Mental Health Act 1983

• (1) Where a patient is given treatment in accordance with section 57(2) , 58(3)(b) or 58A(4) or (5) above , or by virtue of section 62A below in accordance with a Part 4A certificate (within the meaning of that section) that falls within section 64C(4) below, a report on the treatment and the patient’s condition shall be given by the approved clinician in charge of the treatment to the regulatory authority—

• (a) on the next occasion on which the responsible clinician furnishes a report under section 20(3) , 20A(4) or 21B(2) above in respect of the patient; and

• (b) at any other time if so required by the regulatory authority.

• (2) In relation to a patient who is subject to a restriction order , limitation directionor restriction direction subsection (1) above shall have effect as if paragraph (a) required the report to be made—

• (a) in the case of treatment in the period of six months beginning with the date of the order or direction, at the end of that period;

• (b) in the case of treatment at any subsequent time, on the next occasion on which the responsible clinician makes a report in respect of the patient under section 41(6) , 45B(3) or 49(3) above.

• (3) The regulatory authority may at any time give notice . . . directing that, subject to section 62 below, a certificate given in respect of a patient under subsection 57(2) , 58(3)(b) or 58A(4) or (5) above shall not apply to treatment given to him (whether in England or Wales) after a date specified in the notice and sections 57 , 58 and 58A above shall then apply to any such treatment as if that certificate has not been given.

• (3A) The notice under subsection (3) above shall be given to the approved clinician in charge of the treatment.

Urgent treatment

62

• (1) Sections 57 and 58 above shall not apply to any treatment—

• (a) which is immediately necessary to save the patient’s life;

• (b) which (not being irreversible) is immediately necessary to prevent a serious deterioration of his condition; or

• (c) which (not being irreversible or hazardous) is immediately necessary to alleviate serious suffering by the patient; or

• (d) which (not being irreversible or hazardous) is immediately necessary and represents the minimum interference necessary to prevent the patient from behaving violently or being a danger to himself or to others.

• (1A) Section 58A above, in so far as it relates to electro-convulsive therapy by virtue of subsection (1)(a) of that section, shall not apply to any treatment which falls within paragraph (a) or (b) of subsection (1) above.

• (1B) Section 58A above, in so far as it relates to a form of treatment specified by virtue of subsection (1)(b) of that section, shall not apply to any treatment which falls within such of paragraphs (a) to (d) of subsection (1) above as may be specified in regulations under that section.

• (1C) For the purposes of subsection (1B) above, the regulations—

• (a) may make different provision for different cases (and may, in particular, make different provision for different forms of treatment);

• (b) may make provision which applies subject to specified exceptions; and

• (c) may include transitional, consequential, incidental or supplemental provision.

• (2) Sections 60 and 61(3) above shall not preclude the continuation of any treatment or of treatment under any plan pending compliance with section 57 , 58 or 58A above if the approved clinician in charge of the treatment considers that the discontinuance of the treatment or of treatment under the plan would cause serious suffering to the patient.

• (3) For the purposes of this section treatment is irreversible if it has unfavourable irreversible physical or psychological consequences and hazardous if it entails significant physical hazard.

Treatment not requiring consent

63

The consent of a patient shall not be required for any medical treatment given to him for the mental disorder from which he is suffering , not being a form of treatment to which section 57, 58 or 58A above applies, if the treatment is given by or under the direction of the approved clinician in charge of the treatment .

Supplementary provisions for Part IV

64

• (1) In this Part of this Act “the responsible clinician” means the approved clinician with overall responsibility for the case of the patient in question and “hospital” includes a registered establishment.

• (1A) References in this Part of this Act to the approved clinician in charge of a patient's treatment shall, where the treatment in question is a form of treatment to which section 57 above applies, be construed as references to the person in charge of the treatment.

• (1B) References in this Part of this Act to the approved clinician in charge of a patient's treatment shall, where the treatment in question is a form of treatment to which section 58A above applies and the patient falls within section 56(5) above, be construed as references to the person in charge of the treatment.

• (1C) Regulations made by virtue of section 32(2)(d) above apply for the purposes of this Part as they apply for the purposes of Part 2 of this Act.

