under that section.

(5) See also section 146 (maximum period of detention under this Part).

Sections 142 and 143: the detention conditions

144

(1) This section applies for the purposes of sections 142 and 143.

(2) The detention conditions are that—

(a) failure to detain the person for the permitted purposes would create a risk of serious physical or psychological harm to the person or of serious physical harm to other persons;

(b) detaining the person in the place of safety for those purposes is a proportionate response to the likelihood and seriousness of the harm concerned;

(c) because of an impairment of or disturbance in the functioning of the mind or brain (temporary or permanent, and however caused), the person is unable to make a decision for himself or herself as to whether he or she should remain in the place of safety; and

(d) detention in the place of safety for those purposes is in the person's best interests.

(3) In this section—

“the place of safety” means the hospital or police station to which the person mentioned in section 142(1) or 143(1) has been taken;

“the permitted purposes” means—where the place of safety is a hospital, the purpose mentioned in section 142(2);where the place of safety is a police station, the purpose mentioned in section 143(2)(a) or (b).

Transfer from one place of safety to another

145

(1) At any time while a person is detained in a place of safety under section 142 or 143, the person may be taken by a constable to another place of safety (“the new place of safety”) if the constable reasonably believes that the transfer conditions are met.

(2) The transfer conditions are that—

(a) there is appropriate care or treatment available in the new place of safety which is not available in the place where the person is being detained;

(b) discharging the person from detention rather than taking him or her to the new place of safety would create a risk of serious physical or psychological harm to the person or of serious physical harm to other persons;

(c) taking the person to the new place of safety (and not discharging him or her from detention) is a proportionate response to the likelihood and seriousness of the harm concerned;

(d) because of an impairment of or disturbance in the functioning of the mind or brain (temporary or permanent, and however caused), the person is unable to make a decision for himself or herself as to whether he or she should be taken to the new place of safety; and

(e) taking the person to the new place of safety is in the person's best interests.

(3) Where a person is taken to a hospital under this section, section 142 applies as it applies where a person is taken to a hospital under section 139.

(4) Where a person is taken to a police station under this section, section 143 applies as it applies where a person is taken to a police station under section 139.

(5) In this section “appropriate care or treatment” means care or treatment which is appropriate in the person's case.

Maximum period of detention under Part 9

146

(1) A person removed from a public place under section 139 may not be detained under any provision of this Part after the end of the period of 24 hours beginning with the time of that removal.

(2) The Department of Justice may by regulations amend subsection (1) so as to alter the period mentioned there.

Duties and powers of police where person removed to place of safety

Duty to inform certain persons where power of removal or transfer used

147

(1) This section applies where a constable takes a person (“R”) to a place of safety under section 139 or 145.

(2) The constable must ensure that, as soon as practicable after R arrives at the place of safety, the required information is given to⁠—

(a) the HSC trust in whose area that place of safety is situated;

(b) the appropriate person; and

(c) if the appropriate person does not live with R and it is practicable to give the information to a relevant person who lives with R, such a person.

(3) But if⁠—

(a) it is not practicable to give the required information to the appropriate person, and

(b) it is practicable to give the required information to a relevant person,

subsection (2) has effect as if the reference in paragraph (b) to the appropriate person were to a relevant person.

(4) In this section⁠—

“the appropriate person” means—if R is 16 or over, any person who is R's nominated person;if R is under 16, a person with parental responsibility for R;

“relevant person” means a person who is 16 or over and is—named by R as someone to whom the information should be given;engaged in caring for R; orinterested in R's welfare;

“the required information” has the meaning given by section 148.

Section 147: meaning of “the required information” etc

148

(1) This section supplements section 147.

(2) “The required information” means—

(a) the fact that R has been taken to a place of safety under section 139 or 145;

(b) R's name and address, if known;

(d) the date and time at which R—

(i) was removed from the public place (where the notification relates to a removal under section 139); or

(ii) was taken from the place of safety from which he or she was transferred (where the notification relates to a transfer under section 145);

(e) the circumstances giving rise to R's removal or transfer; and

(f) if the place of safety to which R was taken is a police station, the reason why R was taken there.

(3) Section 147 applies instead of Article 10 of the Criminal Justice (Children) (Northern Ireland) Order 1998 in any case where (but for this subsection) both that section and that Article would apply.

(4) Article 57 of PACE (right to have someone informed when arrested and detained) does not apply in relation to a person detained in a place of safety under this Part.

Record of detention to be kept

149

(1) Where a person is taken to a place of safety under section 139 or section 145 and detained there under section 142 or 143, the appropriate officer (as defined by section 160) must make a written record of the fact that the person has been so detained.

(2) The written record—

(a) must be made as soon as practicable after the decision is made to detain the person under section 142 or 143; and

(b) must be made in the presence of the person, who must at that time be informed by the appropriate officer that he or she is being detained under that section.

(3) Subsection (2)(b) does not apply where, at the time when the written record is made, the person is—

(a) incapable of understanding what is said to him or her;

(b) violent or likely to become violent; or

Responsibilities of the appropriate officer

150

(1) The appropriate officer must ensure that a person who is detained under this Part in a place of safety is treated in accordance with—

(a) any provisions of this Part or PACE that relate to the treatment of persons who are so detained; and

(b) any code of practice under this Act or PACE that relates to the treatment of persons who are so detained.

