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Mental Health Act 1983

Type Public General Act

Publication 1983-05-09

Last updated 2026-04-06

State In force

Department Statute Law Database

Source legislation.gov.uk

articles Not indexed

Reform history JSON API

(3) Sections 73 and 74 above shall not apply to an application under subsection (2) above , or any reference under subsection (2C) or (2E) but on any such application or reference the tribunal may—

(a) vary any condition to which the patient is subject in connection with his discharge or impose any condition which might have been imposed in connection therewith; or

(b) direct that the restriction order , limitation direction or restriction direction to which he is subject shall cease to have effect;

and if the tribunal gives a direction under paragraph (b) above the patient shall cease to be liable to be detained by virtue of the relevant hospital order , hospital direction or transfer direction.

(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.

General

Visiting and examination of patients

76

(1) For the purpose of advising whether an application to the appropriate tribunal should be made by or in respect of a patient who is liable to be detained or subject to guardianship . . . under Part II of this Act or a community patient, or of furnishing information as to the condition of a patient for the purposes of such an application, any registered medical practitioner or approved clinician authorised by or on behalf of the patient or other person who is entitled to make or has made the application—

(a) may at any reasonable time visit the patient and examine him in private, and

(b) may require the production of and inspect any records relating to the detention or treatment of the patient in any hospital or to any after-care services provided for the patient under section 117 below..

(2) Section 32 above shall apply for the purposes of this section as it applies for the purposes of Part II of this Act.

General provisions concerning tribunal applications

77

(1) No application shall be made to the appropriate tribunal by or in respect of a patient under this Act except in such cases and at such times as are expressly provided by this Act.

(2) Where under this Act any person is authorised to make an application to the appropriate tribunal within a specified period, not more than one such application shall be made by that person within that period but for that purpose there shall be disregarded any application which is withdrawn in accordance with Tribunal Procedure Rules or rules made under section 78 below.

(3) Subject to subsection (4) below an application to a tribunal authorised to be made by or in respect of a patient under this Act shall be made by notice in writing addressed

(a) in the case of a patient who is liable to be detained in a hospital, to the First-tier Tribunal where that hospital is in England and to the Mental Health Review Tribunal for Wales where that hospital is in Wales;

(b) in the case of a community patient, to the First-tier Tribunal where the responsible hospital is in England and to the Mental Health Review Tribunal for Wales where that hospital is in Wales;

(c) in the case of a patient subject to guardianship, to the First-tier Tribunal where the patient resides in England and to the Mental Health Review Tribunal for Wales where the patient resides in Wales.

(4) Any application under section 75(2) above shall be made to the First-tier Tribunal where the patient resides in England and to the Mental Health Review Tribunal for Wales where the patient resides in Wales.

Procedure of tribunals

78

(1) The Lord Chancellor may make rules with respect to the making of applications to the Mental Health Review Tribunal for Wales and with respect to the proceedings of that tribunal and matters incidental to or consequential on such proceedings.

(2) Rules made under this section may in particular make provision—

(a) for enabling the tribunal, or the President of the tribunal, to postpone the consideration of any application by or in respect of a patient, or of any such application of any specified class, until the expiration of such period (not exceeding 12 months) as may be specified in the rules from the date on which an application by or in respect of the same patient was last considered and determined under this Act by the tribunal or the First-tier Tribunal;

(b) for the transfer of proceedings to or from the Mental Health Review Tribunal for Wales in any case where, after the making of the application, the patient is moved into or out of Wales;

(c) for restricting the persons qualified to serve as members of the tribunal for the consideration of any application, or of an application of any specified class;

(d) for enabling the tribunal to dispose of an application without a formal hearing where such a hearing is not requested by the applicant or it appears to the tribunal that such a hearing would be detrimental to the health of the patient;

(e) for enabling the tribunal to exclude members of the public, or any specified class of members of the public, from any proceedings of the tribunal, or to prohibit the publication of reports of any such proceedings or the names of any persons concerned in such proceedings;

(f) for regulating the circumstances in which, and the persons by whom, applicants and patients in respect of whom applications are made to the tribunal may, if not desiring to conduct their own case, be represented for the purposes of those applications;

(g) for regulating the methods by which information relevant to an application may be obtained by or furnished to the tribunal, and in particular for authorising the members of the tribunal, or any one or more of them, to visit and interview in private any patient by or in respect of whom an application has been made;

(h) for making available to any applicant, and to any patient in respect of whom an application is made to the tribunal, copies of any documents obtained by or furnished to the tribunal in connection with the application, and a statement of the substance of any oral information so obtained or furnished except where the tribunal considers it undesirable in the interests of the patient or for other special reasons;

(i) for requiring the tribunal, if so requested in accordance with the rules, to furnish such statements of the reasons for any decision given by the tribunal as may be prescribed by the rules, subject to any provision made by the rules for withholding such a statement from a patient or any other person in cases where the tribunal considers that furnishing it would be undesirable in the interests of the patient or for other special reasons;

(j) for conferring on the tribunal such ancillary powers as the Lord Chancellor thinks necessary for the purposes of the exercise of its functions under this Act;

(k) for enabling any functions of the tribunal which relate to matters preliminary or incidental to an application to be performed by the President of the tribunal.

(3) Subsections (1) and (2) above apply in relation to references to the Mental Health Review Tribunal for Wales as they apply in relation to applications to that tribunal by or in respect of patients.

(4) Rules under this section may make provision as to the procedure to be adopted in cases concerning restricted patients and, in particular—

(a) for restricting the persons qualified to serve as chairman of the tribunal for the consideration of an application or reference relating to a restricted patient;

(b) for the transfer of proceedings to or from the tribunal in any case where, after the making of a reference or application in accordance with section 71(4) or 77(4) above, the patient begins or ceases to reside in Wales.

(5) Rules under this section may be so framed as to apply to all applications or references or to applications or references of any specified class and may make different provision in relation to different cases.

(6) Any functions conferred on the President of the Mental Health Review Tribunal for Wales by rules under this section may . . . be exercised by another member of that tribunal appointed by him for the purpose.

(7) The Mental Health Review Tribunal for Wales may pay allowances in respect of travelling expenses, subsistence and loss of earnings to any person attending the tribunal as an applicant or witness, to the patient who is the subject of the proceedings if he attends otherwise than as the applicant or a witness and to any person (other than an authorised person (within the meaning of Part 3)) who attends as the representative of an applicant.

(8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(9) Part I of the Arbitration Act 1996 shall not apply to any proceedings before the Mental Health Review Tribunal for Wales except so far as any provisions of that Act may be applied, with or without modifications, by rules made under this section.

Interpretation of Part V

79

(1) In this Part of this Act “restricted patient” means a patient who is subject to a restriction order , limitation directionor restriction direction and this Part of this Act shall, subject to the provisions of this section, have effect in relation to any person who—

(a) is treated by virtue of any enactment as subject to a hospital order and a restriction order; or

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

(c) is treated as subject to a hospital order and a restriction order, or to a hospital direction and a limitation direction, or to a transfer direction and a restriction direction, by virtue of any provision of Part 6 of this Act (except section 80D(3), 82A(2) or 85A(2) below),

as it has effect in relation to a restricted patient.

(2) Subject to the following provisions of this section, in this Part of this Act “the relevant hospital order”, “the relevant hospital direction”and “the relevant transfer direction”, in relation to a restricted patient, mean the hospital order , the hospital directionor transfer direction by virtue of which he is liable to be detained in a hospital.

(3) In the case of a person within paragraph (a) of subsection (1) above, references in this Part of this Act to the relevant hospital order or restriction order shall be construed as references to the direction referred to in that paragraph.

(4) In the case of a person within paragraph (b) of subsection (1) above, references in this Part of this Act to the relevant hospital order or restriction order shall be construed as references to the order under the provisions mentioned in that paragraph.

(5) In the case of a person within paragraph (c) of subsection (1) above, references in this Part of this Act to the relevant hospital order, the relevant hospital direction, the relevant transfer direction, the restriction order , the limitation direction or the restriction direction or to a transfer direction under section 48 above shall be construed as references to the hospital order, hospital direction, transfer direction, restriction order, limitation direction, restriction direction or transfer direction under that section to which that person is treated as subject by virtue of the provisions mentioned in that paragraph.