• (2) Any certificate for the purposes of this Part of this Act shall be in such form as may be prescribed by regulations made by the Secretary of State.

• (3) For the purposes of this Part of this Act, it is appropriate for treatment to be given to a patient if the treatment is appropriate in his case, taking into account the nature and degree of the mental disorder from which he is suffering and all other circumstances of his case.

Part V — Mental Health Review Tribunals

Constitution etc.

Mental Health Review Tribunals

65

• (1) There shall be a Mental Health Review Tribunal for Wales.

• (1A) The purpose of that tribunal is to deal with applications and references by and in respect of patients under the provisions of this Act.

• (2) The provisions of Schedule 2 to this Act shall have effect with respect to the constitution of the Mental Health Review Tribunal for Wales.

• (3) Subject to the provisions of Schedule 2 to this Act, and to rules made by the Lord Chancellor under this Act, the jurisdiction of the Mental Health Review Tribunal for Wales may be exercised by any three or more of its members, and references in this Act to the Mental Health Review Tribunal for Wales shall be construed accordingly.

• (4) The Welsh Ministers may pay to the members of the Mental Health Review Tribunal for Wales such remuneration and allowances as they may determine, and defray the expenses of that tribunal to such amount as they may determine, and may provide for that tribunal such officers and servants, and such accommodation, as that tribunal may require.

Applications and references concerning Part II patients

Applications to tribunals

66

• (1) Where—

• (a) a patient is admitted to a hospital in pursuance of an application for admission for assessment; or

• (b) a patient is admitted to a hospital in pursuance of an application for admission for treatment; or

• (c) a patient is received into guardianship in pursuance of a guardianship application; or

• (ca) a community treatment order is made in respect of a patient; or

• (cb) a community treatment order is revoked under section 17F above in respect of a patient; or

• (d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (e) a patient is transferred from guardianship to a hospital in pursuance of regulations made under section 19 above; or

• (f) a report is furnished under section 20 above in respect of a patient and the patient is not discharged under section 23 above ; or

• (fza) a report is furnished under section 20A above in respect of a patient and the patient is not discharged under section 23 above; or

• (fa) a report is furnished under subsection (2) of section 21B above in respect of a patient and subsection (5) of that section applies (or subsections (5) and (6)(b) of that section apply) in the case of the report; or

• (faa) a report is furnished under subsection (2) of section 21B above in respect of a community patient and subsection (6A) of that section applies (or subsections (6A) and (6B)(b) of that section apply) in the case of the report; or

• (fb) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (g) a report is furnished under section 25 above in respect of a patient who is detained in pursuance of an application for admission for treatment or a community patient ; or

• (ga) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (gb) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (gc) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (h) an order is made under section 29 above on the ground specified in paragraph (c) or (d) of subsection (3) of that section in respect of a patient who is or subsequently becomes liable to be detained or subject to guardianship under Part II of this Act or who is a community patient ,

an application may be made to the appropriate tribunal within the relevant period—

• (i) by the patient (except in the cases mentioned in paragraphs (g) and (h) above . . .

• (ii) in the cases mentioned in paragraphs (g) and (h) above, by his nearest relative.

• (2) In subsection (1) above “the relevant period” means—

• (a) in the case mentioned in paragraph (a) of that subsection, 14 days beginning with the day on which the patient is admitted as so mentioned;

• (b) in the case mentioned in paragraph (b) of that subsection, six months beginning with the day on which the patient is admitted as so mentioned;

• (c) in the case mentioned in paragraph (c) of that subsection, six months beginning with the day on which the application is accepted;

• (ca) in the case mentioned in paragraph (ca) of that subsection, six months beginning with the day on which the community treatment order is made;

• (cb) in the case mentioned in paragraph (cb) of that subsection, six months beginning with the day on which the community treatment order is revoked;

• (d) in the case mentioned in paragraph (g). . . of that subsection, 28 days beginning with the day on which the applicant is informed that the report has been furnished;

• (e) in the case mentioned in paragraph (e) of that subsection, six months beginning with the day on which the patient is transferred;

• (f) in the case mentioned in paragraph (f) or (fa) of that subsection, the period or periods for which authority for the patient’s detention or guardianship is renewed by virtue of the report;

• (fza) in the cases mentioned in paragraphs (fza) and (faa) of that subsection, the period or periods for which the community treatment period is extended by virtue of the report;

• (fa) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (g) in the case mentioned in paragraph (h) of that subsection, 12 months beginning with the date of the order, and in any subsequent period of 12 months during which the order continues in force.