(2) The appropriate officer must also ensure that all matters relating to a person who is detained under this Part in a place of safety which are required by this Part, PACE or such a code of practice to be recorded in writing are so recorded.

Review of detention

151

(1) Where a person is detained in a place of safety under this Part, reviews of whether the detention conditions set out in section 144(2) are still met must be carried out periodically by the appropriate officer in accordance with this section.

(2) Subject to subsection (3)—

(a) the first review must be not later than 6 hours after the person's arrival at the place of safety;

(b) subsequent reviews must be at intervals of not more than 6 hours.

(3) A review may be postponed—

(a) if, having regard to all the circumstances prevailing at the latest time for it specified in subsection (2), it is not practicable to carry out the review at that time;

(b) if at that time the appropriate officer is not readily available.

(4) If a review is postponed under subsection (3) it must be carried out as soon as practicable after the latest time specified for it in subsection (2).

(5) If a review is carried out after postponement under subsection (3), the fact that it was so carried out does not affect any requirement of this section as to the time at which any subsequent review is to be carried out.

(6) The appropriate officer must record in writing—

(a) any decision made, on a review, to continue to detain the person;

(b) the reasons for any postponement of a review.

(7) A record under subsection (6)(a)—

(a) must be made as soon as practicable after the decision is made; and

(b) must be made in the presence of the person, who must at that time be informed by the appropriate officer of the decision.

(8) Subsection (7)(b) does not apply where the person is, at the time when the written record is made—

(a) incapable of understanding what is said to him or her;

(b) asleep;

(d) in urgent need of medical attention.

(9) Any reference in this section to a period of time is to be treated as approximate only.

Access to legal advice

152

(1) A person who is detained in a place of safety under this Part is entitled, if he or she so requests, to consult a solicitor privately at any time.

(2) If a person makes such a request, he or she must be permitted to consult a solicitor as soon as is practicable.

(3) A request under this section and the time at which it was made must be recorded in writing.

(4) Article 59 of PACE (access to legal advice) does not apply in relation to a person who is detained in a place of safety under this Part.

Searches of person following removal to place of safety

153

Article 55 of PACE (searches of detained persons) applies in relation to a person detained in a place of safety under this Part as if—

(a) in paragraph (1) the reference to a person who has been brought to a police station after being arrested elsewhere were to a person who has been brought to a police station under section 139 or under section 145 (except from another police station);

(b) paragraph (4)(a)(iii) were omitted;

(c) in paragraph (7) the reference to the person mentioned there were to a person detained in a place of safety under this Part.

Searches and examination to ascertain identity

154

Article 55A of PACE (searches and examination to ascertain identity) applies in relation to a person detained in a place of safety under this Part as if—

(a) in paragraph (1) the reference to a person who is detained in a police station were to a person who is detained in any place of safety under this Part;

(b) paragraphs (1)(a), (2), (5) and (9) to (13) were omitted;

Intimate searches

155

Article 56 of PACE (intimate searches) applies in relation to a person detained in a place of safety under this Part as if—

(a) in paragraph (1)(a) the reference to a person who has been arrested and is in police detention were a reference to a person detained in a place of safety under this Part;

(b) in paragraph (1)(a)(ii) the reference to police detention or the custody of a court were a reference to detention under this Part;

Annual records

156

(1) The records that must be kept under Article 50 of PACE include records showing, on an annual basis—

(a) the number of persons detained under this Part in hospitals;

(b) the number of persons detained under this Part in police stations.

(d) the number of children detained under this Part in police stations;

(e) final disposals in respect of children detained as mentioned in paragraphs (c) and (d).

(2) Every annual report under section 58(1) of the Police (Northern Ireland) Act 2000 must contain information about the matters mentioned in subsection (1) in respect of the period to which the report relates.

(3) Regulations may provide that the records to be kept by virtue of subsection (1)(e) are records of such information, in respect of each child who ceases to be detained under this Part, as may be prescribed; and that subsection (2) is to be read accordingly.

(4) In this section “children” means persons under 18.

Supplementary

Principles applying for purposes of Part 9

157

(1) Where for any purpose of this Part a determination falls to be made of whether a person is unable to make a decision for himself or herself about a matter—

(a) the question whether the person is or is not able to make such a decision is to be determined solely by reference to whether the person is or is not able to do the things mentioned in section 4(1)(a) to (d);

(b) the person is not to be treated as unable to make a decision for himself or herself about the matter unless all practicable help and support to enable the person to make such a decision have been given without success;

(c) the person is not to be treated as unable to make a decision for himself or herself about the matter merely because the person makes an unwise decision.

(2) A determination that a person is unable to make a decision, or about what is in a person's best interests, must not be made for any purpose of this Part merely on the basis of—

(a) the person's age or appearance; or

(b) any other characteristic of the person, including any condition that the person has, which might lead others to make unjustified assumptions about the person's ability to make a decision or about what is in the person's best interests.