(5A) Section 75 above shall, subject to the modifications in subsection (5C) below, have effect in relation to a qualifying patient as it has effect in relation to a restricted patient who is conditionally discharged under section 42(2), 73 or 74 above.

(5B) A patient is a qualifying patient if he is treated by virtue of section 80D(3), 82A(2) or 85A(2) below as if he had been conditionally discharged and were subject to a hospital order and a restriction order, or to a hospital direction and a limitation direction, or to a transfer direction and a restriction direction.

(5C) The modifications mentioned in subsection (5A) above are—

(a) references to the relevant hospital order, hospital direction or transfer direction, or to the restriction order, limitation direction or restriction direction to which the patient is subject, shall be construed as references to the hospital order, hospital direction or transfer direction, or restriction order, limitation direction or restriction direction, to which the patient is treated as subject by virtue of section 80D(3), 82A(2) or 85A(2) below; and

(b) the reference to the date on which the patient was conditionally discharged shall be construed as a reference to the date on which he was treated as conditionally discharged by virtue of a provision mentioned in paragraph (a) above.

(6) In this Part of this Act, unless the context otherwise requires, “hospital” means a hospital , and “the responsible clinician” means the responsible clinician, within the meaning of Part II of this Act.

(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Part VI — Removal and Return of Patients Within United Kingdom, etc.

Removal to and from Scotland

Removal of patients to Scotland

80

(1) If it appears to the Secretary of State, in the case of a patient who is for the time being liable to be detained . . . under this Act (otherwise than by virtue of section 35, 36 or 38 above), that it is in the interests of the patient to remove him to Scotland, and that arrangements have been made for admitting him to a hospital . . . there, or, where he is not to be admitted to a hospital, for his detention in hospital to be authorised by virtue of the Mental Health (Care and Treatment)(Scotland) Act 2003 or the Criminal Procedure (Scotland) Act 1995 the Secretary of State may authorise his removal to Scotland and may give any necessary directions for his conveyance to his destination.

(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(6) Where a person removed under this section was immediately before his removal subject to a restriction order or restriction direction of limited duration, the restriction order or restriction direction . . . shall expire on the date on which the first-mentioned order or direction would have expired if he had not been so removed.

(7) In this section “hospital” has the same meaning as in the Mental Health (Care and Treatment)(Scotland) Act 2003 .

(8) Reference in this section to a patient's detention in hospital being authorised by virtue of the Mental Health (Care and Treatment)(Scotland) Act 2003 or the Criminal Procedure (Scotland) Act 1995 shall be read as including references to a patient in respect of whom a certificate under one of the provisions listed in section 290(7)(a) of the Act of 2003 is in operation.

Removal to and from Northern Ireland

Removal of patients to Northern Ireland

81

(1) If it appears to the Secretary of State, in the case of a patient who is for the time being liable to be detained or subject to guardianship under this Act (otherwise than by virtue of section 35, 36 or 38 above), that it is in the interests of the patient to remove him to Northern Ireland, and that arrangements have been made for admitting him to a hospital or, as the case may be, for receiving him into guardianship there, the Secretary of State may authorise his removal to Northern Ireland and may give any necessary directions for his conveyance to his destination.

(2) Subject to the provisions of subsections (4) and (5) below, where a patient liable to be detained under this Act by virtue of an application, order or direction under any enactment in force in England and Wales is removed under this section and admitted to a hospital in Northern Ireland, he shall be treated as if on the date of his admission he had been so admitted in pursuance of an application made, or an order or direction made or given, on that date under the corresponding enactment in force in Northern Ireland, and, where he is subject to a hospital order and a restriction order or a transfer direction and a restriction direction under any enactment in this Act, as if he were subject to a hospital order and a restriction order or a transfer direction and a restriction direction under the corresponding enactment in force in Northern Ireland.

(3) Where a patient subject to guardianship under this Act by virtue of an application, order or direction under any enactment in force in England and Wales is removed under this section and received into guardianship in Northern Ireland, he shall be treated as if on the date on which he arrives at the place where he is to reside he had been so received in pursuance of an application, order or direction under the corresponding enactment in force in Northern Ireland, and as if the application had been accepted or, as the case may be, the order or direction had been made or given on that date.

(4) Where a person removed under this section was immediately before his removal liable to be detained by virtue of an application for admission for assessment under this Act, he shall, on his admission to a hospital in Northern Ireland, be treated as if he had been admitted to the hospital in pursuance of an application for assessment under Article 4 of the Mental Health (Northern Ireland) Order 1986 made on the date of his admission.

(5) Where a person removed under this section was immediately before his removal liable to be detained by virtue of an application for admission for treatment under this Act, he shall, on his admission to a hospital in Northern Ireland, be treated as if he were detained for treatment under Part II of the Mental Health (Northern Ireland) Order 1986 by virtue of a report under Article 12(1) of that Order made on the date of his admission

(6) Where a patient removed under this section was immediately before his removal liable to be detained under this Act by virtue of a transfer direction given while he was serving a sentence of imprisonment (within the meaning of section 47(5) above) imposed by a court in England and Wales, he shall be treated as if the sentence had been imposed by a court in Northern Ireland.

(7) Where a person removed under this section was immediately before his removal subject to a . . . restriction direction of limited duration, the . . . restriction direction to which he is subject by virtue of subsection (2) above shall expire on the date on which the first-mentioned . . . restriction direction would have expired if he had not been so removed.

(8) In this section “hospital” has the same meaning as in the Mental Health (Northern Ireland) Order 1986.

Removal to England and Wales of patients from Northern Ireland

82

(1) If it appears to the responsible authority, in the case of a patient who is for the time being liable to be detained or subject to guardianship under the Mental Health (Northern Ireland) Order 1986 (otherwise than by virtue of Article 42, 43 or 45 of that Order), that it is in the interests of the patient to remove him to England and Wales, and that arrangements have been made for admitting him to a hospital or, as the case may be, for receiving him into guardianship there, the responsible authority may authorise his removal to England and Wales and may give any necessary directions for his conveyance to his destination.

(2) Subject to the provisions of subsections (4) and (4A) below, where a patient who is liable to be detained under the Mental Health (Northern Ireland) Order 1986 by virtue of an application, order or direction under any enactment in force in Northern Ireland is removed under this section and admitted to a hospital in England and Wales, he shall be treated as if on the date of his admission he had been so admitted in pursuance of an application made, or an order or direction made or given, on that date under the corresponding enactment in force in England and Wales and, where he is subject to a hospital order and a restriction order or a transfer direction and a restriction direction under any enactment in that Order, as if he were subject to a hospital order and a restriction order or a transfer direction and a restriction direction under the corresponding enactment in force in England and Wales..

(3) Where a patient subject to guardianship under the Mental Health (Northern Ireland) Order 1986 by virtue of an application, order or direction under any enactment in force in Northern Ireland is removed under this section and received into guardianship in England and Wales, he shall be treated as if on the date on which he arrives at the place where he is to reside he had been so received in pursuance of an application, order or direction under the corresponding enactment in force in England and Wales and as if the application had been accepted or, as the case may be, the order or direction had been made or given on that date.

(4) Where a person removed under this section was immediately before his removal liable to be detained for treatment by virtue of a report under Article 12(1) or 13 of the Mental Health (Northern Ireland) Order 1986, he shall be treated, on his admission to a hospital in England and Wales, as if he had been admitted to the hospital in pursuance of an application for admission for treatment made on the date of his admission.

(4A) Where a person removed under this section was immediately before his removal liable to be detained by virtue of an application for assessment under Article 4 of the Mental Health (Northern Ireland) Order 1986, he shall be treated, on his admission to a hospital in England and Wales, as if he had been admitted to the hospital in pursuance of an application for admission for assessment made on the date of his admission.

(5) Where a patient removed under this section was immediately before his removal liable to be detained under the Mental Health (Northern Ireland) Order 1986 by virtue of a transfer direction given while he was serving a sentence of imprisonment (within the meaning of Article 53(5) of that Order ) imposed by a court in Northern Ireland, he shall be treated as if the sentence had been imposed by a court in England and Wales.