• (2A) Nothing in subsection (1)(b) above entitles a community patient to make an application by virtue of that provision even if he is admitted to a hospital on being recalled there under section 17E above.

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

• (4) In this Act “the appropriate tribunal” means the First-tier Tribunal or the Mental Health Review Tribunal for Wales.

• (5) For provision determining to which of those tribunals applications by or in respect of a patient under this Act shall be made, see section 77(3) and (4) below.

References to tribunals by Secretary of State concerning Part II patients

67

• (1) The Secretary of State may, if he thinks fit, at any time refer to the appropriate tribunal the case of any patient who is liable to be detained or subject to guardianship . . . under Part II of this Act or of any community patient .

• (2) For the purpose of furnishing information for the purposes of a reference under subsection (1) above any registered medical practitioner or approved clinician authorised by or on behalf of the patient may, at any reasonable time, visit the patient and examine him in private and 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.

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

Duty of managers of hospitals to refer cases to tribunal

68

• (1) This section applies in respect of the following patients—

• (a) a patient who is admitted to a hospital in pursuance of an application for admission for assessment;

• (b) a patient who is admitted to a hospital in pursuance of an application for admission for treatment;

• (c) a community patient;

• (d) a patient whose community treatment order is revoked under section 17F above;

• (e) a patient who is transferred from guardianship to a hospital in pursuance of regulations made under section 19 above.

• (2) On expiry of the period of six months beginning with the applicable day, the managers of the hospital shall refer the patient's case to the appropriate tribunal.

• (3) But they shall not do so if during that period—

• (a) any right has been exercised by or in respect of the patient by virtue of any of paragraphs (b), (ca), (cb), (e), (g) and (h) of section 66(1) above;

• (b) a reference has been made in respect of the patient under section 67(1) above, not being a reference made while the patient is or was liable to be detained in pursuance of an application for admission for assessment; or

• (c) a reference has been made in respect of the patient under subsection (7) below.

• (4) A person who applies to a tribunal but subsequently withdraws his application shall be treated for these purposes as not having exercised his right to apply, and if he withdraws his application on a date after expiry of the period mentioned in subsection (2) above, the managers shall refer the patient's case as soon as possible after that date.

• (5) In subsection (2) above, “the applicable day” means—

• (a) in the case of a patient who is admitted to a hospital in pursuance of an application for admission for assessment, the day on which the patient was so admitted;

• (b) in the case of a patient who is admitted to a hospital in pursuance of an application for admission for treatment—

• (i) the day on which the patient was so admitted; or

• (ii) if, when he was so admitted, he was already liable to be detained in pursuance of an application for admission for assessment, the day on which he was originally admitted in pursuance of the application for admission for assessment;

• (c) in the case of a community patient or a patient whose community treatment order is revoked under section 17F above, the day mentioned in sub-paragraph (i) or (ii), as the case may be, of paragraph (b) above;

• (d) in the case of a patient who is transferred from guardianship to a hospital, the day on which he was so transferred.

• (6) The managers of the hospital shall also refer the patient's case to the appropriate tribunal if a period of more than three years (or, if the patient has not attained the age of 18 years, one year) has elapsed since his case was last considered by such a tribunal, whether on his own application or otherwise.

• (7) If, in the case of a community patient, the community treatment order is revoked under section 17F above, the managers of the hospital shall also refer the patient's case to the appropriate tribunal as soon as possible after the order is revoked.

• (8) For the purposes of furnishing information for the purposes of a reference under this section, a registered medical practitioner or approved clinician authorised by or on behalf of the patient may at any reasonable time—

• (a) visit and examine the patient in private; and

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

• (9) Reference in this section to the managers of the hospital—

• (a) in relation to a community patient, is to the managers of the responsible hospital;

• (b) in relation to any other patient, is to the managers of the hospital in which he is liable to be detained.