(3) Where for any purpose of this Part it falls to a person (“the relevant officer”) to determine what would be in the best interests of another person (“R”), the relevant officer—

(a) must consider all the relevant circumstances (that is, all the circumstances of which the relevant officer is aware which it is reasonable to regard as relevant); and

(b) must in particular take the steps in subsections (4) to (8).

(4) The relevant officer must, in determining what would be in R's best interests—

(a) so far as practicable, encourage and help R to participate as fully as possible in that determination; and

(b) have special regard to (so far as they are reasonably ascertainable) R's past and present wishes and feelings.

(5) Where it is practicable for the relevant officer to consult—

(a) a key person (see subsection (7)), or

(b) any other person who is named by R as someone to be consulted or who is engaged in caring for R or interested in R's welfare,

about what would be in R's best interests and in particular about R's past and present wishes and feelings, the relevant officer must, so far as is practicable and appropriate, consult those persons about those questions.

(6) So far as the views of any of those persons about those questions are ascertained, the relevant officer must take those views into account.

(7) In subsection (5) “a key person” means—

(a) if R is 16 or over, any person who is R's nominated person;

(b) if R is under 16, a person with parental responsibility for R.

(8) The relevant officer must, in relation to any removal, detention or transfer that is being considered, have regard to whether the purpose for which it would be carried out can be as effectively achieved in a way that is less restrictive of R's rights and freedom of action.

(9) In consequence of this section, sections 1 to 3 and 5 to 8 (principles, best interests etc) do not apply for the purposes of this Part.

Reasonable belief etc

158

(1) This section applies if, after a person (“the relevant officer”) has removed, detained or transferred another person in reliance on any provision of this Part, any question arises—

(a) whether a particular provision of section 157 was complied with; or

(b) whether a belief of the relevant officer that a condition in section 139(2), 144(2) or 145(2) was met was a reasonable belief.

(2) In deciding that question, regard is to be had in particular to—

(a) the place and other circumstances in which the relevant officer's determination fell to be made; and

(b) in particular, where the relevant officer did not have available to him or her the advice of a medical practitioner or approved social worker, that fact.

(3) Nothing in this section affects the matters to which regard is to be had in deciding any similar question that may arise under any other Part.

Power of constable to use reasonable force

159

Where—

(a) a power is conferred on a constable by virtue of this Part, and

(b) the provision conferring the power does not provide that the power may be exercised only with the consent of a person other than a police officer,

the constable may use reasonable force, if necessary, in the exercise of the power.

Definitions for purposes of Part 9

160

(1) In this Part—

“the appropriate officer”, in relation to a person who is detained in a place of safety, means—where the place of safety is a hospital, the constable who has charge of the person;where the place of safety is a police station, the custody officer at that police station;

“best interests”: see section 157 for provisions about the determination of a person's best interests;

“custody officer”, in relation to a police station, means a person who under PACE is a custody officer, or performing the functions of a custody officer, at that police station;

“PACE” means the Police and Criminal Evidence (Northern Ireland) Order 1989;

“place of safety” means—any hospital whose managing authority is willing temporarily to receive persons who may be taken there under this Part; orany police station;

“public place” means a place to which the public have access;

“unable to make a decision”, and references to enabling a person to make a decision, are to be read in accordance with section 4.

(2) The Department of Justice may by regulations amend the definition of “place of safety” in subsection (1).

(3) Regulations under subsection (2) may make such consequential amendments of this Part as the Department of Justice considers appropriate.

(4) The provision which may be made by virtue of subsection (3) includes, in particular, provision which amends or applies either of sections 142 and 143 or makes provision corresponding to those sections.

(5) For the purposes of sections 147 and 157, where the age of a person is not known, it is to be taken to be the age that the person appears to be.

Relationship of Part 9 to other provisions

161

(1) A power that a constable has under any provision of this Part (a “place of safety power”) does not affect—

(a) any authority that the constable has under Part 2 to do an act other than an act authorised by the place of safety power;

(b) any authority to do any act that a person other than the constable has; or

(2) If, while a person is detained in or being taken to a place of safety under any provision of this Part, the person is arrested for an offence—

(a) the relevant provisions of PACE apply; and

(b) the person ceases to be liable to be detained under this Part or taken to a place of safety under this Part.

(3) Nothing in subsection (2)(b) affects the application of this Part on any subsequent occasion on which the person is found in a public place.

PART 10 — CRIMINAL JUSTICE

CHAPTER 1 — REMAND TO HOSPITAL

Remand to hospital

162

(1) Where—

(a) the Crown Court or a court of summary jurisdiction has power to remand an accused person (“A”) in custody,

(b) the court considers that it would remand A in custody if it did not remand A under this section, and

the court may, instead of remanding A in custody, remand A to a hospital specified by the court.

(2) In this section “the conditions for remand to hospital” means—

(a) the medical report condition (see section 164(1));

(b) the treatment condition (see section 165(1)).

(3) The court may remand an accused person under this section only if it is satisfied, on the written or oral evidence of a person representing the managing authority of the hospital, that arrangements have been made for the accused person's detention in the hospital in pursuance of the remand.