(6) Where a person removed under this section was immediately before his removal subject to a restriction order or restriction direction of limited duration, the restriction order or restriction direction to which he is subject by virtue of subsection (2) above shall expire on the date on which the first-mentioned restriction order or restriction direction would have expired if he had not been so removed.

(7) In this section “the responsible authority” means the Department of Health and Social Services for Northern Ireland or, in relation to a patient who is subject to a restriction order or restriction direction, the Department of Justice in Northern Ireland.

Removal to and from Channel Islands and Isle of Man

Removal of patients to Channel Islands or Isle of Man

83

If it appears to the Secretary of State, in the case of a patient who is for the time being liable to be detained or subject to guardianship under this Act (otherwise than by virtue of section 35, 36 or 38 above), that it is in the interests of the patient to remove him to any of the Channel Islands or to the Isle of Man, and that arrangements have been made for admitting him to a hospital or, as the case may be, for receiving him into guardianship there, the Secretary of State may authorise his removal to the island in question and may give any necessary directions for his conveyance to his destination.

Removal to England and Wales of offenders found insane in Channel Islands and Isle of Man

84

(1) The Secretary of State may by warrant direct that any offender found by a court in any of the Channel Islands or in the Isle of Man to be insane or to have been insane at the time of the alleged offence, and ordered to be detained during Her Majesty’s pleasure, be removed to a hospital in England and Wales.

(2) A patient removed under subsection (1) above shall, on his reception into the hospital in England and Wales, be treated as if he were subject to a hospital order together with a restriction order . . . .

(3) The Secretary of State may by warrant direct that any patient removed under this section from any of the Channel Islands or from the Isle of Man be returned to the island from which he was so removed, there to be dealt with according to law in all respects as if he had not been removed under this section.

Patients removed from Channel Islands or Isle of Man

85

(1) This section applies to any patient who is removed to England and Wales from any of the Channel Islands or the Isle of Man under a provision corresponding to section 83 above and who immediately before his removal was liable to be detained or subject to guardianship in the island in question under a provision corresponding to an enactment contained in this Act (other than section 35, 36 or 38 above).

(2) Where the patient is admitted to a hospital in England and Wales he shall be treated as if on the date of his admission he had been so admitted in pursuance of an application made, or an order or direction made or given, on that date under the corresponding enactment contained in this Act and, where he is subject to an order or direction restricting his discharge, as if he were subject to a hospital order and a restriction order or to a hospital direction and a limitation direction or to a transfer direction and a restriction direction .

(3) Where the patient is received into guardianship in England and Wales, he shall be treated as if on the date on which he arrives at the place where he is to reside he had been so received in pursuance of an application, order or direction under the corresponding enactment contained in this Act and as if the application had been accepted or, as the case may be, the order or direction had been made or given on that date.

(4) Where the patient was immediately before his removal liable to be detained by virtue of a transfer direction given while he was serving a sentence of imprisonment imposed by a court in the island in question, he shall be treated as if the sentence had been imposed by a court in England and Wales.

(5) Where the patient was immediately before his removal subject to an order or direction restricting his discharge, being an order or direction of limited duration, the restriction order or restriction direction to which he is subject by virtue of subsection (2) above shall expire on the date on which the first-mentioned order or direction would have expired if he had not been removed.

(6) While being conveyed to the hospital referred to in subsection (2) or, as the case may be, the place referred to in subsection (3) above, the patient shall be deemed to be in legal custody, and section 138 below shall apply to him as if he were in legal custody by virtue of section 137 below.

(7) In the case of a patient removed from the Isle of Man the reference in subsection (4) above to a person serving a sentence of imprisonment includes a reference to a person detained as mentioned in section 60(6)(a) of the Mental Health Act 1974 (an Act of Tynwald).

Removal of aliens

Removal of alien patients

86

(1) This section applies to any patient who is neither a British citizen nor a Commonwealth citizen having the right of abode in the United Kingdom by virtue of section 2(1)(b) of the Immigration Act 1971, being a patient who is receiving treatment for mental disorder as an in-patient in a hospital in England and Wales or a hospital within the meaning of the Mental Health (Northern Ireland) Order 1986 and is detained pursuant to—

(a) an application for admission for treatment or a report under Article 12(1) or 13 of that Order;

(b) a hospital order under section 37 above or Article 44 of that Order; or

(c) an order or direction under this Act (other than under section 35, 36 or 38 above) or under that Order (other than under Article 42, 43 or 45 of that Order) .

(2) If it appears to the Secretary of State that proper arrangements have been made for the removal of a patient to whom this section applies to a country or territory outside the United Kingdom, the Isle of Man and the Channel Islands and for his care or treatment there and that it is in the interests of the patient to remove him, the Secretary of State may, subject to subsection (3) below—

(a) by warrant authorise the removal of the patient from the place where he is receiving treatment as mentioned in subsection (1) above, and

(b) give such directions as the Secretary of State thinks fit for the conveyance of the patient to his destination in that country or territory and for his detention in any place or on board any ship or aircraft until his arrival at any specified port or place in any such country or territory.

(3) The Secretary of State shall not exercise his powers under subsection (2) above in the case of any patient except with the approval of the appropriate tribunal or, as the case may be, of the Mental Health Review Tribunal for Northern Ireland.

(4) In relation to a patient receiving treatment in a hospital within the meaning of the Mental Health (Northern Ireland) Order 1986, the reference in subsection (1) above to mental disorder shall be construed in accordance with that Order and any reference in subsection (2) or (3) to the Secretary of State shall be construed as a reference to the Department of Justice in Northern Ireland.

Return of patients absent without leave

Patients absent from hospitals in Northern Ireland

87

(1) Any person who—

(a) under Article 29 or 132 of the Mental Health (Northern Ireland) Order 1986 (which provide, respectively, for the retaking of patients absent without leave and for the retaking of patients escaping from custody); or

(b) under the said Article 29 as applied by Article 31 of the said Order(which makes special provision as to persons sentenced to imprisonment),

may be taken into custody in Northern Ireland, may be taken into custody in, and returned to Northern Ireland from, England and Wales by an approved mental health professional , by any constable or by any person authorised by or by virtue of the said Order to take him into custody.

(2) This section does not apply to any person who is subject to guardianship.

Patients absent from hospitals in England and Wales

88

(1) Subject to the provisions of this section, any person who, under section 18 above or section 138 below or under the said section 18 as applied by section 22 above, may be taken into custody in England and Wales may be taken into custody in, and returned to England and Wales from, Northern Ireland.

(2) For the purposes of the enactments referred to in subsection (1) above in their application by virtue of this section, the expression “constable” includes an officer or constable of the Police Service of Northern Ireland.

(3) For the purposes of the said enactments in their application by virtue of this section to Scotland or Northern Ireland, any reference to an approved mental health professionalshall be construed as including a reference—

(a) in Scotland, to any mental health officer within the meaning of the Mental Health (Care and Treatment)(Scotland) Act 2003;

(b) in Northern Ireland, to any approved social worker within the meaning of the Mental Health (Northern Ireland) Order 1986.

(4) This section does not apply to any person who is subject to guardianship.

Patients absent from hospitals in the Channel Islands or Isle of Man

89

(1) Any person who under any provision corresponding to section 18 above or 138 below may be taken into custody in any of the Channel Islands or the Isle of Man may be taken into custody in, and returned to the island in question from, England and Wales by an approved mental health professional or a constable.

(2) This section does not apply to any person who is subject to guardianship.

General

Regulations for purposes of Part VI

90

Section 32 above shall have effect as if references in that section to Part II of this Act included references to this Part of this Act , so far as this Part of this Act applies to patients removed to England and Wales or for whom responsibility is transferred to England and Wales.

General provisions as to patients removed from England and Wales

91

(1) Subject to subsection (2) below, where a patient liable to be detained or subject to guardianship by virtue of an application, order or direction under Part II or III of this Act (other than section 35, 36 or 38 above) is removed from England and Wales in pursuance of arrangements under this Part of this Act, the application, order or direction shall cease to have effect when he is duly received into a hospital or other institution, or placed under guardianship or, where he is not received into a hospital but his detention in hospital is authorised by virtue of the Mental Health (Care and Treatment)(Scotland) Act 2003 or the Criminal Procedure (Scotland) Act 1995 , in pursuance of those arrangements.