Applications and references concerning Part III patients

Applications to tribunals concerning patients subject to hospital and guardianship orders

69

• (1) Without prejudice to any provision of section 66(1) above as applied by section 40(4) above, an application to the appropriate tribunal may also be made—

• (a) in respect of a patient liable to be detained in pursuance of a hospital order or a community patient who was so liable immediately before he became a community patient, by the nearest relative of the patient in any period in which an application may be made by the patient under any such provision as so applied;

• (b) in respect of a patient placed under guardianship by a guardianship order—

• (i) by the patient, within the period of six months beginning with the date of the order;

• (ii) by the nearest relative of the patient, within the period of 12 months beginning with the date of the order and in any subsequent period of 12 months.

• (2) Where a person detained in a hospital—

• (a) is treated as subject to a hospital order , hospital direction or transfer direction by virtue of section 41(5) above or section 80B(2), 82(2) or 85(2) below. ; or

• (b) is subject to a direction having the same effect as a hospital order by virtue of section. . . 47(3) or 48(3) above,

then, without prejudice to any provision of Part II of this Act as applied by section 40 above, that person may make an application to the appropriate tribunal in the period of six months beginning with the date of the order or direction mentioned in paragraph (a) above or, as the case may be, the date of the direction mentioned in paragraph (b) above.

• (3) The provisions of section 66 above as applied by section 40(4) above are subject to subsection (4) below.

• (4) If the initial detention period has not elapsed when the relevant application period begins, the right of a hospital order patient to make an application by virtue of paragraph (ca) or (cb) of section 66(1) above shall be exercisable only during whatever remains of the relevant application period after the initial detention period has elapsed.

• (5) In subsection (4) above—

• (a) “hospital order patient” means a patient who is subject to a hospital order, excluding a patient of a kind mentioned in paragraph (a) or (b) of subsection (2) above;

• (b) “the initial detention period”, in relation to a hospital order patient, means the period of six months beginning with the date of the hospital order; and

• (c) “the relevant application period” means the relevant period mentioned in paragraph (ca) or (cb), as the case may be, of section 66(2) above.

Applications to tribunals concerning restricted patients

70

A patient who is a restricted patient within the meaning of section 79 below and is detained in a hospital may apply to the appropriate tribunal—

• (a) in the period between the expiration of six months and the expiration of 12 months beginning with the date of the relevant hospital order , hospital direction or transfer direction; and

• (b) in any subsequent period of 12 months.

References by Secretary of State concerning restricted patients

71

• (1) The Secretary of State may at any time refer the case of a restricted patient to the appropriate tribunal.

• (2) The Secretary of State shall refer to the appropriate tribunal the case of any restricted patient detained in a hospital whose case has not been considered by such a tribunal, whether on his own application or otherwise, within the last three years.

• (3) The Secretary of State may by order vary the length of the period mentioned in subsection (2) above.

• (3A) An order under subsection (3) above may make—

• (a) provision subject to specified exceptions,

• (b) different provision for different cases or areas, and

• (c) transitional, consequential, incidental or supplemental provision.

• (4) Any reference under subsection (1) above in respect of a patient who has been conditionally discharged and not recalled to hospital shall be made to the tribunal for the area in which the patient resides.

• (4A) Sections 73 and 74 do not apply to a reference under subsection (1) in respect of a patient who has been conditionally discharged and not recalled to hospital but on any such reference the tribunal may—

• (a) vary any condition to which the patient is subject in connection with the patient’s discharge or impose any condition which might have been imposed in connection with their discharge, or

• (b) direct that the restriction order, limitation direction or restriction direction to which the patient is subject ceases to have effect,

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

• (4B) Conditions amounting to a deprivation of liberty may be imposed under subsection (4A)(a) only if the tribunal is satisfied—

• (a) that conditions amounting to a deprivation of the patient’s liberty are necessary for the protection of 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.