(4) Where a court has remanded an accused person (“A”) under this section, it may further remand A under this section if it considers that—

(a) it would remand A in custody if it did not make the further remand under this section; and

(b) either or both of the conditions for remand to hospital are met.

(5) A person may not be remanded or further remanded under this section for more than 28 days at a time or for more than 12 weeks in total.

(6) For the meaning of “an accused person” see section 163.

Section 162: meaning of “an accused person”

163

(1) In section 162 “an accused person” has the following meaning.

(2) In relation to the Crown Court, “an accused person” means—

(a) a person who is awaiting trial before the court for an offence punishable with imprisonment, or

(b) a person who has been arraigned before the court for an offence punishable with imprisonment and has not yet been sentenced or otherwise dealt with for that offence,

but does not include a person who has been convicted before the Crown Court of an offence for which the sentence is fixed by law.

(3) In relation to a court of summary jurisdiction, “an accused person” means—

(a) a person who has been convicted by the court of an offence punishable on summary conviction with imprisonment; or

(b) a person charged with such an offence if the court is satisfied that the person did the act or made the omission charged.

Section 162: the medical report condition

164

(1) For the purposes of section 162 “the medical report condition” is that—

(a) the court is satisfied on the required medical evidence that A has, or there is reason to suspect that A has, a disorder;

(b) the court considers that a report ought to be made as to A's mental or physical condition;

(c) it appears to the court that a proper assessment of A's condition for the purposes of the report will be impracticable if A is remanded in custody; and

(d) it appears to the court, having regard in particular to the matter mentioned in subsection (2), that such an assessment will be practicable if A is remanded to hospital.

(2) The matter mentioned in subsection (1)(d) is how likely it is, as regards any examination that may be necessary for the assessment—

(a) that consent will be given by A or by a person with authority to give consent on behalf of A; or

(b) that the examination will be capable of being carried out by virtue of Part 2 of this Act (or, if A is under 16, under the Mental Health Order).

(3) In subsection (1)(a) “the required medical evidence” means (subject to subsection (4)) the oral evidence of—

(a) if the disorder is mental disorder, an approved medical practitioner;

(b) otherwise, a medical practitioner who appears to the court to have special experience in the diagnosis or treatment of the disorder.

(4) Where this section applies for the purposes of section 162(4) (further remands), in subsection (1)(a) “the required medical evidence” means the written or oral evidence of the medical practitioner who is in charge of A's care in the hospital.

Section 162: the treatment condition

165

(1) For the purposes of section 162 “the treatment condition” is that—

(a) the court is satisfied on the required medical evidence—

(i) that A has a disorder requiring treatment; and

(ii) that failure to provide treatment to A as an in-patient in a hospital would be more likely than not to result in serious physical or psychological harm to A or serious physical harm to other persons; and

(b) it appears to the court, having regard in particular to the matters mentioned in subsection (2), that remanding A to hospital is likely to result in significantly better clinical outcomes for A than if A were remanded in custody.

(2) The matters mentioned in subsection (1)(b) are—

(a) the ways in which A might become an in-patient in a hospital if remanded in custody;

(b) whether treatment for the disorder is available in the hospital to which A would be remanded if A were remanded to hospital; and

(i) that consent will be given by A or by a person with authority to give consent on behalf of A; or

(ii) that the treatment will be capable of being given to A by virtue of Part 2 of this Act (or, if A is under 16, under the Mental Health Order).

(3) In subsection (1)(a) “the required medical evidence” means, subject to subsection (4), the written or oral evidence of at least two medical practitioners, including—

(a) if the disorder is mental disorder, the oral evidence of an approved medical practitioner;

(b) otherwise, the oral evidence of a medical practitioner who appears to the court to have special experience in the diagnosis or treatment of the disorder.

(4) Where this section applies for the purposes of section 162(4) (further remands), in subsection (1)(a) “the required medical evidence” means the written or oral evidence of the medical practitioner who is in charge of A's care in the hospital.

Effect of remand to hospital

166

(1) Where a person is remanded under section 162—

(a) a constable or any other person directed to do so by the court must take the person to the hospital specified by the court;

(b) the managing authority of that hospital must—

(i) admit the person; and

(ii) subject to the following provisions of this section, detain him or her for the period of the remand; and

(c) any question whether the person may be given any treatment while detained in pursuance of the remand is (subject to section 243) to be determined in the same way as if the person were not so detained.

(2) The court which remanded the person may at any time terminate the remand if it appears to the court that it is appropriate to do so.

(3) A person remanded under section 162 may obtain at his or her own expense, from a medical practitioner chosen by the person, an independent report as to the person's mental or physical condition and apply to the court on the basis of that report for the remand to be terminated under subsection (2).

(4) If a person remanded under section 162 absconds from the hospital, or while being taken to or from the hospital—

(a) the person may be arrested without warrant by any constable;

(b) after being arrested, the person must be brought as soon as practicable before the court that remanded him or her; and

(c) on the person's being brought before it, the court may terminate the remand and deal with the person in any way in which it would have dealt with the person if the person had not been remanded under section 162.