(2) Where the Secretary of State exercises his powers under section 86(2) above in respect of a patient who is detained pursuant to a hospital order under section 37 above and in respect of whom a restriction order is in force, those orders shall continue in force so as to apply to the patient if he returns to England and Wales . . . .

(2A) Where responsibility for a community patient is transferred to a jurisdiction outside England and Wales (or such a patient is removed outside England and Wales) in pursuance of arrangements under this Part of this Act, the application, order or direction mentioned in subsection (1) above in force in respect of him shall cease to have effect on the date on which responsibility is so transferred (or he is so removed) in pursuance of those arrangements.

(3) Reference in this section to a patient's detention in hospital being authorised by virtue of the Mental Health (Care and Treatment)(Scotland) Act 2003 or the Criminal Procedure (Scotland) Act 1995 shall be read as including references to a patient in respect of whom a certificate under one of the provisions listed in section 290(7)(a) of the Act of 2003 is in operation.

Interpretation of Part VI

92

(1) References in this Part of this Act to a hospital, being a hospital in England and Wales, shall be construed as references to a hospital within the meaning of Part II of this Act.

(1A) References in this Part of this Act to the responsible clinician shall be construed as references to the responsible clinician within the meaning of Part 2 of this Act.

(2) Where a patient is treated by virtue of this Part of this Act as if he had been removed to a hospital in England and Wales in pursuance of a direction under Part III of this Act, that direction shall be deemed to have been given on the date of his reception into the hospital.

(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4) Sections 80 to 85A above shall have effect as if—

(a) any hospital direction under section 45A above were a transfer direction under section 47 above; and

(b) any limitation direction under section 45A above were a restriction direction under section 49 above.

(5) Sections 80(5), 81(6) and 85(4) above shall have effect as if any reference to a transfer direction given while a patient was serving a sentence of imprisonment imposed by a court included a reference to a hospital direction given by a court after imposing a sentence of imprisonment on a patient.

Part VII

Judicial authorities and Court of Protection

93

(1) The Lord Chief Justice shall, after consulting the Lord Chancellor, shall from time to time nominate one or more judges of the Supreme Court (in this Act referred to as “nominated judges”) to act for the purposes of this Part of this Act.

(2) There shall continue to be an office of the Supreme Court, called the Court of Protection, for the protection and management, as provided by this Part of this Act, of the property and affairs of persons under disability; and there shall continue to be a Master of the Court of Protection appointed by Her Majesty under section 89 of the Supreme Court Act 1981.

(3) The Master of the Court of Protection shall take the oath of allegiance and judicial oath in the presence of the Lord Chief Justice ; and the Promissory Oaths Act 1868 shall have effect as if the officers named in the Second Part of the Schedule to that Act included the Master of the Court of Protection.

(4) The Lord Chancellor may , with the concurrence of the Lord Chief Justice, nominate other officers of the Court of Protection (in this Part of this Act referred to as “nominated officers”) to act for the purposes of this Part of this Act.

(5) The Lord Chief Justice may nominate a judicial office holder (as defined in section 109(4) of the Constitutional Reform Act 2005) to exercise his functions under subsection (1), (3) or (4).

Exercise of judge's functions: " the patient "

94

(1) Subject to sub-section (1A) below the functions expressed to be conferred by this Part of this Act on the judge shall be exercisable . . . by any nominated judge, and shall also be exercisable by the Master of the Court of Protection ,by the Public Trustee or by any nominated officer, but—

(a) in the case of the Master the Public Trustee or any nominated officer, subject to any express provision to the contrary in this Part of this Act or any rules made under this Part of this Act,

(aa) in the case of the Public Trustee, subject to any directions of the Master and so far only as may be provided by any rules made under this Part of this Act or (subject to any such rules) by directions of the Master,

(b) in the case of any nominated officer, subject to any directions of the Master and so far only as may be provided by the instrument by which he is nominated;

and references in this Part of this Act to the judge shall be construed accordingly.

(1A) In such cases or circumstances as may be prescribed by any rules under this Part of this Act or (subject to any such rules) by directions of the Master, the functions of the judge under this Part of this Act shall be exercised by the Public Trustee (but subject to any directions of the Master as to their exercise)

(2) The functions of the judge under this Part of this Act shall be exercisable where, after considering medical evidence, he is satisfied that a person is incapable, by reason of mental disorder, of managing and administering his property and affairs; and a person as to whom the judge is so satisfied is referred to in this Part of this Act as a patient.

General functions of the judge with respect to property and affairs of patient

95

(1) The judge may, with respect to the property and affairs of a patient, do or secure the doing of all such things as appear necessary or expedient—

(a) for the maintenance or other benefit of the patient,

(b) for the maintenance or other benefit of members of the patient’s family,

(c) for making provision for other persons or purposes for whom or which the patient might be expected to provide if he were not mentally disordered, or

(d) otherwise for administering the patient’s affairs.

(2) In the exercise of the powers conferred by this section regard shall be had first of all to the requirements of the patient, and the rules of law which restricted the enforcement by a creditor of rights against property under the control of the judge in lunacy shall apply to property under the control of the judge; but, subject to the foregoing provisions of this subsection, the judge shall, in administering a patient’s affairs, have regard to the interests of creditors and also to the desirability of making provision for obligations of the patient notwithstanding that they may not be legally enforceable.

Powers of the judge as to patient's property and affairs

96

(1) Without prejudice to the generality of section 95 above, the judge shall have power to make such orders and give such directions and authorities as he thinks fit for the purposes of that section and in particular may for those purposes make orders or give directions or authorities for—

(a) the control (with or without the transfer or vesting of property or the payment into or lodgment in the Supreme Court of money or securities) and management of any property of the patient;

(b) the sale, exchange, charging or other disposition of or dealing with any property of the patient;

(d) the settlement of any property of the patient, or the gift of any property of the patient to any such persons or for any such purposes as are mentioned in paragraphs (b) and (c) of section 95(1) above;

(e) the execution for the patient of a will making any provision (whether by way of disposing of property or exercising a power or otherwise) which could be made by a will executed by the patient if he were not mentally disordered;

(f) the carrying on by a suitable person of any profession, trade or business of the patient;

(g) the dissolution of a partnership of which the patient is a member;

(h) the carrying out of any contract entered into by the patient;

(i) the conduct of legal proceedings in the name of the patient or on his behalf;

(j) the reimbursement out of the property of the patient, with or without interest, of money applied by any person either in payment of the patient’s debts (whether legally enforceable or not) or for the maintenance or other benefit of the patient or members of his family or in making provision for other persons or purposes for whom or which he might be expected to provide if he were not mentally disordered;

(k) the exercise of any power (including a power to consent) vested in the patient, whether beneficially, or as guardian or trustee, or otherwise.

(2) If under subsection (1) above provision is made for the settlement of any property of a patient, or the exercise of a power vested in a patient of appointing trustees or retiring from a trust, the judge may also make as respects the property settled or trust property such consequential vesting or other orders as the case may require, including (in the case of the exercise of such a power) any order which could have been made in such a case under Part IV of the Trustee Act 1925.

(3) Where under this section a settlement has been made of any property of a patient, and . . . a nominated judge is satisfied, at any time before the death of the patient, that any material fact was not disclosed when the settlement was made, or that there has been any substantial change in circumstances, he may by order vary the settlement in such manner as he thinks fit, and give any consequential directions.

(4) The power of the judge to make or give an order, direction or authority for the execution of a will for a patient—

(a) shall not be exercisable at any time when the patient is a minor, and

(b) shall not be exercised unless the judge has reason to believe that the patient is incapable of making a valid will for himself.

(5) The powers of a patient as patron of a benefice shall be exercisable by the Lord Chancellor only.