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

• (6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Discharge of patients

Powers of tribunals

72

• (1) Where application is made to the appropriate tribunal by or in respect of a patient who is liable to be detained under this Act or is a community patient , the tribunal may in any case direct that the patient be discharged, and—

• (a) the tribunal shall direct the discharge of a patient liable to be detained under section 2 above if it is not satisfied—

• (i) that he is then suffering from mental disorder or from mental disorder of a nature or degree which warrants his detention in a hospital for assessment (or for assessment followed by medical treatment) for at least a limited period; or

• (ii) that his detention as aforesaid is justified in the interests of his own health or safety or with a view to the protection of other persons;

• (b) the tribunal shall direct the discharge of a patient liable to be detained otherwise than under section 2 above if it is not satisfied—

• (i) that he is then suffering from mental disorder or from mental disorderof a nature or degree which makes it appropriate for him to be liable to be detained in a hospital for medical treatment; or

• (ii) that it is necessary for the health of safety of the patient or for the protection of other persons that he should receive such treatment; or

• (iia) that appropriate medical treatment is available for him; or

• (iii) in the case of an application by virtue of paragraph (g) of section 66(1) above, that the patient, if released, would be likely to act in a manner dangerous to other persons or to himself.

• (c) the tribunal shall direct the discharge of a community patient if it is not satisfied—

• (i) that he is then suffering from mental disorder or mental disorder of a nature or degree which makes it appropriate for him to receive medical treatment; or

• (ii) that it is necessary for his health or safety or for the protection of other persons that he should receive such treatment; or

• (iii) that it is necessary that the responsible clinician should be able to exercise the power under section 17E(1) above to recall the patient to hospital; or

• (iv) that appropriate medical treatment is available for him; or

• (v) in the case of an application by virtue of paragraph (g) of section 66(1) above, that the patient, if discharged, would be likely to act in a manner dangerous to other persons or to himself.

• (1A) In determining whether the criterion in subsection (1)(c)(iii) above is met, the tribunal shall, in particular, consider, having regard to the patient's history of mental disorder and any other relevant factors, what risk there would be of a deterioration of the patient's condition if he were to continue not to be detained in a hospital (as a result, for example, of his refusing or neglecting to receive the medical treatment he requires for his mental disorder).

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

• (3) A tribunal may under subsection (1) above direct the discharge of a patient on a future date specified in the direction; and where a tribunal does not direct the discharge of a patient under that subsection the tribunal may—

• (a) with a view to facilitating his discharge on a future date, recommend that he be granted leave of absence or transferred to another hospital or into guardianship; and

• (b) further consider his case in the event of any such recommendation not being complied with.

• (3A) Subsection (1) above does not require a tribunal to direct the discharge of a patient just because it thinks it might be appropriate for the patient to be discharged (subject to the possibility of recall) under a community treatment order; and a tribunal—

• (a) may recommend that the responsible clinician consider whether to make a community treatment order; and

• (b) may (but need not) further consider the patient's case if the responsible clinician does not make an order.

• (4) Where application is made to the appropriate tribunal by or in respect of a patient who is subject to guardianship under this Act, the tribunal may in any case direct that the patient be discharged, and shall so direct if it is satisfied—

• (a) that he is not then suffering from mental disorder ; or

• (b) that it is not necessary in the interests of the welfare of the patient, or for the protection of other persons, that the patient should remain under such guardianship.

• (4A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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

• (6) Subsections (1) to (4) above apply in relation to references to the appropriate tribunal as they apply in relation to applications made to the appropriate tribunal by or in respect of a patient.

• (7) Subsection (1) above shall not apply in the case of a restricted patient except as provided in sections 73 and 74 below.

Power to discharge restricted patients

73

• (1) Where an application to the appropriate tribunal is made by a restricted patient who is subject to a restriction order, or where the case of such a patient is referred to the appropriate tribunal, the tribunal shall direct the absolute discharge of the patient if—

• (a) the tribunal is not satisfied as to the matters mentioned in paragraph (b)(i) , (ii) or (iia) of section 72(1) above; and

• (b) the tribunal is satisfied that it is not appropriate for the patient to remain liable to be recalled to hospital for further treatment.

• (2) Where in the case of any such patient as is mentioned in subsection (1) above—

• (a) paragraph (a) of that subsection applies; ...