(5) The power of further remanding a person under section 162 may be exercised by the court without the person's being brought before the court if the person is represented by counsel, or a solicitor, who is given an opportunity of being heard.

(6) References in subsections (1) to (4) to a remand under section 162 include a further remand under that section; and subsection (1) applies in relation to the further remand to a hospital of a person who has been admitted to the hospital and is not brought before the court as if paragraphs (a) and (b)(i) were omitted.

CHAPTER 2 — POWERS OF COURT ON CONVICTION

Public protection orders with and without restrictions

167

(1) This section applies where—

(a) a person is convicted before the Crown Court of an offence punishable with imprisonment, other than an offence for which the sentence is fixed by law; or

(b) a person is convicted by a court of summary jurisdiction of an offence punishable on summary conviction with imprisonment.

(2) The court may—

(a) if the detention conditions are met, make a public protection order without restrictions;

(b) if the detention conditions and the restriction condition are met, make a public protection order with restrictions.

For the meaning of “the detention conditions” and “the restriction condition” see sections 168 and 169.

(3) In this Part (except paragraph (b)) “public protection order without restrictions” means an order which—

(a) requires that the offender be admitted to and detained in an appropriate establishment which is specified in the order; and

(b) provides that the order is to be treated as a public protection order without restrictions.

(4) In this Part (except paragraph (b)) “public protection order with restrictions” means an order which—

(a) requires that the offender be admitted to and detained in an appropriate establishment which is specified in the order; and

(b) either—

(i) provides (with no time limit) that the order is to be treated as a public protection order with restrictions; or

(ii) provides that for a specified period the order is to be treated as a public protection order with restrictions.

(5) For the effect of public protection orders without restrictions and public protection orders with restrictions see—

(a) section 171 (effect of public protection orders with and without restrictions);

(b) Chapter 3 (detention under public protection orders without restrictions); and

(6) In this Part “appropriate establishment” means—

(a) a hospital; or

(b) a care home—

(i) in which care is provided for people who have an impairment of, or a disturbance in the functioning of, the mind or brain; and

(ii) which is designated by the Department of Justice for the purposes of this paragraph.

(7) In this Part “public protection order” (without more) means a public protection order without restrictions or a public protection order with restrictions.

Section 167: the detention conditions

168

(1) For the purposes of section 167 “the detention conditions” are—

(a) that the court is satisfied, on the required medical evidence, of the matters mentioned in subsection (2);

(b) that, having regard to all the circumstances and in particular to the matters mentioned in subsection (3), the court considers that making an order for the offender to be detained in an appropriate establishment is the most suitable way of dealing with the case; and

(c) that the court is satisfied, on the written or oral evidence of a person representing the managing authority of the appropriate establishment specified in the order (“the establishment”), that arrangements have been made for the offender's detention there in pursuance of the order.

(2) The matters referred to in subsection (1)(a) are—

(a) that there is an impairment of, or a disturbance in the functioning of, the offender's mind or brain;

(b) that appropriate care or treatment is available for the offender in the establishment;

(c) that dealing with the offender in any way not involving his or her detention would create a risk, linked to the impairment or disturbance, of serious physical or psychological harm to other persons; and

(d) that detaining the offender in the establishment in circumstances amounting to a deprivation of liberty would be a proportionate response to—

(i) the likelihood of the harm concerned; and

(ii) the seriousness of that harm.

(3) The matters referred to in subsection (1)(b) are—

(a) the other available ways of dealing with the offender;

(b) the nature of the offence;

(d) the risk of physical or psychological harm to other persons if the offender were set at large.

(4) In considering for any purpose of this section whether it would be appropriate to deal with the offender in a way not involving detention, or what risk would be created by dealing with the offender in that way, the court—

(a) must in particular consider whether if it dealt with the offender in that way it could also make a sexual offences prevention order or violent offences prevention order in respect of the offender; and

(b) if it could make such an order, must take into account that fact and the effect of such an order.

(5) In this section “the required medical evidence” means the written or oral evidence of at least two medical practitioners, including the oral evidence of an approved medical practitioner.

(6) In this section—

“sexual offences prevention order” means an order under section 106 of the Sexual Offences Act 2003;

“violent offences prevention order” has the same meaning as in Part 8 of the Justice Act (Northern Ireland) 2015 (see section 76(1)).

Section 167: the restriction condition

169

(1) For the purposes of section 167 “the restriction condition” is that the court, having regard to all the circumstances and in particular to the matters mentioned in subsection (2), considers that making a public protection order with restrictions (rather than a public protection order without restrictions) is necessary for the protection of the public from serious physical or psychological harm.

(2) The matters are—

(a) the nature of the offence;

(b) the past history of the offender;

Further provision about making of public protection orders

170

(1) Nothing in a provision mentioned in subsection (2) prevents a court from making a public protection order in respect of an offence the sentence for which would otherwise fall to be imposed under that provision.