Supplementary provisions as to wills executed under s. 96

97

(1) Where under section 96(1) above the judge makes or gives an order, direction or authority requiring or authorising a person (in this section referred to as “the authorised person”) to execute a will for a patient, any will executed in pursuance of that order, direction or authority shall be expressed to be signed by the patient acting by the authorised person, and shall be—

(a) signed by the authorised person with the name of the patient, and with his own name, in the presence of two or more witnesses present at the same time, and

(b) attested and subscribed by those witnesses in the presence of the authorised person, and

(2) The Wills Act 1837 shall have effect in relation to any such will as if it were signed by the patient by his own hand, except that in relation to any such will—

(a) section 9 of that Act (which makes provision as to the signing and attestation of wills) shall not apply, and

(b) in the subsequent provisions of that Act any reference to execution in the manner required by the previous provisions of that Act shall be construed as a reference to execution in the manner required by subsection (1) above.

(3) Subject to the following provisions of this section, any such will executed in accordance with subsection (1) above shall have the same effect for all purposes as if the patient were capable of making a valid will and the will had been executed by him in the manner required by the Wills Act 1837.

(4) So much of subsection (3) above as provides for such a will to have effect as if the patient were capable of making a valid will—

(a) shall not have effect in relation to such a will in so far as it disposes of any immovable property, other than immovable property in England or Wales, and

(b) where at the time when such a will is executed the patient is domiciled in Scotland or Northern Ireland or in a country or territory outside the United Kingdom, shall not have effect in relation to that will in so far as it relates to any other property or matter, except any property or matter in respect of which, under the law of his domicile, any question of his testamentary capacity would fall to be determined in accordance with the law of England and Wales.

Judge's powers in cases of emergency

98

Where it is represented to the judge, and he has reason to believe, that a person may be incapable, by reason of mental disorder, of managing and administering his property and affairs, and the judge is of the opinion that it is necessary to make immediate provision for any of the matters referred to in section 95 above, then pending the determination of the question whether that person is so incapable the judge may exercise in relation to the property and affairs of that person any of the powers conferred on him in relation to the property and affairs of a patient by this Part of this Act so far as is requisite for enabling that provision to be made.

Power to appoint receiver

99

(1) The judge may by order appoint as receiver for a patient a person specified in the order or the holder for the time being of an office so specified.

(2) A person appointed as receiver for a patient shall do all such things in relation to the property and affairs of the patient as the judge, in the exercise of the powers conferred on him by sections 95 and 96 above, orders or directs him to do and may do any such thing in relation to the property and affairs of the patient as the judge, in the exercise of those powers, authorises him to do.

(3) A receiver appointed for any person shall be discharged by order of the judge on the judge being satisfied that that person has become capable of managing and administering his property and affairs, and may be discharged by order of the judge at any time if the judge considers it expedient to do so; and a receiver shall be discharged (without any order) on the death of the patient.

Vesting of stock in curator appointed outside England and Wales

100

(1) Where the judge is satisfied—

(a) that under the law prevailing in a place outside England and Wales a person has been appointed to exercise powers with respect to the property or affairs of any other person on the ground (however formulated) that that other person is incapable, by reason of mental disorder, of managing and administering his property and affairs, and

(b) that having regard to the nature of the appointment and to the circumstances of the case it is expedient that the judge should exercise his powers under this section,

the judge may direct any stock standing in the name of the said other person or the right to receive the dividends from the stock to be transferred into the name of the person so appointed or otherwise dealt with as requested by that person, and may give such directions as the judge thinks fit for dealing with accrued dividends from the stock.

(2) In this section “stock” includes shares and also any fund, annuity or security transferable in the books kept by any body corporate or unincorporated company or society, or by an instrument of transfer either alone or accompanied by other formalities, and “dividends” shall be construed accordingly.

Preservation of interests in patient's property

101

(1) Where any property of a person has been disposed of under this Part of this Act, and under his will or his intestacy, or by any gift perfected or nomination taking effect on his death, any other person would have taken an interest in the property but for the disposal—

(a) he shall take the same interest, if and so far as circumstances allow, in any property belonging to the estate of the deceased which represents the property disposed of; and

(b) if the property disposed of was real property any property representing it shall so long as it remains part of his estate be treated as if it were real property.

(2) The judge, in ordering, directing or authorising under this Part of this Act any disposal of property which apart from this section would result in the conversion of personal property into real property, may direct that the property representing the property disposed of shall, so long as it remains the property of the patient or forms part of his estate, be treated as if it were personal property.

(3) References in subsections (1) and (2) above to the disposal of property are references to—

(a) the sale, exchange, charging or other dealing (otherwise than by will) with property other than money,

(b) the removal of property from one place to another,

(d) the transfer of money from one account to another;

and references to property representing property disposed of shall be construed accordingly and as including the result of successive disposals.

(4) The judge may give such directions as appear to him necessary or expedient for the purpose of facilitating the operation of subsection (1) above, including the carrying of money to a separate account and the transfer of property other than money.

(5) Where the judge has ordered, directed or authorised the expenditure of money for the carrying out of permanent improvements on, or otherwise for the permanent benefit of, any property of the patient, he may order that the whole or any part of the money expended or to be expended shall be a charge upon the property, whether without interest or with interest at a specified rate; and an order under this subsection may provide for excluding or restricting the operation of subsection (1) above.

(6) A charge under subsection (5) above may be made in favour of such person as may be just, and in particular, where the money charged is paid out of the patient’s general estate, may be made in favour of a person as trustee for the patient; but no charge under that subsection shall confer any right of sale or foreclosure during the lifetime of the patient.

Lord Chancellor's Visitors

102

(1) There shall continue to be the following panels of Lord Chancellor’s Visitors of patients constituted in accordance with this section, namely—

(a) a panel of Medical Visitors;

(b) a panel of Legal Visitors; and

(c) a panel of General Visitors (being Visitors who are not required by this section to possess either a medical or legal qualification for appointment).

(2) Each panel shall consist of persons appointed to it by the Lord Chancellor, the appointment of each person being for such term and subject to such conditions as the Lord Chancellor may determine.

(3) A person shall not be qualified to be appointed—

(a) to the panel of Medical Visitors unless he is a registered medical practitioner who appears to the Lord Chancellor to have special knowledge and experience of cases of mental disorder;

(b) to the panel of Legal Visitors unless he has a 10 year general qualification, within the meaning of section 71 of the Courts and Legal Services Act 1990.

(4) If the Lord Chancellor so determines in the case of any Visitor appointed under this section, he shall be paid out of money provided by Parliament such remuneration and allowances as the Lord Chancellor may, with the concurrence of the Treasury, determine.

Functions of Visitors

103

(1) Patients shall be visited by Lord Chancellor’s Visitors in such circumstances, and in such manner, as may be prescribed by directions of a standing nature given by the Master of the Court of Protection with the concurrence of the Lord Chancellor.

(2) Where it appears to the judge in the case of any patient that a visit by a Lord Chancellor’s Visitor is necessary for the purpose of investigating any particular matter or matters relating to the capacity of the patient to manage and administer his property and affairs, or otherwise relating to the exercise in relation to him of the functions of the judge under this Part of this Act, the judge may order that the patient shall be visited for that purpose.

(3) Every visit falling to be made under subsection (1) or (2) above shall be made by a General Visitor unless, in a case where it appears to the judge that it is in the circumstances essential for the visit to be made by a Visitor with medical or legal qualifications, the judge directs that the visit shall be made by a Medical or a Legal Visitor.

(4) A Visitor making a visit under this section shall make such report on the visit as the judge may direct.

(5) A Visitor making a visit under this section may interview the patient in private.

(6) A Medical Visitor making a visit under this section may carry out in private a medical examination of the patient and may require the production of and inspect any medical records relating to the patient.

(7) The Master of the Court of Protection may visit any patient for the purpose mentioned in subsection (2) above and may interview the patient in private.

(8) A report made by a Visitor under this section, and information contained in such a report, shall not be disclosed except to the judge and any person authorised by the judge to receive the disclosure.

(9) If any person discloses any report or information in contravention of subsection (8) above, he shall be guilty of an offence and liable on summary conviction to imprisonment for a term not exceeding three months or to a fine not exceeding level 3 on the standard scale or both.