• (b) paragraph (b) of that subsection does not apply ; and

• (c) the tribunal—

• (i) is not satisfied that conditions amounting to a deprivation of the patient’s liberty would be necessary for the protection of another person from serious harm, if the patient were discharged from hospital; or

• (ii) is satisfied that conditions amounting to a deprivation of the patient’s liberty would be necessary for the protection of another person from serious harm if the patient were discharged from hospital, and is also satisfied that for the patient to be discharged subject to those conditions would be no less beneficial to their mental health than for them to remain in hospital;

the tribunal shall direct the conditional discharge of the patient.

• (3) Where a patient is absolutely discharged under this section he shall thereupon cease to be liable to be detained by virtue of the relevant hospital order, and the restriction order shall cease to have effect accordingly.

• (4) Where a patient is conditionally discharged under this section—

• (a) he may be recalled by the Secretary of State under subsection (3) of section 42 above as if he had been conditionally discharged under subsection (2) of that section; and

• (b) the patient shall comply with such conditions (if any) as may be imposed at the time of discharge by the tribunal or at any subsequent time by the Secretary of State.

• (5) The Secretary of State may from time to time vary any condition imposed (whether by the tribunal or by him) under subsection (4) above.

• (5A) Conditions amounting to a deprivation of a patient’s liberty may be imposed by the tribunal under subsection (4)(b) only where the tribunal is satisfied as to the matters mentioned in subsection (2)(c)(ii).

• (5B) Conditions amounting to a deprivation of a patient’s liberty may be imposed by the Secretary of State under subsection (4)(b) or (5) only where the Secretary of State is satisfied that those conditions are necessary for the protection of the public from serious harm.

• (6) Where a restriction order in respect of a patient ceases to have effect after he has been conditionally discharged under this section the patient shall, unless previously recalled, be deemed to be absolutely discharged on the date when the order ceases to have effect and shall cease to be liable to be detained by virtue of the relevant hospital order.

• (7) A tribunal may defer a direction for the conditional discharge of a patient until such arrangements as appear to the tribunal to be necessary for that purpose have been made to its satisfaction; and where by virtue of any such deferment no direction has been given on an application or reference before the time when the patient’s case comes before the tribunal on a subsequent application or reference, the previous application or reference shall be treated as one on which no direction under this section can be given.

• (8) This section is without prejudice to section 42 above.

Restricted patients subject to restriction directions

74

• (1) Where an application to the appropriate tribunal is made by a restricted patient who is subject to a limitation direction or a restriction direction, or where the case of such a patient is referred to the appropriate tribunal, the tribunal—

• (a) shall notify the Secretary of State whether, in its opinion, the patient would, if subject to a restriction order, be entitled to be absolutely or conditionally discharged under section 73 above; and

• (b) if the tribunal notifies him that the patient would be entitled to be conditionally discharged, may recommend that in the event of his not being discharged under this section he should continue to be detained in hospital.

• (2) If in the case of a patient not falling within subsection (4) below—

• (a) the tribunal notifies the Secretary of State that the patient would be entitled to be absolutely or conditionally discharged; and

• (b) within the period of 90 days beginning with the date of that notification the Secretary of State gives notice to the tribunal that the patient may be so discharged,

the tribunal shall direct the absolute or, as the case may be, the conditional discharge of the patient.

• (3) Where a patient continues to be liable to be detained in a hospital at the end of the period referred to in subsection (2)(b) above because the Secretary of State has not given the notice there mentioned, the managers of the hospital shall, unless the tribunal has made a recommendation under subsection (1)(b) above, transfer the patient to a prison or other institution in which he might have been detained if he had not been removed to hospital, there to be dealt with as if he had not been so removed.

• (4) If, in the case of a patient who is subject to a transfer direction under section 48 above, the tribunal notifies the Secretary of State that the patient would be entitled to be absolutely or conditionally discharged, the Secretary of State shall, unless the tribunal has made a recommendation under subsection (1)(b) above, by warrant direct that the patient be remitted to a prison or other institution in which he might have been detained if he had not been removed to hospital, there to be dealt with as if he had not been so removed.