(2) The provisions referred to in subsection (1) are—

(a) Article 70(2) of the Firearms (Northern Ireland) Order 2004;

(b) paragraph 2(4) or (5) of Schedule 2 to the Violent Crime Reduction Act 2006;

(d) section 7 of the Human Trafficking and Exploitation (Criminal Justice and Support for Victims) Act (Northern Ireland) 2015.

(3) Any reference in this section to a sentence falling to be imposed under a provision mentioned in subsection (2) is to be read in accordance with Article 4(2) of the Criminal Justice (Northern Ireland) Order 2008.

(4) Where a public protection order is made in respect of an offence, the court—

(a) may not pass a custodial sentence or impose a fine or make a probation order in respect of the offence; but

(b) may make any other order which the court has power to make.

Effect of public protection orders

171

(1) Where a court makes a public protection order in respect of a person—

(a) a constable or any other person directed to do so by the court must take the person to the establishment specified in the order;

(b) the managing authority of that establishment must—

(i) admit the person; and

(ii) detain him or her in accordance with the relevant provisions; and

(c) any question whether the person may be given any treatment while detained in pursuance of the order is (subject to section 243) to be determined in the same way as if the person were not so detained.

(2) In this section “the relevant provisions” means—

(a) in relation to a public protection order without restrictions, Chapter 3;

(b) in relation to a public protection order with restrictions, Chapter 4 (but see sections 172 and 173).

Power to direct the ending of restrictions under a public protection order

172

(1) This section applies if—

(a) a public protection order with restrictions is in force in respect of a person; and

(b) the Department of Justice is satisfied that it is no longer necessary for the protection of the public from serious physical or psychological harm that the person be subject to a public protection order with restrictions.

(2) The Department of Justice may direct that, with effect from a date specified in the direction, the public protection order is to have effect as a public protection order without restrictions (see further section 173).

Effect of ending of restrictions under a public protection order

173

(1) This section applies where a court has made a public protection order with restrictions in respect of a person and—

(a) a direction is made under section 172 (ending of restrictions) in respect of the order; or

(b) the order provides that for a specified period the order is to be treated as a public protection order with restrictions, and that period ends at a time when the order is still in force and when no direction has been made under section 172.

(2) From the end of the restricted period—

(a) Chapter 4 ceases to apply;

(b) the order has effect as if it were a public protection order without restrictions requiring the person to be detained in the establishment concerned; and

(c) Chapter 3 applies in relation to the person as if the order had been made (as a public protection order without restrictions) on the last day of the restricted period and as if the person had then been admitted to the establishment concerned in pursuance of the order.

(3) If when the restricted period ends the person is absent with permission given under section 195, the permission, and any accompanying direction under section 195(4), have effect from the end of the restricted period as if given under section 187.

(4) In this section—

“the establishment concerned” means the establishment in which, immediately before the end of the restricted period, the person was liable to be detained under the public protection order with restrictions;

“the restricted period” means—where subsection (1)(a) applies, the period beginning with the actual making of the public protection order and ending immediately before the date specified in the direction under section 172;where subsection (1)(b) applies, the period that was specified in the order as the period for which the order should be treated as a public protection order with restrictions.

Hospital directions

Hospital direction when passing custodial sentence

174

(1) This section applies where—

(a) a person is convicted before the Crown Court of an offence punishable with imprisonment, other than an offence for which the sentence is fixed by law; or

(b) a person is convicted by a court of summary jurisdiction of an offence punishable on summary conviction with imprisonment.

(2) If—

(a) the court, having considered the other available ways of dealing with the offender, decides to impose a custodial sentence (as defined by section 253) in respect of the offence, and

(b) the conditions in section 175 are met,

the court may when it passes the custodial sentence direct that, instead of being removed to and detained in a prison, the offender is to be removed to and detained in a hospital specified in the direction.

(3) A direction under this section given in relation to an offender has effect not only as regards the custodial sentence mentioned in subsection (2) but also (so far as applicable) as regards any other custodial sentence imposed on the same or a previous occasion.

(4) Where the custodial sentence imposed by the court is not a sentence of imprisonment, any reference in this section to a “prison” is to a place in which the person would be liable to be detained under the sentence but for the direction under this section.

(5) In this Part a “hospital direction” means a direction under this section.

Conditions for giving hospital direction

175

(1) The conditions referred to in section 174(2) are—

(a) that the court is satisfied, on the required medical evidence, of the matters mentioned in subsection (2);

(b) that, having regard to all the circumstances and in particular to the matters mentioned in subsection (3), the court considers that giving a hospital direction is appropriate; and

(c) that the court is satisfied on the written or oral evidence of a person representing the managing authority of the hospital specified in the direction (“the hospital”) that arrangements have been made for the offender's detention in the hospital in pursuance of the direction.

(2) The matters referred to in subsection (1)(a) are—

(a) that the offender has a disorder requiring treatment;

(b) that failure to provide treatment to the offender as an in-patient in a hospital would be more likely than not to result in serious physical or psychological harm to the offender or serious physical harm to other persons; and

(3) The matters referred to in subsection (1)(b) are—

(a) the effect of section 198 (transfer from hospital to prison);

(b) the ways in which the offender might become an in-patient in a hospital if the court passed a custodial sentence without giving a hospital direction; and

(c) how likely it is that, if a hospital direction is given and the offender is detained in hospital under the direction—

(i) consent to treatment will be given by the offender, or by a person with authority to give consent on behalf of the offender; or

(ii) treatment will be capable of being given to the offender by virtue of Part 2 of this Act (or, if the offender is under 16, under the Mental Health Order).