(10) In this section references to patients include references to persons alleged to be incapable, by reason of mental disorder, of managing and administering their property and affairs.

General powers of the judge with respect to proceedings

104

(1) For the purposes of any proceedings before him with respect to persons suffering or alleged to be suffering from mental disorder, the judge shall have the same powers as are vested in the High Court in respect of securing the attendance of witnesses and the production of documents.

(2) Subject to the provisions of this section, any act or omission in the course of such proceedings which, if occurring in the course of proceedings in the High Court would have been a contempt of the Court, shall be punishable by the judge in any manner in which it could have been punished by the High Court.

(3) Subsection (2) above shall not authorise the Master, or any other officer of the Court of Protection to exercise any power of attachment or committal, but the Master or officer may certify any such act or omission to . . . a nominated judge, and . . . judge may upon such certification inquire into the alleged act or omission and take any such action in relation to it as he could have taken if the proceedings had been before him.

(4) Subsections (1) to (4) of section 36 of the Supreme Court Act 1981 (which provides a special procedure for the issue of writs of subpoena ad testificandum and duces tecum so as to be enforceable throughout the United Kingdom) shall apply in relation to proceedings under this Part of this Act with the substitution for references to the High Court of references to the judge and for references to such writs of references to such document as may be prescribed by rules under this Part of this Act for issue by the judge for securing the attendance of witnesses or the production of documents.

Appeals

105

(1) Subject to and in accordance with rules under this Part of this Act, an appeal shall lie to a nominated judge from any decision of the Master of the Court of Protection or any nominated officer.

(2) The Court of Appeal shall continue to have the same jurisdiction as to appeals from any decision of the Lord Chancellor or from any decision of a nominated judge, whether given in the exercise of his original jurisdiction or on the hearing of an appeal under subsection (1) above, as they had immediately before the coming into operation of Part VIII of the Mental Health Act 1959 as to appeals . . . any other person having jurisdiction in lunacy.

Rules of procedure

106

(1) Proceedings before the judge with respect to persons suffering or alleged to be suffering from mental disorder (in this section referred to as “proceedings”) shall be conducted in accordance with the provisions of rules made under this Part of this Act.

(2) Rules under this Part of this Act may make provision as to—

(a) the carrying out of preliminary or incidental inquiries;

(b) the persons by whom and manner in which proceedings may be instituted and carried on;

(d) the evidence which may be authorised or required to be given in proceedings and the manner (whether on oath or otherwise and whether orally or in writing) in which it is to be given;

(e) the administration of oaths and taking of affidavits for the purposes of proceedings; and

(f) the enforcement of orders made and directions given in proceedings.

(3) Without prejudice to the provisions of section 104(1) above, rules under this Part of this Act may make provision for authorising or requiring the attendance and examination of persons suffering or alleged to be suffering from mental disorder, the furnishing of information and the production of documents.

(4) Rules under this Part of this Act may make provision as to the termination of proceedings, whether on the death or recovery of the person to whom the proceedings relate or otherwise, and for the exercise, pending the termination of the proceedings, of powers exercisable under this Part of this Act in relation to the property or affairs of a patient.

(5) Rules under this Part of this Act made with the consent of the Treasury may—

(a) make provision as to the scale of costs, fees and percentages payable in relation to proceedings, and as to the manner in which and funds out of which such costs, fees and percentages are to be paid;

(b) contain provision for charging any percentage upon the estate of the person to whom the proceedings relate and for the payment of costs, fees and percentages within such time after the death of the person to whom the proceedings relate or the termination of the proceedings as may be provided by the rules; and

(6) A charge upon the estate of a person created by virtue of subsection (5) above shall not cause any interest of that person in any property to fail or determine or to be prevented from recommencing.

(7) Rules under this Part of this Act may authorise the making of orders for the payment of costs to or by persons attending, as well as persons taking part in, proceedings.

Security and accounts

107

(1) Rules under this Part of this Act may make provision as to the giving of security by a receiver and as to the enforcement and discharge of the security.

(2) It shall be the duty of a receiver to render accounts in accordance with the requirements of rules under this Part of this Act, as well after his discharge as during his receivership; and rules under this Part of this Act may make provision for the rendering of accounts by persons other than receivers who are ordered, directed or authorised under this Part of this Act to carry out any transaction.

General provisions as to rules under Part VII

108

(1) Rules under section 106(5) are to be made by the Lord Chancellor after consulting the Lord Chief Justice.

(1A) Rules under any other provision of this Part of this Act are to be made in accordance with Part 1 of Schedule 1 to the Constitutional Reform Act 2005.

(2) Rules under this Part of this Act may contain such incidental and supplemental provisions as appear requisite for the purposes of the rules.

(3) The Lord Chief Justice may nominate a judicial office holder (as defined in section 109(4) of the Constitutional Reform Act 2005) to exercise his functions under this section.

Effect and proof of orders, etc.

109

(1) Section 204 of the Law of Property Act 1925 (by which orders of the High Court are made conclusive in favour of purchasers) shall apply in relation to orders made and directions and authorities given by the judge as it applies in relation to orders of the High Court.

(2) Office copies of orders made, directions or authorities given or other instruments issued by the judge and sealed with the official seal of the Court of Protection shall be admissible in all legal proceedings as evidence of the originals without any further proof.

Reciprocal arrangements in relation to Scotland and Northern Ireland as to exercise of powers

110

(1) This Part of this Act shall apply in relation to the property and affairs in Scotland or Northern Ireland of a patient in relation to whom powers have been exercised under this Part of this Act, or a person as to whom powers are exercisable and have been exercised under section 98 above as it applies in relation to his property and affairs in England and Wales unless—

(a) in Scotland, a. . . judicial factor has been appointed for him; or

(b) in Northern Ireland, he is a patient in relation to whom powers have been exercised under Part VIII of the Mental Health (Northern Ireland) Order 1986, or a person as to whom powers are exercisable and have been exercised under Article 97(2) of that Order.

(2) Where under the law in force in Scotland . . . with respect to the property and affairs of persons suffering from mental disorder a. . . judicial factor has been appointed for any person, the provisions of that law shall apply in relation to that person’s property and affairs in England and Wales unless he is a patient in relation to whom powers have been exercised under this Part of this Act, or a person as to whom powers are exercisable and have been exercised under section 98 above.

(2A) Part VIII of the Mental Health (Northern Ireland) Order 1986 shall apply in relation to the property and affairs in England and Wales of a patient in relation to whom powers have been exercised under that Part, or a person as to whom powers are exercisible and have been exercised under Article 97(2) of that Order as it applies in relation to his property and affairs in Northern Ireland unless he is a patient in relation to whom powers have been exercised under this Part of this Act, or a person as to whom powers are exercisable and have been exercised under section 98 above.

(3) Nothing in this section shall affect any power to execute a will under section 96(1)(e) above or Article 99(1)(e) of the Mental Health (Northern Ireland) Order 1986 or the effect of any will executed in the exercise of such a power.

(4) In this section references to property do not include references to land or interests in land but this subsection shall not prevent the receipt of rent or other income arising from land or interests in land.

Construction of references in other Acts to judge or authority having jurisdiction under Part VII

111

(1) The functions expressed to be conferred by any enactment not contained in this Part of this Act on the judge having jurisdiction under this Part of this Act shall be exercisable . . . by a nominated judge.

(2) Subject to subsection (3) and (3A) below, the functions expressed to be conferred by any such enactment on the authority having jurisdiction under this Part of this Act shall, subject to any express provision to the contrary, be exercisable by . . . a nominated judge, the Master of the Court of Protection or a nominated officer.

(2A) The exercise of the functions referred to in subsection (2) above by the Public Trustee shall be subject to any directions of the Master and they shall be excercisable so far only as may be provided by any rules made under this Part of this Act or (subject to any such rules) by directions of the Master.

(3) The exercise of the functions referred to in subsection (2) above by a nominated officer shall be subject to any directions of the Master and they shall be exercisable so far only as may be provided by the instrument by which the officer is nominated.

(3A) In such cases or circumstances as may be prescribed by any rules under this Part of this Act or (subject to any such rules) by directions of the Master, the functions referred to in subsection (2) above shall be exercised by the Public Trustee (but subject to any directions of the Master as to their exercise).