• (5) Where a patient is transferred or remitted under subsection (3) or (4) above the relevant hospital direction and the limitation direction or, as the casemay be, the relevant transfer direction and the restriction direction shall cease to have effect on his arrival in the prison or other institution.

• (5A) Where the tribunal has made a recommendation under subsection (1)(b) above in the case of a patient who is subject to a restriction direction or a limitation direction—

• (a) the fact that the restriction direction or limitation direction remains in force does not prevent the making of any application or reference to the Parole Board by or in respect of him or the exercise by him of any power to require the Secretary of State to refer his case to the Parole Board, and

• (b) if the Parole Board make a direction or recommendation by virtue of which the patient would become entitled to be released (whether unconditionally or on licence) from any prison or other institution in which he might have been detained if he had not been removed to hospital, the restriction direction or limitation direction shall cease to have effect at the time when he would become entitled to be so released.

• (6) Subsections (3) to (8) of section 73 above shall have effect in relation to this section as they have effect in relation to that section, taking references to the relevant hospital order and the restriction order as references to the hospital direction and the limitation direction or, as the case may be, to the transfer direction and the restriction direction.

• (7) This section is without prejudice to sections 50 to 53 above in their application to patients who are not discharged under this section.

Applications and references concerning conditionally discharged restricted patients

75

• (1) Where a restricted patient has been conditionally discharged under section 42(2), 73 or 74 above (“conditionally discharged”) and is subsequently recalled to hospital—

• (a) the Secretary of State shall, within one month of the day on which the patient returns or is returned to hospital, refer his case to the appropriate tribunal; and

• (b) section 70 above shall apply to the patient as if the relevant hospital order , hospital direction or transfer direction had been made on that day.

• (2) Where a restricted patient has been conditionally discharged , is not subject to conditions amounting to a deprivation of liberty and has not been recalled to hospital he may apply to the appropriate tribunal—

• (a) in the period between the expiration of 12 months and the expiration of two years beginning—

• (i) in the case of a patient who has previously been subject to conditions amounting to a deprivation of liberty, with the date on which the patient most recently ceased to be subject to such conditions, and

• (ii) in any other case, with the date on which the patient was conditionally discharged; and

• (b) in any subsequent period of two years.

• (2A) Where a restricted patient has been conditionally discharged, is subject to conditions amounting to a deprivation of liberty and has not been recalled to hospital, the patient may apply to the appropriate tribunal—

• (a) in the period between the expiration of six months and the expiration of 12 months beginning with the date on which the patient most recently became subject to conditions amounting to a deprivation of liberty (whether or not that was the date on which the patient was conditionally discharged), and

• (b) in any subsequent period of two years.

• (2C) Where a restricted patient has been conditionally discharged, is subject to conditions amounting to a deprivation of liberty and has not been recalled to hospital, the Secretary of State must refer the patient’s case to the appropriate tribunal on the expiry of—

• (a) the period of 12 months beginning with the date on which the patient most recently became subject to conditions amounting to a deprivation of liberty (whether or not that was the date on which the patient was conditionally discharged), and

• (b) each subsequent period of two years.

• (2D) The Secretary of State is not required to make a reference under subsection (2C) if the patient’s case was considered by the appropriate tribunal during the period in question.

• (2E) The Secretary of State must refer to the appropriate tribunal the case of any restricted patient who has been conditionally discharged, is subject to conditions amounting to a deprivation of liberty and has not been recalled to hospital if—

• (a) the patient’s case has not been considered by the appropriate tribunal within the last four years, and

• (b) there is no pending application or reference to the appropriate tribunal in relation to the patient’s case.

• (2F) The Secretary of State may by order vary the length of a period mentioned in subsection (2C) or (2E).

• (2G) An order under subsection (2F) may make—

• (a) provision subject to specified exceptions;

• (b) different provision for different cases or areas;

• (c) transitional, consequential, incidental or supplemental provision.

• (2H) Any reference under subsection (2C) or (2E) must be made to the tribunal for the area in which the patient resides.

• (2I) References in this section to the patient’s case being considered by the appropriate tribunal are to the patient’s case being considered by the appropriate tribunal on the patient’s own application or otherwise.

• (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.