(4) In subsection (1)(a) “the required medical evidence” means the written or oral evidence of at least two medical practitioners, including the oral evidence of—

(a) if the disorder is mental disorder, an approved medical practitioner;

(b) otherwise, a medical practitioner who appears to the court to have special experience in the diagnosis or treatment of the disorder.

Effect of hospital directions

176

Where a court gives a hospital direction in respect of a person—

(a) a constable or any other person directed to do so by the court must take the person to the hospital specified in the direction;

(b) the managing authority of that hospital must—

(i) admit the person; and

(ii) detain him or her in accordance with Chapter 5; and

(c) any question whether the person may be given any treatment while detained in a hospital in pursuance of the direction is (subject to section 243) to be determined in the same way as if the person were not so detained.

Interim detention orders

177

(1) This section applies where—

(a) a person is convicted before the Crown Court of an offence punishable with imprisonment, other than an offence for which the sentence is fixed by law; or

(b) a person is convicted by a court of summary jurisdiction of an offence punishable on summary conviction with imprisonment.

(2) If the conditions in subsection (3) are met the court may, before—

(a) making a public protection order,

(b) passing a custodial sentence with a hospital direction, or

make an order which requires that the offender be admitted to a hospital specified in the order and detained there in accordance with section 178.

(3) The conditions are—

(a) that the court is satisfied on the required medical evidence—

(i) that there is an impairment of, or disturbance in the functioning of, the offender's mind or brain; and

(ii) that appropriate care or treatment is available for the offender in the hospital;

(b) that there is reason to suppose that the most suitable way of dealing with the case may be—

(i) to make a public protection order; or

(ii) to pass a custodial sentence and give a hospital direction;

(c) that the court is satisfied on the written or oral evidence of a person representing the managing authority of the hospital that arrangements have been made for the offender's detention in the hospital in pursuance of the order.

(4) The court may regard the condition in subsection (3)(b)as met only if—

(a) it considers that a custodial sentence is not, or may not be, appropriate but is satisfied on the required medical evidence that there is reason to suppose that the conditions in section 168(2)(c) and (d) may be met; or

(b) it considers that a custodial sentence is appropriate and is satisfied on the required medical evidence that there is reason to suppose that the condition in section 175(2)(b) may be met.

(5) In this section “the required medical evidence” means the written or oral evidence of at least two medical practitioners, including the oral evidence of an approved medical practitioner.

(6) In this Part “interim detention order” means an order under this section.

Effect of interim detention orders

178

(1) Where a court makes an interim detention order in respect of a person—

(a) a constable or any other person directed to do so by the court must take the person to the hospital specified in the order;

(b) the managing authority of the hospital must—

(i) admit the person; and

(ii) detain him or her in accordance with this section; and

(c) any question whether the person may be given any treatment while detained in pursuance of the order is (subject to section 243) to be determined in the same way as if the person were not so detained.

(2) An interim detention order—

(a) has effect for such period, not exceeding 12 weeks, as the court may specify when making the order; but

(b) subject to subsection (3), may be renewed for further periods of not more than 28 days at a time if it appears to the court on the written or oral evidence of the responsible medical practitioner that the continuation of the order is justified.

(3) An interim detention order may not continue in force for more than 6 months in total.

(4) Where an interim detention order has been made, the court must terminate the order if it—

(a) makes a public protection order in respect of the offender;

(b) passes a custodial sentence and gives a hospital direction in respect of the offender; or

(c) decides, after considering the written or oral evidence of the responsible medical practitioner, to pass a custodial sentence without a hospital direction or to deal with the offender in some other way.

(5) The power of renewing an interim detention order may be exercised without the offender's being brought before the court if the offender is represented by counsel, or a solicitor, who is given an opportunity of being heard.

(6) In the case of an offender who is subject to an interim detention order, the court may make a public protection order without the offender's being brought before the court if the offender is represented by counsel, or a solicitor, who is given an opportunity of being heard.

(7) If an offender absconds from a hospital in which he or she is liable to be detained under an interim detention order, or while being taken to or from such a hospital—

(a) the offender may be arrested without warrant by any constable;

(b) after being arrested, the offender must be brought as soon as practicable before the court that made the order; and

(c) on the offender's being brought before it, the court may terminate the interim detention order and deal with the offender in any way in which it could have done if no such order had been made.

CHAPTER 3 — DETENTION UNDER A PUBLIC PROTECTION ORDER WITHOUT RESTRICTIONS

Detention and discharge

Detention under a public protection order without restrictions

179

(1) This section applies where—

(a) a public protection order without restrictions is made in respect of a person under section 167; and

(b) the person is admitted in pursuance of the order to the establishment specified in the order.