(4) Subject to the foregoing provisions of this section—

(a) references in any enactment not contained in this Part of this Act to the judge having jurisdiction under this Part of this Act shall be construed as references to . . . a nominated judge, and

(b) references in any such enactment to the authority having jurisdiction under this Part of this Act shall be construed as references to . . . a nominated judge, the Master of the Court of Protection or a nominated officer.

Interpretation of Part VII

112

In this Part of this Act, unless the context otherwise requires—

“nominated judge” means a judge nominated in pursuance of subsection (1) of section 93 above;

“nominated officer” means an officer nominated in pursuance of subsection (4) of that section;

“patient” has the meaning assigned to it by section 94 above;

“property” includes any thing in action, and any interest in real or personal property;

“the judge” shall be construed in accordance with section 94 above;

“will” includes a codicil.

Disapplication of certain enactments in relation to persons within the jurisdiction of the judge

113

The provisions of the Acts described in Schedule 3 to this Act which are specified in the third column of that Schedule, so far as they make special provision for persons suffering from mental disorder, shall not have effect in relation to patients and to persons as to whom powers are exercisable and have been exercised under section 98 above.

Part VIII — Miscellaneous Functions of Local Authorities and the Secretary of State

Approved mental health professionals

114

(1) A local social services authority may approve a person to act as an approved mental health professional for the purposes of this Act.

(2) But a local social services authority may not approve a registered medical practitioner to act as an approved mental health professional.

(3) Before approving a person under subsection (1) above, a local social services authority shall be satisfied that he has appropriate competence in dealing with persons who are suffering from mental disorder.

(4) The appropriate national authority may by regulations make provision in connection with the giving of approvals under subsection (1) above.

(5) The provision which may be made by regulations under subsection (4) above includes, in particular, provision as to—

(a) the period for which approvals under subsection (1) above have effect;

(b) the courses to be undertaken by persons before such approvals are to be given and during the period for which such approvals have effect;

(d) the factors to be taken into account in determining whether persons have appropriate competence as mentioned in subsection (3) above.

(6) Provision made by virtue of subsection (5)(b) above may relate to courses approved or provided by such person as may be specified in the regulations (as well as to courses approved under section 114ZA or 114A below).

(7) An approval by virtue of subsection (6) above may be in respect of a course in general or in respect of a course in relation to a particular person.

(8) The power to make regulations under subsection (4) above includes power to make different provision for different cases or areas.

(9) In this section “ the appropriate national authority ” means—

(a) in relation to persons who are or wish to become approved to act as approved mental health professionals by a local social services authority whose area is in England, the Secretary of State;

(b) in relation to persons who are or wish to become approved to act as approved mental health professionals by a local social services authority whose area is in Wales, the Welsh Ministers.

(10) In this Act “ approved mental health professional ” means—

(a) in relation to acting on behalf of a local social services authority whose area is in England, a person approved under subsection (1) above by any local social services authority whose area is in England, and

(b) in relation to acting on behalf of a local social services authority whose area is in Wales, a person approved under that subsection by any local social services authority whose area is in Wales.

Powers of entry and inspection

115

(1) An approved mental health professional may at all reasonable times enter and inspect any premises (other than a hospital) in which a mentally disordered patient is living, if he has reasonable cause to believe that the patient is not under proper care.

(2) The power under subsection (1) above shall be exercisable only after the professional has produced, if asked to do so, some duly authenticated document showing that he is an approved mental health professional.

Visiting patients

Welfare of certain hospital patients

116

(1) Where a patient to whom this section applies is admitted to a hospital independent hospital or care home in England and Wales (whether for treatment for mental disorder or for any other reason) then, without prejudice to their duties in relation to the patient apart from the provisions of this section, the authority shall arrange for visits to be made to him on behalf of the authority, and shall take such other steps in relation to the patient while in the hospital or nursing home as would be expected to be taken by his parents.

(2) This section applies to-

(a) a child or young person—

(i) who is in the care of a local authority by virtue of a care order within the meaning of the Children Act 1989, or

(ii) in respect of whom the rights and powers of a parent are vested in a local authority by virtue of section 16 of the Social Work (Scotland) Act 1968;

(b) a person who is subject to the guardianship of a local social services authority under the provisions of this Act . . . ; or

(c) a person the functions of whose nearest relative under this Act . . . are for the time being transferred to a local social services authority.

After-care

117

(1) This section applies to persons who are detained under section 3 above, or admitted to a hospital in pursuance of a hospital order made under section 37 above, or transferred to a hospital in pursuance of a hospital direction made under section 45A above or a transfer direction made under section 47 or 48 above, and then cease to be detained and (whether or not immediately after so ceasing) leave hospital.

(2) It shall be the duty of the integrated care board or ... Local Health Board and of the local social services authority to provide or arrange for the provision of, in co-operation with relevant voluntary agencies, after-care services for any person to whom this section applies until such time as the integrated care board or ... Local Health Board and the local social services authority are satisfied that the person concerned is no longer in need of such services ; but they shall not be so satisfied in the case of a community patient while he remains such a patient..

(2A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(2B) Section 32 above shall apply for the purposes of this section as it applies for the purposes of Part II of this Act.

(2C) References in this Act to after-care services provided for a patient under this section include references to services provided for the patient—

(a) in respect of which direct payments are made under —

(i) sections 31 to 33 of the Care Act 2014 (as applied by Schedule 4 to that Act),

(ii) Schedule A1 to the Social Services and Well-being (Wales) Act 2014 ..., ...

(iii) regulations under section 12A(4) of the National Health Service Act 2006, or

(iv) regulations under section 10B(6) of the National Health Service (Wales) Act 2006, and

(b) which would be provided under this section apart from those sections (as so applied) or the regulations otherwise be provided under this section.

(2D) Subsection (2), in its application to the integrated care board, has effect as if the words “provide or” were omitted.

(2E) The Secretary of State may by regulations provide that the duty imposed on the integrated care board by subsection (2) is, in the circumstances or to the extent prescribed by the regulations, to be imposed instead on another integrated care board or NHS England.

(2F) Where regulations under subsection (2E) provide that the duty imposed by subsection (2) is to be imposed on NHS England, subsection (2D) has effect as if the reference to the integrated care board were a reference to NHS England.

(2G) Section 272(7) and (8) of the National Health Service Act 2006 applies to the power to make regulations under subsection (2E) as it applies to a power to make regulations under that Act.

(3) In this section “the integrated care board or ... Local Health Board” means the integrated care board or ...Local Health Board, and “the local social services authority” means the local social services authority —

(a) if, immediately before being detained, the person concerned was ordinarily resident in England, for the area in England in which he was ordinarily resident;

(b) if, immediately before being detained, the person concerned was ordinarily resident in Wales, for the area in Wales in which he was ordinarily resident; or

(c) in any other case for the area in which the person concerned is resident or to which he is sent on discharge by the hospital in which he was detained.

(4) Where there is a dispute about where a person was ordinarily resident for the purposes of subsection (3) above—

(a) if the dispute is between local social services authorities in England, section 40 of the Care Act 2014 applies to the dispute as it applies to a dispute about where a person was ordinarily resident for the purposes of Part 1 of that Act;

(b) if the dispute is between local social services authorities in Wales, section 195 of the Social Services and Well-being (Wales) Act 2014 applies to the dispute as it applies to a dispute about where a person was ordinarily resident for the purposes of that Act;

(c) if the dispute is between a local social services authority in England and a local social services authority in Wales, it is to be determined by the Secretary of State or the Welsh Ministers.

(5) The Secretary of State and the Welsh Ministers shall make and publish arrangements for determining which of them is to determine a dispute under subsection (4)(c); and the arrangements may, in particular, provide for the dispute to be determined by whichever of them they agree is to do so.

(6) In this section, “after-care services”, in relation to a person, means services which have both of the following purposes—

(a) meeting a need arising from or related to the person's mental disorder; and

(b) reducing the risk of a deterioration of the person's mental condition (and, accordingly, reducing the risk of the person requiring admission to a hospital again for treatment for mental disorder).

Functions of the Secretary of State

Code of practice

118

(1) The Secretary of State shall prepare, and from time to time revise, a code of practice—

(a) for the guidance of registered medical practitioners , approved clinicians , managers and staff of hospitals , independent hospitals and care homes and approved mental health professionals in relation to the admission of patients to hospitals and registered establishments under this Act and to guardianship and community patients under this Act; and

(b) for the guidance of registered medical practitioners and members of other professions in relation to the medical treatment of patients suffering from mental disorder.

(1A) The Code which must be prepared, and from time to time revised, in relation to Wales shall also be for the guidance of independent mental health advocates appointed under arrangements made under section 130E below

(2) The code shall, in particular, specify forms of medical treatment in addition to any specified by regulations made for the purposes of section 57 above which in the opinion of the Secretary of State give rise to special concern and which should accordingly not be given by a registered medical practitioner unless the patient has consented to the treatment (or to a plan of treatment including that treatment) and a certificate in writing as to the matters mentioned in subsection (2)(a) and (b) of that section has been given by another registered medical practitioner, being a practitioner appointed for the purposes of this section by the regulatory authority.

(2A) The code shall include a statement of the principles which the Secretary of State thinks should inform decisions under this Act.

(2B) In preparing the statement of principles the Secretary of State shall, in particular, ensure that each of the following matters is addressed—

(a) respect for patients' past and present wishes and feelings,

(b) respect for diversity generally including, in particular, diversity of religion, culture and sexual orientation (within the meaning of section 35 of the Equality Act 2006),

(d) involvement of patients in planning, developing and delivering care and treatment appropriate to them,

(e) avoidance of unlawful discrimination,

(f) effectiveness of treatment,

(g) views of carers and other interested parties,

(h) patient wellbeing and safety, and

(i) public safety.

(2C) The Secretary of State shall also have regard to the desirability of ensuring—

(a) the efficient use of resources, and

(b) the equitable distribution of services.

(2D) In performing functions under this Act persons mentioned in subsection (1)(a) or (b) and subsection (1A) shall have regard to the code.

(3) Before preparing the code or making any alteration in it the Secretary of State shall consult such bodies as appear to him to be concerned.

(4) The Secretary of State shall lay copies of the code and of any alteration in the code before Parliament; and if either House of Parliament passes a resolution requiring the code or any alteration in it to be withdrawn the Secretary of State shall withdraw the code or alteration and, where he withdraws the code, shall prepare a code in substitution for the one which is withdrawn.

(5) No resolution shall be passed by either House of Parliament under subsection (4) above in respect of a code or alteration after the expiration of the period of 40 days beginning with the day on which a copy of the code or alteration was laid before that House; but for the purposes of this subsection no account shall be taken of any time during which Parliament is dissolved or prorogued or during which both Houses are adjourned for more than four days.

(6) The Secretary of State shall publish the code as for the time being in force.

(7) The Care Quality Commission may at any time make proposals to the Secretary of State as to the content of the code of practice which the Secretary of State must prepare, and from time to time revise, under this section in relation to England.

Practitioners approved for purposes of Part IV and s. 118

119

(1) The regulatory authority may make such provision as it may with the approval of the Treasury determine for the payment of remuneration, allowances, pensions or gratuities to or in respect of registered medical practitioners appointed by the authority for the purposes of Part IV of this Act and section 118 above and to or in respect of other persons appointed for the purposes of section 57(2)(a) above.

(2) A registered medical practitioner or other person appointed ... for the purposes of the provisions mentioned in subsection (1) above may, for the purpose of exercising his functions under those provisions or under Part 4A of this Act, at any reasonable time—

(a) visit and interview and, in the case of a registered medical practitioner, examine in private any patient detained in a hospital or registered establishment or any community patient in a hospital or regulated establishment (other than a hospital) or (if access is granted) other place; and

(b) require the production of and inspect any records relating to the treatment of the patient there.

(3) In this section “regulated establishment” means—

(a) an establishment in respect of which a person is registered under Part 2 of the Care Standards Act 2000; ...

(b) premises used for the carrying on of a regulated activity, within the meaning of Part 1 of the Health and Social Care Act 2008, in respect of which a person is registered under Chapter 2 of that Part ; or

(i) a care home service,

(ii) a secure accommodation service, or

(iii) a residential family centre service,

within the meaning of the Regulation and Inspection of Social Care (Wales) Act 2016 (anaw 2) is provided by a person registered under Part 1 of that Act.

General protection of detained patients

120

(1) The regulatory authority must keep under review and, where appropriate, investigate the exercise of the powers and the discharge of the duties conferred or imposed by this Act so far as relating to the detention of patients or their reception into guardianship or to relevant patients.

(2) Relevant patients are—

(a) patients liable to be detained under this Act,

(b) community patients, and

(3) The regulatory authority must make arrangements for persons authorised by it to visit and interview relevant patients in private—

(a) in the case of relevant patients detained under this Act, in the place where they are detained, and

(b) in the case of other relevant patients, in hospitals and regulated establishments and, if access is granted, other places.

(4) The regulatory authority must also make arrangements for persons authorised by it to investigate any complaint as to the exercise of the powers or the discharge of the duties conferred or imposed by this Act in respect of a patient who is or has been detained under this Act or who is or has been a relevant patient.

(5) The arrangements made under subsection (4)—

(a) may exclude matters from investigation in specified circumstances, and

(b) do not require any person exercising functions under the arrangements to undertake or continue with any investigation where the person does not consider it appropriate to do so.

(6) Where any such complaint as is mentioned in subsection (4) is made by a Member of Parliament or a member of the National Assembly for Wales, the results of the investigation must be reported to the Member of Parliament or member of the Assembly.

(7) For the purposes of a review or investigation under subsection (1) or the exercise of functions under arrangements made under this section, a person authorised by the regulatory authority may at any reasonable time—

(a) visit and interview in private any patient in a hospital or regulated establishment,

(b) if the authorised person is a registered medical practitioner or approved clinician, examine the patient in private there, and

(c) require the production of and inspect any records relating to the detention or treatment of any person who is or has been detained under this Act or who is or has been a community patient or a patient subject to guardianship.

(8) The regulatory authority may make provision for the payment of remuneration, allowances, pensions or gratuities to or in respect of persons exercising functions in relation to any review or investigation for which it is responsible under subsection (1) or functions under arrangements made by it under this section.

(9) In this section “regulated establishment” means—

(a) an establishment in respect of which a person is registered under Part 2 of the Care Standards Act 2000, ...

(b) premises used for the carrying on of a regulated activity (within the meaning of Part 1 of the Health and Social Care Act 2008) in respect of which a person is registered under Chapter 2 of that Part , or

(i) a care home service,

(ii) a secure accommodation service, or

(iii) a residential family centre service,

within the meaning of the Regulation and Inspection of Social Care (Wales) Act 2016 is provided by a person registered under Part 1 of that Act.

Mental Health Act Commission

121

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Provision of pocket money for in-patients in hospital

122

(1) Welsh Ministers may (in relation to Wales) pay to persons who are receiving treatment as in-patients (whether liable to be detained or not) in special hospitals or other hospitals, being hospitals wholly or mainly used for the treatment of persons suffering from mental disorder, such amounts as the Welsh Ministers think fit in respect of those persons' occasional personal expenses where it appears to the Welsh Ministers that those persons would otherwise be without resources to meet those expenses.

(2) For the purposes of ... the National Health Service (Wales) Act 2006 , the making of payments under this section to persons for whom hospital services are provided under that Act shall be treated as included among those services.

Transfers to and from special hospitals

123

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Default powers of Secretary of State

124

Inquiries

125

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Part IX — Offences

Forgery, false statements, etc.

126

(1) Any person who without lawful authority or excuse has in his custody or under his control any document to which this subsection applies, which is, and which he knows or believes to be, false within the meaning of Part I of the Forgery and Counterfeiting Act 1981, shall be guilty of an offence.

(2) Any person who without lawful authority or excuse makes or has in his custody or under his control, any document so closely resembling a document to which subsection (1) above applies as to be calculated to deceive shall be guilty of an offence.

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