(2) The person may be detained in that establishment for a period not exceeding 6 months beginning with the date of the order.

(3) Subsection (2) is subject to (in particular)—

(a) section 180 (discharge by responsible medical officer);

(b) sections 181 to 186 (extension of period for which person liable to be detained);

Discharge from detention by responsible medical practitioner

180

(1) A person who is for the time being liable to be detained under a public protection order without restrictions ceases to be so liable if the responsible medical practitioner (as defined by section 253) makes an order in writing discharging the person from being liable to be detained under the public protection order.

(2) Where—

(a) a person is liable to be detained under a public protection order without restrictions, and

(b) the responsible medical practitioner is satisfied that releasing the person from detention in an appropriate establishment would not create a substantial risk to others,

the responsible practitioner must make an order under subsection (1).

(3) For the purposes of subsection (2)(b) releasing the person from detention in an appropriate establishment would create a “substantial risk to others” if—

(a) it would create a risk, linked to an impairment of or disturbance in the functioning of the person's mind or brain, of serious physical or psychological harm to other persons; and

(b) the likelihood and seriousness of the harm concerned are such that detaining the person in an appropriate establishment in circumstances amounting to a deprivation of liberty is a proportionate response.

(4) A discharge of a person under this section does not prevent the person from being detained in circumstances amounting to a deprivation of liberty by virtue of Part 2 of this Act (or, if the person is under 16, Part 2 of the Mental Health Order), if the criteria that apply to such detention are met.

Extension of the period of an order

First extension of period of order

181

(1) This section applies where—

(a) a person is liable to be detained under a public protection order without restrictions; and

(b) the initial period of the order has not ended.

(2) The period of the order may be extended for a period of 6 months, beginning immediately after the end of the initial period, by the making of an extension report (see section 183).

(3) In this Chapter “the initial period” of a public protection order without restrictions means the period of 6 months beginning with the date of the order.

(4) In this Part “the period” of a public protection order without restrictions means the period for which the person to whom the order relates is liable to be detained under the order.

Subsequent extensions

182

(1) This section applies where—

(a) the period of a public protection order without restrictions has been extended for a period (“the current extension period”) under a relevant provision; and

(b) the person to whom the order relates remains liable to be detained under the order.

(2) The period of the order may be further extended, for a period of one year beginning immediately after the end of the current extension period, by the making of an extension report (see section 183).

(3) In subsection (1)(a) “relevant provision” means—

(a) section 181 (first extension);

(b) this section; or

Sections 181 and 182: extension reports

183

(1) This section applies for the purposes of sections 181 and 182.

(2) An “extension report”, in relation to a public protection order without restrictions made in respect of a person, is a report in the prescribed form which—

(a) is made, within the reporting period, by an appropriate medical practitioner who has examined the person within the reporting period and made the report as soon as practicable after that examination;

(b) states that in the appropriate medical practitioner's opinion the criteria for continuation are met (see section 185);

(c) includes a statement in the prescribed form, by the responsible social worker, that in the social worker's opinion the criteria for continuation are met; and

(d) includes any prescribed information.

(3) In this section—

“appropriate medical practitioner” means a medical practitioner who is unconnected with the person and is permitted by regulations under section 300 to make the report;

“the reporting period” means—in the case of an extension under section 181, the last month of the initial period;in the case of an extension under section 182, the last two months of the current extension period (within the meaning of that section).

“the responsible social worker” means the approved social worker who is in charge of the person's case.

Extension of period where responsible person not of the requisite opinion

184

Schedule6 provides a procedure for cases where it is proposed to make an extension under section 181 or 182 but the responsible social worker is not of the opinion that the criteria for continuation are met.

The criteria for continuation

185

(1) In this Chapter “the criteria for continuation”, in relation to a public protection order without restrictions made in respect of a person, has the meaning given by subsection (2).

(2) The criteria for continuation are—

(a) that there is an impairment of, or disturbance in the functioning of, the mind or brain of the person;

(b) that appropriate care or treatment is available for the person in the establishment concerned;

(c) that failure to detain the person in circumstances amounting to a deprivation of liberty in an appropriate establishment in which appropriate care or treatment is available for the person would create a risk, linked to the impairment or disturbance, of serious physical or psychological harm to other persons; and

(d) that detaining the person in the establishment concerned, in circumstances amounting to a deprivation of liberty, would be a proportionate response to—

(i) the likelihood of the harm concerned; and

(ii) the seriousness of that harm.

(3) In this section “the establishment concerned” means the establishment in which the person would be liable to be detained if the period of the order were extended.

Extension reports: further provision

186

(1) This section contains further provisions about extension reports (as defined by section 183).

Reading this document does not replace reading the official text published on legislation.gov.uk. Contains public sector information licensed under the Open Government Licence v3.0. We assume no responsibility for any inaccuracies arising from the conversion of the original CLML XML to this format.

This text is published under legislation.gov.uk's own terms of reuse, not a Legalize or public-domain licence. legislation.gov.uk
Open Government Licence v3.0 (attribution required)
© Crown and database right. Derived from content available under the Open Government Licence v3.0 from legislation.gov.uk.